Mangal Singh vs State Of Haryana on 17 November, 2008

[Cites 12, Cited by 0]

Punjab-Haryana High Court

Mangal Singh vs State Of Haryana on 17 November, 2008

Shri J.S. Dahiya, the then Chief Judicial Magistrate, Rewari vide detailed judgment dated 10.5.1999 convicted the petitioner under Sections 279 and 304-A IPC and vide separate order of even date, sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Criminal Revision No.942 of 2001.

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Rs.500/- under Section 279 IPC. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for one month. The petitioner was further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo rigorous imprisonment for four months, under Section 304-A IPC. Both the substantive sentences were ordered to run concurrently.

Feeling dis-satisfied with the said judgment/order, the petitioner filed an appeal which was dismissed by Shri Kuldip Jain, the then Additional Sessions Judge, Rewari, vide impugned judgment dated 23.5.2001.

The brief facts, culminating into the present case, are that on 2.3.1992, the petitioner was driving truck bearing registration No.HYJ-2953 in a rash and negligent manner from Narnaul to Rewari and on the way, near Kund, he had collided his truck against a moving scooter bearing No.HR-36-4291 going from village Kund to village Khol. The accident resulted in the death of Jagmal, a pillion rider of the scooter. Vijay Kumar alias Vicky was then driving the scooter. It was alleged that the petitioner did not care for the signal given by Vicky while crossing Narnaul-Rewari road. The petitioner was able to stop the truck after 25/30 paces Criminal Revision No.942 of 2001.

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ahead of the place of accident. The accident was witnessed by many persons including Lal Chand, nephew of deceased.

After the completion of investigation, the petitioner was challaned.

The petitioner was charge-sheeted accordingly to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW-1 Dr. V.K.Jain, PW-2 Dr. H.R.Yadav, PW-3 Shayam Kishor, motor mechanic, PW-4 Lal Chand complainant/eye witness, PW-5 Head Constable Jagdish Parshad and PW-6 Head Constable Ramesh Chand.

After the closure of prosecution evidence, the statement of accused/petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution version and stated that a false case had been made out against him by the police at the instance of Lal Chand, complainant.

The petitioner, however, did not lead any evidence in defence.

After the conclusion of trial, the petitioner was convicted and sentenced and his appeal was also dismissed, as noticed earlier.

Criminal Revision No.942 of 2001.

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Feeling dis-satisfied, the petitioner has filed the instant Criminal Revision.

Learned counsel for the petitioner has submitted that Lal Chand is the nephew of the deceased and he being interested had only appeared as a prosecution witness. No test identification parade was conducted. The name of the driver was alleged to be told to the complainant by some one and that that person has not been examined. The identification of the accused, for the first time, in the Court, cannot be made basis of conviction. The other persons were present at the spot at the time of accident but those persons have not been examined and due to want of independent corroboration, the petitioner is entitled to acquittal.

I have considered the said submission but do not find any force in the same.

In an accident case, whether it was the accused who caused the accident can be gathered from the other attending circumstances. In the present case, the name of the accused/petitioner figures in the FIR itself. The number of the vehicle also finds mention in the FIR. According to the prosecution case, the occurrence has taken place at 4.15 PM on 2.3.1992 and the DDR was recorded at 4.45 PM i.e. within half an hour of the Criminal Revision No.942 of 2001.

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occurrence. The prompt lodging of the FIR rules out false implication of the petitioner. There was no reason for the prosecution to falsely implicate the accused and to allow the real culprits to go scot free. The truck remained at the spot after the accident and the accused ran away from the place of occurrence.

The counsel for the petitioner has relied upon authority in case Bir Chand Versus State of Haryana, 2003(3) Recent Criminal Reports (Criminal) 451. It was held in the said ruling that where the name of the accused finds place in the FIR and there are eye witnesses of occurrence, in that case, it was not necessary to hold test identification parade of the accused. In the present case also, there are concurrent findings of both the Courts below that the accused was driving the truck in question rashly and negligently and as such test identification parade was not necessary.

In authority in case Satpal Versus State of Haryana, 2000(2) RCR (Criminal) 720, Sita Ram eye witness stated that he could not recognise the driver. So, in these circumstances, test identification para was necessary.

Authority in case State of Punjab Versus Balraj Singh, 2000(1) RCR (Criminal) 822 is distinguishable as in that Criminal Revision No.942 of 2001.

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case, the presence of eye witnesses was found to be doubtful.

Authority Rameshwar Singh v. State of Jammu and Kashmir, AIR 1972 Supreme Court 102 relates to non-bailable offences under Sections 302 and 307 IPC. Offences under Sections 304-A/279 IPC are bailable and in view of authority in case Bir Chand (supra), the test identification parade is not necessary.

The learned counsel for the petitioner has further submitted that as per prosecution version, the deceased was going on a scooter and was joining the main road. It was the duty of the driver of the scooter to be careful and in view of authorities in cases State of Punjab Versus Sukhdev Singh, 2004(1) Recent Criminal Reports (Criminal), Gurcharan Singh Versus The State of Punjab, 1987(1) Recent Criminal Reports 180 and Bhagirath Singh Versus State of Rajasthan, 2000(1) Recent Criminal Reports (Criminal), 326, the petitioner is entitled to acquittal.

The above-said submission does not cut any ice before me. According to the prosecution case, the driver of the scooter gave a signal while crossing the road. The accused caused the accident in such a way that he dragged the scooter for a considerable distance. In these circumstances, it was the duty of the accused to drive the vehicle in such a manner that it remained Criminal Revision No.942 of 2001.

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within his control. The evidence on the file leads to the only conclusion i.e. regarding the guilt of the accused. Authorities in cases Sukhdev Singh, Gurcharan Singh and Bhagirath Singh (supra) are distinguishable as in those cases, it was the deceased who was at fault, whereas, in the present case, there are concurrent findings of both the Courts below that the accident had taken place due to rash and negligent driving of the accused.

