Crl. Revision No.688 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRIMINAL REVISION No. 688 OF 2002. DATE OF DECISION : 27-11-2009. Raj Kumar ...... PETITIONER Versus State of Haryana. ..... RESPONDENT CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Kapil Aggarwal, Advocate for the petitioner. Mr. S.S.Randhawa, Addl. A.G., Haryana *** RAM CHAND GUPTA, J. This revision petition is directed against the judgment dated 30.03.2002 rendered by the court of Additional Sessions Judge, Panchkula vide which it dismissed the appeal against the judgment of conviction and order of sentence dated 23.10.2000 rendered by the court of Chief Judicial Magistrate, Panchkula vide which it convicted the present revision-petitioner for commission of offences punishable under Sections 279/337/304-A of Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to undergo rigorous imprisonment for a period of Crl. Revision No.688 of 2002 -2- six months for offence under Section 279 IPC, rigorous imprisonment for six months for offence under Section 337 IPC and rigorous imprisonment for a period of two years for offence under Section 304-A IPC. However, all the sentences were ordered to run concurrently. 2. Briefly stated, the case of prosecution is that on 15.01.1995 Gurnam Singh – complainant had gone to Pinjore by driving his tractor make Escort bearing registration No. HR-12-4361. He had parked his aforesaid tractor in front of shoe shop of Ravinder Dhar in Pinjore in order to purchase some household articles. Balwinder Singh @Binder s/o Jagir Singh, r/o Nasimli, Harnek Singh s/o Jaimal Singh, r/o Guruva Ki Kheri, Garja Singh s/o Bant Singh r/o Ghalor, Ram Lal s/o Bachna Ram r/o Taggra Sahi and Dev Khan s/o Ajij Khan r/o Manakpur Devi Lal were sitting on the tractor of the complainant. In the meantime, at about 5.30 PM, a truck bearing registration No. HYE-1279 which was being driven by accused – Raj Kumar in a very rash and negligent manner came from the side of Nalagarh and hit against the tractor despite the fact that the same was parked on his right hand side on Kacha portion of the road. As a result of which, the tractor was dragged upto some distance and the same was damaged in the middle. Due to the collision Dev Khan, who was sitting on the right mudguard of the tractor came in between the two vehicles and succumbed to the injuries at the spot. Other persons sitting on the tractor also sustained injuries. Accused tried to run away after causing the accident and however, he was caught by the complainant and other persons present at the spot and he disclosed his name as Raj Kumar s/o Mohan Lal. However when the complainant Crl. Revision No.688 of 2002 -3- and other persons were busy in looking after the injured, the accused managed to escape after leaving the truck at the spot. The matter was immediately reported to the police, on the basis of which FIR was lodged and the investigation was taken in hand. 3. After completion of investigation, report under Section 173 Cr.P.C. was filed against the accused for trial of offences punishable under Sections 279/337/304-A IPC. He was charged accordingly by the leared Trial Court to which he did not plead guilty and claimed trial. 4. In order to substantiate the allegations against the accused, the prosecution examined as many as 4 witnesses. PW1 is Gurnam Singh – complainant and eye-witness of the occurrence; PW2 is Dharampal s/o of Baru Ram, a formal witness in whose presence the truck and tractor involved in the accident were taken in possession by the police; PW3 is Nafe Singh, Mechanic, who had mechanically examined the tractor and truck involved in the accident and proved his reports Ex.PE and Ex.PF; and PW4 is Dr. B.K.Gupta, who conducted the post- mortem examination on the dead body of Dev Khan and has proved his report Ex.PW4/A. 5. Statement of accused in terms of Section 313 Cr.P.C. was recorded by the learned Trial Court in which he denied the incriminating evidence coming against him and pleaded innocence. However, the revision-petitioner did not lead any evidence in his defence. 6. Learned Trial Court convicted the present revision- petitioner for offences punishable under Sections 279/337/304-A IPC and sentenced him as aforementioned. He preferred the appeal against Crl. Revision No.688 of 2002 -4- the said judgment of conviction and order of sentence passed by the Trial Court before the court of Additional Sessions Judge, Panchkula who dismissed the same and hence, the present revision petition. 7. I have heard Mr. Kapil Aggarwal, learned counsel for the revision-petitioner and Mr. S.S.Randhawa, Additional Advocate General for the State of Punjab and have gone through the whole record. 8. 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 a reasonable shadow of doubt. 9. It is argued by the learned counsel for the revision-petitioner that only one eye-witness was examined by the prosecution and that even Investigating Officer has not been examined. It is further contended that the accused allegedly ran away from the spot of accident and that hence, identification for the first time in the court is no evidence in the eyes of law. 10. On the other hand, it has been argued by the learned Additional Advocate General for the State of Haryana that the fact that accident had taken place between the truck being driven by the accused and the tractor which was in standing position, has not been assailed in the cross-examination on behalf of the accused and rather plea is taken Crl. Revision No.688 of 2002 -5- that the accident was caused due to rash and negligent driving on the part of the driver of the tractor. Hence, it is argued that identity of the accused is not disputed. It is further contended that, moreover, the accused was caught at the spot by the people present there and he disclosed his name and address. Hence, it cannot be said that his identity was not proved and in view of these facts, non-examination of Investigating Officer, has not caused any prejudice to the accused. 