Delhi District Court
Yashpal vs State on 24 September, 2019
IN THE COURT OF SH. RAKESH SYAL, ASJ-03, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
In re:
CA No. 145/2018
Yashpal
S/o Balbir Singh,
R/o House No.116, VPO Mukandpur,
PS Teetvi, District Muzaffar Nagar,
U.P. .... Appellant
Versus
State .... Respondent
Date of filing of Appeal : 03.10.2018
Date of arguments : 21.09.2019
Date of judgment : 24.09.2019
JUDGMENT
1.1 This judgment shall decide Criminal Appeal filed by appellant Yashpal (accused before the Ld. Trial Court) against judgment dated 27.08.2018, vide which he was convicted for the offences u/s 279 IPC and section 304A IPC, and order on sentence dated 10.09.2018 passed by the Ld. Trial Court vide which he was sentenced as under:-
"Keeping in view the facts and circumstances, the convict is CA No. 145/2018 24.09.2019 Page 1 of 25 Yash Pal v. State hereby sentenced to undergo rigorous imprisonment for a period of 6 months and fine of Rs.1000/- (one thousand only) for the commencement (sic commission) of offence punishable u/s 279 IPC and in default of payment of fine he shall further undergo simple imprisonment for a period of two months.
Convict is further sentenced to undergo rigorous imprisonment for a period of 2 years and fine of Rs.1000/- (One thousand only) for the commencement (sic commission) of offence punishable u/s 304A IPC and in default of payment of fine he shall further undergo simple imprisonment for a period of two months. Fine paid.
The sentence shall run concurrently.
The period already spent by the convict in the custody, if any, during the pendency of the trial shall be set off against the sentence awarded to him."
2.1 The facts leading to filing of this appeal are that on 08.07.2012, at about 10.20 PM, on receipt of DD no.23A, regarding an accident, from PCR, SI Surender Singh, along with Ct. Suraj Pal, went to the site of accident at Baba Kharak Singh Marg, opposite DLF multi level parking, where Ct. Rajeev and Ct. Rahul Kumar, along with the bus driver, met him. At the CA No. 145/2018 24.09.2019 Page 2 of 25 Yash Pal v. State spot, one cycle, make Hero Devil, and bus no. UP-12T-3030, white colour, was found. There was lot of blood on the road. It was learnt that the injured had been taken to Dr. RML Hospital. SI Surender Singh left Ct. Rajeev for supervision of driver and Ct. Suraj Pal for safety of the spot and went to Dr. RML Hospital. He obtained MLC no. E/117541/12 of injured Sachin, aged 12 years, on which the doctor had recorded history of RTA and that patient was brought dead. SI Surender Singh telephonically directed the Duty Officer, Connaught Place to send Crime Team and Photographer and informed MACT Cell, New District. He came back to the site of incident and recorded statement of Ct. Rajeev.
2.2 Ct. Rajeev stated that on 08.07.2012, he was on patrolling duty along with Ct. Rahul Kumar from 10.00 PM to 5.00 AM. At about 10.20 PM, when he and Ct. Rahul Kumar, while patrolling on the footpath of Baba Kharak Singh Road, reached opposite In-Gate of NDMC multi level parking, in front of State Emporium, one bus driver came by driving his bus in a fast speed and in rash and negligent manner and by changing the lane in a dangerous manner, towards the central verge hit one cycle rider from behind. The cycle and the boy, both came under the bus. The boy was seriously injured and started writhing in pain. The bus driver stopped the bus a little ahead and tried to run away. He was apprehended with the help of Ct.
CA No. 145/2018 24.09.2019 Page 3 of 25Yash Pal v. State Rahul Kumar. Meanwhile somebody called the PCR. The PCR took the boy to hospital. The name of the bus driver was learnt to be Yashpal. Based on the above statement, a case was got registered by sending a tehrir through Ct. Suraj Pal.
