Rajender v. State

Order Pronounced on: October 24. 2011 + Crl.Rev.(P) No.238/2008 RAJINDER Petitioner Througli: Mr.Avtar Singh, Advocate versus STATE Respondent Through: jvir.Pawan Narang, Additional Public Prosecutor for Respondent - State CORAM: HON'BLE MR. JUSTICE SUNIL GAUR

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or f No. not?

¶3Whether judgment should be reported in the Digest? _ SUNIL GAUR. I.

¶1For the-offence under Section 304-A of Indian Penal Code, the substantive awarded by the Appellate Court in the impugned Order of 28''^ March, 2008 is of six months while taking into consideration the fact of deceased alighting rear door petitioner's as mitigating circumstance.

¶2The challenge to impugned conviction for the aforesaid offence in this revision petition > Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. is on merits as well but what solely urged at the hearing by petitioner's counsel that has already remained behind bars for about 2 months, to be precise for 70 days and he has no previous conviction to his discredit and that he is aged 46 years and has old parents and a family comprising of three minor children and a wife to support and having faced the agony of this proceedings for last about years, lenient view on point of be taken.

¶3No doubt, this incident relates back to the year 1995. On 28'^'' September, 1995, at about 10 am, petitioner had stopped his bus No.DL IP 4667 at bus stop on Ratia Marg, M.B.Road, Delhi to enable the passengers to alight from the bus and while not noticing that one passenger Ram Kishan (PW-6) had alighted petitioner's bus from rear door and another passenger Panchi was in the process of alighting when petitioner drove his bus and thereby Panchi had sustained injuries which had proved fatal.

¶4Pertaining to this fatal vehicular accident, FIR No.636/95 under Section 279/304-A of Indian Penal Code was registered at P.S.Ambedkar Nagar, New Delhi against the petitioner and in the trial which had followed, deposition of nine witnesses was recorded but the material deposition is of the eye witness - Ram Kishan (PW-6), who is brother of the deceased. Trial Court while relying upon the evidence recorded, convicted the petitioner to rigorous imprisonment for one year for the offence under Section 304-A of Indian Penal Code which in appeal, was modified to the extent of reducing to six months while maintaining the conviction of the petitioner. Page2 of 5

¶5Being conscious of tlie legal position, that the scope for interference by the Revisional Court is circumscribed and in view of the fact that deposition eye witness - Rann Kishan (PW-6) cannot be faulted with, learned counsel for the petitioner had rightly not contested the conviction of the petitioner on merits and had asserted that in view antecedents petitioner, imposed upon the petitioner deserves to be scaled down to the period already undergone by him.

¶6There is one prominent feature of this case, which deserves attention. It is that the Appellate Court has tried to justify the conduct of the eye witness - Ram Kishan (PW-6) and the deceased of getting down from the bus from the rear door. What has been said in the impugned Order, in this regard, is as under:- "The fact that the deceased Panchi was alighting from the bus from the rear door though shows that he was getting down from the bus not from the front door as is done normally and was guilty making a departure this normal practice followed by the bus passengers. There may be variety of reasons for it It may be that over crowded and deceased Panchi who was at the rear of the bus could not conveniently go to front door to get down from the bus. It may also be that he deliberately avoided going to front door and has chosen to get out of the bus from back door. However. there is convincing evidence showing reason why deceased did not get down from the front door. But at the same time the appellant I II negligent by moving forward without \ensuring that all passengers have got down." (emphasis supplied) I^ II

¶7When tljie aforesaid observations Appellate I Court are viewed in the context of the deposition of the eye jj witness - Ram' Kishan (PW-6), it becomes apparent that the aforesaid observations are mere conjectures as evidence on record does not justify conduct injured and the deceased of alighting from the petitioner's bus from the| rear door, which apparently depicts their contributory negligence.

¶8Though, tontributory negligence of the deceased is not a permissible defence, but certainly it is a factor which affects the quantum of sentence awarded for the offence under Section 304-A of IPG. It has been so held by the Apex Court in Lakshmanan Vs. State of Tamilnadu. JT 2001 (Suppl.2) SC 396 and upon finding it to be a case of contributory negligence, the sentence was reduced to the period already undergone by the offender. On this aspect, learned additional standing counsel for the Respondent-State had not cited any decision to the contrary.

¶9In the aforesaid perspective, while maintaining the conviction of I imposed upon 'the petitioner is reduced to the period already undergone by him, while enhancing the fine to Rs.10,000/-. Petitioner to deposit the fine within 4 weeks. Trial Court to ensure compliance of this Order. f Page4of5 '>4

¶10With mddification, as aforesaid, this petition stands !1 disposed of. October 24, 2011 pkb NIL GAUR) JUDGE

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order Reserved on: September 30. 2011