Himachal Pradesh High Court
Yash Pal Sharma vs State Of Himachal Pradesh on 21 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.235 of 2010
Date of Decision : 21.10.2016
.
Yash Pal Sharma ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
rt
For the Petitioner : Mr. Ashok Sharma, Advocate.
For the Respondent : Mr. Rupinder Singh Thakur, Additional
Advocate General, with Mr.Rajat Chauhan,
Law Officer.
Sandeep Sharma, Judge (Oral)
Instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 8.9.2010, passed by learned Additional Sessions Judge, Shimla, H.P. in Criminal Appeal No. 29- S/10 of 2008, affirming the judgment/order dated 30.5.2008/4.6.2008, passed by learned Judicial Magistrate Ist Class, Theog, District Shimla, H.P. in Criminal Case No.241-1 of 2004, whereby the present petitioner (in short "accused') was convicted under Sections 279, 337 and 338 of IPC and sentenced as under:-
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 2
279 IPC S.I. for three months and to pay fine of Rs.
500/-.
337 IPC S.I. for three months and to pay fine of Rs.
500/-.
338 IPC S.I. for six months and to pay fine of Rs.
.
500/.-In case default to under simple imprisonment for one month.
2. Undisputed facts of the case are that on 28.7.2004, complainant Subhash Chand (PW-1), resident of village Thamtadi, of Tehsil Rohru, District Shimla, H.P was travelling in Tata Summo bearing registration No.HP-01-3287 coming to Shimla from Rohru.
The said vehicle was being driven by the petitioner-accused.
rt Complainant Subhash Chand (PW-1) alongwith 10 other passengers were also sitting in the vehicle at the relevant time.
Unfortunately, at about 1:20 PM, when this vehicle reached near Bhekhalti, a Maruti car came from the opposite side in high speed, since, present petitioner-accused was also driving the vehicle (Tata Summo) in question in a very high speed, he lost control over the vehicle and hit the same with the water tank lying by the side of the road, as a result of which, passengers travelling in the vehicle namely Mohan Lal, Yashpal, Jiwan Singh, Gian Singh and Bhagwan Singh sustained injuries. On the basis of the statement Ex.PW1/A made by the complainant, FIR Ex.PW12/A was registered against the present petitioner. After completion of the investigation, police being satisfied that a prima-facie case under Sections 279, 337 and 338 of I.P.C, exists against the accused, presented the challan in the competent Court of law.
::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 33. Learned trial Court after satisfying itself that a prima-
facie case exists against the accused, framed charges under Sections 279, 337 & 338 of IPC against the accused, to which he .
pleaded not guilty and claimed trial.
4. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as 14 witnesses. The statement of accused under Section 313 Cr.P.C of was also recorded, wherein he denied the case of the prosecution in its entirety. However, he did not lead any evidence in his defence. rt
5. Thereafter, learned trial Court on the basis of the evidence made available on record by the prosecution found accused guilty of having committed the offence punishable under Sections 279, 337 and 338 of IPC and accordingly convicted and sentenced the accused, as per the description given hereinabove.
6. Feeling aggrieved and dissatisfied with the impugned judgment/order dated 30.5.2008/4.6.2008, passed by learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure before the learned Additional Sessions Judge, Shimla, which came to be registered as Criminal Appeal No. 29-S/10 of 2008, however fact remains that learned Additional Sessions Judge, dismissed the appeal and upheld the judgment of conviction recorded by the learned trial Court. In the aforesaid background, present petitioner approached this Court by way of instant criminal revision petition, praying therein for quashing and setting-aside the impugned judgment of ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 4 conviction and order of sentence, passed by learned trial Court further upheld by learned Additional Sessions Judge, Shimla H.P.
