Delhi District Court
Jwala Singh vs State (Nct Of Delhi ) on 15 November, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE/INCHARGE
ROHINI COURTS, DELHI
Criminal Appeal No. 25/10
Jwala Singh
son of Sh Kapoor Singh
R/o Village Prahladpur
Delhi .....Appellant
Vs
State (NCT of Delhi ) ......Respondent
Date of Institution 16.10.2008
Date when arguments
were heard 03.11.2010
Date of such order 15.11.2010
FIR No. 418/1997
PS Samay Pur Badli
Under sec. 279/337/304A IPC
JUDGMENT
This appeal is directed against the judgment of conviction dated 04.09.2010 passed by learned Metropolitan Magistrate by which Cri. Appeal No. 25/10 1 the learned Metropolitan Magistrate had convicted the appellant under Sections 279/337/304A IPC. By subsequent order on sentence dated 15.09.2010 the appellant was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 500/ for the offence under Section 279 IPC. He was further sentenced to simple imprisonment for three months and to pay a fine of Rs. 500/ for the offence under Section 337 IPC. Appellant was also sentenced to simple imprisonment for two years and a fine of Rs. 4000/ for the offence under Section 304A IPC. He was also directed to undergo further simple imprisonment for two months in case of default in payment of fine.
BRIEF FACTS Prosecution case against the appellant was that on 03.06.1997 at 8.30 PM at Bawana Road, near St. Zavier School Shahbad, Delhi appellant was driving blue line bus no. DL1P 2300 in a manner so rash and negligent as to endanger human life and personal safety of others. It is also alleged against the appellant that on the aforesaid date, time and place appellant while doing so in the aforesaid manner struck against truck, scooter and cycle rickshaw and caused simple Cri. Appeal No. 25/10 2 injuries on the person of Prabhu Ram. It is further alleged against the appellant that while driving so in the said manner appellant struck against the truck, scooter and cycle rickshaw and caused the death of Badri Prasad Yadav not amounting to culpable homicide. NOTICE UNDER SECTION 251 CrPC The notice under section 251 CrPC for the offences punishable under sections 279/337 IPC and 304A IPC was given to the appellant/convict to which he claimed not guilty and claimed trial on 09/09/1998 before learned Metropolitan Magistrate. PROSECUTION EVIDENCE In support of its case the prosecution has examined eight witnesses in all before learned Metropolitan Magistrate namely PW1 Prabhu Ram, PW2 K.V. Singh, PW3 Mahesh Kumar, PW4 Dr. Dinesh Kumar, PW5 Shashi Kumar, PW6 Constable Babu Prasad, PW7 Head Constable Dharambir Singh and PW8 Sub Inspector Virender Singh and thereafter prosecution closed its evidence. PLEA AND DEFENCE OF APPELLANT Cri. Appeal No. 25/10 3 Appellant was examined under Section 281 CrPC but he denied all the incriminating put to him and stated that he is innocent and has been falsely implicated in this case. Appellant further stated that he was driving the bus no. DL1P 2300 on 03.06.1997 at 8.30 PM at Bawana Road near St Xavier School, Shahbad but he was not negligent. Appellant has not produced any witness in his defence. ARGUMENTS AND FINDINGS I have heard the learned Chief Public Prosecutor for the State, learned counsel for appellant and have gone through the trial court record, appeal file and also perused the relevant provisions of law.
The contention on behalf of the appellant/convict is that the accident occurred due to rash and negligent driving of the truck driver and not of the appellants/convict is driving blue line bus in question. It is argued that the appellant had to change direction of the bus in question to avert larger damages. It is precisely the reason that the truck driver is not made a witness by the police to falsely implicate the appellant/convict. It is argued that all the witnesses are interested witnesses and no witness has seen the accident. Accused is facing trial Cri. Appeal No. 25/10 4 in 1997, his wife is TB patient and the the disease is at advanced stage besides accused is maintaining his two children so the appellant/convict may either be acquitted or a lenient view may be taken in his favour.
The the learned Chief Public Prosecutor, on the other hand, has argued that the prosecution case has been proved beyond reasonable doubt before learned trial court and the appellate/ convict is rightly convicted for the offences in question by learned trial court so the appeal is liable to be dismissed.
I have heard the learned counsel for the appellant, learned Chief Public Prosecutor for the State and have gone through the trial court record, appeal file and the relevant provisions of law.
There is no evidence on record to show that the accident in question occurred due to rash or negligent driving of the truck driver or accused averted larger damages in causing the accident. There are also not the pleas of the accused before learned trial court in his statement under section 281 CrPC nor any defence is led by accused in this direction before learned trial court. Therefore, this argument on Cri. Appeal No. 25/10 5 behalf of appellant/convict cannot be raised for the first time in the appeal that too without any evidence on record before learned trial court in this regard.
