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2005 DIGILAW 126 (RAJ)

Saleem Alias Ramzan v. State of Rajasthan

2005-01-13

H.R.PANWAR

body2005
JUDGMENT 1. - By this revision petition under Section 397 read with Section 401 Cr.P.C., the accused-petitioner has challenged the impugned judgment and order dated 2.7.99 passed by the Additional Sessions Judge, Ratangarh (for short, "the appellate court") in Criminal Appeal No. 58/1995, by which the appellate court dismissed the appeal filed by the accused-petitioner and affirmed the judgment and order dated 13.11.1995 passed by the Additional Chief Judicial Magistrate, Ratangarh (for short, "the trial Court") in Criminal Regular Case No. 84/95 (178/1992). 2. The facts of the case, relevant and necessary for disposal of this criminal revision petition, are that on 17.1.92, the Medical Jurist, P.B.M. Hospital, Bikaner informed the Police Station, Sadar, Bikaner that the dead- body of Kanhaiya Lal Sunar, who succumbed to the injuries sustained in an accident, has been brought to the hospital, which is lying in the mortuary. On this information, ASI Shankar Lal reached the hospital and started proceedings under Section 174 Cr.PC. He prepared the Furd-Surat-Lash and got the autopsy conducted. One Poonam Chand informed ASI Shankar Lal that on 16.1.92, at about 2.45 PM, near the railway crossing of village Bharpalsar, accused-petitioner Saleem was driving the jeep rashly and negligently and on account of slumber of the driver, the jeep capsized, as a result of which various occupants of the jeep suffered injuries and Kanhaiya Lal Sunar succumbed to injuries on the spot. The Station House Officer, Police Station, Sadar, Bikaner forwarded the statement of Poonam Chand and other relevant documents to Police Station, Rajaldesar, on which FIR No. 7/92 (Ex.P/16) was registered and after completion of investigation, challan was filed before the Chief Judicial Magistrate, Ratangarh, who, in turn, transferred the case for trial to the trial court. The trial Court framed charges against the accused-petitioner for the offences under Sections 279, 337, 338 and 304-A, IPC. Accused petitioner denied the charges and sought trial of the case. The prosecution examined as many as ten witnesses and produced certain documents. The statement of accused-petitioner under Section 313 Cr.PC. was recorded, who denied the allegations. By the judgment and order dated 13.11.1995, the trial court convicted the petitioner and sentenced him to a fine of Rs. 500/- each for the offences under Sections 279 and 337 IPC and in default of payment of fine to undergo one month's simple imprisonment; six month' simple imprisonment and a fine of Rs. was recorded, who denied the allegations. By the judgment and order dated 13.11.1995, the trial court convicted the petitioner and sentenced him to a fine of Rs. 500/- each for the offences under Sections 279 and 337 IPC and in default of payment of fine to undergo one month's simple imprisonment; six month' simple imprisonment and a fine of Rs. 500/- for the offence under Section 338 IPC and in default of payment of fine to further undergo two months' simple imprisonment; one year's simple imprisonment and a fine of Rs. 1000/- for the offence under Section 304-A, IPC and in default of payment of fine further to undergo three months' simple imprisonment. Being aggrieved with the judgment and order of the trial court, accused-petitioner preferred an appeal before the appellate court. However, counsel for the accused-petitioner pleaded "No Instruction" before the appellate court. The appellate court, vide impugned judgment and order dated 2.7.1999, dismissed the appeal and affirmed the judgment and order of the trial court. 3. I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Perused the impugned judgments and orders of the courts below. 4. The revision petition suffers from the delay of 1804 days, though office has mentioned it as 1890 days. The petitioner has submitted an application under Section 5 of the Limitation Act stating therein that he is a patient of tuberculosis and being a driver, he remained busy in his profession. However, when he reached his house at Lalgarh, he was informed by his family members that one policeman had come regarding the accident which took place in 1992. When he contacted his counsel, who pleaded "No Instruction" on 30.6.99, he came to know that the appeal filed by him had been dismissed on 2.7.99. The reasons assigned for delay in filing the revision petition are not convincing and as such petitioner failed to show any cause, much less sufficient cause, which prevented him to file the revision petition within the period of limitation and, therefore, the application under Section 5 of the Limitation Act for condoning the delay has no merit and accordingly it stands dismissed and as such, the revision petition, being barred by limitation, is liable to be dismissed. 5. However, on merit also, the petitioner has no case to succeed. 5. However, on merit also, the petitioner has no case to succeed. There is unrebutted evidence of PW 2 Bhanwar Lal, PW 3 Radha Kishan and PW 4 Bhikha Ram to establish the prosecution case that it was the accused-petitioner who was driving the jeep rashly and negligently which capsized on account of slumber of the driver, as a result of which the occupant of the jeep Kanhaiya Lal Sunar succumbed to the injuries and other persons, including PW 3 Radha Kishan and PW 4 Bhikha Ram sustained injuries in the said accident. Both the courts below appreciated the evidence in right perspective and after going through the impugned judgments and orders of the court below, I am of the view that there is no error, illegality or perversity in the impugned judgments which may require interference in the revisional jurisdiction by this Court. There is concurrent findings of facts by both the courts below regarding the guilt of the accused-petitioner. 6. A Three Judge Bench of the Hon'ble Supreme Court, in Duli Chand v. Delhi Administration, (1975) 4 SCC 649 held that it is not the practice of the Court to re-assess and re-appreciate the evidence for the purpose of examining whether the finding of fact concurrently arrived is correct or not and it is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice that this court would interfere with such finding of fact. The same has been reiterated by the Hon'ble Apex Court in State of Kerala v. Puttumana Illath Jathavedan Namboodiri AIR 1999 SC 981 and Pritam Singh v. State of Rajasthan, 1988 (1) Crimes 304(Raj). 