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2009 DIGILAW 1947 (RAJ)

Nand Ram v. State of Rajasthan

2009-09-08

H.R.PANWAR

body2009
JUDGMENT 1. - This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, 'the Code" hereinafter) is directed against the judgment and order dated 31.3.1994 passed by the Sessions Judge, Udaipur (for short, "the Appellate Court" hereinafter) in Criminal Appeal No. 123/1993, whereby the appeal filed by the petitioner against the judgment and order dated 09.12.1993 passed by the Additional Chief Judicial Magistrate, Vallabhnagar, district Udaipur (for short, "the trial Court" hereinafter) in Criminal Case No. 426/1986, was dismissed and the judgment and order of the trial Court convicting and sentencing the petitioner for the offences under Sections 279, 337, 338 and 304A of the Indian Penal Code was maintained. 2. I have heard learned counsel for the petitioner and the Public Prosecutor. Carefully gone through the judgments and orders passed by both the courts below, as also the record of the trial Court. 3. It is contended by the learned counsel for the petitioner that the occurrence is of the year 1982 and almost 27 years have elapsed from the date of the occurrence; the petitioner has suffered the imprisonment for one month during pendency of the revision petition and, therefore, without challenging the conviction of the petitioner, submitted that the sentence awarded to the petitioner may be reduced to the period of imprisonment already undergone by the petitioner. Learned counsel for the petitioner has relied on the decisions of the Hon'ble Supreme Court in A.P. Raju v. State of Orissa, 1995 Supp. (2) SCC 385 ; Jagdish Chander v. State of Delhi, (1973) 2 SCC 203 ; and Nand Ballabh Pant v. State (Union Territory of Delhi), (1976) 4 SCC 512 . 4. Learned Public Prosecutor has supported the impugned judgment and order and contended that due to recklessness and negligence of the petitioner while driving the truck, the life of two persons have been taken away and the another person got injured; the trial Court has already taken a lenient view in awarding the lesser sentence of six months only and that is how the Appellate Court did not interfere with the judgment and order of the trial Court and as such further reduction in the sentence is not warranted. 5. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 6. 5. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 6. On a careful perusal of the record of the trial Court, it appears that PW 4 Nand Lal S/o Bagad Ram lodged a report with the Police Station, Kheroda on 29.7.1982 stating therein that at about 10:00 A.M., on collision of a truck bearing No. RSQ 4839 with a scooter bearing No. RSY 3172, two persons suffered injuries and died on the spot and, therefore, the matter may be investigated. The police ensued the investigation and prima facie found that it was the petitioner, who drove the truck rashly and negligently and hit the scooter No. RSY 3172 resulting thereby that two persons succumbed to the injuries instantaneously and the third person suffered injuries. The site map and site inspection note were prepared, which have been proved by the investigating officer. At the time of inspection of the site, it appeared that the said truck driven by the petitioner hit the scooter and dragged it for about ten feet and thereafter the truck could be stopped after covering the distance of ten to twelve feet. On appreciation of the evidence, the trial court came to the conclusion that due to recklessness, rash and negligent driving of the truck by the petitioner, two persons, namely Rajendra and Hemant succumbed to the injuries instantaneous. On appeal, the Appellate Court did not find any error or illegality in the judgment and order passed by the trial Court and affirmed the findings of the trial Court. In the circumstances, therefore, the learned counsel for the petitioner was justified in not challenging the conviction of the petitioner recorded by the trial court and maintained by the Appellate Court. 7. So far as the quantum of sentence is concerned, the judgment of the Appellate Court is dated 31.3.1994 and the sentence of the petitioner was suspended vide order dated 28.4.1994 and, thus, the petitioner remained in custody for a period of about one month. 8. In A.R Raju v. State of Orissa (supra), the occurrence took place almost 15 years earlier on 20.5.1979; the appellant therein was acquitted by the trial court on 13.3.1981. 8. In A.R Raju v. State of Orissa (supra), the occurrence took place almost 15 years earlier on 20.5.1979; the appellant therein was acquitted by the trial court on 13.3.1981. Thereafter he was convicted by the High Court and he filed Special Leave to Appeal and on 18.11.1985, the leave was granted and while staying the operation of the judgment, bail was also granted to the appellant therein by the order of the Hon'ble Supreme Court dated 18.11.1985. For last more than eight years, the appellant therein had been on the bail granted by the Apex Court. Taking in view all these factors, the Hon'ble Supreme Court held that the interest of justice would be met if instead of now sentencing the appellant therein to serve a term of imprisonment and sending him to prison again, the Hon'ble Supreme Court ordered his release under Section 360 Cr.P.C. on his entering into a bond with one surety to keep good conduct and be of good behaviour and keep peace for a period of one year from the date of execution of the bond and directed that the bond shall be executed by the appellant therein within one month. 