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2006 DIGILAW 1225 (RAJ)

Sher Mohammed v. State of Rajasthan

2006-04-18

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the Judgment and order dated 211.2005 passed by Additional Sessions Judge, Deedwana (for short, “the Appellant Court” hereinafter) in Criminal Appeal No. 3/2001, whereby the Appellate Court dismissed the appeal filed by the petitioner against the Judgment and order dated 09.01.2001 passed by the Additional Chief Judicial Magistrate, Deedwana (for short, “the trial Court” hereinafter) in Criminal Case No. 115/1998, and affirmed the conviction and sentence passed by the trial Court against the petitioner. By the Judgment and order dated 09.01.2001, the trial Court convicted the petitioner for the offences under Sections 279, 337, and 304-A, IPC, however, acquitted the petitioner of the offence under Section 338, IPC; and sentenced him to undergo six months simple imprisonment and a fine of Rs. 1,000/-, in default of payment of fine further to undergo 15 days simple imprisonment for the offence under Section 279, IPC; six months simple imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo one months simple imprisonment for the offence under Section 337, IPC; and two years simple imprisonment and a fine of Rs. 5,000/-, in default of payment of fine further to undergo four months simple imprisonment for the offence under Section 304-A, IPC. Aggrieved by the Judgment s and orders impugned, the petitioner has filed the instant revision. 2. I have heard learned Counsel for the parties. Carefully gone through the Judgment s and orders of the Appellate Court as well as of the trial Court. I have also gone through the record of the trial Court. 3. It is contend by the learned Counsel for the petitioner that the trial Court failed to consider and appreciate the evidence on record while convicting and sentencing the petitioner. Before the very trial Court, a case was also pending against PW. 12 Raju who was a driver of another jeep, with which the jeep of the petitioner met with an accident, but he has been acquitted whereas the petitioner has been found negligent in driving the jeep and convicted. Learned Counsel further submits that some of the injured persons have not supported the prosecution case. It was also contended that the Courts below failed to consider the site map. Learned Counsel further submits that some of the injured persons have not supported the prosecution case. It was also contended that the Courts below failed to consider the site map. It was also contended that the Courts below failed to consider the case of the petitioner under Section 360 of the Code for giving him the benefit of probation. Lastly, it was contended that the petitioner has undergone the substantial period of imprisonment and, therefore, the sentence of imprisonment awarded to the petitioner may be reduced to the period of imprisonment already undergone by him. 4. Learned Public Prosecutor appearing for the State supported the Judgment s and orders of the Courts below and contended that there are concurrent findings of fact recorded by both the Courts below holding the petitioner guilty for the offences for which he has been convicted and sentenced and, therefore, he submits that no interference is called for in the revision. Public Prosecutor also submits that the case of PW. 12 Raju was on a different footing and in that case, the prosecution witnesses did not support the prosecution case and, therefore, he was acquitted by the trial Court, whereas in the present case, there are injured eye-witnesses who supported the prosecution case and their presence at the place of occurrence cannot be doubted. 5. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. 6. In the instant case, there are concurrent findings of fact recorded by both the Courts below holding the petitioner guilty for the offences charged with and, therefore, there is hardly any scope for re-appreciation of evidence in revision. However, for abundant caution, I have carefully gone through the statements of prosecution witnesses. 7. PW. 1 Babu Lal, the author of FIR, has not witnessed the occurrence. PW. 4 Humanan Ram is the witness to the site map Exhibit P-3 and Panchnama Exhibit P-4. PW. 5 Sita Ram and PW. 6 Bhanwar Lal are the witnesses to the Panchnama, who stated that Jagdish Prasad died to the injury on the head and they have proved the site map Exhibit P-4 and Panchnama Exhibit P-5 PW. 7 Dr. PW. 4 Humanan Ram is the witness to the site map Exhibit P-3 and Panchnama Exhibit P-4. PW. 5 Sita Ram and PW. 6 Bhanwar Lal are the witnesses to the Panchnama, who stated that Jagdish Prasad died to the injury on the head and they have proved the site map Exhibit P-4 and Panchnama Exhibit P-5 PW. 7 Dr. Sri Bhagwan Agrawal, who at the relevant time was the Medical Officer, Government Hospital, Molasar, conducted the autopsy on the dead body of Jagdish Prasad and opined that the cause of death of Jagdish Prasad was head injury and excessive bleeding. He has proved the post mortem report Exhibit P-14. 