{"id":41601,"date":"1998-07-29T00:00:00","date_gmt":"1998-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-kumar-vs-state-on-29-july-1998"},"modified":"2017-04-26T21:35:00","modified_gmt":"2017-04-26T16:05:00","slug":"suresh-kumar-vs-state-on-29-july-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-kumar-vs-state-on-29-july-1998","title":{"rendered":"Suresh Kumar vs State on 29 July, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Suresh Kumar vs State on 29 July, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1998 VAD Delhi 125, 1998 (3) Crimes 555, 74 (1998) DLT 607, 1998 (46) DRJ 784<\/div>\n<div class=\"doc_author\">Author: J Goel<\/div>\n<div class=\"doc_bench\">Bench: J Goel<\/div>\n<\/p>\n<pre><\/pre>\n<p>ORDER<\/p>\n<p>J.B. Goel, J.<\/p>\n<p>1.     By this criminal revision, the petitioner challenges the legality  and<br \/>\nvalidity of his conviction u\/s 304A IPC which has been upheld in Appeal  by<br \/>\nthe  learned Addl. Sessions Judge and also the sentence imposed. The  Trial<br \/>\nCourt  had convicted him for offences u\/s 304A and 279 of the IPC and  sentenced  to  R.I. of one year u\/s 304A and to a fine of Rs.1,000\/-  u\/s  279<br \/>\nIPC.\n<\/p>\n<p>2.   In appeal, conviction u\/s 304A has been upheld. However, the  sentence<br \/>\nhas  been reduced to R.I. of six months and in view of conviction u\/s  304A<br \/>\nIPC, the conviction and sentence under Section 279 IPC have been set aside.\n<\/p>\n<p>3.   The petitioner was charged in that he on 20.4.1990 at about 2.35  P.M. was  driving bus No.DEP 6218 in rash and negligent manner started  the  bus suddenly  while the deceased passenger was boarding the bus who  fell  down and was crushed by the left rear wheel of the bus and died afterwards.\n<\/p>\n<p>4.   Prosecution  inter alia had examined PW-1 Priya Swamy and PW-9  Const. Sanwar  Mal as eye witnesses. The trial court and the appellate  court  believed the testimony of these witnesses.\n<\/p>\n<p>5.   Learned counsel for the petitioner has contended that material contradictions  in  the  testimony of PW-1 and PW-9 have  been  over-looked;  the conductor was a material witness but he has not been examined to prove  how the deceased had fallen from the bus; it is also not proved by any reliable evidence  either that the bus in question was involved nor that  the  petitioner was its driver nor it is proved that the accident was due to rash or negligent  driving  by the petitioner or the death was as a result  of  his rash  or negligent act; that the deceased had fallen down from  the  moving bus  for which petitioner is not liable. In the end, he contends  that  the petitioner should have been given the benefit of probation and in any  case the petitioner has undergone imprisonment for over three months and in  the circumstances he may be released on the sentence already undergone.\n<\/p>\n<p>6.   Whereas,  learned counsel for the State has supported  the  conviction and  sentence and has contended that the findings of two courts  below  are concurrent,  based  on material on record, are  reasonable  and  justified, evidence  cannot  be reviewed in revision, and there is  no  illegality  or infirmity requiring interference by this court.\n<\/p>\n<p>7.   It  appears that the driver of the bus had escaped his arrest and  had run  away from the spot after the bus and his driving licence  were  seized and was arrested after about two months.\n<\/p>\n<p>8.   The  occurrence  had taken place near the gate of Nirvachan  Sadan  at Ashoka  Road, New Delhi. Objection has been taken that the identify of  the bus  and  of the driver has not been established inasmuch as PW-1  has  not identified  the offending bus or the driver and PW-9 has deposed  that  the offending bus was DEP 6718.\n<\/p>\n<p>9.   PW-1 Priya Swamy has not identified the driver as well as the bus  and PW-9 Const. Sanwar Mal has given the bus number as DEP 6718. However, PW-6, Ct.  Baleshwar Dayal and PW-10 ASI Amar Singh, IO who had reached the  spot first  on  receipt  of information of accident have deposed  that  the  bus No.DEP-6218 was found in accidental condition near the place of occurrence, the said bus was seized vide Memo Ex. PW-6\/A and the driving licence Ex. P-1 of the petitioner was also seized vide Memo Ex. PW-6\/B. There is no cross examination of these witnesses on this aspect. The petitioner in his Statement  Ex.  PW-8\/A made before the M.M. when he was produced  for  TIP,  had refused  for  TIP stating that he was driving the bus at the  time  of  the accident  and then the witnesses had seen him. It is thus admitted  by  him that he was the driver of the offending bus DEP-6218. The statement of PW-9 was recorded after over 7 years and obviously he would not have  remembered the  correct number of the bus after such a long time. The Trial  Court  as well as the appellate Court have come to the conclusion that the  offending bus  was DEP-6218 and the accused was its driver. This finding is based  on material on record and cannot be said to be unreasonable or unjustified.\n<\/p>\n<p>10.  