Delhi District Court
Additional Sessions Judge vs The State (Nct Of Delhi) on 5 April, 2008
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 21/2006
Jitender Kumar
s/o Shri Gordhan Singh
r/o J298E, Kartar Nagar,
3.1/2 Pusta, Shahdara,
Delhi.
.................
Appellant
VERSUS
The State (NCT of Delhi)
.............Respondent
JUDGMENT
This appeal is directed against the judgment of conviction under sections 279/304A IPC dated 21/4/2006 and order on sentence dated 29/4/2006 by which the appellant/accused was sentenced to undergo simple imprisonment for one year and also to pay compensation in the sum of Rs. 25,000/ to the legal heir of the deceased and in default of payment of compensation to undergo : 2 : simple imprisonment of three months. Aggrieved by the said judgment of learned trial court the present appeal is filed by the appellant/accused challenging the same.
PROSECUTION CASE:
2. The prosecution case, in brief, is that on 21/11/1998 at 1 .10 p.m. At Service Road, behind the Madras Hotel, New Delhi under the jurisdiction of police station Mandir Marg the accused was driving the bus No. D L IP 6059 in a rash and negligent manner so as to endanger human life and personal safety of the others and while driving so struck against a pedestrian Shri Madan Mohan Chowdhury and thereby committed offences punishable under sections 279/304A IPC.
CHARGE AND PLEA OF THE ACCUSED:
3. The notice under section 251 Cr.P.C for the offences under sections 279/304A IPC was given by learned trial court to which the appellant/accused pleaded not guilty.
EVIDENCE:
4. In support of its case the prosecution has examine 13 witnesses in all. PW1 Rajbir Singh is a formal witness and has identified the dead body of the deceased pedestrian Shri Madan Mohan Chowdhury. PW2 ASI Kishan Chand is investigating officer and had proved the various steps taken by him during investigation of the case including preparation of the site plan Ex PW2/C, seizure by him of the bus in question, arrest of the accused, seizure memo : 3 : of the driving licence of the accused etc. PW3 Sh Neeraj Chaudhary proved on record the identification statement Ex PW3/A regarding the deceased Madan Mohan Chowdhury. PW4 Sh Manish Chaudhary is the son of the deceased and has proved his identification statement Ex PW4/A. PW5 Ct Ramesh Kumar is the only eyewitness in this case produced by the prosecution. PW6 Ct Yashwant is also a formal witness and has stated that on 21/11/1998 he was posted as duty constable in Lady Harding Hospital and on that day one injured was admitted in the said hospital by Constable Ramesh Kumar. PW7 Dr I.M. Temjan is a doctor who has proved the MLC of the injured/deceased Ex PW7/A. PW8 Ct Netra Singh is also a formal witness who at the relevant time was posted at Police Post Ram Manohar Lohia Hospital and has informed the duty officer of the concerned police station about death of the injured Shri Madan Mohan Chowdhury. PW9 HC Surender Singh is a formal witness and had proved the copy of the FIR No. 700/98 as Ex PW9/A. PW10 SI Sikander Rai is the Duty Officer and has stated that a telephone call was received regarding accident near Shivaji Stadium and recorded DD entery in the register. PW11 Dr Amita Sen is the doctor who has proved the death report of the deceased Ex PW 11/A and the death summary of the said injured as Ex PW 11/B. PW12 Dr Avneesh Kumar is a doctor and has proved the postmortem report Ex PW12/A. PW13 Retd SI Kedar Nath is a person who has mechanically inspected the vehicle in question and has proved his mechanical inspection report Ex PW 13/A. : 4 :
5. In his statement under section 313 Cr.P.C read with section 281 Cr.P.C recorded by learned trial court the accused has denied all the incriminating evidence and has stated that his vehicle did not struck against the pedestrian. He stated that he was not driving the said vehicle in rash and negligent manner. He did not cause any accident. He also stated that the bus was stopped by the crowd.
The police directed him to park the vehicle by the side of the route first of all and later on he was falsely implicated in this case. The accused has produced only one witness DW1 Shri Rajbir Singh. This witness stated that on 21/11/1998 he was going to Shivaji Stadium. At that time lot of person were sending. The police officers stopped the bus and then they took the bus in their custody. Then they informed the bus owner on telephone .
