Delhi District Court
Satpal vs The State Of Nct on 26 August, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 14/11
Unique case ID No. 02404R0154062011
Satpal
S/o Sh. Chela Ram
R/o B1/44,
Raghubir Nagar,
Delhi
Appellant
Vs.
The State of NCT, Delhi & Ors.
Respondent
Date of institution of the case: 07/06/2011
Arguments heard on: 16/08/2011
Date of reservation of order: 16/08/2011
Date of Decision: 26/08/2011
ORDER
This is an appeal filed against the judgment and order on sentence of learned Metropolitan Magistrate passed against the appellant U/s. 279/304A/338 of IPC.
In brief, the said judgment has been challenged on various grounds. It is alleged that the impugned order and judgment are bad both in law as well as on facts. It is further alleged that learned Trial Court misread and misappreciated the SC No. 14/11 1/7 evidence on record. It is further alleged that the appellant had not caused intentionally any injury and was driving the Nissan Truck bearing No. DHG8708 on a public way. It is further alleged that the said sentence imposed by learned Trial Court is highly disproportionate and excessive and the learned Trial Court failed to exercise its judicial discretion.
It is further alleged that the appellant belongs to labour class family and used to drive a truck for his livelihood. It is further alleged that appellant has one child and wife and he is the only bread earner of his family. It is further prayed that the judgment and order on sentence passed by learned Trial Court be set aside.
In brief, notice was framed against the appellant in the year 1991. Total 13 witnesses were examined. Statement of accused was recorded. Later on, PW4 and PW8 were also recalled U/s. 311 of Cr.PC. Again statement of accused was recorded.
In the statement recorded U/s. 313 of Cr.PC, accused has not disputed much about the facts of the case. Accused has stated that on the day of incident, he was going to his house in the above mentioned Nissan Truck and on the way, the above mentioned scooter came with fast speed by overtaking his vehicle from wrong side and the scooterist himself fell down ahead of his vehicle and he suddenly applied the brake, however, the vehicle did not stop as the brake oil was leaking from the pipe,due to which, the rear tyres of Nissan truck ran over the scooter.
PW2 Jaswant Rai has deposed about the facts of the accident. PW2 has not been cross examined by learned counsel for the accused in any manner. PW4 Mohan Lal has also deposed that due to rash and negligent driving of the truck driver i.e. accused, this incident took place. PW4 Mohan Lal was recalled later on SC No. 14/11 2/7 U/s. 311 of Cr.PC, but even at that time, PW4 was not cross examined on behalf of the accused. So, from the testimony of both the witnesses i.e. PW2 Jaswant Rai and PW4 Mohan Lal, prosecution has been able to prove beyond reasonable doubts that on the date, time and place, accused was driving the truck in a rash and negligent manner and caused the accident.
PW13 Suresh Kumar has also stated that on the date, time and place, accused was driving Nissan truck bearing No. DHG 8708 in rash and negligent manner and struck against one two wheeler scooter from behind, as a result of which, both the riders alongwith the scooter fell down and after causing the accident, accused failed to stop the truck and kept on driving the truck, as a result of which, one person came under the front wheel of the truck and crushed badly and expired at the spot. PW13 has also not been cross examined on behalf of accused in any manner. So, he has also corroborated with PW2 Jaswant Rai and PW4 Mohan Lal in all manner and testimonies of all these witnesses are unrebutted and unshaken.
As PW2 Jaswant Rai, PW4 Mohan Lal and PW13 Suresh Kumar have not been cross examined on behalf of accused in any manner, hence, nothing has been suggested to any witness that the scooterist came at a fast speed by overtaking the vehicle of accused from wrong side and himself fell down ahead of his vehicle.
The truck was mechanically inspected by PW1 retired SI Punjab Singh. He has proved his inspection report of Nissan truck as Ex. PW1/A. According to the report, brakes of the truck were found OK. So, the defence of accused that he suddenly applied the brake, however, the vehicle did not stop as the brake oil was leaking from the pipe, is not in consonance with the mechanical report Ex. PW1/A nor PW1 has been cross examined to this extent in any manner on behalf of the SC No. 14/11 3/7 accused. So, the plea of accused is also not tenable in any manner.
According to the deposition of PW2 Jaswant Rai, accused hit the two wheeler scooter from behind. According to PW4 Mohan Lal, the truck dragged the scooter to a distance of 2530 paces and he with the help of other persons took out the two persons from underneath the truck and got them admitted in Hindu Rao Hospital. According to PW13 Suresh Kumar, accused, while driving the truck in a rash and negligent manner, struck against one two wheeler scooter from behind, as a result of which, both the riders alongwith the scooter fell down and after causing the accident, accused failed to stop the truck and kept on driving the truck, as a result of which, one of the rider came under the front wheel of the truck and crushed badly and expired at the spot.
