Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 16.08.2023
Pronounced on: 21.08.2023
+ CRL.REV.P. 712/2023 & CRL.M.(BAIL) 927/2023
ALI JAAN ..... Petitioner
Through: Mr. Amit Khatana & Mr.
Kunal Khatana, Advocates
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Manoj Pant, APP for the
State with SI Narender Kumar,
PS Chanakya Puri
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. The instant petition has been filed on behalf of the appellant
under Section 397 read with Section 482 of the Code of Criminal
Procedure, 1973 („Cr.P.C.‟) assailing the order dated 27.03.2023
passed by the learned Additional Sessions Judge, South-East District,
Saket Courts, Delhi („learned ASJ‟) in Criminal Appeal No.173/2019
arising out of FIR bearing no. 170/2008 registered at Police Station
Chanakya Puri, Delhi for offence punishable under Sections
Signature Not Verified
CRL.REV.P. 712/2023 Page 1 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
279/338/304A of Indian Penal Code, 1860 („IPC‟) and Sections
115/194 of Motor Vehicles Act, 1988 („M.V. Act‟).
2. Briefly stated, the facts of the case are that on 17.08.2008 at
10:45 AM, an information regarding an accident at Ridge Road, near
Buddha Garden, New Delhi was received at P.S. Chanakyapuri, New
Delhi, after which concerned police official had reached the site of
incident and had found a Maruti Car bearing registration no. DL-
2CZ-5822 and a truck bearing registration no. HR-38M-4551 in
accidental condition. The driver of the truck was identified as
accused Ali Jaan, and injured persons at the site of incident were
taken to hospital. During the course of investigation, it was revealed
that the complainant Vivek Arora alongwith his wife and two
daughters was traveling in his car from Rajender Nagar to Vasant
Kunj, Delhi, and while passing through Buddha Garden, one truck
came in reverse direction and had hit the car. The accused was
driving the offending vehicle at the time of incident. In the said
incident, the wife of the complainant and one of his daughters‟ had
expired, and the complainant and his daughter Diksha Arora had
sustained grievous injuries. Further, upon completion of
investigation, chargesheet was filed on 25.05.2009.
3. During the course of trial, prosecution had examined injured
eye witnesses PW-2 i.e. complainant and PW-8 i.e. injured daughter
of complainant. The superdar of the offending vehicle was examined
as PW-5.
4. The learned Trial Court had acquitted accused/petitioner under
Sections 115/194 MV Act and had convicted him vide order dated
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
06.06.2019 and order on sentence was passed on 10.07.2019
sentencing accused/petitioner to undergo (i) simple imprisonment of
2 years along with fine of Rs. 2000/- for offence under Section 304A
IPC; (ii) simple imprisonment of 6 months for offence under Section
279 IPC and (iii) simple imprisonment of 1 year along with fine of
Rs. 1000/-for offence under Section 338 IPC. Thereafter, learned ASJ
vide order dated 27.03.2023, had modified the sentence to (i) simple
imprisonment of 1 year along with fine of Rs. 2000/- for offence
under Section 304A IPC; (ii) simple imprisonment of 3 months for
offence under Section 279 IPC and (iii) simple imprisonment of 6
months along with fine of Rs. 1000/- for offence under Section 338
IPC.
5. As per order dated 06.06.2019, the learned Trial Court had
convicted petitioner/accused. The relevant portion of impugned order
is reproduced as under:
“Thus, in light of the above said observations and the material
available on record, the prosecution story stands proved beyond an
reasonable doubts that accused Ali Jaan was reversing his vehicle
(Truck) in such a rash and negligent manner on a public road, so as
to endanger the human life and safety, and thereby he caused the
death of victim Poonam Arora and Shivangi Arora and grievous
injuries to injured Vivek Kumar Arora (PW-2) and Deeksha Arora
(PW-8). There is no convincing rebuttal of the evidence led by the
prosecution.
Therefore, in ultimate analysis as a result of trial, the accused Ali
Jaan S/o Sh.· Abdulla is convicted for the offences u/s
279/338/304A IPC.
However, the prosecution failed to prove the allegations that the
offending truck driven by the accused was plying in a „no entry‟
zone and therefore, allegations for offences u/s 115/194 MV Act
have not been proved against the accused. Therefore, accused Ali
Jaan is acquitted for the offences u/s 115/194 MV Act.”
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CRL.REV.P. 712/2023 Page 3 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
6. The relevant portion of order on sentence dated 10.07.2019,
passed by learned Trial Court is reproduced as under:
“In view of the observations above said, I sentence the convict t a
period of two years simple imprisonment and fine of Rs. 2000/- for
offence u/s 304A IPC; to a period of 6 months simple
imprisonment for offence u/s 279 IPC; and period of one year of
Simple Imprisonment and fine of Rs. 1,000/- for offence u/s 338
IPC. In default of payment of fine, the convict shall be liable to
undergo simple imprisonment of one month for each offence, in
addition to substantive imprisonment. All the sentences shall run
concurrently.
The injured Vivek Kumar Arora has stated that he received around
Rs.10-11 Lacs as compensation from Ld. MACT Court. Even
though, the victims cannot be compensated for the loss of lives and
their sufferings, no orders as to compensation are being passed
considering the financial background of both the parties.”
7. As per order dated 27.03.2023, learned ASJ while upholding
the conviction of the petitioner/accused had reduced the sentence.
