Criminal Revision No.1689 of 2004(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1689 of 2004(O&M) Date of decision:- September 30, 2010 Mahipal aged about 31 y ears son of Shri Lekh Ram, Parjapat by caste, resident of Village Fatehgarh, District Bhiwani. ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE RAM CHAND GUPTA Present:- Mr.Dinesh Kumar Jangra, Advocate for the petitioner. Mr.Amandeep Singh, AAG, Haryana. ……. RAM CHAND GUPTA J.(Oral) The present revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as `Cr.P.C.’) against judgement dated 14.8.2004, passed by learned Additional Sessions Judge, Bhiwani, vide which it dismissed the appeal directed against judgment of conviction and order of sentence dated 5.2.2001 passed by learned Judicial Magistrate Ist Class, Charkhi Dadri, District Bhiwani, vide which it convicted the present revision petitioner for offences under Sections 279/304 of the Indian Penal Code (hereinafter to be referred as `IPC’) and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.2000/- and in default of payment of fine to further undergo simple imprisonment for a period of two months for offence under Section 304-A IPC and to further undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.300/- and in default of payment of fine to further undergo simple imprisonment for a period of 15 days for offence under Section 279 IPC. Criminal Revision No.1689 of 2004(O&M) -2- 2. Briefly stated, the case of prosecution is that on 18.1.1995, Raj Singh, resident of Khatiwas, was standing on Khatiwas turn for going to his village, when he observed that some students were coming on their cycles towards the said turning point In the meantime, a Jugar (a mechanical operated vehicle), which was being driven in a rash and negligent manner by the petitioner-accused, came from the side of Dadri. He could not control the same and dashed against cycle of the student Ashok, to which he fell down. The vehicle was stopped by its driver. The driver of the vehicle disclosed his name to the complainant as Mahipal, i.e. present revision- petitioner-accused. Ashok was seriously injured. He was taken to Dadri in the same Jugar, and however, he succumbed to the injuries on the way. After reaching Sharma Hospital, petitioner-accused parked his Jugar in front of the said hospital and ran away. After completion of the investigation, challan under section 173 Cr.P.C. was filed against the petitioner-accused for his trial for offences under Sections 279/304 A IPC. 3. Revision-petitioner-accused was charged accordingly by learned trial Court, to which he did not plead guilty and claimed trial. 4. Prosecution examined as many as seven witnesses, namely, Dr.Anita Gulia as PW1, Udeyvir as PW2, Raj Singh as PW3, Vijender Singh as PW4, Vinod Kumar as PW5, Jai Singh as PW6 and Mahender PW7. 5. Statement of accused in terms of Section 313 Cr.P.C. was recorded in which all the incriminating evidence was put to him by learned trial Court. However, he denied all the allegations and took the plea that a false case was registered against him. However, he did not lead any evidence in his defence. 6. Learned trial Court convicted the present revision-petitioner for offences punishable under Sections 279/304A IPC and sentenced him for the said offences, as aforementioned. He preferred appeal against the said judgment and order before the Court of Sessions, which was also dismissed and hence the present revision petition. 7. I have heard learned counsel for the parties and have gone through the whole record carefully. 8. It is settled principle of law that in its revisional jurisdiction, this Court is not to reappreciate and reappraise the evidence until and Criminal Revision No.1689 of 2004(O&M) -3- 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 a reasonable shadow of doubt. 9. It has been argued by learned counsel for the revision- petitioner that there are some discrepancies in the statements of both the eye-witnesses, i.e., PW2 Udeyvir and PW3 Rajbir Singh, as Udeyvir Singh stated that he alongwith Raj Singh was sitting in wait of any vehicle to go to Dadri, whereas PW3 Raj Singh stated that he and Udeyvir Singh were standing for going to village Khatwas. It is also contended that both are related to the deceased. Further contended that as per first information report statement of Udeyvir Singh was taken by the police in Government Hospital, Dadri, whereas Jai Singh ASI PW6 stated that he had taken the statement of complainant from the Sharma Hospital. Further contended that PW4 has stated that his statement was taken by the police on 18.1.1995 at about 5.00-5.30 at spot, whereas Investigating Officer stated that he reached the spot at 10.00 p.m. at night. It has also been contended that the site plan in the present case has also not been proved as per