Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.534 of 2002. Dated of Decision: November 24, 2009. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Sushil Kumar. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. Vikas Rathore, Dy. Advocate General. For the Respondent : Mr. R.K. Gautam, Sr. Advocate with Mr. J.R. Poswal, Advocate. Surinder Singh,J (oral) : Respondent was convicted by the learned trial court, for the offences, under Sections 279, 337, 338 and 304-A of the Indian Penal Code and sentenced him as under:- Sections Period of Sentence Under Section 279 IPC Till rising of the court. Under Section 337 IPC Till rising of the court and fine of Rs.500/-. Under Section 338 IPC Till rising of the court and fine of Rs.750/-. Under Section 304-A IPC Till rising of the court and fine of Rs.1,000/-. In default of payment of fine amount, the respondent was further ordered to undergo simple imprisonment for a period of 7 days - 2 - under Sections 337 and 338 IPC, each and for 15 days under Section 304-A I.P.C. The State is against the inadequacy of the sentence and sought enhancement in this appeal, filed under Section 377 of the Code of Criminal Procedure, as in the motor vehicular accident, the respondent has caused the death of two persons, simple and grievous injuries to few others, by the rash and negligent act of driving. Notice of appeal was given to the respondent. Shri R.K. Gautam, learned Senior Advocate duly assisted by Shri J.R. Poswal, learned Advocate, put in appearance for him and submitted that though the State has sought the enhancement of the sentence, yet it is still open to the respondent to plead for his acquittal. Therefore, it is urged that if the evidence of the prosecution is appreciated in the right perspective, no offence is made out against the respondent. Otherwise also, the learned Magistrate, keeping in view the facts and circumstances of the case and seeing the plight of the respondent had passed an appropriate and adequate sentence in accordance with law. I have considered the above submissions. There is no dispute that sub-section (3) of Section 377 Cr.P.C., the respondent can not only show cause against the enhancement but while doing so, he may also plead for his acquittal or reduction in sentence. Therefore, I proceed to examine the evidence, to find out whether the learned trial Magistrate has rightly come to a coclusion above the guilt of the respondent for the offences charged from the evidence on record. For that re-appraisal of the prosecution evidence is called for. First of all the background facts, in short, need to be noted. On 4.11.1994 at about 4 p.m., on a public road, near the gate of Raja-Ka- Bag, a Maruti Car bearing No.PB-35-7373, being driven in a rash and negligent manner, firstly hit Auto-Riksha bearing No.HP-54-0082 of PW1 - 3 - Surjeet Singh and thereafter hit another Auto-Riksha carrying passengers and driven by PW14 Rakesh Pal, which was behind the Auto-Riksha of Surjeet Singh aforesaid. The occupants of the said Auto Riksha sustained simple as well as grievous injuries, whereas, passenger Rattani Devi w/o Jeet Singh, succumbed to her injuries while being taken to civil hospital, Nurpur and Dhunna s/o Kak Ram, was also seriously injured, who died in the hospital. Surjeet Singh (PW1) narrated the above facts to the police his statement was recorded under section 154 Cr.P.C. on the basis of which FIR under the aforesaid sections was lodged. Police prepared site plan, took photographs of the accident site and recorded the statements of the witnesses. The Medico Legal Certificates of the injured persons, namely Savitri Devi, Prakash Chand, Ranbir Singh, Surjeet Singh (PW1), Migbar, Rakesh Kumar, Raj Rani, Sudershan Sharma, Sushil Kumar and Vinod Kumar were taken into possession from the hospital and postmortem of the dead bodies were also got conducted. The postmortem reports are Exts.PW6/A and PW6/B. After completing the challan, it was presented in the court for the trial of the respondent. Respondent was charge-sheeted for the aforesaid offences. He abjured guilt and claimed trial. Prosecution examined 15 witnesses to prove its case. Respondent admitted that he was driving the said Maruti car at the relevant time, but denied his rash or negligent act of driving causing the said accident, in his statement recorded under Section 313 of the Code of Criminal Procedure. However, the stand taken by the respondent while cross-examining the prosecution witnesses has been that he noticed two children while crossing the road, to save them he took his Maruti Car towards right side, which caused the accident. - 4 - Learned trial Court relied upon the statements of complainant PW1 Surjeet Singh and other aforesaid witnesses, namely PW3 Raj Rani, PW4 Vinod Kumar, PW5 Sudershan Kumar, PW7 Smt. Krishna Devi and doctors PW8, PW9 and PW11, who proved the postmortem reports of deceased persons and the nature of injuries caused to the above witnesses and few others. In Braham Das vs. State of H.P. [(2009)3SCC (Cri) 406] arising from this Court, the Supreme Court in para-8, held that the prosecution must establish that the accused was driving any vehicle rashly on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Therefore, I proceed to examine the evidence put forth to prove the charges. PW1 Surjeet Singh, complainant testified that he was carrying the passengers in his Auto. When he reached near the main gate of Raja-Ka-Bag, a Maruti Car No.PB-35-7373, being driven by respondent came in high speed from the opposite side and hit right side of his Auto, with the result his auto overturned on the right side of the road and he sustained various injuries on his person. Thereafter, Maruti Car in the same speed hit another Auto-Riksha, which was behind him. All the occupants of the said auto sustained injuries. He further stated that Rattni Devi and Dhunna, occupants of auto of Rakesh Pal had died. He proved his statement Ex.PW1/A with respect to the said accident recorded under Section 154 Cr.P.C. PW14 is Rakesh Pal, driver of Auto-Riksha bearing No.HP- 04-0160, which was behind the Auto-Riksha of PW1 Surjeet Singh also made the similar statement. He