Ashok Kumar vs State (Govt. Of Nct Of Delhi)
2015 Latest Caselaw 6744 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 14th JULY, 2015
                             DECIDED ON : 9th SEPTEMBER, 2015

+            CRL.REV.P.598/2014 & CRL.M.B.No.10582/2014

      ASHOK KUMAR                                     ..... Petitioner

                        Through :   Mr.C.S.Rathour, Advocate with
                                    Mr.Neeraj Kumar, Advocate.


                        versus

      STATE (GOVT. OF NCT OF DELHI)                   ..... Respondent

                        Through :   Mr. Navin K.Jha, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant revision petition has been preferred by the

petitioner - Ashok Kumar to challenge the legality and correctness of a

judgment dated 20.08.2014 of learned Addl. Sessions Judge in

Crl.A.159/13 arising out of FIR No.214/00 PS New Ashok Nagar by

which conviction and sentence recorded by the learned Metropolitan

Magistrate under Sections 279/304 A IPC vide order dated 25.09.2013

were upheld. The petitioner was sentenced to undergo SI for six months

with fine `1,000/- under Section 279 IPC and SI for one year with fine

`5,000/- under Section 304 A IPC. The revision petition is contested by

the State.

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

sheet was that on 20.09.2000 at around 10.23 p.m. at St. Marry Public

School Chowk, Mayur Vihar, Phase-III, the petitioner while driving Bus

DL 1PA 6558 in a rash and negligent manner struck against one cyclist

Nagender aged around 12 / 13 years and caused his death not amounting

to culpable homicide. The petitioner was arrested at the spot and the

offending vehicle was seized. The Investigating Officer lodged First

Information Report after recording statement (Ex.PW-10/A) of the

victim's father (Singheshwar Rai). Statements of the witnesses conversant

with the facts were recorded. The victim was taken to hospital where he

was declared 'brought dead'. Post-mortem examination was conducted on

the body. Upon completion of investigation, a charge-sheet was filed in

the Court. The prosecution examined ten witnesses to substantiate its case.

In 313/281 Cr.P.C. statement, the petitioner denied his complicity in the

crime and claimed that the offending vehicle was not being driven by him

at the relevant time. He examined DW-1 (Sukhbir Singh) and DW-2

(Sushil Kumar) in defence. The trial resulted in conviction. The petitioner

challenged it in appeal which resulted in its dismissal. Being aggrieved

and dissatisfied, the instant revision petition has been preferred.

3. Learned counsel for the petitioner urged that the Trial Court

did not appreciate the evidence in true and proper perspective and

overlooked material infirmities and discrepancies without valid reasons.

Complainant did not opt to appear for cross-examination at a later stage.

The Trial Court committed error in relying upon his evidence. Conductor

or passengers in the bus were not associated during investigation. The

vehicle was not being driven by the accused and he has been falsely

implicated in the instant case. Learned APP refuting the arguments urged

that there are no sound reasons to disbelieve the statements of the

complainant and other material prosecution witnesses.

4. Factum of accident in which a child aged 13 years lost his

life has not been denied. Petitioner's stand is that he was not the author of

the crime as he was not driving the offending vehicle at the relevant time.

This defence deserves outright rejection as the petitioner was apprehended

at the spot and various articles including his driving licence were seized.

Notice under Section 133 Motor Vehicle Act was served upon the

registered owner of the vehicle without any delay. The prosecution

examined PW-6 (Naresh Chandra), registered owner of the vehicle who in

his reply (Ex.PW-6/A) informed the police that the petitioner - Ashok

Kumar was driving the vehicle at the time of incident at about 10.23 p.m.

in front of St. Marry Public School. The vehicle was got released by him

vide superdaginama (Ex.PW-6/B). Statement of the witness on this aspect

remained unchallenged in the cross-examination and nothing was

suggested to him if the offending vehicle was not driven by the petitioner

at the relevant time. PW-6 (Naresh Chandra) had no ulterior motive to

make false statement. PW-7 (Singheshwar Rai) (in his examination-in-

chief recorded on 12.10.2011); PW-8 (Aditya Gupta) and PW-9 (Surender

Yadav) all have identified him to be the driver in the vehicle in question in

their Court statements.

