Himachal Pradesh High Court
Salender Pal vs State Of Himachal Pradesh on 27 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 159 of 2007.
Reserved on: 09.5.2016.
.
Date of Decision: 27.5. 2016.
______________________________ _____________________________
[
Salender Pal .........Petitioner.
Versus
State of Himachal Pradesh ............Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner:rt Mr. Ajay Sood, Senior Advocate, with Mr.
Dheeraj K. Vashishat, Advocate.
For the respondent: Mr. Rupinder Singh Thakur, Additional
Advocate General.
________________________________________________________
Sandeep Sharma, J.
The present criminal revision petition filed under Section 397 Cr.PC read with Section 401 Cr.PC, is directed against the judgment dated 01.10.2007, passed by the learned Additional Sessions Judge, Fast Track Court, Solan, District Solan, HP, in case No. 7FTC/of 10 of 2007, titled "Salender Pal v. State of Himachal Pradesh", affirming the judgment of conviction and sentence dated 30.4.2007, passed by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan, HP, in Criminal Case No. 202/2 of Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:28:56 :::HCHP -2-2002 titled "State of Himachal Pradesh v. Salender Pal," whereby accused-petitioner herein, has been sentenced to undergo as .
under:-
"Simple imprisonment for six months for committing offence under Section 279 and fine of `1000/-(Rupees one thousand only) and in default of payment, to further undergo simple imprisonment for one month.
of Simple imprisonment for a period of six months and to pay fine of ` 500 (Rupees Five Hundred only), and in default to undergo simple imprisonment of one month rt for committing offence under Section 337 Indian Penal Code.
Simple imprisonment for two years and fine of `1000/- (Rupees one thousand only) and in default, simple imprisonment for a period of six months for having committed offence under Section 338 Indian Penal Code, and ;
Simple imprisonment for two years and pay fine of Rs. 5000/- (five thousand only) and in default simple imprisonment for six months for committing offence under Section 304-A of Indian Penal Code. All sentences shall run concurrently."
2. Briefly stated facts necessary for adjudication of the present case are that on 31.3.2002, petitioner-accused Salender Pal was driving a mini bus bearing No. HR-37-8299 from Subathu to Panchkula. When bus reached near Thedpura at about 2.45pm, it ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -3- went off the road and fell into a Nalah, as a result thereof, injuries were caused to children and women travelling in the bus and .
unfortunately two women and one boy died on the spot. After accident, injured were taken to the hospital at Nalagarh for medical aid. As per prosecution story, alleged accident took place due to rash and negligent driving of the accused-driver, of who failed to control the vehicle in question and went out of road.
Subsequent to the accident, matter was reported to the police rt and statement of Shri Hari Ram under Section 154 Cr.PC was recorded and on the basis of the same, FIR No. 46/02, Ext.PA was registered against the accused at Police Station Barotiwala under Sections 279,337,338 and 304-A Indian Penal Code.
3. During the investigation, police came to the conclusion that accident took place due to rash and negligent driving of the driver-accused as well as high speed. It was also found that due to negligent act of the accused three persons namely Shorya Sharma, Shashi Kashyap and Archana Bala died and simple and grievous injuries were caused to several other passengers travelling in the bus.
::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -4-4. Police also got vehicle mechanically examined and procured mechanical report Ext.PW-7/A. Spot map/site plan .
Ext.PW-13/B, post-mortem reports of the deceased Ext.P1 to P3 were also procured. Injured namely Renu, Nitika, Mamla Saini, Sunita Chand, Pinki Thakur, Smt. Anju Gupta, Narayan Giri, Savita, Varun Sharma, Aman, Rewa Sharma, Munish Sharma, Sanyogita, of Shaweta, Sangeeta Sharma and others were also got medically examined at Hospital and MLCs Ext. P4 to P13 were also procured.
rt Photographs of the mini bus as well as of the deceased were clicked on the spot and were procured as Ext.PW-1 to P-36 along with negatives. After completion of the investigation, police filed challan in the competent court of law and charged the accused for committing offences (supra). The petitioner- accused was charged for commission of offences (supra) by the court of learned Addl. Chief Judicial Magistrate, Kasauli, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 15 witnesses. The learned trial court after appreciating the evidence on record vide judgment dated 30.4.2007 convicted and sentenced the accused for committing the offences as per detail given above.