2.3 Investigation was carried out, during which photographs of the spot were taken and the investigation was handed over to SI C.M. Meena of CMVAI Cell. Site plan was prepared. The case property was seized. Accused Yashpal was arrested and was released on bail. The case property was deposited in the malkhana. On 09.07.2012, postmortem of deceased Sachin was got conducted at Lady Hardinge Medical College. The dead body, after identification, was handed over to his legal heirs. Statement of witnesses were recorded. On 10.07.2012, mechanical inspection of the offending bus no. UP- 12T-3030 was got conducted. The bus was released on superdari on the order of the court. On 17.07.2012, investigation was handed over to ASI Sudhir Kumar. The driving licence of the accused, RC, insurance policy, fitness and permit were got verified. On 30.07.2012, postmortem report of deceased Sachin was obtained, wherein the doctor had opined the cause of death as, 'death is due to shock and hemorrhage as a result of multiple ante-mortem injuries to the body except head as a result of blunt force trauma and is consistent to the manner as alleged (vehicular run over)'. On completion of investigation, charge-
CA No. 145/2018 24.09.2019 Page 4 of 25Yash Pal v. State sheet under section 279/304A IPC was filed against the accused.
2.4 Cognizance of the offences was taken. After supplying copies of documents u/s 207 Cr.P.C., notice u/s 251 Cr.P.C. for commission of offences punishable u/s 279/304A IPC was given to the accused, to which he pleaded not guilty and claimed trial.
2.5 In order to prove its case, prosecution has examined 11 witnesses. PW1 Ct. Rajeev is the complainant/eye witness. PW5 Ct. Rahul Kumar is another eye witness. PW3 Ct. Dharam Raj has taken photographs of the spot. PW4 HC Vijender had accompanied SI C.M. Meena to mortuary of Lady Hardinge Medical College. PW6 is the Record Clerk of Dr. RML Hospital. PW7 T.S. Siddiqui has conducted mechanical inspection of the bus. PW8 Dr. Yashoda Rani has deposed about the postmortem on the body of deceased Sachin conducted by Dr. Manoj Kumar Hansda. PW9 SI Surender Sharma had gone to the spot along with Ct. Suraj Pal on receipt of DD no.23A. PW10 SI C.M. Meena is the part Investigating Officer. PW11 SI Sudhir Kumar is the final Investigating Officer, who has filed the charge sheet.
2.6 It is pertinent to mention that on 19.08.2017, accused has admitted FIR no.103/12, Ex.P-1. On 18.01.2014, he had stated that he shall not dispute the identity of the offending CA No. 145/2018 24.09.2019 Page 5 of 25 Yash Pal v. State bus in question.
2.7 Statement of the accused u/s 313 Cr.P.C. was recorded, wherein he stated that he had been falsely implicated in this case. He further stated that accident had already taken place and it was not caused by the bus which was driven by him. The accused did not opt to lead evidence in his defence.
2.8 Vide judgment dated 27.08.2018, the accused was convicted for the offences punishable u/s 279/304A IPC and vide order on sentence dated 10.09.2018, he was sentenced as above.
3.1 The appellant/convict has assailed the judgment and order on sentence, inter alia, on the ground that the appellant has been falsely implicated because the prosecution has failed to prove that PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar were the eye witnesses of the alleged accident. Both the PWs have admitted that they had not made any call on 100 number at the time of alleged accident which was witnessed by them. Despite two police officials being present on the spot, they did not accompany the deceased to the hospital. Both the police officials further admitted that they have not even made any call on 100 number after apprehending the appellant. It is also submitted that despite admission by prosecution witnesses that there were several persons present at the spot at the time of CA No. 145/2018 24.09.2019 Page 6 of 25 Yash Pal v. State accident, no public person has been cited as witness in the charge-sheet nor any witness has been examined by the prosecution. The prosecution has not disclosed the number of the vehicle and the name of the person who has taken the deceased to the hospital after the accident. Both the witnesses are official witnesses and have not witnessed the alleged accident. It is further submitted that DD no.23A mentions the mobile number of the person who had made call at 100 number but the said person has not been examined by the prosecution. PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar, who are allegedly the eye witnesses of the accident have not stated that the appellant was driving the vehicle in a rash and negligent manner. In his cross-examination, PW1 Ct. Rajeev has stated that he was patrolling on the motorcycle, whereas in his cross- examination, PW5 Ct. Rahul Kumar has stated that they were on foot while patrolling. The version of these two eye witnesses are contrary to each other. Prosecution has not examined any independent witness despite the fact that many public persons were present at the time of accident as alleged by the prosecution.