law and that in the site plan mark `A’, place of accident was shown in the southern side of the road, whereas the accident occurred at northern side of the road. 10. On the other hand, it has been argued by learned State counsel that it was a busy area as it was a turning point and many students were going on cycles from the school and many persons were standing on the turning point and hence accused should have driven his vehicle by taking extra care and at a slow speed. It is further contended that the discrepancies pointed out by learned counsel of the revision-petitioner-accused are only minor in nature and this types of discrepancies are bound to come even in the deposition of truthful witnesses, after lapse of time. 11. All these facts have been duly considered by the Courts below and they have relied upon the depositions of PW2 and PW3, Udeyvir Singh and Raj Singh. Discrepancies only minor in nature and do not go to the root of the case. Further merely on the ground that witnesses are related to the deceased, it cannot be said that no reliance can be placed upon their Criminal Revision No.1689 of 2004(O&M) -4- testimonies. Learned Courts below found evidence of both the witnesses convincing and reliable and the same was also corroborated by other circumstantial evidence and hence, their testimonies cannot be brushed aside merely on the ground that they are related to the deceased. 12. It is a busy turning point and hence driver of the vehicle, i.e., present revision-petitioner-accused should have taken extra care and should have driven the same at a normal speed keeping sufficient distance from the cycles of the students. The very fact that he hit the vehicle against cycle of the student causing serious injuries to him resulting in his death shows that he was driving the same in a rash and negligent manner. 13. Hence, no fault can be found with the judgment of conviction passed by learned trial court and the impugned judgment passed by learned Appellate Court dismissing the appeal against the said judgment. 14. So far as the order of sentence is concerned, it has been argued by learned counsel for the revision-petitioner that he has already undergone 21 days of sentence. It is further contended that he has been facing agony of trial since 18.1.1995, i.e., for the last about 15 years and hence, it is contended that he should be given benefit of probation under the Probation of Offenders Act, 1958, or the sentence be reduced to the period already undergone by him. 15. On the other hand, it has been argued by learned State counsel that the present revision petitioner has taken away a life of a student by driving his vehicle in rash and negligent manner and hence, taking into consideration the nature of offence, no interference in the order of sentence passed by learned trial and learned Appellate Court is called for. 16. 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 Criminal Revision No.1689 of 2004(O&M) -5- 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 rate of motor accidents due to callous driving of automobiles.” 17. 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 Criminal Revision No.1689 of 2004(O&M) -6- the accused for commission of offence punishable under Section 304-A IPC. 18. In the present case accused hit his vehicle against the cycle being driven by a student and crushed him due to which he sustained serious injuries and later on succumbed to the injuries. Hence, taking into consideration the legal preposition as discussed above and the particular facts of the present case, benefit of probation under the Probation of Offenders Act cannot be granted to the petitioner-accused. 19. However, petitioner-accused has been facing trial for the last about 15 years. He is not a previous convict. He is sole bread winner of the family. He was a young man of 25 years of age at the time of occurrence. By now his family responsibilities also must have increased. Hence, he deserves some leniency in the quantum of sentence. 20. Hence, I am of the view that ends of justice would be met if revision-petitioner is sentenced to undergo rigorous imprisonment for a period of six months. Hence the sentence already awarded by learned trial Court and learned Appellate Court is reduced from one year to six months rigorous imprisonment. 21. For the reasons recorded above, the present revision petition is dismissed being devoid of any merit except to the extent of modification in the quantum of sentence, as aforementioned. 22. If the revision-petitioner is on bail, his bail bonds stands cancelled. The concerned Chief Judicial Magistrate shall take necessary steps to comply with the judgement with due promptitude keeping in view the applicability of provisions of Section 428 Cr.P.C. 30.9.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.