stated that on seeing the Maruti Car having hit the Auto of PW1, he stopped his Auto and tried to deboard it, but he could not avail the chance, the said Car hit it and because of the rash and negligent driving by the respondent the accident took place. - 5 - PW3 Raj Rani, PW4 Vinod Kumar, PW5 Sudershan Kumar, PW7 Krishna Devi and PW8 Parkash Chand were the passengers in the Auto of PW14 Rakesh Pal. PW4 Vinod Kumar got fractured his leg. PW11 Dr. D.R. Riyal has proved the MLRs’ of Savitri Devi, Parkash Chand, Ranbir Singh, Surjeet Singh, Migbar, Rakesh Kumar and Vinod Kumar. The injured witnesses discussed above, unequivocally supported the prosecution case and categorically stated that the accident took place on account of rash and negligent driving of the respondent, causing the death of Rattni Devi and Dhunna and simple as well as grievous injuries to the witnesses. As already stated above, the case of the respondent is that in order to save two children while crossing the road, he took his Car towards right side of the road, which caused the accident. The Apex Court, in Kuldeep Singh v. State of H.P. [ (2009) 3 SCC (Cri) 595] arising from this Court had dealt almost with similar type of facts and defence but in that case it was not a car but a truck carrying the marriage party. The High Court while appreciating the prosecution evidence and defence raised had converted acquittal into conviction. The apex Court while upholding the findings of guilt of the accused observed and elaborated what is rash and negligent act. A man is reckless in the sense required when he carried out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act. In fact, Section 304-A of the Indian Penal Code carves out a specific offence. It applies to the cases; where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly related to cause death. Therefore, - 6 - negligence and rashness are essential elements to prove the aforesaid offence. In the instant case, on the reappraisal of evidence I find that the prosecution has been able to prove by cogent and convincing evidence that the respondent was rash and negligent in driving his vehicle on a public way, which caused accident leaving behind two dead and several other injured, as aforesaid, whereas the defence raised firstly stands not proved in accordance with law and secondly, it also does not take him out of the purview in absence of proof that he had exercised due care and caution. In the above circumstances, the respondent had acted without the consciousness that his illegal and mischievous act to follow and further the respondent did not exercise the caution incumbent upon him. Therefore, I do not find any fault in his conviction for the offences charged which stood duly proved. In so far as the sentence part is concerned, in my considered opinion, the learned trial Court has lost sight of the fact that there is a spiraling increase in the motor vehicular accidents in the recent years. Thousands of valuable lives are being lost by a sheer act of rash and negligent driving, which is more than the loss of lives in any war between the countries. The Supreme Court in Dalbir Singh v. State of Haryana [ (2000) 5 SCC 82] on the question of sentence in a case of an identical nature stated:- “13. While considering the question 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 automobile almost - 7 - 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 mind the fear psyche that if is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a 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.” Hon’ble Shri Justice K.G. Balakrishnan, as he then was, while speaking for the Court, in State of Karnataka v. Sharanappa Basnagouda Aregoudar [AIR 2002 Supreme Court 1529], where the accused was held guilty for causing death of four persons and the High Court took a lenient view in sentencing the accused, observed :- “We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court, below. It may create and set an unhealthy precedent and send - 8 - wrong signals to the subordinate Courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have deterrent effect on potential wrong- doers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system.” Therefore, on the examination of the matter in the above circumstances and on facts, I think no word is sufficient to criticize the conduct and prudence of the learned trial Magistrate dealing on the point of sentence in shockingly reckless manner. Looking at the gravity of the offence, the sentence imposed by the learned trial Court is wholly inadequate. The learned trial court has inflicted a flee-bite sentence on the respondent who was not atoned adequately for his misadventure. Therefore, I find it a fit case for enhancement of sentence. Thus the sentence of the respondent is ordered to be enhanced; he is ordered to undergo Rigorous Imprisonment for a period of six months under Section 304-A I.P.C. and to pay a fine - 9 - of Rs.3,000/- . In default of payment of fine, he shall further undergo Simple Imprisonment for a period of two months. The respondent is also ordered to undergo Rigorous Imprisonment for a period of one month under Sections 279 and 337 I.P.C. each and also to pay fine of Rs.500/- under each of the sections, failing which the respondent shall also undergo Simple Imprisonment for a period of 15 days each. Further the respondent shall undergo rigorous Imprisonment for a period of six months under Section 338 I.P.C. and to pay a fine of Rs.500/- and in default of payment of fine, he shall undergo Simple Imprisonment for 15 days. All the sentences shall run concurrently. Ordered accordingly. Respondent shall surrender before the learned trial Court on or before 24.12.2009, failing which, the learned trial Court shall take appropriate steps to commit the respondent to prison to serve out the sentences aforesaid. Fine amount, if already deposited, shall be adjusted against the fine imposed by this Court, as above. The matter stands disposed of. Let a copy of this judgment be circulated by the learned Registrar General to all the Judicial Officers in the State. Send down the records. November 24, 2009. (Surinder Singh) (Pds) Judge.