Crl. Revision No.2053 of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRIMINAL REVISION No. 2053 OF 2002.
DATE OF DECISION : 10-12-2009.
Jagir Singh.
...... PETITIONER
Versus
State of Haryana.
..... RESPONDENT
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. N.S.Shekhawat, 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 01.10.2002 rendered by the court of Additional Sessions Judge,
Hisar, vide which it dismissed the appeal against the judgment of
conviction dated 13.09.1996 rendered by the court of Judicial
Magistrate First Class, Hisar, vide which it convicted the present
revision-petitioner for offences under Sections 279/304-A of Indian
Penal Code (hereinafter referred to as the ‘IPC’) and however, the
sentence of imprisonment for offence under Section 304-A IPC was
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reduced from eight months R.I. to six months R.I. while maintaining
the remaining sentences including the sentence of fine.
2. Briefly stated, the case of the prosecution is that on
26.07.1989 Sushil Kumar – complainant was driving a scooter bearing
No. HYW-4598 and Subhash (deceased) was pillion rider. The scooter
was being driven on the extreme left side of the road at a moderate
speed. When they reached near Central Hall, Hisar, a truck bearing
registration No.HRB-4861, which was being driven by the accused –
Jagir Singh in a rash and negligent manner, came from the backside and
in a process of overtaking the scooter, the driver of the truck hit against
the scooter from backside due to which complainant fell down on one
side of the road whereas, Subhash was run over by the truck and hence,
sustained injuries. He was removed to the hospital and however, he
succumbed to the injuries in the hospital.
3. After registration of FIR investigation was taken in hand.
Postmortem examination on the dead body of Subhash was got
conducted. Statement of witnesses were recorded. The scooter and
truck, involved in the accident, were taken into possession and both the
vehicles were mechanically examined. Photographs of the place of
occurrence were taken and rough site plan of the same was also
prepared which is Ex.PW4/E. After completion of investigation, report
under Section 173 Cr.P.C. was filed against the accused for trial of
offences punishable under Sections 279/304-A IPC.
4. Accused was charged for offences under Sections 279/304-
A IPC by the learned Trial Court to which he did not plead guilty and
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claimed trial.
5. In order to substantiate the allegations against the accused,
prosecution examined as many as four witnesses. PW1 is Sushil Kumar
– complainant who deposed regarding the case of the prosecution. PW2
is Fateh Singh in whose presence the vehicles involved in the accident
were taken into possession. However, he did not support the
prosecution version. PW3 is Dr. Ramesh Jindal, who conducted the
postmortem examination on the dead body of Subhash and proved his
report Ex.PW3/A. PW 4 is Jai Hind, ASI, who had recorded the
statement of the complainant and investigated this case.
6. In the statement recorded under Section 313 of Cr.P.C, the
accused denied the incriminating evidence coming against him and
pleaded innocence, however, he did not lead any evidence in his
defence.
7. Learned Trial Court convicted the present revision-
petitioner for offences under Sections 279/304-A IPC and sentenced
him for the said offences. Accused preferred appeal against the said
judgment of conviction and order of sentence passed by learned Trial
Court before the court of Additional Sessions Judge, Hisar, who
dismissed the same except for modification in the order of sentence and
hence, present revision petition.
8. I have heard Mr. N.S.Shekhawat, learned counsel for the
revision-petitioner and Mr. S.S.Randhawa, Additional Advocate
General, Haryana and have gone through the whole record carefully.
9. It is settled principle of law that in its revisional
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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.
10. It has been argued by the learned counsel for the revision-
petitioner that Fateh Singh, PW2 had not supported the version of the
prosecution, in whose presence the vehicles involved in the accident
were taken into possession. However, this plea has already been
considered by the learned Trial Court and moreover, Fateh Singh is not
the eye-witness of the occurrence. It has further been argued that the
only eye-witness of the occurrence, Sushil Kumar, has deposed that the
truck was coming from backside of the scooter and that he came to
know about the accident when Subhash had already fallen down from
the scooter. However, the mere fact that truck came from behind the
scooter and hit against it due to which both the riders of the scooter had
fallen down goes to prove that the truck was being driven in a rash and
negligent manner by its driver. The statement of complainant found
corroboration from site plan Ex.PW4/E, of the place of occurrence.
Driver of the truck should have taken proper care while overtaking the
scooter as the scooter was going ahead of the truck.
11. Both the courts below have found the deposition of Sushil
Kumar – complainant(PW1) convincing and reliable. Deposition of the
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complainant is fully corroborated by the medical evidence as well.
12. Hence, no fault can be found with the judgment of
conviction passed by the learned Trial Court as well as by the learned
Appellate Court.
13. So far as order of sentence is concerned, it is contended by
the learned counsel for the revision-petitioner that he has already
undergone 29 days’ imprisonment and that he has been facing agony of
trial since 26.07.1989 i.e. for the last about 20 years and hence, it is
argued that he should be given benefit of probation under the Probation
of Offenders Act, 1958 or the sentence be reduced to the period already
undergone by him. On the point he has also placed reliance upon 2008
(2) RCR(Crl.) 478, Paul George v. State of NCT of Delhi.
14. On the other hand, it was argued by the learned Additional
Advocate General for the State of Haryana that the present revision-
petitioner has taken away the life of a person by driving the truck in
rash and negligent manner and hence, taking into consideration the
nature of offence, no interference in the order of sentence passed by the
learned Appellate Court is called for.
15. 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.) 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
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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
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
Crl. Revision No.2053 of 2002 -7-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.”
16. 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.
17. In the present case, while driving his truck, the accused hit
the scooter from behind and crushed the pillion rider of the scooter
under the wheels of his truck hence, taking into consideration the legal
proposition settled by Hon’ble Apex Court in Dalbir Singh’s case
(supra) followed in B.Nagabhushanam’s case (supra) and in view of
peculiar fact and circumstances of this case, I am of the view that it is
not a fit case in which the benefit of probation under Probation of
Offenders Act should be granted to the accused. Learned Appellate
Court has already reduced the sentence to six months R.I. for offence
under Section 304-A IPC and hence, in my view no further reduction in
the sentence is called for merely on the ground that the present revision-
petitioner is facing trial for the last about 20 years.
18. Hence, for the reasons recorded above, the present revision
petition being devoid of any merit, is hereby dismissed. The judgments
of conviction and order of sentence are upheld.
19. Bail bond of the revision-petitioner stands cancelled. The
concerned Chief Judicial Magistrate shall take necessary steps to
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comply with the judgment with due promptitude keeping in view the
applicability of provision of Section 428 of Code of Criminal Procedure
and submit his compliance report within two months.
( RAM CHAND GUPTA )
December 10, 2009. JUDGE
‘om’
Note: Whether to be referred to reporter? Yes / No