7. Mr. Ashok Sharma, learned counsel representing the .
petitioner, vehemently argued that the judgments passed by both the Courts below are not sustainable in the eyes of law as the same are not based upon correct appreciation of the evidence available on record. Mr. Sharma, further contended that bare of perusal of the judgments passed by the Courts below itself suggest that the entire evidence led on record by the prosecution has not been read in its right perspective by the Courts while rt recording the conviction against the present petitioner-accused, as a result of which, grave injustice has been caused to the present petitioner-accused. Mr. Sharma, during the arguments also invited the attention of the Court to the statements made by prosecution witnesses to demonstrate that there are material contradictions in the statements given by the prosecution witnesses and as such, no conviction could be recorded on the basis of the contradictory statements. Mr. Sharma, forcibly contended that there was no evidence on record to connect the present petitioner-accused with the alleged commission of offence and as such, judgment passed by both the Courts below deserve to be quashed and set-aside. While concluding his arguments, Mr. Sharma, strenuously argued that there is no evidence on record suggestive of the fact that the vehicle in question was being driven rashly and negligently by the petitioner-accused, since none of the prosecution witnesses stated anything with regard to ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 5 speed, if any, of the vehicle involved in the accident and as such, Courts below erred in coming to the conclusion that at the relevant time, vehicle in question was being driven rashly and .
negligently by the petitioner-accused. In the aforesaid background, Mr. Sharma, prayed for acquittal of the present petitioner-accused after setting-aside the conviction and sentence recorded by the learned trial Court.
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8. Mr. Rupinder Singh Thakur, learned Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, supported the judgments passed by both the Courts below rt and stated that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case.
With a view to substantiate his aforesaid arguments, Mr. Thakur, invited the attention of this Court to the judgments passed by both the Courts below and stated that Courts below while recording the conviction against the accused have dealt with each and every aspect of the matter very meticulously and as such, present petition deserve to be dismissed. While refuting the contention put forth on behalf of the present petitioner-accused, Mr. Thakur, also invited the attention of the Court to the statements given by prosecution witnesses to demonstrate that there is overwhelming evidence led on record by the prosecution suggestive of the fact that at the relevant time, vehicle in question was being driven by the present petitioner-accused rashly and negligently that too in high speed and as such, there is no illegality and infirmity in the judgments passed by both the Courts below. He also invited the ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 6 attention of this Court to the judgment passed by the Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182; wherein Hon'ble Apex Court has held that Courts below while .
dealing with the accident cases should exercise great constraint while taking lenient view against reckless drivers, who drives rashly and negligently. Mr. Thakur, also submitted that while exercising revisional jurisdiction, Court has very limited powers to of re-appreciate the evidence available on record. Learned Additional Advocate General, has placed reliance upon the judgment passed by Hon'ble Apex Court in case State of Kerala versus Puttumana rt Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
" In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
9. In the aforesaid background, he prayed that the present petition deserves to be dismissed being devoid of any merit.
::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 710. I have heard learned counsel representing the parties and have carefully gone through the record made available.
11. True, it is that while exercising the power under .
Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record.
But in the present case, where accused has been convicted and sentenced under Sections 279, 337,338 of the Indian Penal Code, of this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and the same are based upon correct appreciation of evidence available on rt record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.
12. 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 Case241; 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, it is 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 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 ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 8 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 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 of process or illegality of sentence or order."
13. During the proceedings of the case, this Court had an rt occasion to peruse the entire record adduced by the respective parties, perusal whereof clearly suggests that the prosecution was able to prove on record that the vehicle in question was being driven rashly and negligently at the relevant time, by the present petitioner-accused and he caused the accident, as a result of which, passengers of the tata summo suffered injuries and as such, this Court sees no illegality and infirmity in the judgments passed by both the Courts below. However, solely with a view to ascertain the correctness and genuineness of the submissions having been made by learned counsel for the petitioner, this Court critically analyzed the evidence led on record by the prosecution.
