Delhi District Court
Ramesh Kumar vs State (N.C.T. Of Delhi) on 6 April, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
C. A. No. 206/17
In the matter of:
Ramesh Kumar
S/o Sh. Duli Chand,
R/o R20, Vani Vihar,
Uttam Nagar, New Delhi.
....Appellant.
Versus
State (N.C.T. of Delhi)
.....Respondent.
Date of Institution : 24.08.2017
Date of Arguments : 03.04.2018
Date of Decision : 06.04.2018
JUDGMENT
1. Vide this judgment, I am deciding appeal filed by the appellant against judgment dated 01.06.2017, vide which appellant was convicted for offence punishable u/s. 279, 337, 338,304A IPC in case FIR No. 169/04, PS Delhi Cantt and against order on sentence dated 26.07.2017, vide which appellant has been sentenced to undergo CA No. 206/17 1 of 30 07.01.2017 rigorous imprisonment for a period of 6 months and fine of Rs. 500/ u/s. 279 IPC, to undergo RI for a period of 6 months and fine of Rs. 500/ u/s. 337 IPC to undergo RI for a period of 2 years and fine of Rs. 1000/ u/s. 338 IPC and to undergo RI for a period of 2 years and fine of Rs. 10,000/ u/s. 304A IPC. Ld. Trial Court has also ordered that the total amount of fine payable by the convict is Rs. 12000/ and in default of payment of fine he is directed to further undergo 6 months RI. Fine paid. Ld. MM has also ordered that all the substantive sentences of imprisonment shall run concurrently.
2. Aggrieved by the judgment dated 01.06.2017 and order on sentence dated 26.07.2017, the appellant has filed the present appeal on the grounds that the impugned judgment and order on sentence are not not based on the facts. Ld. MM erred in holding the appeal guilty under Section 279/337/338/304A IPC when there is no conclusive evidence to sustain the conviction. There are material contradictions and discrepancies in the statements of all the witnesses. The judgment is based on the presumptions and conjectures. No independent witness was joined by the police during investigation and no independent CA No. 206/17 2 of 30 07.01.2017 witness was examined during the trial of the case. There are various contradictions and discrepancies in the statements of all the PWs and they cannot be believed. Ld. MM did not appreciate that PW1 Sant Kumar, PW2 Mata Din, PW6 Sh. Kanhaiya Lal Gupta and PW14 Jitender Singh were hostile witnesses and PW5 Bal Kishan was partly hostile and Ld. MM erred in convicting the appellant while relying on the testimonies of PWs, who have not supported the case of the prosecution. PW1 Sant Kumar, PW2 Mata Din, PW5 Bal Kishan, PW6 Kanhaiya Lal Gupta, PW7 Vipin Aggarwal, PW8 Pyare Mohan Singh, PW12 Rajan Mandal and PW14 Jitender Singh have not identified the appellant during the deposition made in the court. PW1 Sant Kumar has categorically stated that "I was hit by a bus from back side. I suffered injuries and fell unconscious so I cannot tell who was driving the bus and what was its number". PW1 is not able to identify the driver of the bus so the appellant is liable to be acquitted. Similarly, PW2 Mata Din has stated that "a blue line bus hit me from back side. I cannot recollect its number. I do not identify the driver of the vehicle since I had not seen his face. PW5 has put forward a new story that two persons had come under the wheels of the CA No. 206/17 3 of 30 07.01.2017 bus but as per case of the prosecution only Prakash Chand, cyclist has died. PW5 also deposed that he was not knowing the number of the bus and he refreshed his memory regarding the number. PW5 also deposed that he has suffered the injury not directly due to the impact of hitting of the bus but due to impact of the hitting of the other vehicle which was stationed behind him. It is also mentioned that Ld. MM erred in relying the testimony of PW5. PW6 who is owner of the bus has not supported the case of the prosecution and he denied that he has produced the accused before the police. He also deposed that he do not know as to who has written the reply to the notice under Section 133 M.V. Act. PW7 also deposed that he was not having any knowledge regarding the speed of the bus, however, bus hit his car from behind. Similarly, PW8 also deposed that his vehicle was hit from behind and he was looking at front, therefore, he cannot tell the speed of the bus. He also stated that he cannot tell the speed of the blue line vehicle or the rash and negligent manner driving of the bus driver as he was looking afront. PW12 Rajan Mandal has also not identified the driver. PW14 also did not identify the driver of the offending vehicle and stated that he had not witnessed the accident.
