[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Decided on 15 .10.2012. [ENTITY] Petitioner versus The [ENTITY] Respondent 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? CORAM : HON'BLE MR.JUSTICE [ENTITY] Present :- Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], AAG, Punjab. [ENTITY], J.
Challenge in this revision petition is the judgment dated 19.01.2004 passed by Shri [ENTITY], the then learned Sessions Judge, Patiala vide which the appeal preferred by accused against the judgment and order dated 26.2.2002 passed by Shri [ENTITY], Sub Divisional Judicial Magistrate, Nabha, who convicted and sentenced the accused under [SECTION], [SECTION] and [SECTION], of the [ACT] ( in short - the [ACT]), was dismissed.
2. Briefly stated the case of the prosecution is that on 18.6.1997 [ENTITY]-complainant was present in the house. At about 8.a.m. [ENTITY] (since deceased) came to him and told him that he would accompany him in the car bearing registration No. PIL-195 to see his maternal uncle [ENTITY] at village Harigarh. After reaching village Harigarh, [ENTITY] also took [ENTITY] and a child namely [ENTITY] in the same car and they were returning to their village Dhingi. [ENTITY] was driving the said car whereas [ENTITY] complainant was sitting by his side. After crossing the drain, they reached the turning at about 9p.m. The accused while driving the offending truck bearing registration No. PB-13-A-9119 rashly and negligently came from the opposite side i.e. from Nabha side and struck his truck in the right side of the car. As a result of which, the car after skidding from the road rolled into the paddy field. [ENTITY] was pressed in the car whereas [ENTITY], [ENTITY] and [ENTITY] received injuries. After the car was stopped, they came out from the car. [ENTITY] was also taken out of the car after breaking open the window and he had died by that time. On the basis of aforesaid statement, FIR was recorded and investigation commenced. During investigation, the accused was arrested. Statements of the witnesses were recorded. After completion of the investigation, challan was presented against the accused.
3. On appearance of the accused copies of the documents as relied upon by the prosecution were supplied to the accused free of costs. Accused was charge sheeted under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] to which the accused pleaded not guilty and claimed trial.
4. Prosecution, in order to substantiate its case, examined Dr. [ENTITY] (PW-1), [ENTITY] (PW-2), ASI [ENTITY] (PW-3), [ENTITY] (PW-4), [ENTITY] (PW-5), [ENTITY] (PW-6) , [ENTITY] and closed the prosecution evidence.
5. Accused in his statement recorded under [SECTION] of the [ACT] denied all the allegations of the prosecution and pleaded his innocence. He further stated that in order to receive the compensation he has been involved in the present case. He was called upon to lead defence evidence but he did not lead any evidence in defence.
6. The learned trial Court, after appreciating the evidence on the file vide judgment and order dated 26.2.2002 convicted the accused under [SECTION], [SECTION] and [SECTION] of the [ACT], and sentenced him as under : -
Offence under Sentence [SECTION] [ACT] R.I. for three months. [SECTION] [ACT] R.I. for six months. [SECTION], [ACT] R.I. for one year and to pay Rs.1,000/- as fine and in default of payment of fine to further undergo RI for a period of three months.
7. All the sentences were, however, ordered to run concurrently.
8. Feeling dissatisfied with the aforesaid judgment and order dated 26.2.2002 passed by Shri [ENTITY], Sub Divisional Judicial Magistrate, Nabha, accused had preferred the appeal. The learned Sessions Judge, vide judgment dated 19.1.2004, dismissed the said appeal.
9. Still feeling dissatisfied with judgment and order dated 26.2.2002 and judgment dated 19.01.2004, as aforesaid, the petitioner has preferred the present criminal revision petition.
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. Learned counsels for the petitioner has submitted that the case of the prosecution hinges upon the testimony of [ENTITY] (PW-
5) and [ENTITY] (PW-4). So far as testimony of [ENTITY] (PW-5) is concerned he has not identified the petitioner in the court and has stated that he did not see [ENTITY]-petitioner driving the truck. He has further stated that there was pit in the road and there was turn on the road and car was little behind the turn on the road. [ENTITY] (PW-4) has identified the petitioner in the Court for the first time. So, his testimony cannot be believed. There was no test identification parade. The occurrence has taken place at the time when there was complete darkness. It is further submitted that although [ENTITY] (PW-4) has stated that he knew [ENTITY]-petitioner earlier but that stand is wrong on the face of it. This witness in the examination-in-chief has stated that he came to know the name of truck driver as [ENTITY]. So, the prosecution has not been able to prove the fact that accused/petitioner was driving the vehicle at the time of accident.
