Rajpal v. State NCT of Delhi

ORDER

22.02.2013

¶1By this order I propose to decide the present Criminal Revision Petition which has been filed by the petitioner/revisionist against the order dated 09.08.2012 passed by Sh. Rajneesh Kumar Gupta, ASJ, Tis Hazsri i Courts, Delhi, wherein the petitioner/revisionist was convicted under section 279/ 304 A IPC and was sentenced to undergo simple imprisonmejit for a period of one month and to pay a fine of Rs. 200/- under Section 279 IPC and rigorous imprisonmentof 9 months a:nd to pay fine of Rs. 500 under Section 304 A IPC.

¶2Succinct account of the case is that on 05.01.1997 at about 9.05a.m. i front of DDA PicketJail Road, the revisionistwas drivingthe bus bearin: No. DL-IP-1962 in an allegedly rash and negligent manner endangering i the human life and personal safety of others and while driving so the revisionist had hit a cyclist/ Dinesh (deceased) thereby causing death Dinesh. After investigation, the charge she et had bee n filed against the accused u/s 279/ 304A IPG and notice u/s 279/304A was framed against tie revisionist to which he pleaded not guilty. In order to prove its case, t prosecution examined 13 witnesses. The statement of revisionist was al recorder under section 313 Cr. P. C. and one witness was also examined by the revisionist in his defence. After conclusion of trial, final arguments were heard by Sh. M.P. Singh, M.M. -02, West Delhi and revisionist wis convicted vide judgment dated 19.12.2011 and vide order dated 21.12.2011 he was sentenced for an offence u/s 279 IPG to undergo SI for a period of ! one month and fine of Rs. 200 and in default of fine, SI for one week and for the offence u/s 304A IPG to undergo RJ for a period of 9 months and fine of Rs.500 and in default of fine, to undergo SI for two weeks.

¶3An appeal against the said judgment of conviction dated 19.12.11 and order on sentence dated 21.12.2011was preferred by the revisionist and th same was dismissed by the impugned order dated 9.8.2012 passed by the learned ASJ. Hence the present criminal revision petition by the of le so petitioner/revisionist.

¶4Arguing the present petition, counsel for the petitioner submits that the testimony of the PW-4, ASL Sushil Joseph does not inspire much confidence as he deposed in his cross-examination that the accident in question took place on the other side of the divider of the road in front of the picket, as per the site plan proved on record as PW12/C, but, the accident in question had taken place not exactly outside the police pick st but far away from the said picket. Counsel further submits that this witness further deposed in his cross examination that he had reached the spot after hearing the noise of the impact. He further deposed that he did not know how many passengers were there in the bus. He also deposed that he had not taken the injured to the hospital but he was taken to the hospital by the public. Counsel also submits that in fact at the end of his cross-examination he admitted that he had not seen the actual collision with the offending bu and the cycle.

¶5The contention raised by the Counsel is thus that as the said witness was not an eye witness to the said accident, therefore, the learned trial Court and the appellate Court could not have given any credence to his testimony. Counsel also submitsthat the police did not take steps to take the site photographs of the incident. Counsel also submits that it is ari admitted case of the prosecution that the road where the accident hac taken place is a very busy road and therefore the petitioner could no have driven his vehicle in a rash and negligent manner at such a busy road

¶6I have heard counsel for the petitioner at considerable length anc given my anxious consideration to the arguments advanced by him.

¶7As per the case of the prosecution a cyclist was hit by the petitions who was driving the blue line bus bearing number DL-IP-1962 in a rash anc negligent manner coming from the side of Tilak Nagar chowk. Due to the impact of the said collusion, the cyclist fell down on the road and renderet himself unconscious. The petitioner was apprehended at the spot itself b} Head Constable Veerpal (PW2) and Head Constable Sushil Joseph (PW4) as there was a police picket just across the road and both these police officials were present in the said picket. The prosecution has succeeded in proving the case of rash and negligent driving against the petitioner beyond el reasonable doubt and the petitioner/accused has not disputed the fact that he was driving the offending vehicle which had hit the cyclist. The main contention raised by the petitioner in the present petition is that PW4 waei not the eye-witness and therefore no credence can be given to his testimony This aspect has been dealt with by the Ld. Appellate Court intricately ancl this court do not find any perversity or infirmity in the reasoning given by the Ld. Appellate Court. Even if it is taken that PW4 was not an eye witness i of the said accident, no convincing argument has been advanced by counsel for the petitioner to discredit the testimony of PW2, HC Veer Pal as his testimony remained unchallenged and un-rebutted. I also do not find any force in the argument of counsel for the petitioner that the driver could not have been driving the vehicle at a fast speed at such a busy road as no sue evidence was adduced in defence to prove that there was heavy traffic on the road at the time of the said incident. At times, the busy road may not have heavy traffic and seeing the way the cyclist was hit by the bus whic resulted into the death of the victim, it cannot be fathomable that the petitioner was not driving the said bus in a rash and negligent manner.

¶8The Ld. MM and the Appellate court have rightly placed reliance on the judgment of Paras Nath v. State of Delhi, 2003(3) JCC 150i wherein it has been held that hitting a person from behind is in itself a ras and negligent act.

¶9As far as challenge to the order passed by the Appellate court wit respect to quantum of sentence is concerned, it would be worthwhile to reproduce the observations made by the Apex court in Dalbir Singh v. State of Haryana,

(2000) 5 SCC 82, wh ich have also been relied on by the Appellate court. The said case also involved a bus driver knocking down a cyclist who succumbed to death. Observing that such cases of road rage must be dealt with heavy hands by the courts, the Apex Court commenced its judgement with the opening paragraph reproduced as below-vj

¶1Theautomobiles have become death traps and any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. AH 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 deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic. The Apex court went on to observe that-y-

¶13Bearing 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 304AIPC 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. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly r5 inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can piay, particularly at the level of trial courts^ for lessening the high rate of motor accidents due to callous driving of automobiles.

¶10The aforesaid judgment has been relied upon in another judgment passed by the Apex court in the case, Alister Anthony Pareira V. State ofMaharashtra,

(2012) 2 SCC 648, wherein the Apex Court while commentingon the sentencingpoliciesto be adoptedby the courts in sucil cases of road accidents, observed as follows-

¶84Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate^ adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and ail other attendant circumstances.

¶85The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

¶11Thus, the petitioner in the present case, who drove the heavy vehicle i.e. the bus in a rash and negligent manner thereby causing death of the deceased, the cyclist, must be bound to bear the consequences of his negligent act and must not be entitled to any leniency with respect to the quantum of punishment as a liberal attitude leading to the imposition ol" scanty sentence on him would be perilous and against the societal interest The learned Appellate court has therefore rightly rejected the petitioner's plea regarding grant of probation and upheld the order of sentence passed b) the learned MM.

¶12This court, thus, do not find any illegality, perversity or infirmity in the said consistent orders passed by both the courts below and the same are upheld accordingly.

¶13Petitioner is now directed to surrender before the Ld. Trial Court within a period of two weeks from the date of this order to undergo the order of sentence passed by the Ld. MM. FEBRUARY 22, 2013 Mg/g KAILASH GAMBHIR, J

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 529/2012 RAJPAL Petitioner Through Mr. R.S. Jhakar, Adv. versus STATE NOT OF DELHI Respondent Through Mr. Navin Sharma, APP for State. S.I. R. Singh CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR