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2003 DIGILAW 134 (HP)

STATE OF HIMACHAL PRADESH v. PIAR CHAND

2003-06-02

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This appeal preferred by the State of Himachal Pradesh is directed against the judgment dated 1.1.1999 passed by the learned Sessions Judge, Una whereby the conviction and sentence awarded to the respondent/accused (hereafter referred to as the accused) by the learned Chief Judicial Magistrate, Una under Sections 279, 338 and 304-A IPC has been set aside and the accused has been acquitted of the accusations against him. 2. Case of the State in brief is that Baljit Singh (since deceased) was on 14.4.1993 at about 7.45 p.m. driving Scooter No. 4310 on Una Nangal Road one Kamla Devi was a pillion rider with the deceased. The accused was driving Jeep No. HP-19-1187 on the same road from the opposite side but on the wrong side of the road and was rash/negligent in driving the Jeep. As a result, the Jeep collided with the Scooter and the deceased and the pillion rider sustained injuries. They were removed to the Hospital at Una. The deceased after medical first aid was referred to PGI Chandigarh where he died on April 18, 1993. R.L. Atwal (PW-5) telephonically reported the occurrence to Police Station, Una vide DDR Ext. PW-5 /A on the basis of which formal FIR Ext. PW-12/A was recorded at Police Station, Una. After the death of Baljit Singh offence under Section 304-A was also added. 3. On investigation, the Investigating Agency found that the accused by his rash and negligent driving of the Jeep had caused the accident resulting in fatal injuries to Baljit Singh and grievous hurt to said Kamla Devi. The S.H.O. concerned accordingly submitted the charge-sheet against the accused. The learned trial Magistrate put a notice of accusation under Sections 279, 338 and 304-A IPC to the accused who pleaded not guilty to the accusations and claimed to be tried. 4. To prove the accusations against the accused, prosecution examined 12 witnesses. The accused was examined under Section 313 Cr.P.C, wherein he admitted driving of the Jeep at the relevant time, the collision between the Jeep and the Scooter and thereby sustaining of the injuries by the deceased. 4. To prove the accusations against the accused, prosecution examined 12 witnesses. The accused was examined under Section 313 Cr.P.C, wherein he admitted driving of the Jeep at the relevant time, the collision between the Jeep and the Scooter and thereby sustaining of the injuries by the deceased. However, he has denied any rash or negligent driving on his part and has claimed that the Scooter was being driven by the deceased in the centre of the road and without wearing helmet and got confused at the relevant time which led to the accident and sustaining of injuries by him because of his own fault. Thus, the accused claimed to be innocent. 5. On the basis of the evidence led by the prosecution, the learned trial Magistrate vide his judgment dated 15.11.1997 held the accused guilty and convicted him under Sections 279, 338 and 304-A IPC and sentenced him to undergo imprisonment for two months and fine of Rs. 1,000 and in default of payment of fine to undergo further imprisonment for one month under Section 279 IPC, imprisonment for four months and fine of Rs. 1,000 and in default of payment of fine to undergo imprisonment for two months under Section 338 IPC and imprisonment for six months and fine of Rs. 3,000 and in default of payment of fine to suffer further imprisonment for six months under Section 304-A IPC. 6. Being aggrieved, the accused preferred an appeal in the Court of the learned Sessions Judge, Una who by the impugned judgment came to the conclusion that the conviction of the accused was not sustainable, therefore, accepted the appeal, set aside the conviction and sentence and acquitted the accused. Hence, this appeal by the State. 7. I have heard the learned Additional Advocate General for the State and the learned Counsel for the accused and have also gone through the records. 8. Hence, this appeal by the State. 7. I have heard the learned Additional Advocate General for the State and the learned Counsel for the accused and have also gone through the records. 8. It was contended by the learned Additional Advocate General that the learned Sessions Judge has misread and mis-appreciated the evidence on record and has come to a wrong conclusion that the accused was not rash or negligent in driving the vehicle whereas in view of the evidence on record particularly the statements of PW-1 and PW-2 it was fully established that the accident and the consequential injuries to Baljit Singh and Kamla Devi and the death of the deceased occurred because of the rash and negligent driving of the Jeep by the accused. Therefore, the impugned judgment is liable to be reversed. 9. On the other hand, the learned Counsel for the accused while supporting the reasons given by the learned Sessions Judge for acquitting the accused has further contended that the prosecution case even otherwise is bound to fail for want of production of the most material witness in the case, namely, Kamla Devi, the delay in sending a copy of the FIR to the concerned Magistrate which is suggestive of manipulation and absence of the facts constituting the alleged rash and negligent driving by the accused in the inquest report. 