Chattisgarh High Court
Suraj Prasad Tigga vs State Of Chhattisgarh on 21 March, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
Neutral Citation
2024:CGHC:10813
Page No.1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 432 of 2016
1- Suraj Prasad Tigga S/o Balgar Ram Aged About 30 Years, Caste
Uranw R/o Village Devri, Thana - Batauli Distt. Sarguja, Civil And Rev.
Distt. Sarguja Chhattisgarh., Chhattisgarh
---- Applicant
Versus
1- State Of Chhattisgarh, Through Police Station Narayanpur Distt.
Jashpur Chhattisgarh.
-----Respondent
For Applicant : Mr. J.K. Saxena, Advocate For Respondent/State : Mr. Karan Kumar Bahrani, Panel Lawyer Hon'ble Shri Justice Parth Prateem Sahu Order On Board 21/03/2024
1. Applicant has filed this revision petition challenging the legality, propriety and correctness of the impugned judgment dated 18.03.2016, passed in Criminal Appeal No.20/2011, whereby the learned Additional Sessions Judge, Kunkuri, District Jashpur (C.G.) has maintained the judgment of conviction and sentence dated 26.09.2011, passed in Criminal Case No.105/2011, by the Court of Judicial Magistrate First Class, Kunkuri, District - Jashpur U/s. 304-A of the I.P.C. and sentenced him to undergo R.I. for 6 months and fine of Rs.500/- with default stipulation.
2. Case of the prosecution in brief is that on 21.07.2007 at about 9.15 AM Faizal Ahmad, aged about 3 years, son of Neutral Citation 2024:CGHC:10813 Page No.2 complainant/Barikuddin was standing on the side of road beside the boundary, at that time applicant by driving the Bus bearing No.C.G.15-A/4324 in rash and negligently manner, dashed Faizal Ahmad due to which he died on the spot. Matter was reported to the concerned police station upon which Dehati Nalishi (Ex.P-1) was registered on the basis of which FIR (Ex.P-8) was registered against applicant for offence under Section 304-A of I.P.C. After completion of investigation, charge-sheet was filed against applicant under Section 304-A of Indian Penal Code and Section 287/177 of the Motor Vehicle Act.
3. Applicant was charged with the offence under Section 304-A of the Indian Penal Code. Applicant denied the charge and prayed for trial. Prosecution examined as many as 10 witnesses on its behalf namely Barikuddin (P.W.-1), Afroz Ali (P.W.-2), Sanvir Ali (P.W.-3), Khushbuddin (P.W.-4), Saima Parveen (P.W.-5), Sudir Tirkey (P.W.-6), Fagua (P.W.-7), Pradeep Ekka (P.W.-8) and Dr. S.Toppo (P.W.-9), Jems Kujur (P.W.-10). Statement of applicant was recorded under Section 313 of Cr.P.C. wherein he denied all incriminating evidence appearing against him, pleaded innocence and false implication. No witness was examined in defence.
4. After conclusion of trial, learned trial Court upon appreciation of documentary and oral evidence brought on record by the prosecution, convicted applicant for offence under Section 304-A of the Indian Penal Code and sentenced him as mentioned above. The appeal preferred by applicant has been dismissed by Neutral Citation 2024:CGHC:10813 Page No.3 the impugned order upholding the conviction and sentence against the applicant.
5. It is submitted by the learned counsel for the applicant that the conviction against the applicant is erroneous and without there being any cogent and clinching evidence. He further submits that both the Courts below have erred in appreciating the evidence available on record. None of the prosecution witnesses has stated that applicant was driving the vehicle at high speed and negligently. Hence, this revision petition be allowed and the conviction against the applicant be set-aside.
6. Alternatively, it is submitted that if the Court ultimately comes to the conclusion that the conviction of applicant is just and proper, then considering the fact that the incident took place in the year 2007 and revision is of the year 2016, and applicant has remained in jail for a period of about 2 months. He has no criminal antecedents, he did not misuse the liberty granted to him during trial and appeal, the sentence imposed on him may be reduced to the period already undergone.