ARGUMENTS:
7. The arguments on behalf of appellant are that the appellant cannot be guilty of rash negligent diving as the only eye witness PW5 Ct Ramesh Kumar has stated that he was driving the bus in question at 50 km per hour and with such a speed he cannot take turn while driving the bus in question. It is also stated that the main witness Pankaj Mishra is not produced by the prosecution so the appellant/accused is entitled to acquittal. In the alternative, it is argued that the accused had faced trial of for eight years in trial court and there is no earlier criminal record of the accused so he may be enlarged on probation.
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8. The learned Additional Public Prosecutor, on the other hand, has argued that the prosecution has proved its case before trial court beyond reasonable doubt. The eyewitness PW5 Ct Ramesh Kumar has supported the prosecution case and medical evidence and other relevant evidence also supports prosecution case. It is also argued that no leniency should be taken against the accused who by rash and negligent diving of the bus in question has caused the death of an innocent person.
FINDINGS:
9. The list of witnesses given in the challan does not show any witness by the name of Pankaj Mishra, therefore, I do not find any substance in the argument of the learned counsel for the appellant/accused that the main witness Pankaj Mishra is not produced so it has adverse effect o the prosecution case. As regards the argument of the learned counsel for the appellant/accused that the bus cannot be at a high speed at 60 kmph at the time of negotiating the turn on the road, this submission, ordinary speaking, may be true but it is only for those cases in which there is evidence on record that the vehicle was being driven at a slow speed while negotiating Uturn on the road. In the present case, eye witness PW5 Ct Ramesh Kumar has stated that there was Uturn and the bus must not be at a fast speed and it must be driven at 50 kmph by the driver at that time when he was taking Uturn. The reading of the statement of PW5 : 6 : made in the examinationinchief shows that by stating the fact that the bus was being driven at 50 kmph, witness wanted to say that it was at a high speed though while negotiating Uturn it should have been not at fast speed, meaning thereby, that the appellant was driving the bus in question while taking Uturn, at a fast speed. There is no evidence that the witness PW5 had any instrument to measure the speed of the bus while the bus was negotiating Uturn so his statement should be taken as to mean that it was at a fast speed while negotiating Uturn. Therefore, this statement of the witness PW5 does not go to show that accused was not rash or negligent at the time of accident in driving the bus in question. The site plant Ex. PW2/C also shows that the accident took place just after the bus had taken Uturn i.e at point A in the site plan and the bus stopped at a considerable distance shown at point B in the site plan. Therefore, this fact also raises presumption of high speed by which the bus was being driven at the time of accident. Learned trial court has returned the findings about the high speed and negligence on the part of the appellant/accused in driving the bus at the time of accident in para 29 of the judgment and I concur with this findings.
10. As regards the defence of the appellant/accused, although the witness PW1 Rajbir Singh produced by the prosecution was not cross examined on behalf of the appellant/accused despite opportunity but still this witness is of no use to the appellant/accused as he is not an eye witness of the accident in : 7 : question and has only stated that on 21/11/98 he was going to Shivaji Stadium and the police officials stopped the bus and took the bus in custody but this witness is not an eye witness to the accident in question and has only stated about the seizure of the bus by the police. This witness has not stated that at the relevant time appellant/accused was not driving the bus or accident did not take place, therefore, this witness is of no use to the defence. As against this witness PW5 Ct Ramesh Kuma is the complainant and FIR was lodged on the basis of his statement so the presence of witness PW5 at the spot is trustworthy.
11. In the present case the medical evidence to proves the death of the deceased Shri Madan Mohan Chowdhury and the appellant/accused has been identified by the eye witness PW5 Ct Ramesh Kumar as the person who was driving the bus in question at the time of accident. The postmortem report shows that the cause of death may be due to the accident in question. Therefore, the prosecution has been able to prove its case against the appellant/accused beyond reasonable doubt. Learned trial court has correctly recorded the findings of conviction u/s 304 A IPC against the appellant/accused.