10. The learned Sessions Judge allowed the appeal and acquitted the accused on the grounds that it could not be ascertained during investigation and is not averred in the charge sheet that the accused was driving the Jeep in a rash and/or negligent manner nor the eye witnesses (PW-1 and PW-2) and the Investigating Officer (PW-12) had spelt out as to how the accused was rash or negligent in driving the Jeep, therefore, rash or negligent driving of Jeep by the accused was not established and it was immaterial that grievous injuries or death had occurred in the accident. 11. In so far as the conclusion of the lower appellate Court that it could not be ascertained during the investigation and is not averred in the charge sheet that the accused was deriving the Jeep in a rash or negligent manner is concerned, it is evidently based on no evidence and is a clear case of utter misreading of the material on record. HC Subhash Chand (PW-12) has admittedly investigated the case. HC Subhash Chand (PW-12) has admittedly investigated the case. While deposing about the acts done by him in furtherance of the investigation, he has clearly and unambiguously stated that on the basis of the investigation he had come to the conclusion that the accident occurred because of the negligence of the accused who drove the Jeep on the wrong side whereas the Scooter was on its proper side. There is nothing in the statement of this witness including his cross-examination which may suggest that during the investigation it remained unascertained that the accident had occurred because of the negligent driving of the Jeep by the accused. Therefore, the conclusion of the lower appellate Court in this regard is unfounded and contrary to the facts established on record. 12. A perusal of the charge sheet submitted by the Officer Incharge of Police Station, Una clearly avers that in view of the material collected during the investigation, the commission of offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code by the accused is fully made out and it was for this reason that the charge sheet was submitted against the accused. Thus, the conclusion of the learned Sessions Judge that there is no allegation in the charge sheet against the accused that the accident occurred because of rash or negligent deriving of the Jeep by the accused, is also unfounded and contrary to what emerges from the material on record. 13. It may be pointed out that the occurrence of the accident unambiguously admitted by the accused. It is also admitted by him that the deceased had sustained injuries in the accident and he was removed to the hospital in the Jeep being driven by the accused. Thus, the only material question involved in the case is whether the accident occurred because of the rash and/or negligent driving of the Jeep by the accused. To prove that the accused was negligent in driving the Jeep, prosecution has examined Bikram Singh (PW-1) and Surjit Singh (PW-2) whose presence on the spot at the time of the occurrence of the accident is not specifically disputed by the accused in his statement under Section 313 of the Code of Criminal Procedure, though it has been suggested in their cross-examination that they had not seen the occurrence which suggestion both of them have denied. 14. 14. About the manner and circumstances under which the accident occurred, PW-1 has stated that at the relevant time the Jeep was overtaking one truck and in the process collided with the Scooter and that the accident occurred due to the rash and negligent driving by the Jeep driver, i.e. the accused. He has further stated that the Jeep took the Scooter about ten meters with it from the place of collision and that the accused was the driver of the said Jeep. He has further stated that the Jeep driven by the accused was on the wrong side whereas the Scooter was on its proper side. In his cross-examination he has re-affirmed that the Jeep in question was overtaking the truck and has denied the suggestion that it was the truck which was overtaking the Jeep. There is nothing in the cross-examination of this witness from which it may be inferred that he has any interest what-so-ever in involving the accused in the commission of the offence falsely. 15. Similarly, PW-2 has stated that at the relevant time the Jeep in question was overtaking a truck and the truck driver did not give side, therefore, the Jeep went parallel to the truck and struck against the Scooter coming from the opposite side. He has further stated that the Scooterist was driving his Scooter on his left side on the Kacha road whereas it was the Jeep which went towards the wrong side. He has denied the suggestion in the cross-examination that the accident in fact took place with the truck and not with the Jeep and that the truck driver fled away from the spot. There is nothing material even in the cross-examination of this witness from which it may be inferred that he is making false statement with a view to involve the accused for any extraneous reason what-so-ever. 16. Thus, PW-1 and PW-2 have clearly stated that the truck was ahead of the Jeep and the Jeep driver attempted to overtake the truck running parallel with the truck and struck against the Scooter which was being plied on its proper side. 17. The question now arises whether in the circumstances, as deposed by PW-1 and PW-2 and briefly set out hereinabove, can the accused be said to be rash and/or negligent in driving the Jeep? 18. 17. The question now arises whether in the circumstances, as deposed by PW-1 and PW-2 and briefly set out hereinabove, can the accused be said to be rash and/or negligent in driving the Jeep? 18. Criminal rashness is, doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or an individual. 19. In Raj Kumar v. State of H.P. 1997 (2) Sim. L.C. 161, learned single Judge of this Court, while dealing with the similar situation, has held as under:— "13. It goes without saying that the drivers of automatically propelled vehicles, when attempting to overtake vehicles going ahead of them, ought to wait for proper opportunity. A duty is cast on them to exercise sufficient care and caution by looking ahead and behind in order to ascertain that it would be safe for them to overtake the vehicle moving ahead of them. A further duty is cast on them to give a proper signal to the driver of the vehicle ahead in order to indicate that they would be overtaking the vehicles and wait for a reply signal from that driver permitting them to overtake and thereby indicating that the road ahead is clear and there would be no danger in overtaking. If these minimum precautions are not observed by drivers of automatically propelled vehicles, while overtaking the vehicles going ahead of them, it will have to be considered that such driving is rash and negligent." 20. In the case in hand, the accused, while overtaking the truck, was required to take the minimum precaution to have awaited for proper opportunity to overtake the truck and taking necessary caution to see whether any vehicle was not coming from the opposite side and to give a proper signal to the driver of the truck and wait for a reply signal from the driver of the truck. This has not been done by the accused and, therefore, he was negligent in driving the Jeep. 21. This has not been done by the accused and, therefore, he was negligent in driving the Jeep. 21. Regarding the contention of the learned Counsel for the accused that the prosecution case is bound to fail for want of production of Kamla Devi who was also injured in the accident and was thus most material witness in the case, it may be pointed out that a persual of the record reveals that non-production of said Kamla Devi by the prosecution is not intentional or deliberate. Summons were repeatedly issued to her to secure her presence but she was not available at the given address and it was found that she had left the place where she was residing at the relevant time after selling her Dhaba and had gone to some place in Punjab. It also appears from the records that despite efforts her latest address could not be traced out and thus she could not be produced. Therefore, an inference adverse to the case of the prosecution cannot be drawn from non-production of said Kamla Devi. 22. The accident occurred on 14.4.1993 at about 7.45 p.m. and the occurrence had been telephonically reported to the police at about 7.45 p.m., i.e. immediately after the occurrence, on the same day. Thus, there was no delay in lodging the FIR. The contention of the learned Counsel, however, is that a copy of the FIR was delivered to the concerned Judicial Magistrate on 16.4.1993 at 10.30. a.m. In view of the cogent, reliable and trustworthy evidence led by the prosecution to prove its case, this delay cannot be treated as fatal to the case of the prosecution and is, thus, of no help to the accused. 23. It is not in dispute that the accident occurred. It is also not in dispute that the deceased sustained injuries in the said accident and finally succumbed to such injuries. It has already been concluded hereinabove that the accused was negligent in driving the Jeep which resulted in the occurrence of the accident. Therefore, accusations under Sections 279 and 304-A of the Indian Penal Code are proved against the accused beyond any reasonable doubt and the accused is liable to be convicted for the commission of the said offences. 24. It has already been concluded hereinabove that the accused was negligent in driving the Jeep which resulted in the occurrence of the accident. Therefore, accusations under Sections 279 and 304-A of the Indian Penal Code are proved against the accused beyond any reasonable doubt and the accused is liable to be convicted for the commission of the said offences. 24. The accusations against the accused under Section 338 of the Indian Penal Code are based on the allegations that because of the rash and negligent driving, he caused grievous hurt to one Kamla Devi. As already stated, said Kamla Devi could not be produced by the prosecution as her whereabouts were not known at the time when the prosecution was leading evidence. PW-1 and PW-2, no doubt, have stated that one pillion rider had also sustained injuries in the accident but none has named as to who was such rider. Dr. Joginder Singh (PW-7) has stated that he had examined one Kamla Devi on 14.4.1993 and found that she had sustained two injuries one of which was grievous. However, for want of production of Kamla Devi, her identity as the injured examined by PW-7, is not established and it is not proved beyond doubt that the accused has committed an offence under Section 338 of the Indian Penal Code by causing grievous hurt to Kamla Devi. Therefore, the accusations that the accused has caused grievous hurt to Kamla Devi by rash and negligent act in the same accident, cannot be held as proved for want of cogent and consistent evidence about the identity of the alleged victim and for want of her production to support the case of the prosecution about the injuries sustained by her. The accused is, thus, liable to be convicted for the commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code only for negligent driving of the Jeep on a public road so as to endanger human life and by such driving causing fatal injuries to the deceased. 25. The accused is, thus, liable to be convicted for the commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code only for negligent driving of the Jeep on a public road so as to endanger human life and by such driving causing fatal injuries to the deceased. 