CA No. 206/174 of 30 07.01.2017 Ld. MM has wrongly taken into consideration the statements of PWs in the judgment. Ld. MM has wrongly quoted the judgment in para no. 9 of the judgment. Ld. MM erred in disbelieving the version of the appellant as revealed in his statement u/s. 313 r/w 281 Cr.P.C. It is prayed that impugned judgment and order on sentence be set aside and appeal be allowed.
3. I have heard Ld. Counsel for the appellant and Ld. Addl. PP for the State at length and perused the record of this court as well as trial court record very carefully.
Ld. Counsel for the appellant has argued on the lines of the appeal. On the other hand, Ld. Addl. PP for the State contends that there is no illegality or infirmity in the impugned judgment and order on sentence.
4. Perusal of the Trial Court Record reveals that the accused has been sent for trial on the allegations that on 04.06.2004 at about 5.50 PM at Thimaya Park, Gol Chakkar, Station Road, Delhi Cantt., New Delhi within the jurisdiction of PS Delhi Cantt., he was found CA No. 206/17 5 of 30 07.01.2017 driving a blue line bus bearing No. DL1PA1915 of route no. 724 in a manner so rash and negligent so as to endanger human life and personal safety of others and while driving the vehicle struck the same against one bicycle, one santro car baring No. DL7CA9104, two TSR(s) bearing No. DL1RD3413 and DL1RH1306, one Maruti Zen No. DL4CR9155, one Tata 407 No. D11LE4647, two motorcycles No. DL4SAD5041 and DL6SL4401, two scooters No. DDE2448 and DL4SL7710 and one Vikram Tempo No. DL1LB5441 and caused simple injuries on the person of injured namely Pyarey Mohan, Bal Kishan, Sant Ram, grievous injury on the person of Matadin and caused death of cyclist namely Prakash Chand. On the basis of these allegations FIR was registered, investigation was conducted and chargesheet was filed.
5. Perusal of the Trial Court Record reveals that notice u/s. 251 Cr.P.C was served upon accused on 03.02.2011 to which accused pleaded not guilty and claimed trial. Perusal of the file further reveals that to prove the case, prosecution in total has examined 15 witnesses i.e. PW1 Sant Kumar, PW2 Mata Din, PW3 Mathura Das, PW4 CA No. 206/17 6 of 30 07.01.2017 Ashwani Kumar, PW5 Bal Kishan, PW6 Kanhaiya Lal Gupta, PW7 Vipin Aggarwal, PW8 Pyare Mohan Singh, PW9 Ct. Brahm Dutt Kaushik, PW10 Dr. Babita, PW11 Dr. B.N. Mishra, PW12 Rajan Mandal, PW13 Dr. Anurag Jain, PW14 Jitender Singh & PW15 SI Ram Singh.
6. PW1 Sant Kumar has deposed that in the year, 2000 at around 4.30/4.45 Pm, he was riding his scooter No. 7719, he was on way to his home from AIIMS and it was near by Thimmaiya Park, Kirbi Place, he had stopped his scooter at red light. This witness deposed that the red light was on and after his stopping there after about 2 or 3 minutes, he was hit by a bus from back side. He suffered injuries and fell unconscious so he cannot tell who was driving the bus and what was its number. This witness further deposed that he regained his consciousness in the hospital where police met him and got his signature obtained. This witness proved his statement as Ex. PW1/A.
7. PW2 Mata Din has deposed that in the year, 2004, he was turning back from his office and was on way to Palam on his scooter No. 2448. A blue line bus hit him from back side. This witness CA No. 206/17 7 of 30 07.01.2017 deposed that he cannot recollect its number. He does not identity the driver of the vehicle since he had not seen his face. It was around 5.45 PM approx., he was waiting as he had stopped his vehicle after seeing the red light, to get the route clear. Within 2 or 3 minutes after his stoppage there, he suffered the hit from back. This witness further deposed that he regained his consciousness after reaching in the hospital. This witness deposed that his scooter was taken to PS D. Cantt, when he received his scooter after about one and half month, it was in damaged condition. This witness proved his statement as Ex. PW2/A.
