Shriniwas vs State
2007 Latest Caselaw 1304 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The present revision petition challenges an order-dated 4.11.2006 passed by the Ld. Additional sessions Judge (ASJ). The order affirmed conviction and sentence for the offences committed under Sections 279, and 304A of Indian Penal code (IPC).

2. The brief facts necessary to decide this petition are that; on 11.10.1997 allegedly, information was received at Police station Sultan Puri that an accident had taken place and a child lay dead at village Karala, on Madan Pur road, opposite a water tank. The police rushed to the spot; they saw one stationery tempo-bearing No. DL-1L- A-4392. On its left side, under the front wheel the body of the child (hereafter referred to as the deceased) Manish Kumar S/o Shri. Bhagwan was found. The alleged accident was caused while the petitioner was driving in reverse gear. Smt. Nirmala Devi, the mother of the deceased (hereafter "the complainant") was present at the spot.

3. The SI recorded the statement of the complainant and the father of the deceased. A case was registered, the Petitioner was arrested and the vehicle was seized. The petitioner was charged with committing offences under Section 279, 304A of the Indian Penal Code (IPC).

4. The prosecution examined 8 witnesses in support of the case. The Learned Metropolitan magistrate (trial Court) by order dated 25.05.2004 convicted the Petitioner under Section 279/304A IPC read with Section 3/181 of the Motor Vehicles Act. The accused was sentenced to rigorous imprisonment for a period of 6 months and a fine of Rs. 500/- for the offence under Section 279 IPC and a further 2 year Rigorous imprisonment and a fine of Rs. 1000/- for the offence under Section 304A and a Simple imprisonment for one month and a fine of Rs. 200/- for the offence under Section 3/181 of the Motor Vehicle Act. All the sentences were to run concurrently.

5. The petitioner aggrieved by this order preferred an appeal before the Learned ASJ. The appellate Court modified the sentenced imposed by the trial Court. The extracts of the order are as follows;

Taking into account the age, social and economic and family background of the accused as well as the fact that he was not a previous convict. I modify the same to the extent that the rigorous imprisonment passed by the Ld. M.M. for the offence under Section 304A IPC is reduced from two years to one year and RI of six months under Section 279 IPC is reduced to three months. The appellant/convict is sentenced to undergo RI for a period of 3 months and to pay a fine of Rs. 500/- for the offence under Section 279 IPC and further to undergo RI for one year and to pay a fine of Rs. 1000/- for the offence under Section 304A IPC. Since the fine has already been paid before the court of the learned Metropolitan magistrate, there is no question of imposing sentence on default of payment of fine

6. The learned Counsel for the petitioner contended that the charges were manipulated one and all the facts were false. There are two versions in the I.O's statements. Counsel submitted that in the challan the IO stated that the accident took place at 6pm and as per the first version when the IO reached the spot at 6.45pm, the body of the deceased was found behind the left front wheel. In the other version he stated that the body was found under the wheel of the vehicle. The counsel also relied on the statement of the complainant, where she stated that the boy did not die at the spot but was removed to M.R.S. hospital with injuries due to the alleged accident.

7. Learned Counsel submitted that there were many discrepancies in the case. It is evident from the complainant's statement that the boy did not die on the spot but was removed to the hospital and when declared dead. he was brought back and kept under the stationery tempo. Photographs were taken at 10p.m and the Photographer was not examined. Therefore the petitioner is entitled to benefit under Section 114(g) of the Evidence Act. Learned Counsel further urged that PW-3 was a planted witness. The doctors who treated the child were not examined. Learned Counsel further submitted that there is no cogent evidence to prove that the Petitioner was rash and negligent and he had not taken the extra care while reversing the vehicle.

8. The learned Counsel submitted that the complainant did not depose about the right colour of the alleged vehicle. The blood sample from the vehicle were not collected and it is not reported that the tyres of the vehicle had any bloodstains. The counsel contended that there were no eyewitnesses to the incident.

9. Learned Counsel submitted that even if the facts alleged, viz the Petitioner having caused death while reversing the vehicle, were be assumed, that did not indicate criminal negligence, or a rash and negligent act. Counsel relied upon the judgment reported as Mohammed Aynuddin @ Miyam v. State of A.P. to say that criminal negligence is failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public or to any individual in particular. It was submitted that evidence showing that the petitioner did not exercise such reasonable care is lacking.

10. PW-1 and PW-3 deposed, and were cross examined about the incident. They were eyewitnesses; they supported the prosecution story and also identified the Petitioner. PW-1, apparently illiterate and consequently was unable to give the vehicle number. This was not a lacuna, because PW-3 was able to do so. The trial court has recorded that the petitioner did not dispute his identity as the driver of the concerned vehicle, in the statement recorded under Section 281. These, taken together with other evidence and material circumstances, led the Courts below to convict the Petitioner; the sentence imposed by the trial Court was modified by the Appellate Court.

11. I have considered judgments of the courts below. The findings are to the effect that while reversing a tempo, the Petitioner ran over Manish, the young six year old son of PW-1; he died. There cannot be any formula or strait jacket format to say what is a rash and negligent act. Facts and attendant circumstances of each case invariably dictate the course of findings by the Court, as they ought to. Thus, the speed of a vehicle or the demenour of its driver may define whether he drove negligently in one case; in another, such facts may be entirely irrelevant. Here the Petitioner was found to have caused death while reversing the vehicle. It was incumbent for him - once PW-1 and PW-3 deposed about the circumstances of the accident, to lead credible evidence or at least disclose that there were reasonable doubts about his negligent acts, or that he acted with due care. The Courts below took all these and concluded that he was guilty.

12. Revisional jurisdiction, against appellate judgments, do not permit the High Court to second guess and substitute its findings, on facts. The jurisdiction can be correctly invoked to cure glaring irregularities, or illegalities, or improper exercise of jurisdiction, by the Courts. If these bounds are not respected, the High Courts would be transforming themselves into second appellate Courts, contrary to Parliamentary mandate.

13. I have carefully examined the judgments of the Courts below, and the contentions of the Petitioner. The submissions on his behalf do not point to any glaring irregularity in the approach of the Courts below or their findings. As regards sentence too, the approach adopted by the ASJ is correct. I do not find any infirmity with it.

14. For the above reasons, this revision must fail. The Petitioner shall surrender within four weeks, to the Jail Superintendent to serve rest of his sentence. The petition is dismissed subject to the above terms. dusty.