::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -5-5. Feeling aggrieved with the judgment of conviction of learned trial Court, accused filed appeal under Section 374 Cr.PC .
before the learned Additional Sessions Judge, FTC, Solan, District Solan, HP, which was dismissed and judgment of learned trial court was upheld. Hence, the present criminal revision petition by the petitioner- accused.
of
6. Mr. Ajay Sood, Senior Advocate, duly assisted by Mr. Dheeraj K. Vashishat, Advocate, appearing for the petitioner-
rt accused, vehemently argued that the impugned judgment of the courts below are contrary to law and fact and as such, same deserve to be quashed and set-aside as they are not based upon the correct appreciation of evidence available on record, rather, evidence on record has not been appreciated in its right perspective and judgments are based upon the conjectures and surmises. Mr. Sood forcefully contended that none of the independent witness supported the version of the prosecution but despite that courts below reached to the conclusion that offence has been committed by the petitioner-accused. With a view to substantiate his statement, he invited attention of this Court to the statements made by the prosecution witnesses, especially, Pws No. ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -6- 1 and 2, who have not supported the version of the prosecution, rather, they were declared hostile. Mr. Sood further submitted that .
conclusion drawn by the court below that accident had occurred due to rash and negligent driving of the driver-petitioner-accused, is not based on the material available on record because while taking the court through the statements made by the prosecution of witnesses, he has pointed out that prosecution evidence is full of contradictions and infirmities and as such, both the courts below rt have committed a grave error in convicting the accused. He also argued that court below while examining the accused under Section313 Cr.PC has combined more than one fact in one question which caused confusion to the petitioner-accused and as such, great prejudice has been caused to the accused and hence, the conviction is liable to be set-aside. Mr. Sood, also while arguing on behalf of the petitioner-accused apart from making aforesaid statement, also invited attention of this Court to the various grounds taken by the petitioner-accused in his appeal, which are not reproduced here for the sake of brevity. He prayed that in view of the grounds taken by him in the petition, impugned ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -7- judgment deserves to be quashed and set-aside and accused deserves to be acquitted of the charges framed against him.
.
7. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, representing respondent-State supported the judgments passed by the courts below and strenuously argued that no interference, whatsoever, of this Court of is warranted in the present facts and circumstances of the case.
Judgments of the courts below are based upon the correct rt appreciation of evidence available on record; he contended that there is overwhelming evidence to suggest that at the time of accident, offending vehicle was being driven rashly and negligently and, as such, no lenient view can be taken by this court. He further submitted that in case, if statements given by PWs-1 and 2 are ignored, who were declared hostile, despite that, there is overwhelming evidence adduced by the prosecution to prove its case beyond reasonable doubt. During his arguments, he made this Court to peruse the statements given by the prosecution witnesses i.e. occupants of offending vehicle, wherein all of them unequivocally stated that accident occurred due to rash and negligent driving of the driver-accused. Lastly, Mr. Thakur, ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -8- contended that this Court cannot loose sight of the fact that offending vehicle was carrying children of school and as such .
accused was expected to drive more cautiously and carefully. But in the instant case, there is ample evidence available on record suggesting that he remained careless, rash and negligent while driving and accident occurred. Mr. Thakur also submitted before of this Court that this Court has very limited powers under Section 397 Cr.PC to re-appreciate the evidence on record and prayed that rt this petition may be dismissed.
8. I have heard learned counsel for the parties as well carefully gone through the record.
9. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where petitioner-accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
::: Downloaded on - 15/04/2017 20:28:57 :::HCHP -9-10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the .
Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, of it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct rt irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or .
miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
11. Perusal of the material available on record leaves no doubt that vehicle in question met with an accident on 31.3.2002, of while it was being plied between Subathu to Panchkula. It also remains undisputed that at that relevant time, vehicle was being rt driven by the accused. Now question, which remains to be ascertained by this Court is that whether at that relevant time vehicle was being driven rashly and negligently by the driver/accused or not? Apart from this, this Court on the basis of material evidence available on record, needs to find out that whether accident actually caused/occurred due to rash and negligent driving of the driver or not.
12. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as fifteen prosecution witnesses.
13. Gopal Singh (PW1) and Hari Ram (PW2) stated in their statements that school bus had fallen down the road but they did ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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not know as to how the accident actually occurred. Accordingly, they were declared hostile by the prosecution. Though, aforesaid .
witnesses deposed that bus had fallen down from the road but they did not know that on whose negligence the accident took place. But Rewa Ram (PW3), Kamal (PW4), Sunita (PW5) and PInki (PW6) who were travelling in the bus at that time of accident of unequivocally stated that accused was driving the bus rashly and negligently and due to his negligence accident occurred as he rt lost control over the vehicle while overtaking another vehicle. It has also come in their statement that while trying to overtake the vehicle, it went off the road and fell down the road, as a result whereof, injuries were caused to the passengers. This Court while hearing the case had an occasion to peruse statements/depositions in their examination-in-chief as well as cross-examination but admittedly, counsel representing the accused has not been able to extract anything otherwise from these witnesses in their cross-examinations. Bare perusal of their depositions or admissions made in the cross-examination suggests that they reiterated what they had stated in their examination-in-
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chief. They had been very very specific, candid and consistent and their testimonies appear to be confidence inspiring.
.
14. Pritam Chand (PW7) deposed with regard to the conducting of mechanical examination of the bus. PW8 C. Narinder Kumar proved rapat No.11 dated 31.3.2002 recorded at Police Station Barotiwala. HC Sewa Singh (PW9) deposed about of the scribing of FIR Ex.PA. Ram Lok (PW10) proved the photographs Ext.P1 to P8 and negatives Ext.P19 to 36 whereas Prit Pal (PW11) rt admitted taking of the photographs on the spot. PW12 Jagjit Singh proved that Driving Licence was taken in possession vide memo Ext.PW12/A. SI Chaman Lal (PW13), who investigated the case, testified that he visited the spot and prepared the site plan Ext.13/B on the spot and spot map was not at all disputed by the accused because no suggestion worth the name with regard to the correctness of the spot map was put to him (PW-13). He also stated that on the spot, where accident took place, road was straight and it was 18 ft. wide. This factum of road being straight on the spot is also not disputed by the accused in cross-
examination. Rather, there is nothing on record to dispute the correctness of the spot map as well as photographs.
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15. Admittedly, in the preset case, PWs-1 and 2 have not supported the case of prosecution but they have stated that the .
bus had fallen down but they don't know as from whose negligence It had occurred. But remaining evidence PWs 3 to 6 who were admittedly travelling in the ill-fated bus at the time of accident have categorically stated in one voice that accident of occurred due to negligence of the accused as he was trying to overtake another vehicle and lost control over the bus, which rt ultimately went off the road and fell down the road. As has been noticed above that defence has not been able to extract or elicit anything contrary from the cross-examination of PWs, which otherwise appears to be trust worthy, inspiring or worth lending credence. Version put forth by these PWs 3 to 6 cannot be brushed aside easily for the simple reason that they were only eye witnesses and victims of the accident because they were travelling in that ill fated vehicle at the time of accident. Defence has not been able to extract anything from these prosecution witnesses that they purposely with a view to implicate the accused falsely deposed against him. There is no evidence on record, which can even suggest that these witnesses had any prior ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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animosity or ill will with the accused, which made them to depose against him.
.
16. Apart from above, this also remains fact that all these PWs were injured in the accident and being eye witnesses, their evidence cannot be overlooked, rather it requires to be given weightage . Moreover, the presence of these PWs at the time of of accident has been not disputed at all by the accused. This court also carefully examined statements given by the prosecution rt under Section 313 Cr.PC, which reveals that accident has not been denied but only defence taken by accused is that " who deposed against him are interested witnesses." But as has been observed above, there is no material available on record to substantiate this plea of the accused that PWs No. 3 to 6 are interested witnesses. Moreover, it emerges from the record that ill fated bus was of the Springdale Public School, meaning thereby, accused as well as aforesaid alleged independent witnesses are/were the employees of the same school and there could be apprehension that PWs 3 to 6 depose in favour of the accused being employee of the same school to save the accused. Hence, any bald allegation to the effect that these are the interested ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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witnesses cannot be accepted by the Court unless some specific evidence is led on record suggesting/indicating that they are .
