JITENDER KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) THE petitioner stands convicted for the offences under Sections 279/304 -A IPC. This petition under Section 397 of the Code of Criminal Procedure has been filed by the petitioner challenging the propriety, legality and correctness of judgment dated 6th July, 2007 and order on sentence dated 9th July, 2007 passed by learned Metropolitan Magistrate as also the judgment dated 19th March, 2009 passed by the learned Additional Sessions Judge who while affirming the conviction of the petitioner modified the order on sentence to some extent. The trial Court had awarded sentence of rigorous imprisonment for a period of two years for his conviction under Section 304 -A IPC and rigorous imprisonment for a period of six months and fine of Rs. 1,000/ -, in default of payment to undergo SI for 15 days, for his conviction under Section 279 IPC. Additionally, the trial Court also directed the petitioner to pay compensation of Rs. 75,000/ - to the LRs of the deceased which was to recoverable as land revenue in case of default in payment. The appellate Court set aside the fine imposed upon the petitioner but maintained the compensation awarded to the LRs of the deceased and further directed that in case of non -payment of the compensation the appellant(petitioner herein) shall have to suffer additional simple imprisonment for six months.

(2.) THE relevant facts leading to the prosecution and trial of the petitioner -accused have been noticed by the learned trial Court in para 2 of the judgment and the same is re -produced below:

(3.) ON behalf of the petitioner, Mr. K.B. Andley, learned senior counsel has submitted that the case really being one of no evidence regarding rash and negligent driving of the bus by the petitioner, this Court would be justified in exercising the revisional jurisdiction and interfering with the decisions of the Courts below. He also submitted that merely on the basis of evidence of the so -called two eye witnesses it does not stand established that the accused was driving the bus involved in the accident, much less in a rash and negligent manner. It was further submitted by him that, in fact, the deceased had died because of his own fault inasmuch as he had alighted from the bus at a place where there was no bus stop and the bus was stopped only because of heavy traffic. In any event, bus could not be started at a fast speed due to heavy traffic. Another submission was that both the eye -witnesses are police officials and that makes the prosecution case highly doubtful because if at all the petitioner had driven the bus at a fast speed, as has been deposed by PW -4 and PW -5, some passengers at least travelling in the bus would have complained about that to the police and subsequently would have appeared in Court also as witnesses but the prosecution has chosen not to examine any public person. Mr. Andley also contended, as alternative submissions, that in case this Court is not inclined to disagree with the Courts below as far as the conviction of the petitioner is concerned, the order on sentence at least deserves to be modified and considering the fact that the petitioner has already remained in custody for about one year out of the total sentence of imprisonment of two years awarded to him his sentence of imprisonment may be reduced to the period already undergone by him in jail. Another submission was that the appellate Court was not justified in ordering that the petitioner shall have to undergo SI for six months in case of default in payment of compensation since Section 357(3) Cr.P.C., under which compensation can be awarded, does not provide any such consequence in case of non -payment of compensation.