Tika Ram vs The State (Nct Of Delhi)
2009 Latest Caselaw 4512 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 30th October, 2009
                    Judgment Delivered on: 06th November, 2009


+                         CRL.R.P.985/2002

        TIKA RAM                               ..... Petitioner
                          Through:    Mr.Harish Malhotra, Sr.Adv. with
                                      Mr.Tanuj Khurana, Advocate.
                    versus


        THE STATE (NCT OF DELHI)                  ..... Respondent
                        Through:      Mr.Manoj Ohri, APP


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the Digest?
                                                     Yes

INDERMEET KAUR, J.

1. On 27.9.1994, the accident took place at the Shahid Bhagat

Singh Marg opposite Lady Harding Medical College; the victim

Veena Bawa was 39 years old; offending vehicle was a maruti van

bearing registration no.DL 3F 7345. Eye witness account of Shashi

Kant PW-1 and Om Prakash Kapoor PW-4 had been considered by

the trial court; so also the testimony of Archana Tyagi PW-7. The

husband of the victim Kuldeep Singh Bawa PW-2 and her brother

Kewal Kishan PW-5 had identified the dead body of Veena Bawa;

she had been declared as 'brought dead'; her MLC and post-

mortem report at the RML hospital were proved as Ex.PW-3/A and

Ex.PW-11/A respectively.The investigating officer HC Prem Singh

PW-6 in the course of the investigation had arrested the accused

and prepared the site plan. The mechanical inspection of the

vehicle had been got conducted.

2. Vide judgment of the trial court dated 4.5.2002 the petitioner

Tika Ram had been convicted under Section 279 and 304-A of the

IPC. Vide order of sentence dated 1.7.2002 he had been sentenced

to undergo SI for three months and to pay a fine of Rs.1000/-; in

default of payment of fine to undergo SI for 30 days for the offence

punishable under Section 279 of the IPC; for the offence punishable

under Section 304-A of the IPC he had been sentenced to undergo

SI for one year and to pay fine of Rs.4,000/-; in default of payment

of fine to undergo SI for two months.

3. Petitioner, dissatisfied with the orders of the trial court had

filed an appeal before the Additional Sessions Judge. Vide

judgment dated 5.10.2002 the Appellate court had upheld the

conviction of the petitioner under Section 279 and 304-A of the IPC;

appeal had been dismissed; no modification was made in the

sentence either.

4. Revision petition under Section 397/401 of the IPC has been

preferred before this court challenging this impugned judgment.

5. On behalf of the petitioner three broad submissions have

been addressed.

(I) It is pointed out that the testimony of PW-1 is suspect; in his

examination in chief he had stated that the time of the incident is

between 1.15 PM to 1.30 PM which does not corroborate the version

of the prosecution as has been borne out from the testimony of the

other eye witness namely PW-4, the version of PW-7 as also the

version of the investigating officer PW-6. All of them have stated

that the incident had occurred at 1.00 PM. There is also no

explanation as to why the statement of PW-1 had been recorded by

the investigating officer on 9.10.1994 when the incident had

occurred on 27.9.1994. Eye witness Ram Dayal had also not been

examined. PW-7 had categorically stated that the petitioner was

not the driver of the offending vehicle. The defence of the petitioner

has all along been that he had only removed the injured to the

hospital on humanitarian grounds. This defence finds mention even

in the cross-examination of the first witness i.e PW-1; this has been

his consistent stand. The mechanical inspection report Ex.PW-6/D

has evidenced damage on the vehicle; but this is for the reason

that the public had broken the windows of his car; this finds

mention in the statement of the petitioner recorded under Section

313 of the Cr.P.C.

(II) The second submission adduced by the learned counsel for

the petitioner is that the judgment of the Motor Accident Claim

Tribunal has been delivered on 27.2.2001 wherein a claim for

compensation had been made by the legal representatives of

Veena Bawa; the court had categorically held that there was no

evidence on record to hold that Tika Ram was responsible for the

accident or that the accident had occurred due to his rash or

negligent act; the claim of the petitioner had accordingly been

dismissed; this is the additional circumstance which the court may

taken into account.

