Crl.R.No.651 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.651 of 2003 (O&M) Date of Decision: December 7, 2010 Joga Singh son of Shri Amrik Singh son of Shri Harnam Singh, resident of Village Dolon Kalan, Tehsil and District Ludhiana. .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.S.Slar, Advocate for the petitioner. Mr.Gazi Mohd., DAG, Punjab. ..... RAM CHAND GUPTA, J. This revision petition has been filed against judgment dated 21.3.2003 passed by the Court of learned Additional Sessions Judge, Ludhiana, in FIR No.1, dated 1.1.1993 under Sections 304-A, 338 IPC, registered at Police Station Sarabha Nagar, Ludhiana, upholding the judgment of conviction and order of sentence dated 27.2.1999 passed by learned Judicial Magistrate Ist Class, Ludhiana, vide which accused was convicted for offences under Sections 304-A/338 IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months for offence under Section 304-A IPC and to further undergo rigorous imprisonment for a period of one year and to pay fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for offence under Section 338 IPC. The facts in brief are that on 31.12.1992, revision-petitioner was driving Mini bus bearing No.PB-10B-9603 on Ludhiana-Humbran route. Paramjit Singh complainant boarded the bus from Bharat Nagar Chowk for village Iyalikala. Driver of the bus drove the same in a very rash and negligent manner. He could not control the same and hit against a cycle Crl.R.No.651 of 2003 (O&M) -2- going ahead of the bus. The cycle was being peddled by Jaswant Singh (deceased) whereas Bhajan Singh PW was pillion rider. Both of them sustained injuries. Jaswant Singh succumbed to the injuries at the spot, whereas Bhajan Singh suffered fracture and serious injuries and was removed to the hospital. After completion of investigation, report under Section 173 of the Code of Criminal Procedure (hereinafter to be referred as the `Code') was filed and challan was filed in the Court against the present revision petitioner. Learned trial Court framed charges against the present revision- petitioner for offences under Sections 304-A and 338 IPC to which he did not plead guilty and claimed trial. In order to substantiate the allegations against the revision- petitioner, the prosecution has examined as many as 9 PWs. PW1 is Bhajan Singh, an injured and eye witness of the occurrence, who deposed regarding the version of the prosecution, as detailed above. PW2 is Constable Change Lal. PW3 is Paramjit Singh, complainant, who corroborated the version of Bhajan Singh- PW1. PW4 is Dr. S.K.Sharma. PW-5 is Constable Harbans Lal. PW6 is Sub Inspector Gurdial Singh, i.e., Investigating Officer of the case. PW7 is Dr. Sanjeev Sabharwal; PW8 is Sub Inspector Malkiat Singh and PW9 is Smt. Surinder Kaur, a Clerk of the Office of DTO, Ludhiana. Statement of the accused in terms of Section 313 of the Code was recorded in which he denied the prosecution version and claimed to be innocent. He also examined a witness, namely, Kulwant Rai, Senior Clerk, R.T.A., Office, Patiala, in his defence. ` After hearing both the sides and perusing the record, learned Judicial Magistrate Ist Class convicted the present revision petitioner for offences under Sections 304-A/338 IPC and sentenced him, as aforementioned. Appeal was filed against the said judgment and order of sentence passed by learned trial Court before the Court of learned Additional Sessions Judge, Ludhiana, which was dismissed vide impugned judgment and hence the present revision petition. I have heard learned counsel for the parties and have gone Crl.R.No.651 of 2003 (O&M) -3- through the whole record carefully. 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. It is contended by learned counsel for the revision-petitioner that prosecution has failed to prove the identity of the bus involved in the accident and the fact that the same was being driven by the present revision petitioner. However, there is no force in the argument of learned counsel for the revision-petitioner, as both the Courts below have found the depositions of PW1-Bhajan Singh and PW3-Paramjit Singh as reliable and convincing. Sufficient reasons have also been given by learned trial Court in discarding the deposition of DW1-Kulwant Rai, Senior Clerk from the office of R.T.A., Patiala. It has been rightly observed by learned Appellate Court that it is common knowledge that private bus operators even ply buses on routes which are not covered by their route permits. Both the witnesses have deposed in their cross-examination that accused was earlier known to them, as they used to board that bus and bus used to ply on that route and same is used to be driven by present revision petitioner. Learned counsel for the revision-petitioner has also placed reliance upon Jagan Nath v. State of Haryana, (P&H) 2000(3) RCR (Criminal) 43 and State of Punjab v. Dalip Singh (P&H) (DB), 1994(3) Crimes 51 on the point. However, none of the said authorities is applicable to the facts of present case. Each criminal case is to be decided on the basis of its own peculiar facts. In