1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 5 OF 2009 Shri Devesh Tukaram Chodanker, House No.E-165, Opp. Sinari Auto Service, Mala, Panaji, Goa. ... Applicant versus 1. Shri Martin Fernandes, s/o Caetano Fernandes, r/o H. No. 689, Codli, Tisk, Dabal, Sanquem, Goa. 2. State of Goa, Through P.P. ... Respondents Shri J. Godinho, Advocate for the Applicant. Shri R. Menezes, Advocate for Respondent No.1. Shri C. A. Ferreira, Public Prosecutor for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 27TH APRIL, 2009. ORAL ORDER The applicant herein is the brother of the deceased who died in an accident on 7-3-2004, and seeks enhancement of sentence imposed upon the accused. 2 2. The accident had taken place between the motorcycle driven by his said brother and a KTC bus, a public service vehicle, driven by the accused. The accident took place on Zuari bridge in the process of the accused overtaking the said motorcycle of the deceased. The learned trial Court convicted and sentenced the accused under Section 279 I.P.C. to undergo S.I. for a period of fifteen days and to pay a fine of Rs.1000/-, in default to undergo S.I. of one month. The learned trial Court also convicted and sentenced the accused under Section 304-A I.P.C. to undergo S.I. for three months and to pay a fine of Rs.5000/-, in default to undergo S.I. of three months. The said Judgment has attained finality as no appeal was filed therefrom. 3. Shri J. Godinho, learned Counsel appearing on behalf of the applicant has submitted that the sentence imposed by the learned trial Court against the accused is grossly inadequate and it ought to have been the sentence provided by law i.e. two years under Section 304-A. Therefore, it should have been a maximum of two years as provided under Section 304-A I.P.C. and in support of this submission Shri Godinho has placed reliance on several decisions. 4. The first decision cited is the case of Rattan Singh v. State of Punjab(AIR 1980 SC 84). That was a case where the Apex Court refused to interfere with the sentence of two years awarded to a truck driver on the ground that he had to maintain a large family and that the owner of the truck had left the family of the accused in the cold. In this Judgment, the Apex Court also observed 3 that when a life has been lost and the circumstances of driving are harsh, no compassion could be shown. 5. Reliance has also been placed on the case of State of Karnataka v. Krishna alias Raju where in a case of Section 304-A the sentence imposed under Section 304-A was enhanced to six months R.I. and fine of Rs.1000/-, in default the accused was ordered to undergo R.I. of two months. Reliance is also placed on certain observations made by this Court in the case of Shri Mahadeo Pandurang Phadtare v. State of Maharashtra(2006 ALL MR(Cri) 2560) where this Court noticed that the punishment provided, as the law stands today is inadequate, and that it would be appropriate for the Government to consider increasing maximum sentence under Section 304-A I.P.C. since now a days a number of people die on roads in India and that is more than the people who die during any epidemic. That was a case where 39 passengers had died and 30 passengers were injured seriously. The Court had also noted that a driver of a Public/State Transport vehicle is supposed to take extra care and caution while driving such a vehicle from one place to another and the responsibility and care which is to be exercised by a driver of the Public/State transport vehicle is enhanced when we consider the fact that the State of Maharashtra virtually has a State monopoly in respect of transport of its passengers. 6. Reliance is also placed on the case of Prabhakaran v. State of Kerala(AIR 2007 SC 2376) wherein the Apex Court also noted that the 4 punishment provided under Section 304-A is grossly inadequate in view of the increasing number of vehicular accidents resulting in death of large number of innocent persons but further observed that it was for the legislature to provide for an appropriate sentence. The Apex Court also noted that vehicular accidents resulting in deaths and injuries are spiraling. 7. On the other hand, Shri R. Menezes, learned Counsel appearing on behalf of Respondent No.1/accused has, firstly submitted that referring to the case of Rattan Singh v. State of Punjab(supra) that the State was required to take measures by providing a course for better driving together with a livelier sense of responsibility with a view to reduce accidents. Learned Counsel further points out that the State was required to consider parole and reformatory courses. Referring to the case of State of Karnataka v. Krishna alias Raju(supra) learned Counsel points out if at all the sentence was enhanced, it was because the accused in that case had attempted to escape prosecution by failing to report the accident to the police authorities. Learned Counsel further points out that that was a case of greater culpability than the present one. Shri Menezes also points out that in case the bus did not stop for about 100 to 182 meters that was because the brakes did not work as the brakes had become non functional as there was no air in the air tank, as stated by the prosecution witness Shri Pralhad Dessai/PW4, and this factor could certainly be taken into consideration as a metigating factor for not enhancing the sentence imposed upon the accused. He further points out that after the accident the services of the accused have been terminated and he is no longer 5 in service but no material is produced in support of this last submission. 8. Be that as it may, the learned trial Court rejected the defence of the accused that the victim was trying to overtake the KTC bus driven by the accused from the wrong side i.e. from the left side of the road and in that process the deceased had lost control and had dashed the bus. The learned trial Court also observed that the accused had taken multiple defences but had not proved any of them and had also not rendered any explanation in his statement under Section 313 of the Code. The learned trial Court also observed that undoubtedly, the accident occurred on the bridge. PW1/Ram Gopal so also the investigating officer had stated that there is divider which is marked in yellow colour which indicates that overtaking is prohibited so also there is restriction of speed which the accused has violated. Needless to mention, both the witnesses have stated that accused was driving the bus in a fast speed and that after the impact the accused did not stop the bus and dragged the motorcycle which was underneath to a distance of about 100 meters. The drag marks are also shown on the panchanama and the sketch so also on the photographs. PW7/Shriram, the conductor of the bus has also categorically stated that when they reached on the Zuari Bridge, the accident occurred and he heard the sound of the accident on the