8. PW3 Mathura Dass has deposed that the date he do not exactly remember, however, it was in the year, 2004. On that day, he had come at mortuary of DDU hospital, where the dead body of deceased Prakash Chand , who was his neighbour, was correctly identified and after the postmortem of the deceased, his dead body was got released for cremation. This witness proved his statements as Ex. PW3/A and Ex. PW 3/B.
9. PW4 Ashwani Kumar has deposed that on 04.06.2004, his CA No. 206/17 8 of 30 07.01.2017 father late Sh. Kailash Chand had expired on the spot of the incident as he met with an accident. This witness identified the dead body of the deceased at the mortuary of DDU hospital after postmortem. This witness proved his statement as Ex. PW4/A.
10. PW5 Bal Kishan has deposed that on 4th June about 7 years back, he was driving TSR bearing No. DL1R3413 and going from Dhaula Kuan to Janakpuri with passengers. This witness has deposed that at about 5.30 PM, he was at red light of Kirby Place and behind his vehicle there was one white colour Maruti car. One blue line bus bearing no. DL1P 1915 being driven in a high speed and without giving any horn had hit initially one cyclist, one unknown person who was travelling in some vehicle and thereafter the said bus had hit the maruti car and due to the said impact the said maruti car had hit his TSR from behind. This witness deposed that he had suffered injuries on his leg due to the said accident. Number of other persons had also suffered injuries due to the said accident. Thereafter an ambulance had arrived and he was taken to Deen Dayal Hospital and after treatment he was discharged. This witness deposed that he CA No. 206/17 9 of 30 07.01.2017 telephoned to the owner of his vehicle and one policeman had come to the hospital and he was taken on scooter of police official to the spot. This witness proved his statement as Ex. PW5/A.
11. PW6 Kanhaiya Lal has deposed that he is the owner of vehicle No. DL1PB 1915 which is a blue line bus which runs on route no. 724 from Uttam Nagar to Nehru Place. This witness deposed about receiving the notice u/s. 133 M.V. Act and reply thereof vide Ex. PW6/B and stated that on the aforesaid date time and place the offending bus was being driven by accused whom he correctly identified. This witness deposed that he did not recollect whether he had taken the accused after receiving the notice to the PS or not and taken the superdari of offending bus vide Ex. PW6/C. 12 PW7 Vipin Aggarwal, who being the victim in the present case has reiterated the versions of other witnesses examined in the present case of being hit among several vehicle (including his own vehicle) by the offending bus on the aforesaid date time and place and receiving of injuries by the victims specially by one cyclist. This witness has proved the statement as Ex. PW7/A. CA No. 206/17 10 of 30 07.01.2017
13. PW8 Pyare Mohan, who being one of the victim in the present case has also reiterated the versions of other witnesses examined in the present case of hitting multiple vehicle (including his own vehicle) by the offending bus on the aforesaid date time and place and receiving of injuries by himself and his admission in the hospital by PCR Van.
14. PW9 Ct. Brahm Dutt Kaushik has deposed that he was deputed along with the IO of the case during the course of investigation and he has testified in his statement the investigation done in this case by IO. This witness has also exhibited the documents prepared during the course of investigation like seizure of offending bus vide Ex. PW5/A, seizure of victim's vehicle involved in the accident vide Ex. PW5/B to Ex. PW5/I. This witness has further deposed that on 06.06.2004 accused has been produced in the PS by the owner of the offending vehicle and IO has arrested the accused and conducted his personal search vide memo Ex. PW 5/K and Ex. PW5/L and seized the D/L of the accused vide memo Ex. PW 5/M.
15. PW10 Dr. Babita has deposed about the MLC of deceased Prakash Chand and proved the MLC as Ex. PW10/A. CA No. 206/17 11 of 30 07.01.2017
16. PW11 Dr. B.N. Mishra has proved the postmortem report of the deceased and proved the postmortem report as Ex. PW11/A.
17. PW12 Rajan Mandal, who being one of the victim has narrated the version of the other victims examined in this case and has testified the factum of incident of hitting of multiple vehicles in the present case by the offending vehicle and death of one cyclist and receiving of injuries on the person injured in the present case. This witness further deposed that his motorcycle was damaged and IO has recorded his statement Ex. PW12/A.
