Himachal Pradesh High Court
Tej Singh vs State Of Himachal Pradesh on 25 May, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Criminal Revision No.121 of 2009.
Judgment reserved on: 11.05.2017.
Date of decision: 25th May, 2017.
Tej Singh .....Petitioner/Appellant/Accused.
Versus
State of Himachal Pradesh ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioner : Mr.P.S.Negi, Advocate.
For the Respondent : Ms.Meenakshi Sharma, Additional Advocate General with Mr.Neeraj K.Sharma, Deputy Advocate General and Mr.J.S.Guleria, Assistant Advocate General.
Tarlok Singh Chauhan, Judge.
The present revision petition under Section 397 of the Code of Criminal Procedure is directed against the judgment passed by the learned Sessions Judge, Kullu, H.P. on 01.07.2009 whereby he dismissed the appeal filed by the appellant (petitioner herein) and affirmed the judgment passed by the learned trial Court on 27/28.03.2008 whereby the accused was convicted and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of `500/- under Section 279 IPC and in default of payment of fine to undergo rigor ous imprisonment for one month and further to undergo rigorous imprisonment for a period of one year and to pay fine of `5000/- under Section 304-A IPC and in default of payment of fine to undergo rigorous imprisonment for three months. It was further Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 2 directed that out of the fine amount, if realized, `4000/-, be paid to the complainant Phonchak as compensation.
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2. Briefly stated, the facts necessary for adjudication of the present revision petition are that on 21.03.2007 at about 8.25 p.m., a telephonic message was received from Police Station, Kullu, in Police Station, Manali, informing that an accident had taken place near Fisheries Farm and the victim had been referred to the hospital and request for carrying out necessary proceedings was made.
r This information was reduced into writing vide rapat No.20 Ex.PW7/A dated 21.03.2007 at Police Post, Patlikuhal. The complainant in this case is Phonchak, a shopkeeper, who on 21.03.2007 at 6.15 p.m. after purchasing vegetables at Patlikuhal was coming back to his home and on the way, he met his father Dorje Ram, who asked him that from where he was coming. However, in the meantime, one Innova vehicle No.HP-01K-0986 came at a high speed from Kullu side and was being driven in a wrong direction and struck against the father of the complainant. As a result of this, the father of complainant fell down on the road and blood started oozing out from his mouth, nose and ears. He also sustained injuries on his legs. The injured Dorje Ram was taken to Oasis Hospital, Dwara, for treatment, but he unfortunately within 15-20 minutes succumbed to the injuries. The case of the prosecution is that the accident took place due to rash and negligent driving of the vehicle of the accused.
3. During the course of investigation, post mortem of the dead body of deceased Dorje Ram was conducted at Regional Hospital, Kullu, and post mortem report Ex.PW6/A was obtained. Viscera of the deceased was also preserved and thereafter the dead body of the deceased was handed over to his legal heirs. Site plan Ex.PW7/ F was prepared, ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 3 photographs Ex.PW5/A-1 to Ex.PW5/A-5 and negatives Ex.PW5/A-6 to Ex.PW5/A-10 were taken. During the course of investigation, it was found .
that the name of the driver of the vehicle was one Tej Singh, though, he was initially mentioned as Mangal Negi. The vehicle alongwith driving licence of the accused was taken into possession vide seizure memo Ex.PW3/A. The vehicle was got mechanically examined vide report Ex.PW4/A. The statements of the witnesses were recorded and on completion of the investigation, challan was presented in the Court.
4. Notice of accusation for commission of the offences punishable under Sections 279 and 304-A of IPC was put to the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined 7 witnesses in all. The learned trial Court after appreciating the evidence on record vide judgment dated 27/28.03.2008 convicted and sentenced the accused for committing the offences as per details mentioned above.
6. Aggrieved by the judgment of conviction and sentence, the accused filed an appeal under Section 374 of Cr.P.C. before the learned Sessions Judge, Kullu, which was dismissed and consequently the judgment rendered by the learned trial Magistrate was upheld. Hence, the present criminal revision petition was filed by the petitioner-accused.
