Crl.R.No.2283 of 2002 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.2283 of 2002 (O&M) Date of Decision: November 10, 2010 Surinder Singh .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.G.S.Gill, Advocate for the petitioner. Mr.K.D.Sachdeva, Addl.A.G., Punjab. ...... RAM CHAND GUPTA, J. 1. The present revision petition has been filed against judgment dated 13.11.2002, passed by learned Additional Sessions Judge, Bathinda, vide which it acquitted the present revision-petitioner under Section 279 Indian Penal Code (hereinafter to be referred as `IPC') on the plea that no charge was framed by learned trial Court against the accused for the said offence and, however, appeal of present revision petitioner was dismissed qua his conviction for offences under Sections 337/304-A IPC and, however, the sentence awarded to him for offence under Section 304-A IPC was reduced from two years to one year and six months while maintaining the sentence under Section 337 IPC and sentence of fine, as imposed by learned trial Court, in appeal filed against judgment of conviction and order of sentence passed by learned trial Court dated 17.7.1998, vide which the present revision petitioner was convicted for offences under Sections 279 and 337 IPC and sentenced to undergo rigorous imprisonment for a period of six months each and further convicted for offence under Section 304-A IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1000/- and in default of payment of fine to Crl.R.No.2283 of 2002 (O&M) -2- further undergo rigorous imprisonment for a period of two months. 2. Briefly stated, the case of prosecution is that a Military vehicle called Jonga bearing registration No.88F 2989-A was being driven by Lok Bahadur Thappa in the cantonment area of Bathinda, on 18.10.1993, whereas, Pws Jaswant Singh, Abdul Hamid and S.B.Gurang were sitting behind him. At about 6.15 a.m., deceased was in the process of crossing the Gurudwara chowk, when at the same time offending truck, i.e. Tata 407, bearing registration No.PIB 1999 came at a high speed from the side of shopping centre. The driver of the truck could not control the truck and hit the same in the Jonga being driven by deceased. Due to the collusion, the Jonga was turned turtle and driver of Jonga, i.e., Lok Bahadur Thappa succumbed to the injuries at the spot and other occupants of the Jonga also suffered injuries. On receipt of information of the accident, Gurdev Singh, ASI, visited the Military Hospital and recorded statement Ex.PA of PW Subedar D.B.Gurang as injured were unfit to make the statements. On the basis of said statement formal FIR Ex.PA/1 was registered. The Investigating Officer also visited the place of occurrence and prepared rough site plan of the same. He also prepared inquest report on dead body of Lok Bahadur Thappa and got the post mortem examination conducted on the dead body from Civil Hospital, Bathinda. He had also taken the vehicle involved in the accident in the police possession. Place of occurrence was got photographed after recording statement of witnesses and on completion of investigation report under Section 173 of the Code of Criminal Procedure (hereinafter to be referred as `Cr.P.C.') was filed for trial of the accused for offences under Sections 279/337 and 304-A IPC. 3. Learned trial Court framed charges against the revision- petitioner accused for offences under Sections 304-A/337 IPC, 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 11 Pws. 5. PW1 is Dr.Ashok Gupta, Pathologist, who conducted the post mortem examination on the dead body of Lok Bahadur Thappa; PW2 is Constable Bakhshish Singh, who is attesting witness to recovery memo Ex.PB, vide which permit, documents of insurance policy and driving Crl.R.No.2283 of 2002 (O&M) -3- licence of petitioner-accused were taken into police possession; PW3 is ASI Gurdev Singh, the Investigating Officer of this case; PW4 is Abdul Hamid, an eye witness of the occurrence; PW5 is Havldar Jaswant Singh, another eye witness of the occurrence; PW6 is Bhupinder Singh, Sub Inspector, who had partly investigated this case and recorded statement of some witnesses under Section 161 Cr.P.C.; PW7 is Satpal, a clerk in the office of District Transport Office, Bathinda, who proved the driving licnece of petitioner- accused; PW8 is Mohan Lal, who proved ownership of the offending vehicle; PW9 is Harjit Singh Photographer; PW10 is D.B.Gurang, complainant of this case, who lodged the complaint, Ex.PA with the police; PW11 is Lt.Col. V.S.Yadav, who had proved injuries on the persons of Pws Bahadur Gurang, Jaswant Singh, and Abdul Hamid. 6. Statement of accused in terms of Section 313 Cr.P.C. was recorded in which he denied the incriminating evidence coming against him. He took the plea that he was returning from the shopping centre after supplying milk and that as it was a cantonment area, he was driving his vehicle at the speed of 30 km per hour. He has further taken the plea that as there was a speed breaker near the place of accident, hence he had slowed down the speed of the truck. He has further taken the plea that however the Jonga was being driven by its driver at a very high speed and that there was a spare tyre above the rear right tyre of the Jonga and hence due to high speed, Jonga went out of control of its driver and hit against the truck. Hence, specific plea has been taken by the revision petitioner-accused that accident had taken place due to rash and negligent act on the part of the driver of the Jonga. However, he did not lead any evidence in his defence. 7. Learned trial Court convicted the present revision petitioner for offences under Sections 279, 337 and 304-A IPC and sentenced him for the said offences, as aforementioned. Appeal was filed against the order passed by learned trial Court before the Court of Additional Sessions Judge, Bathinda, who dismissed the same and hence, the present revision petition. 8. I have heard learned counsel for the parties and have gone through the whole record carefully. 9. It is settled principle of law that in its revisional jurisdiction, this Court is not to reappreciate and reappraise the evidence until and Crl.R.No.2283 of 2002 (O&M) -4- 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 any reasonable shadow of doubt. 