7. On the other hand, learned counsel for the State opposes the grounds raised in revision and the submissions made in this respect. It is submitted that the prosecution has proved its case beyond all reasonable doubts. Therefore, no case is made out for acquittal or for reduction of the sentences. Hence, the revision petition be dismissed.
Neutral Citation 2024:CGHC:10813 Page No.4
8. I have heard the learned counsel for both the parties and perused the documents placed on record.
9. It is not in dispute that on the date and time of incident, when deceased child was playing in front of his house, he was dashed by Neelam Bus due to which he suffered severe injuries and succumbed to the injures on the spot. Now it is to be considered whether on the date and time of incident, applicant drove the bus rashly and negligently, dashed the deceased child which resulted into his death.
10. Complainant and father of deceased Barikuddin (P.W.-1) stated in his evidence that on 22.07.2007 at about 8.45 to 9.00 AM his son Faizal Ahmad, aged about 3 years was on the roadside at the distance of 20 to 22 feet from house at that time applicant came driving Neelam Bus from Kunkuri side and dashed his son. He stated that his son was walking beside right side of road and applicant driven the bus down the road and dashed him. His son sustained severe injuries and died on spot. The incident was informed to the Police Station and police registered Dehati Nalishi vide Ex.P-1.
11. Jems Kujur (P.W.10), Investigating Officer stated in his evidence that after receipt of information regarding occurrence of incident, he reached to the spot and on the report of complainant - Barikuddin (P.W.-1) registered Dehati Nalishi (Ex.P-1) and registered morgue intimation vide Ex.P-4. He recorded the Neutral Citation 2024:CGHC:10813 Page No.5 statements of the witnesses, spot map was prepared vide Ex.P- 5, dead body of the deceased was sent for postmortem. After coming into police station, FIR vide Ex.P-8 and numbered mourge intimation Ex.P-9 were registered and on production of bus bearing No.C.G.-15A-4324 by applicant, seized the same in presence of witnesses vide Ex.P-10. Seized bus was sent for examination vide Ex.P-11.
12. Dr. S. Toppo (P.W.-9), stated that he conducted postmortem of dead body of deceased and found one crush injury on the right side of face and on right head size 4'x3', the bone below which and the skull bone was broken in many places, lacerated wound over occipital region size 2-1/2'x 2' below this fracture of bone was found, multiple abrasion over left elbow, right waist and left thigh and knee. He opined that cause of death was hemorrhage shock due to crush injury over skull and face, nature of death is accidental vide Ex.P-3.
13. Afroj Ali (P.W.-2) stated that on the date of incident he was sitting outside his house and son of complainant Faijal was playing outside his house, at that time applicant came driving Neelam Bus from Kunkuri side as there is slope before place of incident the bus was in speed. Driver of the bus tried to cross the bus from the side of the deceased and in that process the bus ran over the deceased. After the incident, applicant fled away from the spot. Faizal died on the spot. Similar is the statement of Sanvir Ali (P.W.-3). Nothing adverse has come on record to Neutral Citation 2024:CGHC:10813 Page No.6 disbelieve the testimonies of these witnesses.
14. Khusbuddin (P.W.-4), Sayma Parveen (P.W.-5) and Sudhir Tirkey (P.W.-6) in their evidence though admitted the occurrence of incident from ill fated bus by its driver in rash and negligent manner, however they denied that the ill fated bus was driven by the applicant at the time of incident.
