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2005 DIGILAW 1262 (RAJ)

Sultan Singh v. State of Rajasthan

2005-04-28

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This revision petition has been filed by the petitioner against the Judgment and order dated 07.09.1994 passed by learned Sessions Judge, Jhunjhunu in Criminal Appeal No. 43/1988 (Sultan Singh vs. State of Rajasthan) by which he maintained the conviction of the accused-petitioner under Sections 304-A and 279 IPC recorded by learned Chief Judicial Magistrate, Jhunjhunu in Criminal Case No. 45/1986, but reduced the sentence of the accused-petitioner for the said offences in the following manner : IPC Section Sentence awarded by learned CJM Sentence reduced by learned Sessions Judge 304-A One years R.I. and fine of Rs. 1,000/-, in default two months simple imprisonment Three months R.I. and a fine of Rs. 1,000/-, in default one months R.I. 279 Three months S.I. and a fine of Rs. 250/-in default 15 days S.I. 2. Briefly stated, the facts giving rise to the present case are that PW. 4 Ramprasad submitted a written report Exhibit P/1 in the Police Station, Jhunjhunu on 18.03.1986 with the averments that on the day of incident at about 1:30 (Noon) when he reached near Santosh Photo-Stat Copier Shop, opposite to the municipal council, he saw a Shaktiman truck (half body) without number plate coming from the side of railway station and proceeding towards the city at a great speed. At that time, a boy who on his right side was going on a bicycle towards Court-side was hit by the truck coming from the opposite side and dashed the cyclist by coming in the wrong side. As a result of which the cyclist fell down, sustained head injuries and blood came out from his head. The truck did not stop there and proceeded towards the city in fast speed. On reaching at the spot he saw one Ravi Prakash son of Brij Kishore, one of his neighbours, lying on the road. The boy was taken in a autoriksha to the hospital where he died. On the above report, police registered a Criminal Case No. 69/86 and a formal FIR was chalked out (Exhibit-P/13). During the course of investigation, PW. 11 Dr. Surendra Bhargava, conducted post-mortem and prepared post-mortem report (Exhibit-P/7) of the dead body. The accused was arrested and the truck was seized through memo Exhibit-P/14. PW. 15 Sawai Singh, SHO, Khatadri, gave a notice to the accused-petitioner (Exhibit-P/18) under Section 88 of the Motor Vehicles Act. During the course of investigation, PW. 11 Dr. Surendra Bhargava, conducted post-mortem and prepared post-mortem report (Exhibit-P/7) of the dead body. The accused was arrested and the truck was seized through memo Exhibit-P/14. PW. 15 Sawai Singh, SHO, Khatadri, gave a notice to the accused-petitioner (Exhibit-P/18) under Section 88 of the Motor Vehicles Act. The accused-petitioner in reply to the notice made an endorsement on the notice itself in his own hand-writing to the effect that he was owner of the truck and the same was being driven by him on 18.03.1986. 3. After completion of investigation, challan was filed in the Court of Chief Judicial Magistrate, Jhunjhunu on 21.06.1986. The charges were framed under Sections 279 and 304-A IPC. The charges were read-over and explained to the accused-petitioner. The accused-petitioner denied the charges and claimed trial. The prosecution in all produced 15 witnesses and got exhibited some documents in evidence. 4. After close of the prosecution evidence, in the statement recorded under Section 313, CrPC, accused took the plea that he did not take the truck on the day of accident on road No.1 as he at that time was working at some other place. In defence, DW. 1 Narendra Singh was examined to support the plea of alibi of the accused-petitioner. 5. The learned trial court, after hearing both sides, convicted and sentenced the accused-petitioner as indicated hereinabove vide his Judgment and order dated 30.07.1988 in Criminal Case No. 45/1986. Aggrieved by the said Judgment and order of the learned trial Court dated 30.07.1988, the accused-petitioner preferred an appeal before the learned Sessions Judge, Jhunjhunu, who after hearing both sides confirmed the Judgment of conviction but reduced the sentence awarded to the accused-petitioner as indicated hereinabove. 6. Aggrieved by the said Judgment and order of the learned Sessions Judge, the accused-petitioner has preferred the present appeal. .7. No one has put in appearance on behalf of the accused-petitioner. The matter is quite old, therefore, I have heard learned Public Prosecutor and carefully perused the material available on record. In the memo of revision petition, the following submissions have been made. .(1) That both the Courts below have not properly appreciated the evidence and the finding of guilt recorded is not in accordance with the provisions of the law, therefore, the conviction and sentence awarded to the petitioner deserves to be set aside. .(2) That the statement of PW. In the memo of revision petition, the following submissions have been made. .(1) That both the Courts below have not properly appreciated the evidence and the finding of guilt recorded is not in accordance with the provisions of the law, therefore, the conviction and sentence awarded to the petitioner deserves to be set aside. .(2) That the statement of PW. 10 Virendra Singh is not reliable and there is no evidence of rash and negligent act of the accused-petitioner, therefore, the accused-petitioner was not liable to be convicted and sentenced. .(3) Theaccused-petitioner ought to have been given the benefit under the provisions of the Probation of Offenders Act. 8. Learned Public Prosecutor supported the Judgment and order passed by the Courts below and submitted that there is sufficient material available on record to suggest that the order of conviction and sentence awarded to the accused-petitioner is just and proper. It has also been submitted that the manner in which accident has taken place would indicate that the accused-petitioner is not entitled to be given the benefit of probation. 9. I have carefully considered the entire matter and scrutinized the evidence recorded by the learned trial court. 10. Now, I proceed to examine the submissions made by the accused-petitioner in his revision petition. 