10. It has been argued by learned counsel for the revision petitioner that one of the witnesses of the prosecution, who authored the FIR, i.e., PW10, did not support the prosecution version and that he was declared hostile and hence no reliance can be placed upon testimony of PW4 and PW5, who are interested witnesses as they were travelling in Jonga being driven by the deceased. Further contends that there are also some discrepancies in the deposition of these witnesses. Further contended that in fact accident had taken place due to rash and negligent driving of Jonga on the part of the deceased as he was trying to overtake the vehicle being driven by the accused. 11. On the other hand, it has been contended by learned State counsel that factum of accident is not disputed and that even as per case of accused, there was collision between bumper of truck and the tyre of Jonga and hence, it is contended that it cannot be said that accident had taken place due to rash and negligent driving of Jonga on the part of the deceased. It is further contended that rather accused should have driven the truck by taking extra care as the same was being driven at a busy place, i.e., chowk and that he should have driven the same at a slow speed and however, as he was in hurry, he did not slow down the speed of the truck and hit against back side of Jonga, due to which the Jonga over turned. Further contends that merely on the ground that one of the witnesses has not supported the prosecution version, it cannot be said that deposition of PW4 and PW5 cannot be relied upon. It has also been contended that there are only minor discrepancies in the deposition of PW4 and PW5, which are bound to come even in the deposition of truthful witnesses. 12. Both the Courts below found deposition of PW4 and PW5 convincing and reliable and the same is also corroborated by other circumstantial evidence, as detailed above. Hence, their deposition cannot Crl.R.No.2283 of 2002 (O&M) -5- be brushed aside merely on the ground that they were also travelling in the Jonga and that one of the witnesses, i.e. PW10 did not support the prosecution version. Discrepancies are minor in nature. Rather the driver of the truck should have taken extra care and should have driven the same at a slow speed taking into consideration the fact that it was a busy place as he was crossing the chowk. Hence, no fault can be found in the judgment of conviction passed by learned trial Court as well as by learned Appellate Court. 13. It may also be mentioned here that as charge under Section 279 IPC was not framed by learned trial Court, learned Appellate Court set aside the conviction of the accused for offence under Section 279 IPC and however, upheld the conviction for offences under sections 337/304-A IPC. 14. So far as order of sentence is concerned, it has been vehmently argued by learned counsel for the revision-petitioner that he has already undergone about 17 days of sentence and that he has been facing agony of trial since the day of accident, i.e., 18.10.1993, i.e., for the last about 17 years. Further contends that revision-petitioner is the only breadwinner of the family and is not a previous convict and hence, it is contended that he should be given benefit of probation under the Probation of Offenders Act 1958, or the sentence may be reduced to the period already undergone by him. In support of his plea he has also placed reliance upon Sardool Singh v. State of Punjab 2010(1) RCR (Criminal) 191; Amanpreet Singh v. The State of Punjab, Crl.Revision No.388 of 2008, decided on 13.3.2008; Girdhari Lal v. State of Punjab 2007(1) RCR (Criminal) 988; Sudh Ram v. State of Punjab 2006(3) RCR (Criminal) 550; Chuni Lal v. State of Haryana 2006 (1) RCR (Criminal) 844; Rohtash Kumar v. State of Haryana 2009(1) RCR (Criminal) 383 and Mazid v. State of Haryana 2008(2) RCR (Criminal) 439. 15. On the other hand, it has been argued by learned State counsel that the present revision petitioner has taken away life of a person by driving his truck in rash and negligent manner and also caused injuries to three other persons and hence, taking into consideration the nature of offence, no interference in the order of sentence passed by learned Appellate Court is called for. Crl.R.No.2283 of 2002 (O&M) -6- 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 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 Crl.R.No.2283 of 2002 (O&M) -7- 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 the accused for commission of offence punishable under Section 304-A IPC. 18. In the present case the accused had driven his truck in a rash and negligent manner in a busy place, hit against back side of Jonga being driven by the deceased with a great force due to which the Jonga was turned turtle and driver was succumbed to the injuries at the spot and three other persons travelling in the Jonga sustained injuries. Hence taking into consideration the facts and circumstances of this case and the legal preposition 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 Probtation of Offenders Act. 19. So far as quantum of sentence is concerned, learned Appellate Court has already reduced the sentence from two years to one year and six months. However, taking into consideration the fact that revision- petitioner has been facing agony of trial for the last 17 years, he deserves some leniency in the quantum of sentence. 20. Hence, in my view the ends of justice would be met if the sentence imposed by learned appellate Court upon the revision-petitioner for offence under Section 304-A IPC is reduced from 1-1/2 years to one year. 21. Accordingly the order of sentence is modified to the extent that the sentence of offence under Section 304-A IPC is reduced to one year while maintaining the other sentences including the sentence of fine. Crl.R.No.2283 of 2002 (O&M) -8- 22. Hence, 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 indicated above. 23. The revision petitioner is on bail and hence, his bail 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 provision of Section 428 Cr.P.C. 10.11.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.