Crl.R.No.2037 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.2037 of 2004 (O&M) Date of Decision: November 30, 2010 Rajender s/o Manohar Lal, Caste Bhadbhuja, R/o Virohar, Police Station Salahabam, District Rohtak, aged 29 years. .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.I.K.Mehta, Sr.Advocate with Mr.M.S.Kohli, Advocate for the petitioner. Mr.Amandeep Singh, AAG, Haryana. ....... RAM CHAND GUPTA, J. This revision petition has been filed against judgment dated 27.9.2004 passed by the Court of learned Additional Sessions Judge, Faridabad, in FIR No.117, dated 18.5.1996, registered under Sections 279, 304-A IPC, Police Station Chhainsa, upholding the judgment of conviction dated 2.5.2002 and order of sentence dated 3.5.2002 passed by learned Judicial Magistrate Ist Class, Faridabad. The facts in brief are that an accident had taken place on 18.5.1996. Complaint was lodged with the police by complainant Manohar Singh son of Jaswant Singh. According to him at about 7.45 p.m, he alongwith Pappu son of Vishnu Pandit, resident of village Chhainsa was returning from their tubewell towards their village when in the meantime a tanker bearing registration No.HYO-6801, which was being driven in a very rash and negligent manner by its driver, came to the side of patrol pump towards village Chhainsa. Hoshiyari son of Munni (deceased) was going on a cycle towards his right side from Mohna Road towards his fields when in the meantime, driver of tanker brought the tanker on the wrong side of the road and hit against the cyclist from the front side due to which Hoshiyari fell on the road alongwith cycle and sustained injuries in his head. Tanker Crl.R.No.2037 of 2004 (O&M) -2- was stopped by its driver. Driver got down from the tanker and however, after sometime, he ran away, after leaving the tanker at the place of occurrence. Hoshiyari succumbed to the injuries at the spot. He could recognise the driver of tanker if brought before him. The report was lodged very promptly, i.e., at about 8.20 p.m. on the same day after the Investigating Officer reached the place of accident after receiving information. He prepared site plan of place of occurrence and had taken the cycle and the tanker in his possession. After completion of the investigation, report under Section 173 of the Criminal Procedure Code (hereinafter to be referred as the `Code') was prepared and challan was put in the Court against the revision petitioner-accused. Learned trial Court framed charges against the present revision petitioner-accused for offences under Sections 279/304-A IPC, to which he did not plead guilty and claimed trial. In order to substantiate the allegations against the revision petitioner-accused, prosecution examined as many as 9 PWs PW1 is Raj Singh, Constable, who got conducted the postmortem examination on the dead body of Hoshiyari (deceased). PW2 is Manohar Singh, complainant and an eye-witness of this case, who supported the case of prosecution, as detailed above. PW3 is Sumer Singh son of deceased, who identified the dead body of his father and in whose presence the broken cycle of his father and tanker were taken into possession by the Investigation Officer. PW4 is Sunder Pal, Photographer, who had taken the photographs of the place of occurrence. PW5 is Sadhu Ram, Sub Inspector, i.e., Investigating Officer of this case, who had recorded statement Ex.PA of the complainant and sent the same to the police station for registration of the FIR alongwith his endorsement, on the basis of which formal FIR was registered. He also prepared site plan of the place of occurrence as Ex.PW5/C. He got conducted the mechanical examination of the tanker involved in the accident and prepared the report under Section 173 Cr.P.C., after completion of the investigation. PW6 is Constable Md.Aalam, who had handed over the dead body of the deceased Hoshiyari to his relatives. PW7 is Girraj son of Shri Amargopal, who had conducted the mechanical examination of the tanker involved in the accident and given the report Crl.R.No.2037 of 2004 (O&M) -3- Ex.PW7/A. PW8 is Chander Pal son of Vishnu, another alleged eye-witness of the occurrence, who had deposed that the accident had taken place due to rash and negligent driving on the part of the driver of the tanker. However, he could not identify the driver. PW9 is Dr.Shashi Bala, Medical Officer, who conducted the post mortem examination on the dead body of Hoshiyari. She proved her report Ex.PW9/A. Statement of accused in terms of Section 313 of the Code was recorded in which he denied the prosecution version and however, he did not lead any evidence in his defence. After hearing both the sides and after perusing the record, learned Judicial Magistate Ist Class convicted the present revision petitioner accused for offences under Sections 279 and 304-A IPC and sentenced him to undergo rigorous imprisonment for a period of three months for offence under Section 279 IPC and to further undergo rigorous imprisonment for a period of one year and fine of Rs.500/- for offence under Section 304-A IPC and in case of default of payment of fine to further undergo rigorous imprisonment for a period of 15 days. However, both the sentences were ordered to run concurrently. Appeal was filed against the said judgment of conviction and order of sentence passed by learned trial Court before the Court of learned Additional Sessions Judge, Faridabad, which was dismissed vide impugned judgment and hence the present revision petition. I have heard learned counsel for the parties and have gone 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 has been vehemently contended by learned counsel for the revision petitioner that driver of the tanker involved in the accident was not known to the complainant earlier and that as per prosecution version, driver Crl.R.No.2037 of 2004 (O&M) -4- came out of the tanker and went away and hence it is contended that there was no occasion to identify the driver of the tanker by the complainant. It is further submitted that no identification parade of revision petitioner-accused was held at any time and that he was identified for the first time in the Court by complainant when he appeared as PW2 on 15.5.1999, i.e., after about three years of the occurrence. Hence, it is contended that identification for the first time in the Court is not an identification in the eyes of law and hence the Courts below have committed illegality in accepting the testimony of PW2 that it was petitioner, who was driving the tanker at the time of accident. He has also placed reliance upon a judgment rendered by a coordinate Bench of this Court in Sunder @ Surinder v. State of Haryana 1999(2) RCR (Criminal) 554 and a judgment rendered by Hon'ble Apex Court in Wakil Singh and others v. State of Bihar 1981 Supp SCC 28. On the other hand, it has been contended by learned counsel for the State that the revision-petitioner accused was duly identified by PW2 Manohar Singh and that his