4.1 Shri H.S. Dhillon, Ld. Counsel for the appellant has argued that caller of 100 number, on the basis of which DD no.23A was recorded, has not been made a witness, though his telephone number has been mentioned in DD no.23A. Thus, an CA No. 145/2018 24.09.2019 Page 7 of 25 Yash Pal v. State important witness, who has most likely seen the accident, has not been brought before the court. He has further submitted that PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar are not the actual eye witnesses. He has contended that no public person was made a witness, although many public persons were present at the spot. He has further contended that as per the site plan, Ex.PW10/A, there is a lot of distance between the point where the accident had happened and the point where the bus was found, which show that the bus of the appellant was not involved in the accident. He has, thus, submitted that the prosecution has failed to prove it's case against the accused beyond a reasonable doubt.
5.1 Mr. Ravindra Kumar, Ld. APP has contended that the testimonies of both the eye witnesses namely, PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar have gone unimpeached. They have categorically stated about the bus, driven by the appellant, hitting the cyclist from behind. It is further argued that the fact that the bus of the accused has hit the cyclist from behind is also proved from the mechanical inspection report, Ex.PW7/A, according to which the fresh damages included 'Front bumper dented/pressed/scratched' and 'Rt side lower body dented/pressed/scratched'. He has, thus, submitted that the prosecution has proved its case against the accused beyond any reasonable doubt.
CA No. 145/2018 24.09.2019 Page 8 of 25Yash Pal v. State 6.1 I have heard Shri H.S. Dhillon and Sh. Rajinder Singh, Ld. Counsels for the appellant, Shri Ravindra Kumar, Ld. APP and also perused the record.
7.1 In this case, the following points were required to be determined:-
(A) Charge u/s 279 IPC
(i) Whether or not, on 08.07.2012, at about 10:20 PM, at Baba Kharak Singh Marg, in front of In-Gate of DLF multi level parking on the road towards Connaught Place, Outer Circle, appellant Yash Pal was driving bus no. UP-12T-
3030?,
(ii) If so, whether or not, appellant Yash Pal was driving the said bus in a manner so rash and negligent as to endanger human life or likely to cause hurt or injury to any other person?
(B) Charge u/s 304 A IPC
(i) Whether or not, on the aforesaid date, time and place, appellant Yash Pal has caused death of Sachin?
CA No. 145/2018 24.09.2019 Page 9 of 25(ii) If so, whether or not, the said death was caused by appellant Yash Pal by doing a rash or negligent act not amounting to culpable homicide?
7.2 In this case, it is not disputed that deceased Sachin had died in a road accident and the cause of death was opined as, 'death is due to shock and hemorrhage as a result of multiple ante-mortem injuries to the body except head as a result of blunt force trauma and is consistent to the manner as alleged (vehicular run over)'. The defence taken by the accused is that no accident has taken place by his bus. It is also not disputed by the appellant that at the relevant time, he was driver of bus no. UP-12T-3030, which was found at the spot, and that he was apprehended and his bus was seized.
8.1 It is pertinent to refer to the statements of main witnesses. PW1 Ct. Rajeev has testified that on 08.07.2012, he was on night patrolling duty with Ct. Rahul Kumar in Division VII of PS Connaught Place. At about 10.20 PM, when he along with Ct. Rahul, was present near NDMC Building, while going towards Gol Dak Khana, he saw bus bearing no. UP-12T-3030 coming from the side of Gol Dak Khana at a high speed of about 50-60 kmph. The bus changed the lane from left side towards the divider of the road and hit against one cyclist, who was CA No. 145/2018 24.09.2019 Page 10 of 25 Yash Pal v. State riding the cycle on the road by the side of divider and the bus ran over the cyclist and his cycle. The bus stopped at some distance after the incident. They apprehended the driver of the bus i.e. the accused. In the meanwhile, somebody made a call to PCR. PCR van also arrived at the spot and it took the injured to the hospital. Accused disclosed his name as Yashpal. He also testified that after some time, SI Surender also came to the spot along with one Constable and they handed over the accused to him. He left them at the spot and went to RML Hospital. After some time, he came back and recorded his statement, Ex.PW1/A. He prepared a rukka and handed over the same to Ct. Suraj Pal for registration of FIR. After some time, Ct. Suraj Pal, along with SI C.M. Meena reached the spot. The accused was arrested vide arrest memo, Ex.PW1/B. He identified the offending bus in the photographs to be the same, which had hit the cycle of the victim shown in the photographs.