11. Both the courts below have found deposition of the complainant – Gurnam Singh convicing and reliable. The same was also corroborated by medical evidence as well as by report of Mechanic. Hence, his deposition cannot be brushed aside merely on the ground that other witnesses of the occurrence have not been examined. A suggestion has been put to this witness in the cross-examination that accident was caused by him by hitting his tractor against the truck. Hence, the factum of accident between truck and tractor had been admitted. It has also been admitted that the truck was being driven by the present revision- petitioner. The truck was lying parked on the Kacha portion of the road. Hence, the only inference which can be drawn is that accident was caused due to the rash and negligent driving on the part of the accused. There was sufficient time for the complainant to see the accused as he was caught by the complainant and by the other people present at the place of accident and he himself disclosed his name and address. Hence, in view of this fact, it cannot be said that no reliance can be placed on the deposition of the complainant regarding the identity of the accused for the first time in the court. Hence, no infirmity can be found with the Crl. Revision No.688 of 2002 -6- judgment of conviction passed by the learned Trial Court as well as learned Appellate Court. 12. So far as the order of sentence is concerned, it was contended by the learned counsel for the revision-petitioner that he had already undergone about 16 days of imprisonment and that he has been facing agony of trial for the last 14-1/2 years. It was also contended that he is having two daughters and a son to look after and hence, it has been argued that he may be given benefit of probation under the Probation of Offenders Act, 1958 or sentence be reduced to the period already undergone by him. On the point he has also placed reliance upon two judgments delivered by coordinate Bench of this Court in Assa Nand v. State of Punjab, 2000(2) RCR(Crl.) 348 and Balwinder Singh v. State of Punjab, 2000(2) RCR(Crl.) 394, wherein on the basis of peculiar facts and circumstances of those cases, substantive sentence of the petitioner was reduced to the period already undergone by him. 13. On the other hand, it has been argued by the Additional Advocate General for the State of Punjab that the revision-petitioner has taken life of an innocent person by driving his truck in a rash and negligent manner and hence, taking into consideration the nature of offence, no interference in the order of sentence passed by the courts below is called for. 14. 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 of IPC has been settled by Hon'ble Apex Court in Dalbir Singh v. State of Haryana, 2000(2) RCR Crl. Revision No.688 of 2002 -7- (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 of 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 Cri LJ 776) this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A, I.P.C. 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 imposing 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 Crl. Revision No.688 of 2002 -8- 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 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.” 15. 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. 16. In the present case the accused hit the truck against the standing tractor from behind and crushed a person sitting on the mudguard of the tractor in between two vehicles, who succumbed to injuries at the spot. Hence, in view of observation of the Hon'ble Apex Court in Dalbir Singh's case (supra) followed in B.Nagabhushanam's case (supra) and in view of peculiar facts and circumstances of this case benefit of probation under the Probation of Offenders Act cannot be granted to the accused. 17. However, there is force in the argument of learned counsel for the revision-petitioner that he has been facing agony of trial for the last 14-1/2 years. He was sentenced to undergo R.I. for two years for the offence under Section 304-A IPC i.e., the maximum sentence provided for the offence. Hence, in my view he deserves some leniency in the matter of sentence. Crl. Revision No.688 of 2002 -9- 18. Hence, the order of sentence passed by learned Trial Court is modified to the extent that sentence of imprisonment for offence punishable under Section 304-A IPC is reduced from two years R.I. to one year R.I. while maintaining the other sentences. 19. Hence, the present revision petition is hereby dismissed being devoid of any merit except for modification in the quantum of sentence as aforementioned. 20. Bail bond of the revision-petitioner 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 provisions of Section 428 of the Code of Criminal Procedure and submit his compliance report within two months. 21. The District and Sessions Judge concerned is also directed to ensure that the directions are complied with and that compliance report is sent within the time limit, to this Court. ( RAM CHAND GUPTA ) November 27, 2009. JUDGE 'om'