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2009 DIGILAW 251 (CHH)

CHARKU SINGH ALIAS BIHARI SINGH v. STATE OF C. G.

2009-09-22

T.P.SHARMA

body2009
ORAL ORDER 1. This revision is directed against the judgment dated 17.6.2009 passed by the Second Additional Sessions Judge (F.T.C.), Manendragarh, in Criminal. Appeal No.1 02/2007 affirming the judgment of conviction and order of sentence dated 6,12.2007 passed by the Judicial Magistrate First Class, Manendragarh, Camp Court, Janakpur, in Criminal Case No. 131/2003 whereby and where under learned Judicial Magistrate First Class after holding the applicant guilty for the offence of causing death by rash and negligent act and convicted under Section 304A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for 15 days. 2. The judgment is challenged on the ground without there being any iota of evidence, the Courts below have convicted and sentenced the applicant as aforementioned and thereby committed illegality. 3. I have heard learned counsel for the parties and perused the judgment impugned and records of the Courts below. 4. Learned counsel for the applicant submits that death of Rarnnaresh as a result of motor accident is not disputed and at the time of such accident, the applicant was driving the vehicle (truck), but in order to prove the offence punishable under Section 304A of the Indian Penal Code the prosecution is required to prove the factum of rash and negligent act causing death of a person. Only death of a person by motor accident is not sufficient to prove the factum of rash and negligent act. Learned counsel further submits that Rajendra Singh (PW -1) has deposed that the applicant has caused accident while he was driving the truck and injured Ramnaresh who ultimately died. Gore Lal (PW-2) and Meena Bai (PW-4) have also supported the evidence of Rajendra Singh (PW -1), but Rajendra Singh has deposed in para 5 of cross-examination that while Ramnaresh was going on the road, truck came and caused injury to him. The applicant was driving the offending vehicle. Learned counsel also submits that in the absence of evidence of rash and negligent act, the applicant is not liable for commission of any offence. 5. On the other hand judgment impugned is supported on behalf of counsel for the respondent/State and submits that the applicant was driving the vehicle. He was under obligation to drive the vehicle with care and caution. 5. On the other hand judgment impugned is supported on behalf of counsel for the respondent/State and submits that the applicant was driving the vehicle. He was under obligation to drive the vehicle with care and caution. Learned counsel further submits that this is not a case where the deceased all of a sudden came in front of the vehicle or it was not possible for the applicant to see a person who was moving in the road. Even it is found that the deceased was moving between the road, it was duty of the applicant to drive the vehicle safely and cautiously, but neither the applicant has suggested any witness relating to the aforesaid fact or has adduced any defence evidence to show the fact that the accident occurred as vis-major. 6. In order to appreciate the contentions of the parties, I have examined the evidence available on record. Eyewitness Rajendra Singh (PW-1) has specifically deposed that the deceased Rarmnaresh was standing beside the rood. The applicant was driving the vehicle rashly and caused injuries resulting into death of Ramnaresh. He has admitted in para 5 of his cross-examination that his brother was going on the road, but nothing has been suggested to this witness that whether his brother was walking in the middle portion of the road or he all of a sudden tried to cross the road or suddenly came before the truck and it was impossible for the applicant to control the vehicle. 7. Rash and negligent driving is a question of fact and it depends upon the facts of particular cases. If a man was walking in a road, there is no occasion to cause accident by driving the vehicle and accused was in a position to drive the vehicle safely and to save a person. In case of safe and cautious driving, there was no occasion to cause injury to the deceased by an accident. 8. Undisputed facts of the case reveals that the applicant was driving the vehicle (tnlck) beside the village. The place of accident was not free road. The applicant was required to drive the vehicle with care and caution to avoid any accident. 9. Maxim res ipsa loquitur is applicable in case of Section 304A of the Indian Penal Code. In the matter of Thakur Singh Vs. The place of accident was not free road. The applicant was required to drive the vehicle with care and caution to avoid any accident. 9. Maxim res ipsa loquitur is applicable in case of Section 304A of the Indian Penal Code. In the matter of Thakur Singh Vs. State of Punjab-1, the Apex Court has held that in the facts of this case the doctrine of res ipsa loquitur came into the play and the onus of proof shifted to the person who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. Since the accused had not succeeded in showing that the accident happened due to causes other than negligence on his part, his conviction could not be faulted. 1. (2003) 9 SCC 208 10. In case of cautious driving, there was no occasion of the accident. The applicant has not explained any other mitigating circumstances. The evidence adduced on behalf of the prosecution is sufficient to prove that the applicant was negligent while driving the vehicle and thereby caused death of one person. 11. As regards the question of sentence is concerned, by negligent act the applicant has caused death of a person. While dealing with the question of sentence in case of rash and negligent driving, the Hon'ble Apex Court in the case of State of Karnataka Vs. Sharanappa Basanagouda Aregoudar-2 has held that the sentence imposed by the courts should have a deterrent effect on potential wrongdoers and it should be commensurate with the seriousness of the offence. Para 7 of the said judgment reads as under : 2. (2002) 3 SCC 738 "In the facts and circumstances of the case, we are inclined to interfere with the judgment of the learned Single Judge and hold that the respondent is liable to lli1dergo the sentence imposed by the trial Magistrate and affirmed by the appellate court. Consequently, we direct that for tl1e offence punishable under Section 304-A, the respondent be taken into custody to undergo simple imprisonment for six months. As regards offences under Sections 279, 337 and 338 IPC, no separate sentence has been awarded by the trial Magistrate. The direction of the trial Magistrate is maintained." 12. Taking into consideration the death of young person, lenient view is not warranted. As regards offences under Sections 279, 337 and 338 IPC, no separate sentence has been awarded by the trial Magistrate. The direction of the trial Magistrate is maintained." 12. Taking into consideration the death of young person, lenient view is not warranted. The trial court as well as the appellate court after taking into consideration the material available on record, convicted the applicant for the offence punishable under Section 304A of the Indian Penal Code. Conviction is based on reliable evidence. I do not find any illegality or infirmity in the judgments of the courts below. 13. Consequently, revision petition being devoid of merit is liable to be dismissed and it is hereby dismissed. Revision Dismissed.