* IN THE HIGH COURT OF DELHI AT NEW DELHI

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 30 th October, 2009 Judgment Delivered on: 06 th November, CRL.R.P.985/2002 TIKA RAM versus Through:... Petitioner Mr.Harish Malhotra, Sr.Adv. with Mr.Tanuj Khurana, Advocate. THE STATE (NCT OF DELHI) Through:... Respondent Mr.Manoj Ohri, APP CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. 1. On , the accident took place at the Shahid Bhagat Singh Marg opposite Lady Harding Medical College; the victim Veena Bawa was 39 years old; offending vehicle was a maruti van bearing registration no.dl 3F Eye witness account of Shashi Kant PW-1 and Om Prakash Kapoor PW-4 had been considered by the trial court; so also the testimony of Archana Tyagi PW-7. The husband of the victim Kuldeep Singh Bawa PW-2 and her brother Kewal Kishan PW-5 had identified the dead body of Veena Bawa; she had been declared as brought dead ; her MLC and post- Crl. R.P.985/2002 Page 1 of 10

2 mortem report at the RML hospital were proved as Ex.PW-3/A and Ex.PW-11/A respectively.the investigating officer HC Prem Singh PW-6 in the course of the investigation had arrested the accused and prepared the site plan. The mechanical inspection of the vehicle had been got conducted. 2. Vide judgment of the trial court dated the petitioner Tika Ram had been convicted under Section 279 and 304-A of the IPC. Vide order of sentence dated he had been sentenced to undergo SI for three months and to pay a fine of Rs.1000/-; in default of payment of fine to undergo SI for 30 days for the offence punishable under Section 279 of the IPC; for the offence punishable under Section 304-A of the IPC he had been sentenced to undergo SI for one year and to pay fine of Rs.4,000/-; in default of payment of fine to undergo SI for two months. 3. Petitioner, dissatisfied with the orders of the trial court had filed an appeal before the Additional Sessions Judge. Vide judgment dated the Appellate court had upheld the conviction of the petitioner under Section 279 and 304-A of the IPC; appeal had been dismissed; no modification was made in the sentence either. 4. Revision petition under Section 397/401 of the IPC has been preferred before this court challenging this impugned judgment. 5. On behalf of the petitioner three broad submissions have been addressed. Crl. R.P.985/2002 Page 2 of 10

3 (I) It is pointed out that the testimony of PW-1 is suspect; in his examination in chief he had stated that the time of the incident is between 1.15 PM to 1.30 PM which does not corroborate the version of the prosecution as has been borne out from the testimony of the other eye witness namely PW-4, the version of PW-7 as also the version of the investigating officer PW-6. All of them have stated that the incident had occurred at 1.00 PM. There is also no explanation as to why the statement of PW-1 had been recorded by the investigating officer on when the incident had occurred on Eye witness Ram Dayal had also not been examined. PW-7 had categorically stated that the petitioner was not the driver of the offending vehicle. The defence of the petitioner has all along been that he had only removed the injured to the hospital on humanitarian grounds. This defence finds mention even in the cross-examination of the first witness i.e PW-1; this has been his consistent stand. The mechanical inspection report Ex.PW-6/D has evidenced damage on the vehicle; but this is for the reason that the public had broken the windows of his car; this finds mention in the statement of the petitioner recorded under Section 313 of the Cr.P.C. (II) The second submission adduced by the learned counsel for the petitioner is that the judgment of the Motor Accident Claim Tribunal has been delivered on wherein a claim for compensation had been made by the legal representatives of Crl. R.P.985/2002 Page 3 of 10

4 Veena Bawa; the court had categorically held that there was no evidence on record to hold that Tika Ram was responsible for the accident or that the accident had occurred due to his rash or negligent act; the claim of the petitioner had accordingly been dismissed; this is the additional circumstance which the court may taken into account. (III) It has lastly been submitted that if this court is not inclined to alter the conviction, a modification in the sentence is called for. This is in view of the fact that petitioner has suffered a long and protracted trial of almost 15 years. This is the solitary case which is pending against him, he has two children and the family of his deceased brother are also dependent upon him. Admittedly he had removed the injured to the hospital. All these factors entitle the petitioner to a sympathetic consideration and the benefit of probation be considered. For this proposition, the counsel for the petitioner has placed reliance upon a judgment of this court reported as Mahabir Singh vs. The State 2000 (2) JCC 488. Reliance has been placed upon another judgment of this court in State vs. Kaptan Singh 2008 (1) JCC Arguments have been heard. Record has been perused. 7. The object of conferring powers of revision to the High Court is to confer a power upon the superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct a miscarriage of justice arising from a misconception of law, irregularity of Crl. R.P.985/2002 Page 4 of 10

5 procedure, neglect of proper precaution or apparent harshness of treatment, which has resulted on the one hand in a miscarriage of justice and on the other hand caused underserved hardship to individuals. 8. There are two eye witnesses to this incident. Shashi Kant Awasthi has been examined as PW-1. The victim Veena Bawa was his colleague. As per his version on oath in court, the incident had occurred on at about 1.15 to 1.30 PM. PW-1 was working in a NDMC polyclinic at Shahid Bhagat Singh Marg; the incident occurred at a distance of about 100 yards from where he was standing; maruti van driven by the accused had hit the injured; injured had been removed to the hospital in the vehicle of the accused; he had not accompanied the victim. PW-1 denied the suggestion that he was not an eye witness or that some other vehicle had injured Veena Bawa. His version is categorical to the effect that the white maruti van came from the side of Shivaji Stadium at a very fast speed and hit against Veena Bawa. He has not been shaken in his cross-examination. 9. Om Prakash Kapoor, the second eye-witness has been examined as PW-4. He was driving a delivery van and while coming from the side of Madras Hotel and going towards Shahid Bhagat Singh Marg; he saw the offending vehicle coming from behind him and overtake him at a very fast speed. It suddenly stopped with its brakes screaming. On reaching the spot PW-4 saw that the vehicle Crl. R.P.985/2002 Page 5 of 10