18. PW13 Dr. Anurag Jain has proved the MLC of injured Sant Kumar, Matadeen and Pyare Mohan as Ex. PW13/A to Ex. PW13/C.
19. PW14 Jitender Singh has deposed that on the aforesaid, date, time and place he alongwith his soninlaw were going in their car and while standing at the traffic signal at Thimaya Chowk, Delhi Cant heard a loud noise from the back side and saw that a bus hit CA No. 206/17 12 of 30 07.01.2017 number of vehicle and as a result of which his car was also hit by some vehicle. This witness further deposed that apart from the number of vehicle the said bus had also hit one cyclist.
20. PW15 Retired SI Ram Singh, who is the IO of the present case has deposed about the investigation done by him in the present case and proved the documents prepared during the course of investigation. Apart from the aforesaid documents, PW15 has further proved his endorsement Ex. PW15/A on the statement of injured Santosh Kumar Gupta, seizure of vehicles involved in the accident vide Ex. PW9/A to Ex. PW9/J and Ex. PW15/B and preparation of site plan Ex. PW15/C.
21. After closure of P.E, statement of accused u/s. 313 Cr.P.C record and accused has opted not to lead D.E.
22. It is vehemently contended by Ld. counsel for the appellant that Ld. Trial Court has not taken into consideration that PW 1 and PW2 were hostile witnesses and Ld. MM has relied on the testimony of PW6 and Ld. MM erred in relying the testimony of PW CA No. 206/17 13 of 30 07.01.2017
6. Ld. MM has wrongly relied to the reply to the notice u/s. 133 M.V Act given by PW6 that appellant was driving the vehicle. It is contended that other witnesses have not supported the case of the prosecution.
It is true that PW1 is complainant in the present case and he has not identified the appellant during his deposition and he did not tell the registration number of the bus. Similarly, PW2 has also not given the registration number of the bus. The testimonies of PW5, PW6, PW7, PW8, PW12 and PW14 are relevant to decide the present case.
PW5 has categorically stated that on the day of incident he was driving TSR bearing No. DL1R3413 and he was going from Dhaula Kuan to Janakpuri with passengers. At about 5.30 PM, he was at red light of Kirby Place and behind his vehicle there was one white colour Maruti car. He categorically deposed that one blue line bus bearing no. DL1P 1915 being driven in a high speed and without giving any horn had hit initially one cyclist, one unknown person who was travelling in some vehicle and thereafter the said bus hit the maruti car and due to the said impact the said maruti car hit his TSR from CA No. 206/17 14 of 30 07.01.2017 behind. He has suffered injuries on his leg due to the said accident and he was taken to Deen Dayal Hospital. He has stated that he has given statement to the police. In cross examination by Ld. APP for the State he admitted that when he reached at Thimmayya Park Circle (Gol Chakkar) he has stationed his vehicle due to red light. He also admitted that the time of occurrence of the accident was between 5.50 PM to 6.00 PM. He also admitted that offending vehicle no. DL1PB1915 was being driven in a high speed, in rash and negligent manner so as to endanger human life and safety of public on road and had hit the vehicles stationed at the red light. He also admitted that initially the said bus had hit the cyclist and two wheeler scooter driver and both of them had come under the wheels of the bus. Thus, this witness has specifically given the bus number in his deposition and also deposed that driver of the bus was rash and negligent and this bus hit the other vehicles also. Nothing fruitful was extracted during the cross examination of PW5.
Ld. counsel for the appellant has stressed that PW5 was not able to tell the registration number of the offending bus but this witness has told the registration number of the offending vehicle when CA No. 206/17 15 of 30 07.01.2017 Ld. APP for the State refresh his memory. I am of the view that this contention of Ld. counsel for the appellant is having no weight as in the examinationinchief PW5 has specifically given the registration number of the vehicle and stated that one blue line bus bearing no. DL1P 1915 was being driven in a high speed and without giving any horn had hit initially one cyclist, one unknown person who was traveling in some vehicle and thereafter, the said bus had hit the maruti car and due to the said impact the said maruti car had hit his TSR from behind. Thus, this contention of Ld. counsel for the appellant carries no force.