interested witnesses. Careful reading of statement of these witnesses leaves no doubt tin the mind of the court that vehicle was being driven by the accused at that relevant time that too in the high speed. Perusal of photographs as well as spot map itself of suggests that at the spot of accident, road was very wide and in normal speed, there is/was no possibility of the vehicle going down rt the road but as has come in the statement of PWs that accused tried to overtake the vehicle, he lost the control and met with an accident. Moreover, perusal of photographs available on record suggests that this was not proper site/place for accused to overtake the vehicle because on one side of the road there is gorge. Defence put by the counsel during arguments that tire of ill-fated bus had got stuck in the mud, as a result of which, bus fell in the gorge. This aforesaid aspect put forth by the defence deserves to be rejected outrightly. After seeing the photographs Ext. Ext.P1 to P36 from where it can be safely inferred that there is no retaining wall, which as per version of the defence had sunk at the relevant time. Moreover, none of the PWs has admitted that ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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aforesaid suggestion put forth by the defence during their cross-
examination before the trial Court below.
.
17. True, it is that there is no specific method available to ascertain the speed of the vehicle at the time of the accident because certainly after accident speedometer springs back to zero but in the absence of some specific method to ascertain the of actual speed, only safe and clear mode to know the speed of the offending vehicle, is the statement of eye witnesses, who actually rt saw the accident happening before their eyes. In the present case, PWs 3 to 6 were the occupants of the ill-fated bus and accident took place in front of their eye that too while overtaking another vehicle. Material available on record clearly establishes that accused lost control and fell down the road, as a result of which, occupants of the offending vehicle suffered injuries and three persons died. As has been noticed above, this ill fated bus belonged to school and at that relevant time school children along with teachers were being taken from Subathu to Panchkula.
In this situation, it was bounden duty of the accused to drive very carefully and cautiously but as has emerged from the overwhelming evidence available on record that accused ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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remained negligent and accident took place due to his negligence.
.
18. In the totality of the facts and circumstances of the case where there is ample evidence on record to suggest that offending vehicle was being driven rashly and negligently, this Court has no hesitation to conclude that prosecution has been of able to prove its case beyond reasonable doubt and the judgments passed by the courts below deserve to be upheld as rt the same are based upon the correct appreciation of evidence available on record.
19. Mr. Ajay Sood, Sr. Advocate, also submitted that even the sentence imposed by the courts below while convicting the accused is very harsh and excessive in the facts and circumstances. He also contended that at the time of accident even the son of the accused was also travelling in the offending vehicle and from the aforesaid fact, it can be inferred that accused did not have intention to cause harm to the occupants of the ill fated bus, rather, it can be presumed that accused while driving the offending vehicle in which his son was also travelling, was driving carefully as he could not take any risk of rash and ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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negligent driving as has been put forth by the prosecution. He also prayed that the accused may be given the benefit of probation .
under Section 4(b) of the Probation of Offenders Act, 1958 keeping in view his age and his being first offender. He also stated that mitigating circumstance in this case is that more than 14 years have passed after occurrence of the accident dated 31.3.2002, of whereby the accused was convicted and he is suffering continuous mental agony during the pendency of the appeal in rt the court of learned Additional Sessions Judge, Fast Track Court Solan, Himachal Pradesh, as well as in High Court of Himachal Pradesh. In support of the aforesaid arguments, Mr. Sood, also invited the attention of this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act.::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to .
keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is of further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this rt amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.
