Baldev vs State
2009 Latest Caselaw 4412 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Criminal Revision Petition No.1000/2002

                                    Reserved on      : 28.10.2009
                                    Date of decision : 30.10.2009


            BALDEV                                ..... Petitioner

                                    Through: Mr.Anurag Jain, Advocate

                                    versus

            STATE                                 ..... 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.

On 4.2.1995, Aseem while coming from Block No.15, Trilok

Puri was hit by bus No. DL 1P-1947 driven by the petitioner, Baldev. The

bus was coming at a fast speed; in a rash and negligent manner it

struck against the victim. Aseem died on the spot. Incident occurred at

about 3.55PM.

2. Eye witness account of this version was given by Noor Mohd.

PW1 whose statement Ex. PW 1/A was recorded. On this statement, FIR

No.79/1995, Ex.PW-7/A was registered by HC Babulal PW7 under

Section 279/304-A IPC at PS Trilok Puri.

3. The injured had been medically examined by Dr. A. K. Jain

PW8 vide MLC Ex. Pw 8/A, he was brought declared dead. His post

mortem was conducted by Dr.S.C. Acharya PW-6 vide report PW-6/A.

Injuries were opined to be ante mortem injuries caused by a blunt force

impact. Dead body was identified by Kallan PW3 & Kusum PW11.

4. Investigation of the case was marked to SI Mahi Pal PW-14,

who reached the spot along with Ct. Raj Kumar PW-13. Notice under

Section 133 of the Motor Vehicles Act was issued to the owner of the

bus Shivlangum PW-5. The said notice is Ex.PW-14/C. Accused had

been produced before the Investigating Officer at the instance of PW-5.

The bus was impounded and thereafter released on superdari vide

superdiginama Ex.PW-5/A.

5. Another eye witness to the incident was Tehseen Ahmed

PW-10. The mechanical inspection of the bus was conducted by

Sikaidar Nath PW-9 and report Ex.PW-9/A had opined that no fresh

damage is reported on the bus.

6. Trial Judge vide judgment dated 23.3.2002 had convicted the

petitioner under Sections 279/304-A of the IPC. Vide order of sentence

dated 26.3.2002, he had been sentenced to undergo RI for a period of

one year and fine of Rs.200 for the offence under Section 304-A IPC; for

the offence under Section 279 IPC he had been sentenced to undergo

RI for 3 months and a fine of Rs.500 in default of payment of fine to

undergo SI for three months.

7. In appeal the Additional Sessions Judge had maintained the

conviction as also the sentence.

8. Arguments addressed by the learned counsel for the

petitioner are as follows :-

(i) Testimony of PW-1 is suspect; in his cross-

examination he has admitted that he does not know

English, how he could read the alphabets DL 1P on

the bus is not answered;

(ii) PW-14 and PW-13 have admitted that when they

had reached the spot they did not meet any eye

witness including PW-1;

(iii) the bus driver had run away from the spot; he had

been arrested on the following day; no judicial TIP had

been conducted; his identity is in dispute;

(iv) PW-1 knew the victim Aseem; his conduct is

unnatural; admittedly he did not remove Aseem to

the hospital and neither did he inform any close

relative of the victim;

(v) Ex.PW-1/A shows that PW-1 can identify the bus

driver; yet the name of the bus driver had not been

given; PW-1 is a planted witness.

(vi) PW-1 has admitted that his duty hours were from

8.00AM -5.00PM; incident had occurred at about

3.55PM; it is a strange co-incidence that he was on

leave on that day;

(vii) PW-1 in his cross-examination has admitted that

the bus had collided with the pulia; this version is

contrary to the version of PW-1 in his examination-in-

chief;

(viii) Mechanical inspection report Ex.PW-9/A had

noted no fresh damage on the bus which falsifies the

version of the prosecution;

(ix) PW-3 had removed the injured to the hospital; he

has also not whispered a word about the presence of

PW-1 at the spot;

(x) PW10 the second eyewitness has not identified the

petitioner in Court.

9. In the alternate it is submitted that if these submissions do

not find favour with the Court and the conviction is not set aside, on the

quantum of sentence it has been submitted that the offence is relatable

to a period which goes back to 15 years; the petitioner is a widower

with a blind mother, he has three unmarried daughters and one son; he

has already suffered incarceration for about 25 days. Attention has

been drawn to Section 304-A IPC; the intention of the legislature can

well be gathered from the fact that this offence is punishable with

sentence of imprisonment or fine; ends of justice would be met in this

case if the sentence is altered to one of fine or petitioner is given the

benefit of probation.

10. The High Court in its revisional powers under section 397 and

its inherent powers under section 482 of the CrPC will interfere only

when there is a glaring defect of a serious nature which has resulted in

a grave failure of justice or where there is a glaring defect in the

procedure or a manifest error on a point of law which has resulted in a

miscarriage of justice; in other words, it is an illegality of such a nature

which would amount to an abuse of the process of the Court which can

become the subject matter of such proceedings.

