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2004 DIGILAW 257 (PNJ)

Surender Kumar v. State of Haryana

2004-03-03

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. (Oral) - The petitioner was prosecuted under Sections 304-A and 279 of the Indian Penal Code and was sentenced to undergo RI for one year under Section 304-A Indian Penal Code and six months under section 279 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The facts of the case are that on 9.11.1991 at about 3.45 P.M. the petitioner was driving truck No. HR 31-2875 in the area of village Masana and in front of the truck, Brij Lal and his partner Inder Pal Singh deceased were carrying their that tent goods in tractor-trolley No. HRK-7935, which was being driven by Shri Sadha Singh from Shahbad to Masana. The trolley was loaded with tent and other materials. Inder Pal Singh and Brij Lal were sitting in the trolley over the tent. When the tractor-trolley reached near the Kalsi Factory, Shahbad, the truck driven by the petitioner came from behind from Shahbad which was driven in rash and negligent manner, hit the tractor-trolley and as a result of which Inder Pal Singh fell down from the trolley and died. It is further the case of the prosecution that the petitioner ran away from the spot along with the truck but subsequently he was arrested. 3. After the completion of the investigation, the challan was presented before the Ilaka Magistrate and was charge-sheeted under Sections 279 and 304-A of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. To prove its case against the petitioner, the prosecution examined Brij Lal (PW 1) who is the eye-witness of the occurrence, Bhagat Singh (PW2) who identified the dead body of Inder Pal, Sadha Singh (PW3) who is the driver of the tractor-trolley, Ashok Kumar (PW4) who is the owner of the truck, ASI Raj Kumar (PW5) who is the investigator of the case, Head Constable Chander Mohan (PW6) is the formal witness is whose presence the truck as well as the driving licence were taken into possession, Head Constable Maan Singh (PW7) who has mechanically tested the truck and the tractor-trolley, Inspector Bir Singh (PW8) who prepared report under Section 173 Criminal Procedure Code, Surinder Kumar (PW8) who deposed about the rash and negligent driving of the truck by the petitioner and Balak Ram (PW9) who took the photographs of the place of occurrence. 5. 5. When the petitioner was examined under Section 313 of the Code of Criminal Procedure to explain the incriminating circumstances appearing in the prosecution evidence, he denied simplicitor and alleged false implication. When the petitioner was called to lead evidence in defence, he has not examined any witness. 6. After appreciating the evidence on record, learned Judicial Magistrate 1st Class, Kurukshetra convicted and sentenced the petitioner as stated in paragraph 1 of the judgment. 7. Aggrieved by the order of the learned Judicial Magistrate 1st Class, the petitioner filed an appeal before the Additional Sessions Judge, Kurukshetra. The same was dismissed. 8. Aggrieved by the orders of the Courts below, the present revision has been preferred. 9. Mr. R.N. Lohan, learned counsel for the petitioner, has not challenged the conviction on merits but he submitted on the quantum of sentence. He contended that petitioner is not a previous convict and he is the only bread- winner of his family. He contended that the accident has not occurred due to the negligence of the petitioner but this accident has occurred due to the contributory negligence. He further submitted that learned trial Court has declined the benefit of probation by relying upon the judgment of the Supreme Court in Rattan Singh v. State of Punjab, AIR 1980 Supreme Court 84. He submitted that in this authority, their Lordships have not held that under Section 304-A Indian Penal Code there will be a bar for releasing the convict on probation. He contended that facts of that case were totally different than the present case. 10. Mr. K.S. Chauhan, learned Deputy Advocate General appearing for the State has opposed the prayer of probation on the ground that accidents are increasing day by day. He contended that if the petitioner is released on probation, it will encourage other persons to commit such like crimes. 11. In Rattan Singhs case (supra), no law has been laid down by the Apex Court that there is a total bar for releasing the convict under Section 304-A Indian Penal Code on probation. After conviction, the most crucial part which the Court is to perform is to award the sentence. While awarding the sentence, the Court is to take into consideration a number of factors i.e. age, circumstances, gravity and nature of offence, whether the convict is habitual to commit the offence, whether he can be reformed. 12. After conviction, the most crucial part which the Court is to perform is to award the sentence. While awarding the sentence, the Court is to take into consideration a number of factors i.e. age, circumstances, gravity and nature of offence, whether the convict is habitual to commit the offence, whether he can be reformed. 12. In Bishnu Deo Shaw v. State of West Bengal, 1979 CAR 385 (SC), the Apex Court has given the following factors, which are to be kept in mind while awarding the sentence :- "Criminal justice is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstances. