Devinder Kumar @ Bittu vs State
2011 Latest Caselaw 908 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.REV.P. 714/2010

                                                         Decided on 15.02.2011
IN THE MATTER OF :

DEVINDER KUMAR @ BITTU                               ..... Petitioner
                   Through: Mr. Jitender Singh, Advocate

                    versus

STATE                                                       ..... Respondent
                          Through: Mr. M.N. Dudeja, APP for the State

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may            Yes
        be allowed to see the Judgment?

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

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


HIMA KOHLI, J. (Oral)

1. The present revision petition is filed by the petitioner under

Section 397 of the Cr.PC praying inter alia for quashing of the judgment and

order dated 11.10.2010 passed by the learned ASJ, Rohini Courts, Delhi,

dismissing his appeal against the judgment of conviction dated 30.11.2009

passed by the learned Metropolitan Magistrate, convicting the petitioner

under Section 279/304A IPC. However, the order dated 04.12.2009 on the

point of sentence, passed by the learned Metropolitan Magistrate,

whereunder the petitioner was sentenced to undergo rigorous imprisonment

for a period of three months for the offence punishable under Section 279

IPC and rigorous imprisonment for a period of one year with a fine of

`8,000/-, and in default, to undergo rigorous imprisonment for three months

for the offence punishable under Section 304A IPC, was modified in appeal

and reduced to rigorous imprisonment for a period of six months alongwith a

fine of `8,000/- under Section 304A IPC and in default thereof, to undergo

simple imprisonment for one month.

2. The case as set up by the prosecution was that on 12.03.1997 at

about 7:25 PM, the petitioner, who was the driver of a Blue Line bus No. DL-

1P-4352, stopped the bus for passengers to alight near Bus Stand route

No.908, Sultan Puri, Delhi. When the deceased Shri Kirpal Singh was

alighting from the bus, the petitioner drove the bus quickly without noticing

the fact that the said passenger was still alighting from the bus. The

deceased fell down from the bus, sustained injuries under the rear tyres of

the bus and subsequently succumbed to his injuries and died. As a result,

the petitioner was charged for the offences punishable under Sections

279/304A IPC. After the investigation was completed, charge sheet was

filed against the petitioner and charges framed. The petitioner claimed that

he was not guilty and as a result, the matter was taken to trial.

3. Before the trial court, the prosecution examined seven witnesses

including, PW-1, Shri Gurcharan Singh, the complainant and a co-passenger

and PW-2, Shri Gulab Singh, also a co-passenger travelling in the same bus.

After conclusion of the prosecution evidence, statement of the petitioner was

recorded, wherein he claimed to be innocent but chose not to lead any

evidence in defence. The trial court considered all the material on record

including the testimony of the witnesses and ultimately convicted the

petitioner under Section 279/304A IPC vide judgment dated 30.11.2009.

Under the order on sentence dated 04.12.2009, the petitioner was

sentenced to undergo rigorous imprisonment for a period of three months

for the offence punishable under Section 279 IPC and rigorous imprisonment

for a period of one year with a fine of `8,000/- in default thereof, to undergo

rigorous imprisonment for three months for the offence punishable under

Section 304A IPC.

4. Aggrieved by the aforesaid judgment of conviction and the order

on sentence, the petitioner filed an appeal before the Sessions Court,

wherein the counsel took various grounds to assail the impugned judgment.

The learned ASJ considered the submissions made on behalf of the petitioner

and after analyzing the evidence on record in the light of the rival

contentions, concluded that the prosecution had clearly proved beyond any

doubt that the petitioner was driving the bus in question on the date of the

incident, and that the said bus was being driven rashly and negligently by

the petitioner resulting in the death of the deceased Shri Kirpal Singh. It

was observed that the judgment of the trial court was well supported by

reasons and did not deserve any interference. However, considering the

plea of the petitioner that he was the sole bread winner in the family having

three children and he was not a previous convict and that he had faced trial

for almost 12 years, the sentence imposed on him was reduced to six

months' rigorous imprisonment alongwith a fine of `8,000/-, in default

thereof, to undergo simple imprisonment for one month under Section 304A

IPC. The sentence of three months imposed on the petitioner under Section

279 IPC was maintained and both the sentences were directed to run

concurrently with benefit given to the petitioner under Section 428 Cr.PC.

The Sessions Court, however, rejected the plea of the petitioner for being

released on probation.

5. Aggrieved by the aforesaid judgment, the present revision

petition is filed. Twofold arguments have been raised before this Court to

assail the impugned order. In the first instance, counsel for the petitioner

states that the statement of the deceased as recorded on 12.03.1997 cannot

be treated as a dying declaration as the deceased ultimately expired on

20.05.1997, after a period of 2 months 8 days from the date of making the

statement. The second leg of the arguments urged on behalf of the

petitioner is that the statement of the deceased was not supported by the

two public witnesses, PW-1 and PW-2, who were present on the date of the

incident and that there were material contradictions in their deposition.

