Delhi District Court
Narender Kumar vs The State N.C. T. Of Delhi on 19 November, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 36/11
Unique case ID No. 02404R0295212011
Narender Kumar
Son of Sh. Om Pal Singh
R/o Village Butradi
P.S. Phugana
District Muzaffar Nagar, U.P.
Present Address:
N11, Vijay Vihar,
Uttam Nagar, Delhi59
...Appellant
Versus
The State N.C. T. of Delhi
.....Respondent
Date of institution of the case: 19/10/2011
Arguments heard on: 05/11/2011
Date of reservation of order: 05/11/2011
Date of Decision: 19/11/2011
JUDGMENT
This appeal U/s. 374(2) (a) of Cr.P.C. has been filed against the judgment dated 21/09/2011 and order on sentence dated 26/09/2011 passed by learned Trial Court U/s. 279/304A of IPC.
It is alleged that the learned Trial Court has failed to appreciate the CR No. 36/11 1/9 evidence brought on record and the judgment is based on conjectures and surmises and is also bad in law as well as on facts, which has caused miscarriage of justice. It is further alleged that prosecution has not been able to prove rash and negligent driving on the part of accused. It is further alleged that PW3 HC Ravinder Singh, the alleged eye witness, never saw the driver of the offence vehicle just before the accident and even he did not depose the manner in which the accident had taken place and also has not deposed that he produced the accused before the IO. It is further alleged that PW3 HC Ravinder Singh is not a reliable witness. It is further alleged that case property was never produced before the Court and the major contradictions have not been appreciated by the learned Trial Court.
It is further alleged that PW9 retired SI Umed Singh, who had conducted mechanical inspection of the vehicle, had never stated that there was any blood stain on the tyres of the offending vehicle, which shows that the alleged offending vehicle, as stated, was not involved in the accident. It is further alleged that prosecution has not been able to prove MLC on record. Hence, the judgment and order on sentence be set aside.
I have heard learned counsel for the appellant and Ld. Addl. PP for the State and having gone through the trial court record and the impugned judgment and order on sentence.
Charge/Notice against the accused was framed on 23/11/2001. In reply to the notice, accused did not disclose anything at that time. Eye witness to the accident is PW3 HC Ravinder. On 25/12/96, he was posted at Model Town Circle from 8.00 a.m. to 9.00 p.m. His duty was at Azadpur T point. At about 4.15 p.m., one bus came from Azadpur side and was going towards CR No. 36/11 2/9 Jahangir Puri bearing No. DL1)1952. At that time, it was green light. One person tried to stop the bus by waving his hand. The bus stopped and that person tried to board the bus, but the bus started immediately, due to which, that person fell down and came under the back wheel of the conductor side. The bus then stopped near the police booth. Driver of the bus came to PW3 HC Ravinder and he helped him in lifting the injured. Then he took the injured alongwith one public persons, whose name he does not remember, to Lusa Tower Hospital. There, doctor told that injured should be removed to some government hospital. Meanwhile, police ambulance came there and injured was handed over to them. He came back to spot, but he could not find the driver.
PW3 HC Ravinder has further deposed that on 26/12/96, he was standing at TPoint Azadpur and the said driver, whose name he came to know later on as Mahender Kumar, son of Om Pal, was crossing the road. He suddenly recognized that person, who absconded on the previous day and he apprehended the said person and took him to PS and handed over him to the IO, who arrested the accused. PW3 signed the arrest memo and personal search memo of accused and his statement was also recorded Ex. PW3/A. PW3 HC Ravinder has been cross examined about the speed of the vehicle and he has denied the suggestion that speed of the vehicle at that time was about 10 to 15 kilometers per hour due to rush. PW3 has further stated in the cross examination that he was standing at a distance of 7 to 8 meters. So, the distance was not so much long enabling the witness to see the accident and in the manner it had taken place. PW3 HC Ravinder has denied the suggestion that distance between the spot and the place where he was standing was about CR No. 36/11 3/9 15 to 20 meters. He has also denied that accused did not apply sudden brakes or that no one gave signal to stop the vehicle. He came back to his duty at about 4.45 p.m. After the day of the accident, he did not meet with the IO.
From the deposition of PW3 HC Ravinder, it is clear that the driver of vehicle No. DL1P1952 was driving the bus from Azadpur side towards Jahangir Puri and on green light, he stopped the bus when a person tried to stop the bus by waving his hand and when the said person tried to board the bus, the driver of the bus started the bus, due to which, that person came under the rear part of the vehicle. PW3 has not been cross examined regarding this part of his evidence and from this part of unrebutted and unshaken evidence, it is proved by the prosecution that driver of said bus No. DL1P1952 was negligent in driving the bus.
