Delhi District Court
Ajay Kumar vs State on 16 April, 2022
IN THE COURT OF SH. AJAY KUMAR JAIN
ASJ/SPECIAL JUDGE (NDPS), PATIALA HOUSE COURTS
NEW DELHI
IN THE MATTER OF
CA No. 113/21
Ajay Kumar
S/o Late Sh. Mohan Lal
R/o RZ40H, Gali no.5,
Raj Nagar Part 1,
Palam Colony, New Delhi.
..........Appellant/Accused/convict
Versus
State
.........Respondent
FIR No. 309/2007
PS IGI Airport
U/s 279/338/304A IPC
JUDGMENT
1. Vide this appeal, the appellant/accused/convict challenged the judgment dated 03.11.2020 convicting the accused for the offence u/s 279/338/304A IPC and order on sentence dated 23.11.2021 (in CC No. 48762/16) vide which he was sentenced to RI for a period of one year for the offence u/s 304A IPC, for a period of six months for the offence u/s 338 IPC and for a period of three months for the offence u/s 279 IPC. Appellant/convict was further ordered to pay compensation to the tune of Rs. 4,00,000/ to the LRs of the deceased Dhamu Ram in terms of section 357(3) Cr.PC which amount was to be deposited by the convict with DSLSA whereupon DSLSA shall disburse the amount to LRs of deceased. In default of payment of compensation, convict was to further undergo SI for a period of three months. The convict was further directed to deposit cost of Rs. 12,816/ as expenses incurred by the prosecution during the trial.
2. Brief facts of the case is that on receiving DD No. 14A dated 21.07.2007, SI Raghuveer Singh alongwith Ct. Udham reached the spot where he found Tractor Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 1/10 Mahindra and vehicle Tata 407 in accidental condition. The driver of Tata 407 was found standing there who disclosed his name as Ajay Kumar. The injured persons are found to have been taken to the hospital. Thereafter the IO reached the hospital where he found injured Dhamu Ram unfit for statement, however injured Gayatri Prasad fit for statement, who alleged that he was working as a loader with Aerofloat Russian Airlines having duty from 10.00 AM to 05.00 PM, when he was sitting besides the driver and going towards the approach road, and while moving towards gate no.25, one Tata 407 of airport authority driven at high speed hit the tractor from the back due to which the driver fell down on the road and suffered injuries on his head, leg and hands, also got unconscious. He also fell down however when stood up found the name of driver Ajay Kumar, thereafter with the help of public, they were taken to Fortis Hospital in the ambulance of airport authority. He further stated that he can identify the accused Ajay Kumar and accident was caused due to the rash and negligent driving of Ajay Kumar. Pursuant to his statement, FIR was registered. During investigation, site plan was prepared, both the accidental vehicles were seized, accused was arrested, mechanical inspection of vehicle was conducted however during treatment, the injured died on 22.07.2007 due to accidental injuries. On completion of investigation, chargesheet was filed.
3. Vide order dated 20.08.2010 notice u/s 279/338/304A IPC was framed against the accused to which he pleaded not guilty and claimed trial. Prosecution for substantiating its case examined 13 witnesses. The summary details of the witnesses are as under:
4. PW1 K.S. Dabas Senior Manager in the fire service stated that on 21.07.2007 at about 1100 hours he received an information that their vehicle Tata 407 met with an accident, then at the spot he saw both the vehicle. Tata 407 was found damaged from the front and tractor from the back and accused Ajay Kumar was driving Tata 407 and present at the spot. PW2 Gayatri Prasad Mishra stated that at the time of accident, he was sitting on the mudguard of the tractor and when they reached opposite bay 86, vehicle Tata 407 came from the Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 2/10 back and hit them forcefully due to which the tractor took a round of 90 degree and badly damaged. The accused was driving at fasts speed and due to impact, he fell down and sustained injuries. The gear lever of the tractor also inserted in his stomach. Accused thereafter helped them in lifting and also told his name and place of working i.e. airport authority. The driver died in hospital. In cross examination, he denied suggestion that he was driving the tractor. He also stated that he do not remember who had taken him to hospital however accused Ajay Kumar lifted him. His statement was recorded several times but he cannot tell the dates. PW3 T.U. Siddiqui, Mechanical Inspector exhibited the mechanical inspection report of Tata 407 and Mahindra tractor. PW4 Kailash, brother of deceased who identified his dead body. PW5 Vindo Kumar took the photographs of the spot. PW6 Dr. Subrata Gorai Fortis Hospital exhibited the MLC of the deceased as well as injured Gayatri Prasad Mishra. PW7 HC Mukesh Kumar Duty Officer who exhibited the DD entries.