12. Learned counsel for the accused/petitioner has further submitted that mere presence of truck at the spot is not sufficient to conclude the guilt of the petitioner. From, the mechanical report it is revealed that only small portion of the truck has been damaged whereas car was completely damaged. It is submitted that normally the vehicle, which is at fast speed, damaged more, than the vehicle at slow speed. So, the car driver was at fault and accident has taken place due to his negligence.
13. Learned counsel for the petitioner-accused has further submitted that the petitioner is aged about 65 years. He has undergone incarceration for a period of two months and seven days. The injured claimants have received the amount of compensation. So, prayer has been made for reduction in sentence.
14. In reply to the above noted submissions, learned State counsel has submitted that three persons have been injured and one person has died due to rash and negligent driving of the petitioner-accused. [ENTITY] (PW-5) has been won over by the petitioner. [ENTITY] (PW-4), who is a stamped witness being injured witness has supported the case of the prosecution on all material particulars. The truck was found at the spot and was in a damaged condition. There was no enmity on the part of the prosecution witnesses. So, prayer has been made for dismissal of the revision petition.
15. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case with their able assistance.
16. So far as the submission made by learned counsel for the petitioner that [ENTITY] (PW-5) has not supported the case of the prosecution and that he has stated that there was pit and there was turn on the road, is concerned that submission is without any substance. The courts are not bound to accept the testimony of a witness as he seems to have been won over by the accused. [ENTITY] (PW-2) has identified the petitioner at the spot and has categorically stated that accident has taken place due to his rash and negligent driving. He is an injured witness and his presence at the spot cannot be doubted. Test identification parade normally for offence under [SECTION], of the [ACT], being bailable offence, is not conducted. The testimony of [ENTITY] has been rightly accepted by both the Courts below. [ENTITY] (PW-5) seems to have made statement regarding pit and turning in order to favour the accused. There is concurrent finding of fact recorded by both the Courts below proving guilt of the accused. The truck of the petitioner, in a damaged condition, was recovered from the spot. So, the finding recorded by both the Courts below regarding guilt of the accused does not call for any interference.
So far as the reliance of petitioner regarding mechanical report in respect of truck in question is concerned, that does not help the petitioner and arguments in this regard are imaginary. It is not rule of law that a vehicle running fast would be more damaged. The truck driven by the petitioner is a heavy vehicle and the car in which deceased was travelling along with the injured witness was a light vehicle. So, in these circumstances, it is the natural consequence that truck would not be damaged in the accident with the light vehicle and the light vehicle would be damaged badly. The very fact that car was thrown into the fields, goes a long way to prove that the offending truck was being driven by the petitioner at a very high speed rashly and negligently.
So far as the submission made by counsel for the appellant that accused is 65 years of age and has undergone incarceration for a period of two months and seven days and sentence be reduced to the period already undergone is concerned that submission cannot be accepted as the accidents cases are on rise and roads have become unsafe for the people and as such the court should not be let off the culprit by giving small punishment. However, the occurrence relates to the year 1997 and the petitioner has given his age as 48 years. The complainant has received the compensation in respect of death of deceased. He has further submitted that in case this Court is not inclined for acquittal of the accused/petitioner, in that case, in view of authorities Bhupinder Singh vs. [ENTITY] reported in 2006 (1) R.C.R.(Criminal) 725, Ram Pal vs. [ENTITY] reported in 2006(1) R.C.R.(Criminal) 784, [PRECEDENT] and Baljit Singh vs. [ENTITY] 1995(3) R.C.R.(Criminal) [SECTION], the petitioner be allowed concession of probation under [SECTION] and [SECTION] of the [ACT].
15. I have considered the submissions made by counsel for the petitioner and have gone through the authorities referred to above.
