Ram Bharose vs State
2011 Latest Caselaw 4347 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+             Crl. Rev. P. No. 248/2011 & Crl. M.B. No. 895/2011

%                                            Reserved on: 24th August, 2011.

                                             Decided on: 6th September, 2011

RAM BHAROSE                                                        ..... Petitioner
                               Through:   Mr. Sanjeev Singh & Mr. Ayub Khan,
                                          Advocates.
                      versus

STATE                                                        ..... Respondents
                               Through:    Mr. Mukesh Gupta, APP for the State.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                  Yes

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

MUKTA GUPTA, J.

1. By way of the present revision petition the Petitioner challenges the

Judgement dated 6th May, 2011 passed by the learned Additional Session Judge

upholding the Judgement dated 16th January, 2008 by learned Trial Court

convicting the Petitioner for offences under Sections 279 and 304A IPC and order

dated 25th January, 2008 sentencing him to undergo one year Rigorous

Imprisonment and a fine of Rs.1,000/- in default of payment of fine further

Rigorous Imprisonment of one month under Section 304A IPC and Rigorous

Imprisonment of one month and a fine of Rs. 500/- in default of payment of fine to

further undergo Rigorous Imprisonment for ten days under Section 279 IPC. Vide

the impugned judgment learned Additional Session Judge reduced the sentence to

six months Rigorous Imprisonment and a fine of Rs.1,000/- in default of payment

of fine further Rigorous Imprisonment of one month under Section 304A IPC and

Rigorous Imprisonment of one month and a fine of Rs. 500/- in default of payment

of fine to further undergo Rigorous Imprisonment for ten days under Section 279

IPC.

2. Briefly the facts of the prosecution case are that on 27th March, 1998 on

receipt of DD No. 18A at police station Kalyanpuri regarding an accident, SI

Rakesh Kumar and Constable Sailender reached the spot in front of Ghazipur

Kattha, National Highway No. 24, Delhi where they found a cycle in an accidental

condition. One Shri Vijay Kumar was found who made a statement to the police

stating that after closing his shop he along with his friends namely Dharmender

and deceased Meghraj were going to their houses on their respective cycles via

National Highway towards Mandawali. At about 7:15 PM when they were infront

of Gazipur Khatta acused came driving truck bearing number HR 29 D 1616 in a

rash and negligent manner and suddenly took a turn towards the khatta and struck

the deceased causing his death as he got crushed under the wheel of the truck. The

Petitioner then stopped the truck near the gate, got down and came near the injured

but since people had gathered there, due to fear he ran away from the spot.

3. Learned counsel for the Petitioner contends that the statements of the two

alleged eye witnesses PW12 Dharmender and PW13 Vijay Kumar made before the

police and given in Court are completely contradictory. According to the

complaint (rukka) the Petitioner was said to have fled from the spot however

before the learned trial court PW 12 Dharmender stated that the Petitioner stopped

the truck in front of the gate of the khatta and came down. It was also pointed out

that the name of the deceased was initially written in the MLC as unknown and

later on the name was incorporated, had any eye witnesses been present the

deceased's name would have been recorded from the very beginning.

4. The testimony of PW 12 Dharmender shows the accident to have occurred

at 7:15 AM and not 7:15 PM and the learned Trial Court ought to have considered

the same but this fact has been ignored by both the Learned Trial Court and the

Appellate Court. Learned Counsel states that on a perusal of the Ex.PW9/B, site

plan and Ex.PW11/A, report of mechanical expert it is clear that the vehicle in

question could not have caused the accident as alleged by the prosecution as there

would have been blood marks on the tyres/ body of the truck as well as on the spot

of the incident whereas nothing in this regard has been stated by any of the

witnesses.

5. It is further contended that the learned Trial Court has failed to appreciate

the facts and there was no evidence placed on record to prove rash and negligent

driving by the Petitioner except the testimony of one witness that driving was at a

high speed. That only on the basis of high speed alone no case of rash and

negligent driving can be made out. Reliance is place upon Abdul Subhan Vs. State

(NCT of Delhi) 2006 (4) LRC 472 (Del).

6. Learned Counsel also makes a compassionate plea that the Petitioner is a

first time offender with no prior history and was driving the truck without any sort

of intoxication. It is further stated that the Petitioner is a widower and has two

school going minor children aged about 16 and 15 years respectively, the Petitioner

has no other family member to take care of the children and he is the sole bread

earner of the family. Further it is contended that the Petitioner has already

undergone 4 months imprisonment and thus, a lenient view should be taken and the

benefit of probation be granted to him.

7. Learned APP for the State on the other hand contends that in his statement

under section 313 Cr. P.C. the Petitioner admits having committed the said offence

and during trial no evidence was to led before the learned Trial Court to support his

statement of not driving the vehicle in a rash or negligent manner. On examination

of site plan Ex.PW-9/B it can be clearly seen that the accident could only have

occurred if the driver was driving in a rash and negligent manner.

8. I have heard counsels for the parties and perused the record. Reliance

placed by the Petitioner on Abdul Subhan (supra) is misconceived. In the said case

the witness had stated nothing more than the fact that the vehicle was being driven

at a high speed. Even the site plan had not been exhibited and there was no other

evidence available on record leading to the conclusion that the Petitioner therein

was driving the vehicle in a rash and negligent manner.

9. However in the present case on a perusal of the statements of PW 12

Dharmender and PW 13 Vijay Kumar it is evident that the Petitioner was driving

the truck at a very high speed and suddenly took a sharp right turn striking the

deceased. The testimony of PW 12 Dharmender and PW 13 Vijay Kumar is

corroborated by site plan Ex. PW9/B which shows that the truck was coming from

the left side and took a sudden turn to the right side going towards the gate of the

khatta thereby striking the cycle of the deceased Meghraj who was coming from

the opposite direction.

10. The post-mortem report prepared by PW2 Dr. Sarvesh Tandon shows the

cause of death to be cranio cerebral damage and associated thoracic injuries ante-

mortem due to blunt force impact sustained during road traffic accident.

11. The Petitioner in his statement under Section 313 Cr.P.C. has taken the plea

that he was falsely implicated for no fault of his. According to him, on the day of

incident he was driving the truck at the relevant time and place but the deceased

had not died because of being hit by his truck. He has further stated that he was

going to pick the garbage from Ghazipur Khatta and when he turned the truck from

NH 24 on the kachha track leading towards Ghazipur Khatta one cyclist had fallen

on the road along with his cycle after being hit by another cyclist coming behind

the deceased from Ghazipur Khatta side. According to the Petitioner, the accident

occurred due to the cyclist coming behind the deceased and not because of his

negligence. However this explanation of the Petitioner had not been put to the

witnesses in their cross-examination and therefore, is clearly an afterthought.

Moreover this explanation is also not borne out from the post-mortem of the

deceased in view of the ante-mortem injuries received by him. Also the testimony

of PW12 and PW13 is clear and cogent in regard to the manner of driving the said

vehicle. Both the witnesses have deposed that the truck was coming in a very high

speed and suddenly took a sharp turn and hit the deceased due to which he

succumbed to death. Thus, it is clear that the said vehicle was being driven rashly

and negligently by the Petitioner.

12. Thus, I find no infirmity in the impugned judgment. The sentence of the

Petitioner has already been reduced by the learned Additional session Judge and I

find no reason to reduce it further.

13. The petition and application are accordingly dismissed.

(MUKTA GUPTA) JUDGE SEPTEMBER 06, 2011 'dk'