Rajasthan High Court - Jaipur
Bhanwar Lal vs State on 18 July, 2017
Author: Pradeep Nandrajog
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Revision Petition No.92 /2003
Bhanwar Lal S/o Shri Prahlad, by caste Bairwa, R/o Godam Ki
Talai, Jhalawar (presently confined at District Jail, Jhalawar).
----Accused-Petitioner
Versus
State of Rajasthan through Public Prosecutor
----Respondent _____________________________________________________ For Appellant(s) : Mr.Harendra Sinsinwar For Respondent(s) : Mr.B.N. Sandhu, Public Prosecutor _____________________________________________________ HON'BLE THE CHIEF JUSTICE Judgment 18/07/2017
1) Heard learned counsel for the parties. Perused the record of the trial court.
2) Convicted for offence committed punishable under Section 279 and 304A IPC. The petitioner has been sentenced to undergo three months RI for offence punishable u/S.279 IPC and one year RI for offence punishable u/S.304A IPC. The accident took place in the night at 8.45 p.m. on 10/07/1995. the place of the accident is the State Highway connecting the city of Kota to Jaipur.
3) I find that both the courts below have overlooked the Site Plan Ex.P.2. As per the same, the deceased who was travelling in a Jeep had parked the Jeep in the middle of the Highway. The place where the accident took place has been marked as 'XA'. It shows that the deceased who was driving the (2 of 7) [S.B.Cr.Rev.-92/2003] Jeep got down after parking the Jeep at Point 'C" and was moving in the Northern direction i.e. towards the other side of the road. The petitioner who was riding on a motorcycle collided when the deceased was crossing the road.
4) The case of the petitioner was that the deceased suddenly parked the Jeep on the middle of the road and darted across the road and it being night, the motorcycle hit the deceased.
5) There is no discussion in the impugned judgment of this aspect of the matter.
6) The relevance thereof would be contributory negligence of the deceased. Whilst it may be true that it being night the petitioner was expected to be driving carefully and would also be responsible for what happened.
7) The age of the petitioner at relevant time was 18 years.
8) The question which arises is whether the petitioner would be entitled to probation or reduction in the sentence.
9) 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.
10) 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 (3 of 7) [S.B.Cr.Rev.-92/2003] 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.
11) 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.
12) 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 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 (4 of 7) [S.B.Cr.Rev.-92/2003] 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."
13) 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.
14) 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.
15) The decision next in line is reported as (2008) 8 SCC 225 Manish Jalan V/s State of Karnataka. Noting that the 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 (5 of 7) [S.B.Cr.Rev.-92/2003] Singh's case, Thakur Singh's case and B.Nagabhushanam's case.
16) 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.
17) 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.
18) 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.
19) 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 (6 of 7) [S.B.Cr.Rev.-92/2003] 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.
20) 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."
21) From the aforenoted decisions, three principles have been urged. First is that the court should be strict against the professional drivers, secondly unless mitigating circumstances are shown, no leniency should be shown. Lastly, mere delay in deciding the revision petition is not a mitigating circumstance.
22) The petitioner is not a professional driver. Contributory negligence by the deceased is writ large. The accident took place (7 of 7) [S.B.Cr.Rev.-92/2003] at night. Petitioner was aged 18 years when the accident took place.
23) Under the circumstances I hold that the petitioner is entitled to the benefit of probation.
24) Disposing of the petition and maintaining the conviction of the petitioner, I suspend the sentence directing that petitioner shall within one month furnish a bond in the sum of ₹5,000/- with one surety to the satisfaction of the learned trial Judge. The bond would be to maintain peace and harmony and not commit any offence for a period of one year.
(PRADEEP NANDRAJOG),C.J.
Anil Goyal-PS/8