6 struck against a lady who was crossing the road. He has further deposed that the front window shield of the maruti vehicle had also been broken in this accident. He has further stated that he is not sure if the accused was driving the vehicle at the relevant time. In his lengthy cross-examination, he had stuck to his stand. 10. PW-6 not pointedly identifying the accused as the driver of the offending vehicle has little relevance in view of the fact that the accused has admitted that he was driving the maruti van; his defence is that it was not his vehicle which had caused the accident; he had only removed the injured to the hospital. Version of PW-6 is however relevant on the score that he had noted that the front window shield of the Maruti Vehicle had broken with the impact. 11. Investigating officer HC Prem Singh is PW-6. He had recorded the statement of the eye-witness namely PW-1 and PW-4. The mechanical inspection report of the vehicle Ex.PW-6/D showed fresh damage due to accident and the front window screen of the vehicle had been found broken. This mechanical inspection was conducted on and supports the oral version of PW There was yet another eye-witness Smt.Archana Tyagi examined as PW-7. She was the employer of the present petitioner and was sitting in the maruti van at the time when the accident had occurred. She has on oath deposed that an accident had occurred on at about 1 PM near the Madras Hotel but she cannot Crl. R.P.985/2002 Page 6 of 10

7 say as to how the accident had occurred; she saw the injured lady lying on the road; she has admitted that the petitioner Tika Ram was driving their Maruti van but at the same time she has stated that the accident had not been caused by this vehicle. 13. The submissions made before this court have been dealt with in depth and detail by two facts finding courts below. The versions of PW-1 and PW-4 i.e. both the eye-witnesses remained unassailable. Through their testimony it has been established that the accused was driving the vehicle at a very fast speed; it overtook Pw-4 and after about 50 yards it came a screeching halt when the brakes were applied. So also is the version of PW-1; he has also categorically recited that the vehicle was being driven by the petitioner at a fast speed. 14. Evidence of PW-1 and PW-4 inspire confidence; there is no reason on the part of either to have deposed falsely for any ulterior purpose; minor variations and discrepancies do tend to creep in, keeping in view the fact that the powers of observation and retention differ from individual to individual; reference to time is never on a mathematical calculation; it is on a general impression. Speed of the vehicle is one relevant factor amongst others to determine whether the act is rash or negligent. Negligence is the absence of due care and caution, whereas culpable rashness results from a lack of circumspection. Crl. R.P.985/2002 Page 7 of 10

8 15. Prosecution has been able to establish that because of the fast speed of the vehicle the accused was not able to exercise due control over it; in these circumstances he had lost control over the vehicle resulting in the consequential collision. There was every reason on the part of PW-7 of shield her driver; she was sitting in the offending vehicle at that time; she was an interested witness and did not disclose the whole truth; she has admitted that the vehicle was driven by the accused; she has also admitted that the accident had occurred in her presence and the victim was lying injured on the road yet how it had happened and who was the offender has not been disclosed by her. She was an eye-witness but she has not come out with the full truth. Defence of the accused that he had merely removed the injured to the hospital and has no connection with the offence is unsustainable. Evidence has been appreciated in the correct perspective by both the courts below. Conviction of the accused calls for no interference. 16. The petitioner has however suffered a long and a protracted trial. Incident is dating back to the year 1994 i.e. 15 years from today. Nominal roll of the petitioner shows that the petitioner has suffered incarceration of about one month and 18 days out of the total sentence awarded to him. 17. The judgment of State vs. Kaptan Singh (supra) was a state appeal against an acquittal order; parameters and considerations weighing before a court dealing with an order of acquittal and Crl. R.P.985/2002 Page 8 of 10

9 considerations to be kept in mind while dealing with an order of conviction are different and distinct. The second judgment reported in Mahabir Singh (supra) is also distinct on its own facts; it was a conviction under Section 338 of the IPC with a maximum sentence of three months 18. In Dalbir Singh vs. State AIR 2000 SC 1677 it has been held by the Supreme Court that one prime consideration while considering a sentence under Section 304-A of the IPC should be deterrence. The Supreme Court has expressed grave concern over the negligence of a professional driver causing death of a pedestrian and the over lenient approach of the court in punishing such offenders. It has also to be kept in mind in an offence under this Section a term of imprisonment is not a must. The section visualizes the possibility of an offence falling under it being penalized by a mere fine as well. In estimating the sentence to be passed against an accused in a case of causing death by negligence the Court has to consider whether the negligent act which had occasioned the death shows callousness on his part as regards the risk to which he was exposing other persons; the severity of the sentence must depend to a great extent on the degree of callousness which is present in the conduct of the accused. 19. In the instant case, it is not in dispute that the petitioner himself had removed the injured to the hospital; it was an humane act. In this background, the ends of justice would well be met if the Crl. R.P.985/2002 Page 9 of 10

10 sentence of imprisonment of RI for one year is reduced to a period of RI for three months for the offence under Section 304-A of the IPC. For the offence under Section 279 of the IPC the sentence is reduced from SI for three months to SI for one month. No modification is made in the fine imposed. 20. Bail bond and surety bond of the petitioner stand cancelled; he is directed to surrender forthwith to suffer the remaining sentence. 06 th November, 2009 rb (INDERMEET KAUR) JUDGE Crl. R.P.985/2002 Page 10 of 10