Ajay Kumar vs State
2009 Latest Caselaw 4210 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                    CRL.REV.P. 24/2001


                    Judgment Reserved on:13th October, 2009
                    Judgment Delivered on: October 20, 2009


        AJAY KUMAR                                 ..... Petitioner

                          Through:    Mr.R.P.S. Sirohi, Advocate

                    versus

        STATE                                    ..... Respondent

                          Through:    Ms.Fizani Husain, 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 28.2.1989, the unfortunate life of victim

Radhey Shyam was lost in a bus accident. The said vehicle

was bus no.DEP 6776 being driven by the appellant Ajay

Kumar. The bus had hit the cyclist under the right rear

side tyre. He had succumbed to his death at the spot.

2. Vide judgment dated 13.9.2000, Ajay Kumar had

been convicted by the Court of the M.M. under Sections

279/304-A IPC. He had been sentenced to undergo RI for two

years and a fine of Rs.5,000/- in default of payment of fine SI

for 3 months for the offence under Section 304 A IPC. For the

offence under Section 279-A of the IPC, he had been

sentenced to undergo SI for 3 months and fine of Rs.1,000/- in

default of payment of fine SI 15 days.

3. In appeal vide impugned judgment dated

16.1.2001, the conviction of the appellant was maintained but

the sentence was reduced to RI for 1 year for the Section 304-

A IPC with a fine of Rs.1000/- in default of payment a fine to

undergo SI for 2 months. No modification was made in the

sentence imposed under Section 279 of the IPC.

4. It is this judgment which is the subject matter of

the present revision petition.

5. Learned counsel for the petitioner has urged that

both the Courts below have faulted in relying upon the

versions of PW-6 and PW-8, the purported eye witnesses; it is

submitted that PW-6 was having a dhaba which was on the

left side of the place of occurrence; PW-8 was a chance

witness and he had deposed that the cycle was behind the

offending bus; in these circumstances, it was not possible for

either of the two so called eye witnesses to have witnessed

the incident. The defence of the accused had all along been

that some other vehicle had hit the deceased; the mechanical

inspection report of the offending vehicle also does not

corroborate the eye witness account as set up by the

prosecution; scratches and blood marks had been noted on

the right side rear outer tyre of the bus; version of the eye

witness PW-6 is to the effect that the right side front wheel of

the bus had crushed the cycle; there is no explanation for this

discrepancy. The I.O. SI Ranbir Singh has also not been

examined for which no plausible explanation is forthcoming;

for this preposition reliance has been placed upon 2006

Crl.L.J. 1512 Chuni Lal vs. State of Haryana. It is argued that

in similar circumstances it had been held that the non-

examination of the I.O. in an accident case under Section 304-

A of the IPC would amount to a serious lapse/ omission on the

part of the prosecution; giving benefit of doubt to the

petitioner, he had been acquitted. Reliance has been placed

upon 2007 (2) Crimes 58 (SC) State of M.P. vs. Bacchudas @

Balram & Ors. to support the submission that where there are

variations in the versions of the witness, benefit of doubt has

to accrue in favour of the accused; the cardinal rule of

criminal justice being that wherever two views are possible

the one favouring the accused has to be followed. In the

alternate it has been submitted that even if this Court is not

willing to alter the conviction of the accused; the incident

having occurred almost two decade ago i.e. in the year 1989

and the accused not being a previous offender benefit of

probation be extended to him. For this proposition reliance

has been placed upon 2008 Crl.J 1458 State vs. Kaptan Singh.

6. Revisional powers of High Court under Sections

397 and 401 of the IPC are to be exercised to correct a

miscarriage of justice arising from a misconception of law,

irregularity of procedure and similar infirmities.

7. On the perusal of the record it is noted that the

first eye witness whose statement was recorded at the spot

itself is Sunder Lal PW-6. He on oath deposed that he has a

dhaba near the Koriya Pull. In the year 1989, date and

month he could not recollect, at about 9.30AM a bus driven

by the accused Ajay Kumar came from the front side of Fateh

Puri towards Koriya Pull at a high speed; a cyclist was also

coming from the same side; the bus came at a high speed and

the right side front wheel of the bus crushed the cyclist; the

bus stopped at a distance. The accused driver was

apprehended at the spot. The bus was seized vide exhibit

memo No.PW-6/A. His statement was recorded by the police.

At his instance the site plan was prepared. In his cross-

examination PW-6 has reiterated that his statement was

recorded at the spot by the police; the accused had been

apprehended by the pubic persons at the spot. He has

admitted that he is illiterate and his statement had not been

read over to him by the police. He has however categorically

reiterated that his statement was recorded by the police and

signed by him at the spot. His dhaba was about 15 steps

away from the spot, there was heavy rush on the road at that

time; he asserted that he had seen the incident. He denied

the suggestion that the accused had left the place after the

incident. He also denied the suggestion that he had not seen

the incident.

