CRL.REV.P./907/2018 of DEEP RAJ PATHANIYA Vs THE STATE (GOVT. OF NCT OF DELHI)

*INTHEHIGHCOURTOFDELHIATNEWDELHI+CRL.REV.P. 907/2018, CRL MA 1641/2018 & 34443/2018DEEP RAJ PATHANIYA..... Petitioner

..... PetitionerThroughMr. Ajay Mahla, Adv

versus

THE STATE (GOVT. OF NCT OF DELHI)..... RespondentThroughMr. M S Oberoi, APP for StateSI Jasmer Singh, PS Jahangir Puri

CORAM:HON'BLE MR. JUSTICE A.K. PATHAKO R R

16.10.2018

1.Petitioner was convicted for offence under sections 279/304AIPC by the learned Metropolitan Magistrate vide judgment dated 18[th]August, 2018. Vide order on sentence dated 10[th]October, 2017,petitioner was sentenced to undergo rigorous imprisonment for sixmonths for the offence under section 279 IPC and rigorousimprisonment for two years for the offence under section 304A IPCand both the sentences were directed to run concurrently.Petitionerwas also directed to pay compensation of `1,00,000/- to the legal heirsof the deceased and in default, to further undergo simple imprisonmentfor six months.

2.Petitioner preferred an appeal before learned Addl. SessionsJudge-04 (North) Rohini Courts, Delhi which has been dismissed bythe judgment dated 20[th]August, 2018 impugned in this petition undersection 397 Cr.P.C.CRL.REV.P. 907/2018P-1/4

3.There are concurrent findings of fact returned by the trial courtand Appellate Court on appreciation of evidence.This Court is not tosift and weigh the evidence on record to substitute its findings againstthe concurrent findings returned by the courts below.4.It is trite law that in exercise of its revisional jurisdiction, HighCourt is not to sift and weigh the evidence on record as if hearing anappeal.High Court cannot substitute finding of fact as against whathas been arrived at by the two courts below, on appreciation ofevidence.Only gross perversity in the findings as well as theprocedural illegality, if any, has to be considered. High Court caninterfere only if petitioner is able to demonstrate any flagrant violationor misuse of procedure in the order or that the settled legal position hadbeen ignored.Petitioner has failed to point out any perversity and/orillegality in the impugned order resulting in miscarriage of justice.Itcannot be said that the findings returned by the courts below arewithout any evidence and/or are perverse.

5.As per the prosecution, petitioner while driving vehicle bearingregistration no.HR 38E 1247 in rash and negligent manner on 26[th]March, 2013 at about 2:30 PM, hit the deceased Mukesh Kumar nearNorthend Banquet Hall, GTK Road, Delhi resulting in death of thedeceased. The accident was witnessed by PW-1 Sanjay (brother ofdeceased). The post-mortem report indicated that the death was due toinjuries suffered by the victim which were possible by vehicularaccident. PW-1 Sanjay has fully corroborated the prosecution version.Petitioner did not dispute his identity before the trial court.CRL.REV.P. 907/2018P-2/4

Petitioner was arrested from the spot. PW-9 Insp. Sanjay Dahiya hasdeposed to this effect. PW-1 has deposed that on 23[rd]June, 2003 healongwithhisbrother(deceased)wasreturninghomeonarickshaw-rehri and when they reached near Northend Banquet Hall atGTK Road, truck bearing registration no.HR 38E 1247 hit theirrickshaw-rehri from behind.The truck was being driven at very fastspeed and as consequence of the collision, deceased fell down on theroad and the tyre of the truck ran over deceased’s head. PW-1 said healso fell down due to impact of the collision. The truck was stopped bysome public persons. PW-1 deposed that name of the driver was DeepRaj. Further, that petitioner’s personal search was taken in his presencevide Ex. PW1B.

6.After arguing for some time, learned counsel for the petitionerhas given up challenge to the conviction of petitioner under Sections279/304A IPC on merits.Learned counsel has prayed for reduction ofsentence of the petitioner.It is contended that father of petitioner isaged about 70 years and is suffering from cancer. In fact, the father ofpetitioner has been discharged from the hospital by saying that it is thelast stage of his ailment.Petitioner’s wife is an illiterate andhousewife. Elder brother of the petitioner is an alcoholic.Petitionerbelongs to poor family.Accident took place in the year 2003 andpetitioner has suffered agony of trial for 15 years.

7.It is trite law that purpose of awarding sentence of imprisonmentis twofold; one is punitive and other is reformative.It is not necessarythat in each and every case the maximum sentence has to be awarded.CRL.REV.P. 907/2018P-3/4

In State GNCT of Delhi vs. Mukesh, 2011 (3) Crimes 111, DivisionBench of this Court has observed thus: “a proper sentence isamalgamation of many factors such as the nature of offence, thecircumstances extenuating or aggravating of the offence, the priorcriminal record, if any, of the offender, the age of the offender, therecord of the offender as to employment, the background of theoffender with reference to education, home life, sobriety and socialadjustment, the emotional and mental conditions of the offender, theprospects for the rehabilitation of the offender, the possibility of returnof the offender to normal life in the community, the possibility oftreatment or training of the offender, the possibility that the sentencemay serve as deterrent to crime by the offender or by others and thecurrent community need, if any, for such deterrent in respect to theparticular type of offence.These factors have to be taken into accountby the court in deciding upon the appropriate sentence”.

8.Keeping in view that appellant belongs to poor family; he is theonly bread earner in the family; he has no criminal history; he has facedagony of trial for about 15 years; his sentence under Sections 304A IPCis reduced to one year while confirming the sentence under section 279IPC.Both sentences shall run concurrently.9.Petitionisdisposedofinaboveterms.Miscellaneousapplications are disposed of as infructuous. Dasti.

OCTOBER 16, 2018/sm

A.K. PATHAK, J

CRL.REV.P. 907/2018P-4/4