7. It is vehemently argued by Shri P.S.Negi, learned counsel for the petitioner that the impugned judgments rendered by the learned Courts below are contrary to the facts and as such the same deserves to be set aside as they are not based on correct appreciation of evidence available on record, while learned Additional Advocate General representing the State would support the judgments passed by the learned Courts below and would claim that the same requires no interference.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 4I have heard the learned counsel for the parties and gone through the records.
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8. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 of Cr.P.C. is extremely limited and this Court would only interfere incase the petitioner-accused has been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere incase it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. Afterall, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order.
9. The material placed on record leaves no manner of doubt that the vehicle in question met with an accident on 21.03.2007 while it was being plied at the spot because it was petitioner-accused himself, who took deceased Dorje Ram to the Oasis Hospital, Dwara. Obviously, therefore, there does not remain any doubt about the offending vehicle at the relevant time being driven by the petitioner.
10. In this view of the matter, the only question which remains to be determined by this Court is whether at the relevant time, the offending vehicle was being driven rashly and negligently by the petitioner or not. This Court is further required to determine that the accident actually was caused/occurred due to the rash and negligent driving of the driver or not.
11. As observed earlier, the prosecution in order to establish its case has produced as many as 7 witnesses.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 512. PW-1 Phonchak is the eye witness and is also the son of the deceased. He stated that while he was on his way to his house, he saw his .
father walking on the side of the road on the opposite direction and in the meanwhile the offending vehicle bearing registration No. HP-01K-0986 being driven on the wrong side (right side) came from Kullu side in a high speed and struck against his father. As a result whereof, his father fell on the road and sustained injuries on his person and was removed to the hospital. According to him, the accident in question had taken place due to rash and negligent driving of the petitioner, who was driving the vehicle in the wr ong side.
13. Even though, this witness has been cross-examined at length, but there is nothing to impeach and discredit his testimony. He denied the suggestion that his father could not walk properly and the petitioner was driving the vehicle in a normal speed. He volunteered to state that the petitioner was driving the vehicle in a high speed. He also denied that his father had abruptly come on the road due to which the accident took place.
He further denied that accident had not taken place due to fault of the petitioner.
14. The statement of PW-1 has been fully supported by the statement of PW-2 Kamla Devi, who again is an eye witness and narrated the same version as was deposed by PW-1. According to her, on 21.03.2007, she had gone to Patlikuhal and at 6.15 p.m., while she was outside the house of the complainant Phonchak, she saw a vehicle coming from Kullu side that struck against the father of the complainant as it was being driven on the wrong side. The father of the complainant fell down and blood started oozing out from his nose, mouth and head and he also sustained injuries on his legs. Thereafter, the injured was initially taken to ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 6 the Oasis hospital, Dwara in the same vehicle, where from he was referred to Kullu hospital where he within 20 minutes succumbed to his .
injuries. She has specifically and categorically stated that the accident took place due to the fault of the petitioner because the old man (deceased Dorje Ram) was not at all fault because he was walking on his own side. Even, though this witness has been cross-examined at length, however, nothing could be elicited from her cross-examination so as to impeach and discredit her testimony, rather this witness has reasserted her presence on the spot and stated that she was present near the house of complainant Phonchak.
15. The statements of PW-1 and PW-2 further stand corroborated by another eye witness PW-3 Dalbir, who is the son of the complainant and stated that on 21.03.2007 at 6.15 p.m., he was standing outside his house while his grandfather Dorje Ram was coming towards the house on his own side. In the meanwhile, the offending vehicle came from the side of Kullu at a speed of 120-130 kilometer per hour that too from a wrong direction and struck against his grandfather, as a result whereof, his grandfather fell down and sustained injuries on his legs and that apart blood started oozing out from his mouth, ear and head. His injured grandfather was initially taken to Oasis hospital, Dwara from where he was referred to Kullu hospital, however, he succumbed to his injuries after about 10-15 minutes. Like, PW-1 and PW-2, this witness identified the petitioner in the Court. He also proved on record the seizure memo Ex.PW3/A vide which the vehicle was taken into possession. This witness too was cross-examined at length, but nothing material could be elicited therefrom so as to discredit his testimony.
