Sabir vs The State(Nct Of Delhi)
2009 Latest Caselaw 4392 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment: 29th October, 2009

+                           CRL.Rev.P.No.1044/2002

        SABIR                                ..... Petitioner
                            Through:    Mr.Rajesh Mahajan, 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. (Oral)

1. Vide impugned orders dated 17.8.2002, learned

Metropolitan Magistrate had convicted the petitioner Sabir for the

offence punishable under Section 304-A and 279 of the IPC. Vide

order of sentence dated 19.8.2002 he had been sentenced to

undergo RI for one year and to a pay a fine of Rs.3000/-; in default

of payment of fine to undergo SI for one month for the offence

punishable under Section 304-A of the IPC; RI for a period of six

months and fine of Rs.1000/-, in default of payment of fine to

undergo SI for one month for the offence punishable under Section

279 of the IPC.

2. The appeal before the Sessions Judge had been dismissed

vide order dated 9.10.2002. Sentence under Section 279 of the IPC

had been set aside; no modification was made in the sentence

otherwise imposed.

3. Vipin Mishra PW-6 was the eye-witness to the incident of this

case. On 23.12.1992, he was running a shop in the name and

style of Aman Paints and Hardware. At about 2.30 PM while

coming out from Fauzi Dhaba he saw a truck no. HR29B 3775

driven by Sabir in a rash and negligent manner hit a cyclist. The

cyclist got imbalanced; the truck crushed the cyclist. The truck

driver fled away from the spot. Statement of the eye-witness

Ex.PW-6/A was recorded.

4. Ct.Shyam Bir PW-8 posted at Govindpuri on the fateful day

while on duty at the Masjid on Andheria Mor i.e. in the area of the

accident, found one cyclist lying crushed on his head. He rushed

towards Kalkaji Mandir side in which direction the truck had sped.

PW-8 managed to overpower the vehicle and the driver. The

driver of the truck was brought back to the spot where he was

duly identified.

5. The post-mortem on the dead body was conducted by

Dr.J.N.Tirki whose signatures had been identified on the post-

mortem report Ex.PW-7/A by the concerned record clerk.

Mechanical inspection report of the truck is Ex.PW-4/A. Both the

courts below did not find the version of DW-1 credible.

6. Testimony of PW-6 remains unrebutted; he had identified

the accused as the driver of the offending bus. No suggestion has

been given to PW-6 that he is deposing falsely for any ulterior

motive to implicate the accused. The bus and driver had been

apprehended after chase by PW-8.

7. The counsel for the petitioner has in fact not challenged the

conviction. He has prayed for modification of the sentence.

8. Nominal roll of the petitioner shows that he has suffered a

sentence of a little more than seven months; the unexpired

portion being about four months and 28 days, out of the

substantive sentence of one year RI awarded to him.

9. In Jagdish Chander vs. State of Delhi (1973) 2 SCC 203 the

court while considering the aspect of sentence of a convict having

been convicted under Section 304-A of the IPC and the offence

committed dating back to a period of almost eight years from the

date when his appeal was heard; it was inter alia held:

"...........To send the appellant back to Jail to serve the sentence of 6 months after 8 years seems to us to be highly unjust for the kind of offence which has been upheld against him by the three courts below. It is unlikely to have any reformatory effect on him. Harassment of a criminal trial for more than 8 years and the expense which he must have incurred, in our opinion, can legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time. The appellant is stated to have served out only three weeks of imprisonment but on a consideration of all the relevant circumstances of the case we think it would be just and proper to reduce the sentence of imprisonment to that already undergone but to increase the sentence of fine from Rs.500 to 700. ......"

10. In this background, keeping in view the period of

incarceration already suffered by the petitioner; the offence

relatable to the year 1992 i.e. almost 17 years back, petitioner is

sentenced to undergo the sentence already suffered by him.

Petition disposed of.

(INDERMEET KAUR) JUDGE

29th October, 2009 rb