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2005 DIGILAW 1253 (RAJ)

Sufed Khan v. State

2005-04-28

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This criminal revision petition has been filed under Section 397 read with Section 401 of the CrPC against the Judgment and order dated 21.09.1995 passed by the learned Addl. District & Sessions Judge, Gangapur City in Criminal Appeal No.5/94 - Safed Khan Vs. State, whereby the Judgment and order passed by learned Chief Judicial Magistrate, Hindaun, dated 21.09.1991 passed in Criminal Case No. 977/1989 (State vs. Safed Khan) has been affirmed and the appeal has been dismissed. The accused-petitioner was convicted and sentenced as under:-Under Section Sentence awarded 304-A IPC Six months rigorous imprisonment and a fine of Rs.100/-, in default of payment of fine to further undergo 15 days simple imprisonment. 279, 337 and 338, IPCFine of Rs.100/-under each Section and in default of payment of fine to further undergo 15 days simple imprisonment for each default. 2. Briefly stated, the facts giving rise to the present case are that Bharat Singh s/o Giriraj Gujar submitted a written report Ex.P/5 in the police Station Mahaveerji at about 9:15 PM On 25.06.1989 with the averments that he was travelling in a bus of Rajasthan State Roadways Corporation after taking ticket from Hindon and was coming to Mahaveerji along with several other passengers in the bus. The driver of the bus drove the bus in rash and negligent manner at a very fast speed on the bridge over Gambhir river and due to that the bus dashed against the railing of bridge and fell down in the river at about 8:30 PM, as a result of which he sustained grievous injuries and many passengers died and sustained bodily injuries. 3. On this report, police registered a regular FIR (Ex. P/6) under Sections. 279, 337 and 304 of IPC and commenced investigation. On completion of usual investigation, challan was filed in the Court of Addl. Chief Judicial Magistrate, Hindon on 26.09.1989 where charges were framed under Sections 279, 337, 338 and 304A IPC. Accused petitioner denied the charges framed against him and claimed trial. In support of its case, prosecution examined 46 witnesses and tendered several documents. 4. After close of the prosecution evidence, in the statement recorded under Section 313 CrPC, accused denied the prosecution story and stated that accident was the result of failure of steering and on account of which the bus was out of his control and fell in the river. 4. After close of the prosecution evidence, in the statement recorded under Section 313 CrPC, accused denied the prosecution story and stated that accident was the result of failure of steering and on account of which the bus was out of his control and fell in the river. No witness was examined in defence despite granting opportunity by the court. 5. The learned trial court, after hearing both sides, vide its Judgment and order of conviction dated 21.09.1991 passed in Criminal Case No. 977/89 (State vs. Sufed Khan) convicted and sentenced the accused petitioner as indicated hereinabove. 6. Aggrieved by the said Judgment and order of the learned trial court dated 21.09.1991, the accused-petitioner preferred an appeal before the Court of Sessions, which came up for hearing before the learned Addl. District & Sessions Judge, Gangapur City, who vide its Judgment and order dated 21.09.1995 dismissed the appeal after confirming the conviction and sentence awarded to the accused petitioner. Hence, this revision petition. 7. No one put in appearance on behalf of the accused-petitioner however, after the arguments of learned Public Prosecutor were over, Mr. B.S. Chauhan learned counsel for accused petitioner appeared and was heard. I also carefully gone through the material available on record. 8. It was contended by learned counsel for the accused petitioner that the accident had taken place without there being any fault of the petitioner as there was sudden failure of brakes and it was not possible for him to control the bus in those circumstances, therefore, the conviction and sentence awarded to the accused petitioner deserves to be quashed and set aside. He also contended that in the absence of reliable evidence regarding rash and negligent driving, the accused was not liable to be convicted and sentenced. The learned counsel submitted that in case the findings of guilt even if assumed to be proved then the petitioner be given the benefit of probation. .9. On the other hand, learned Public Prosecutor supported the case of prosecution and submitted that in the mechanical report of the vehicle it has come that the cause of accident cannot be attributed solely to the minor failure of steering mechanism due to slipping of steering ball. .9. On the other hand, learned Public Prosecutor supported the case of prosecution and submitted that in the mechanical report of the vehicle it has come that the cause of accident cannot be attributed solely to the minor failure of steering mechanism due to slipping of steering ball. He further stated that it has come in the report that it is quite possible that the ball might have slipped from the steering road on account of fall of the bus in river. .10. I have considered the rival submissions made before me. .11. The learned trial Court while holding the accused petitioner guilty vide its Judgment and order dated 21.09.1991 has held as under: .(1) That it is not denied that the bus was driven by the accused petitioner. .(2) That six persons died in the accident and several others injured severally and some of them sustained simple injuries. .(3) That in view of the evidence led by the prosecution, it is amply proved that the act of the accused petitioner while driving the vehicle was of rash and negligence. 