5. PW12 Inspector Raghubir Singh IO who stated that on receiving DD No.14A he reached the spot and found both the vehicles in accidental condition. Accused Ajay Kumar was also present at the hospital thereafter, reached hospital where deceased Dhamu Ram was found unfit for statement and recorded the statement of injured Gayatri Prasad Mishra, prepared site plan, took photographs through photographer. PW8 HC Anil Kumar accompanied the IO to the hospital. PW9 Ct. Udham Singh accompanied the IO to the spot. PW10 Dr. Yogesh Tyagi exhibited the postmortem report and the cause of death was shock due to multiple pelvic fractures and rupture of bladder produced by blunt force impact. PW11 Ct. Devender Kumar also reached the spot on receiving DD No.15A and the accused was left in his custody when the IO went to hospital. PW13 Inspector Sunil Kumar second IO who filed the chargesheet.
6. Accused in his statement u/s 313 Cr.PC stated that he was driving the vehicle but was not driving in rash and negligent manner however the tractor was moving in zigzag manner due to which accident was caused.
Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 3/107. Accused also examined himself as DW1. In his statement, he stated that he was on official duty to drive the vehicle and when he was driving the vehicle at moderate speed suddenly the tractor took U turn and hit his vehicle and during departmental inquiry, he was punished. He has already compromised with the deceased family as well as injured and duly compensated them. He further stated that the accident did not occur due to him. The vehicle of the victim hit his vehicle from the left side. In crossexamination stated that he has not filed any separate complaint for negligence of the victim.
8. Ld. Trial court after going through the record, found accused was rash and negligent in driving thereby convicted the accused for the offence punishable u/s 279/338/304A IPC and passed the order on sentence.
9. Ld. Counsel for the appellant/accused argued orally as well as filed a written synopsis submitting that the accused was neither intoxicated nor driving rashly having no criminal antecedents. Accused helped the injured persons at the spot and not tried to flee. The present accused is 56 years old government employee on the verge of retirement and any punishment of imprisonment will cost him government job as well as retirement benefits. He has amicably settled the matter and has paid a compensation of Rs. 1 lac to the family of deceased and also paid a compensation of Rs. 15000/ to other injured Gayatri Prasad Mishra, and further ready to pay Rs. 4 lacs to the wife of the accused as directed by Ld. MM vide order on sentence. The deceased victim's wife Rajanti Devi and other family members have already received a compensation of Rs. 8,64,000/ from Motor Accident Claim Tribunal on 10.08.2010. Furthermore, the accused has a wife and three children to take care of of and already suffered 15 years of trial therefore he be released on probation.
10. Ld. Addl. PP on the other hand submitted that accused himself admitted in his statement u/s 313 Cr.PC that he was driving the offending vehicle and the accident was caused from the back. PW2 supported the prosecution case which is corroborated by the mechanical inspection report as well as MLC of deceased and injured. The postmortem report also substantiate the factum of accidental death Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 4/10 due to rash and negligent driving. The trial court passed detailed and reasoned judgment as well as order on sentence hence, this appeal is liable to be dismissed.
11. Arguments heard. Record perused.
12. The FIR in the present case registered on the statement of PW2 Gayatri Prasad Mishra who was sitting on the tractor driven by the deceased which was struck by the accused who was driving offending Tata 407 from the back pursuant to which the deceased as well as the PW2 injured fell down and suffered grievous injuries. PW2 in his testimony also stated on the same lines. The deceased and PW2 were taken from the spot in the airport ambulance to the hospital. Accused remained at the spot and also helped in taking away the deceased and injured to the hospital.
13. PW2 Gayatri Prasad Mishra, injured in his testimony categorically stated that the impact of the collision was so high and forcible that the tractor took around 90 degree turn and badly damaged and accused was driving at fast speed. The gear lever of the tractor inserted in the stomach of deceased driver Dhamu Ram due to which his stomach burst. He also stated that accused was driving negligently and in zigzag manner. There is nothing in his crossexamination to discredit his statement. The accused himself admitted that he was driving the vehicle. The testimony of PW2 is duly corroborated with the MLC of the deceased as well as himself and postmortem report. The mechanical inspection report also suggests that the offending vehicle Tata 407 driven by the accused hit from the back.