deposition on the point has not been assailed by learned counsel for the accused in the cross-examination and that rather a suggestion was put to this witness that accused was driving his vehicle in a careful manner. It is also contended that no such plea was also taken on behalf of the accused at the time of argument before learned trial Court that he was not driving the tanker at the time of accident and that rather plea taken on his behalf was that accident had occurred as cyclist slipped as it was raining and that no accident had taken place when the tanker was being driven by the petitioner-accused. It is further contended that such plea was taken by revision petitioner-accused for the first time before learned appellate Court and then before this Court. A careful perusal of testimony of main witness PW2-Manohar Singh, who identified the petitioner-accused shows that his testimony was not challenged on the point that petitioner-accused was driving the tanker at the time of accident. Rather the suggestion was put to him on behalf of the accused that he was driving his vehicle in a careful manner. There is also force in the argument of learned State counsel that no such plea was taken on behalf of the accused at the time of argument before learned trial Court that he was not driving the tanker at the time of accident. Rather the plea was taken that no accident occurred due to his negligent driving and rather Crl.R.No.2037 of 2004 (O&M) -5- deceased slipped alongwith his cycle as it was raining and due to sudden fall, his head got fractured. The tanker was recovered from the place of occurrence by the police as immediately after the accident the Investigating Officer of the case reached the place of accident. Hence, there is no force in the argument of learned counsel for the revision-petitioner that he was not driving the tanker at the time of accident and hence the aforementioned judgments are not of any help to the case of present revision petitioner. It is further contended by learned counsel for the revision- petitioner accused that no crush injury was found on the dead body of the deceased and hence, it cannot be said that he was crushed due to collision against the tanker. It is further contended that rather the plea of the accused is that the deceased had fallen as it was raining and his head got fractured and hence the version that he succumbed to injuries received in the accident seems to be more plausible. On the point he has also placed reliance upon a judgment of coordinate Bench of this Court in Nirmal Singh v. State of Haryana 1996 (1) RCR 406. However, the said case is not applicable to the facts of present case. In Nirmal Singh's case (supra) deceased was crossing the road and he fell down as his leg entangled in his dhoti and in the meantime a truck came there and ran over him and hence on these facts it was held that there was no rash and negligent driving by the driver of the truck. However, in the present case, a perusal of site plan prepared by the Investigating Officer shows that both, the tanker and the cycle were found lying on the same side of the road, showing that tanker was brought on the wrong side of the road and hit against the cyclist from the front side as has been deposed by PW2- Manohar Singh, duly corroborated by PW8 Chander Pal on this point. Further as per report of post mortem examination injuries were found on liver, right leg and right side of brain of the deceased and hence it has been rightly observed by the Courts below that it was not possible to sustain these types of injuries by cyclist on mere fall on the road. The tanker was being driven by petitioner-accused at a busy locality and it was admittedly raining and hence, it was incumbent upon him to take extra care and to have driven his tanker at a slow speed. Had he taken necessary precaution, accident could have been avoided. Hence, it Crl.R.No.2037 of 2004 (O&M) -6- cannot be said that any illegality has been committed by the courts below in holding that the accident was caused due to rash and negligent driving of the driver of the tanker driven by the present revision petitioner-accused. It may also be mentioned here that cycle was also found in broken condition and petitioner-accused ran away by leaving the tanker at the place of accident. Both the Courts below found depositions of PW2 Manohar Lal and PW8 Chander Pal convincing and reliable and the same are also corroborated by other circumstantial evidence, as detailed above. Discrepancies are minor in nature. Hence no fault can be found in the judgment of conviction passed by learned trial Court and 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 the year 1996, i.e. for the last about 14 years and that he has already undergone three months and 19 days of the sentence out of one year awarded. It is further contended that revision petitioner 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, 1958, or the sentence may be reduced to the period already undergone by him. In support of his plea he has also placed reliance upon Paul George v. State of NCT of Delhi (2008) 4 Supreme Court Cases 185. 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 tanker in rash and negligent manner and that he even did not bother to take care of the injured and rather ran away from the place of accident after leaving the tanker at the spot 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 Crl.R.No.2037 of 2004 (O&M) -7- 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 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 Crl.R.No.2037 of 2004 (O&M) -8- 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 tanker in a rash and negligent manner at a busy place and on a rainy day and hit against the cyclist by taking the tanker on the wrong side of the road as he lost control over the same resulting the cyclist fallen down and sustaining injuries resulting in his death. Hence, taking into consideration the peculiar facts and circumstances of the case and the legal preposition 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 Paul George's case (supra) is concerned, in that case law point for giving the benefit under Probation of Offenders Act to a convict for offence under Section 304-A IPC was not discussed, and however, Hon'ble Apex Court in its discretion released the accused on probation by taking into consideration the fact that he was facing trial for the last 20 years and was, being a government employee, already dismissed from service on account of conviction despite the fact that he was having good career through out but for the said one abrasion. So far as quantum of sentence is concerned, learned trial Court has already taken a lenient view in sentencing the revision petitioner- accused 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. 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. 30.11.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No. Crl.R.No.2037 of 2004 (O&M) -9- Crl.R.No.2037 of 2004 (O&M) -10-