Learned  counsel for the petitioner has also contended that it is  not proved  that the death was caused due to rash and negligent driving of  the petitioner inasmuch as the deceased had fallen from a moving bus for  which he himself is responsible and he had not died at the spot and may be due to lack of medical help and his death has not been proved on record.\n<\/p>\n<p>11.  Both the courts below have held that the death was caused due to  rash and  negligent driving believing the testimony of PW-1 and PW-9.  PW-1  has stated  that he was waiting at Patel Chowk bus stop of route No.920  there, and  being asked by the conductor, he entered into the bus from  the  front gate and Muttu Swamy (deceased) had followed him, when the driver  suddenly started  and  drove the bus at very high speed as a result of  which  Muttu Swamy  fell down from the bus and the left rear wheel of the bus  ran  over him and he was taken to hospital where he died.\n<\/p>\n<p>12.  PW-9 Const. Sanwar Mal has deposed that he was on duty at the gate  of Nirvachan  Sadan, Ashoka Road alongwith Government motorcycle, the  bus  of route  NO. 920 stopped at the bus stop and while passengers were  boarding, the  driver  suddenly accelerated the bus as a result of which  one  person fell down from the front gate who was crushed by the rear wheel of the  bus and he had removed the injured to the hospital.\n<\/p>\n<p>13.  It was the duty of the driver to have ensured before starting the  bus that  the passengers had boarded the bus properly and  securely.  Obviously the bus had started suddenly before the deceased had properly and  securely boarded the bus. The trial court and the appellate court have believed  the testimony  of  PW-1 &amp; PW-9 in this respect and held that in  these  circumstances the petitioner was guilty of rash and negligent driving as a result of which the deceased had fallen down and was crushed by the rear wheel  of the bus. The evidence cannot be re-appraised in revision.\n<\/p>\n<p>14.  The case of Niranjan Singh Vs. The State (Delhi Admn.) 1996 JCC (Del.) 677  cited by the ld. counsel is distinguishable on facts as the  passenger in  that case had fallen down due to a sudden turn taken by the driver  who was  overtaking, another vehicle to save from collision with  an  on-coming vehicle  from front in fast speed and not due to start of the bus  suddenly while boarding. The inference of criminality on the part of the  petitioner drawn  from  these  circumstances by the two courts cannot be  said  to  be unreasonable  or not justified and there is no illegality or  infirmity  in this respect.\n<\/p>\n<p>15.  However,  both  the  courts below have overlooked the  fact  that  the injured  deceased had not died on spot. He was removed to the hospital  and had died afterwards. It is not proved on record when the deceased had  died and  what was the nature of injuries and cause of his death. Only  a  clerk from  the  hospital (PW-5) has been examined who has only  proved  the  MLC Ex.PW-5\/A in the absence of the doctor. The injured was alive when this MLC was  recorded. The nature of injuries has not been proved. The doctors  who had  examined  and  treated the injured have not been examined  nor  it  is proved that the death was caused due to the accidental injuries. The doctor who had conducted the post-mortem has also not been examined and the  postmortem report has not even been proved. This has been overlooked by the two courts. Evidence the prosecutor as well as the two courts have not  acted with  due diligence and carefully. The finding of conviction under  Section 304-A  IPC thus is not based on evidence. The conviction and sentence  thus are illegal and not warranted by law and are not sustainable.\n<\/p>\n<p>16.  The petitioner has been facing trial for over 8 years. It will not  be in  the interest of justice to remand the case back to fill in the  gap  in the prosecution case at this belated stage nor any such request was made by the learned counsel for the State.\n<\/p>\n<p>17.  This revision petition is accordingly allowed. The judgment of conviction  and order of sentence dated 22.1.98 &amp; 27.1.1998 respectively  of  the trial  court  as modified by the judgment dated 8.5.1998 of  the  appellate court are set aside.\n<\/p>\n<p>     The  petitioner  shall  be set free forthwith if not  required  to  be detained in any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Suresh Kumar vs State on 29 July, 1998 Equivalent citations: 1998 VAD Delhi 125, 1998 (3) Crimes 555, 74 (1998) DLT 607, 1998 (46) DRJ 784 Author: J Goel Bench: J Goel ORDER J.B. Goel, J. 1. By this criminal revision, the petitioner challenges the legality and validity of his conviction u\/s [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-41601","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Suresh Kumar vs State on 29 July, 1998 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-kumar-vs-state-on-29-july-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh Kumar vs State on 29 July, 1998 - Free Judgements of Supreme Court &amp; 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