Rama Nand Paswan vs State (Govt.Of Nct Delhi)
2009 Latest Caselaw 3094 Del

19

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.REV.P. 356/2009


RAMA NAND PASWAN                                      ..... Petitioner
              Through:               Mr.Mohinder Madan and
                                     Ms.Rashmi B. Singh, Advocate
          versus

STATE (GOVT OF NCT DELHI )            ..... Respondent
               Through:    Mr.Lovkesh Sawhney, APP for State

CORAM:

HON'BLE MR. JUSTICE G.S. SISTANI

    1. Whether reporters of local papers may be allowed to see the
       Judgment ?                                         YES
    2. To be referred to the Reporter or not?             YES
    3. Whether the Judgment should be reported in the Digest? YES

                     ORDER

%                     11.08.2009

G.S. SISTANI, J.

1. This is a petition under Section 397/401 of the Code of

Criminal Procedure, 1973 against the order dated

25.03.2009 passed by learned Additional Sessions Judge,

Delhi, in Criminal Appeal No.30/2008, upholding the

judgment dated 06.08.2008 and order on sentence dated

12.08.2008 passed by the learned MM, by virtue of which,

the petitioner was convicted under Section 279 read with

Section 304-A of the Indian Penal Code 1860. As per the

order on sentence dated 12.08.2008, the petitioner was

sentenced to undergo Simple Imprisonment for a period of

one year apart from fine of Rs.2000/- that was also imposed

upon him. In default of the payment of fine, the petitioner

was directed to undergo further SI for a period of one

month. As per the said order dated 12.08.2008, the fine

stands deposited by the petitioner.

2. The facts of the case as noticed by the learned Additional

Sessions Judge are that on the night intervening 3 rd and 4th

May, 2001, one Tata Tempo 407- bearing No. DL 1LC 6756,

was parked near the pavement on the Ring Road, Naraina

Flyover, Delhi. At about 4.00 a.m., one truck bearing No.DL

1G 0846, driven by the petitioner in a rash and negligent

manner, coming from the Dhaula Kuan side, hit the

stationery tempo from the back. The impact was so great

that one person was crushed under the tempo. At that time

Constable Fateh Singh happened to be on patrolling duty in

that area and he witnessed the entire incident. The

petitioner was apprehended at the spot and after due

investigation, charge sheet was filed. Post trial, the

petitioner was found guilty and was sentenced.

3. Learned counsel for the petitioner submits that the

judgment dated 06.02.2008 passed by the learned

Metropolitan Magistrate and the judgment dated

25.03.2009 passed by the learned Additional Sessions

Judge upholding the conviction of the petitioner, are bad in

law and based on inappropriate appreciation of the facts of

the case. Counsel further submits that the prosecution

examined the witnesses who were primarily formal

witnesses and the entire judgment has been based upon

the evidence of Mr. Fateh Singh, PW-2. However, there are

several contradictions in his statement and the same have

been ignored by the learned Courts below. It is submitted

that PW-2 in his examination-in-chief has deposed that he

took the petitioner to police station and handed him over to

the duty officer. This statement is contrary to the statement

of PW-11, investigating officer of the case who has deposed

that on the complaint of PW-2 a rukka was sent and FIR was

registered. PW-2 further deposed that the persons standing

in front of the tempo (deceased) told PW-2 that he was

standing to lookafter the tempo which is again contrary to

the report of the I.O., which states that the deceased was

sleeping in front of the tempo and the tempo was

punctured.

4. Learned counsel for the petitioner submits that statement

of the petitioner under Section 313 Cr.P.C. was also

recorded by the learned Trial Court, however, no

incriminating material was put to the petitioner and the

examination of the petitioner was rendered an empty

formality. Counsel further submits that the learned Sessions

Judge had failed to observe that the basic ingredients of the

offence under Section 279 read with Section 304-A of IPC

were not fulfilled. He submits that merely because the truck

was driven at a high speed, that by itself would not be the

act of the petitioner which may connect him to rash and

negligent driving, the basic ingredient of section 304-A, IPC.

5. Learned counsel for the petitioner submits that, however,

the petitioner does not wish to press the revision petition

on merits and submits that taking into consideration that

the petitioner has three minor children and besides he has

not been involved in any accident in the past, the sentence

awarded to the petitioner be reduced to the period already

undergone.

6. Per contra, learned APP for the State has submitted that

since the act of the petitioner has resulted in the death of a

person, the sentence should not be reduced to the period

already undergone.

7. I have heard learned counsels for both the parties. In the

facts of this case I find that on 4.5.2001, at about 4:00 a.m.,

an accident took place in which a tempo which was parked

on the Ring Road, Narayana Flyover, Delhi was hit by a

truck from the back. This resulted in the death of a person,

who was standing in front of the tempo. The learned MM

below observed that the petitioner was guilty under section

279 read with section 304-A of the IPC. The learned ASJ vide

order dated 25.03.2009 upheld the judgment passed by the

learned MM.