14. Accused examined himself as DW1 however taken a different version and suggested that the accident took place due to the driver of the tractor however there is nothing to substantiate his plea. He has not put his case in this manner in crossexamination of PW2. He in his testimony himself admitted that he was departmentally punished for this incident and there is an accident claim also passed against him.
15. The trial court appreciated the entire evidence in detail and reached at the conclusion that the accused was driving the offending vehicle in rash and Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 5/10 negligent manner thereby found to have committed the offence u/s 279/338/304A IPC. On reappreciation of evidence, I am also of the view that prosecution able to prove its case beyond reasonable doubt that the accident was caused due to rash and negligent driving of accused Ajay Kumar hence, accused is liable to be convicted for offence u/s 279/338/304A IPC, thus impugned judgment of conviction confirmed.
16. Though in the appeal it is prayed that the impugned judgment and order on sentence be set aside however while arguing and through the written synopsis, it is prayed that the convict be released on probation. It is pleaded that the convict is a government official and at the verge of retirement having unearning wife and three children who are yet to be leap into the adulthood and furtehr suffered the agony of trial for last 15 years and settlement has already taken place with victim's family and injured and the victim's family has already received claim from the Motor Accident Claim Tribunal. Ld. Addl. PP submits that accused is not entitled for probation as he is commercial driver. As far as the factum of release on probation in offence u/s 304A IPC is concerned, the Rajasthan High Court in case titled Bhawar Lal Vs. State SB Crl. Rev. Petition No. 92/2003 dated 18.07.2017 after analysing the various judgments of Apex court observed as under:
"9) The imposition of an appropriate sentence as also grant of benefit of probation under Section 4 of the Probation of Offenders Act, 1958 to offenders convicted for an offence punishable under Section 304A IPC is the subject matter of various decisions passed by the Supreme Court, and I find a divergence in the view taken.
10) In the decision reported as 1981 (Supp) SCC 17 Aitha Chander Rao V/s State of Andhra Pradesh, noting that there was an element of contributory negligence from the side of the (3 of 7) [S.B.Cr.Rev. 92/2003] deceased, the appellant, who was sentenced to undergo RI for a period of two years for an offence punishable under section 304A IPC by the trial court, affirmed by the appellate court and not interdicted by the High Court, was given the benefit of probation by the Supreme Court.
11) In the decision reported as 1995 Supp (2) SCC 385 A.P.Raju V/s State of Orissa, for the offence punishable under Section 304A IPC Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 6/10 benefit of probation was granted in view of the fact that between the date of the accident which was 20.5.1979 and the decision of the Supreme Court dated 16.2.1994, 15 years had elapsed. Meaning thereby as per the Supreme Court no purpose would be served to require A.P.Raju to suffer the sentence imposed.
12) A discordant note was struck in the decision reported as (2000) 5 SCC 82 Dalbir Singh V/s State of Haryana. The argument that long period of time had elapsed between the date of the accident and the decision by the Supreme Court was rejected as entitling grant of probation on the reasoning that there was an alarming rise in road accidents and that the offender was a professional driver. In para 13 of the decision it was observed as as under: "13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the P.O. Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the (4 of 7) [S.B.Cr.Rev.92/2003] automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence;
and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
13) The said decision was followed with approval by the Supreme Court in the decision reported as (2003) 9 SCC 208 Thakur Singh V/s State of Punjab.
14) The last two decisions aforenoted were followed once again by the Supreme Court in the decision reported as (2008) 5 SCC 730 B.Nagabhushanam V/s State of Karnataka.
Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 7/1015) The decision next in line is reported as (2008) 8 SCC 225 Manish Jalan V/s State of Karnataka. Noting that the appellant was not intoxicated, taking a lenient view, the sentence imposed by the High Court to undergo SI for a period of one year for the offence punishable under Section 304A IPC was reduced to the period already undergone. The decision does not note the period which the appellant therein had actually undergone. It needs to be highlighted that the decision in Manish Jalan pronounced by two Judges bench of the Supreme Court did not note the earlier three decisions noted by me hereinabove in Dalbir (5 of 7) [S.B.Cr.Rev.92/2003] Singh's case, Thakur Singh's case and B.Nagabhushanam's case.
