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2005 DIGILAW 1261 (RAJ)

Ram Gopal @ Gopal Lal v. State of Rajasthan

2005-04-28

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This revision petition has been filed under Section 397 of the CrPC against the Judgment and order dated 04.06.1994 passed by the learned Special Judge SC/ST (Prevention of Atrocities) Act Cases, Ajmer in Criminal Appeal No.15/93, whereby the Judgment of conviction and order of sentence passed against accused-petitioner under Sections 279, 337, 338 & 304-A of the IPC in Criminal Case No. 664/84 dated 27.09.1991 has been affirmed. The accused-petitioner was convicted and sentenced as under:-Under Section Sentence 279 IPC Two months simple imprisonment. 337 IPC Two months simple imprisonment. 338 IPC Four months simple imprisonment. 304-A IPC Four months rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo two months S.I. 2. All the sentences were ordered to run concurrently and the accused was allowed the benefit under Section 428 CrPC. 3. Briefly stated, the facts giving rise to the present case are that on 20.11.1984 at about 5.30 AM in the morning, PW. 2 Badri Prasad lodged a written report (Ex.P/5) in the Police Station Mangaliyawas, District Ajmer inter-alia stating therein that on that very day he alongwith Niyaz Mohd, who was the son of his master (Sethji) and servant PW. 5 Ramzan started in jeep in the early morning from Jethna for Ajmer carrying the milk containers in the jeep for supply. On the national highway when the jeep was parked at the roadside in Kachcha for collecting milk from the village and when the milk containers were being kept in the jeep, a truck bearing No. RNB 8292 being driven rashly and negligently came from Beawar side and hit the jeep from behind, as a result of which the jeep turned down at the left hand side. Niyaz Mohd and Ramzan sustained injuries and fractures of their legs. A case under Sec.277, 337 and 338 IPC was registered in the police and as Niyaz Mohd. ultimately died due to the injuries sustained by him, Section 304-A of IPC was also added. 4. During the course of investigation, site was inspected and site-plan Ex.P/1 was prepared by CW. 1 Govind Singh. The truck was seized through Ex.P/2 and Niyaz Mohd and Ramzan were medically examined. The medical reports and post-mortem reports in that regard have been admitted which are respectively Ex.2, 3 and Ex.P/1. 4. During the course of investigation, site was inspected and site-plan Ex.P/1 was prepared by CW. 1 Govind Singh. The truck was seized through Ex.P/2 and Niyaz Mohd and Ramzan were medically examined. The medical reports and post-mortem reports in that regard have been admitted which are respectively Ex.2, 3 and Ex.P/1. The accused was arrested through Ex.10 on 211.1984 and the post-mortem was conducted on 211.1984. 5. After completion of investigation, challan was submitted in the Court of Munsif & Judicial Magistrate, First Class, Nasirabad where charges under Sections 279, 337, 338 and 304-A IPC were framed on 02.04.1985. Accused-petitioner denied the charges and claimed trial. Prosecution in support of its case examined 5 witnesses and tendered some documents. After close of the evidence, in the statement under Section 313 CrPC, accused-petitioner denied the prosecution case and stated that the truck was being driven in normal speed but as the jeep which was parked at the roadside suddenly taken a turn the accident took place. The accident has taken place on account of fault of the jeep driver. No witness in defence was produced. 6. The learned trial Judge, after hearing both sides, vide his Judgment dated 27.09.1991 convicted and sentenced the accused-petitioner as indicated hereinabove. 7. Aggrieved by the Judgment and order dated 27.09.1991, an appeal was preferred before the learned Sessions Judge, Ajmer which subsequently came up before the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases and Addl. District Judge, Ajmer. The learned Judge passed an order on 19.09.1992 to the effect that it was essential before deciding the appeal to record the statement of Govind Singh, who had conducted the investigation and prepared site plan etc. Statement of Govind Singh (CW. 1) was recorded in the Court on 26.09.1992 and the learned appellate Court, after recording the statement of CW1 Govind Singh, recorded statement of accused under Section 313 CrPC on 011.1992. The learned appellate Court after hearing both sides, dismissed the appeal filed by the accused-petitioner vide Judgment and order dated 04.06.1994 passed in Criminal Appeal No. 15/1993. 8. Aggrieved by the aforesaid Judgment and order, the present revision petition has been filed challenging the validity of the impugned Judgment and orders of the courts below. 9. I have heard learned counsel for the accused-petitioner as well as learned Public Prosecutor and carefully perused the material available on record. .10. 8. Aggrieved by the aforesaid Judgment and order, the present revision petition has been filed challenging the validity of the impugned Judgment and orders of the courts below. 