* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Rev.P.No.213/2011
% Reserved on: 14th July, 2011
Decided on: 30th August, 2011
RAJESH KUMAR ..... Petitioner
Through: Mr. Ajay Rai, Advocate.
versus
STATE ..... Respondent
Through: Mr. Pawan Behl, APP with ASI
Ramakant, PS Dwarka, Sector 23.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. By the present Revision Petition, the Petitioner seeks setting aside of
the judgment dated 28th February, 2011 passed by the learned Additional
Sessions Judge. By the impugned judgment learned Additional Sessions
Judge dismissed the appeal preferred by the Petitioner against the judgment
Crl. Rev. P. No.213/2011 Page 1 of 8
dated 17th August, 2011 passed by the learned ACMM convicting the
Petitioner and order on sentence dated 20th August, 2010 whereby the
Petitioner was sentenced to undergo Rigorous Imprisonment for a period of
one year and pay a fine of Rs. 20,000/- for the offences punishable under
Section 304A IPC, in default of payment of fine to further undergo Simple
Imprisonment for one month and to undergo Rigorous Imprisonment for
three months and pay a fine of Rs. 500/- for offence punishable under
Section 279 IPC, in default of payment of fine to further undergo simple
imprisonment for 15 days.
2. Briefly the prosecution’s case is that on 2nd April, 2000 at about 9.00
p.m. at Purana Najafgarh Road, Harizan Basti, Palam Village, New Delhi a
public way. The accused was driving Bus No. DL1PA-0003 in a rash and
negligent manner so as to endanger human life and safety. While driving the
said vehicle he struck against one scooter bearing No.DL 1S-5532 resulting
in the death of Satish. The Petitioner was arrested and after the investigation
a charge-sheet was filed against him for the offence punishable under
Sections 279/304-A IPC. After recording the prosecution evidence and the
statement of the Petitioner under Section 313 Cr.P.C., the Learned Trial
Court held that the Petitioner was driving the truck in a rash and negligent
Crl. Rev. P. No.213/2011 Page 2 of 8
manner which caused death of Satish. The judgment and order on sentence
passed by the Learned ACMM was appealed against before the Learned
Additional Sessions Judge which was dismissed vide order dated 28 th
February, 2011. The two judgments i.e. passed by the Learned ACMM and
Learned Additional Sessions Judge are impugned in the present petition.
3. Learned counsel for the Petitioner contends that the learned ACMM
and learned Additional Sessions Judge have not appreciated the facts and
circumstances of the case and the sentence awarded to the Petitioner is not
sustainable in the eyes of law. The alleged eye witnesses to the incident that
is PW1 Sat Pal Singh and PW5 Balbir Singh are not the eye witnesses and
are planted by the prosecution. PW1 has not identified the Petitioner as he
was not related to the deceased in any manner. The Trial Court has failed to
appreciate the fact that the alleged spot of incident was a dark place and it
was not possible to see the Petitioner, as there was no independent source of
light or street light. No TIP was conducted as the Petitioner was shown to
the witnesses in the Police Station and this version has been admitted by PW
10 in his cross-examination. The testimony of PW5 is full of improvements
and embellishment and is liable to be dismissed. It is further contended that
the investigating officer was not competent to prove the notice under Section
Crl. Rev. P. No.213/2011 Page 3 of 8
133 Motor Vehicle Act. Thus the legal requirement of proving the notice has
not been complied with. The present case is a case of false implication, thus
his conviction is liable to be set aside. In the alternative it is prayed that the
Petitioner has no previous involvement in any case and has faced trial for ten
years, thus, he be released on probation.
4. Learned APP on the other hand vehemently opposed the petition. It is
contended that there is no infirmity in the judgments passed by the learned
ACMM and the learned Additional Sessions Judge. The testimony of the
eye-witnesses is clear and cogent, PW1 has deposed that on 2nd April, 2000
the bus bearing No. DL-1PA-0003 overtook him and it was driven speedily
and after overtaking he heard a loud noise. When he reached the spot he saw
a man lying in a pool of blood. PW10 the Investigating Officer has also
corroborated the version of PW1 that on the spot he found a dead body lying
in a pool of blood. Thus, there is sufficient evidence on record to prove the
guilt of the accused/Petitioner. Hence the present petition has no merit and
is liable to be dismissed.
