Crl. Appeal No. 288-SB of 1993 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 288-SB of 1993 Date of Decision: October 23,2008 The State of Punjab .... Appellant Versus Kamaljit Singh son of Didar Singh son of Bhag Singh, resident of village Harerri. .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Shilesh Gupta, DAG, Punjab for the appellant-State. Mr. H.S. Rakhra, Advocate for the respondent. **** Sham Sunder, J. This appeal has been filed by the State of Punjab, for enhancement of sentence, against the judgment dated 26.05.1993, rendered by the Court of Judicial Magistrate Ist Class, Sangrur, vide which it convicted the accused (now respondent), for the offence, punishable under Sections 279 and 304-A of the Indian Penal Code, but released him on probation of good conduct. Crl. Appeal No. 288-SB of 1993 --2-- 2. The facts, in brief, are that on 11.07.1988 Kishan Chand and his younger brother, Vijay Kumar, were going on Harerri road on separate cycles, and when they reached near the Flour Mill, a truck bearing registration No. PUR-7171, being driven, rashly or negligently, by Kamaljit Singh, accused, resident of Harerri, came and struck against the cycle, which was being ridden by Vijay Kumar, as a result whereof, he sustained injuries and died at the spot. The driver of the truck, ran away with the truck. On the basis of statement Ex.PB, made by Kishan Chand, first informant, FIR Ex.PB/1 was registered. 2-A. Ujjagar Singh, Inspector, prepared the inquest report of the dead body of Vijay Kumar. The post mortem of the dead body of Vijay Kumar was got conducted. Site plan Ex.PJ was prepared. Cycle Ex.P1 and Milk drums Ex.P2 to P4 were taken into possession vide recovery memo Ex.PC. On 15.07.1988, the truck, Registration Certificate, driving licence, and route permit, were also taken into possession vide separate recovery memos Ex.PD, PE, PF and PG respectively. The accused was arrested. After the completion of investigation, the accused was challaned. Crl. Appeal No. 288-SB of 1993 --3-- 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279 and 304-A of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. H.S. Bali, Civil Hospital, Sangrur, (PW-1), who conducted the post mortem, on the dead body of Vijay Kumar, Kishan Chand, ( PW-2 ), an eye witness to the accident, Dr. K.C. Goyal, Medical Officer, Civil Hospital, Sangrur, ( PW-3 ), who sent the ruqa to the Police Station, Sangrur, for information and necessary action, about the dead body of Vijay Kumar son of Bhanu Ram, Harbant Singh,Constable (PW-4), who mechanically examined truck No. PUR-7171, Daljit Singh, Head Constable, ( PW-5 ), who recorded the FIR on receipt of ruqa, Bhanu Ram son of Palia Ram, ( PW-6 ) , father of the deceased, who stated that on 11.07.1988 at about 5.30 PM, he came to know that his son Vijay Kumar had met with an accident, and went to the hospital, where he found that his son had already died and he identified the dead body of his son, and Ujjagar Singh, Inspector ( PW-7 ), who investigated the case , arrested the accused, took into possession the truck and other articles. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No. 288-SB of 1993 --4-- 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. 5-A. In defence, the accused examined Gurmeet Singh, DW1. Thereafter, he closed his defence evidence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted the accused, and released him on probation of good conduct, on the ground, that he was the only bread winner of the family and the first offender. 7. Feeling aggrieved, against the release of the accused on probation of good conduct, the instant appeal, was filed by the appellant, for modification of the order of probation and award of substantive sentence. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that the death of a young man in his 20's, as per the post mortem certificate Ex.PA, took place, on account of the rash or negligent driving of the truck, by the accused, therefore, it was not a fit case, in which he deserved to be Crl. Appeal No. 288-SB of 1993 --5-- released on probation of good conduct. He further submitted that, it was a fit case, in which deterrent punishment should have been awarded to the accused by the trial Court, but it failed to do so and released him on probation of good conduct, without any valid reasons. He further submitted that there was no exceptional circumstance, on record, to show that the accused was entitled to be released on probation of good conduct. 