Salim Khan vs State ( Govt Of Nct Of Delhi)
2015 Latest Caselaw 1337 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : FEBRUARY 05, 2015
                            DECIDED ON : FEBRUARY 13, 2015

+              CRL.REV.P. 8/2015 & Crl.M.B.14/2015

       SALIM KHAN
                                                         ..... Petitioner
                            Through: Mr. Abhay Kumar with Mr. Ikrar
                                     Siddique, Advocates
                                 versus

       STATE ( GOVT OF NCT OF DELHI)
                                                          ..... Respondent
                            Through: Mr. Navin K. Jha, APP for State.
                                     SI Praveen Chauhan, P.S. Preet Vihar.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The petitioner-Salim Khan has filed the present revision

petition to challenge the legality and correctness of judgments dated

18.04.2013 (of Additional Chief Metropolitan Magistrate,

East/Karkardooma Courts) by which he was convicted under Section

279/304-A IPC and dated 3.12.2014 of learned Additional Sessions Judge

(East), Karkardoom Courts, Delhi whereby the findings recorded by the

learned ACMM were endorsed with modification of sentence order.

2. Briefly stated, the prosecution case as set up in the charge-

sheet was that on 28.08.2004 at Vikas Marg, New Rajdhani Enclave,

Delhi, the petitioner while driving bus bearing registration No.DL-1PB-

1944 in a rash and negligent manner struck it against one Ram Chander

Gautam, a pedestrian, and caused his death. Daily Diary (DD) No.9A was

recorded regarding the accident at Police Station Preet Vihar at 0826

hours on 28.08.2004 and the investigation was assigned to ASI Jai Kishan

who with Ct.Vijender Singh went to the spot. He came to know from the

public that the victim had been taken to Taneja hospital. The

Investigating Officer did not find any eye witness at the spot or Taneja

hospital and lodged First Information Report by making endorsement

(Ex.PW-6/B) over DD No.9/A (Ex.PW-6/C). Statements of witnesses

conversant with the facts were recorded. Post-mortem examination on the

body was conducted. The accused was arrested. After completion of

investigation, a charge-sheet was filed against the petitioner. The trial

resulted in his conviction as aforesaid.

3. Learned counsel for the petitioner urged that conviction

primarily based upon the testimony of PW-5 (Dr.Sanjay Gautam) cannot

be sustained as his presence at the spot is highly suspect. The FIR was

lodged by the Investigating Officer on making endorsement (Ex.PW-6/B).

Had PW-5 (Dr.Sanjay Gautam) being present at the spot, he must have

lodged the FIR. Contrary to that, the Investigating Officer admitted that

when he went to the spot at Taneja hospital, no eye witness was available

there. The prosecution was unable to establish that the victim's death was

result of rash and negligent driving by the petitioner. Learned counsel for

the petitioner has placed reliance on Bal Kishan vs. State 2008 (105) DRJ

379; Hira Lal vs.The State 2012 (2) JCC 1311 and Shivanna vs.State 2010

(9) SCALE 88. Learned APP while supporting the judgment under

challenge urged that the prosecution was able to prove the petitioner's

guilt beyond reasonable doubt.

4. PW-5 (Dr.Sanjay Gautam) claimed himself to be a witness to

the incident. However, no FIR was lodged on his statement. In his

statement, PW-11 (SI Jai Kishan) clarified that later on deceased's son

met him and claimed to have witnessed the accident. He apprised him

that from the spot, he went to his house to inform his family members

about the death of the victim. The version given by the Investigating

Officer remained unchallenged and uncontroverted in the cross-

examination. PW-5 (Dr.Sanjay Gautam) was not acquainted with the

petitioner prior to the incident and did not nurture any ill-will or grievance

to falsely implicate him in the crime. In his deposition as PW-5, he

categorically deposed that on 28.08.2004, when he was going along with

his father to State Bank of India, New Rajdhani Enclave, Vikas Marg and

reached just in front of bank at around 8:15 a.m., he had crossed the road

and his father was in the process of crossing the road. In the meantime, a

bus on route No.335, blue line bearing No.DL1PB1944 driven by the

accused came at a very high speed in a rash and negligent manner and hit

his father. The driver jumped from the driver's seat and ran away. He

took his father to Taneja hospital where he was declared 'dead' on arrival.

He further deposed that the accident took place due to rash, negligent and

high speed. In the cross-examination, he stated that his duty hours were

from 9.45 a.m. to 2.00 p.m. at Life Line hospital, Priyadarshani Vihar,

Delhi. The offending bus was going towards ITO and there was no

unusual traffic on Vikas Marg that time. He denied the suggestion that the

speed of the bus was about 20/25 kilometer per hour. He reiterated that he

had seen the accused while hitting his father from a distance of about

three meters. He did not find any stone lying near the spot. No

suggestion was put to the witness that he was not present at the spot at the

time of incident and was introduced as a witness subsequently.

5. Similarly, the Investigating Officer was not questioned about

the non-availability of PW-5 (Dr.Sanjay Gautam) at the spot at the time of

incident. In 313 statement also, the petitioner did not claim that PW-5

was not a witness to the incident or that his testimony was procured

subsequently to falsely rope him in the incident. The petitioner has taken

contradictory and inconsistent defence. Admitted position is that the bus

in question was driven by the petitioner. The victim was hit from behind

when he was crossing the road. The petitioner did not adduce any

evidence to show that there was contributory negligence on the part of the

victim or that he had taken all reasonable precautions to avoid the mishap.

The fact that the victim was hit while crossing the road and died at the

spot shows how forceful the impact was. The petitioner was unable to

avoid incident apparently as the speed was beyond his control. Had the

speed of the bus was 20/25 kilometers per hour, as alleged, the petitioner

would have avoided the incident by applying the brakes on seeing the

victim crossing the road. Initially, the petitioner sought opportunities to

examine witnesses in defence but failed to do so. Statement of PW-5

(Dr.Sanjay Gautam) regarding rash and negligent driving at high speed by

the petitioner remained unchallenged and there are no sound reasons to

disbelieve him. The victim was a senior citizen. It was his duty to take

reasonable care for the pedestrian on the road. There was an implicit duty

on the petitioner to see that his driving did not endanger the life of the

right users of the road.

6. Both the courts below have recorded concurrent findings of

fact based upon the appreciation of evidence that the accident in question

had taken place due to rash and negligent driving of the petitioner while

driving the offending bus. Such judgments based upon fair appreciation of

the evidence cannot possibly be interfered with by this Court in exercise

of limited revisional jurisdiction under Section 401 Cr.P.C. unless and

until the same are found illegal, perverse and without jurisdiction. Since

no such patent illegality or legal infirmity has been pointed out, the

impugned judgments convicting the petitioner deserve to be maintained.

The courts below have already taken the lenient view and modified the

substantive sentence to RI for one year. No further modification of the

sentence order is needed.

7. The revision petition is without any merits and is dismissed.

All pending applications also stand disposed of. Copy of this order be sent

to the concerned Jail Superintendent for information. Trial court record

be sent back along with a copy of this order.

(S.P.GARG) JUDGE FEBRUARY13, 2015 sa