9. In Jagdish Chander v. State of Delhi (supra), the Hon'ble Supreme Court observed as under "The more difficult question seems to be one of sentence in the present case. The accident took place on April 20, 1965, the trial Court convicted the appellant on April 30, 1966, sentencing him to rigorous imprisonment for 6 months and to a fine of Rs. 500/-. His appeal was dismissed by the Additional Sessions Judge on September 7, 1966, and his revision was disallowed on September 11, 1969. He was ordered to be released on bail by this Court on February 2, 1970. We are now in May, 1973. The criminal proceedings against the appellant have thus gone on since April, 1965, which means a little more than 8 years. The circumstances in which the collision between the truck and the appellant's scooter occurred seems prima facie to suggest that they (their drivers) were both to blame. Penalties designed to deter crime should be gauged so far as possible to the degree of social danger that is represented by the crime and its repetition. The circumstances in which the collision between the truck and the appellant's scooter occurred seems prima facie to suggest that they (their drivers) were both to blame. Penalties designed to deter crime should be gauged so far as possible to the degree of social danger that is represented by the crime and its repetition. To send the appellant back to jail to serve the sentence of 6 months after 8 years seems to us to be highly unjust for the kind of offence which has been upheld against him by the three courts below. It is unlikely to have any reformatory effect on him. Harassment of a criminal trial for more than 8 years and the expense which he must have incurred, in our opinion, cap legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time. The appellant is stated to have served out only three weeks of imprisonment but on a consideration of all the relevant circumstances of the case we think it would be just and proper to reduce the sentence of imprisonment to that already undergone but to increase the sentence of fine from Rs. 500 to 700. Out of the fine, if realised, Rs. 500 should be paid to the mother of the deceased child. We, however, cannot help expressing our grave concern over the inordinate delay in the disposal of criminal cases including appeals and revisions. If our criminal justice is to achieve its real purpose and if it is to inspire the confidence of the people generally, causes for such delays should be eliminated as early as practicable. Law's delays tend to turn justice sour. The appeal is allowed in part in the terms stated above." 10. In Nand Ballabh Pant v. State (Union Territory of Delhi) (supra), the sentence awarded to the appellant therein was for two months rigorous imprisonment and to pay fine of Rs. 500/-. The Hon'ble Supreme Court, having regard to the facts and circumstance of that case, held that the ends of justice would be met if the sentence of imprisonment is reduced from two months to one month's rigorous imprisonment and in lieu thereof, enhanced the sentence of fine from Rs. 500/- to Rs. 1000/-. 11. 500/-. The Hon'ble Supreme Court, having regard to the facts and circumstance of that case, held that the ends of justice would be met if the sentence of imprisonment is reduced from two months to one month's rigorous imprisonment and in lieu thereof, enhanced the sentence of fine from Rs. 500/- to Rs. 1000/-. 11. There are catena of recent decisions of the Hon'ble Supreme Court, wherein the Hon'ble Apex Court held that the quantum of sentence should commensurate with the act committed and more particularly for the offence under Section 304-A, IPC if from the evidence it is established that the act of a driver of a vehicle is rash and negligent then no lenient view be taken regarding the sentence. 12. In State of Rajasthan v. Dhool Singh, 2004(1) WLC (SC) Cri. 341 (2004) 12 SCC 546 , the High Court, while convicting the accused-respondent therein for an offence punishable under Section 304 Part II, IPC which has maximum sentence upto ten years thought it fit to impose the sentence already undergone without even applying the mind as to why it should be less than ten years or for that matter, what is the sentence already undergone. Hon'ble Supreme Court observed that such misplaced generosity on the part of the courts while imposing the sentence is seriously deprecated and held that the appellate or revisional courts reduce the sentence while maintaining the conviction to sentence already undergone without even noticing what is the period already undergone. There is a need for the court to apply its mind while imposing sentence. The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. 13. In Union of India v. Kuldeep Singh, 2004(1) WLC (SC) Cri. 356 : (2004) 2 SCC 590 , the trial Court imposed the maximum sentence provided for the offences under Sections 9-A, 25-A and Sections 9-A/25 read with Section 29 of the N.D.RS. Act, 1985. 13. In Union of India v. Kuldeep Singh, 2004(1) WLC (SC) Cri. 356 : (2004) 2 SCC 590 , the trial Court imposed the maximum sentence provided for the offences under Sections 9-A, 25-A and Sections 9-A/25 read with Section 29 of the N.D.RS. Act, 1985. On an appeal, the High Court considering the age of father of the accused therein and his family problems and accused being not a habitual offender, reduced the sentence, which has been held to be unjustified by the Hon'ble Apex Court by holding that such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance, but it is really inconsequential for a drug-trafficker and smuggler and the reasons given by the High Court to reduce the sentence have no foundation. It has further been held by the Hon'ble Apex Court that the High Court seems to have wholly misdirected itself not only as to the seriousness of the offences but also with reference to the relevant consideration which should weigh with the court in exercising its discretion. 