23. Similarly, PW7 in his examinationinchief has categorically stated that he was coming from Dhaula Kuan and going towards Dwarka in his car No. DL4CE9155. At about 5.50 PM, he reached near Thimayya Park, red light golchakkar, he stopped his car due to red light. He categorically stated that one blue line bus No. DL1PB 1915 being driven in a high speed, rash and negligent manner had hit his car and besides his car the said bus had also hit two TSRs, one cyclist and other vehicles. The bus had hit the cyclist and the cyclist had expired. In cross examination by Ld. counsel for the CA No. 206/17 16 of 30 07.01.2017 accused this witness has stated that he was not having any knowledge regarding the speed of the bus, however, from the rear view mirror of the car, he had seen the impact of hitting by the bus to his car. Behind his car there was a canter stationed at the red light. This witness admitted that the bus had initially hit the canter which stationed behind his vehicle and the canter in turn had hit his car from behind. Thus, PW7 has also given the registration number of the vehicle and also stated in the cross examination that he was not having knowledge regarding the speed of the bus, however, from the rear view mirror of the car, he had seen the impact of hitting by the bus to his car.
Similarly, PW8 Pyare Mohan also deposed that he was coming from Dhaula Kuan and was driving tempo bearing no. DL1LB 5441. At Thimmayya park red light at about 5.50 PM, on that day when he had reached there and stationed his tempo at the red light, one blue line bus no. DL1PB 1915 driven in a high speed, rash and negligent manner and hit against his tempo with such an impact that he was totally shocked. Thus, PW8 has also deposed that vehicle No. DL1PB1915 was being driven in a high speed, rash and negligent manner. In cross examination by Ld. counsel for the accused this CA No. 206/17 17 of 30 07.01.2017 witness stated that he can judge the speed of the bus by seeing the impact of the accident as it had hit other vehicles also.
Similarly, PW12 has also deposed that he was on his motorcycle No. DL4SAD5041. At about 5.50 PM, he reached at Thimayya Marg and he was standing there due to red light. One blue line bus bearing DL1PB1915 which came from Dhaula Kuan side in a very high speed and hit a cyclist, one scooter and thereafter hit two two wheeler scooter and two cars and two tempos and some other vehicles. In cross examination by Ld. counsel for the accused this witness has stated that the bus had hit 56 vehicles including two TSRs, two cars, one three wheeler and other vehicle he did not remember.
Similarly, PW14 has deposed that he was in his car bearing no. DL7CA 9104 along with his soninlaw. When he reached at Thimayya Chowk, Delhi Cantt., the traffic signal was red and he had stopped his car. At that time, he had heard a loud noise from the back side. He came out from the car and saw that a bus had hit number of vehicles. During cross examination by Ld. APP for the State this witness has admitted that he had told the IO that the registration CA No. 206/17 18 of 30 07.01.2017 number of the bus was DL1PB 1915. He also deposed that route of the bus is 724. He also deposed that he had told the police that the bus was being driven in high speed and the accident had happened due to the negligence of the driver of the bus. This witness has admitted that the incident had taken place on 04.06.2004.
Similarly, PW6 Kanhaiya Lal Gupta is owner of the vehicle and he categorically stated that at the time of accident, appellant was driving the vehicle. He has also admitted that he has replied to the notice u/s. 133 M.V. Act and as per reply the appellant was driving the vehicle. He has identified his signatures at pointA on the notice u/s. 133 M.V. Act.
Ld. MM has not discussed the testimonies of PW5, PW 6, PW7, PW8, PW12 and PW14 in the judgment. Ld. MM should have discussed the testimonies of the witnesses in detail when all the witnesses have categorically deposed that driver of the bus was driving the bus in rash and negligent manner. PW10 has proved the MLC and PW11 has proved the postmortem report as Ex. PW11/A. PW13 Dr. Anurag Jain has proved the MLC of injured Sant Kumar as Ex. PW 13/A, MLC of injured Matadeen as Ex. PW13/B and MLC of injured CA No. 206/17 19 of 30 07.01.2017 Pyare Mohan as Ex. PW13/C. I am of the view that in view of the testimonies of PW5, PW6, PW7, PW8, PW12 and PW18, it is held that appellant was driving the bus at the time of incident and he by driving the bus in rash and negligent manner and firstly hit the cyclist, two scooters, tempos and other vehicles.