(III) It has lastly been submitted that if this court is not inclined to

alter the conviction, a modification in the sentence is called for.

This is in view of the fact that petitioner has suffered a long and

protracted trial of almost 15 years. This is the solitary case which is

pending against him, he has two children and the family of his

deceased brother are also dependent upon him. Admittedly he had

removed the injured to the hospital. All these factors entitle the

petitioner to a sympathetic consideration and the benefit of

probation be considered. For this proposition, the counsel for the

petitioner has placed reliance upon a judgment of this court

reported as Mahabir Singh vs. The State 2000 (2) JCC 488. Reliance

has been placed upon another judgment of this court in State vs.

Kaptan Singh 2008 (1) JCC 397.

6. Arguments have been heard. Record has been perused.

7. The object of conferring powers of revision to the High Court

is to confer a power upon the superior criminal Courts a kind of

paternal or supervisory jurisdiction in order to correct a miscarriage

of justice arising from a misconception of law, irregularity of

procedure, neglect of proper precaution or apparent harshness of

treatment, which has resulted on the one hand in a miscarriage of

justice and on the other hand caused underserved hardship to

individuals.

8. There are two eye witnesses to this incident. Shashi Kant

Awasthi has been examined as PW-1. The victim Veena Bawa was

his colleague. As per his version on oath in court, the incident had

occurred on 27.9.1994 at about 1.15 to 1.30 PM. PW-1 was working

in a NDMC polyclinic at Shahid Bhagat Singh Marg; the incident

occurred at a distance of about 100 yards from where he was

standing; maruti van driven by the accused had hit the injured;

injured had been removed to the hospital in the vehicle of the

accused; he had not accompanied the victim. PW-1 denied the

suggestion that he was not an eye witness or that some other

vehicle had injured Veena Bawa. His version is categorical to the

effect that the white maruti van came from the side of Shivaji

Stadium at a very fast speed and hit against Veena Bawa. He has

not been shaken in his cross-examination.

9. Om Prakash Kapoor, the second eye-witness has been

examined as PW-4. He was driving a delivery van and while coming

from the side of Madras Hotel and going towards Shahid Bhagat

Singh Marg; he saw the offending vehicle coming from behind him

and overtake him at a very fast speed. It suddenly stopped with its

brakes screaming. On reaching the spot PW-4 saw that the vehicle

struck against a lady who was crossing the road. He has further

deposed that the front window shield of the maruti vehicle had also

been broken in this accident. He has further stated that he is not

sure if the accused was driving the vehicle at the relevant time. In

his lengthy cross-examination, he had stuck to his stand.

10. PW-6 not pointedly identifying the accused as the driver of

the offending vehicle has little relevance in view of the fact that the

accused has admitted that he was driving the maruti van; his

defence is that it was not his vehicle which had caused the

accident; he had only removed the injured to the hospital. Version

of PW-6 is however relevant on the score that he had noted that the

front window shield of the Maruti Vehicle had broken with the

impact.

11. Investigating officer HC Prem Singh is PW-6. He had recorded

the statement of the eye-witness namely PW-1 and PW-4. The

mechanical inspection report of the vehicle Ex.PW-6/D showed

fresh damage due to accident and the front window screen of the

vehicle had been found broken. This mechanical inspection was

conducted on 27.9.1994 and supports the oral version of PW-4.

12. There was yet another eye-witness Smt.Archana Tyagi

examined as PW-7. She was the employer of the present petitioner

and was sitting in the maruti van at the time when the accident had

occurred. She has on oath deposed that an accident had occurred

on 17.9.1994 at about 1 PM near the Madras Hotel but she cannot

say as to how the accident had occurred; she saw the injured lady

lying on the road; she has admitted that the petitioner Tika Ram

was driving their Maruti van but at the same time she has stated

that the accident had not been caused by this vehicle.