8.2 In his cross-examination, PW1 Rajeev stated that the accident occurred at a distance of about 10 steps from the Police Station. They were patrolling on foot. He did not remember the DD number of his departure entry from Police Station. He admitted that he along with Ct. Rahul left the PS on motorcycle for patrolling. He was driving the motorcycle. He denied that when the accident occurred he was riding the bike. He stated that he parked the motorcycle initially near Jain Dhaba and CA No. 145/2018 24.09.2019 Page 11 of 25 Yash Pal v. State thereafter was patrolling on foot. He denied that there was heavy traffic at that time on the road, and stated that, however, some vehicles were moving on the road.
8.3 PW5 Ct. Rahul has testified that on 08.07.2012, he was on night patrolling duty along with Ct. Rajeev. At about 10.20 PM, near NDMC Building, while they were going towards Gol Dak Khana, he saw that one bus with U.P. number came from Gol Dak Khana side at a fast and high speed and hit against a cyclist. The cyclist fell down and suffered fatal injuries. PCR van reached the spot and IO removed the injured to RML Hjospital. A case was registered on the statement of Ct. Rajeev. The driver of offending vehicle Yashpal was apprehended and arrested vide arrest memo, Ex.PW1/B. He has also identified the accused.
8.4 During his cross-examination, PW5 Ct. Rahul Kumar stated that he along with Ct. Rajiv left for Beat no.7, Police Station to DLF Building, at about 10.00 PM. They were on foot while patrolling. He denied that accident had taken place on the other road. He stated that accident had taken place on same side of road on which they were patrolling. He admitted that at the time of accident, heavy rush was there and there were vehicles moving ahead of the offending vehicle. He could not tell the exact distance between them and the offending bus but CA No. 145/2018 24.09.2019 Page 12 of 25 Yash Pal v. State stated that it was approximately 30 to 40 meters. He admitted that public gathered there after the incident and at the time of apprehension of accused. He further stated that he remained at the spot for about 45-60 minutes. He denied that he was not present at that time or that accident was not caused by the accused.
8.5 PW7 Shri T.U. Siddiqui is the Government approved Surveyor and Loss Assessor. He has testified that on 10.07.2012, he conducted mechanical inspection of bus bearing registration no. UP-12T-3030, make TATA, in case FIR no.103/2012. As per inspection fresh damages were:-
a) Front bumper dented/pressed/scratched,
b) Right side lower body dented/pressed/scratched,
c) Front tyre Michelin 1000-20 nylon,
d) Rear tyres MRF Michelin 1000-20 nylon,
e) Brakes okay, and
f) Vehicle on road.
His mechanical inspection report is Ex.PW7/A. He further testified that generally in the buses, the size of all the tyres should be 900-20 but in this vehicle big tyres were used, due to which revolution speed of vehicle increases. During his cross- examination, PW7 T.U. Siddiqui denied that he had prepared a false report at the instance of IO or that there was no fresh CA No. 145/2018 24.09.2019 Page 13 of 25 Yash Pal v. State damage on the offending vehicle or that the size of the vehicle were normal and okay or that he deposed falsely.
8.6 PW9 SI Surender Sharma has deposed that on 08.07.2012, on receipt of DD no.23A, he along with Ct. Suraj Pal reached the spot, where Ct. Rajeev and Ct. Rahul were present. The offending vehicle bearing registration no.UP-12-3030, accidental cycle and a pair of sleepers lying on the road. Accused was also present. He also deposed that victim has already been shifted to RML Hospital. He asked Ct. Rajeev to look after the accused and Ct. Rahul and Suraj Pal to look after the spot. He informed the crime team and photographers about the incident. Thereafter, he went to RML Hospital where he was informed that injured has already expired. He collected his MLC, Ex.PW6/A. He came back to the spot where photographers of crime team were taking photographs of the spot. The photographs are Mark A-1 to A-13. He further deposed that he tried to find out eye witnesses but could not find anyone. He recorded statement of Ct. Rajeev Kumar, Ex.PW1/A. He prepared rukka, Ex.PW9/A and gave the same to Ct. Suraj Pal for registration of FIR. On the instructions of senior officer, he handed over the investigation of the case to SI C.M. Meena, who reached the spot.
8.7 During his cross-examination, PW9 SI Surender CA No. 145/2018 24.09.2019 Page 14 of 25 Yash Pal v. State Sharma stated that he could not find anyone else at the spot apart from the accused and police officials. There was not much traffic at that time at that time. He recorded statement of Ct. Rajeev at the spot. He did not record statement of anybody else. He remained at the spot for about 10-15 minutes. Thereafter he went to RML Hospital. In the hospital, he found that the injured had already died. He collected his MLC. He did not remember whether any family member was attending the deceased/injured. He denied that he recorded the statement of Ct. Rajeev at the police station or that he did not visit the place of occurrence.
