Rajasthan High Court - Jodhpur
Amar Singh vs State on 10 July, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision No. 217 / 1995 Amar Singh S/o Sadul Singh by caste Rajput resident of Kishangarh Police Station Shankargarh District Bhilwara.
----Petitioner Versus State of Rajasthan.
----Respondent _____________________________________________________ For Petitioner(s) : Mr.R.S.Gill For Respondent(s) : Mr.J.P.S.Choudhary, Public Prosecutor. _____________________________________________________ HON'BLE THE CHIEF JUSTICE Judgment 10/07/2017
1. On 9.9.1989 an accident took place on the national highway connecting Bilara to Jaipur involving a truck bearing registration No.R.S.B.2225 and a Maruti 800 car bearing registration No.D.A.E. 5523. As per the prosecution, the petitioner was driving the truck in a rash and negligent manner and hit the Maruti car which was coming from the opposite direction. A passenger in the car named Kalawati suffered grievous injuries as a result of the accident. She died as a result of the injuries caused.
2. In the statement under section 313 Cr.P.C. the petitioner admitted driving the truck when the accident took place.
3. I have perused the testimony of PW1 and PW5. With reference to their testimony the learned trial Judge has returned a finding that the petitioner was driving the truck in a rash and negligent manner. The truck driven by the petitioner came on the (2 of 7) [CRLR-217/1995] wrong side of the road and hit the Maruti car which was moving on its side of the road.
4. Argument of the learned counsel for the petitioner that the Maruti car had more passengers and not all were examined is neither here nor there, for the reason the prosecution has not to duplicate its evidence.
5. Site plan Ex.P14 has a story to tell. As per the site plan the truck driven by the petitioner hit the Maruti car at the point marked 'A'. So severe was the impact that the Maruti car was pushed 17 feet on the point marked 'B'. The truck driven by the petitioner which had served on the wrong side of the road was found at point marked 'C'. The said point is at a distance of over 120 feet from spot 'A'. The truck cut across the road diagonally on to the wrong side and became stationary after hitting the foot- path. The site plan establishes the rashness with which the truck was being driven.
6. The petitioner has been sentenced to undergo simple imprisonment for a period of one year for the offence punishable under section 304A IPC. However, on appeal the sentence was reduced and he was sentenced to undergo three months SI for the offences punishable under sections 304A, 279, 337 and 338 IPC and sentences have been directed to run concurrently.
7. On the fact that the accident took place on 9.9.1989 and the revision petition is being decided by this Court in July, 2017 the argument in the alternative was to release the petitioner on probation on account of long gap of time between the date of the accident and the decision by this Court.
(3 of 7) [CRLR-217/1995]
8. The imposition of an appropriate sentence as also grant of benefit of probation under Section 4 of the Probation of Offenders Act, 1958 to offenders convicted for an offence punishable under Section 304A IPC is the subject matter of various decisions passed by the Supreme Court, and I find a divergence in the view taken.
9. In the decision reported as 1981 (Supp) SCC 17 Aitha Chander Rao V/s State of Andhra Pradesh, noting that there was an element of contributory negligence from the side of the deceased, the appellant, who was sentenced to undergo RI for a period of two years for an offence punishable under section 304A IPC by the trial court, affirmed by the appellate court and not interdicted by the High Court, was given the benefit of probation by the Supreme Court.
10. In the decision reported as 1995 Supp (2) SCC 385 A.P.Raju V/s State of Orissa, for the offence punishable under Section 304A IPC benefit of probation was granted in view of the fact that between the date of the accident which was 20.5.1979 and the decision of the Supreme Court dated 16.2.1994, 15 years had elapsed. Meaning thereby as per the Supreme Court no purpose would be served to require A.P.Raju to suffer the sentence imposed.
11. A discordant note was struck in the decision reported as (2000) 5 SCC 82 Dalbir Singh V/s State of Haryana. The argument that long period of time had elapsed between the date of the accident and the decision by the Supreme Court was (4 of 7) [CRLR-217/1995] rejected as entitling grant of probation on the reasoning that there was an alarming rise in road accidents and that the offender was a professional driver. In para 13 of the decision it was observed as 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 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."
12. The said decision was followed with approval by the Supreme Court in the decision reported as (2003) 9 SCC 208 Thakur Singh V/s State of Punjab.
13. The last two decisions afore-noted were followed once again by the Supreme Court in the decision reported as (2008) 5 SCC 730 B.Nagabhushanam V/s State of Karnataka.
14. The decision next in line is reported as (2008) 8 SCC 225 Manish Jalan V/s State of Karnataka. Noting that the (5 of 7) [CRLR-217/1995] appellant was not intoxicated, taking a lenient view, the sentence imposed by the High Court to undergo SI for a period of one year for the offence punishable under Section 304A IPC was reduced to the period already undergone. The decision does not note the period which the appellant therein had actually undergone. It needs to be highlighted that the decision in Manish Jalan pronounced by two Judges bench of the Supreme Court did not note the earlier three decisions noted by me hereinabove in Dalbir Singh's case, Thakur Singh's case and B.Nagabhushanam's case.
15. In the decision reported as 2013(1) RCR (Criminal) 826 Ismail V/s Police Sub Inspector, Hospet, for the offence punishable under Section 304A IPC, noting the age of the appellant was 74 years and the medical certificate established that the appellant's movement was fairly restricted, sentence to undergo 15 days imprisonment already suffered by Ismail was held to be the proper sentence.
16. In the decision reported as (2012) 2 SCC 182 State of Punjab V/s Balwinder Singh & ors., for the offence punishable under section 304A IPC, the decision of the High Court to reduce the sentence to the period already undergone, of 15 days, was set aside. Balwinder Singh was sentenced to undergo imprisonment for a period of six months. The decisions in Dalbir Singh's case and B.Nagabhushanam's case were cited with approval. The argument that 17 years had elapsed between the date of the accident and the decision of the Supreme Court was negated as a mitigating factor.
(6 of 7) [CRLR-217/1995]
17. In the decision reported as (2015)5 SCC 182 State of M.P. V/s Mehtaab, the decision of the High Court to let off Mehtaab for the period already undergone was set aside. The sentence was of 10 days.
18. In the decision reported as (2015) 5 SCC 182 State of Punjab V/s Saurabh Bakshi, the reduced sentence by the High Court was set aside and it was also held that Saurabh Bakshi would not be entitled to the benefit of probation. As per the decision, for professional drivers no leniency or compassion can be shown unless mitigating circumstances were proved to be existing.
19. In a concurring judgment authored by Madan B.Lokur J, in the decision reported as (2015) 13 SCC 444 State through Central Bureau of Investigation V/s Sanjiv Bhalla, in para 22 it was observed as under:-
"22. It does appear that depending upon the facts of each case, causing death by what appears ( but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A IPC in an accident "where mens rea remains absent" and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A IPC, the convict must be released on probation-it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case."
20. Three principles emerge from the decisions. Firstly, the Courts have to be strict where the offender is a professional driver.
(7 of 7) [CRLR-217/1995] Secondly, unless mitigating circumstances are shown, no leniency can be shown. Lastly, mere delay is not a mitigating circumstance. No mitigating circumstance other than the time lag between the date of the accident and the decision by this Court has been shown. It is not the case of the petitioner that he is aged and due to age suffers from any medical disability.
21. The petition is dismissed.
(PRADEEP NANDRAJOG)CJ.
Parmar