Crl.R.No.331 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.331 of 1996 Date of Decision: February 24, 2010 Mustak Singh son of Shakti Chand, resident of Gali Baba Tej Singh, Una, District Una (H.P.) .....Petitioner v. The State of Punjab ......Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Saurabh Bhardwaj, Advocate for Mr.Bipan Ghai, Advocate for the petitioner. Mr.Gaurav Garg Dhuriwala, AAG, Punjab. ...... RAM CHAND GUPTA, J. 1. The present revision petition is directed against judgment dated 22.5.1996 rendered by the Court of Additional Sessions Judge, Rupnagar, vide which it dismissed the appeal against judgment of conviction and order of sentence dated 16.9.1993 rendered by the Court of Judicial Magistrate Ist Class, Anandpur Sahib, convicting the present revision-petitioner for offence under Section 279 of the Indian Penal Code (for short `IPC') and sentencing to undergo rigorous imprisonment for a period of three months and to pay fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 20 days; convicting for offence under Section 338 IPC and sentencing to Crl.R.No.331 of 1996 -2- undergo rigorous imprisonment for a period of 4 months and to pay fine of Rs.600/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month; and convicting for offence under Section 304-A IPC and sentencing to undergo rigorous imprisonment for a period of 1-1/2 years and to pay fine of Rs.4000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 4 months. 2. Briefly put, the case of the prosecution is that on 3.3.1991, Bagga Singh s/o Shakti Ram, deceased alongwith Surjit Kaur, w/o Gian Chand (injured) was going on motor-cycle bearing No.PUR-6698 being driven by him and Surjit Kaur was pillion rider. They were returning from village Bhanam to Village Ghambirpur. Bhag Singh, complainant was following them on his scooter bearing No.HPG-4900. There was a distance of 200 yards between the scooter and the motor-cycle. At about 6.30 p.m., they reached at some distance from turning of village Jindwari, a Chasis bearing temporary No.RJ02/3320 came from opposite direction which was being driven at a very fast speed by Mustak Singh-accused, who was employed as a driver in HRTC depot. The driver could not control the Chasis and hit against the motor-cycle being driven by Bagga Singh, despite the fact that Bagga Singh was going on correct side. After hitting the motor-cycle being driven by Bagga Singh, accused ran away alongwith the Chasis towards the side of Nangal. As a result of accident, motor cycle was damaged, Bagga Sigh sustained serious injuries and succumbed to the injuries at the spot, Surjit Kaur fell on the left side and she also sustained grievous injuries. In the meantime, escort vehicle of Sh.Madan Mohan Mittal, the then President Bharatiya Janta Party, Punjab, reached there. The same was stopped and informed about the accident. The escort vehicle Crl.R.No.331 of 1996 -3- chased the chasis and apprehended the accused alongwith the chasis near turning of Village Ajouli. The driver was also brought to the police station. 3. After completion of the investigation, report under Section 173 of the Code of Criminal Procedure (for short `Cr.P.C.) was filed against the accused for his trial for offences under Sections 279, 338, 427 and 304-A IPC. 4. Accused was charged for offences punishable under Section 279, 338 and 304-A IPC, by learned trial Court to which he did not plead guilty and claimed trial. 5. In order to substantiate the allegation against the accused, the prosecution examined as many as 11 Pws. 6. PW1 is Sidhu Ram, who identified the dead body of Bagga Singh; PW2 is Jyoti Sarup, Photographer, who had taken photographs of the place of occurrence; PW3 is Bansi Ram Dewan, Service Station Incharge Depot, Una; PW4 is Sukhdev Sharma, Senior Clerk from the office of DGM Office, HRTC, Una Depot. PW5 is Dr.Raman Pal Singh, Medical Officer, Civil Hospital, Anandpur Sahib, who had conducted post mortem on the dead body of Bagga Singh and who had also conducted medico legal examination of the injuries on the person of Smt.Surjit Kaur; PW6 is Bhag Singh, complainant as well as eye-witness of the occurrence; PW7 is Smt.Surjit Kaur, another eye-witness of the occurrence; PW8 is ASI Bachan Dass, i.e., the Investigating Officer of this case; PW9 is Tarlochan Singh Constable-cum-mechanic Police Line, Ropar, who conducted mechanical examination of the chasis and the motor-cycle; PW10 is HC Harkrishan Singh, who remained posted as MHC at Police Station Nangal; PW11 is Constable Satpal, who was Escort Incharge of Sh, Madan Mohan Crl.R.No.331 of 1996 -4- Mittal, the then President Bhartiya Janta Party, on the day of occurrence. 