According to mechanical inspection report of two wheeler scooter i.e. Ex. PW1/B proved by PW1 retired SI Punjab Singh, he noted fresh damages in the two wheeler scooter i.e. front mudguard badly damaged and touching with its wheel which causing obstruction in the function of vehicle, both side engine cover badly damaged, handle badly damaged, right portion broken and separated from the vehicle and two wheeler scooter was not fit for road test. This extensive damage to the two wheeler scooter itself shows the impact of forceful hitting of truck, being driven by the accused, with two wheeler scooter. So, this also falsify the explanation of the accused that the scooterist came from wrong side and himself fell down ahead of his vehicle. No such suggestion has been given to any of the witness in this respect . Even, nothing has been suggested to PW1 that such damages could have been caused to the two wheeler scooter by suddenly felling down on the road or no probable cause has been given as to whether there was possibility of felling down of the two wheeler scooter in front of the truck without any accident. SC No. 14/11 4/7
According to postmortem report Ex. PW12/A, cause of death was haemorrhagic shock resulting in road side accident. So, the cause of death has also been connected with the accident and PW12 has not been cross examined in any manner in this respect, hence, his testimony is unrebutted and unshaken.
In view of above, there is no illegality or infirmity in the judgment passed by the learned Trial Court, accordingly, the same is upheld.
During the course of arguments, learned counsel for appellant has requested that convict has regularly attended the court since the filing of the case. He has faced trial for eleven years. Convict is 42 years of age and belongs to a very poor family. Convict has to support his wife and one son. Learned counsel for the appellant has further contended that convict be released on probation. In support of his contention, learned defence counsel has relied upon Baljit Singh V. State of Punjab, 1995 CRI. L.J 3189, wherein benefit of probation Under Section 304A IPC has been given. Learned defence counsel has further relied upon Mann Parkash V. State of Haryana, 1996(1) RCR 437, wherein again benefit of probation section 360 CrPC was given. It has been held that:
"The Courts have emphasized that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Courts are required to collect material necessary to award just punishment and also to apply its mind to the facts and circumstances of the case whether an accused/convict can be given the benefit of the provisions of Section 360 CrPC or the provisions of Probation of Offenders Act. The Supreme Court in the case of Ved Parkash V. State of Haryana, AIR 1981 Supreme Court 643 while emphasising the need of dealing with the offenders in such a manner that he becomes a nonoffender, observed as under:
"We emphasize this because the legislations which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of SC No. 14/11 5/7 little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfill the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act."
It has been further held that "In a very recent case titled as A.P. Raju V. State of Orissa, 1995 Supreme Court Cases 675, the Supreme Court while dealing with a case of death by rash and negligent driving under Section 304A of the Indian Penal Code, held as under:
"Taking in view all these factors, in our opinion, the interest of justice would be met if instead of now sentencing the appellant to serve a term of imprisonment and sending him to prison again, we order his release under Section 360 Criminal procedure Code on the appellant's entering into a bond with one surety to keep good conduct and be of good behaviour and keep peace for a period of one year from the date of execution of the bond. We make an order accordingly. The bond shall be executed by the appellant within one month from today before the trial Court. With the above modification of sentence, the appeal is disposed of." The Courts, therefore, have to draw a balance between the chances of the offender becoming a nonoffender and minimising the chances of such an offender repeating commission of such offences on the one hand, and, on the other hand, from the accused drawing a premium over the commission of the offence, in the event the accused is granted such benefit. This would depend upon various factors which have been settled by various pronouncements of all Courts and they form kind of guidelines for the Courts to strike this balance.
It has been further held that "There can be no two opinions that the benefit of Section 360 and 361 of the Criminal Procedure Code and the provisions of Probation of Offenders Act can neither be granted as a matter of rule nor can be declined as a matter of rule. Each case must be dealt with on its own merits. In the present day when the road accidents are certainly on the increase, the Courts will have to apply reasonable caution while granting such benefit to the accused in these cases."
Considering the above facts and circumstances and the judgments relied upon by learned counsel for the appellant, as number of persons are dependent upon the appellant, he is first offender and belongs to a poor family. More so, there is no SC No. 14/11 6/7 laxity on the part of the appellant during the trial, I am of the view that the appellant be released on probation of good conduct for a period of two years U/s. 360 of CrPC., having regard to the age, character and antecedents of the appellant and the circumstances in which the offence was committed, on furnishing a personal bond in the sum of Rs. 10,000/ with one surety in the like amount. Accordingly, sentence of imprisonment as imposed U/s. 279/338/304A of IPC is set aside. In case of default, appellant will appear himself before the Court for acceptance of sentence. Compensation to the tune of Rs. 10,000/ is also imposed upon the convict, in default of which, convict shall undergo imprisonment of six months SI.
If compensation is deposited, then notice to LR's of deceased be issued for payment of the same. Fine deposited already by the convict be treated as cost of proceedings.
TCR be sent back to the court concerned with the copy of the order. Appeal file be consigned to record room.
Announced in the open court (VIRENDER KR. GOYAL)
today on 26th of August , 2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No. 14/11 7/7