Delhi District Court
Sunil vs State Of Nct Of Delhi on 13 April, 2023
IN THE COURT OF SH. DHARMENDER RANA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE
(NDPS) (CENTRAL):
TIS HAZARI COURTS: DELHI
Criminal Appeal No. 274/2019
CNR No.:-DLCT01-007805-2019
In the matter of:-
Sunil
..........Appellant
Versus
STATE of NCT of Delhi
.......Respondent
FIR No. 323/2010
U/s 279/304-A IPC
PS Burari
Date of institution : 06.06.2019
Date of order : 10.04.2023
Final order: Appeal dismissed
JUDGMENT
1. By this judgment, I shall dispose of an appeal filed by appellant/convict Sunil against judgment dated 12.04.2018 and order on sentence dated 14.05.2019 passed by Ld. MM-09 (Central), Tis Hazari Courts, Delhi.
2. Vide impugned judgment dated 12.04.2018 and order on sentence dated 14.05.2019, Ld. Trial Court convicted accused Sunil for commission of offence punishable under Section Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 1/9 279/304-A IPC and sentenced him as under:-
Sr. No. Section Sentence Fine Remarks
1. 279 IPC NIL Rs. 1000/- In default SI for 02 days
3. 304-A 01 month Rs. 9000/- In default SI for 10 IPC days
3. Out of the fine amount a sum of Rs. Five thousand was directed to be paid to the Lrs of the deceased. Additionally, a sum of Rs. 25,000/- was also directed to be paid to the Lrs of the deceased.
4. In nutshell, it is the case of the prosecution that on 14.11.2010 at about 11 AM on main road leading towards Burari from the side of Sant Nagar near Sharab Ka Thekha, Burari, convict was driving one Delhi Jal Board Tanker bearing registration No. DL-1L-G-3221 in a rash and negligent manner without a valid driving licence on a public way and on the aforesaid date, time and place while so driving the aforesaid vehicle in the aforesaid manner, he struck against one minor boy namely Harsh, who was crossing the road with his bicycle and caused his death not amouting to culpable homicide.
5. On the basis of aforesaid facts, an FIR was registered for offence punishable under Section 279/304-A IPC against the convict and after investigation, charge-sheet was filed.
6. Vide order dated 23.02.2011, the Ld. Trial Court took cognizance of the abovesaid offences and provisions of Section 207 CrPC were complied. Thereafter, on the basis of material available on record, prima facie case punishable under Section 279/304-A IPC and 3/181 MV Act was made out against convict Sunil and vide order dated 31.05.2011 notice was accordingly Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 2/9 framed to which he pleaded not guilty and claimed trial.
7. In order to prove the guilt of convict, prosecution examined as many as thirteen (13) witnesses on record.
8. After conclusion of evidence, statement of convict was recorded under Section 313 CrPC wherein he denied all the allegations. He claimed that he is innocent and had been falsely implicated in the present case and all the proceedings were done while sitting at the PS. The accused opted not to lead any defence evidence.
9. Arguments were advanced before Ld Trial Court and vide impugned judgment dated 12.04.2018 and order on sentence dated 24.05.2018 passed by Ld. MM-09 (Central), Tis Hazari Courts, convict was sentenced as herein above mentioned and consequently the appeal.
10. I have heard Ld. APP and carefully perused the record as despite opportunity, Defence opted not to address any arguments, rather, pleaded that the matter be disposed off on the basis of material available on record. It is not a case wherein legal aid was not available to the appellant rather it is a case where appellant has consciously chosen not to address any oral arguments or file any written arguments. Perhaps, on account of the lenient sentence awarded to the appellant by Ld. Trial Court. Thus, I am deciding the appeal on the basis of material available on record.
11. Case of the prosecution primarily hangs upon the testimony of star witness Mahabir Singh (inadvertently mentioned as PW1) who has testified herein as under:-
"On 14.11.2010, around 10.30 Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 3/9 am in the morning I was going from home to my temporary shop/Khokha in front of school. When I reached on the road which goes from Sant Nagar to Burari and near Burari liquor shop, there I saw one boy Harsh who was around 13-14 years old he was going on his foot alongwith his bicycle with him and was crossing the road to go towards Baba Colony. Injured namely Harsh was my neighbourer lives in same locality as mine. One tempo Tata 407 which was a tanker of Jal Board came from the side of Sant Nagar and was going towards Burari Village and the tanker was driven at a full speed and in negligent manner as the driver was not seeing about the other persons on the road to live or die. The tanker hit the boy and the wheel of the tanker moved over the boy. The boy was badly injured. The vehicle tried to run away towards Burari village there one police official who was on motorcycle came and I informed him about the incident, he then started chasing the tanker. The driver stopped the tanker Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 4/9 near the liquor shop at some distance and he left the tanker and ran away from there towards conductor/Baba colony. The boy died on the spot".