12. Now, it is to be seen as to whether the accused was driving the bus and on account of his rash and negligent driving the accident took place or not? 13. In the statement under Section 313 CrPC recorded by the learned trial Court, the accused petitioner has stated that the bus was being driven by him in a slow speed and on account of steering failure the vehicle was out of his control and fell in the river. This, it can safely be presumed that while the accident took place, it was the accused petitioner who was driving the bus. 14. Now, to examine this aspect as to whether the act of the accused was of rash and negligence and he was responsible for the accident, in this connection statements of PW. 1 Ramjilal, PW. 4 Datar Singh, PW. 6 Deendayal, PW. 9 Resham, PW. 12 Laxman, PW. 35 Bharat Singh, PW. 36 Santara, PW. 44 Vimal Kumar and PW. 45 Darshan Singh are relevant. All these witnesses have stated that at the time when the bus was passing through bridge the speed was very fast, the driver of the bus was driving the bus rashly and negligently and on account of that the accident had taken place. PW. 36 Santara, PW. 44 Vimal Kumar and PW. 45 Darshan Singh are relevant. All these witnesses have stated that at the time when the bus was passing through bridge the speed was very fast, the driver of the bus was driving the bus rashly and negligently and on account of that the accident had taken place. PW. 38 Madan Singh, who had inspected the mechanism of the vehicle and prepared the inspection note Ex.P/41 has stated that the steering of the bus not in workable condition as the steering ball had slipped. He further stated that the ball of the steering road can slip even when the vehicle is running but such a circumstance happens rarely. 15. In view of above evidence, where all the witnesses in clear and unequivocal terms have stated that the driver of the bus was driving the bus in a very fast speed on the bridge, to draw a conclusion that the act of the accused petitioner was of rash and negligence is justified. It is expected of a automobile driver to more cautiously drive the vehicle at places like bridge, turns and densely populated places etc. but in the present case the accused petitioner drove the vehicle in such a manner that it cost several lives and so many persons injured seriously. 16. The plea of the accused that on account of brake failure the vehicle became out of control and as such the accident had taken place is also not sustainable for the reason that in the statement of PW. 38 Madan Singh it has clearly come that the ball of steering shaft could come out due to the bus falling in the river with great force. If that is so, then whatever the plea has been taken by the accused petitioner is not liable to be sustained. The learned trial Court has considered this aspect also and come to the conclusion that all the parts of the bus had scattered on account of the accident and in view of the statement of PW. 38 this finding has been affirmed by the learned appellate Court. The concurrent finding in my humble view is based on cogent reasons after proper appreciation of evidence and requires no interference by this Court. 17. 38 this finding has been affirmed by the learned appellate Court. The concurrent finding in my humble view is based on cogent reasons after proper appreciation of evidence and requires no interference by this Court. 17. In this case, since it is admitted that the accused was driving the bus which met with an accident and it has also been admitted that in that accident several persons died and many seriously injured, then in view of above referred statements, the conclusions drawn by the trial Court after appreciating the evidence appear to be just, legal and proper. 18. Now I proceed to examine as to whether in the facts and circumstances of the present case the accused is entitled to probation or not. It shall be apposite to refer here the observations of Honble Apex Court made in the case of Darshan Singh vs. State of Punjab, reported in 2003 (9) SCC 208 , para No.6 of which reads as under:- “6. Learned counsel lastly made an alternative plea that the Probation of Offenders Act may be applied to secure his job. This Court has held in Dalibir Singh vs. State of Haryana that the Probation of Offenders Act cannot be invoked in cases involving rash or negligent driving of the bus resulting in death of human being. This is what this Court observed there (SCC p.87 para 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 offence under Section 304A 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 causing death by rash and 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 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.” 19 In other case of Ratan Singh vs. State of Punjab, reported in AIR 1980 SC 84 , the Honble Apex Court observed as under :- “Where the rash and negligent driving of a truck driver had resulted in a fatal accident, the Supreme Court refused to interfere with the sentence of 2 years R.I. awarded to the truck driver on ground that he has to maintain a large family and that his owner of the truck has left his family in the cold. When a life has been lost and the circumstances of the driving are harsh, no compassion can be shown.” 20. In view of the above authoritative pronouncements made by the Honble Apex Court, there remains no doubt that in such matters where the act of the accused is found to be of rash and negligent driving and the accident has taken place for the reason of vehicle being driven callously which resulted in taking lives of several persons, benefit of probation cannot be extended. The courts below have also considered this aspect of the matter but could not be persuaded to extend the benefit of probation in favour of accused petitioner. 21. In view of the forgoing discussion, I do not find any merit in the revision petition. 22. The courts below have also considered this aspect of the matter but could not be persuaded to extend the benefit of probation in favour of accused petitioner. 21. In view of the forgoing discussion, I do not find any merit in the revision petition. 22. In the result, the revision petition is hereby dismissed after confirming the Judgment s and orders passed by the courts below. The accused petitioner is on bail. His bail bonds stand cancelled. The learned trial court shall take steps for arresting the accused petitioner to serve out the sentence awarded to him.