20. Learned counsel also invited attention of this Court to the judgment passed by the Hon'ble Apex Court in S.Mahaboob Basha versus State of Karnataka 2014 (10) SCC 244. Perusal of the judgment cited by Mr. Sood shows that Hon'ble Apex Court while maintaining the Judgment passed by the court below observed in para-9 as under :-
"9. Interference by the Supreme Court with concurrent findings of fact by the courts below is not warranted, except where there is some serious infirmity in the appreciation of evidence and the findings are perverse. We see no infirmity in the concurrent findings of the learned courts below convicting the appellant ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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under Section 498-A IPC. Insofar as conviction of the appellant under Sections 323 and 504 IPC is concerned, only fine was imposed on him. Insofar as .
the conviction under Section 506 IPC is concerned, the appellant was sentenced to undergo SI for six months by the trial court and the same was confirmed by the appellate court. The judgment of the High Court is silent about the conviction of the appellant under of Section 506 IPC as confirmed by the appellate court and the sentence imposed on him for the said offence."
21. rt However, in the aforesaid case, the Hon'ble Apex Court in the totality of the facts and circumstances reduced the conviction of appellant to the period already undergone by him and imposed fine to the tune of Rs. 2,00,000/-. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, invited attention of this Court to the judgment passed in the Hon'ble Apex Court in Dalbir Singh versus State of Haryana 2000 (5) SCC 82 wherein the Hon'ble Apex Court has held 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 PO Act. While considering the ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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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 of 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 rt 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.
14. Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean towards the benevolent provision in Section 4 of the PO Act. The appeal is accordingly dismissed."::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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22. This Court cannot loose sight of the stern observations made by the Hon'ble Apex Court in State of Punjab versus Saurabh .
Bakshi 2015 (5) SCC 182 while dealing with the accident case, the Hon'ble Apex Court has taken serious view of reduction of sentences by the courts below. Their lordships in the aforesaid judgment in paras No. 1, 14, 24 and 25 have held as under;
of "1. Long back, an eminent thinker and author, Sophocles, had to say:
"Law can never be enforced unless fear supports rt them."
Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous 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 ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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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 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 of 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 rt 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 Balwinder Singh (supra) 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 304A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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days. The court referred to the decision in Dalbir Singh v. State of Haryana and reproduced two paragraphs which we feel extremely necessary for .
reproduction:- (Balwinder Singh case, SCC pp. 186-87, para12) "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 of escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant rt 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.
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 ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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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 of 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; rt 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 case, 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 ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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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 of Magistrate which has been affirmed by the appellate court should be reduced to six months
25. Before parting with the case we are compelled rt 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 law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish."
23. After giving my thoughtful consideration to the law cited by Mr. Sood, learned senior counsel representing the accused in the present case as well as observations made by ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182, I am of the view that present case is not fit case for .
granting the benefit of Section 4 of probation of Offenders Act, 1958. The Hon'ble Apex Court in the judgment cited above has deprecated the practice of courts in settling the matter by awarding compensation or releasing the accused by giving the of benefit of Probation of Offenders Act, 1958. In the facts and circumstances of the present case, where there is overwhelming rt evidence to suggest that vehicle was driven by the accused in most rash and negligent manner, no leniency can be shown to the accused. Even in the judgment of the Hon'ble Apex Court titled as S.Mahaboob Basha versus State of Karnataka 2014 (10) SCC 244 relied upon by Mr. Sood, while reducing the sentence, Court had awarded fine to the tune of Rs. 2,00,000/- payable in two installments. But now in view of the latest law i.e. 2015 (5) SCC 182, as referred above, this court sees no reasons or has power in given facts and circumstances of the case to set-aside the conviction and sentence imposed by the trial Court below.
24. However, in the facts and circumstances of the case, it appears to the Court that sentence imposed by the court below is ::: Downloaded on - 15/04/2017 20:28:57 :::HCHP
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on little higher side and same deserves to be modified accordingly. Accordingly, sentence imposed by the courts below .
qua the offences committed under Sections 279, 337, 338 and 304- A of Indian Penal Code are modified to six months only and to pay fine of Rs. 5,000/- and in default, simple imprisonment for one month.
of
25. In view of the above, judgments passed by both the courts below are upheld. However, conviction/sentence imposed rt upon the accused is modified to the aforesaid extent only. Order dated 1.1.2008, passed by this Court, whereby sentence imposed by the court 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 by this Court vide this Judgment. Petition stands disposed of alongwith pending applications, if any.
, 2016 (Sandeep Sharma),
manjit Judge.
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