Bhagirath vs State Of Haryana on 23 October, 2008

[Cites 8, Cited by 0]

Punjab-Haryana High Court

Bhagirath vs State Of Haryana on 23 October, 2008

The petitioner is aggrieved against the judgment dated 9.7.2008 delivered by Shri Sudesh Kumar Sharma, Additional Sessions Judge, Rewari whereby he dismissed the appeal preferred against the judgment/order dated 11.10.2006 passed by Shri Baljeet Singh, Additional Chief Judicial Magistrate, Rewari Criminal Revision No.1226 of 2008.

-2-

convicting and sentencing the petitioner to undergo rigorous imprisonment for a period of six months under Section 279 and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months under Section 304-A IPC. Both the sentences have been ordered to run concurrently.

The facts of the prosecution case, as culled out from the record, are that on 18.1.1997, Inder Singh, ASI along with other police officials was present at State Project Turning Kund in the area of Police Post, Kund in connection with traffic checking where complainant Udmi Ram met him and made statement, Exhibit PW3/A, alleging therein that on 18.1.1997, his daughter Neelam had gone to school at Kund for taking medicine for Polio and she was returning to the house after taking medicine. He and his wife Ramesh Devi were accompanying her. At about 1.00 PM, they had crossed Kund Chowk. In the meantime, a bus of Rajasthan Roadways, being driven in a rash and negligent manner, came from the side of Narnaul and hit his daughter Neelam, who was going on her left side of the road and dragged her away about 50 yards and thereafter the driver of the bus sped away the bus and Criminal Revision No.1226 of 2008.

-3-

his daughter Neelam died at the spot. The bus was bearing number plate RJ-23-PO-488. On the statement of complainant, formal FIR was recorded.

Investigation in the case was completed and after completion of the same, challan was presented in the Court.

The accused/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 Constable Ishwar Singh, PW-2 Dr.Chander Shekhar, PW-3 Udmi Ram, complainant, PW-4 Subhash, PW-5 Mahabir Parshad, PW-6 Rajpal Yadav, PW-7 Rajender Singh HC, PW-8 Vijay Kumar Soni, Manager, PW-9 Jai Narain, SI (Retd.), PW-10 Ramesh Kumar, Photographer and PW-11 ASI Inder Singh.

The accused when examined under Section 313 Cr.P.C denied the prosecution allegations and pleaded false implication. However, no evidence in defence was led by him.

After trial, the petitioner was convicted and sentenced, as detailed above.

Feeling aggrieved, the petitioner filed an appeal which was dismissed, as noticed earlier.

Still feeling dis-satisfied, the petitioner has filed the Criminal Revision No.1226 of 2008.

-4-

present Criminal Revision.

The learned counsel for the petitioner has submitted that the prosecution has relied upon the testimony of two witnesses i.e. PW-3 Udmi Ram, complainant and PW-4 Subhash. It has been submitted that according to the testimony of PW-3 Udmi Ram complainant, he and the deceased were going on the other side of the road and the accident has taken place at that time. So, the accident had taken place due to the negligence of the deceased. In fact the complainant was not present at the spot and he being, father of the deceased, had appeared as a witness. The other witness produced by the prosecution is PW-4 Subhash. This witness, although in the examination-in-chief has supported the prosecution case but in his cross-examination has stated that he had seen the bus after the accident. So, in these circumstances, the petitioner cannot be held guilty under Sections 279 and 304-A IPC.

I have carefully considered the said submissions and have gone through the record of the case.

Similar contention was raised by the counsel for the petitioner before both the Courts below but the same did not find favour with both the Courts below. In accident cases, the entire attending circumstances at the spot are to be seen. From the perusal Criminal Revision No.1226 of 2008.

-5-

of rough site plan, it is revealed that as per prosecution story, the accident had taken place near the crossing and the deceased was dragged to a distance of 50 yards which speaks volumes regarding the negligence of the accused. Otherwise also, the Revisional Court cannot appreciate the evidence on the file in a different way than the Courts below, unless there is glaring mistake committed by both the Courts below. However, PW-3 Udmi Ram and PW-4 Subhash have with-stood the test of lengthy cross-examination. The accident had taken place on the left side of the road where the deceased and the complainant were stated to be present. The dead body was found on the berm of the road. It was the legal duty of the driver to slow down the speed of the vehicle at the crossing. The very fact that the deceased had been dragged to a distance of 50 yards proved the principle of res ipsa loquitur. So, in these circumstances, the above-said contentions are without any substance.

So far as authorities in Mahadeo Hari Lokre v. The State of Maharashtra, AIR 1972 Supreme Court 221 and Madhukar Gaurishankar Swami Versus State of Maharashtra, 2008(1) Recent Criminal Reports 409 are concerned, the same are distinguishable as in these cases, the pedestrian without taking note Criminal Revision No.1226 of 2008.

-6-

of the approaching bus, has tried to cross the road. In the present case, the bus was coming from Narnaul side and the accident had taken place on the left side and the dead body was found on the berm of the road which suggests that the deceased was not at fault.

Authority in case State of Karnataka Vs. Satish, (1998) 8 SCC 493 lays down law that high speed is not sufficient to prove rashness or negligence. There is no dispute with that proposition of law, but, in the facts of the present case, the prosecution has been able to prove rash and negligent act on the part of the petitioner.

Authority in case Kandhara Singh Versus State of Punjab, 2007(4) RCR (Criminal) 679 is also distinguishable on the same ground.

Lastly, the learned counsel for the petitioner has submitted that the petitioner has already undergone incarceration for a period of three months and eight days after his conviction was up-held by the Appellate Court. The petitioner is a Government employee and he has lost the job on account of occurrence. So, he is entitled to the concession of Probation of Offenders Act and in the alternative, the counsel for the petitioner prays for reduction of the sentence to the period already undergone by the petitioner. The Criminal Revision No.1226 of 2008.

-7-

petitioner is undergoing the agony of protracted trial for more than 11 years.

I have carefully considered the said submissions. So far as prayer for grant of probation is concerned, that cannot be acceded to. 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 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.

Criminal Revision No.1226 of 2008.

-8-

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 Punjab and Haryana 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 Criminal Revision No.1226 of 2008.

-9-

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 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."

The Hon'ble Apex Court again in authority in case Dalbir Singh Versus State of Haryana, 2000(2) RCR (Criminal) 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 Criminal Revision No.1226 of 2008.

-10-

driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident;or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle, he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles."

So, keeping in view the law, referred to above, no case for grant of benefit of probation is made out.

So far as prayer for reduction of sentence is concerned, Criminal Revision No.1226 of 2008.

-11-

the occurrences relates to January, 1997 and the appeal preferred by the revisionist was dismissed on 9.7.2008. Since then the petitioner is in custody.The sentence of petitioner under Section 304-A IPC is reduced from two years to one year rigorous imprisonment. The sentence of fine under Section 304-A IPC and sentence of imprisonment awarded under Section 279 IPC stand confirmed. Both the sentences shall run concurrently.

With the above modification in the sentence, this Criminal Revision stands dismissed.

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


October 23rd, 2008.                         ( K. C. Puri )
Jaggi                                           Judge

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court