5. I have heard learned counsel for the parties and perused the record.
PW5 Shri Balbir Sharma has deposed that on the date of incident when he
reached Pusa Road, Harijan Basti, Palam Gaon near Johar he saw that a bus
Crl. Rev. P. No.213/2011 Page 4 of 8
was coming in a zig zag way on a very fast speed form Palam Gaon side. As
he was frightened he took his scooter down on footpath and parked there to
see the offending vehicle. One more scooter which was being driven by one
Satish was also going ahead of the bus in the same direction. He saw that
the said bus bearing no. DL-1PA-0003 hit the scooter from its left side. The
said scooter rider came under the wheel of the bus and the bus ran over him.
The driver of the bus present in the court stopped the bus 50-100 steps
ahead. He has further stated that he could recognize the driver in the natural
light as well as in the light of the vehicle passing through the said route. The
helmet of the scooter was also crushed. In his cross-examination, he has
deposed that the front left of the bus struck against the front as well as the
back of the scooterist. The scooter fell down itself underneath the front
wheel of the bus. PW1 Shri Satpal Singh had also deposed about the manner
in which the bus was being driven. He has stated that the driver of the bus
was driving the bus speedily and after the bus overtook him he heard a loud
noise under the bus and the bus jumped that time. He was approximately
30-40 meters behind the bus when he reached the spot where the bus had
jumped. He saw a scooter and a man lying in a pool of blood. The head of
the man was crushed under the bus. PW8 Constable Shyam Lal has
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deposed that along with SI Balram and Constable Anil Kumar he reached
the spot and found a person lying on the road and his head seemed to be
crushed by some vehicle under the helmet. Thus, from a perusal of the
testimonies of the witnesses, it is clear that the manner in which the vehicle
was driven was rash and he was negligent enough to endanger the life of
public. The deposition of PW5 that the bus was coming in a zig zag manner
on a very high speed frightening him to the extent that he took his scooter
down on the footpath and PW1 deposing that the bus was being driven
speedily which overtook him and then he heard a loud noise and the bus
jumped proves the rash and negligent manner in which the Appellant was
driving the vehicle. Therefore, there is sufficient evidence placed on record
to prove that the vehicle was being driven rashly and negligently on a public
way endangering human life likely to cause hurt or injury to any person not
amounting to culpable homicide.
6. The contention of learned counsel for the Petitioner that the
Investigating Officer was not competent to prove the notice under Section
133 Motor Vehicle Act is liable to be dismissed as the Section contemplates
that any police officer authorized by the State Government is competent to
serve the notice to the owner of a motor vehicle, the driver or conductor of
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which is accused of any offence under this Act.
7. I do not find any perversity much less any illegality in the impugned
judgments on the perusal of the evidence on record. It may be noted that the
power of revision vested in this Court is a kind of supervisory jurisdiction in
order to prevent miscarriage of justice arising from the misconception of law
or irregularity of procedure committed by the subordinate Courts. The
revisional power of this Court is to be exercised to see that justice is done in
accordance with the recognized rules of criminal jurisprudence and the
subordinate Courts do not exceed their jurisdiction or abuse their powers
vested in them under the Code of Criminal Procedure.
8. In Dalbir Singh v. State of Haryana, 2000 (5) SCC 82, the Hon’ble
Supreme Court while dealing with a case punishable under Section 304A
IPC held as under:-
“1. When automobiles have become death traps any leniency
shown to drivers who are found guilty of rash driving would be
at the risk of further escalation of road accidents. All those who
are manning the steering of automobiles, particularly
professional drivers, must be kept under constant reminders of
their duty to adopt utmost care and also of the consequences
befalling them in cases of dereliction. One of the most effective
ways of keeping such drivers under mental vigil is to maintain a
deterrent element in the sentencing sphere. Any latitude shown
to them in that sphere would tempt them to make driving
frivolous and a frolic.
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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 304-A IPC as attracting the
benevolent provisions of Section 4 of the PO 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……..”
9. Hence in view of the law laid down by the Hon’ble Supreme Court, I
do not find any merit in the contention of the learned counsel for the
Petitioner to grant him the benefit under the probation of Offender Act and
release him on probation.
Petition is dismissed.
MUKTA GUPTA, J.
August 30, 2011
‘rb’
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