16) In the decision reported as 2013(1) RCR (Criminal) 826 Ismail V/s Police Sub Inspector, Hospet, for the offence punishable under Section 304A IPC, noting the age of the appellant was 74 years and the medical certificate established that the appellant's movement was fairly restricted, sentence to undergo 15 days imprisonment already suffered by Ismail was held to be the proper sentence.
17) In the decision reported as (2012) 2 SCC 182 State of Punjab V/s Balwinder Singh & Ors., for the offence punishable under Section 304A IPC, the decision of the High Court to reduce the sentence to the period already undergone, of 15 days, was set aside. Balwinder Singh was sentenced to undergo imprisonment for a period of six months. The decisions in Dalbir Singh's case and B.Nagabhushanam's case were cited with approval. The argument that 17 years had elapsed between the date of the accident and the decision of the Supreme Court was negated as a mitigating factor.
18) In the decision reported as (2015)5 SCC 182 State of M.P. V/s Mehtaab, the decision of the High Court to let off Mehtaab for the period already undergone was set aside. The sentence was of 10 days.
19) In the decision reported as (2015) 5 SCC 182 State of Punjab V/s Saurabh Bakshi, the reduced sentence by the High Court was set aside and it was also held that Saurabh Bakshi (6 of 7) [S.B.Cr.Rev. 92/2003] would not be entitled to the benefit of probation. As per the decision, for professional drivers no leniency or compassion can be shown unless mitigating circumstances were proved to be existing.
20) In a concurring judgment authored by Madan B.Lokur J, in the decision reported as (2015) 13 SCC 444 State through Central Bureau of Investigation V/s Sanjiv Bhalla, in para 22 it was observed as under: "22. It does appear that depending upon the facts of each case, causing death by what appears (but is not) to be a rash or Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 8/10 negligent act may amount to an offence punishable under Part II of Section 304 IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304 A IPC in an accident "where mens rea remains absent" and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304A IPC, the convict must be released on probationit is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case."
21) From the aforenoted decisions, three principles have been urged. First is that the court should be strict against the professional drivers, secondly unless mitigating circumstances are shown, no leniency should be shown. Lastly, mere delay in deciding the revision petition is not a mitigating circumstance."
17. As per the mandate of this judgment, there is no absolute principle of law which cannot be laid down that in no case falling u/s 304A IPC should a convict be released on bail and it all depends upon the fact and circumstances of each case. In present case the accused is a government employee and driving the government vehicle and not any commercial vehicle. The accident does not took place in any public road but the road inside the airport authority. Both the vehicles are plied in the airport area. The accident was caused from the back and not from the front which appears to be error of judgment while breaking the said offending tempo. The injured fell because of the impact. He fell on the ground and not suffered direct hit. The accused remained benevolent and helped the injured in lifting and moving to the hospital, and not tried to abscond. He even admitted that he was driving the vehicle. The victim family have already compromised the accused and taken the compensation. The compensation has also been awarded to the deceased family through Motor Accident Claim Tribunal to the tune of Rs. 8,64,000/. The accused is suffering from agony of trial from 15 years and further ready to pay the compensation amount of Rs. 4 lacs to the LRs Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 9/10 of deceased Dhamu Ram as imposed by the trial court, and also ready to deposit the cost of expenses incurred by the prosecution during trial.
18. Considering these facts and circumstances, the accused Ajay Kumar is extended the benefit of probation and he is released on bond of good conduct for a period of two years on probation upon the furnishing personal bond in the sum of Rs. 50,000/ to the satisfaction of Ld. Trial Court for keeping peace, good behaviour and good conduct during the said period and in case of failure, he shall come and receive the punishment as and when such circumstances arise subject to the condition that he will deposit the compensation to the tune of Rs. 4 lacs for the LRs of deceased Dhamu Ram in terms of section 357(3) Cr.PC and the said amount shall be deposited by the accused with DSLSA whereupon the DSLSA shall disburse the amount to LRs of deceased and further deposit cost of Rs. 20,000/ as expenses incurred by the prosecution during the trial as well as appeal within one month from today. Appeal disposed of accordingly.
19. Copy of the judgment alongwith TCR be sent back to trial court. Copy of the judgment be given to the appellant free of cost. After compliance, file be consigned to record room.
Announced in the open court on this 16th day of April, 2022 (Ajay Kumar Jain) ASJ/Spl. Judge, NDPS/N. Delhi 16.04.2022 Ajay Kumar Vs. State CA No.113/21 Date: 16.04.2022 Page No. 10/10