Crl.R.No.265 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.265 of 2005 (O&M) Date of Decision: December 7, 2010 Surat Singh .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sanjay Bansal, Advocate for the petitioner. Mr.Amandeep Singh, AAG, Haryana. ...... RAM CHAND GUPTA, J. This revision petition has been preferred against judgment dated 22.1.2005, passed by learned Additional Sessions Judge, Rohtak, in FIR No.23, dated 30.1.1996, under Sections 279, 304-A of the Indian Penal Code (hereinafter to be referred as `IPC'), registered at Police Station Sadar, Rohtak, upholding the judgment of conviction, dated 8.12.2003 and order of sentence dated 10.12.2003, vide which the present revision petitioner was convicted for offences punishable under Sections 279 and 304-A IPC and sentenced to undergo rigorous imprisonment for a period of six months for offence under Section 279 IPC and to further undergo rigorous imprisonment for a period of one year for offence under Section 304-A IPC. The facts in brief are that revision petitioner was driving Haryana Roadways Bus bearing registration No.HR-46-0263 on 30.1.1996. He was coming from Rohtak side. He was driving the said bus in a very rash and negligent manner. He could not control the same while passing through a busy locality in a village and hit against a child, namely, Manoj, aged about 4-5 years causing his death. He also ran away from the place of occurrence after causing the accident. After completion of the investigation, report under Section 173 of the Code of Criminal Procedure (hereinafter to be referred as the `Code') was prepared and challan was filed in the Court against the revision petitioner. Crl.R.No.265 of 2005 (O&M) -2- Learned trial Court framed charges against the accused for offences punishable 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, the prosecution examined as many as 10 PWs. PW1 is Suresh, who identified the dead body of Manoj; PW2 is Raj Kapoor, an eye witness of the occurrence; PW3 is Satbir, another eye witness of the occurrence; PW4 is Bishamber Dayal, Head Constable, who mechanically examined the bus and submitted his report, Ex.PW4/A; PW5 is Jagat Singh, Head Constable, who had taken photographs of the place of occurrence, Ex.PW5/A; PW6 is Raj Bhawan, complainant; PW7 is Ram Parsad, another eye witness of the occurrence; PW8 is Ishwar Singh, Service Inspector of Haryana Roadways, Sonepat; PW9 is Samunder Singh, ASI, i.e., Investigating Officer of this case and PW10 is Dr.Narsingh, who conducted the postmortem examination on the dead body of deceased Manoj and proved Post Mortem Report Ex.P1. Statement of accused under Section 313 of the Code was recorded in which he denied the prosecution version and claimed to be innocent. However, he did not lead any evidence in his defence. After hearing both the sides and perusing the record, learned Judicial Magistrate Ist Class convicted the present revision petitioner for offences under Sections 279/304-A IPC and sentenced him, as aforementioned. Appeal was filed against the said judgment and order of sentence passed by learned trial Court before the Court of learned Additional Sessions Judge, Rohtak, 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 Crl.R.No.265 of 2005 (O&M) -3- that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt. It has been contended by learned counsel for the revision petitioner that prosecution has failed to prove that he was driving the bus in a rash and negligent manner. It is also contended that admittedly the bus was stopped immediately after the accident as it was an inhabited area. Hence, it is contended that accident had taken place due to negligent act on the part of the deceased child himself. However, all the witnesses of the prosecution, i.e. PW2, PW3, PW6 and PW7 had stated that bus was being driven at a very high speed and hit against Manoj. The bus was crossing the village and hence, it was incumbent upon the driver of the bus to have driven the same at a very slow speed and in a more careful manner as normally people cross the road in a village in thickly populated area. Deceased child had already crossed the road and had come towards other side. Accused had dropped the passengers from the bus at some distance from the place of accident and accelerated the speed of the bus all of a sudden and hence he could not control and hit against the deceased child. Both the Courts below found depositions of eye witnesses, i.e., PW2, PW3, PW6 and PW7 convincing and reliable. Ocular evidence is also corroborated by other circumstantial evidence, as detailed above. Discrepancies are only minor in nature and hence, no fault can be found in the judgment of conviction passed by learned trial court 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 had already undergone about two months of the sentence. It is further contended that revision petitioner is not a previous convict and only bread winner of the family and hence it is contended that he be given the benefit of Probation under the Probation of Offenders Act, 1958, or the sentence may be reduced to the period already undergone by him. On the other hand, it has been argued by learned State counsel that present revision petitioner had taken away precious life of a child aged about 4-5 years by driving his bus in rash and negligent manner in a busy Crl.R.No.265 of 2005 (O&M) -4- locality and he even did not bother to take care of the injured and rather he ran away from the place of occurrence 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 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 Crl.R.No.265 of 2005 (O&M) -5- 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.” 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 bus in a rash and negligent manner in a busy locality of a village and hit against a child aged about 4-5 years as he lost control over the same due to which he fell down, sustained injuries, resulting into his death. He also ran away from the place of occurrence. He also did not take care to remove the injured child to the hospital. Hence, taking into consideration the peculiar facts and circumstances of the case and legal proposition 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 quantum of sentence is concerned, learned trial Court has already taken a lenient view in sentencing the revision petitioner to undergo imprisonment for one year. Hence, no interference in the quantum of sentence passed by learned trial Court 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 Crl.R.No.265 of 2005 (O&M) -6- steps to comply with the judgment with due promptitude keeping in view the applicability of provision of Section 428 Cr.P.C. 7.12.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.