8. There was yet another eye witness and he is

Ashok Kumar Jain PW-8. PW-8 had deposed that on

28.2.1989, he was coming from Ashok Vihar on a two wheeler

scooter, at about 9.30AM in front of the Railway Station at the

S.P.Mukherji Marg a bus no.6767 came from the left and after

crossing him hit a cyclist at some distance in front of him. The

bus dragged the cyclist and the back side wheel of the bus ran

over the cyclist. The public raised alarm. The victim

succumbed to his death at the spot. In his cross-examination

he has stated that his scooter was ahead of the bus; he had

seen the accident at a distance of about 7-8 feet, 70-80

persons have been collected at the spot, he had given his

visiting card to the police. He had admitted that the cyclist

was on the right side and at the time of the accident, no traffic

was moving around.

9. Version of the prosecution has been hinged on

these two material witnesses i.e. the eye witness accounts of

PW-6 and PW-8. PW-6 is a natural witness having a dhaba on

the left side of the place where the incident had occurred. He

had admittedly witnessed the incident about 15 steps away;

time was at about 9.30AM in the morning; visibility was clear

being the early morning hour of the day. PW-6 was

admittedly on the left side of the road from where he had

seen the occurrence; his perceivability was clear; there is

nothing whatsoever which can be gathered from his version

that he could not see the occurrence from where he was

stationed. No such suggestion has also been given to him.

10. PW-8 was a chance witness. Like PW-6, he also

had no ulterior purpose or motive to implicate the accused;

he had no axe to grind. Admittedly his two wheeler scooter

was behind the offending bus when it overtook him from the

back side rashly and after crossing him immediately crushed

the cyclist. He had witnessed the incident at a distance of

about 7-8 feet.

11. The presence of the accused at the spot is fortified

by the suggestion given by learned defence counsel to PW-6

which was to the effect that the accused had left the place

after the incident thereby admitting that the accused was

present at the time of incident.

12. The defence of the accused under Section 313

Cr.P.C. was that he was not driving the bus at the time of the

accident; this was not suggested to either PW-6 or PW-8; in

fact a contrary suggestion has been given to PW-6 as

discussed supra. No evidence in defence has also been led.

13. The photographs taken at the spot have been

proved in the testimony of PW-9 HC Om Prakash. The said

photographs clearly depict that a Tata bus no. DEP 6776 is

stationed at the spot. Photographs of the victim taken at the

spot have also been perused. The bus had been seized vide

Ex.PW-6/A. The mechanical inspection report Ex.PW-2/A of the

vehicle shows scratches and blood marks on the right rear

outer tyre. Ocular version of PW-8 is also categorical that the

bus had dragged the cyclist and the back side wheel of the

bus crushed the cyclist which had resulted in his death; that is

how the scratch marks on right side outer tyre of the bus had

appeared.

14. It also has to be borne in mind that neither of the

two eye witnesses are in any manner related to the victim or

have any special sympathy for him. They are also not

enemical or ulteriorly motivated towards the accused. Both

the said witnesses are fully reliable and cogent, their versions

had given detailed graphic versions of the incident.

15. The non-examination of the I.O. would not entitle

the accused to a benefit; lapses of investigation should not

accrue to the benefit of the offender; criminal justice should

not be made a casualty for a wrong committed by the

Investigating Officer.

16. Prosecution has been able to establish that after

the offending bus hit the cyclist he was dragged upto a short

distance; the right rear wheel of the bus had crushed him; at

the time of the accident there was no traffic moving near the

cyclist; the bus was being driven at a high speed in a rash

manner. It is true that in judging whether a driver of a motor

vehicle is guilty of a rash or negligent act within the meaning

of Section 279 of the I.P.C., no abstract standard can be laid

down and the Court has to judge what is the amount of care

and circumspection which a prudent and reasonable man

would consider it to be sufficient having regard to all the

circumstances of the case. In the instant case from the

evidence gathered on record it can be said that Ajay Kumar

was both rash and negligent. He was the driver of a bus and

had lost control over his act resulting in his colliding with the

cyclist resulting in his death.

17. Conviction of the appellant calls for no

interference. On the proposition of the sentence imposed

upon the appellant, it is no doubt that the incident is almost

two decades old having occurred in the month of February,

1989. It is also not in dispute that the accused is a first

offender and has no other criminal background. The nominal

roll of the appellant shows that he had not suffered any

incarceration in this case. The fine imposed upon him stands

deposited.

18. While imposing a sentence, the first facet that

must be kept in mind is that the accused must realize that he

has committed the act which is not only harmful to the society

of which he forms an integral part but is also harmful for his

own future both as an individual and as a member of the

society. The second facet highlights the punitive deterrent

aspect of a sentence and the third facet highlights the

reformatory aspect of a sentence. In a modern civilized

society the reformatory aspect of the sentence is given great

importance; however a too lenient or a too harsh sentence,

both lose their efficaciousness. One does not deter and the

other may frustrate, thereby making the offender a hardened

criminal.

19. In this background having regard to the facts and

circumstances of the present case it would meet the ends of

justice if the sentence of imprisonment imposed under Section

304 A of the IPC which was imposed on 16.1.2001, is reduced

from one year to RI for 3 months. This would adequately meet

the ends of justice with a balance and due regard to the policy

of sentencing on both the aspects; i.e. of a punitive deterrent

sentence and a reformatory aspect of the sentence. Bail bond

and Surety bond of the petitioner is cancelled; he is directed

to suffer the remaining sentence. With this modification, the

revision petition is disposed of.

INDERMEET KAUR, J.

OCTOBER       20, 2009
`ns'