Criminal Revision No. 1452 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1452 of 2003. Date of Decision : 23.2.2011. Rakesh Kumar ...... Petitioner Versus State of Punjab ...... Respondent CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. A.K. Khunger, Advocate, for the petitioner. Mr. Ranvir S. Chauhan, DAG Punjab, for the respondent-State. NAWAB SINGH J.(ORAL) This revision is directed against the judgment dated July 7th, 2003 passed by Sessions Judge, Bathinda, affirming the judgment of conviction and order of sentence dated November 15th, 2002 of Judicial Magistrate First Class, Bathinda, whereby, the petitioner was convicted and sentenced as under:- Offence Sentence Fine In default 279 IPC RI for 6 months -- -- 304-A IPC RI for 2 years Rs.2000/- RI for 3 months The sentences were ordered to run concurrently. 2. Firstly the facts. On May 2nd, 2000 at about 8/8.15 a.m., Gurmail Singh-author of First Information Report (Exhibit PA), his uncle Kaka Singh (PW-3) and father's sister's husband Veer Singh (deceased) were going on their respective bicycles from their village Behman Diwana to Bathinda city. Kaka Singh and Veer Singh were ahead of him. When they reached near the gate of Thermal Colony, Bathinda, a truck bearing No. RJ-31-G-1879 driven by the petitioner at a fast speed and in rash and negligent manner came from behind. The truck struck against the bicycle of Veer Singh. Veer Singh received multiple injuries and died on the spot. The petitioner Criminal Revision No. 1452 of 2003 2 stopped his truck and alighted from it but thereafter, managed his escape. 3. Gurmail Singh reached the Police Station, Thermal, Bathinda and made statement (Exhibit PA) to Hukam Chand, Assistant Sub-Inspector (PW-4). Hukam Chand reached the spot and prepared the site plan (Exhibit PW-4/B). The scene of occurrence was photographed on May 9th, 2000. The petitioner along with his truck surrendered before the Investigator. He was arrested. The truck was taken into possession vide recovery memorandum (Exhibit PW-4/D). The post-mortem examination was conducted by Dr. Sushil Gupta (PW-1). 4. On completion of investigation and other formalities, the accused was arraigned for trial. 5. Prosecution in supports of its case examined five witnesses. These were:- Dr. Sushil Gupta (PW-1), Gurmail Singh (PW-2), Kaka Singh (PW-3), Yashpal Singh, Constable (PW-3 wrongly mentioned), Hukam Chand (PW-4) and Vikas Chaudhary, an employee of the office of District Transport Officer, Hanumangarh (PW-5). 6. In his examination recorded under Section 313 of the Code of Criminal Procedure, the petitioner denied his complicity. 7. The eye witness account in this case has been rendered by Gurmail Singh (PW-2) and Kaka Singh (PW-3). Both of them have spoken with one voice that on the fateful day viz May 2nd, 2000 they along with Veer Singh (deceased) were going on their respective bicycles from their village to Bathinda city. They were paddling bicycles on the correct side of the road. Meanwhile, the truck came from behind and ran over Veer Singh. As a result thereof, he received multiple injuries. On post-mortem examination, Doctor found following injuries on the dead body of Veer Singh:- “1. Whole of the face, skull was crushed. Brain matter was coming out and embedded with sand particles. Eyes, ears and eye lids completely crushed. Teeth were broken. Mandible was Criminal Revision No. 1452 of 2003 3 fractured and coming out of all the bones of the skull and face were fractured. Haematoma was present on whole of the face and skull. 2. Fresh injury of 20 x 10 cm present on the left upper chest and on dissection there was fracture of 5 ribs of left side. 3. Swelling of left shoulder on dissection there was fracture of shoulder bone. 4. Crush injury on whole of the left forearm and upper arm on dissection there was fracture of both bones of forearm of left side in the middle. 5. Swelling and abrasion of lower left leg on dissection both bones of left were fractured at lower one third. 6. Abrasion of 4 x 5 cm on the front of left knee joint. 7. Abrasion on the right front knee joint. 8. Abrasion longitudinal in safe on the back of right shoulder. 9. Longitudinal abrasion mark on the left lower abdomen. Haematoma was present all over the injuries.” Both the eye witnesses were cross-examined by learned counsel for the petitioner but no discrepancy could be pointed out in order to shake their evidence despite searching questions put to them. The only criticism to the evidence of Gurmail Singjh (PW-2) made by the counsel for the petitioner was that in his statement, he deposed that truck also struck his bicycle but he did not receive any injury which shows that he was not present on the spot. The submission of the counsel is not acceptable for the simple reason that it was not the case of the prosecution that Gurmail Singh also received injury in the occurrence. It might be that he fell down on the road side but by the grace of God did not receive any injury. It was specifically stated by Gurmail Singh (PW-2) that his bicycle fell Criminal Revision No. 1452 of 2003 4 down on the road side. 8. The next limb of the argument of the petitioner was that since the petitioner was not