14. Before proceeding to examine the statements given by the prosecution witnesses, it may be noticed that the present petitioner-accused has not disputed the factum of the accident, rather petitioner-accused in his statement recorded under Section 313 Cr.P.C, took the defence that the accident occurred due to the ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 9 negligence of the driver of the Maruti Car, which came from opposite side and as such, this Court need not to examine the aforesaid aspect of the occurrence of the accident.
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15. PW-1, Sh. Subhash Chand (Complainant), categorically deposed before the Court that on 28.7.2004, he alongwith other passengers were travelling in the vehicle bearing registration No.HP-01A-3287 from Rohru to Shimla and at that of time more than 10 passengers were in the vehicle. He specifically stated that at about 1.20 PM, when this vehicle reached near Bekhalti, present petitioner-accused lost control over the vehicle rt as he was driving the vehicle at a very high speed, as a result of which, he alongwith other passengers travelling in the vehicle sustained injuries. He further stated that he repeatedly asked the present petitioner-accused to drive the vehicle at a slow speed, but no heed was paid to his request by the present petitioner-
accused. He further stated that he as well as Gian Chand, Yash Pal and others passengers of the vehicle sustained injuries in the aforesaid accident and after the accident they were taken to IGMC, Shimla for treatment where his statement Ex.PW1/A was recorded by the police. He also identified the driver in the Court.
In the cross-examination, PW-1 again reiterated what he stated in his examination-in-chief and defence was not able to extract anything contrary to what he stated in examination-in-chief, rather in cross-examination, he stated that the speed of the vehicle in question at the time of accident was above 60 kilometers per hour.
::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 1016. Similarly, PW-2, Gian Singh, PW-3 Sh. Bhagwan Singh and PW-4, Mohan Lal, corroborated the version put forth by the complainant (PW-1). Aforesaid prosecution witnesses also stated .
that the accident occurred due to rash and negligent driving of the vehicle by the present petitioner-accused at a very high speed.
This Court, also perused the cross-examination conducted of these prosecution witnesses, perusal whereof clearly suggest that of defence was not able shatter their testimonies. Similarly, this Court also perused the statement of PW-10, who was unable to state that how the accident took place and who was driving the rt vehicle in question at the relevant time, but fact remains that he also admitted that on 28.7.2004 he was travelling in the vehicle in question alongwith other passengers. He also admitted that photograph Ex.P3 is of the spot of the accident. This Court, after perusing the aforesaid evidence led on record by the prosecution, has no reason to differ with the finding returned by both the Courts below that at the relevant time, vehicle in question was being driven rashly and negligently by the present petitioner-
accused, as a result of which, complainant alongwith other passengers sustained injuries. Prosecution with a view to prove the injuries also led on record medical evidence in the shape of MLC Ex.PW6/A to Ex.PW6/F, which clearly suggest that the complainant alongwith other passengers sustained injuries in the accident.
17. Similarly, statement of PW-14, Gian Chand, Mechanic, is also relevant, who had examined the vehicle in ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 11 question after the accident and submitted his report Ex.PW14/A, wherein PW-14 clearly stated that there was no fault found in the vehicle in question. Though, in his cross-examination, he admitted .
that gear lever can slip at any moment but he nowhere admitted the suggestion put to him that there was mechanical defect in gear lever, as a result of which, vehicle slipped and accident occurred.
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18. Conjoint reading of the entire evidence led on record, be it ocular or documentary, by the prosecution, clearly suggest that at the relevant time, vehicle in question was being driven rt rashly and negligently by the present petitioner-accused at a high speed. It has specifically come in the evidence of the prosecution witnesses that before the accident they repeatedly requested the driver of the vehicle to slow the speed, but unfortunately no heed was paid to their request, as a result of which, driver lost control over the vehicle. Though, present petitioner-accused stated that the accident occurred due to rash and negligent driving of the driver of Maruti car but unfortunately there is no evidence led on record in this regard by the present petitioner-accused. During the proceedings of the case, this Court was unable to lay its hand to any evidence from which it could be inferred that actually accident occurred due to rash driving of the driver of Maruti Car. After careful perusal of the evidence led on record, this Court is unable to accept the contention put forth on behalf of the learned counsel for the petitioner that there are material contradictions in the statements of the prosecution witnesses. Hence, this Court ::: Downloaded on - 15/04/2017 21:25:15 :::HCHP 12 sees no reasons to differ with the findings returned by both the Courts below, whereby accused has been held guilty of having committed the offence punishable under Sections 279,337 and .