24. No evidence has been adduced by the accused to prove that he was not driving the vehicle. Moreover, the matter was posted for TIP of the accused and accused has replied that he does not want to get his TIP conducted as he is plying the vehicle for the last 1012 years on this route and witnesses might have seen him in the police station. I am of the view that as the accused has refused to participate in the TIP proceedings adverse influence can be taken against him and from the testimony of PW5, PW6, PW7, PW8, PW12 and PW14 it can safely be held that appellant was driving the vehicle at the time of incident in rash and negligent manner and he has caused the death of Prakash Chand and Sant Kumar, Bal Kishan and Pyare Mohan received simple injuries and Matadin received grievous injuries. Due to rash and negligent driving accused has struck the bus against one CA No. 206/17 20 of 30 07.01.2017 bicycle, one santro car bearing no. DL7CA9104, two TSR(s) bearing No. DL1RD3413 and DL1RH1306, one Maruti Zen No. DL4CR 9155, one Tata 407 No. D11LE4647, two motorcycles No. DL4SAD 5041 and DL6SL4401, two scooters No. DDE2448 and DL4SL7710 and one Vikram Tempo No. DL1LB5441 were damaged.
25. The accused at no point of time has taken any defence that the failure of break system of the bus has caused the accident. I have also perused the mechanical inspection report of bus No. DL1PB 1915. Though this mechanical inspection report is not exhibited by the prosecution during evidence and this report does not show that the break system of the bus was faulty. Moreover, at no point of time it is the defence of the accused that due to failure of bus break system or any other reason he could not apply break in time.
26. Ld. counsel for the appellant has placed reliance on judgment titled as "Dr. Harish Vohra @ Dr. Harish Bora Vs. State (NCT of Delhi)". The Hon'ble High Court has acquitted the accused in this case on the ground that no evidence was produced by the CA No. 206/17 21 of 30 07.01.2017 prosecution and sole witness is wife of the deceased victim, who was walking ahead of the victim, could not have herself witnessed as to how and in what manner the accident had occurred. In her deposition she deposed that it was only after the offending vehicle had hit her husband, she look back. But, in the present case PW5, PW6, PW7, PW8, PW12 and PW14 have deposed that the driver of the bus was driving the vehicle in high speed, rash and negligent manner.
Ld. counsel for the appellant has also placed reliance on judgment titled as "Rajesh Kumar Vs. State" II (2012) DLT (CRL.) 843 but this judgment is not helpful to the appellant.
Ld. counsel for the appellant has placed reliance on judgment titled as "Sumair Khan Vs. State" II (2012) DLT (CRL.)
557. In this judgment, Hon'ble High Court has acquitted the appellant on the ground that bald statement of PW2 that vehicle was being driven at a fast speed, finds no corroboration from any other document or testimony of any witness. But, in the present case there are testimonies of PW5, PW7, PW8, PW12 and PW14 and all the CA No. 206/17 22 of 30 07.01.2017 witnesses categorically stated that driver of the bus was driving the vehicle in rashly, negligently and in fast speed. Thus, this judgment is not helpful to the appellant.
Ld. counsel for the appellant has also placed reliance on judgment titled as "Tukaram Sitaram Gore v. State" AIR 1971 Bombay 164 in para no. 6 of the judgment, it is held that in order to hold accused liable under Section 304A there must be evidence not only of rashness or negligence acceptable to Court but also that the rash or negligent act of accused was the proximate cause of death and that there must be a direct nexus between the death of a person and rash or negligent act of accused. In the present case the accused at the red light did not stop the vehicle and struck against one bicycle, one santro car bearing no. DL7CA9104, two TSR(s) bearing No. DL1RD3413 and DL1RH1306, one Maruti Zen No. DL4CR9155, one Tata 407 No. D11LE4647, two motorcycles No. DL4SAD5041 and DL6SL4401, two scooters No. DDE2448 and DL4SL7710 and one Vikram Tempo No. DL1LB5441. Thus, accused was negligent in driving the vehicle. Thus, this judgment is not helpful to the appellant.
