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2005 DIGILAW 1263 (RAJ)

Nand Kishore v. State of Rajasthan

2005-04-28

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This criminal revision petition has been filed by the petitioner under Section 397 read with Section 401, CrPC, 1973 against the Judgment and order dated 28.06.1995 passed by learned Additional District & Sessions Judge No. 1, Ajmer in Criminal Appeal No. 25/1995 (Nand Kishore vs. State of Rajasthan) whereby the conviction of the accused-petitioner recorded by learned Additional Chief Judicial Magistrate No. 2, Ajmer in Criminal Case No. 104/1990 sentencing him under Section 304-A, IPC for one years simple imprisonment and under Section 337, IPC one months simple imprisonment has been confirmed. 2. Briefly stated, the facts giving rise to the present case are that PW. 1 Chhote Lal submitted a written report Exhibit P/1 on 16.03.1990 in the Police Station, Ganj, Ajmer with the averments that on the day of incident at about 11:00 AM (in the morning) he started from his house towards Chamar Ghati where he saw CRPF truck bearing No. DEL 5789 being driven rashly and negligently by its driver. It was further submitted that the said truck dashed against a motorcycle, which was being driven by Prakash and on its pillion seat Mahavir was sitting. The driver of the truck ran away from the place of occurrence. It was further submitted that he took both motorcyclists to the hospital but Mahavir died during the way and Prakash was admitted in the hospital. On the above report, police registered a Criminal Case No. 46/90 and a First Information Report (Exhibit-P/2) under Sections 279, 337 and 304-A, IPC was chalked out. During the course of investigation, post-mortem of the dead body was conducted and post-mortem report (Exhibit-P/9) was prepared. Injured PW. 2 Vithal Prakash was medically examined. His medical examination report is Exhibit-P/8. The site plan (Exhibit-P/3) was prepared in the presence of PW. 1 Chhote Lal. 3. After completion of usual investigation, a challan was submitted in the Court of Additional Chief Judicial Magistrate No. 2, Ajmer. The charges were framed under Sections 279, 337 and 304-A, IPC on 011.1990 against the accused petitioner. The charges were read-over and explained to him which were denied by the accused-petitioner and he claimed trial. The prosecution in support of its case examined PW. 1 Chhote Lal, PW. 2 Vithal Prakash and PW. 3 Dr. N.L. Singaksh and tendered some documents in evidence. 4. The charges were read-over and explained to him which were denied by the accused-petitioner and he claimed trial. The prosecution in support of its case examined PW. 1 Chhote Lal, PW. 2 Vithal Prakash and PW. 3 Dr. N.L. Singaksh and tendered some documents in evidence. 4. After close of the prosecution evidence, in the statement recorded under Section 313, CrPC, accused has stated that though he was driving the vehicle but infact the truck was not in motion and was stand still and when he started the truck it took a jolt. He did not know as to how the motorcyclists came under the wheel of the truck. No evidence has been produced in the defence. 5. The learned trial Court, after hearing both sides, vide its Judgment and order of conviction dated 13.03.1995 (in Criminal Case No. 104/90) convicted and sentenced the accused petitioner as indicated hereinabove. Aggrieved by the said Judgment and order of the learned trial Court dated 13.03.1995, the accused-petitioner preferred an appeal before the learned Additional District & Sessions Judge No. 1, Ajmer, who after hearing both sides, vide its Judgment dated 28.06.1995 confirmed the Judgment and order of the conviction dated 13.03.1995 passed by the learned trial Court in Criminal Appeal No. 104/90. .6. Aggrieved by the Judgment and order dated 28.06.1995 passed by the the learned additional District & Sessions Judge, Ajmer the accused-petitioner has preferred the present revision petition. 7. No one has put in appearance on behalf of the accused-petitioner. 8. I have heard learned Public Prosecutor and carefully perused the material available on record. .9. It appears from the perusal of the file that inspite of several dates of hearing fixed in this revision petition nobody has turned-up to argue the case. The matter is quite old, therefore, it needs to be decided. In the memo of revision petition, the following submissions have been made:- .(1) That there are material contradiction in the evidence of the prosecution and learned trial Court has mis-read the evidence. .(2) That in the absence of reliable evidence regarding rash and negligent driving, the accused was not liable to be convicted and sentenced. .(3) That the investigation officer has not been produced. This has seriously prejudiced the case of the petitioner. .(4) That the motorcycle of the deceased slipped as a result of which he sustained injuries and died. .(2) That in the absence of reliable evidence regarding rash and negligent driving, the accused was not liable to be convicted and sentenced. .(3) That the investigation officer has not been produced. This has seriously prejudiced the case of the petitioner. .(4) That the motorcycle of the deceased slipped as a result of which he sustained injuries and died. .(5) That the accused was entitled for benefit of probation. 