8.8 PW2 Ct. Suraj Pal has generally corroborated the version of PW9 SI Surender Sharma.
8.9 PW10 SI C.M. Meena is the IO of the case. He testified that on 09.07.2012, at about 11.15 PM, he telephonically received a call at his official phone from PS Connaught Place regarding the accident. He along with HC Bijender reached the spot at around 11.45 PM, where he met Ct. Rajeev and Ct. Rahul. After some time Ct. Surajpal also came there. At the spot, he saw the offending bus bearing no. UP-12T-3030 and one Hero cycle in accidental condition. Driver of the offending vehicle was also present there. At around 12.30 AM, Ct. Surajpal handed over to him the original tehrir and copy of FIR. He got CA No. 145/2018 24.09.2019 Page 15 of 25 Yash Pal v. State photographs of the spot, Mark A-5, A-6, A-7, A-11, A-13, of the offending vehicle bearing no. UP-12T-3030, Mark B1 to B4 (colly) and Mark, A-1, A-2 and A-12, of accidental cycle, Mark A- 4, A-8, A-9, A-10 and one photograph of the place, Mark A-3. He prepared the site plan, Ex.PW10/A, of the spot, seizure memo, Ex.PW2/A of the offending vehicle, seizure memo, Ex.PW2/B, of accidental Hero Devil cycle, seizure memo, Ex.PW2/G of RC and Insurance of the offending vehicle, seizure memo, Ex.PW2/2 of red slippers, seizure memo, Ex.PW2/F of fitness certificate/tourist permit of the bus and seizure memo, Ex.PW2/F of Driving Licence of driver of offending bus. The accused was arrested vide arrest and personal search memo, Ex.PW1/B and Ex.PW1/D respectively. He further deposed that he got the postmortem, Ex.PW10/B of deceased Sachin conducted and his identification, Ex.PW10/C by his relatives namely Gopal Singh and Jitender. He handed over the dead body of the deceased to his relatives vide memo, Ex.PW10/D. He got the mechanical inspection, Ex.PW7/A of the offending vehicle done.
8.10 During his cross-examination, PW10 SI C.M. Meena stated that he prepared all the documents at the spot. He arrested accused at the spot in the presence of Ct. Rahul, Ct. Surajpal and Ct. Rajeev. He obtained signature of HC Vijender on the handing over memo, Ex.PW10/D of the deceased. He left CA No. 145/2018 24.09.2019 Page 16 of 25 Yash Pal v. State the spot at about 3.00 AM. He recorded statement of Ct. Suraj Pal in the police station during day time. He did not record statements of any other wittness. He contacted Shri Salim Siddiqui in Mandir Marg MACT Cell, as somebody told that he was present in the police station Mandir Marg, for conducting mechanical inspection of offending vehicle. There was no public person when he reached the spot. He denied that he has not conducted the investigation at the place of occurrence or that he recorded the statement of witnesses at MACT Cell or that he had not visited the spot or that he prepared the site plan in MACT Cell.
9.1 It can be seen that PW1 Ct. Rajeev has categorically stated that he saw bus bearing no.UP-12T-3030 coming from the side of Gole Dak Khana at high speed at about 50-60 km, changing the lane from left side towards the divider of the road and hitting the cyclist going on the road by the side of divider and running over the cyclist and his cycle. PW5 Ct. Rahul also deposed that while they were present near NDMC building and going towards Gole Dakhana, he saw the bus of UP number coming from Gole Dakhana side at a fast and high speed and hit against a cyclist. It can be seen that the testimonies of PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar have by and large have gone unimpeached. Nothing in favour of the accused could be elicited during their cross-examination. Merely because, PW1 CA No. 145/2018 24.09.2019 Page 17 of 25 Yash Pal v. State Ct. Rajeev and PW5 Ct. Rahul Kumar are police officials, there is no reason to disbelieve them. Further, the fact that the bus of the accused was involved in the accident is also corroborated by the Mechanical Inspection Report conducted by PW7 Shri T.U. Siddiqui, who has proved his report, Ex.PW7/A. He has testified that as per the inspection, the fresh damages found on the bus were, "1. Front bumper dented/pressed/scratched, 2. Right side lower body dented/pressed/scratched......". He further testified that generally in the buses the size of all the tyres should be 900-20 but in this vehicle big tyres were used, due to which revolution speed of vehicle increases. During his cross- examination, PW7 Shri T.U. Siddiqui denied that he had prepared false report or that there was no fresh damage on the offending vehicle. The testimony of PW7 Shri T.U. Siddiqui has also gone unimpeached.