15. Negligence is not defined specifically in the Indian Penal Code. It has to be examined in the light of facts and circumstances of the case. It has to be examined in attending circumstances. It may not be always determined with the speed of vehicle, if a person is driving recklessly would amount to rash and negligent driving. Hon'ble Supreme Court in case of Ravi Kumar Vs. State of Rajasthan, reported in (2012) 9 SCC 284 has observed in para 13 and 14 as under :-
13. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into Neutral Citation 2024:CGHC:10813 Page No.7 consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
14. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
16. On close scrutiny of evidence available on record it is clear that Afroj Ali (P.W.-2) and Sanvir Ali (P.W.-3) are the eyewitness of the incident. Afroj Ali (P.W.-2) has categorically stated that he was sitting outside his house at that time applicant came driving the ill fated Bus from Kunkuri side. He clearly stated that as there is slope before place of incident the bus was in speed and there is breaker and pothole that is why applicant was crossing the bus from the side of Faizal and crushed him. He remained firm during his cross-examination. Statement of Afroj Ali (P.W.-2) and Sanvir Ali (P.W.-3) stands corroborated from the statement of Barikuddin (P.W.-1) who immediately after hearing the screaming reached to the spot. Their statements also get corroboration from Neutral Citation 2024:CGHC:10813 Page No.8 the statement Dr. S. Toppo (P.W.-9) and from postmortem report (Ex.P-3). Applicant in his statement recorded under Section 313 of Cr.P.C. not offered any explanation nor examined any witnesses in defence. In the aforementioned facts of the case I do not find any error in the finding recorded by the trial Court and upheld by the appellate Court that death of Faijal Ahmad was due to motor accident by rash and negligent driving of ill fated bus by applicant.
17. So far as the submission on the sentence is concerned, the view always to be that the punishment must be proportionate to the crime. Courts have discretion to reduce the sentences awarded by the trial Court, but it should be keeping in mind the purpose of the provision for which it is enacted, imposing jail sentence to deter the person committing the offence. Hon'ble Supreme Court in case of Dalbir Singh Vs. State of Haryana, reported in (2000) 5 SCC 82 observed in para -13 which reads as under :-
"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 Section 304-A IPC as attracting the benevolent provisions of Section 4 of the P.O. 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 Neutral Citation 2024:CGHC:10813 Page No.9 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 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."
18. In case of State of Madhya Pradesh Vs. Surendra Singh, reported in (2015) 1 SCC 222, in which the Hon'ble Supreme Court took note of its earlier decision and observed at para 9, 10, 12, 14 & 15 as under :-
"9. While considering this aspect, the Supreme Court in Mahesh and others vs. State of Madhya Pradesh, (1987) 3 SCC 80, remarked that, "6...........it will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the Justice system of this country suspect. The common man will lose faith in courts. In such cases, he Neutral Citation 2024:CGHC:10813 Page No.10 understands and appreciates the language of deterrence more than the reformative jargon. When we say this, we do not ignore the need for a reformative approach in the sentencing process."
10. In Hazara Singh versus Raj Kumar, (2013) 9 SCC 516, this Court has observed that :-
"10......it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
This Court further observed that:
"11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases."
12. A three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed vs. State of Gujarat, (2009) 7 SCC 254, observed as follows:
"99. ... The object of awarding appropriate sentence should be to protect the society and to Neutral Citation 2024:CGHC:10813 Page No.11 deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."
14. In a recent decision in the case of State of Madhya Pradesh vs. Bablu, after considering and following the earlier decisions, this Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the Neutral Citation 2024:CGHC:10813 Page No.12 manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.
15. In view of the above, we set aside the impugned order reducing sentence to the period already undergone and, to avoid miscarriage of justice, this appeal is allowed restoring the sentence imposed by the trial court. The respondent is directed to surrender within two weeks from today, failing which, the trial Judge is directed to take appropriate steps for sending him to prison to undergo the remaining period of sentence."
19. The trial Court convicted the applicant under Section 304-A of I.P.C. sentenced him to undergo 6 months SI and fine of Rs.500/- and in default 20 days SI, which in the opinion of this Court does not call for any interference.
20. For the forgoing discussions made here-in-above, I do not find good ground to interfere with the impugned order. The revision being sans merit hence, it is hereby dismissed.
21. The applicant is reported to be on bail, his bail bonds are cancelled and he is directed to surrender to serve out the remainder of the jail sentence.
Sd/-
(Parth Prateem Sahu) Judge Balram