11. The submission of the accused-petitioner in the revision petition that he was not driving the alleged truck on the day of incident is not tenable for the reason that PW. 15 Sawai Singh, SHO, Khatadri, stated that he gave notice to the accused-petitioner under Section 88 of the Motor Vehicles Act (Exhibit-P/18). The accused on the notice (Exhibit-P/18) made endorsement to the effect that he was the owner of the truck and on the day of the incident, the truck was being driven by him. PW. 3 Abhey Sigh and PW. 4 Ramprasad are the witnesses to prove the factum of the accident. They have stated that the accused was driving the truck on the day of incident. They further stated that the truck was coming from the opposite direction hit the boy who was on bicycle. PW. 10 Virendra Singh has also proved the factum of the accident. He has stated that half body Shaktiman truck was being driven by the accused-petitioner on the day of the accident. They further stated that the truck was coming from the opposite direction hit the boy who was on bicycle. PW. 10 Virendra Singh has also proved the factum of the accident. He has stated that half body Shaktiman truck was being driven by the accused-petitioner on the day of the accident. The above witnesses clearly prove the fact that the accused was the owner of the truck and the truck was being driven by him on the day of the accident. The above witnesses further proves that the accused-petitioner was responsible for the accident which resulted into death of the deceased. With regards to the submission that the prosecution has not placed on record reliable evidence to the effect that the truck was being driven by the accused in rash and negligent manner is concerned, in this connection, the statements of PW. 3 Abhey Singh, PW. 4 Ramprasad and PW. 10 Virendra Singh are relevant. The above witnesses as discussed hereinabove have clearly deposed that on the day of the accident half body Shaktiman truck was coming from railway station side and was proceeding towards the city side. The truck which came from opposite direction in fast speed and hit the deceased by coming to the wrong side. Exhibit-P/2 site plan, which has been proved by PW. 4 Ramprasad and PW. 15 Sawai Singh, the Investigating Officer, clearly indicates that the alleged truck had left its side, crossed the road and dashed against the deceased Ravi Prakash who was going on his right side of the road. PW. 3 Abhey Singh also stated that on the day of the accident half body Shaktiman truck was coming from railway station side and was proceeding towards the city side. The truck came from wrong side and in fast speed hit the deceased who was going on his right side. Thus, in view of the statements of the above witnesses and taking into consideration the site plan (Exhibit-P/2) the only inference which can be drawn in the present matter is that the act of the accused petitioner was of rash and negligent and the deceased had no chance to save his life. Nothing material has come on the record which may suggest that the deposition of the witnesses is not reliable. Nothing material has come on the record which may suggest that the deposition of the witnesses is not reliable. The learned trial Court has correctly appreciated the evidence and rightly came to the conclusion that on the day of the accident the accused-petitioner while driving the truck rashly, negligently and in a fast speed came to the left side of the road, crossed the road and thereafter dashed against the deceased. 10.12. Another submission which finds place in the memo of revision petition is that the accused was entitled for the benefit of Probation under the provisions of the Probation of the Offenders Act. It is suffice to say that the Courts below have considered this aspect and found taking into consideration the facts and circumstances of the case that the manner in which the truck was being driven in rash and negligent manner, that the accused was not entitled for the benefit of doubt. 113. In the case of Darshan Singh vs. State of Punjab, reported in 2003 (9) SCC 208 in Para No. 6 it has been observed 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. 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.” 14. Yet 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.” 15. In view of the above authoritative pronouncement made by the Honble Supreme Court, it is crystal clear that in the matters of accidents if it is found that because of rash and negligent driving the accident has taken place, then, in those matter the benefit under the provisions of the Probation of the Offenders Act is not required to be extended to the accused-persons. 16. 16. In the instant case, as discussed hereinabove, it has been amply proved by the prosecution by adducing reliable evidence in the present matter which inspires confidence that the act of the accused was of rash and negligent while driving the truck which resulted in accident without there being any fault of the deceased. The site plan Exhibit-P/2 when perused would lead to a definite conclusion that the act of the accused-petitioner was of rash and negligent driving of the vehicle which has taken life of a young boy and the deceased had no chance to save his life. 17. The defence plea of alibi is not reliable in view of Exhibit-P/2 site plan and notice Exhibit-P/18, under Section 88 of the Motor Vehicles Act, wherein an endorsement has been made by the accused in his own hand-writing to the effect that he was the owner of the truck and was driving the vehicle on the day of accident. The evidence of PW. 3, PW. 4 and PW. 5 further negatives the plea of alibi of the accused petitioner. 18. In view of the above circumstances, the Courts below have rightly considered the matter and accused was rightly not given the benefit of probation. The findings of the Courts below are concurrent in nature and unless it is found that the findings are perverse and illegal or the evidence has been mis-read till then in the revisional jurisdiction findings recorded by the Courts below are not required to be interfered with. 19. In view of the forgoing discussion, I do not find any merit in the revision petition and same deserves to be dismissed. 20. Accordingly, the revision petition is dismissed. The trial Court shall take steps for arresting the accused-petitioner for serving out the sentences awarded to him by the appellate Court while confirming the Judgment of conviction in Criminal Appeal No. 43/88 dated 9.1994 passed by the trial Court.