9.2 It is observed that in his statement u/s 313 Cr.P.C., appellant has, inter-alia, stated that the accident had already taken place and he was falsely implicated. During the course of arguments, it has been submitted that one bus going ahead of his bus had caused the accident. However, during cross- examination of the two eye witnesses i.e. PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar, no such suggestion has been given to the said witnesses. The accused has also not led any evidence in support of his defence. He has also not stated as to how his bus CA No. 145/2018 24.09.2019 Page 18 of 25 Yash Pal v. State came to be seized. It is also not the case of the accused that after his apprehension in the case, he made any complaint to any authority regarding his false implication.
9.3 Ld. Counsel for the appellant has argued that there are discrepancies in the testimonies of PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar. He has submitted that although PW1 Ct. Rajeev has deposed about accused changing his lane and hitting against a cyclist, PW5 Ct. Rahul Kumar has not stated about the same. Ld. PP has argued that PW5 Ct. Rahul Kumar has also deposed about the bus coming at a high speed and hitting against a cyclist and, thus, there is no discrepancy in the testimonies of the two eye witnesses. It is considered that there is no contradiction in the two statements. PW1 Ct. Rajiv has stated about the manner of incident in more detail than PW5 Ct. Rahul Kumar. Ld. Counsel for the accused has further contended that during his cross-examination, PW1 Ct. Rajeev has admitted that he along with Ct. Rahul Kumar left the police station on motorcycle for patrolling. However, he further stated that he parked the motorcycle near Jain Dhaba and thereafter, they were patrolling on foot. Whereas, PW5 Ct. Rahul Kumar, during his cross-examination stated that they were on foot while patrolling. As contended by Ld. APP, there appears to be no contradiction in the said two statements. As per both the witnesses, at the time of incident, they were patrolling on foot.
CA No. 145/2018 24.09.2019 Page 19 of 25Yash Pal v. State 9.4 Ld. Counsel for appellant has further argued that as per PW5 Ct. Rahul Kumar, they left the spot at 11.00 PM, whereas according to PW10 SI C.M. Meena, he along with HC Bijender reached the spot at around 11.45 PM, where he met PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar. Ld. PP has submitted that this is a minor variation which does not affect the prosecution case. It is considered that the power of observation, assessment of time etc., retention in memory and reproduction before the court differs from person to person and, thus, there is bound to be some discrepancy in the testimony of even truthful witnesses to the same incident. In view of the overall facts and circumstances of the case, the above variation cannot negate the prosecution case. It has also been argued on behalf of the appellant that though PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar are stated to be the eye witnesses, they had not taken the injured to the hospital or made call to 100 number, which would have happened in the normal course. Ld. PP has contended that since the PCR came to the spot and took the injured to the hospital, there was no requirement for PW1 Ct. Rajeev or PW5 Ct. Rahul Kumar to take him to the hospital. There is force in the contention of Ld. APP that once the PCR has taken the injured to the hospital, PW1 Ct. Rajeev and PW5 Ct. Rahul Kumar remained at the spot after apprehending the appellant. Further, if somebody had already called PCR before CA No. 145/2018 24.09.2019 Page 20 of 25 Yash Pal v. State they could do so, there was no need for them to call 100 number again.