11. In the instant case there are two concurrent findings of fact

by two Courts below. Both the said Courts have appreciated the

testimony of the eye witness Noor Mohd. PW-1 in detail. PW-1 was a

resident of 15/213 Trilok Puri, i.e. the same block where the accident

had occurred; that is how he knew the victim Aseem who was also a

resident of the same area; categorical deposition of PW-1 in his

examination-in-chief is that the accident occurred because of the

negligent driving by the bus driver which coming at a high speed struck

against the boy with his side, due to which the child died on the spot.

Number of bus has been given by him as 1947. In his cross-

examination he has admitted that he does not know English. A person

not conversant with the English language can well read number; the

two have no co-relation. Even otherwise no suggestion has been given

to this witness to this effect and neither has this witness been

confronted with his earlier statement Ex.PW-1/A recorded before the

Investigating Officer; submission of the defence counsel that in Ex.PW-

1/A, PW-1, he had detailed the alphabets i.e. DL- IP, thus has no force.

In his cross-examination PW-1 has stated that he had seen the accused

at the time of the accident as also on other occasions as he drives the

bus in the same locality where PW-1 resides; PW-1 witnessed the

incident at a distance of about 20 feet; he has stated that he has no

personal relations with the father of the deceased.

12. Incident had occurred at about 3.55PM; injured had forth

been removed to the hospital, the first DD entry about this incident had

been recorded at 4.06PM vide DD No.15 which was marked to PW-14.

PW-14 along with PW-13 had reached the spot where they had learnt

that the injured have been removed to Safdar Jung hospital. On their

return at the spot statement of PW-1 was recorded and the rukka was

sent at 6.06PM; investigation was prompt; there is no delay; submission

that the PW-1 has been planted as a witness has no force. Testimony of

PW-1 has been further corroborated by the site plan Ex.PW-14/B; point

`Xa' is the place where the accident had occurred.

13. In the lengthy cross-examination of PW-1 he has stuck to his

stand; his version in cross-examination is not different from that given

in his examination-in-chief. There is no ulterior purpose or motive as to

why he would depose against the accused, no such suggestion has also

been given to him.

14. PW-1 was familiar with the accused; having seen him driving

the same bus in the same locality; TIP in these circumstances was not

necessary.

15. The owner of the bus had come into witness box as PW-5

pursuant to Ex.PW-14/C; he had on the same document replied that the

driver of the fateful bus i.e. DL-1P-1947 on 4.2.1995 was Baldev. On

oath PW-5 has corroborated this version. PW-10 another eye witness

although hostile on the identity of the accused; yet has categorically

stated that the number of the bus which had caused the accident and

the resultant death of Assem was 1947. In his statement under Section

313 of the Cr.P.C. the petitioner has stated that the accident was not

caused by my bus no. DL-1P-1947 on 4.2.1995, thereby impliedly

admitting that he was driving the said bus on that day. DW-1 a

neighbour in his cross-examination has also admitted that Baldev used

to drive the bus owned by a South Indian; the owner of the bus is

Shivlangum PW-5; his name is suggestive of him being a South Indian.

No dispute remains on the identity of the accused.

16. Mechanical inspection report had noted no fresh damage on

the bus obviously for the reason that the bus had collided with a

pedestrian; there was no force or impact suffered by the bus; conduct

of PW-1 in not removing the injured to the hospital is not unnatural; it is

not as if the injured remained lying at the spot; he had forthwith been

given medical aid and had been removed to the hospital. PW3 had only

identified the victim.

17. The impugned judgment calls for no interference.

18. However, on the quantum of sentence keeping in view the

fact that the incident had occurred 15 years ago i.e. more than 1-1/2

decade from today; petitioner being a widower who has to take care of

three unmarried daughters, one son and a blind mother; Court is

inclined to modify the sentence.

19. Policy of sentencing is reformatory, deterrent and punitive;

keeping in view the nature of the offence as is in this case, a balance

has to be maintained between the deterrent and reformatory aspect of

the sentence, too lenient or too harsh a sentence may lose its

efficaciousness.

20. The ends of justice would be met if the sentence awarded to

the petitioner of one year under Section 304-A of the IPC is reduced to

a sentence of three months; no modification is made in the sentence of

fine imposed under Section 304-A; for the offence under Section 279 of

the IPC the sentence is reduced from RI 3 months to RI one month; no

modification is made on the fine imposed.

21. Bail bond and surety bond are cancelled; petitioner is

directed to surrender to suffer the remaining sentence which is

inclusive of the sentence already suffered by him. Petition is disposed

of in the above terms.

INDERMEET KAUR, J.

OCTOBER       30th, 2009
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