When cross-examined, this witness denied that his grandfather could not walk properly due to his old age. He also denied that the accident took place ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 7 due to his grandfather having all of a sudden come on the road and further denied the suggestion that the petitioner was not at fault. While being cross-
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examined, this witness has established the presence of PW-2 Kamla Devi on the spot.
16. PW-4 Durga Dass was one who had mechanically examined the vehicle at Garunala and proved his report Ex.PW4/A. He categorically deposed that there was no mechanical defect in the vehicle and wreckage/damage to the vehicle was due to the accident.
17. PW-5 Jaswinder has proved the photographs Ex.PW5/A-1 to Ex.PW5/A-3 of the vehicle involved in the accident alongwith photographs Ex.PW5/A-4 to Ex.PW5/A-5 of the spot alongwith negatives Ex.PW5/A-6 to Ex.PW5/A-10. The photographs reveal that front glasses and headlight of the offending vehicle had broken and this obviously was on account of the vehicle having struck against injured/deceased Dorje Ram.
18. Dr.Roshan Lal, Medical Officer, R.H., Kullu, has been examined as PW-6 and has stated that on 22.03.2007 at about 12.15 p.m., he had conducted the post mortem of the deceased Dorje Ram and issued report Ex.PW6/A. He has further stated that in his opinion the deceased Dorje Ram had died because of head injury and multiple fractures of bones leading to cardio respiratory arrest.
19. PW-7 Subhash Chand, I.O., Police Post, Patlikuhal, is the Investigating Officer and stated that he had visited the Zonal Hospital, Kullu and had recorded the statement of the complainant under Section 154 Cr.P.C. vide Ex.PW1/A on the basis of which FIR Ex.PW7/C was registered by SI/SHO Sharvan Singh. He prepared the site plan Ex.PW7/F after visiting the spot. He had got conducted post mortem of the deceased and prepared the inquest report where after the dead body of the deceased was ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 8 handed over to the son of the deceased. He also stated that he had got the photographs clicked of the vehicle and got the statements of the witness .
recorded under Section 161 Cr.P.C. He also proved on record that the offending vehicle was taken into possession and thereafter got mechanically examined. He further deposed that after receipt of the report of FSL Ex.PW7/G and on completion of investigation, the challan was presented in the Court. While being cross-examined, this witness has categorically denied that the site plan Ex.PW7/F was prepared on his own.
r He also denied the suggestion of the defence that it has come during the course of the investigation that the accident had taken place because of deceased Dorje Ram having suddenly appeared on the road.
20. The statement of the petitioner was recorded under Section 313 Cr.P.C., who admitted that on 21.03.2007 at about 6.15 p.m., he was driving Innova Car bearing No. HP-01K-0986 on the National Highway and after the accident had taken place, the injured Dorje Ram was taken to Oasis hospital, Dwara for medical treatment from where he was referred to Zonal Hospital, Kullu. He further stated that while the doctors were giving treatment to the injured, he after 15-20 minutes succumbed to the injuries.
