Sudhir Gupta vs State Govt. Of Nct Of Delhi
2010 Latest Caselaw 4478 Del

14
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.REV.P. 426/2010

       SUDHIR GUPTA                  ..... Petitioner
                             Through      Mr. V.S. Yadav, Adv.

                     versus

       STATE GOVT. OF NCT OF DELHI       .... Respondent
                       Through     Mr. Arvind Kumar Gupta, APP.
                                   SI Mukesh Kumar.
       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                              ORDER

% 23.09.2010

1. I have heard the learned counsel for the petitioner and the

learned Additional Public Prosecutor in this revision petition which is

directed against the judgment dated 1st June, 2010 passed by the

Additional Sessions Judge dismissing the appeal of the petitioner against

conviction under Sections 279/304-A Indian Penal Code, 1860 (IPC for

short). The appellant has been sentenced to undergo rigorous

imprisonment of one year and fine of Rs. 5,000/- and in default of

payment of fine, to undergo simple imprisonment of three months. Out

of the fine amount, Rs. 4,400/- has been directed to be paid to the legal

heirs of the deceased.

Criminal Revision Petition 426/2010 Page 1

2. Two contentions have been raised by the counsel for the

petitioner. Firstly, that the statement of PW-1, Traffic Inspector Shyam

Sunder should not have been taken into consideration both by the trial

court and the appellate court in view of his statement under Section 161

Code of Criminal Procedure, 1973 (Code for short). It is stated that PW-

1, traffic inspector Shyam Sunder has gone beyond what was stated by

him before the police as recorded in his statement under Section 161 of

the Code Ex.PW1/DA. As per Ex.PW1/DA, traffic inspector Shyam Sunder

is not an eye witness to the accident. Secondly, it is submitted that mere

fast driving does not prove rash and negligent driving on the part of the

petitioner.

3. PW-1, traffic inspector Shyam Sunder in his statement recorded in

the court has stated that he was an eye witness to the accident and had

seen the truck number HR-10GA-0178 hitting the scooter bearing

number DL-7S-F-7199. He has stated that the lady pillion rider got

crushed under the said truck and the scooterist, who was driving the

scooter sustained injuries. Learned defense counsel in the cross-

examining, had suggested to the said witness that he had not seen the

accident. He had also asked PW-1, traffic inspector Shyam Sunder

Criminal Revision Petition 426/2010 Page 2 whether his statement was recorded by the police. PW-1, traffic

inspector Shyam Sunder has stated that his statement was recorded

only once by the Investigating Officer and was marked Ex.PW1/DA. The

contradictions and specific portions of Ex.PW1/DA were not put and

confronted to the said witness. PW-5, Investigating Officer-Sub

Inspector Rajiv Kumar was cross examined in respect of the statement

Ex.PW-1/DA of PW-1, traffic inspector Shyam Sunder, which was

recorded by him. It has been stated by PW-5, Rajiv Kumar as under:-

"After interrogating Insp. Shyam Sunder Kaushik I felt that he had seen the accident. As complt. was also had seen the accident hence I have not recorded the statement of Insp. Shyam Sunder Kaushik in detail."

4. Be that as it may, even if I completely ignore the statement of

PW-1, traffic inspector Shyam Sunder, the conviction is justified and can

be sustained on the statement of PW-2, Mahender Kumar Malhotra as

well as post mortem report Ex.PW6/A, site plan Ex.PW5/B and the

photographs Ex.PW2/B to E. In his statement PW-2, Mahender Kumar

Malhotra has stated that at about 1 P.M., he was coming from Hanuman

Mandir on his scooter with his wife on the pillion. When he had just

crossed the monkey bridge, a truck came from flyover at a very fast

Criminal Revision Petition 426/2010 Page 3 speed and hit his scooter. His wife fell down and got crushed under the

truck. He fell on the other side and sustained injuries. He has stated that

the truck was being driven by the petitioner. He identified the

photographs Ex.PW2/B to E. He also identified the site plan, which was

given mark A and on the statement of PW-5, SI Rajiv Kumar was

exhibited as PW5/B. Learned trial court had also put questions to PW-2,

Mahender Kumar Malhotra. In response PW-2, Mahender Kumar

Malhotra has stated that the truck was being driven at the speed of

about 60-70 KMPH and he was driving the scooter between 25-30

KMPH. He has further stated that the truck had hit the scooter from the

back side and had taken a turn after hitting the scooter. He denied the

suggestion given in the cross-examination that the scooter had slipped

on the road after going over watermelon peel. PW-5, SI Rajiv Kumar has

stated that on site inspection he found that the scooter was in the

correct lane and the accident had taken place in the left lane at the

merging point. He has stated that no water melon peel was found lying

on the road and there was no indication that the scooter had slipped.

The post mortem report Ex.PW6/A records that the whole facial skull of

the deceased was badly crushed mostly on the right side. There were

Criminal Revision Petition 426/2010 Page 4 multiple abrasions all over the upper body and thigh of the deceased.

Photographs Ex.PW2/B to E also show that the scooter was hit from the

back side and the wheel of the truck had crushed the skull of the

deceased. Blood can also be seen on the road side. The deceased

expired at the spot itself. The truck was parked at some distance.

5. Keeping in view the aforesaid facts, I do not see any reason to

interfere with the impugned judgment dated 1st June, 2010 passed by

the learned Additional Sessions Judge dismissing the appeal of the

petitioner against the judgment of the trial court dated 26th September,

2007, convicting the appellant. On the question of sentence also, I do

not find any reason to interfere. The Supreme Court in Dalbir Singh v.

State of Haryana, (2000) 5 SCC 82 had observed as under:

"13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. 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

Criminal Revision Petition 426/2010 Page 5 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."

Accordingly, the revision petition is dismissed.

SANJIV KHANNA, J.

       SEPTEMBER 23, 2010
       NA




Criminal Revision Petition 426/2010                                  Page 6