One of the eye witnesses PW3 Mahesh Kumar may be said to be interested witness in the sense that his uncle died in the accident in question. But the law in this regard is that the testimony of the witness is to be read cautiously, merely because he is interested witness because his relative died, his testimony cannot be discarded. The learned trial court has also taken note of this legal position in its impugned judgment. The fact that the wife of the accused is TB patient accused and has two dependant children are also not factors which may exonerate the accused/convict of the alleged offences committed by him. Although the testimony of PW3 has some infirmities in it as this witness has stated in the crossexamination that he was nearly 50 yards behind his uncle when he was returning home and his the statement made in the crossexamination that he could not see the driver and the volunteered he has seen him running from there. The fact that this witness was 50 yards behind the deceased uncle at or about the time of accident while both were riding on the different bicycles and his wavering statement made in the crossexamination Cri. Appeal No. 25/10 6 that he could not see the driver then volunteered he saw him running from there make him somewhat weak witness. However, this witness is not a hostile witness and is on better footing than a hostile witness so the statements made by him in the examinationinchief and in the crossexamination as well that the bus in question was being driven by accused was at a highspeed rashly and negligently cannot be discarded as it stood creditworthy so at least the statement can be taken to have corroborative value and corroborates with the statement of PW1 Prabhu Ram, the star witness of the prosecution and injured also in the accident the question. On the question of rash/negligent driving of blue line bus by accused at the time of accident . Besides, this witness having said that the accident occurred due to fault of the accused as he has not given any horn he has also stated that accused was driving the bus in question was being driven in a rash and negligent manner. First the blue line bus struck against Nissan truck and thereafter hit him when he was riding on a scooter. He also stated that the accused also hit one rickshaw, one cyclist and at last struck to one tree. The statements made by PW1 are corroborated with the statement of PW 3 and are creditworthy on account of one more reason that he was not crossexamined on behalf of the appellant/convict despite opportunity given for this purpose by Cri. Appeal No. 25/10 7 learned trial court, so his statements made in the examinationinchief remained unchallenged by the accused before learned trial court. Therefore, the learned trial court correctly appreciated the facts and law to hold the appellant/convict guilty for the offences under Sections 337 and 304A IPC.
One technical question that arises is whether conviction and sentence both under Sections 279 and Section 304A of IPC is permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under s 304A, IPC, because an offence under Section 279 is a minor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, IPC, therefore, cannot be convicted under Section 279 as the latter is a minor offence. ( See, Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under Cri. Appeal No. 25/10 8 section 279 because the offencees under Sections 304A and 338, IPC, are similar offences in aggravated forms. Thus the sentence imposed under section 279 was set aside (See, Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sentenced under section 304A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304A, is not justified. (See, Shiv Ram versus State AIR 1965 All 196). In the light of these authorities the conviction and the sentence imposed upon the appellant/convict/accused by the learned trial court for the offence under Section 279 IPC are liable to be set aside. However, the reasoning cannot be extended to the offence under section 337 IPC in favour of appellant in this case for the simple reason that the simple injuries in the accident are caused to one person and the death occurred is of another person. It is only when the simple injuries as well as death is caused is of the same person the conviction for section 337 IPC besides 304A IPC would be inappropriate. Hence, the conviction and sentence under section 279 IPC imposed by learned trial court need to be set aside. Cri. Appeal No. 25/10 9
As regards the sentence imposed by learned trial court in the impugned order dated 15/9/2010 for the offences under sections 337/304A IPC are, the learned trial court correctly declined the benefit of probation to the appellant/convict by relying upon Dalbir Singh versus State of Haryana, Aiyar 2000 SC 1677 and Ashok Kumar Dogra versus State (NCT of Delhi), 2008 (10) A.D. (Delhi)
409. However, the fact that accused suffered trial for more than 12 years and is a first offender and has to maintain his family consisting of his wife and two children and his wife is suffering from advanced age of TB are the factors which leans towards some leniency on the question of sentence of imprisonment awarded to the appellants/convict by learned trial court. The sentence of imprisonment awarded under section 304A IPC, in my view, should be reduced to 1 years simple imprisonment and that under section 337 IPC to 2 months simple imprisonment while maintaining sentence of fine imposed in both the offences.
RESULT OF APPEAL:
In view of the above discussion there is no merit in the appeal except on the question of conviction and sentence awarded under section 279 IPC and the question of sentence of imprisonment Cri. Appeal No. 25/10 10 imposed by learned trial court. The appeal is partially allowed, accordingly. The judgment of conviction passed by the learned trial court is confirmed for the offences under Sections 337 and 304A IPC. As regards the question of sentence the sentence under section 304A IPC is reduced from two years simple imprisonment to one year simple imprisonment and that under section 337 IPC is reduced from three months simple imprisonment to two months simple imprisonment while confirming the fine awarded by the learned trial court for the said two offences. The conviction and sentence awarded by learned trial court for the offence under section 279 IPC are set aside and the fine if already paid by the appellant/convict awarded under section 279 be directed by learned trial court to be refunded to the appellant/convict. Both the sentences of imprisonment shall run concurrently. Benefit of Section 428 CrPC be given to appellant.
The trial court record be returned alongwith copy of this judgment in appeal. The judgment be sent to the server (www delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open
court on 15.11.2010 ( S K Sarvaria )
Additional Sessions Judge
Rohini Court, Delhi
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