7. Prosecution has also placed reliance upon Ex.PA, recovery memo, vide which photographs alongwith negatives were taken into possession; Ex.PB photostate copy of duty pass; Ex.PC copy of order of Divisional Manager, HRTC, Dharmshala, vide which accused was appointed as driver; Ex.PD copy of relevant page from service book of Mustak Singh-accused; Ex.PE copy of front page of service book of Mustak Singh-accused; Ex.PF copy of postmortem report of dead-body of Bagga Singh; Ex.PG copy of medico-legal report regarding Smt.Surjit Kaur; Ex.PG Statement of Bhag Singh; Ex.PG/1 endorsement of police on Ex.PG; Ex.PG/II copy of FIR; Ex.PH recovery memo of motor cycle bearing No.PUR 6698 and the shoes of the deceased; Ex.PJ recovery memo vide which documents of motor-cycle were taken into custody; Ex.PK recovery memo vide which front gauze of engine was taken into custody; Ex.PL recovery memo of chasis; Ex.PM recovery memo vide which documents pertaining to accused were taken into custody; Ex.PN personal search memo of accused; Ex.PO death report regarding Bagga Singh; Ex.PP Site plan of the place of occurrence; Ex.PQ wireless message sent from SHO, PS Nangal to SHO P.S.Anandpur Sahib; Ex. PR Mechanic report of motor-cycle; Ex.PS Mechanic report of chasis; and Ex. PH X-ray report regarding injuries on the person of Smt.Surjit Kaur. 8. Statement of accused under Section 313 Cr.P.C. was recorded, in which he denied the incriminating evidence coming against him and pleaded innocence. He also examined a witness Judhbir Singh, Head Mechanic, HRTC, Una in his defence as DW1. 9. Learned trial came to the conclusion that prosecution has been Crl.R.No.331 of 1996 -5- able to prove its case against the accused for commission of offences punishable under Sections 279/338/304-A IPC beyond any shadow of reasonable doubt. The accused preferred appeal against the said judgment, however the same was dismissed by the Court of Sessions and hence, the present revision petition. 10. I have heard learned counsel for the parties and have gone through the whole record carefully. 11. It is settled principle of law that in its revisional jurisdiction, this Court is not to reappreciate and reappraise the evidence until and unless, it comes to the conclusion that the findings recorded by the trial Court are perverse, illegal and erroneous on account of misreading of evidence. The Courts below while relying upon the cogent and convincing evidence of prosecution witnesses, were right in coming to the conclusion that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt. 12. The revision-petitioner drove the chasis in a very rash and negligent manner and hence, he lost control over the same and hit against the motor-cycle being driven by Bagga Singh-deceased on which Smt.Surjit Kaur PW was a pillion rider, due to which Bagga Singh succumbed to his injuries and Smt.Surjit Kaur also sustained grievous injuries. Complainant Bhag Singh was following on a scooter at some distance from Bagga Singh. Accident was witnessed by two witnesses. Both the Courts had come to the conclusion that deposition of both the eye-witnesses, namely, Bhag Singh and Smt. Surjit Kaur is consistent on all the material points. Their deposition has further been corroborated by other oral and documentary evidence, as stated above. It has also been proved from the Crl.R.No.331 of 1996 -6- official record that petitioner-accused was driver on the said chasis on the day of accident. As per Mechanical report, it was found that the damage was also caused to the chasis. 13. It has been argued by learned counsel for the petitioner that identity of the petitioner-accused having caused the accident by driving chasis bearing temporary No.RJ02/3320 has not been proved and hence, benefit of doubt should be given to the petitioner-accused. 14. However there is no force in the argument of learned counsel for the revision-petitioner as the said point has been thoroughly gone into by both the courts below. Petitioner-accused ran away after causing the accident, and however, he was over-powered by escort vehicle of a political leader, immediately after the accident after covering some distance and accused was apprehended and brought to the police station. Damage was found caused to the vehicle being driven by the present revision-petitioner. 