12. As regards the conviction of appellant/accused u/s 279 IPC one technical question arises whether conviction and sentence both under section 279 and section 304 A IPC is permissible under the law as the latter section is the aggravated form of the former : 8 : 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 this section is a minor offence which is included in s 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 this section as the latter is a minor offence. (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 sections 279 because the offence under sections 304A and 338, IPC, are similar offence 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 s 279, for the minor offence which is included in the offence under s 304A, is not justified. (See, Shiv Ram versus State AIR 1965All
196). In the light of these authorities the conviction imposed upon the appellant/convict/accused by the learned trial court for the offence under section 279 IPC is liable to be set aside.
13. The question arises whether the appellant/convict is entitled to be released on probation. In Rattan Singh v State of Punjab, (AIR 1980 SC 84, 1980 Cr LJ 11 (SC); the Hon' ble Supreme Court held that the benefit of probation cannot be extended in a case : 9 : where the accused was convicted for the offence under s 304A, IPC. Relying upon Rattan Singh's case, the Rajasthan High in Narader Singh v State of Rajasthan 1997 Cr LJ 4353 (Raj); Ganpat Singh v State of Rajasthan 1998 Cr LJ 716 (Raj) declined the benefit of probation to the accused Convicted under s 304A, IPC . (see also Bansilal Babuji Vanjara v State of Gujarat 2007 Cr LJ 2879 (Guj); Narender Singh v. State 2005 Cr LJ 2735 (Del); Suresh Kumar v State (1998) 3 Chand Cr C 52; Munna Khan v. State of MP 2004 Cr LJ 525 (Chattisgarh); Bharat Pandharinath More v. State of Maharashtra 2004 Cr LJ 205 (Bom).).In the case of Dalbir Singh v. State of Haryana, 2000 Cr LJ 2283, AIR 2000 SC 1677 which is also relied by the learned trial court in the order on sentence to decline probation, it is clearly held by the Hon'b le Supreme court that Section 4 of the Probation of Offenders Act, 1958 cannot be made applicable for the offence under Section 304 A, IPC where the accused is convicted. Therefore, in the light of dictum of Hon'b le Supreme Court in Dalbir Singh' s case (supra), Rattan Singh's case (supra), Sishan Singh' s case (supra), Paramjit Singh's case (supra), Ravinder @ Ravi ' s case (supra) and Sadhu Ram's case (supra) relied on behalf of the appellant do not come to the rescue of the appellant.
RESULT OF APPEAL:
14. The learned trial court has passed the composite sentence of one year SI and payment of pay compensation in the sum of Rs. 25,000/ to the legal heir of the deceased Shri Madan Mohan Chowdhary. The compensation amount has already been : 10 : deposited by the appellant/accused before the learned trial court dated 26/5/06 as per copy of receipt no. 4418. Therefore, this compensation must be deemed under the facts and circumstances of the case, subject to adjustment of the liability of compensation as per section 397 (5) Cr. P.C to be awarded in civil suit or in accident claim. However, since the conviction u/s 279 IPC is set aside and the accident in question has occurred about 10 years ago and appellant/accused has faced trial for the last 8 years for the last two years the appeal is also pending, the sentence of imprisonment in my view should be reduced. Therefore, the conviction of the appellant/accused u/s 304 A IPC and compensation of Rs 25,000/ and default sentence awarded by the learned trial court is confirmed but substantive sentence imprisonment awarded to the appellant/accused is reduced from One year SI to Four Months SI. Period of detention already undergone by him shall be set off against the term of imprisonment u/s 428 Cr. P.C. Appeal is disposed off accordingly. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the copy of this judgment. The trial court shall after ascertaining the legal heirs, names of some of which are also witnesses in this case would pay the compensation amount to them or preferably to the wife of the deceased. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in open court ( S.K. SARVARIA )
dated: 05/4/2008 ADDL. SESSIONS JUDGE
NEW DELHI
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CA No. 21/06
5.4.08
Present: Appellant in person.
Addl. P.P for the state.
Appeal is disposed off accordingly vide separate judgment. Appellant/accused is taken into custody. The trial court record be returned alongwith the copy of this judgment. The appeal filed be consigned to the record room.
ASJ/ND : 12 :