8. After some hearing in the matter, learned counsel for the

petitioner has submitted that he does not wish to press the

petition on merits and submits that in view of the fact that

the petitioner has three minor children and he is the only

bread winner of the family and he has no previous

conviction, the sentence of the petitioner be reduced to the

period already undergone. The learned APP for the State,

while opposing, has also addressed his arguments only on

this short issue „as to whether the sentence awarded to the

petitioner under section 279 read with section 304-A of the

IPC, be reduced to the period already undergone‟.

9. It is seen that section 304-A, IPC applies to cases where

there is no intention to cause death and no knowledge that

the act done, in all probabilities, will cause death. This

provision is directed at offences outside the range of

Sections 299 and 300 IPC, and applies only to such acts

which are rash and negligent and are directly the cause of

death of another person. Negligence and rashness are

essential elements under Section 304-A. (Naresh Giri Vs.

State Of M. P. reported at (2008) 1 SCC 791).

10. In the case of Dalbir Singh Vs. State of Haryana

reported at (2000) 5 SCC 82, the Apex Court has dealt

with the question relating to the quantum of sentence,

which may be awarded in cases involving death of a person

due to rash or negligent driving. It has been held that an

ever increasing number of cases of rash and negligent

driving require that the Courts be stern in imposing

sentence in such offences. It was held as under:

"13. ...... 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 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 the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."

11. In the case of Manish Jalan Vs. State of Karnataka,

reported at (2008) 8 SCC 225, the Apex Court has held

that while awarding sentence under section 304-A, IPC, the

Court should also consider whether the person found guilty

of the offence was under the influence of alcohol or not at

the time of the commission of offence. It was held:

"16. True that in the instant case the appellant has been found to be guilty of offences punishable under Sections 279 and 304-A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of a precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment.

18. Accordingly, the conviction of the appellant under Sections 279 and 304-A IPC is maintained.

However, the substantive sentence of imprisonment is reduced to the period already undergone."

12. In Rattan Singh v. State of Punjab reported at (1979) 4

SCC 719, the Supreme Court has held:

"5. Nevertheless, sentencing must have a policy of correction. This driver, if he has - to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. .........."

13. Applying the settled position of law, I find that as per the

learned ASJ, it has been established against the petitioner

that he was driving a truck at a high speed and that he is

responsible for having caused an accident with a stationery

tempo, on the Nariana Flyover, Delhi. It is further proved

that the impact was so great that the tempo moved a few

paces ahead and a person standing in front of the tempo

was crushed under the tempo. Applying the principles laid

down in Dalbir Singh (supra) that Courts should be

sensitive to the plight of the victims and their family

members and that the rising number of road accidents

needs to be curbed and punishment should be so awarded

that it creates a deterrence. In my considered opinion,

there is merit in the contention of learned counsel for the

State that in view of the rash and negligent act of the

petitioner that has led to the death of an innocent person,

the petitioner cannot be released on the basis of the

sentence undergone by him. However, at the same time, in

light of the decision rendered in the case of Manish Jalan

(supra), I find that there is no allegation against the

petitioner that he was driving the truck under the influence

of alcohol. In the case of Manish Jalan (supra) the Court

took into account the fact that there was no allegation

against the appellant that at the time of accident, he was

under the influence of liquor or any other substance

impairing his driving skills. It was a rash and negligent act

simpliciter and not a case of driving in an inebriated

condition which is, undoubtedly despicable aggravated

offence warranting stricter and harsher punishment.

Further it has been submitted before me that the accident

actually occurred due to the fault of some other vehicle and

the petitioner had to immediately move the truck on the

side where the tempo was parked. I also find that as per the

latest nominal roll dated 20.07.2009 filed on record, the

unexpired portion of the sentence of the petitioner is seven

(7) months. His conduct in the jail has been satisfactory and

no other case has been pending against him. It has been

submitted before me by the learned counsel that the

petitioner has three (3) minor children, who want his

immediate care and attention and he is the sole bread

winner of the family. Thus, without being overtly

sympathetic to the petitioner, in my considered opinion, the

interest of justice would be met if the sentence of the

petitioner is reduced from one year of Simple Imprisonment

to eight months of Simple Imprisonment. Accordingly, the

order dated 25.03.2009 passed by the learned Additional

Sessions Judge, Delhi, in Criminal Appeal No.30/2008,

upholding the judgment dated 06.08.2008, is upheld.

However the order on sentence is modified to the extent

that the sentence awarded to the petitioner is reduced form

a period of twelve months to eight months of SI.

14. With above modification, revision petition is disposed of.

G.S. SISTANI, J.

August 11, 2009 'ssn'