338 IPC.
19. Now adverting to another prayer made on behalf of the petitioner that the petitioner-accused may be given the benefit of Probation under Section 4 of the Probation and of Offenders Act and Section 360 Cr.P.C. keeping in view his being first offender and livelihood of the family of accused is dependent on the petitioner-accused.
rt He also stated that mitigating circumstance in this case is that more than 7 years have passed after passing of the judgment dated 30.5.2008 whereby the accused was convicted and he has already suffered mental agony during the pendency of the appeal in the court of learned Addl.
Sessions Judge, Shimla as well as in High Court of Himachal Pradesh. In support of the aforesaid arguments, Mr. Sharma, 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. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the ::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 13 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 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 amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons."
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20. In this regard, reliance is placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla versus State of Punjab rt 2016 AIR (SC) 2858, wherein it has been held as under:
"7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life.
8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour."::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 14
21. 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 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 rt 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 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."
22. This Court also 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 ::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 15 aforesaid judgment in paras No. 1, 14, 23, 24 and 25 have held as under;
"1. Long back, an eminent thinker and author, Sophocles, had to say:
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"Law 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 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 of 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 rt 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 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 marginalized. 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 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 escalation of road ::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 16 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.
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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 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 rt 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 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)"
23. In the instant case the factum of rash and negligent driving has been established. This Court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage. The protagonists, as we perceive, have lost all respect for law. A man with means has, in possibility, graduated himself to harbor the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, is worse than death. Such developing of notions is a dangerous phenomenon in a orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to ::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 17 the poor or the impecunious is a worth living for as it is to the rich and the luxuriously temperamental.
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 of 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 rt
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 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. Sharma, Advocate representing the accused viz-a-viz facts of the present case, I am of the view that same cannot be made applicable in the present case for granting the benefit of Section 4 of probation of Offenders Act, 1958. The Hon'ble Apex Court in Saurabh Bakshi case (supra) has deprecated the practice of Courts in settling the matter by awarding compensation or releasing the accused by giving the benefit of Probation of Offenders Act, 1958, especially in offences punishable under Sections 279,337 and 338 of IPC. In the facts and circumstances ::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 18 of the present case, where there is overwhelming evidence to suggest that vehicle was being driven by the accused in most rash and negligent manner, no leniency can be shown to the .
accused.
24. Consequently, in view of the aforesaid discussion, this Court sees no reason whatsoever, to interfere with the well reasoned judgments passed by both the Courts below, which of appear to be based upon correct appreciation of the evidence adduced on record by the prosecution. This Court is fully convinced after perusing the evidence led on record that the rt prosecution has been able to prove its case beyond reasonable doubt. However, keeping in view the fact that this accident had occurred in the year2004 i.e. 12 years back and during this period present petitioner-accused must have suffered lot of mental agony and he has a family to support, this Court deems it to be a fit case to modify the sentence awarded by the Court below. Otherwise also, it appears that the punishment awarded by the Court below is on the higher side and, as such, same is reduced to 15 days only qua all the offences. Hence the judgment passed by the court below is modified to that extent only and revision petition is dismissed accordingly. Order dated 22.11.2010, 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 learned trial court subject to the modification made hereinabove.
::: Downloaded on - 15/04/2017 21:25:16 :::HCHP 19Accordingly, the present petition is disposed of alongwith pending application(s), if any.
(Sandeep Sharma) .
st
October 21 , 2016 Judge.
(shankar)
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