CA No. 206/1723 of 30 07.01.2017 Ld. counsel for the appellant has also placed reliance on judgments titled as "Mohan Shyam Vs. State (NCT of Delhi)" and "Abdul Rahim @ Indori Vs. State of NCT of Delhi". I have perused these judgments with utmost regard but these judgments are not helpful to the petitioner.
27 . In view of the above discussions, I am of the view that Ld. Trial Court has rightly convicted the appellant for the offences punishable u/s. 279/337/338/304A IPC. There is no illegality or infirmity in the judgment dated 01.06.2017 passed by Ld. Trial Court in FIR No. 169/04, u/s. 279/337/338/304A IPC and same is affirmed. The criminal appeal filed by the appellant is without any merits and same is hereby dismissed.
28. At this stage, it is submitted by Ld. counsel for the appellant that recently brother of the appellant has left for heavenly abode and he is looking after the children of his brother. It is also contended that appellant is having four children and he is only earning member in the family. It is prayed that lenient view be taken against the CA No. 206/17 24 of 30 07.01.2017 appellant and he be enlarged on probation.
On the other hand, Ld. Addl. PP for the State contends that appellant is involved in case u/s. 279/337/338/304A IPC and no lenient view be taken.
29. The Hon'ble Supreme Court in case titled as Dalbir Singh Vs. State of Haryana (2000) 5 SCC 82 has held that "while considering the quantum of sentence to be imposed for the offence of causing death by rash and negligent driving of automobiles, one of the prime consideration should be deterrence. A professional driver should not take a chance thinking that even if he is convicted, he would be dealt with leniently by the court.
When automobiles have become death traps any leniency shown to the drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminder of their duty to adopt utmost care and also of the consequence befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to CA No. 206/17 25 of 30 07.01.2017 maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
Bearing in mind the galloping trend in road accident in Indian and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of offence under Section 304A IPC as attracting the benevolent provisions of section 4 of the Probation of Offenders act. While considering the quantum of sentence to be imposed for the offence of causing death by rash and negligent driving of automobiles, one of the prime consideration should be deterrence. A professional driver pedal the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentivenes when his leg is on the pedal of the vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident or even if any accident occurs, it need not necessarily result in the death of any human being; or even if such deaths ensues he might not be convicted of the offence and lastly that, even if he is convicted he would be dealt CA No. 206/17 26 of 30 07.01.2017 with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle, he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial court, for lessening the high rate of motor accidents due to callous driving of automobiles" nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958 and endorsed the view expressed in Dalbir Singh (supra). The relevant portion of the said judgment is reproduced hereunder: "13.It is settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have a better training in traffic laws and moral responsibility with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304A IPC as CA No. 206/17 27 of 30 07.01.2017 attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh [(200) 5 SCC 82 : 2004 SCC (Cri) 1208].
14. While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the court.
15. For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt. "
CA No. 206/1728 of 30 07.01.2017 I have perused the order on sentence dated 26.07.2017 passed by Ld. Trial Court. Ld. Trial Court sentenced the appellant to undergo rigorous imprisonment for a period of 6 months and fine of Rs. 500/ u/s. 279 IPC, to undergo RI for a period of 6 months and fine of Rs. 500/ u/s. 337 IPC to undergo RI for a period of 2 years and fine of Rs. 1000/ u/s. 338 IPC and to undergo RI for a period of 2 years and fine of Rs. 10,000/ u/s. 304A IPC. Ld. Trial Court has also ordered that the total amount of fine payable by the convict is Rs. 12000/ and in default of payment of fine he is directed to further undergo 6 months RI.
Taking into considerationthe judgment titled as "Dalbir Singh Vs. State of Haryana" (2000) 5 SCC 82, I am of the view that Ld. Trial Court has passed a reasoned order on the quantum of sentence. No interference is required in the order on sentence dated 26.07.2017 and same is upheld. The appellant is directed to undergo sentence as awarded by Ld. Trial Court. Appellant is taken into custody and sent to JC. Fine paid by the appellant before the Ld. Trial Court.
Copy of judgment and order on sentence be supplied to CA No. 206/17 29 of 30 07.01.2017 the appellant free of cost. Trial Court record be sent back with copy of judgment. Appeal file be consigned to record room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 06.04.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
CA No. 206/17
30 of 30
07.01.2017