He has also not disputed the fact that the police took photographs of the spot and the vehicle was also got mechanically examined, however, he feigned ignorance regarding site plan Ex.PW7/F having been prepared during the course of investigation. His only explanation for the accident was that the deceased suddenly appeared on the road and there was no fault on his part in causing the accident, as would be evident from the reply submitted by him to questions No.7 to 19, respectively, of the statement under Section 313 Cr.P.C.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 921. In rebuttal to the evidence, the petitioner has examined one Nima Ram as DW-1, who deposed that on 21.03.2007 at about 6.15 p.m., .
while he was proceeding to Patlikuhal and reached near Subji Mandi, he saw a vehicle coming near a tap while Dorje Ram was standing adjacent to the tap. The deceased Dorje Ram suddenly started walking towards his house and ultimately struck against the vehicle, as a result whereof, he fell down. After the accident, he alongwith Kamla Devi (PW-2), PW-1 and the petitioner took him to the hospital. As per this witness, the accident had not taken place due to the negligence of the driver but because the deceased Dorje having suddenly appeared on the road and because of the negligence of the deceased.
22. In cross-examination, DW-1 admitted the vehicle was coming from Kullu and was on its way to Manali. He also admitted the suggestion of the prosecution that while driving the vehicle, the petitioner took his vehicle from left side to the right side, but this was because Dorje all of a sudden appeared on the road compelling the petitioner to drive the vehicle on to his right side. This witness has candidly admitted that the deceased could walk properly and could walk even faster than the witness.
23. Shri P.S.Negi, learned counsel for the petitioner, would vehemently argue that the learned Courts below have misread and misconstrued the statements of the witnesses, more particularly, PW-1 Phonchak who as per his version given in the FIR has stated that he was coming from market and while talking with the deceased Dorje that the vehicle being driven by the petitioner came from the opposite side and struck against Dorje. Whereas, PW-1 while appearing in the witness box stated that when he reached near his house, he saw his father walking on the other side towards his house and did not make a mention that he met his ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 10 father on the road. Likewise, PW-3 while appearing in the witness box has stated that PW-1 had reached the courtyard of his house when the accident .
took place and had admitted that the house is below the road and, therefore, obviously the road could not have been seen from the first floor (Verandah).
He would further argue that in view of the contradictory statement of PW-1, it is difficult to believe that he was at the spot at the time of accident.
24. I have examined the said contention and find no merit in the same. As per site plan Ex.PW7/F, the accident has taken place on the right side in another portion of lane of the road which has been indicated by Point-1 Mark-A, the place where the offending vehicle hit the deceased Dorje. The house of deceased Dorje has been shown at Point-2 Mark-B. In the site plan at Point-C, National Highway No.21 from Kullu to Manali has been depicted. A perusal of point-3 Mark-C shows that it is a metalled road of 23 feet, whereas, 2 feet was unmetalled on the left side and 8 feet unmetalled on the right side which has been shown at Point-4 mark-D of the site plan and as such the total width of the road at the plac e of accident was 33 feet. Now when the width of the road is examined alongwith testimonies of the eye witnesses PW-1 to PW-3, then no exception can be taken to the findings recorded by the learned Courts below whereby they concluded that the vehicle was being driven in rash and negligent manner and the accident was actually caused/occurred due to rash and negligent driving of the petitioner. While, keeping in mind the width of the road at the spot, it would be noticed that despite the road being very wide, the petitioner was driving the vehicle on the right side of the road in contravention of the Motor Vehicles Rules. In addition thereto, it has specifically come in the statements of eye witnesses that the vehicle was not only being driven in a high speed, but the same was being driven in rash and negligent manner.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 1125. As regards the so-called discrepancies in evidence, the legal position has been long settled that minor discrepancies are not to be given .
undue emphasis and the evidence is to be considered from the point of view of trustworthiness and whether the same inspire confidence in the mind of the Court.
26. The legal position has been succinctly summed up by the Hon'ble Supreme Court in Yogesh Singh vs. Mahabeer Singh & Ors. JT 2016(10) SC 332, wherein it was held as under:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796)."