8. PW. 11 Hira Lal is the father of deceased Jagdish Prasad. He is not an eye-witness to the occurrence. 9. PW. 12 Raju is the eye-witness of the occurrence. At the relevant time, he was driving Jeep No. RJ 19-C-8244. He stated that while his jeep was near Baba Ki Dhani, at that time another jeep No. RJ 21-C-2580 came from Kuchaman side which was being driven rashly and negligently and with a great speed by the petitioner and hit the jeep driven by him, resulting thereby that he suffered injury on his hand and the occupant of the jeep Jagdish Prasad also suffered injuries and succumbed to the injuries on the spot. The jeep bearing No. 2580 was driven by the petitioner. PW. 12 has further stated that by seeing the jeep No. 2580 coming from the opposite site, he stopped his jeep on a side, yet the jeep driven by the petitioner hit his jeep. Though a separate case was registered against this witness also, however, he was acquitted in that case. 10. PW. 13 Ugam Kanwar was an occupant of the jeep driven by the petitioner. She stated that the jeep driven by the petitioner was having the great speed as if flying in air. At that time a jeep came from the opposite direction and hit the jeep and a person who was in that jeep succumbed to the injuries. In cross-examination, she stated that the jeep which was coming from the opposite direction was not seen by her. She further stated that she has not made statement to the police nor any investigation was made by the police from her. In cross-examination, she stated that the jeep which was coming from the opposite direction was not seen by her. She further stated that she has not made statement to the police nor any investigation was made by the police from her. She denied having given the statement Exhibit D-11 to the police and stated that she was sitting behind the driver on the rear seat. Thus, her statement neither supports the prosecution case nor the defence. 11. PW. 15 Sonu is an independent witness of the occurrence and was an occupant in the jeep in which deceased Jagdish Prasad and others were travelling. He stated that the jeep in which he was travelling was driven by one Raju. While the said jeep was near to Baba Ki Dhani, a jeep came from the opposite direction with a great speed and collided with the jeep driven by Raju, in which he was one of the occupants. A boy was sitting in the jeep in the front side and suffered injuries and thereafter succumbed to the injuries. He also suffered injury on his left hand elbow and the injury was grievous in nature. The jeep which came from the opposite direction with great speed was bearing No. RJ 21-C-2580 which petitioner Sher Mohammed was driving. He has identified the petitioner in the Court. He stated that thereafter he was taken to the hospital and underwent treatment. He was referred to higher centre i.e., Ajmer for treatment where he underwent X-ray and treatment etc. He also stated that between him and Raju, there was no compromise, though he was a witness in the case against Raju also. In cross-examination, he stated that he was sitting on the seat facing each other and having view on the road and, therefore, he could see the accident. He categorically denied that the accident was due to negligent driving of the jeep by Raju. He further stated that the jeep driven by Raju, in which he was travelling, was stopped by him on seeing the jeep coming from the opposite direction driven by the petitioner. However, he further stated that Raju did not stop the jeep completely but it was slowed down and stated that it was moving very slowly. He further stated that the jeep driven by Raju, in which he was travelling, was stopped by him on seeing the jeep coming from the opposite direction driven by the petitioner. However, he further stated that Raju did not stop the jeep completely but it was slowed down and stated that it was moving very slowly. At that time the speed of the jeep driven by Raju was 10 to 15 KM/H, whereas the speed of the jeep driven by the petitioner was 70 to 80 KM/H. 12. The petitioner himself appeared as DW.1 and stated that he was driving the jeep bearing No. RJ 21-C-2580. However, the accident occurred because of the rash and negligent driving of the another jeep driven by Raju. He admitted in the cross-examination that the person sitting in the jeep driven by Raju succumbed to the injuries. 