7. In view of the settled legal proposition, on close scrutiny of the evidence produced by the prosecution in the instant case, I do not find any jurisdictional error or illegality. Both the Courts below concurrently found the petitioner guilty for the offences the petitioner has been convicted. In the circumstances, therefore, it cannot be said that any manifest illegality or grave and serious injustice has been caused to the petitioner warranting interference in the revisional jurisdiction. 8. The last submission made by the learned counsel for the accused-petitioner is that the sentence awarded to the accused-petitioner is disproportionate to the guilt and the accused-petitioner should have been granted the benefit of probation. 9. 8. The last submission made by the learned counsel for the accused-petitioner is that the sentence awarded to the accused-petitioner is disproportionate to the guilt and the accused-petitioner should have been granted the benefit of probation. 9. Apart from offences punishable under Sections 279, 337 and 338 IPC, the accused-petitioner has also been convicted and sentenced for the offence under Section 304- A, IPC. The offence under Section 304-A, IPC is punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. Consideration 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 only or granting the benefit of probation for the offence under Section 304-A, IPC is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice, vide Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 . 10. In Francis Xavier Rodrigues v. State, 1997 (1) TAC 768 (Bom) the accused was found guilty of the offences punishable under Sections 279 and 304A of the Indian Penal Code and the Bombay High Court refused to show a compassion to the accused and held that the basic object of punishment for these offences is not only for inflicting punishment on the culprit for his criminality but it should have deterrent effect on similar persons. The High Court further held that such is not a fit case for invoking the provisions of the Probation of Offenders Act, particularly when such a plea was not taken before the courts below and held as under: "Bearing in mind galloping trend in road accidents in India and devastating consequences visiting victims and their families, benevolent provisions of section 4 cannot be attracted. One of the prime considerations should be deterrence while considering question of sentence. Professional drivers cannot afford to have a single moment of laxity or inattentiveness while his leg is on pedal of a vehicle in locomotion. He must always keep in mind the fear psyche that if he is convicted for causing death of a human being due to his callous driving, he cannot escape from jail sentence. Professional drivers cannot afford to have a single moment of laxity or inattentiveness while his leg is on pedal of a vehicle in locomotion. He must always keep in mind the fear psyche that if he is convicted for causing death of a human being due to his callous driving, he cannot escape from jail sentence. For lessening the high rate of motor accidents due to callous driving, Criminal Courts should play such role." 11. In Ratan Singh v. State of Punjab, AIR 1982 SC 1 while dealing with a case under Section 304-A, IPC, the Hon'ble Supreme Court observed that sentencing must have a policy of correction and the 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 and punishment in this area must, therefore, be accompanied by these components. The Apex Court further observed that the victimisation of the family of the convict may well be a reality and is regrettable. It is weakness of our jurisprudence that the victims of the crimes and the distress or the dependents of the prisoner, do not attract the attention of the law. 12. In State of Karnataka v. Krishna alias Raju, AIR 1987 SC 861 , the driver was convicted for killing one person and injuring another for the offence under Section 304-A, IPC and was sentenced to a fine of Rs. 250/-. The High Court refused to enhance the sentence. Reversing the judgment of the High Court and enhancing the sentence for the conviction under Section 304-A, IPC to six months rigorous imprisonment and fine of Rs. 1000/-, the Hon'ble Supreme Court held as under : "The utter disregard shown by the Magistrate to the nature of the offences, particularly the one under Section 304-A, IPC and the sentence provided for them under the Penal Code and the Motor Vehicles Act, by imposing what may be termed as 'flea-bite' sentences on the respondent, should have spurred the High Court to not only pass appropriate strictures against the Magistrate but also to set right matters by enhancing the sentence at least for the conviction under Section 304-A, IPC to a conscionable level in exercise of its power." 13. In Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 the Hon'ble Supreme Court observed that in view of galloping rate of road accidents in India and its devastating consequences, lenience cannot be shown and the benevolent provisions of Section 4 of the Probation of Offenders Act cannot be treated as applicable to the offence under Section 304-A, IPC. The Apex Court further held that when deciding quantum of sentence deterrence ought to be the prime consider and every driver should fear that if convicted, courts will not treat him leniently. The Hon'ble Apex Court further held as Under : "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 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 4 maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic." 14. In Thakur Singh v. State of Punjab, (2003) 9 SCC 208 the Hon'ble Supreme Court, affirming the dictum laid down in Dalbir Singh's case (supra), held that 4 the provisions of Section 4 of the Probation of Offenders Act, 1958 cannot be attracted to such cases. 15. In the instant case, there is cogent and convincing evidence establishing the rash and negligent driving of the jeep by the accused-petitioner resulting in the death of Kanhaiya Lal Sunar and causing s injuries to PW 3 Radha Kishan and PW 4 Bhikha Ram. In view of the law laid down by the Hon'ble Apex Court, the benefit of probation cannot be granted to the petitioner for the offence under Section 304-A, I.P.C. 16. In this view of the matter, I do not find any merit in this revision petition and it is dismissed accordingly. The stay petition also stands dismissed.Revision Dismissed. *******