15. Learned counsel for the revision-petitioner has also pointed out minor discrepancies in the statement of witnesses, however, the same were also fully discussed by both the courts below and no doubt is created in the veracity of prosecution version due to the said fact. 16. Both the courts below came to the conclusion that deposition of complainant Bhag Singh and injured Smt.Surjit Kaur inspires confidence. They were having no enmity against the present revision- petitioner and there is nothing as to why they should have deposed falsely against the present revision-petitioner. 17. Hence the judgment of conviction passed by learned trial Court and the judgment of learned appellate Court dismissing the appeal do not suffer from any illegality and the same are, hereby, upheld. Crl.R.No.331 of 1996 -7- 18. So far as quantum of sentence is concerned, it has been argued by learned counsel for the revision-petitioner that petitioner is facing trial since 3.3.1991, i.e., for the last about 19 years and that he is not a previous convict and hence, he should be granted benefit of Probation under the Probation of Offenders Act. 19. Law on the point as to whether the benefit of probation under the Probation of Offenders Act should be granted to the accused convicted for offence under Section 304-A IPC, has been settled by Hon’ble Apex Court in Dalbir Singh vs. State of Haryana, 2000 (2) RCR (Crl.) 816 by observing that the courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act when the accused is convicted of the offence under Section 304-A IPC in causing death of human beings by rash or negligent driving. Relevant paragraphs no.12 and 13 of the judgment read as under: “12. In State of Karnataka v. Krishna alias Raju(1987) 1 SCC 538 : ( AIR 1987 SC 861 : 1987 Crl.L.J. 776) this Court did not allow a sentence of fine, imposed on a driver who was convicted under S.304-A IPC to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposed a fine. 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-A 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 of automobiles, one of the Crl.R.No.331 of 1996 -8- 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 of 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.” 20. This judgment was subsequently followed by the Hon’ble Apex Court in B.Nagabhushanam v. State of Karnataka, 2008(3) RCR (Crl.)50 and the benefit under the Probation of Offenders Act was denied to the accused for commission of offence punishable under Section 304-A IPC. 21. In the present case petitioner-accused has taken life of an innocent person and injured another by driving his vehicle in a rash and negligent manner. The petitioner-accused did not stop after causing the accident and ran away, however, he was over-powered after covering some distance by a police escort vehicle, hence, in view of these facts and in view of the legal proposition settled by Hon'ble Apex Court in Dalbir Singh's case (supra) and B.Nagabhushanam's case (supra) accused does not deserve the benefit of probation under the Probation of Offenders Act. Crl.R.No.331 of 1996 -9- 22. However, taking into consideration the fact that the present revision-petitioner is not a previous convict and that he has been facing agony of trial for the last 19 years, and further taking into consideration the fact that he was only 25 years of age when the offence was committed and that by now his family responsibilities must have increased, I am of the view that he deserves some leniency in the quantum of sentence. 23. Hence, while maintaining judgment of conviction, the order of sentence passed by the Courts below is modified to the extent that the sentence is reduced to one year rigorous imprisonment for offence under Section 304 A IPC while maintaining the other sentences including the sentence of fine. 24. Hence, the present revision petition is dismissed except for modification in the quantum of sentence, as aforementioned. 25. The bail bonds of the revision-petitioner stands cancelled. The concerned Chief Judicial Magistrate shall take necessary steps to comply with the judgment with due promptitude keeping in view the applicability of provision of Section 428 Cr.P.C. 24.2.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter ? Yes/No.