Pramod Kumar vs State
2012 Latest Caselaw 1735 Del

                *    THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl.Rev.P. No. 128/2012

                                                Date of Decision:14.03.2012

PRAMOD KUMAR                                             ...... Petitioner
                           Through:      Mr Tek Chand Sharma, Advocate

Versus

STATE                                                 ...... Respondent
                           Through:      Mr. M.N.Dudeja, Advocate

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J.

1. The petitioner has moved this court under Section 397 read with Section 401 Cr.P.C. He is aggrieved by an order passed by the Ld. ASJ in FIR No. 34/2001 on 15.12.2011 in Criminal Appeal No. 14/2011 whereby the Ld. ASJ confirmed the order of Metropolitan Magistrate, sentencing the petitioner to undergo simple imprisonment for a period of nine months under Section 304 -A IPC and to undergo simple imprisonment for a period of two months under Section 279 IPC.

2. The facts of the case in brief are that on 25.02.2011 the petitioner was driving bus bearing registration no.DL-1PA-8044 on route no. 212 allegedly in a rash and negligent manner and when the bus reached at Mall Road red light crossing, the petitioner hit a pedestrian namely Amardeep Singh, thereby causing his death. The petitioner was apprehended from the accident site by Constable Ajay Kumar on whose statement the FIR was registered. The victim was taken to Trauma Centre by the police where he was declared brought dead.

3. After completion of investigation, the charge sheet was filed by the police and 11 witnesses were examined by the prosecution to nail the petitioner's guilt and the petitioner was held guilty by the trial Court as well as the Appellate Court. Hence the present petition.

4. The counsel for the petitioner contends that the impugned order of the Appellate Court suffers from illegality and is based on assumptions and surmises. It is submitted that the prosecution has failed to establish the guilt of the petitioner beyond reasonable doubts and has not examined the investigating officer and also no independent witness was examined by the prosecution. It is also submitted that the act of rash and negligent driving by the petitioner has not been proved by the prosecution before the trial Court. It is further submitted that no reasons have been recorded by the lower Courts for not admitting the petitioner to probation under Section 360 Cr.P.C. It is also contended that the punishment given to the petitioner is very harsh considering the fact that he has got a family dependent on him and has got no criminal antecedents.

5. Per contra, the counsel for the State has opposed the petition stating that the rash and negligent action of the petitioner has resulted in the death of a person and the petitioner deserves no leniency in the present circumstances.

6. I have heard the learned counsel for the petitioner and learned APP and perused the record.

7. It is seen from the perusal of record that the petitioner was taken into custody from the accident site itself and a personal search memo was prepared by the police. The arresting Constable was examined by the prosecution as PW-10 before the trial Court. He had identified the petitioner and gave consistent testimony to prove the case of the prosecution. The only witness

examined by the prosecution who was not consistent with his testimony before the trial Court was the conductor of the bus( PW -7), but this fact alone is not sufficient to discard the entire prosecution case, considering the fact that all the other witnesses have deposed against the petitioner and there is no possible reason to disbelieve their testimonies as they have no motive to falsely depose against the petitioner. The conductor (PW7) not supporting the prosecution is obvious for the simple reason of his being associate of the petitioner in the same bus.

8. From the perusal of the trial Court judgment it is seen that the learned MM has rightly relied on the testimony of PW10 who had unequivocally stated that he saw the bus being driven by the petitioner in rash and negligent manner and at a very fast speed from Timar Pur towards the Mall Road Red Light and while turning the bus towards the right side, he struck the pedestrian which resulted in his death. The petitioner who was driving on such a busy road was supposed to negotiate slowly and cautiously while taking a turn but instead was so reckless in his driving that he struck the deceased immediately after taking the turn. This act witnessed by PW10 and consistently stated by him in his examination before the trial Court sufficiently establishes the fact of rash and negligent driving by the petitioner. There is nothing to suggest as to why this witness would depose falsely and there is also no reason to disbelieve him. Hence, there is impeccable evidence of PW-10 to support the prosecution case. Consequently, the plea of the petitioner that the act of rash and negligent driving has not been proved by the prosecution, is untenable.

9. The non-examination of the investigating officer is also not fatal to the prosecution case as the entire investigation has been proved by the police officials examined by the prosecution. Hence, the contention of the counsel

for the petitioner that the impugned orders are illegal and prosecution has not been able to prove its case beyond reasonable doubt cannot be accepted.

10. Now, coming to the issue of award of harsh punishment to the petitioner, it may be reiterated that due to rash and negligent action of the petitioner an innocent person lost his life without any fault on his part. The drivers of a commercial vehicle are burdened with the responsibility of ensuring safety of not only the passengers in such vehicle, but also the public walking on the road. There is no possible justification for being casual and indifferent to the safety of public by such drivers. This Court in Crl.Rev.P.No.281/2005, Dharmendra vs. State , decided on 10.02.2012 has observed that ,

"10. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic, thus endangering the life of public at large, which cannot be allowed."

11. Further, from the perusal of the impugned judgment of the Appellate Court, it can be seen that the benefit of probation has not been extended to the petitioner considering the seriousness of the offence committed by him. The Appellate court has rightly taken cue from the judgment of Dalbir Singh v. State Haryana : 2000CriLJ2283, wherein it was held that

"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 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 vehicle he cannot escape from 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."

12. Hence, the contention of the counsel for petitioner that no reason has been given by the lower Court for not extending probation to the petitioner stands rejected.

13. The Apex Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, [2001 Crl LJ 2349] has enunciated the cases where such benefit should not be extended in the following words:

" 9.......It is true that nobody can claim the benefit of Sections 3 and 4 of the Probation of Offenders Act as a mater of right and the court has to pass appropriate

orders in the facts and circumstances of each, case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. There are laws which specifically direct that the provisions of Probation of Offenders Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well which may not justify the exercise of the powers of Probation of Offenders Act. Even apart from such exclusions the courts should be wary of extending the benefit of Probation of Offenders Act to offences relating to corruption, narcotic drugs, etc. This Court has indicated in Dalbir Singh (supra) that benefit of Probation of Offenders Act should not normally be afforded in respect of the offences under Sections 304A IPC when it involves rash or negligent driving. These are instances for showing how the nature of the offence could dissuade the court to give the benefit."

14. Keeping in view the facts and circumstances of the case and the above pronouncements, I am of the view that the trial court and the Appellate Court have rightly sentenced the petitioner to imprisonment and their Orders require no interference. The counsel for the petitioner has also pointed out some mitigating factors, such as, a dependant family and no past criminal record, but the fact remains that the petitioner was a driver of a commercial vehicle and was required to be extra cautious while driving on the road and his action has resulted in the death of an innocent person . Though such factors cannot outweigh the other relevant factors required to be considered for the purpose of sentencing but the learned MM seems to have considered these mitigating factors while sentencing, the petitioner. Considering the loss of life of innocent persons and suffering of their families due to negligent and irresponsible acts of the drivers of commercial vehicles and these acts being a

menace to the society the sentence imposed by the trial Court and upheld by the appellate court seems to be just and reasonable.

15. In view of the above discussion, I find no illegality or impropriety in the impugned judgments of two Courts below. This revision petition is accordingly dismissed being without merits.

M.L. MEHTA, J.

MARCH 14, 2012/AWANISH