12. The credit worthy clinching testimony of Mahabir Singh (inadvertently mentioned as PW1) is duly corroborated from the testimony of Ct. Mukesh Kumar (PW8) who has testified herein as under:-
"On 14.11.2010, I was posted as Constable at PS Burari and fas of motorcycle patrolling duty in the area. While patrolling at about 11.00 am, when I was present pear Liquor Shop, Burari, there I saw one Tata Water Tanker bearing registration number DL-1LG-3221, being driven in rash and negligent manner by accused Sunil (who is present in the court today, correctly identify by the witness), struck against one boy (aged about 10-
12) who was going on a bicycle. After committing the accident, accused stopped the offending vehicle, came came out from it and flee from the spot from other side of road towards Conductor Colony. I saw the accused while fleeing from the spot".
13. Ct. Mukesh (PW8) in his cross-examination has further Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 5/9 testified that at the time of the incident, accused was driving his vehicle at the speed of about 60 kpm. Defence has failed to point out any infirmity or contradiction in the testimony of the above said two star witnesses before Ld. Trial Court or before this court. Thus, I have absolutely no hesitation in observing that Ld. Trial Court has rightly relied upon testimony of Mahabir Singh (PW..) and Ct. Mukesh (PW8) as the aforesaid testimonies inspires confidence.
14. Although, it can be contended that speed in itself is not a conclusive criteria to assess culpable rashness and negligence but it is equally unacceptable to contend that speed can never be a criteria to assess question of culpable rashness and negligence. In the case at hand, the site plan Ex. PW1/B reveals that alleged incident took place near a traffic intersection when poor deceased Harsh was attempting to cross road with his bicycle. Now, any vigilant professional driver is expected to slow down his vehicle when approaching any traffic intersection. The appellant herein, instead of slowing down the vehicle opted to drive his vehicle at a speed of about 60 kph, which is grossly rash, in view of the attendant circumstances. At 11 AM, at any busy Delhi road, ordinary people are expected to move from one end to the other and the traffic is expected to flow from various directions at a traffic intersection. The appellant instead of cautiously driving his vehicle, has preferred to drive his vehicle at a high speed of about 60 kph. It would be quite pertinent to mention here that appellant at the pertinent point of time was driving his vehicle without valid driving licence. Appellant has himself voluntarily admitted charge for commission of offence under Section 3/181 Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 6/9 MV Act and was accordingly convicted for the same vide order dated 10.11.2016.
15. Now, in these circumstances, trampling down a boy, who was attempting to cross the road by driving his vehicle at enormous speed of 60 kph at a traffic intersection without valid driving licence is nothing but a grossly culpable rash and negligent act.
16. Consequently, I do not find any hesitation in observing that Ld. Trial Court rightly convicted the appellant for commission of offence under Section 279/304A IPC.
17. In view of the aforesaid, I am of the considered opinion that the impugned judgment passed by Ld. MM convicting the appellant/convict is well reasoned and speaking one. I find no illegality or infirmity in the impugned judgment passed by Ld. MM. No ground for setting aside the same is made out.
18. On the point of sentence, it is argued that appellant/convict deserves to be dealt with leniently.
19. As far as the sentence awarded to the convict is concerned, I am of the considered opinion that the Ld. Trial Court has already shown sufficient leniency towards the convict, rather, as far as substantive sentence is concerned, Ld. Trial Court has been over generous and I wonder what would have been the results if the State had opted to challenge the sentence. Besides being over generous, Ld. Trial Court has faultered on one more count. While awarding sentence, Ld. Trial Court, besides imposing fine has also awarded compensation. The convict has been sentenced hereasunder:
Sr. No. Section Sentence Fine Remarks Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 7/9
1. 279 IPC NIL Rs. 1000/- In default SI for 02 days
3. 304-A 01 month Rs. 9000/- In default SI for 10 IPC days Rs. 5000/- out of the fine imposed was also awarded to the Lrs of the deceased as compensation. Besides the above fine amount, a sum of Rs. 25,000/- was also directed to be paid as compensation to the Lrs of the deceased. As per Section 357 (1)
(b) CrPC, when sentence of fine is imposed, the same can be used for compensating the victims. However, if the fine does not form part of the substantive sentence, any amount can be awarded as compensation under Section 357 (3) CrPC and the compensation amount is not circumscribed by the fine amount.
