Narender Singh Vs. State - Court Judgment

Excerpt:
- section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - the post mortem report says that the cause of death was 'hemorrhagicshock consequent upon multiple injuries to internal organs like liver, lung and spleen etc.manju goel, j.1. this revision petition is under sections 397/401 read with section 482 cr.p.c. against the order and judgment dated 22nd april, 2004 passed in criminal appeal no. 408/2002 passed by learned sessions judge, new delhi in the case of fir no. 297/95 under sections 279/304-a of the indian penal code (in short 'ipc').2. the facts as they appear from the judgment of ms. mamta sehgal, additional sessions judge is that the bus bearing no.dl-1p-2979 on 15.8.1995 at around9.00 p.m., plying on route no. 521 came at fast speed and took a sharp turn at shivaji stadium and hit the pedestrian on account of which he fell down and when the injured was brought to the hospital he was declared brought dead. the driver of the bus ran away from the spot fearing apprehension of assault by the members of the public. a notice under section 133 of the motor vehicle act was served upon the owner of the vehicle on which the name of the accused/petitioner- narender singh- was given by the owner. a post mortem was done on the body of the deceased and after the completion of other formalities of investigation the challan was filed. the accused was charged under sections 279/304a ipc and was convicted by the learned metropolitan magistrate. he was sentencedto si for 6 months and fine of rs. 1,000/- under section 279 ipc and si for 1-1/2 years nd fine of rs. 4,000/- for the offence under section 304a ipc. the conviction and sentence were maintained in appeal before the court ofsessions.3. before this court it is contented on behalf of the learned counsel for the petitioner that the doctor who conducted the post mortem examination has not been produced in court and that the principal witness, namely, conductor of the bus has also not bee produced and, thereforee, the conviction cannot besustained. this has led the court to go through the evidence on record.before the metropolitan magistrate, the prosecution produced six witnesses.pw-1 is the constable who proves the recovery memo dat d 17.8.1995 in respect of the seizure of the driving license of the petitioner which is exh.pw-1/a.pw-2, shri baldev singh, is the eye-witness to the accident. pw-3 is a clerk of the lady harding hospital where the post mortem was conducted. he proved te post mortem report by proving the signatures of dr.j. singh who conducted the post mortem but had left the hospital and his whereabouts were not known to the hospital staff. pw-4 is the sub-inspector of police station mandir marg who reached the spot o receipt of the dd entry in respect of the accident on15.8.1995 and recorded the statement of baldev singh, pw-2 who was available at the spot. he also made the investigation in the case but he was transferred before the challan could be filed. pw-5 is si rameshwar dass who recorded the fir on the basis of a rucca from si dalip kumar, pw-4. pw-6 is the person who conducted the mechanical inspection of the bus no.dl-1p-2979 and prepared the report exh.pw-6/a. pw-7 is si ashok kumar who completed the investigation in the case.4. the most important witness is the eye-witness baldev singh. he has deposed that while he was taking a stroll in the night after his dinner at the relevant place he saw the offending bus coming from the side of connaught place at a very high speed of ab ut 90 km. per hour and as it was turning it struck against a pedestrian and thereafter the driver instead of stopping the bus took it inside the bus terminal and ran away from the spot. learned counsel for the petitioner has disputed the veracity of this witness by saying that this witness in his cross-examination has stated that he saw the bus coming from a distance of 10 ft. and during this period he could not have assessed the speed of the bus as 90 km. per hour. this, in my opinion, is not a very ser ousdiscrepancy. what matters is not the speed of the bus as 90 k.m.per hour.what is important is to prove that the speed of the bus was rather high. it has to be noticed that the bus was taking a turn to enter the terminal and it was all the more essen ial for the driver to be more cautious than on a straight road.5. the other objection of the learned counsel for the petitioner is that the doctor who conducted the post mortem examination was not examined. it was not the case of the accused-petitioner anywhere that the pedestrian had collapsed on account of any re son other than the impact of the bust striking him. the post mortem report says that the cause of death was '' hemorrhagicshock consequent upon multiple injuries to internal organs like liver, lung and spleen etc. along with cerebral damage due to bluntimpact which could becaused by a vehicular accident as alleged. all the injuries were anti-mortem in nature and fresh in duration''.6. learned counsel for the petitioner refers to the judgment in the case of suresh kumar v. state reported as 1998 (3) chc 52 in which a conviction by the trial court in an offence under sections 279/304a ipc was set asideand the accused wasacquitted. it was observed in that judgment that the statement of the witnesses had been recorded seven years after the accident and the nature of injuries, time and cause of death had not been proved on record and the post mortem report had also not been pro ed and, thereforee, the conviction could not be sustained. in the present case the post mortem report has been proved and the eye witness has not faulted even once in the witnessbox. he was examined in court within two years of the accident and it is unlikely that having witnessed such a serious event, he would forget the details of the incident.7. there being an eye-witness in the case who saw the bus striking the victim and the victim has been declared brought dead on being brought to the hospital from the spot, not much remains to establish that the death was caused by blunt force applied by he bus in striking the pedestrian.8. so far as the sentence is concerned, the learned counsel for the state relies upon the judgment of the supreme court in the case of dalbir singh v. state of haryana and ors. reported in : 2000crilj2283 in which the hon'blesupreme court has expressed grave concern over the negligence of a professional driver causing death of a pedestrian and over the lenient approach of the court in punishing such offenders.9. the judgment disapproves the application of probation of offenders act for such offences. in the word of the supreme court:- '' 13. bearing in mind the galloping trend in road accidents in india and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under s. 304, i.p.c. as attracting the benevolent provisions of s. 4 of the po act. while considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving ofautomobiles, one of the prime considerations should be deterrence. a professional driver pedals the accelerator of the automobile almost throughou this working hours. he must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedaled ofa vehicle in locomotion. he cannot and should not t ke a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court.he must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. this is the role which the court scan play, particularly at the level of trial courts, for lessening the high rateof motor accidents due to callous driving of automobiles.''10. there is absolutely no force in the revision petition and the conviction has to be maintained. the revision petition is accordingly dismissed.