Firstly, accused stopped the bus at green light and secondly, when the said person tried to board the said bus from the front door, he started the bus immediately, due to which, that person fell down and came under the back wheel of the conductor side. So, at both the moments, the driver of the said vehicle No. DL1P1952 acted in negligent manner. He was not required to stop the bus at green light even for a moment and if he had stopped the bus at all, then he was required to give opportunity to board the bus by the said person and should not have started the bus immediately, due to which, the said person fell down and came under the back wheel of the conductor side.
According to PW7 HC Hori Lal, who reached at the spot with ASI Giriraj Singh on receipt of information of accident, they found bus No. DL1P1952 parked there and PW3 Constable Ravinder of Traffic Police, was also present there. So, presence of PW3 Constable Ravinder is also proved by CR No. 36/11 4/9 the prosecution to the extent that he was on duty at that time nearby the place of accident. According to PW7 HC Hori Lal, bus was seized vide memo Ex. PW7/A. In the cross examination, PW7 has stated that they reached at the spot at about 4.40 p.m. and PW3 HC Ravinder has also stated that he came back to his duty after handing over the injured to the ambulance at about 4.45 p.m. So, PW3 HC Ravinder was found present on his duty by PW7 HC Hori Lal.
PW8 SI Giriraj Singh has also deposed about the seizure of blue line bus No. DL1P1952 of route No. 883 and he also met with Constable Ravinder, whose statement was recorded Ex. PW3/A, on which, he prepared ruqqa and got registered the case. According to PW8 SI Giriraj Singh, driver of the offending bus was not present at that time. So, in all, PW3 HC Ravinder, PW7 HC Hori Lal and PW8 SI Giriraj Singh have corroborated about the accident and the proceedings conducted thereafter.
Regarding the identity of accused, even PW3 HC Ravinder Singh has stated in the cross examination that injured was taken to Lusa Tower Hospital in a TSR, in which, the injured was shifted with the help of accused and other persons, which proves beyond reasonable doubts that accused was present at the spot and was seen by PW3. PW3 has further stated that he identified the accused at the time of accident and thereafter in the Court. So, merely that PW3 HC Ravinder Singh and PW8 SI Giriraj Singh have contradicted each other regarding the production of accused before him by PW3 on 26/12/93 is not material at all and it is not shaking the testimony of PW3 regarding identity of accused. The explanation given by the accused in his statement recorded U/s. 313 Cr.P.c. is not supported with any evidence of defence witness nor the same has been suggested to the prosecution witnesses CR No. 36/11 5/9 in the cross examination, hence, the explanation of the accused cannot be considered in any manner.
In such circumstances, the findings of learned Trial Court are correct and the evidence has been appreciated in a right context. There is nothing in the impugned judgment to held that the learned Trial Court misdirected himself or misread the evidence, while giving findings regarding the offences U/s. 279/304A of IPC committed by the accused.
In such circumstances, there is no ground to set aside the judgment dated 21/09/2011 of the learned Trial Court. The contentions raised by learned counsel for the appellant regarding appreciation of evidence by the learned Trial Court in a wrong manner are unfounded and are not tenable in any manner.
Learned counsel for the appellant has further contended that appellant is the only bread earner of his family and detention of appellant in jail will leave adverse affect upon his family consisting his wife and two minor school going children and also old aged parents. One of the child is studying in class IX and another child is studying in class III and if the appellant is sent to jail, the whole family is going to be disturbed and the carrier of the minor children will be adversely affected.
Learned counsel for the appellant has further contended that appellant is neither a previous convict nor any case is pending against him. The appellant has left the job of driving and has not got his driving licence renewed after the accident. Neither any case prior to the incident nor after the alleged accident has been registered against the appellant.
Learned counsel for the appellant has further contended that CR No. 36/11 6/9 appellant has faced trial approximately for 15 years and during the trial of case, he never remained absent and has regularly attended the court. So, appellant deserves to take a lenient view against him.
In support of his contention, learned counsel for appellant 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 counsel for appellant 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 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 CR No. 36/11 7/9 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 non offender 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, there is no laxity on the part of the appellant during the trial. So, while upholding the conviction of appellant, I am of the view that the appellant be released on probation 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 of in the sum of Rs. 15,000/ with one surety in the like amount with the CR No. 36/11 8/9 condition that during this period, he will keep peace and be of good behaviour, to the satisfaction of learned Trial Court. In case of default, appellant will appear himself before the learned Trial Court for acceptance of sentence.
The deceased was 50 years of age at the time of his death. So, certainly, he had left behind a family to support and it had happened in the year 1996. It is not known whether any claim under Motor Accident Claim Tribunal was received by the LRs of deceased or not. However, considering the facts and circumstances, compensation to the tune of Rs. 35,000/ is imposed upon the convict payable to LRs of deceased U/s. 357 (A) of Cr.P.C. and in default of payment of compensation, the convict shall undergo six months simple imprisonment.
The appeal is disposed of accordingly.
TCR be sent back to the court concerned with the copy of the order.
Appeal file be consigned to record room.
Announced in Open Court on dated 19th of November 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi CR No. 36/11 9/9