Learned APP for the State, however, denies the aforesaid submission and

supports the impugned judgment by stating that the statement of the

deceased as recorded on 12.03.1997 can certainly be treated as a dying

declaration under Section 32 of the Indian Evidence Act as the said

statement discloses the cause of the death and the circumstances which

resulted in his death. He further states that the contradictions between the

testimony of PW-1 and PW-2 were insignificant and not so material as to

discard them.

6. Having carefully examined the impugned judgment including the

testimonies of the witnesses as also the record of the case, this Court is of

the opinion that the impugned judgment does not suffer from any illegality,

arbitrariness or infirmity, which deserves interference in the exercise of its

powers under Section 397 of the Cr.PC. It may further be noted that the

power of revision vested in the High Court under Sections 397 and 401 is a

limited power to be exercised only under exceptional circumstances. The

scope of revisional jurisdiction of the High Court has been elaborated upon

by the Supreme Court in the case of T.N. Dhakkal v. James Basnett reported

as (2001) 10 SCC 419, holding it to be a discretionary jurisdiction to be

exercised to correct miscarriage of justice and further, whether or not, there

is justification for the exercise of such jurisdiction, would depend upon the

facts and circumstances of each case. In the case of Farida Dar v. State

reported as 2001 (59) DRJ 94, it was further opined that at the stage of

revision, a meticulous examination of the material on record need not to be

undertaken.

7. Both the arguments raised on behalf of the petitioner were duly

considered by the learned Sessions Court, who noticed the same in para 20

of the impugned judgment and went on to observe that as per the testimony

of the Investigating Officer only when the deceased was declared fit to give

a statement by the doctor, was his statement recorded as Ex.PW-3/M. It is

an admitted position that the said contention of the Investigating Officer was

not challenged by the petitioner at any stage and consequently, the same

has attained finality. Merely because the deceased expired after about two

and a half months of making his statement on 12.03.1997, can hardly be a

ground to ignore the said statement and not treat it as a dying declaration

under Section 32 of the Indian Evidence Act, 1879, more so when the

statement relates to the cause of the death of the deceased and explains the

circumstances leading to his death. Hence, it is held that the trial court was

justified in treating the statement of the deceased, recorded by the

Investigating Officer on 12.03.1997, as a dying declaration.

8. Insofar as the contention of the counsel for the petitioner as to

the contradictions in the testimonies of PW-1 and PW-2 is concerned, the

said argument was also considered by the learned ASJ, who observed in the

impugned judgment that though there were apparent contradictions in the

testimonies of PW-1 and PW-2, regarding the manner of the accident,

however, the same were not so material as to make the entire prosecution

story unbelievable. It was noticed that the underlying stand of PW-1 and

PW-2, which emerged from their statements including the statement of the

deceased was that the accident took place due to rash and negligent driving

on the part of the petitioner.

9. Fact of the matter is that on the date of the accident, when the

deceased and PW-1 and PW-2 were alighting from the bus at Sultan Puri Bus

Stand, the petitioner suddenly drove the bus towards Jagdamba Market at a

great speed, which resulted in the deceased falling down from the bus and

sustaining injuries on both his legs, which got crushed under the rear tyre of

the bus, because of which the left leg of the deceased had to be amputated.

As per the post mortem report, Ex.PW6/A, the death of the deceased

occurred due to septicemia as a result of the vehicular accident. The post

mortem report indicated that the left leg of the deceased had to be

amputated and right thigh showed a fracture. The same version of events

has been supported by PW-1 and PW-2, in their testimonies and hence, it

cannot be said that there were any material contradictions in their

testimonies, which go to the root of the prosecution case. Hence, the

second plea of the petitioner is also turned down as not sustainable.

10. This Court concurs with the finding of the learned ASJ that from

the deposition of PW-1, PW-2 and the deceased, Shri Kirpal Singh, it appears

that each of them gave a different account of the incident in their respective

statements, but the common factor which emerges is that the accident took

place due to rash and negligent driving on the part of the petitioner/accused,

which resulted in the death of the deceased, who was a passenger on the

bus and was alighting from it on the fateful day. In such circumstances, no

leniency ought to be shown to the petitioner by permitting him to claim the

benefit of being released for the period already undergone by him as

pleaded by the counsel for the petitioner. It was incumbent on the

petitioner, as a driver of a bus, to adhere to road discipline and to ensure

the safety of the passengers travelling in the bus, both at the time of their

boarding and alighting from it. However, in the present case, the petitioner

failed to drive the bus in a responsible manner, inasmuch as he drove the

bus away, while passengers were still alighting from the bus, which resulted

in the deceased falling down from the bus and his legs getting crushed under

the rear tyres of the bus. Further, records reveal that the petitioner

continued to drive the bus, without even stopping to assist the deceased or

take him to the nearest hospital for medical aid.

11. The present petition is, therefore, dismissed as there is no

infirmity in the impugned judgment, nor is there any miscarriage of justice

for exercising the discretionary jurisdiction in favour of the petitioner.

                                                         (HIMA KOHLI)
FEBRUARY 15, 2011                                           JUDGE
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