Narender Singh vs State
2005 Latest Caselaw 68 Del

JUDGMENT

Manju Goel, J.

1. This revision petition is under Sections 397/401 read with Section 482 Cr.P.C. against the order and judgment dated 22nd April, 2004 passed inCriminal Appeal No. 408/2002 passed by learned Sessions Judge, New Delhi in thecase of FIR No. 297/95 under Sections 279/304-A of the Indian Penal Code (inshort 'IPC').

2. The facts as they appear from the judgment of Ms. Mamta Sehgal, AdditionalSessions Judge is that the bus bearing No.DL-1P-2979 on 15.8.1995 at around9.00 p.m., plying on route No. 521 came at fast speed and took a sharp turn atShivaji Stadium and hit the pedestrian on account of which he fell down andwhen the injured was brought to the hospital he was declared brought dead. Thedriver of the bus ran away from the spot fearing apprehension of assault by themembers of the public. A notice under Section 133 of the Motor Vehicle Act wasserved upon the owner of the vehicle on which the name of the accused/petitioner- Narender Singh- was given by the owner. A post mortem wasdone on the body of the deceased and after the completion of other formalitiesof investigation the challan was filed. The accused was charged under Sections 279/304A IPC and was convicted by the learned Metropolitan Magistrate. He wassentenced to SI for 6 months and fine of Rs. 1,000/- under Section 279 IPC andSI for 1-1/2 years nd fine of Rs. 4,000/- for the offence under Section 304A IPC. The conviction and sentence were maintained in appeal before the court ofSessions.

3. Before this Court it is contented on behalf of the learned counsel for the petitioner that the doctor who conducted the post mortem examination has notbeen produced in court and that the principal witness, namely, conductor of thebus has also not bee produced and, therefore, the conviction cannot besustained. This has led the court to go through the evidence on record.Before the Metropolitan Magistrate, the prosecution produced six witnesses.PW-1 is the Constable who proves the recovery memo dat d 17.8.1995 in respectof the seizure of the driving license of the petitioner which is Exh.PW-1/A.PW-2, Shri Baldev Singh, is the eye-witness to the accident. PW-3 is a clerkof the Lady Harding Hospital where the post mortem was conducted. He proved te post mortem report by proving the signatures of Dr.J. Singh who conductedthe post mortem but had left the hospital and his whereabouts were not known tothe hospital staff. PW-4 is the Sub-Inspector of Police Station Mandir Margwho reached the spot o receipt of the DD entry in respect of the accident on15.8.1995 and recorded the statement of Baldev Singh, PW-2 who was available atthe spot. He also made the investigation in the case but he was transferredbefore the challan could be filed. PW-5 is SI Rameshwar Dass who recorded theFIR on the basis of a Rucca from SI Dalip Kumar, PW-4. PW-6 is the person whoconducted the mechanical inspection of the bus No.DL-1P-2979 and prepared thereport Exh.PW-6/A. PW-7 is SI Ashok Kumar who completed the in estigation inthe case.

4. The most important witness is the eye-witness Baldev Singh. He has deposedthat while he was taking a stroll in the night after his dinner at the relevantplace he saw the offending bus coming from the side of Connaught Place at avery high speed of ab ut 90 km. Per hour and as it was turning it struckagainst a pedestrian and thereafter the driver instead of stopping the bus tookit inside the bus terminal and ran away from the spot. Learned counsel for the petitioner has disputed the veracity of this witness by saying that thiswitness in his cross-examination has stated that he saw the bus coming from adistance of 10 ft. and during this period he could not have assessed the speedof the bus as 90 km. per hour. This, in my opinion, is not a very ser ousdiscrepancy. What matters is not the speed of the bus as 90 k.m.per hour.What is important is to prove that the speed of the bus was rather high. Ithas to be noticed that the bus was taking a turn to enter the terminal and itwas all the more essen ial for the driver to be more cautious than on astraight road.

5. The other objection of the learned counsel for the petitioner is that thedoctor who conducted the post mortem examination was not examined. It was notthe case of the accused-petitioner anywhere that the pedestrian had collapsedon account of any re son other than the impact of the bust striking him. Thepost mortem report says that the cause of death was '' Haemorrhegic shockconsequent upon multiple injuries to internal organs like liver, lung andspleen etc. along with Cerebral Damage due to blun force impact which could becaused by a vehicular accident as alleged. All the injuries were anti-mortemin nature and fresh in duration''.

6. Learned counsel for the petitioner refers to the judgment in the case ofSuresh Kumar v. State reported as 1998 (3) CCCases HC 52 in which aconviction by the trial court in an offence under Sections 279/304A IPC was setaside and the accused was acqu tted. It was observed in that judgment that thestatement of the witnesses had been recorded seven years after the accident andthe nature of injuries, time and cause of death had not been proved on recordand the post mortem report had also not been pro ed and, therefore, theconviction could not be sustained. In the present case the post mortem reporthas been proved and the eye witness has not faulted even once in the witnessbox. He was examined in court within two years of the accident and it is unlkely that having witnessed such a serious event, he would forget the details ofthe incident.

7. There being an eye-witness in the case who saw the bus striking the victimand the victim has been declared brought dead on being brought to the hospitalfrom the spot, not much remains to establish that the death was caused by bluntforce applied by he bus in striking the pedestrian.

8. So far as the sentence is concerned, the learned counsel for the state reliesupon the judgment of the Supreme Court in the case of Dalbir Singh v. Stateof Haryana and Ors. reported in 2000 Cr.L.J. 2283 in which the Hon'bleSupreme Court has expres ed grave concern over the negligence of a professionaldriver causing death of a pedestrian and over the lenient approach of the courtin punishing such offenders.

9. The judgment disapproves the application of Probation of Offenders Act forsuch offences. In the word of the Supreme Court:-

'' 13. Bearing in mind thegalloping trend in road accidents in India and the devastating consequencesvisiting the victims and their families, Criminal Courts cannot treat thenature of the offence under S. 304, I.P.C. as attracting the benevolent proviions of S. 4 of the PO Act. While considering the quantum of sentence, to beimposed for the offence of causing death by rash or negligent driving ofautomobiles, one of the prime considerations should be deterrence. Aprofessional driver pedals the accel rator of the automobile almost throughouthis working hours. He must constantly inform himself that he cannot afford tohave a single moment of laxity or inattentiveness when his leg is on the pedealof a vehicle in locomotion. He cannot and should not t ke a chance thinking that a rash driving need not necessarily cause any accident; or even if anyaccident 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 latly 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 theoffence for causing death of a human being due to his callous driving ofvehicle he cannot escape from jail sentence. This is the role which the Courtscan play, particularly at the level of trial Courts, for lessening the highrate of motor accidents due to callous driving of automobiles.''

10. There is absolutely no force in the revision petition and the conviction hasto be maintained. The revision petition is accordingly dismissed.