27. In the present case, I do not find any major contradiction in the evidence of the witnesses, which may tilt the balance in favour of the petitioner. The minor improvement and embezzlement etc. apart from being far yielded of human faculties are insignificant and to be ignored since the evidence of the witnesses otherwise overwhelmingly corroborate each other in material particulars.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 1228. It is then vehemently argued by Shri P.S.Negi, learned counsel for the petitioner that the prosecution has only examined the interesting .
witnesses, who are none other than the close relatives of the deceased like son, grandson of the deceased. Identical contentions came up for consideration before the Hon'ble Supreme Court in Yogesh Singh's case (supra) wherein it was observed as under:-
"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab [AIR 1953 SC 364 = 1954 SCR 145] is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab [AIR 1977 SC 2274 = (1977) 4 SCC 452], this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 13 caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the .
particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to rexamine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52)."
29. In view of the aforesaid exposition of law, this Court would only be required to carefully scrutinize and appreciate the evidence of closely related witnesses before arriving at any conclusion. However, their evidence cannot be disbelieved only on the ground that these witnesses are related to each other or to the deceased and when the evidence has a ring of truth as being cogent, credible and trustworthy, as has already been discussed hereinabove.
30. As a last ditch effort, learned counsel for the petitioner would vehemently argue that as the petitioner is the sole bread earner of his family, the sentence imposed by the learned trial Magistrate as ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 14 affirmed by the lear ned Sessions Judge be reduced or he be extended the benefit of Probation of Offenders Act.
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31. In Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 while dealing with the road accidents and consequences visiting the victims and the families of such accidents, the Hon'ble Supreme Court made stern observations by observing that :-
"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 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 think 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.
14.Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean to wards the benevolent provision in Section 4 of the PO Act. The appeal is accordingly dismissed."
32. At this stage, it shall be apt to refer to a recent judgment of the Hon'ble Supreme Court in State of Punjab vs.Saurabh Bakshi (2015) 5 SCC 182 wherein it was held as under:-
"Long back, an eminent thinker and author, Sophocles, had to say:
"Laws can never be enforced unless fear supports them."
Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous ::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 15 vigour, in today's society. It is the duty of every right- thinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to .
be borne in mind that law is averse to any kind of chaos.
It is totally intolerant of anarchy. If any one defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional r scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N. Cardizo "Justice, though due to the accused, is due to the accuser too". And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.
14. In this context, we may refer with profit to the decision in State of Punjab v. Balwinder Singh (2012) 2 SCC 182 wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304-A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana (2000) 5 SCC 82 and reproduced two paragraphs which we feel extremely necessary for reproduction:(Balwinder Singh case, SCC pp. 186-87, para
12) "12....1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 16* * *
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 Probation of Offenders 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 r 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 the vehicle he cannot escape from a 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.'(Dalbir Singh vs.State of Haryana (2000) 5 SCC 82, SCC pp.84-85 & 87, paras 1 & 13)"
24. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months.
25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304-A, IPC. We say so with immense anguish."::: Downloaded on - 30/05/2017 00:00:53 :::HCHP 17
33. In view of the aforesaid exposition of law, I am of the considered view that instant is not a case where benefit of Probation of .
Offenders Act can be extended, particularly, when the Hon'ble Supreme Court has deprecated this practice. However, at the same time, this Court cannot also lose sight of the fact that the incident relates back to more than to a decade and it also does appear that the sentence as imposed is slightly on the higher side and deserves to be modified.
34. Accordingly, while dismissing the revision petition, the sentence imposed by the learned Courts below qua the offences committed under Sections 279 and 304-A of IPC is modified and a sentence for six months of imprisonment for all the cumulative offences is imposed and likewise the fine is increased to `25,000/- and fine if so realized, a sum of `20,000/- would be paid to Phonchak as compensation and in default to pay such fine, the petitioner shall be liable to undergo simple imprisonment for one month.
35. In view of the above discussion, the judgments passed by the learned Courts below are upheld, however, conviction and sentence imposed upon the petitioner is modified to the aforesaid extent only. Order dated 09.09.2009 passed by this Court whereby the sentence imposed by the learned Courts below was suspended is hereby vacated and the petitioner-accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded vide this judgment.
36. The revision petition stands disposed of alongwith pending application, if any.
25th May, 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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