10 On the other hand, the Counsel for the respondent, submitted that the accident took place on 11.07.1988 and now it is 2008. He further submitted that the appellant has been facing the criminal proceedings for the last about 20 years, and no ground, for awarding him substantive sentence after setting aside the order of probation, passed by the trial Court, is made out. In the alternative, he prayed that mercy be shown to the respondent, in the matter of awarding sentence. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, I am of the considered opinion, that the trial Court was completely and totally wrong, in releasing the accused, on probation of good conduct. The trial Court, acted in an extremely insensitive manner, by releasing the accused, on probation of good conduct. The trial Court did not take into Crl. Appeal No. 288-SB of 1993 --6-- consideration the factum ,that a boy of about 20 years, who had not seen the life, in its full circle, and may have lived up to 60 years or more than that, had died on account of the rash or negligent driving of the truck, by the accused. The mere fact that the accused was the only bread winner of the family and was a first offender, did not mean that he should have been granted probation, in such a heinous crime. 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 304-A IPC, as attracting the benevolent provisions of Section 4 of the Probation of Offenders 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 Crl. Appeal No. 288-SB of 1993 --7-- 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 the 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. The circumstances of the case and the nature of the offences, did not call for any expediency to release the accused on probation of good conduct. In Dalbir Singh v. State of Haryana 2000(2) RCR (Criminal) 816 while repelling the contention of the Counsel for the appellant, for grant of probation to the appellant, for the offence punishable under Sections 304-A and 279 IPC, it was held by the Apex Court that the Court could not treat the nature of offence under Section 304-A IPC, as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. It was also observed by the Apex Court that one of the most effective ways of keeping such drivers, under mental vigil, is to maintain deterrent element, in sentencing sphere. Any latitude, shown to them, in that sphere, would tempt them to make driving frivolous and frolic. When the trial Court, came to the definite conclusion, that the accused was guilty of rash or negligent driving, as a Crl. Appeal No. 288-SB of 1993 --8-- result whereof, the accident took place, resulting into the death of Vijay Kumar, a boy of about 20 years, it should not have shown insensitivity, in the matter of awarding sentence and releasing him on probation of good conduct. The order of probation is liable to be set aside. The submission of the Counsel for the appellant, is, thus, accepted. 12. The mere fact that the respondent has been facing the criminal proceedings for the last 20 years, in itself, is not sufficient to put a seal of approval on the judgment of the trial Court, vide which he was released on probation of good conduct. The more fact that the respondent/accused has been for a long number of years, facing the criminal proceedings, in itself, cannot be said to be a sufficient ground, to take a lenient view, in the matter of award of sentence to him, for the offence punishable under Section 304-A IPC. Under these circumstances, the submission of the Counsel for the respondent, being without merit, must fail, and the same stands rejected. 13. For the reasons, recorded above, the appeal is partly accepted, in the manner, that the judgment of conviction is maintained. The order releasing the respondent/accused on probation, is set aside, and he is sentenced to undergo rigorous imprisonment for a period of one and a half years, and to pay a fine of Rs.5000/-, and in Crl. Appeal No. 288-SB of 1993 --9-- default of payment of the same, to undergo rigorous imprisonment for a period of two months, for the offence punishable under Section 304-A of the Indian Penal Code, and further sentenced to undergo rigorous imprisonment for a period of six months, for the offence, punishable under Section 279 of the Indian Penal Code. Both the substantive sentences shall run con-currently. The Chief Judicial Magistrate, Sangrur, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment forthwith, and submit compliance report within a period of two months, from the date of receipt of a certified copy thereof. 14. The District & Sessions Judge, Sangrur, is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is sent immediately thereafter, to this Court. 15. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 23.10.2008 (SHAM SUNDER) dinesh JUDGE