Kartar Singh vs The State (Govt. Of Nct Of Delhi)
2005 Latest Caselaw 580 Del

JUDGMENT

R.C. Jain, J.

1. The appellant was prosecuted and tried for the offences punishable under Sections 304/509/427/34 IPC on the allegation that on 12.11.2000 at Madhuban Chowk, Delhi while driving truck No. HR-38G-2796, he made gestures to insult the modesty of Smt. Rekha Jain (deceased); at about the same time and place he committed culpable homicide not amounting to murder, by causing death of the said Smt. Rekha and Kumari Anjali, who were riding a two-wheeler scooter and also damaged the scooter driven by a certain Sanj(sic)y Jain. However, the learned Additional Sessions Judge convicted the appellant for the offence under Section 304A IPC only and sentenced him to RI for a period of two years and a fine of Rs. 5,000/- and in default of payment of fine, to further undergo RI for five months. Aggrieved by his said conviction and sentence, the appellant has filed the present appeal.

2. I have heard learned counsel for the appellant and the learned additional public prosecutor representing the State and have given my thoughtful consideration to their respective submissions. I have also perused the material available on trial court record.

3. The learned counsel for the appellant has assailed the conviction of the appellant primarily on the ground that the identify of the appellant/accused as the perpetrator of the crime has not been conclusively established by means of cogent and reliable evidence in as much as the sole witness of the occurrence PW Sanjay Jain having failed to identify the appellant as the driver of the truck at the Test Identificaton Parade which itself was conducted by the Metropolitan Magistrate after two months of the incident. In the opinion of this Court, there is no merit in this contention because the complainant-PW2 has categorically deposed before the Court that the accused/appellant was the same person who was driving the truck in question on the relevant date and time and place. This incriminating part was put to the accused in his examination under Section 313 Cr.P.C. and the accused has not denied this factum and rather he only denied having passed any gestures on the wife of the complainant. Moreover, the appellant produced a defense witness, namely DW1 Ram Variksh, who claimed to be a cleaner/khallasi employed with the accused on the same truck and this witness had categorically stated that it was the accused Kartar Singh who was driving the truck in question on the alleged date, time and place of the occurrence. On the face of this position, non identification of the accused by the complainant at a test identification parade is not of consequence.

4. Yet another ground pressed by learned counsel for the appellant is that there are certain contradictions in the testimony of the witnesses and even the complainant Sanjay Jain has not supported the prosecution case and so was cross-examined by the learned additional public prosecutor. It is true that certain questions were put to this witness by the learned additional public prosecutor but they were relevant only on the aspect as to whether the accused had intentionally hit his truck against the scoter driven by the complainant, deliberately or incidentally, to which the answer of the complainant was evasive. It is also urged that the complainant has not supported the prosecution case in regard to any gestures made by the accused/appellant toward the wife of the complainant. In the opinion of this Court, the complainant having not himself seen the appellant making any gestures, has rightly denied having not seen the accused making such gestures to insult the modesty of his wife. However, he maintained that his wife Rekha Jain (deceased) had told him that the accused was making such gestures. A person in control of a two-wheeler scooter and driving the same cannot be expected to watch the actions, gestures etc. of some person from the side because his concentration would always be towards front in driving the scooter in a prudent manner. In the opinion of this Court, the complainant has supported the prosecution case in all material particulars and, therefore, I see no merit in the contention that the prosecution has failed to establish the case against the appellant.

5. Learned counsel for the appellant has also pointed out that the defense put-forth by the appellant about the complainant having lost the balance while driving the scooter because he was carrying two children besides his wife is quite probable and the appellant is entitled to benefit of doubt. Having regard to the totality of the facts and circumstances of the case, more particularly the incident in regard to the making of gestures etc. by the appellant towards the wife of the complainant and subsequently his utterances that "POLICE OR ACCIDENT SE HAMARA ROJ KA VASTA PADTA HAING", there is least doubt that the appellant must have driven his vehicle in such a rash and/or negligent manner so as to hit the scooter and cause damage to the scooter or death of the rider of the scooter. The appellant should thank his stars that the learned trial court has chosen to convict him for a less graver offence of 304A IPC. The menace of rash and negligent driving and consequential fatal motor vehicular accidents in the metropolis of Delhi is increasing at an alarming rate and need to be curbed with strong hand.

6. In the opinion of this Court, the conviction of the appellant is pre-eminently justified having regard to the material obtaining on record and sentence by no standard can be said to be harsh having regard to the totality of the facts and circumstances of the case and more particularly that two persons have lost their lives due to the rash and negligent act of the appellant.

7. The appeal is accordingly dismissed.