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the books that one reads, newspapers, radio and TV, the economics of the house-hold, the opportunities provides by circumstances and the calamities resulting therefrom, the success and failure of ones undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra ordinary incidents of life contribute to a persons personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstances the situations and the reactions and choose the appropriate sentence to be imposed. A Judge must try to answer myriad questions such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife ? Was it due to sexual jealousy ? Was the murder committed under some stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status ? What is the level of his education or intelligence ? Was it due to sexual jealousy ? Was the murder committed under some stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform ? Well, may one exclaim with Prof. Vrij "What audacity is involved in these three tasks : to interpret life, explain an act, predict the latest inclination of a human mind." 13. Under section 360 Criminal Procedure Code a convict is to be released on probation of good conduct after admonition. Section 360 Criminal Procedure Code reads as under :- "360. Order to release on probation of goods conduct or after admonition :- (1) When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at one to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour." 14. Under Section 361 Criminal Procedure Code special reasons are to be recorded in certain cases. Section 361 Criminal Procedure Code reads as under : "361 Special reasons to be recorded in certain cases. Under Section 361 Criminal Procedure Code special reasons are to be recorded in certain cases. Section 361 Criminal Procedure Code reads as under : "361 Special reasons to be recorded in certain cases. - Where in any case the Court could have dealt with - (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so." 15. The provisions of Section 361 Criminal Procedure Code are mandatory in nature and enjoin upon the court to give special reason if convict is not dealt with under section 360 Criminal Procedure Code 16. In the instant case, the learned Magistrate has given a specific finding that the petitioner was not only responsible for the accident as the accident has taken place due to the contributory negligence of the driver of the tractor-trolley and has observed as under : "Rather, the negligence of the accused was the direct and proximate cause of the death of Inder Pal Singh. Although, it was not proper on part of Inder Pal Singh and PW Brij Lal to travel on the heap of material lying in the back of trolley yet, it cannot be denied that this is a general habit of the people. A person driving a motor vehicle has to pay due regard to the habits of the public. Even if, it is admitted that it was unusual on part of the deceased and PW Brij Lal to travel in such a manner, the accused is not absolved of negligence." 17. A person driving a motor vehicle has to pay due regard to the habits of the public. Even if, it is admitted that it was unusual on part of the deceased and PW Brij Lal to travel in such a manner, the accused is not absolved of negligence." 17. In A.P. Raju v. State of Orissa case (supra), the Apex Court while dealing with a case of death by rash and negligent driving under Section 304-A of the Indian Penal Code has held as under :- "Taking in view all these factors, in our opinion, the interest of justice would be met if instead of now sentencing the appellant to serve a term of imprisonment and sending him to prison again, we order his release under Section 360 Criminal Procedure Code on the appellants entering into a bond with one surety to keep good conduct and be of good behaviour and keep peace for a period of one year from the date of execution of the bond. We make an order accordingly. The bond shall be executed by the appellant within one month from today before the trial Court. With the above modification of sentence, the appeal is disposed of." 18. In the instant case, the petitioner is facing the rigour of trial since 1991. He is the only bread-winner in the family as asserted by learned counsel for the petitioner. There is nothing on the record to show that before or after registration of the case, the petitioner has indulged in any other criminal activity. After the dismissal of the appeal, the petitioner has already undergone some part of his sentence. Furthermore, the modern trend of penology is reformatory. 19. Taking into consideration the finding recorded by the learned Judicial Magistrate 1st Class that the accident has occurred due to contributory negligence of the driver of the tractor-trolley and the other circumstances of the case, the impugned judgment of conviction is maintained and the instead of sending him to prison again, he is ordered to be released on probation under Section 360 of the Code of Criminal Procedure on his entering into a bond with one surety in the like amount to keep good conduct and be of good behaviour and keep peace for a period of one year from the date of execution of the bond. The bond shall be executed by the petitioner within one months from today before the trial Court. With the above modification of sentence, the revision stands dismissed. Petition dismissed.