Delhi District Court
Satya Prakash vs State (Nct Of Delhi) on 12 May, 2009
1 C.A. No.: 58/08
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE-03,NORTH, DELHI.
C.A. No.: 58/08
FIR No.: 308/96
U/s 279/337/304 A IPC
P.S. - Timar Pur
Concerned/Successor Court:
Sanjeev Aggarwal, ACMM, Delhi
In the matter of :
Satya Prakash
S/o Sh. Shiv Raj
R/o Village: Harpalpur,
P.S. Khos, District: Hordoi (U.P.)
At present : Radha Colony
Lal Kuan, Ghaziabad, (U.P.) .....Appellant
Vs.
State (NCT of Delhi) ......Respondent
ORDER
1. This appeal is against the judgment dated 22.10.08 and order on sentence dated 25.10.2008, passed by Ld. MM whereby the Ld. MM sentenced the appellant to undergo RI for three months for the offence under section 279 IPC , further RI 2 C.A. No.: 58/08 for three months for the offence under section 337 IPC and further to undergo RI for one year and fine of Rs. 2,000/- for the offence under section 304-A IPC and in default of payment of fine, to undergo SI for twenty days.
2. Facts giving rise to the present appeal are that DD No. 49 B was received in the Police Station Timar Pur on 25.6.96 and on receipt of the DD, SI Jagat Singh alongwith Constable Yad Ram reached at the place of accident. There they found a scooter and a truck at the spot and it further transpired that the injured has been taken to Hindu Rao Hospital. After leaving the constable at the spot, SI Jagat Singh reached at Hindu Rao Hospital where the MLC of Harit Kumar was obtained by him who was declared unfit for statement by the doctors. He also obtained the MLC of another injured Darshan Kumar who was declared fit for statement. The IO recorded his statement and he stated that he is a shopkeeper by profession and on 25.06.96 he was driving his two wheeler scooter bearing no. DL-85B- 3 C.A. No.: 58/08 5191 and was coming from his residence at Parshant Vihar and was going to Ghaziabad via Ring Road and his son Harit Kumar was also sitting on the pillion seat of the scooter and when at around 5.30 P.M., they reached near Gopalpur Morh, suddenly a truck bearing no. DIL-1596, which was being driven in rash and negligent manner came from behind and struck against the scooter, as a result of which, he and his scooter fell down and his son also fell down and the front wheel of the truck crushed his right leg. The truck driver after stopping his truck at some distance, came near to them and on seeing the bad condition of his son, he ran away with the truck but after some distance the truck was apprehended but the driver of the truck had ran away. He further stated that he can identify the driver, if shown to him. On his statement, a case under section 279/337 IPC was registered. The IO prepared the site plan and obtained the statement of the witnesses and got the scooter and the truck mechanically examined. Thereafter, DD No. 17 A was received 4 C.A. No.: 58/08 regarding the death of Harit Kumar, son of the complainant and section 304 A IPC was added. The owner of the truck was given notice under section 133 of Motor Vehicle Act and after completion of investigation, challan against the accused was filed in the court. After filing of the challan, the accused was summoned. In support of its case, prosecution has examined 6 witnesses. The statement of the accused was recorded wherein he stated that he wants to lead evidence in his defence. In his defence, the appellant lead one DW Gain Singh who stated that on 25.6.96, , a two wheeler scooter was being driven and a boy was driving that scooter. Two cartoons were also kept on the scooter. The boy who was driving the scooter lost his balance and the scooter fell down. In the meanwhile, the red light was over and thereafter truck left from there and he alongwith the public persons left the spot.
3. After hearing both the parties, the Ld. MM convicted the appellant and sentenced him accordingly. It is against this 5 C.A. No.: 58/08 order of conviction and sentence that the present appeal has been filed.
4. After filing of the appeal, notice was given to the state and trial court record was summoned.
5. I have heard the Ld. APP for the State as well as Ld. Counsel for the petitioner and have carefully perused the record and the written arguments filed by the counsel for the petitioner.
6. Recently in a case titled as State of Karnataka Vs. Muralidhar) 2009 IV AD ( S.C.)1, the Hon'ble Supreme Court while dealing with the case of similar nature has observed that:
"Section 304 A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing 6 C.A. No.: 58/08 something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it.
A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has something been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews Vs. Director of Public Prosecutions (1937) AC 576 at P. 583 =2 All E.R. 552) observed as under:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established.
Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is 7 C.A. No.: 58/08 probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction".
Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Section 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question 8 C.A. No.: 58/08 as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without intention to cause injury or knowledge that it would probably be caused.
"Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
7. In the present case, the complainant has been examined as PW3 by the prosecution. He has stated in his chief that after the accident, the truck was stopped at some distance and the driver of the truck came on the spot to see them and 9 C.A. No.: 58/08 thereafter disappeared from the spot. He further identified the accused in the court as the one who was driving the truck at the time of accident. He has further deposed that his son Harit Kumar died on the same day in the hospital due to this accident. Nothing material has come out of the cross examination of this witness. He has stated that there was no damage on the rear of the scooter but has further volunteered that the scooter was hit on the side. He has further stated that public persons gathered there and told him that the accused was driving the truck, when he came to the spot after stopping his truck. From the testimony of this witness, it is clear that this witness is neither tutored one nor he has stated anything incorrect in the court. Rather this is a very innocent statement given by PW3 since definitely after the accident, crowd must have collected at the spot and when the accused came to see them, then somebody from the public must have told the complainant that the accused is the person who was driving the 10 C.A. No.: 58/08 truck. This fact has also been admitted by PW3 in his cross and for this no adverse inference can be drawn against him. It is rightly held by the Ld. MM that conduct of the appellant immediately after the accident is relevant under section 8 of the Evidence Act as it has close nexus with the fact in issue i.e. the fact of accident. Though the owner has not been produced by the prosecution but the IO who has been examined by the prosecution as PW6 who has duly proved the notice and also stated that the owner of the truck had produced the accused before him. No suggestion has been given to the IO that the appellant was not produced before him by the owner of the truck. PW6 though had admitted that he did not apply for the TIP of the accused but for non conducting of TIP of the accused, no adverse inference can be drawn as the complainant had duly identified the accused and in his statement given to the IO also, he had given the truck number also and further in his supplementary statement under section 161 Cr.P.C., the 11 C.A. No.: 58/08 complainant had stated that when he went to the Police Station to enquire about the case, the appellant was present there and, therefore, there was no need for the IO to get the TIP of the accused conducted. PW3 i.e. the complainant himself has stated that they were standing on the red light when the truck came from behind while being driven in rash and negligent manner and it hit their scooter and they both i.e. he himself and his son had fallen down from the scooter. PW3 has clearly stated that the truck was being driven in rash and negligent manner and after the accident, the truck stopped at a certain distance.
8. In his defence, petitioner has examined one DW1 Sh. Gian Singh but this witness in his cross had stated that he did not notice the registration number of the two wheeler scooter or the truck. Thus, the testimony of DW1 does not help the appellant in any manner. Ld. MM has also discussed the site plan prepared by the IO at the instance of PW3 and there is no 12 C.A. No.: 58/08 infirmity or illegality in the observations of the Ld. MM. The site plan which has been proved on record duly corroborates the testimony of PW3. Merely because IO had not made any public witnesses as witness in this case, is no ground to throw away the testimony of PW3 or to throw away the case of the prosecution. It is well known fact that now-a-days, for the fear of the police officials or the court rounds, public persons generally do not come forward to join the investigation and same is the case here. It is not the case of the prosecution that no part of the scooter was damaged but PW3 himself has admitted that rear portion of the scooter was not damaged as the truck hit them at the side. Thus, there is no infirmity or illegality in the order of the Ld. MM. Ld. MM has not only taken the site plan into consideration but also the postmortem report as well as the testimony of DW1. As such, the order dated 22.10.08 passed by Ld. MM convicting the appellant is upheld.
9. Now coming to the order of sentence, Ld. counsel for 13 C.A. No.: 58/08 the appellant has argued that Ld. MM has not taken into consideration the mandatory provisions of law contained under section 360 Cr.P.C. as well as section 3 and 4 of the Probation of Offenders Act. Recently in a case titled as State of Karnataka Vs. Muralidhar (2009 IV AD ( S.C.)1) , the Hon'ble Supreme Court has observed that :
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this court in Sevaka Perumal etc. Vs. State of Tamil Nadu ( AIR 1991 SC 1463).
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is 14 C.A. No.: 58/08 indeed a difficult tast. It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia: 402 US 183:28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any fool formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public 15 C.A. No.: 58/08 interest, cannot be lost of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run and against societal interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system.
The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
10. In the present case, death of the son of the complainant has occurred. The deceased was a young boy of 18 years and court cannot loose sight of the fact that a valuable life has been lost due to the rash and negligent act of the appellant. In such circumstances, the appellant cannot be released on probation and the order of sentence dated 25.10.08 16 C.A. No.: 58/08 passed by the Ld. MM is just an adequate sentence which has been imposed in the present case. As such, the order on sentence dated 25.10.08 passed by the Ld. MM is also upheld.
11. In view of the abovesaid discussions, the order of conviction dated 22.10.08 and order on sentence dated 25.10.08 passed by the Ld. MM is upheld. The appeal filed by the appellant is dismissed and he be taken into custody. Copy of this order be given to the appellant free of cost. TCR alongwith copy of this order be sent back. Appeal file be consigned to Record Room.
(MADHU JAIN) Additional Sessions Judge-3 (North) Tis Hazari Courts, Delhi.
12.05.09 Announced in the open court today i.e. on 12.05.09 17 C.A. No.: 58/08