arrested on the spot so, it is not possible to say that it was the petitioner who was driving the truck at the time of accident. The argument is again devoid of merit because petitioner himself brought the truck to the Police Station and surrendered. He was accordingly arrested. If he was not the driver of the offending truck, question of his surrendering before the Police would not have arise. Otherwise too, Gurmail Singh (PW-2) has deposed that he knew the driver of the truck earlier also. 9. The last submission made by the counsel for the petitioner is that petitioner being the first offender, should be released on probation. To support the contention, he has relied upon (i) Manohar Lal vs. State of Punjab, 2004(1) Rcr (Criminal) 656; (ii) Sudh Ram vs. State of Punjab 2006(3) RCR (Criminal) 550 and; (iii) Karamjit Singh vs. State of Punjab 2009(4) RCR (Criminal) 227; 10. In Manohar Lal's case (supra) this Court released the accused on probation in case registered against him under Section 304-A etc. IPC taking into consideration the fact that he had already undergone substantial portion of his sentence and had faced the agony of trial for five years. It is not mentioned in the cited authority as to what was the quantum of sentence actually the accused had undergone. In the present case, the petitioner has undergone actual sentence of 15 days only as per the custody certificate produced by the State so, the benefit of probation on the basis of this authority cannot be given. 11. In Sudh Ram's case (supra) this Court released the accused on probation in case registered against him under Sections 279 and 304-A IPC on the ground that he had already undergone imprisonment for a period of two and a half months and his family consisted of his wife, five daughters, a son and old parents but it is not so in the present case. 12. In Karamjit Singh's case (supra) accused was convicted under Section 307 IPC and sentenced to undergo rigorous Criminal Revision No. 1452 of 2003 5 imprisonment for three years and to pay fine of Rs.1500/-. He was also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. The sentences were directed to run concurrently. It was prayed before the Hon'ble Supreme Court that it was the first offence of the accused and he had served part of the sentence and long period had elapsed since the date of occurrence of the incident so, he may be granted benefit of the provisions of Probation of Offenders Act or Sections 360 and 361 of Code of Criminal Procedure but the said prayer of the accused was rejected by the Hon'ble Supreme Court. In the cited case, Hon'ble Supreme Court also observed in paragraph 23 of the judgment while considering the scope of grant of relief under the provisions of Sections 360 and 361 Cr.P.C or under the provisions of Probation of Offenders Act as under:- “In Manjappa v. State of Karnataka, 2007(3) RCR(Criminal) 216 : 2007(3) RAJ 267 : JT 2007 (7) SC 226, this Court considered the scope of grant of relief under the provisions of Section 361 Cr.P.C. or under the provisions of Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash & Ors. v. State of Haryana, (2001)10 SCC 477 and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remain absent as in a case of rash and negligent driving under Section 279 read with 304A I.P.C. where the High Court itself reduces the sentence substantially, such beneficial provisions should not be given effect to.” 13. In State of Karnataka vs. Murlidhar 2009(2) RCR (Criminal) 469, accused was convicted under Section 304-A IPC and sentenced to undergo rigorous imprisonment for a period of one year. The High Court set-aside the conviction and directed to pay fine Criminal Revision No. 1452 of 2003 6 of Rs.5000/-. Hon'ble Supreme Court set-aside the order of the High Court and restored the judgment of the trial Court by observing that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 14. In the case in hand, Veer Singh victim was going on his bicycle. He was about 45 years of age. He was run over by the truck being driven by the petitioner at a fast speed and in rash and negligent manner. The injuries as detailed above would go to show that the impact was so heavy that the face and skull of the deceased were crushed. In view of the concept of law enunciated in the authorities of the Hon'ble Supreme Court, this Court is of the opinion that it will not be in the interest of justice to release the petitioner on probation. However, taking into consideration the fact that it was the first offence committed by the petitioner, he has already faced the agony of protracted trial spreading over a period of 11 years, this Court reduces the sentence of the petitioner from two years to one year under Section 304-A IPC. However, the sentence of imprisonment under Section 279 IPC and sentence of fine shall remain intact. 15. Except with this modification in the quantum of sentence, the revision petition is dismissed. 16. The revisionist is on bail. His bail/surety bonds are cancelled. He shall be taken into custody forthwith to serve out the remainder of the sentence. Learned trial Magistrate is directed to comply with this order under intimation to this Court. 23.2.2011. (NAWAB SINGH) SN JUDGE