9.5 Ld. Counsel for the appellant has further argued that during investigation, no public person had joined the investigation, although they were present. Ld. APP has submitted that when IO reached the spot no public person was present, who could have joined the investigation. It can be seen that PW10 SI CM Meena, during his cross examination, has testified that there was no public person present when he reached the spot. It appears that once PCR had taken the injured to the hospital, public persons or the onlookers would have also left. Thus, non joining of any public person during investigation, in the facts and circumstances of the case was not unusual. Ld. Counsel for the accused has also contended that the person, who made call at 100 number and whose mobile number is mentioned in DD number 23A has not been made a witness. Ld. APP has contended that information about the incident can be given by any person who could be passerby, onlooker etc. It is not necessary to make such person a witness, when eye witnesses are otherwise available. It is considered that in view of the facts that eye witnesses viz. PW1 Ct. Rajiv and PW5 Ct. Rahul Kumar were available, non examination of caller of 100 number does not affect the prosecution case. It has also been argued that as per the site plan, Ex. PW10/A, there is CA No. 145/2018 24.09.2019 Page 21 of 25 Yash Pal v. State lot of distance between the point where the accident had taken place and the point where the bus was found, which show that the bus of the accused was not involved in the incident. According to Ld. APP, it only shows that the bus was in high speed and, thus, could not stop immediately after the accident. There is force in the contention of Ld. APP. The fact that the bus was found at a little distance from the point of incident can not lead to an inference that it was not involved in the incident.
10.1 In view of the aforesaid discussion, it appears that the prosecution has been able to prove its case against the appellant beyond a reasonable doubt. Thus, there does not appear to be any ground for interfering with the judgment dated 27.08.2018.
11.1 It has been submitted by the Ld. Counsel for the convict that the convict is a first offender. He is neither a previous convict nor he is involved in any other case. He has submitted that he is 51 years old. He has met with an accident, in which he has suffered injury on his abdomen and his knee was broken. He is the sole bread earner of his family. He is making both the ends meet by farming on 5 Bigha land owned by him. He has a wife, one son aged about 17 years and a daughter aged about 20 years to support. Thus, a lenient view may be taken. Ld. APP on the other hand submitted that CA No. 145/2018 24.09.2019 Page 22 of 25 Yash Pal v. State because of the rashness/ negligence on the part of convict, a young life was lost. Therefore, the sentence awarded by the Ld. Trial Court is appropriate.
11.2 Considering the aggravating and mitigating circumstances, facts of the case, nature and gravity of offences, past criminal record and his personal circumstances, it is considered that for commission of offence punishable under section 304A IPC, a sentence of imprisonment for a period of one year, and for commission of offence punishable under section 279 IPC, a sentence of imprisonment for a period of four months would be appropriate. However, the sentence of fine, imposed upon the appellant, for commission of both the above offences, appears appropriate. It is also observed that the appellant / convict has been sentenced, inter-alia, to fine of Rs.1,000/- for commission of offence punishable u/s 279 IPC and, in default of payment of fine, to further undergo simple imprisonment for a period of two months. As per section 65 IPC, the term for which the Court can direct the offender to be imprisoned in default of payment of fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. Section 279 IPC provides for punishment of imprisonment of either description for a term which may extend to six months, or with fine which may CA No. 145/2018 24.09.2019 Page 23 of 25 Yash Pal v. State extend to one thousand rupees, or with both. Thus, the term of imprisonment in default of payment of fine could not have exceeded one and a half month i.e. one fourth of the maximum imprisonment fixed for the offence which is six months.
11.3 In view of the aforesaid, the sentence awarded by the Ld. Trial Court is modified and the appellant/convict is sentenced,
(a) to rigorous imprisonment for four months and fine of Rs.1,000/- (Rupees One thousand) and in default of payment of fine, to further undergo simple imprisonment for one month for commission of offence punishable u/s. 279 IPC, and
(b) to rigorous imprisonment for one year and fine of Rs.1,000/- (Rupees One thousand) and in default of payment of fine, to further undergo simple imprisonment for two months for commission of offence punishable u/s. 304-A IPC.
Both the sentences shall run concurrently. The period of imprisonment undergone by the convict during investigation/trial shall be set off against the term of imprisonment imposed upon him by giving him benefit of section 428 Cr.PC.
CA No. 145/2018 24.09.2019 Page 24 of 25Yash Pal v. State 11.4 In the result, the conviction of the appellant is maintained with the sentence as modified above. The appeal is disposed off accordingly.
12.1 Appellant/convict be taken into custody to undergo the sentence of imprisonment, as modified above. Committal warrants be prepared accordingly.
13.1 A copy of this judgment be supplied to the appellant free of cost.
14.1 A copy of judgment, along with Trial Court Record, be sent to the Ld. Trial Court.
15.1 Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (Rakesh Syal)
Today i.e. 24.09.2019 ASJ-03/NDD/PHC/New Delhi
24.09.2019
CA No. 145/2018 24.09.2019 Page 25 of 25
Yash Pal v. State