So far as the submission that no independent witness has been joined is concerned, it is well known that no third person wants to become a witness as no body wants to have enmity with the accused. So, non examination of independent witnesses is not fatal to the prosecution.

The learned counsel for the petitioner has submitted that no reason has been given by both the Courts below to deny the benefit of probation and the petitioner is facing protracted trial since the year 1992 and in view of authorities in cases Malkiat Singh Versus State of Punjab, 2008(3) Recent Criminal Reports (Criminal) 474, Hardev Singh Versus State of Punjab, 2007(4) Recent Criminal Reports (Criminal) 232, Amarjit Singh Versus State of Punjab, 2003(3) Recent Criminal Reports 450 and Tripat Singh Versus The State of Punjab, 1990(3) Recent Criminal Criminal Revision No.942 of 2001.

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Reports 558 , the petitioner is entitled to the concession of probation and in the alternative, a prayer has been made for the reduction of sentence to the period already undergone.

I have carefully considered the said submissions and have gone through the authorities mentioned above.

There is no bar for grant of probation for offence under Section 304-A IPC but whether the benefit of probation should be granted to a convict under Section 304-A IPC. The answer to that question is that in case a special case is not made out, in that case, the benefit of probation should not be granted for an offence under Section 304-A IPC.

The Hon'ble Apex Court in authority in case Rattan Singh v. State of Punjab, AIR 1980 Supreme Court 84 has held as under:-

"Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course Criminal Revision No.942 of 2001.

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for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. May be, the State may consider, in cases of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.

6. The victimisation of the family of the convict may well be a reality and is regrettable. It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependants of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature. We can only draw attention in this matter. Hopefully, the welfare State will bestow better thought and action to traffic justice in the light of the observations we have made. We dismiss the special leave petition."

The Hon'ble Apex Court again in authority in case Dalbir Singh Versus State of Haryana, 2000(2) RCR (Criminal) Criminal Revision No.942 of 2001.

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816 has held as under:-

"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 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 Criminal Revision No.942 of 2001.

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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."

Our own High Court in the authority reported in 1999 (3) R.C.R (Criminal) 261 has held as under:-

"The human life is not so cheap that it can be bartered away by the subordinate courts on unsustainable reasons. Day in and day out we find that the lives of innocent persons who have equal right to utilise the roads are taken away at the hands of the persons who are not trained in the art of good driving. Such traffic violations are at an alarming speed. Before granting the probation by the lower courts, a good amount of premises has to be built before resorting these provisions. Of course, awarding of punishment is in the Criminal Revision No.942 of 2001.

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discretion of the court, but this discretion has to be exercised according to judicial principles. Even in the impugned order, a compensation of Rs.5,000/- which has been awarded to the next of kin of the deceased cannot be said to have given solace to the family of the deceased."

Again this Court in authority in case Mohan Singh Versus State of U.T,Chandigarh, 1999(2) All India Criminal Law Reporter 411 has held as under:-

"Faced with this position, learned counsel for Mohan Singh and Chhotu submitted that accident took place in the year 1990. They were challaned in the year 1990. They remained in trial before the learned Magistrate for 5 years where they were convicted and sentenced. They went in appeal to the Court of Session in the year 1995 which unfortunately was dismissed in 1999. They thus remained in appeal before the learned Additional Sessions Judge, for about 4 years. They have thus been suffering the vagaries of this criminal trial for the last 9 years. During this period of 9 years, criminal trial has been hanging on their head like a damoclean sword. It Criminal Revision No.942 of 2001.

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was submitted that they should be released on probation of good conduct. Suffice it to say, they cannot be released on probation of good conduct as they were going on busy high way. While going on a busy high- way drivers of heavy vehicles should be extra-careful, cautious and circumspect. Rash and negligent driving of the trucks by them resulted in loss of one human life and injuries to others. Release on probation of good conduct is sometimes taken as let off and not in the spirit in which the Probation of Offenders Act, 1958 was enacted and Sections 360/361 of the Code of Criminal Procedure were incorporated."

In authority in case State of Karnataka v. Krishna alias Raju, AIR 1987 Supreme Court 861, the Hon'ble Apex Court deprecated the conduct of the trial Court in sending the accused with a small amount of fine only.

So, in view of the authoritative pronouncements of the Apex Court and this Court, the authorities relied upon by the counsel for the petitioner cannot be accepted, in the present set of circumstances. No special circumstance is made out for grant of probation.

Criminal Revision No.942 of 2001.

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The submission made by the counsel for the petitioner that both the Courts below have not given reasons for declining the relief of probation is wrong, on the face of it. The first Appellate Authority has categorically stated that now-a-days travelling on the highways has increasingly become more risky and in this regard the chief contributory factor is the rash and negligent driving of heavy vehicles.The drivers of such vehicles seldom care for the safety of co-travellers on the road. These observations are based upon Supreme Court's authorities, referred to above. So, no ground for grant of benefit of probation to the petitioner is made out .

So far as the quantum of sentence is concerned, the trial Court has awarded punishment of two years under Section 304-A IPC. The offence relates to the year 1992. So, keeping in view the period of 16 years, the sentence of the petitioner is reduced to one year. The sentence of fine awarded under Sections 279 and 304-A IPC awarded buy the trial Court stand confirmed.

This Criminal Revision is disposed of, in the manner indicated above.

A copy of this judgment be sent to the learned trial Court for strict compliance.


November 17th ,2008.                         ( K. C. Puri )
Jaggi                                             Judge
 Criminal Revision No.942 of 2001.
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 Criminal Revision No.942 of 2001.
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Punjab-Haryana High Court