The relevant portion of impugned order is reproduced as under:
“ While sentencing, the court has to consider the aggravating as
well as mitigating circumstances. The accused was driving a
commercial vehicle resulted into death of two persons and two
persons sustained grievous injuries. The accused remained at the
spot and did not flee from there after the incident. The accused had
faced the trial for more around 15 years without fail. Considering
the facts and submissions and both aggravating as well as
mitigating circumstances, the appellant/convict is sentenced to
undergo simple imprisonment for a period of one year and fine of
Rs.2,000/- (in default simple imprisonment for a period of 30 days)
for the offence punishable u/s 304A IPC further sentence of simple
imprisonment of · six months and fine of Rs. 1000/- (in default
simple imprisonment for a period of 15 days) for offence
punishable u/s 338 IPC and further sentenced to simple
imprisonment for a period of three months for offence punishable
u/s 279 IPC. All the sentences shall run concurrently. The operative
part of the sentence be attached with thecustody warrant.”
8. Learned Counsel for petitioner states that learned Trial Court
failed to appreciate the fact that there was no apparent damage to the
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CRL.REV.P. 712/2023 Page 4 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
truck found at the spot. It is argued that the present FIR was
registered without naming the accused and the statements of the
injured eye witnesses was recorded after a period of 2 ½ months. It is
further stated that there are material contradictions in the testimonies
of the witnesses and the involvement of the present appellant in the
said incident has not been proved beyond a reasonable doubt. It is
stated that petitioner has undergone a period of sentence of 4 months
and 4 days.
9. Per contra, learned APP for State argues that the contentions
raised by the appellant have already been considered and appreciated
by both the Courts below, and a lenient view in regard to the sentence
has already been taken by the learned Trial Court. It is further stated
that all the witnesses have supported the case of the prosecution and
the identity of the accused as the driver of offending vehicle has been
established beyond any doubt.
10. This Court has heard arguments addressed by learned counsel
for the petitioner and learned APP for the State, and have perused
material on record.
11. The testimony of PW-8 Diksha Arora, who is other injured/eye
witness had revealed that on the day of incident at around 10:30 AM
when they had reached near Buddha Garden in a car driven by PW-2,
one truck came at high speed in reverse gear and had continued
coming back despite horn being blown by her father PW-2. It was
stated that the father of the witness had tried to turn the car towards
right side to escape the impact but the truck had hit the left side of the
car.
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CRL.REV.P. 712/2023 Page 5 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
12. Perusal of testimony of PW-2 i.e. the complainant reveals that
he was driving the car at a speed of around 30 KM/hr., when it was
hit by the offending vehicle, which was coming at a high speed in
reverse gear.
13. This Court notes that the learned Trial Court had rightly
observed after perusing the testimony of PW-2 and PW-8 that the
rashness and negligence of the driver of the offending vehicle at the
time of incident is corroborated and unrebutted.
14. It has been argued by learned counsel for the
petitioner/accused that the identity of the driver of the offending
vehicle has not been established by the prosecution and the present
petitioner/accused has wrongly been implicated in the present case.
In this regard, it is observed that PW-5 Gyan Prakash Gupta, who
was the superdar of the offending vehicle, had confirmed the identity
of accused as the driver of the offending vehicle. The identity of
petitioner to be the perpetrator of crime has been amply proved by
cogent evidence. In addition to this, petitioner herein was driving a
heavy vehicle and was expected to be more cautious.
15. This Court observes that the learned Trial Court while
convicting the present petitioner/accused had rightly appreciated the
material evidence, including the site plan to conclude that the accused
was driving the offending vehicle in a rash and negligent manner.
Further, the mechanical inspection report of the offending vehicle
was also considered and found to be supporting the case of
prosecution. The petitioner was not able to explain as to how the
damage to the vehicle had occurred. The impact was so severe that
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CRL.REV.P. 712/2023 Page 6 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
two of the passengers were declared „brought dead‟ at the hospital.
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.
16. This Court observes that the factum of death of deceased
Shivangi and Poonam Arora stands proved vide Post-mortem reports
placed on record and grievous injuries to complainant Vivek Arora
and Diksha Arora stands proved vide MLC placed on record. This
Court notes that the injured persons were found and taken to the
hospital from the site of incident after they were hit by the offending
vehicle. The presence of the present petitioner/accused in the said
incident as the driver of offending vehicle has been proved beyond
doubt by the material evidence, including the testimony of PW-5,
mechanical inspection report and the site plan of the said incident.
17. This Court notes that the learned Trial Court had already taken
lenient view while awarding sentence to the petitioner/accused,
which was further reduced by the learned ASJ to (i) simple
imprisonment of 1 year along with fine of Rs. 2000/- for offence
under Section 304A IPC; (ii) simple imprisonment of 3 months for
offence under Section 279 IPC and (iii) simple imprisonment of 6
months along with fine of Rs. 1000/- for offence under Section 338
IPC, which cannot be termed excessive as two innocent lives were
taken away including of a young child aged 9 years and a woman,
and a family was destroyed because of rash and negligent acts of
petitioner/accused.
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CRL.REV.P. 712/2023 Page 7 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15
18. Therefore, in view of the aforesaid discussion, this Court is of
the opinion that the prosecution has established the factum of
rashness and negligence of the accused being the driver of the
offending vehicle beyond any doubt and the learned ASJ has rightly
upheld the conviction of the petitioner/accused.
19. Accordingly, the present petition alongwith pending
application stands dismissed.
20. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
AUGUST 21, 2023/dk
Signature Not Verified
CRL.REV.P. 712/2023 Page 8 of 8
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:05.09.2023
11:08:15