back side and saw one person lying on the road and he requested the accused to stop the bus but the accused did not stop the bus immediately but stopped a little further after repeated requests on the bridge itself. He also stated that there were drag marks on the road of the motorcycle which was dragged by the bus. 6 9. The learned trial Court also observed that the accused did not heed any attention to the speed restriction on the bridge and tried to overtake the motorcycle and dragged the same to about 100 to 182 meters and failed to stop inspite of repeated requests and this was sufficient proof of the negligence on the part of the accused and it was further observed that in case the accused had driven the bus in a slow speed the motorcycle would not have been dragged to about 100 to 182 meters, and there was no occasion for PW7/Shriram, the conductor to request the accused to stop the bus and the accused could have halted the bus after the accident and therefore the accused was rash and negligent in driving the said bus. 10. As regards sentence, the learned trial Court observed that the accused deserved punishment as he ought to have kept in mind the fear psyche that if he was to be convicted of the offence of causing death of human being due to his careless driving of the vehicle, he cannot escape from jail sentence. Nevertheless, the learned trial Court considering that the accused was 52 years of age and being a first offender and suffering from blood pressure and was a diabetic patient did not deserve harsh punishment. Hearing of the accused is not an empty formality. It is to give him an opportunity to place all mitigating materials for a lesser sentence which he may have. Courts are not bound to accept mere ipse dixit of the accused. 7 11. There is nothing in the Judgment of the Apex Court in the case of Rattan Singh v. State of Punjab(supra) which would favour the accused. The Court did express certain pious hopes but nothing concrete has come forward from the State. Except for his age which could have been gathered from the record there was no extenuating circumstance in favour of the accused for it does not appear that the accused had placed any evidence either to support his claim that he was a blood pressure or diabetic patient which are now considered as lifestyle diseases. One also does not know at present why his services have been terminated inasmuch as no material has been placed before this Court in that regard. 12. In Narender Singh v. State(2005 CRI. L. J. 2735) the Delhi High Court took note of the Judgment of the Apex Court in Dalbir Singh v. State of Haryana(AIR 2000 SC 1677) wherein the Apex Court observed thus:- “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 8 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 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”. ( emphasis supplied ). The above position was reiterated in Kuldeep Singh v/s State of H.P.(2008 AIR SCW 5142 ). 13. The case at hand is almost similar to the case of Rattan Singh ( Supra ) where in the words of the Apex Court, the lethal hands of a truck driver had taken the life of a scooterist – a deadly spectacle so common in our towns and cities. That was almost 3 decades back since then much water has flown down the Zuari. Down the line, things have not improved but on the contrary, the situation has worsened, with more and more deaths taking place on our roads with vehicles becoming larger and more powerful and the road conditions almost remaining the same. The Apex Court refused to interfere with the maximum sentence imposed and that too of two years R.I. Deterrence remains one of the 9 important objects of punishment, as George Saville would put it “men are not hanged for stealing horses but so that horses may not be stolen. Deterrence, as main object of punishment was considered in Rattan's case and also in Dalbir Singh's case. Society in general and Courts in particular have now found that the punishment prescribed under Section 304-A is inadequate but so far Legislature has not stepped in. At times efforts are made to bring the case under Section 304 (ii) Indian Penal Code. Courts are therefore required to step in within the frame work of law and impose maximum punishment, when required. Liberal attitude of imposing meagre sentences or misplaced sympathies either on account of lapse of time of personal inconvenience to the accused or his family have been always counter productive and against the interests of the society. Courts are required to operate sentence system in a way it reflects the conscience of society. The contention that the accused has a wife and two children to look after, must be immediately brushed aside. The deceased too must be having a family. As observed by the Apex Court “it scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers”. The contention that the accused had a large family to maintain was immediately shot shown. It was further observed that when life was lost and circumstances of driving were harsh no compassion could be shown. Prabhakaran ( Supra ) has taken note that 82,000 people were killed on roads in the year 2002 and the estimate of people injured is taken 15 to 20 times more than that figure. 14. Be that as it may, and as far as sentence is concerned, no two cases can be similar. Though no formula of a fool proof nature is possible to be laid 10 down in awarding appropriate sentence, sentence to be imposed, should be proportionate to the crime committed and it should be by taking into consideration the facts and circumstances of each case. It is not only the rights of the criminals which are to be looked into at the time of imposition of sentence but also of victim/s and society at large. This is a case where the accident took place on a bridge where there was speed limit and overtaking was otherwise prohibited. The deceased as per the post mortem report was 43 years of age and the record is silent as to what family he had. As the law stands today, and in order to curb the ever increasing deaths being caused on the roads due to rash and negligent driving any sentence to be imposed must have deterrent effect so that there is some decrease in fatal accidents. Considering the facts of the case, in my view, at least one year of simple imprisonment ought to have been imposed upon the accused by the learned J.M.F.C., and considering that the sentence imposed under Section 304-A is hereby enhanced for a period of one year, the fine remaining unchanged, and so also the imprisonment imposed for default. The learned Trial Court does not appear to have exercised sentencing discretion correctly and therefore calls for interference from this Court. 15. Consequently, the revision application succeeds. The sentence imposed upon the accused under Section 304-A is enhanced to one year R.I. and fine of Rs.5000/-, in default to undergo S.I. for three months. N. A. BRITTO, J. RD