14. In Prabhakarn v. State of Kerala, 2007(2) WLC (SC) Cri. 679 : AIR 2007 SC 2376 , the accused therein drove the vehicle rashly and negligently and despite being cautioned by the passengers and even raising both the hands by the children crossing the road, he did not stop the vehicle, as a result of which the bus ran over the head of a student, who succumbed thereof. The Apex Court held that when the factual scenario of the case is analysed, it is crystal clear that the appropriate conviction should be under Section 304-A and not Section 304 Part II, IPC and while altering the conviction from Section 304 Part II to Section 304-A, IPC and custodial sentence was reduced to the maximum sentence of two years and observed that it is for the legislature to provide for an appropriate sentence, but the statute provides for a maximum sentence of two years, awarded the maximum sentence of two years. 15. In State of M.P. v. Ghanshyam Singh, 2003(2) WLC (SC) Cri. 15. In State of M.P. v. Ghanshyam Singh, 2003(2) WLC (SC) Cri. 511 : AIR 2003 SC 319 , the Hon'ble Supreme Court held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. It has been observed by the Hon'ble Apex Court that proportion between crime and punishment is a goal respected in principle and in spite of errant notions, it remains a strong influence in the determination of sentence. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. The Hon'ble Supreme Court further observed that imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise and any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be result-wise counter-productive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. 16. Similar view has been taken by the Hon'ble Supreme Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691 . 17. In Siriya v. State of M.P., AIR 2008 SC 2314 , the Hon'ble Supreme Court held that while awarding appropriate sentence, it is the duty of the court to protect society from heinous and shocking crimes by passing appropriate sentence and observed that protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. 18. In Narain Mandal v. State of U.P., (2004) 7 SCC 257 , the Hon'ble Supreme Court held that the sentence awarded should be neither excessively harsh nor ridiculously low and the court should bearing in mind the principle of proportionality and the sentence should be based on the facts of a given case. 18. In Narain Mandal v. State of U.P., (2004) 7 SCC 257 , the Hon'ble Supreme Court held that the sentence awarded should be neither excessively harsh nor ridiculously low and the court should bearing in mind the principle of proportionality and the sentence should be based on the facts of a given case. Gravity of offence, manner of commission of crime, age and sex of the accused should be taken into account. 19. In State of M.P. v. Saleem, 2005(2) WLC (SC) Cri. 145 : (2005) 5 SCC 554 , the Hon'ble Supreme Court held that the court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". 20. In Shailesh Jasvantbhai v. State of Gujarat, 2006(1) WLC (SC) Cri. 310 : (2005) 2 SCC 359 , the Hon'ble Supreme Court held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". 21. In B. Nagabhushanam v. State of Karnatak, 2008(2) WLC (SC) Cri. 383 : (2008) 5 SCC 730 , a seven years child was killed due to rash and negligent driving of the bus by the appellant therein, who was awarded simple imprisonment for six months plus one month and fine of Rs. 1000/- plus Rs. 21. In B. Nagabhushanam v. State of Karnatak, 2008(2) WLC (SC) Cri. 383 : (2008) 5 SCC 730 , a seven years child was killed due to rash and negligent driving of the bus by the appellant therein, who was awarded simple imprisonment for six months plus one month and fine of Rs. 1000/- plus Rs. 500/- and the Hon'ble Apex Court held that six months' simple imprisonment and a direction to the appellant therein to pay a fine of Rs. 1000/- for commission of the offence punishable under Section 304-A, IPC and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 IPC cannot be said to be shocking. 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 and further observed that the driver 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. 22. Keeping in view the recent decisions of the Hon'ble Supreme Court and having regard to the facts and circumstances which clearly indicate that due to recklessness and negligence of the petitioner while driving the truck and hitting the scooter dragging the scooter to 10 to 12 feet and ultimately two persons succumbed to the injuries instantaneous, the sentence awarded to the petitioner, in any manner, cannot be said to be disproportionate to the accusation against the petitioner. On the contrary, the trial court has already taken a lenient view in awarding the sentence of six months' imprisonment. The decisions relied on by the learned counsel for the petitioner turn on their own facts. So far as the decision in A.R. Raju v. State of Orissa (supra) is concerned, it was the case where the trial court acquitted the accused-appellant therein. In the instant case, both the courts below concurrently found the petitioner guilty of the aforesaid offences. In this view of the matter, I do not find any merit in the revision petition. 23. The revision petition is dismissed. The petitioner is on bail and his bail bonds are cancelled. In the instant case, both the courts below concurrently found the petitioner guilty of the aforesaid offences. In this view of the matter, I do not find any merit in the revision petition. 23. The revision petition is dismissed. The petitioner is on bail and his bail bonds are cancelled. The petitioner shall surrender himself before the trial court for undergoing the remaining portion of the sentence. It will be open for the trial court to secure the presence of the petitioner by issuing a non-bailable warrant for serving out the remaining portion of the sentence awarded to the petitioner.Appeal dismissed - Principles of Penology stated vide paras 10-22. *******