5. The occurrence took place at around 10.23 p.m. On

20.09.2000 DD No.78B (Ex.PW-2/A) was recorded at 22.32 p.m. at PS

New Ashok Nagar where information was conveyed that a child aged

around 10 - 11 years had met with an accident with a Bus DL 1PA 6558

on route No.378. The investigation was assigned to ASI Maha Singh who

along with Const.Ashok went to the spot. FIR was lodged promptly after

recording statement of the victim's father (Ex.PW-10/A) at 12.15 a.m. In

the statement, the complainant gave detailed account of the accident and

implicated the petitioner for driving the vehicle in a rash and negligent

manner due to which his son sustained severe injuries and died at the spot.

In his Court statement as PW-7, he identified the petitioner to be the

driver of the offending vehicle. He further stated that the vehicle was

being driven at a very high speed in a rash and negligent manner and it hit

his son Nagender who fell down at a distance of 15 - 20 feet ahead. The

cycle on which the victim was riding entangled in the bus and it stopped a

little ahead. The witness was not cross-examined despite opportunity and

it was recorded 'Nill. Subsequently, on petitioner's application under

Section 311 IPC, PW-7 was recalled for cross-examination. He could not

appear for cross-examination due to non-execution of process issued to

secure his presence. Under these circumstances, it cannot be inferred that

the complainant deliberately did not present himself for cross-

examination.

6. Besides this, crucial testimony is that of PW-9 (Surender

Yadav) an independent public witness running a 'Paan' shop near SFS

Flat, Pocket - D, Mayur Vihar Phase-III. He deposed that at around 10.00

/ 10.30 p.m. while closing his shop, he saw Bus No. DL 1PA 6558 coming

at a very high speed in rash and negligent manner and it hit a cyclist.

Resultantly, the victim fell down at a distance of 15 - 20 feet ahead. With

the assistance of two or three individuals, the boy was taken to the

hospital. The driver of the offending vehicle was apprehended at the spot

by the public and was arrested by the police. In the cross-examination, he

informed that his 'Paan' shop was situated at the corner of the chowk on

the road going towards phase-III. He elaborated that the accident was seen

by him from a distance of 14 / 15 meter across the road. He also spoke

about the presence of PW-8 (Aditya Gupta) whose statement was recorded

there. This independent public witness having no acquaintance with the

complainant or his family had no extraneous consideration to make a false

statement. He did not nurture any enmity or grievance against the

petitioner to falsely rope him in the crime. His presence near the spot was

quite natural and probable as he had a 'paan' shop which is expected to

remain open till late hours.

7. As per mechanical inspection report (Ex.PW-1/A), the

offending vehicle had fresh damage due to accident. Its front headlight

and number plate were found broken; its grill was also found bended. The

vehicle was road worthy without any mechanical defect. The petitioner

did not explain as to how the damage occurred to the vehicle. Impact of

the accident was so severe that the victim died at the spot and was

declared 'brought dead' at the hospital. PW-3 (Dr.B.N.Acharya)

conducted post-mortem examination on the body and opined that all the

injuries reflected therein were ante-mortem in nature and were caused by

vehicular accident. Death was due to 'comma' consequent to head injury.

It has come on record that the accident took place at an unmanned

crossing. The accident was so grave that after hitting the cyclist, the

petitioner was unable to stop it then and there by applying brakes. The

cyclist flew in the air due to impact and fell down at a distance of 15 - 20

feet. Apparently, because of high speed, the vehicle was beyond the

control of the petitioner. The legal doctrine res ipsa loquitur gets attracted.

Nothing has been suggested if the petitioner had taken reasonable care and

precautions to avoid the accident or that there was contributory negligence

on the part of the victim.

8. Minor discrepancies and infirmities highlighted by the

petitioner's counsel are not material to discredit the testimony of the

prosecution witnesses. The findings recorded by Courts below are

concurrent; these are neither perverse nor illegal. There is no reason to

take a different view in the matter. Conduct of the petitioner is

unreasonable. He even denied to be the driver of the bus at the relevant

time and made a feeble attempt to level allegations against the owner of

the vehicle. Petitioner's identity to be the perpetrator of crime has been

amply proved by cogent evidence.

9. The Trial Court has already taken lenient view and the

sentence awarded to the petitioner is only SI for one year under Section

304-A IPC which can't be termed excessive as a young child aged 12 / 13

years has lost his life because of rash and negligent acts of the petitioner.

10. The revision petition lacks merit and is dismissed. The

petitioner shall surrender before the Trial Court on 16th September, 2015

to serve the sentence awarded to him. Pending application also stands

disposed of.

11. Trial Court record be sent back immediately with the copy of

the order.

(S.P.GARG) JUDGE SEPTEMBER 09, 2015 / tr