10. On the other hand, the learned Public Prosecutor has supported the Judgment and orders 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 legal and proper. It has also been submitted that by cogent and reliable evidence, it has been amply proved that the act of the accused was of rash and negligent and the accused was responsible for the accident which resulted into the death of a young boy, therefore, in view of the concurrent findings of the Courts below, the revision petition deserves to be dismissed. .11. I have carefully considered the entire matter and scrutinized the evidence recorded by the learned trial court. The learned trial Court in its Judgment and order dated 13.1995 held as under:- .(1) That the accused was driving the truck bearing No. DEL 5789 on the day of the accident in rash and negligent manner. .(2) That the evidence led by the prosecution proves the charges framed against the accused petitioner. 12. The learned Appellate Court has confirmed the findings of guilt recorded by the learned trial Court vide its Judgment and order dated 28.06.1995. 13. It is to be seen that whether the accused was driving the truck on the day of the accident rashly and negligently and was responsible for the accident which resulted in death of a young boy. Post-mortem report of the deceased is Exhibit-P/9. A perusal thereof indicates that the deceased died due to ante mortem multiple injuries. The fact that the accused died in the vehicle finds place firstly in the statement of PW. 2 and thereafter in the statement recorded under Section 313, CrPC after close of the prosecution evidence. He has stated that he was driving the vehicle. The truck was not in motion. The fact that the accused died in the vehicle finds place firstly in the statement of PW. 2 and thereafter in the statement recorded under Section 313, CrPC after close of the prosecution evidence. He has stated that he was driving the vehicle. The truck was not in motion. In view of the above, this fact stand proved that on the day of the accident the accused was driving the vehicle. 14. Now, the question which requires determination is as to whether the act of the accused person was rash and negligent or not ? 15. PW. 2 Vithal Prakash has stated that on 16.3.1990, while he was going on Motorcycle towards Chamar Ghati, CRPF truck came from behind in rash and negligent manner and hit the motorcycle from behind resulted in multiple injuries on his person. Mahavir died in the hospital. The motorcycle was damaged. In the cross-examination, he has stated that he saw the truck coming in 50 to 60 Kms/hr speed in rash and negligent manner, motorcyclist was on his left side leaving entire road but the truck hit the motorcycle from behind. The width of the road was 40 feet. The motorcycle came under the front wheel of the truck. 10.16. PW. 1 Chhote Lal, though has been declared hostile has stated that deceased died due to the accident. 117. The accused in his statement has stated that the truck was stand still and he did not know as to how the motorcycle came under the wheel of the truck. Thus, it is clear that the accident had taken place and the fact that the accused was driving the truck has also been proved. Thus, it is obvious to draw the conclusion that when the truck came from behind and hit the motorcyclists then the plea that the accused did not know as to how accident has taken place is not believable. Site Plan Exhibit-P/3 indicates that the road is quite big and the deceased was going on extreme left side, leaving the entire road and the truck came from behind in rash and negligent manner, hit the motorcyclists. The mechanical report Exhibit-P/6 indicates that the vehicle was in order. Taking together all the circumstances lead to irresistible conclusion that on account of rash and negligent driving of the accused a young boy has died and PW. The mechanical report Exhibit-P/6 indicates that the vehicle was in order. Taking together all the circumstances lead to irresistible conclusion that on account of rash and negligent driving of the accused a young boy has died and PW. 2 Vithal Prakash has sustained several injuries including fracture on his person. 118. 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 and the manner in which the truck was being driven in rash and negligent manner, the accused was not entitled for the benefit of doubt. 19. 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). 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 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.” 20. 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 lost and the circumstances of the driving are harsh, no compassion can be shown.” 21. In view of the above authoritative pronouncements made by the Honble Apex 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, the accused cannot claim as a matter of right to be given the benefit of probation under the provisions of the Probation of the Offenders Act. The Courts below have concurrently found that by rash and negligent driving of the accused person, accident has taken place, then, in my humble opinion under the revisional jurisdiction no interference is required to be made. 22. The Courts below have concurrently found that by rash and negligent driving of the accused person, accident has taken place, then, in my humble opinion under the revisional jurisdiction no interference is required to be made. 22. In view of the forgoing discussion, I do not find any illegality or mis-reading of the evidence by the learned Courts below. There appears to be no merit in the revision petition and same deserves to be dismissed. 23. In the result, the revision petition stand 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 person to serve out the sentence awarded to him.