9. I have heard learned counsel for the accused-petitioner as well as learned Public Prosecutor and carefully perused the material available on record. .10. It has been contended by the learned counsel for accused petitioner that the courts below have misread the evidence, therefore, the findings recorded by the Courts below are required to be quashed and set aside. It has next been contended that there are material contradictions in the evidence and in .fact the accident had taken place on account of jeep coming on the road without any signal. It has also been submitted that the alleged accident is of 1984, therefore, it would not be in the interest of justice to send the accused petitioner in jail after such a long lapse of period. According to the learned counsel, he should be extended the benefit of Probation of Offenders Act. In support of his submission, learned counsel has placed reliance on 2002 (1) Cr.L.R.(Raj) 586 (Vijay Kumar vs. State of Rajasthan), 2002 (1) CrLR (Raj) 591 (Pania & Ors. vs. State of Rajasthan), 2000 CrLJ 4362 (Ajaib Singh vs. State of Punjab), 2000 CrLJ 4363 (Trikambhai vs. State of Gujarat), 2000 CrLJ 3394 (Pradeep Kumar vs. State of Haryana), 2000 CrLJ 1755 (State of H.P. vs. Kanshi Ram), 1992 CrLR (Raj) 267 (Fakroodeen vs. State), 1992 CrLR (Raj.) 268 (Bhikha Ram vs. State), 2001 (1) Rajasthan Criminal Decisions 127 (Bheru Singh vs. State of Rajasthan and 2003 (1) RCC 12 (Chimanlal vs. State of Rajasthan). .11. On the other hand, the learned Public Prosecutor contended that the concurrent findings recorded by the Courts below are based on proper appreciation of evidence without there being any material contradictions, therefore, the conviction recorded against the accused petitioner by the Courts below requires to be maintained. .12. I have considered the rival submissions made before me. 13. In this case, the injury reports, post-mortem report and other documents placed on record have been admitted on behalf of the accused petitioner by his counsel. It is further apparent in view of statements of PW. 2 Badri Prasad, PW. 3 Nasrudeen s/o Jumma, PW. 4 Nasrudeen s/o Abdullah and PW. 13. In this case, the injury reports, post-mortem report and other documents placed on record have been admitted on behalf of the accused petitioner by his counsel. It is further apparent in view of statements of PW. 2 Badri Prasad, PW. 3 Nasrudeen s/o Jumma, PW. 4 Nasrudeen s/o Abdullah and PW. 5 Ramzan that the accused was driving the truck in rash and negligent manner and dashed against the jeep parked at the right side in kachcha and as a result of which the jeep turned upside down. In the accident, PW. 5 Ramzan sustained injuries and Niyajudeen died after four days in the hospital.PW. 2 Badri Prasad in his statement has stated that on the day of accident at 5 Oclock in the morning after parking the jeep near Gadhi Arjunpura he was putting the containers of collected milk in the jeep for taking it to Ajmer a truck came in a fast speed from behind and dashed against the jeep due to which Nizamudeen and one other person sustained injuries. The truck was stopped subsequently by other persons, which was being driven by the accused. This witness has proved Ex.P/5 the first information report. The witness says that the site Plan Ex.P/1 was prepared in his presence and the truck was seized vide Ex.P/3. In cross-examination, this witness has accepted that the jeep was parked at the place which has been shown in the site plan and has also admitted this suggestion that he was scared after the accident. He, however, denied that the jeep was parked on road. This witness has admitted that at the time when accident took place he was sitting on the driving seat and the jeep though parked its engine was start. This suggestion was accepted that the jeep was standing on its right side and after the accident it turned to the left side. 10.14. Another witness PW. 4 Nasiruddin has stated that on the date of accident, the accused was driving the vehicle which hit the jeep and caused injuries to Niyaz Mohd. The witness says that he also sustained injuries. In cross examination, the witness says that the width of the road was quite big and easily two trucks could pass. The jeep was parked before 5 minutes of the accident took place. The witness says that he also sustained injuries. In cross examination, the witness says that the width of the road was quite big and easily two trucks could pass. The jeep was parked before 5 minutes of the accident took place. The suggestion has been denied that at the time of accident the driver of the jeep suddenly drove the vehicle on road. This suggestion has also been denied that the truck was in a normal speed. 115. PW. 5 Ramzan has stated that the truck was being driven in a fast and negligent manner and it hit the jeep coming from behind. The witness has further stated that his leg was broken and Nizamudeen had sustained multiple injuires. In cross examination, he has stated that his right leg was on the earth when the accident took place. The witness has denied the suggestion that suddenly the driver of the jeep took a turn and it resulted in accident. 