25. It was lastly contended by the learned Counsel that in the event of maintaining the conviction of the accused as awarded by the learned trial Magistrate or in case his being found guilty of any of the offences alleged to have been committed by him, he may be released on probation keeping in view the fact that he has been facing litigation for the last about ten years which in itself is a sufficient punishment and he is a first offender and in any case a lenient view regarding awarding of punishment to him may be taken. 26. It may be pointed out that there is an alarming increase in the number of accidents caused by the vehicle drivers either under the influence of liquor or by rash or negligent acts, therefore, such offences cannot be lightly dealt with and it cannot be held that in such cases it is expedient in the interest of justice to release the offenders on probation of good conduct. Approach of the Court in such a situation must be that of deterrence than of misplaced sympathy or compassion. 27. In Dablir Singh v. State of Haryana and others, AIR 2000 SC 1677, while dealing with a similar question as in hand, the Honble Supreme Court held as under:— "13. Bearing in mind the galloping tend 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. 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 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." 28. In view of the above settled position in law and the facts and circumstances of the case, the accused is not entitled for the benefit of the provisions of the Probation of Offenders Act. 29. Regarding leniency in the matter of punishment it may be pointed out that delay in the disposal of the case may be a mitigating circumstance to award lesser punishment to the accused but is no ground for passing such sentence which may be highly disproportionate and inadequate, particularly in a case where the negligent act of a person has resulted in the loss of life. 30. In Rattan Singh v. State of Punjab, AIR 1980 SC 84, while dealing with the adequacy of punishment to be awarded under Section 304-A of the Indian Penal Code, the Honble Supreme Court held as under:— "3. This, however, does not excuse the accused from his rash driving of a blind Leviathan in berserk locomotion. If we may adapt the words of Lord Greene M.R. : It scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers. Rashness and negligence are relative concepts, not absolute abstractions. This, however, does not excuse the accused from his rash driving of a blind Leviathan in berserk locomotion. If we may adapt the words of Lord Greene M.R. : It scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers. Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitur, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift. Looked at from this angle, we are convinced that the present case deserves no consideration on the question of conviction. 4. Counsel for petitioner has contended that a sentence of 2 years R.I. is excessive, especially having regard to the fact that the petitioner has a large family to maintain and the proprietor of the truck has left his family in the cold. When a life has been lost and the circumstances of driving are harsh, no compassion can be shown. We do not interfere with the sentence, although the owner is often not morally innocent." 31. In State of Karnataka v. Krishna alias Raju, AIR 1987 SC 861, the Honble Supreme Court, while dealing with the subject in hand, held as under:— "7.... Considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal judicial system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a Motor Vehicle for an offence under Section 304-A, IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice." 32. In view of the above position in law, the accused is not entitled for the benefit of the provisions of the Probation of Offenders Act nor too lenient a view in awarding the sentence to the accused is justified. 33. In view of the above position in law, the accused is not entitled for the benefit of the provisions of the Probation of Offenders Act nor too lenient a view in awarding the sentence to the accused is justified. 33. As a result, this appeal is partly allowed and the impugned judgment to the extent it acquits the accused of the offences punishable under Sections 279 and 304-A of the Indian Penal Code, is set aside. The order passed by the learned Chief Judicial Magistrate convicting the accused under Sections 279 and 304-A of the Indian Penal Code is restored. The sentences awarded by the learned trial Magistrate to the accused for the commission of the aforesaid offences are modified to the extent that the accused is sentenced to imprisonment for one month and fine of Rs. 1,000 and in default of payment of fine to suffer further imprisonment for fifteen days under Section 279 of the Indian Penal Code and imprisonment for six months and fine of Rs. 3,000 and in default of payment of fine to suffer further imprisonment for one month under Section 304-A of the Indian Penal Code. The acquittal of the accused for the commission of an offence punishable under Section 338 of the Indian Penal Code by the impugned judgment, however, is not interfered with. The substantive sentence of imprisonment hereinabove awarded to the accused shall run concurrently. 34. The accused, who is presently on bail, will surrender to his bail bonds and appear before the trial Court within one month of the passing of this judgment failing which the trial Court will take the accused in custody in accordance with law and commit him to the prison to serve out the sentences awarded to him. Appeal partly allowed.