Evidently in the case at hand, compensation amount of Rs. 25,000/- is way beyond the fine amount and thus cannot be sustained in the eyes of law. I am conscious of the pitiable sitaution of the victims but the State should have been a little more vigilant in protecting the rights of the victims. The stautory rights of the appellant cannot be ignored on account of lackadaisical approach of the State. Furthermore, having awarded sentence under Section 304A IPC, separate sentence under Section 279 IPC was not required to be passed in view of Section 71 of IPC.
20. In view of the same, the sentence stands modified hereasunder:-
Sr. No. Section Sentence Fine Remarks
1. 279 IPC NIL as per NIL NA Section 71 IPC
3. 304-A 01 month Rs. 9000/- (Rs. 5000/- be paid In default SI for 10 IPC to the Lrs of the deceased). days. The fine amount has already been paid to Lrs of deceased.Criminal Appeal No. 274/2019
Sunil Vs The State Page No. 8/9
21. The appeal filed by convict/appellant is without merits. The same is hereby dismissed and disposed of accordingly.
22. TCR along with copy of judgment be sent to Ld. Trial Court for information.
23. Appeal file be consigned to Record Room.
Announced in Open Court
on 13.04.2023 Digitally signed by
DHARMENDER DHARMENDER RANA
RANA Date: 2023.04.15
16:37:10 +0530
(Dharmender Rana)
Additional Sessions Judge/Special Judge, NDPS (Central) Tis Hazari Courts, Delhi Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 9/9 Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 10/9 Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 11/9 Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 12/9 IN THE COURT OF SH. DHARMENDER RANA, ASJ, DELHI CENTRAL: ROOM NO. 126, TIS HAZARI COURTS, DELHI WARRANT OF RECEIVING SENTENCE AFTER DISMISSAL OF APPEAL CRIMINAL APPEAL NO.274/2019 FIR No. 323/2010 PS : BURARI U/s 279/304A IPC CNR No. DLCT010078052019 IN THE MATTER OF SUNIL VS STATE To The Superintendent of the Jail at Tihar Jail.
Whereas in the trial held before Ld. trial Court presided over by Sh. Harjeet Singh Jaspal,MM09 Central, Tis Hazari Courts, Delhi, On 14.05.2019 convict : Sunil S/o Sh. Lalta Prasad R/o H. No. 52 , Gali No. 2 Mukund pur Part I, Delhi... Age: 33 yrs. was found guilty and sentenced here as under
Sr. Section Sentence Fine Remarks No.
1. 279 NIL Rs. 1000/ In default SI for IPC 02 days
3. 304A 01 month Rs. 9000/ In default SI for IPC 10 days Out of the fine amount a sum of Rs. Five thousand was directed to be paid to the Lrs of the deceased. Additionally, a sum of Rs.
25,000/ was also directed to be paid to the Lrs of the deceased. The convict filed an appeal Appeal of convict stands dismissed and sentence is modified here as under.
Sr. Section Sentence Fine Remarks
No.
1 279 NIL, as per Nil NA
IPC Section 71
IPC
Criminal Appeal No. 274/2019
Sunil Vs The State
Page No. 13/9
2. 304A 01 Month RS. 9,000/ In default SI for 10
IPC (Rs5,000/be days. The fine
paid to the Lrs amount has already
of the been paid to Lrs of
deceased) deceased.
Hence this is to authorize and require you, the said Superintendent, to receive the said Sunil S/o Sh. Lalta Prasad R/o H. No. 52 , Gali No. 2 Mukund pur Part I, Delhi in to your custody in the said Jail, together with this Warrant , and thereafter carryout the aforesaid sentence into execution according to law. GIVEN UNDER MY HAND AND THE SEAL OF THE COURT ON 13.04.2023 Additional Session Judge,Delhi Criminal Appeal No. 274/2019 Sunil Vs The State Page No. 14/9