116. Alongwith the statements of above witnesses the statement of CW1 Govind Singh is also relevant. His statement was recorded in the Court of Addl. District & Sessions Judge during the pendency of the appeal. This witness has stated that on 20.11.1984 he was Sub-Inspector in the Police Station, Mangaliyabas and on that day at about 5 A.M. PW. 2 Badri Prasad came in the police Station and lodged the report Ex.P/5 and on that information FIR Ex.P/6 was chalked out. At that time the SHO police station was not there and he was discharging the duties at his place. The witness has further stated that he had conducted the investigation and reached at the spot and there at the instance of PW. 2 Badri Prasad prepared site plan in presence of Mohd. Umar and Nasrudeen. He has stated that the puccha road at the place of accident was 22 fit in width and on the both side of it there was kuchcha way of 4 fts. The witness has further stated that there was no marks on the road to show that the driver of the truck applied the brakes. The witness has further stated that to find out the owner of the truck and the driver he gave notice Ex.P/9 and on this notice Ex.P/9 at place C to D it has been mentioned that on the date of accident the truck was being driven by the accused petitioner. The witness has further stated that to find out the owner of the truck and the driver he gave notice Ex.P/9 and on this notice Ex.P/9 at place C to D it has been mentioned that on the date of accident the truck was being driven by the accused petitioner. 17. A perusal of above statements clearly indicates that the accused was driving the truck rashly and negligently. Nothing material has come in the cross-examination to draw a conclusion that the witnesses were not telling the truth and their evidence is not worth reliance. The contentions are without any merit. 18. I have scrutinized the material carefully. The accused has admitted at the time of framing charge that he was driving the truck RNB 8292 on the day of accident and if somebody had died he does not know. In the statement under Section 313 CrPC recorded during the pendency of appeal, he has stated that he has been falsely implicated in the matter. He has further stated that the truck was in normal speed and the jeep was standing at its roadside but suddenly it took turn and came on road and therefore the accident had taken place. Ex.P/1, the site plan clearly indicates that the truck was being driven in a fast speed and as a result of which the jeep turned upside down and stopped 60 ft away from the place where it was parked. 19. In view of what has been discussed above, the rash and negligent act of driving the vehicle by the accused petitioner has been amply proved by the reliable evidence led by the prosecution. The authorities cited by the learned counsel for the accused petitioner mainly lay down the principle that when it is found that the accident has taken place due to the fault of other persons such as suddenly crossing the road, suddenly taking the vehicle on road, etc. then to draw a conclusion that accident had taken place because of rash and negligent driving of automobile would not be justified. 20 It shall be relevant here to refer to a decision of the Honble Supreme Court reported in 2003 (9) SCC208 (Darshan Singh vs. State of Punjab), 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. 20 It shall be relevant here to refer to a decision of the Honble Supreme Court reported in 2003 (9) SCC208 (Darshan Singh vs. State of Punjab), 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). 13. Bearingin 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 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 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. 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.” 21. 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.” 21. In another case of Ratan Singh vs. State of Punjab, reported in AIR 1980 SC 84 , it has been observed by the Honble Apex Court 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 list and the circumstances of the driving are harsh, no compassion can be shown.” 22. After considering the entire matter, I have no hesitation in reaching to the conclusion that the act of the accused while driving the truck was of rash and negligent and it would not be in the interest of justice to extend the benefit to the accused petitioner under the provisions of Probation of Offenders Act particularly in a matter in which a young lad has been done to death. The passage of time or delay also cannot be a ground to show sympathy or mercy to a killer. The Honble Supreme Court in the cases of Darshan Singh (supra) and Ratan Singh (supra) has in a very categorical manner considered the aspect of delay and also the aspect of extending benefit of probation in cases relating to accident. 23. In view of what has been discussed hereinabove, I do not find any merit in the revision petition and same deserves to be dismissed. The concurrent findings regarding the guilt of the accused petitioner are based on cogent reasons and there appears to be no ground to interfere with the same. 24. In the result, the revision petition is dismissed. 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 sentences awarded to him.