Jagan Nath's case(supra) the accident occurred at night time and no eye witness could establish the identity of the driver. In Dalip Singh's case (supra) the witness had simply stated that two drivers alighted from the truck and hence he could not identify as to who was driving the same. Whereas in the present case it has come in evidence that the driver was earlier known to both the witnesses, as he used to ply the bus involved in the accident on the said route and the witnesses used to Crl.R.No.651 of 2003 (O&M) -4- travel by that bus. It is further contended that prosecution has failed to establish that accident had taken place due to rash and negligent driving on the part of the driver of the mini bus. On the point he has placed reliance upon B.C.Ramachandra v. State of Karnataka, 2007 Crl.L.J. 475 and Gurcharan Singh v. State of Punjab, 1987 (1) RCR (Criminal) 180. However, none of the said judgments is also applicable to the facts of present case. In Gurcharan Singh's case (supra) deceased cyclist abruptly came in front of the bus from a link road on his right side and the accused swerved his bus to his left and then to his right side in a bid to avoid the accident. In B.C.Ramachandra's case (supra) the driver had seen the bus already parked on the left side of the road and passengers alighting from the bus and hence after seeing the bus from some distance, he had taken the vehicle to the right side, so as to overtake the bus and however he suddenly noticed a lorry coming in high speed in front of him and in order to avoid a head on collision with the lorry, he took the vehicle to the right and in that process, the lorry hit the hind side of the fire engine and on these facts it was held that there was no rash and negligent driving on the part of the driver of the bus. However, in the present case, the bus was stopped by revision petitioner at the previous bus-stop, when complainant-Paramjit Singh boarded the bus and however, immediately thereafter he accelerated the speed and lost control and hit against the cyclist from behind. He did not stop the bus even when complainant cried that he had hit some cyclist and rather he stopped the bus on the next stoppage. Both the Courts below found depositions of PW1-Bhajan Singh and PW3 Paramajit Singh convincing and reliable and the same are also corroborated by other circumstantial evidence. Discrepancies are only minor in nature. Hence, no fault can be found in the judgment of conviction passed by learned trial Court as affirmed by learned appellate Court. So far as order of sentence is concerned, it has been argued by learned counsel for the revision-petitioner that he has been facing trial since 1.1.1993, i.e., for the last about 17 years and that he is not a previous convict and is only bread-winner of the family, and hence, it is contended that he be given benefit of probation under the Probation of Offenders Act, Crl.R.No.651 of 2003 (O&M) -5- 1958. On the other hand, it has been argued by learned State counsel that the present revision petitioner has taken away precious life of a person by driving his bus in rash and negligent manner and also caused serious injuries to another person and that he even did not bother to take care of the injured and rather did not stop the bus after the accident and ran away from the place of accident and hence it is contended that no interference in the order of sentence passed by learned Appellate Court is called for. 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 prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost Crl.R.No.651 of 2003 (O&M) -6- 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.” 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. In the present case the accused had driven his bus in a rash and negligent manner on a local route of village and hit against the cyclist from behind as he lost control over the same as he accelerated the speed of the bus all of a sudden, resulting into death of one person and caused serious injuries to another person and he even did not stop the bus to render helping hand to the injured, rather he ran away alongwith his bus. Hence, taking into consideration the peculiar facts and circumstances of the case and legal proposition settled by Hon'ble Apex Court in the aforementioned cases, there is no force in the argument of learned counsel for the revision petitioner that he is entitled to be released on probation under the Probation of Offenders Act. So far as quantum of sentence is concerned, learned trial Court has already taken a lenient view in sentencing the revision petitioner to undergo imprisonment for one year. Hence, no interference in the quantum of sentence passed by learned trial Court and as affirmed by learned Appellate Court is also called for. Crl.R.No.651 of 2003 (O&M) -7- Hence, for the reasons recorded above, the present revision petition is dismissed being devoid of any merit. The revision petitioner is on bail and hence, his bail 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. 7.12.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter ? Yes/No.