13. The site map Exhibit P-2 also clearly goes to show that the jeep driven by PW. 12 Raju, in which deceased Jagdish Prasad and injured PW. 15 Sonu were travelling, was on the extreme left side of the road which is the correct side of that jeep where the accident said to have taken place and after hitting the jeep driven by Raju, the Jeep driven by the petitioner covered a distance of about 150 feet and thereafter it could be stopped on the road side. The witnesses to the site map noticed above also stated that the jeep driven by the petitioner was found a distance of 150 feet from the place of the accident. This, clearly goes to show that the jeep driven by the petitioner was having great speed and it was negligently driven on the wrong side of the road and hit the jeep which was being driven by Raju on the correct side of the road. The statements of witnesses PW. 12 Raju and PW. 15 Sonu find fully corroborated from the witnesses of the site map Exhibit P-2. 14. On close scrutiny of the statements of PW. 12 Raju and PW. 15 Sonu, who is an independent eye-witness and injured in the accident, it has been established beyond reasonable doubt that at the relevant time, the jeep driven by the petitioner was at a great speed of 70 to 80 KM/H and it was being driven negligently, as a result of which it hit the jeep driven by PW. 15 Sonu, who is an independent eye-witness and injured in the accident, it has been established beyond reasonable doubt that at the relevant time, the jeep driven by the petitioner was at a great speed of 70 to 80 KM/H and it was being driven negligently, as a result of which it hit the jeep driven by PW. 12 Raju, which according to PW. 12 Raju and PW. 15 Sonu was slowed down and was moving at the speed of 10 to 15 KM/H on its correct side, as a result of which deceased Jagdish Prasad suffered injuries and succumbed to the injuries and PW. 15 Sonu suffered grievous injury. 15. Keeping in view the evidence noticed above, in my view, the conclusion of the trial Court convicting the petitioner for the offences notice above is based on sound and proper appreciation of evidence. So also, the Appellate Court was justified in affirming the conviction of the petitioner on re-appreciation of the evidence available on record. 16. So far as contention of the learned Counsel for the petitioner regarding not granting the benefit of Section 360 of the Code of the petitioner is concerned, in Dalbir Singh vs. State of Haryana, 2000 (5) SCC 82, the Honble Supreme Court has held as under:-“Bearing in mind the galloping trend in road accident in India and the devastating consequences visiting the victims and their families, criminal Court cannot treat the nature of the offence under Section 304-A, IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or 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 an 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.” 17. In view of the law laid down by the Honble Supreme Court in Dalbir Singhs case (Supra), the learned trial Court was justified in not extending the benefit of Section 360 of the Code to the petitioner. 18. So far as contention of the learned Counsel for the petitioner on the point of quantum of sentence is concerned, the sentence awarded by the trial Court and affirmed by the Appellate Court is maximum sentence awardable and, therefore, in peculiar facts and circumstances of the case, appears to be excessive. Having regard to the fact that though the jeep driven by the petitioner was rash and negligent and went on the wrong side of the road and hit the jeep coming from opposite direction, but some of the witnesses like Ugam Kanwar, though could not withstand in cross-examination, stated that the jeep driven by Raju was also at a speed and the fact that the petitioner has already undergone the imprisonment for about 5 months, in my view, the ends of justice would be met if , while maintaining the conviction and sentence of fine, the substantive sentence of imprisonment is reduced to the period of one year. 19. Consequently, the revision petition is partly allowed. The conviction of the petitioner for the offences under Sections 279, 337 and 304-A, IPC as also the sentence of fine, are maintained. However, the substantive sentence of imprisonment under Section 304-A, IPC is reduced to one years imprisonment. The application for suspension of sentence stands disposed of .