13. The submissions made before this court have been dealt with

in depth and detail by two facts finding courts below. The versions

of PW-1 and PW-4 i.e. both the eye-witnesses remained

unassailable. Through their testimony it has been established that

the accused was driving the vehicle at a very fast speed; it overtook

Pw-4 and after about 50 yards it came a screeching halt when the

brakes were applied. So also is the version of PW-1; he has also

categorically recited that the vehicle was being driven by the

petitioner at a fast speed.

14. Evidence of PW-1 and PW-4 inspire confidence; there is no

reason on the part of either to have deposed falsely for any ulterior

purpose; minor variations and discrepancies do tend to creep in,

keeping in view the fact that the powers of observation and

retention differ from individual to individual; reference to time is

never on a mathematical calculation; it is on a general impression.

Speed of the vehicle is one relevant factor amongst others to

determine whether the act is rash or negligent. Negligence is the

absence of due care and caution, whereas culpable rashness results

from a lack of circumspection.

15. Prosecution has been able to establish that because of the

fast speed of the vehicle the accused was not able to exercise due

control over it; in these circumstances he had lost control over the

vehicle resulting in the consequential collision. There was every

reason on the part of PW-7 of shield her driver; she was sitting in

the offending vehicle at that time; she was an interested witness

and did not disclose the whole truth; she has admitted that the

vehicle was driven by the accused; she has also admitted that the

accident had occurred in her presence and the victim was lying

injured on the road yet how it had happened and who was the

offender has not been disclosed by her. She was an eye-witness

but she has not come out with the full truth. Defence of the

accused that he had merely removed the injured to the hospital and

has no connection with the offence is unsustainable. Evidence has

been appreciated in the correct perspective by both the courts

below. Conviction of the accused calls for no interference.

16. The petitioner has however suffered a long and a protracted

trial. Incident is dating back to the year 1994 i.e. 15 years from

today. Nominal roll of the petitioner shows that the petitioner has

suffered incarceration of about one month and 18 days out of the

total sentence awarded to him.

17. The judgment of State vs. Kaptan Singh (supra) was a state

appeal against an acquittal order; parameters and considerations

weighing before a court dealing with an order of acquittal and

considerations to be kept in mind while dealing with an order of

conviction are different and distinct. The second judgment reported

in Mahabir Singh (supra) is also distinct on its own facts; it was a

conviction under Section 338 of the IPC with a maximum sentence

of three months

18. In Dalbir Singh vs. State AIR 2000 SC 1677 it has been held

by the Supreme Court that one prime consideration while

considering a sentence under Section 304-A of the IPC should be

deterrence. The Supreme Court has expressed grave concern over

the negligence of a professional driver causing death of a

pedestrian and the over lenient approach of the court in punishing

such offenders. It has also to be kept in mind in an offence under

this Section a term of imprisonment is not a must. The section

visualizes the possibility of an offence falling under it being

penalized by a mere fine as well. In estimating the sentence to be

passed against an accused in a case of causing death by negligence

the Court has to consider whether the negligent act which had

occasioned the death shows callousness on his part as regards the

risk to which he was exposing other persons; the severity of the

sentence must depend to a great extent on the degree of

callousness which is present in the conduct of the accused.

19. In the instant case, it is not in dispute that the petitioner

himself had removed the injured to the hospital; it was an humane

act. In this background, the ends of justice would well be met if the

sentence of imprisonment of RI for one year is reduced to a period

of RI for three months for the offence under Section 304-A of the

IPC. For the offence under Section 279 of the IPC the sentence is

reduced from SI for three months to SI for one month. No

modification is made in the fine imposed.

20. Bail bond and surety bond of the petitioner stand cancelled;

he is directed to surrender forthwith to suffer the remaining

sentence.

(INDERMEET KAUR) JUDGE 06th November, 2009 rb