16. The ratio of the authorities mentioned above is that in a appropriate case under [SECTION], [ACT] probation can be granted depending upon the facts and circumstances of each case. However, Hon'ble Apex Court has depreciated the relief of probation under [SECTION], [ACT] except in a very exceptional circumstance. The reasoning given by the Apex Court is that the accidents are increasing on alarming rate posing danger to the lives of the public. It has been observed in some of the rulings that nobody knows that whether he will return safe in the house in view of alarming increase in the road accidents. Hon'ble the Apex Court in case Rattan Singh vs. [ENTITY], reported in AIR 1980 Supreme Court page 84 held as under :-
"Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. May be, the State may consider, in cases of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.
6. The victimization of the family of the convict may well be a reality and is regrettable. It is a weakness of our jurisprudence that the victims of the crime and the distress of the dependents of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature. We can only draw attention in this matter. Hopefully, the welfare State will bestow better thought and action to traffic justice in the light of the observations we have made. We dismiss the special leave petition."
17. The Hon'ble Apex Court again in authority in case [PRECEDENT] has held as under :-
"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 [SECTION] [ACT] as attracting the benevolent provisions of [SECTION] of the [ACT]. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his 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 pedal of a vehicle in locomotion. He cannot and should not take 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 Courts can play, particularly at the level of trial Courts for lessening the high rate of motor accidents due to callous driving of automobiles."
18. Our own High Court in authority reported in [PRECEDENT] has held as under :-
"The human life is not so cheap that it can be bartered away by the subordinate courts on unsustainable reasons. Day in and day out we find that the lives of innocent persons who have equal right to utilize the roads are taken away at the hands of the persons who are not trained in the art of good driving. Such traffic violations are at an alarming speed. Before granting the probation by the lower courts, a good amount of premises has to be built before resorting these provisions. Of course, awarding of punishment is in the discretion of the court, but this discretion has to be exercised according to judicial principles. Even in the impugned order, a compensation of Rs.5,000/- which has been awarded to the next of kin of the deceased cannot be said to have given solace to the family of the deceased."
19. Again this Court in authority in case [ENTITY] Versus State of U.T. Chandigarh 1999 (2) All India Criminal Law Reporter 411 has held as under :-
"Faced with this position, learned counsel for [ENTITY] and [ENTITY] submitted that accident took place in the year 1990. They remained in trial before the learned Magistrate for 5 years where they were convicted and sentenced. They went in appeal to the Court of Session in the year 1995 which unfortunately was dismissed in 1999. They thus remained in appeal before the learned Additional Sessions Judge, for about 4 years. They have thus been suffering the vagaries of this criminal trial for the last 9 years. During this period of 9 years, criminal trial has been hanging on their head like a damoclean sword. It was submitted that they should be released on probation of good conduct. Suffice it to say, they cannot be released on probation of good conduct as they were going on busy high way. While going on a busy high-way drivers of heavy vehicles should be extra-careful, cautious and circumspect. Rash and negligent driving of the trucks by them resulted in loss of one human life and injuries to others. Release on probation of good conduct is sometimes taken as let off and not in the spirit in which the [ACT] was enacted and [SECTION] of the [ACT] were incorporated."
20. In authority in case [PRECEDENT], the Hon'ble Apex Court deprecated the conduct of the trial Court in sending the accused with a small amount of fine only.
21. So, in these circumstances, keeping in view the authorities of Hon'ble Apex Court, referred to above, no case is made out for grant of probation to the accused/petitioner.
18. However, in latest authority of Hon'ble Apex Court in [ENTITY] vs. Balwinder Singh 2012(1) RCR (Criminal) page 425, awarded the sentence of six months and fine of Rs.5000/- in a case for offence under [SECTION], [ACT]. In the present case, appellant is suffering agony for the last about fifteen years.
19. So, in view of authority [ENTITY] vs. Balwinder Singh's case (supra) sentence of imprisonment awarded to the petitioner by the trial Court stands reduced to six months instead of one year. However, the sentence of fine and sentence imposed upon the petitioner- accused under other offences, stand affirmed.
17. With the modification in the sentence as aforesaid, the revision petition stands disposed of accordingly.
18. A copy of this judgment be sent to the trial Court for strict compliance.
( [ENTITY] ) JUDGE October 15 , 2012 sv