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2009 DIGILAW 548 (PNJ)

State Of Haryana v. Om Parkash

2009-03-21

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal has been filed by the State of Haryana for the enhancement of sentence, against the judgement dated 05.07.91 rendered by the Court of Additional Sessions Judge. Faridabad, vide which, it partly accepted the appeal, maintaining the conviction and releasing the appellant, on probation of good conduct as also granting compensation in the sum of Rs. 8000/-, against the judgement of conviction and the order of sentence dated 21.03.91, rendered by the Court of Judicial Magistrate 1st Class, Faridabad, vide which, it convicted the accused, for the offences, punishable under Sections 279 and 304-A of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of 2 months and to pay a fine of Rs. 250/-, in default, to further undergo rigorous imprisonment for a period of 25 days for the offence, punishable under Section 279 of the Indian Penal Code, and further sentenced him to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for a period of 2 months, for the offence, punishable under Section 304-A of the Indian Penal Code, at the same time, directing that the substantive sentences, shall run concurrently. 2. The facts, in brief, are that on 31.10.86, at about 7.30 AM, Ravi Shanker, complainant, and Raja Ram, after their duty was over, were coming back from the factory on their bicycles. Ravi Shanker was ahead of Raja Ram, at a distance of about 10/20 steps. They were going on the left side of the road. At about 8.15 AM, bus bearing No. 996 UHI of Idgah Depot, Agra, struck against the bicycle of Raja Ram, from behind, being driven in a rash and negligent manner. Due to this, Raja Ram, fell down alongwith the bicycle, on the road, and was crushed under the front wheel ofthe bus. He died atthe spot. On the basis of the statement of Ravi Shanker, the first information report, was recorded. The Investigating . Officer prepared the site plan. He took the bus and bicycle into possession, from the spot. The dead-body of Raja Ram, was sent for post-mortem examination. The accused was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Officer prepared the site plan. He took the bus and bicycle into possession, from the spot. The dead-body of Raja Ram, was sent for post-mortem examination. The accused was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279 and 304-A of the Indian Penal Code, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Ravi Shanker, complainant (PW1), Vijay Kumar (PW2), Rajinder Parshad (PW3), Madan Lai Sethi, Photographer (PW4), Chanderpal, Head Constable (PW5), Rajinder Singh, Head Constable (PW6), Lallan Tiwari (PW7). Ram Pal (PW8), Head Constable Anup Singh (PW9), and Raghuber Singh (PW10).. The prosecution, however, failed to conclude its evidence, despite availing of a number of opportunities. Accordingly, its evidence was closed, vide order dated 02.01.91. by the trial Court. 5. The statement ofthe accused under Section 313 Cr.P.C, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. No evidence, in defence, was produced by the accused. 6. After hearing the Counsel for the parties, and on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, an appeal, was filed by the appellant, which was partly accepted, as stated above. 8. Feeling aggrieved, the instant appeal, was filed by the State of Flaryana, for setting aside the order of the first Appellate Court, releasing the accused, on probation of good conduct, and awarding sentence to him. 9. I have heard the Counsel for the parties, and have gone through the evidence and record ofthe case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that the death of a young man, aged about 26/27 years, as per the post-mortem report, took place, on account of the rash or negligent driving of the bus, by the accused and, therefore, it was not a fit case, in which, he deserved to be released on probation of good conduct by the first Appellate Court. He further submitted that it was a fit case, in which, deterrent punishment should have been awarded to the accused by the first Appellate Court, but it failed to do so, and released him on probation of good conduct, without any reason. He further submitted that there was no exceptional circumstance, on record, to show that the accused wits entitled to be released on probation of good conduct. 11. On the other hand, the Counsel for the respondent, submitted that the accident took place on 31.10.86, and now it is 2009. She further submitted that the respondent has been facing the criminal proceedings for the last more than 22 years and, therefore, no ground for awarding him substantive sentence, after setting aside the order of probation, passed by the first Appellate Court, is made out. In the alternative, she prayed that mercy be shown to the respondent, in the matter of awarding sentence. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, I am of the considered opinion, that the first Appellate Court, was completely wrong, in setting aside the order of substantive sentence, passed by the trial Court, and releasing the accused, on probation of good conduct. The first Appellate Court, in my opinion, acted in an extremely insensitive manner, by releasing the accused, on probation of good conduct. It did not take into consideration the factum, that a young man of about 26/27 years of age, who had not seen the life, in its full circle, and may have lived up to 60 years or more than that, had died, on account of the rash or negligent driving of the bus, by the accused. The mere fact that the accused had been facing the criminal proceedings for the last 5 years, when the appeal was decided, and was the first offender, did not mean that he should have been granted probation, in such a heinous crime. 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 the offence, under Section 304-A IPC, as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. 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 the 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 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 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 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. The circumstances of the case, and the nature of offences, did not call for any expediency, to release the accused on probation of good conduct. In Dalbir Singh v. State of Haryana 2000(2) RCR (Criminal) 816 while repelling the contention of the Counsel for the appellant, for grant of probation to the appellant, for the offences punishable under Sections 304-A and 279 IPC, it was held by the Apex Court, that the Court could not treat the nature of offence, under Section 304-A IPC, as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. It was also observed by the Apex Court, that one of the most effective ways of keeping such drivers, under mental vigil, is to maintain deterrent element, in sentencing sphere. It was also observed by the Apex Court, that one of the most effective ways of keeping such drivers, under mental vigil, is to maintain deterrent element, in sentencing sphere. Any latitude, shown to them, in that sphere, would tempt them to make driving frivolous and frolic. When the first Appellate Court, came to the definite conclusion, that the accused was guilty of rash or negligent driving, as a result whereof, the accident took place, resulting into the death of Raja Ram, a young man of about 26/27 years, it should not have shown insensitiv- ity, in the matter of awarding sentence and releasing him on probation of good conduct. The order of probation is, thus, liable to be set aside. The submission of the Counsel for the appellant, is, thus, accepted. 13. The mere fact that the respondent has been facing the criminal proceedings for the last more than 22 years, in itself, is not sufficient to put a seal of approval, on the judgment of the first Appellate Court, vide which he was released on probation of good conduct. The mere fact that the respondent/accused has been for a long number of years, facing the criminal proceedings, in itself, cannot be said to be a sufficient ground, to take a lenient view, in the master of award of sentence to him, for the offence punishable under Section 304-A IPC. Under these circumstances, the submission of the Counsel for the respondent, being without merit, must fail, and the same stands rejected. 14. For the reasons, recorded above, the appeal is partly accepted, in the manner, that the judgment of conviction is maintained. The order releasing the respondent/accused on probation, and awarding compensation, rendered by the first Appellate Court, is set aside, and the order of sentence of the trial Court, is restored. Both the substantive sentences shall run con-currently. 15. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment forthwith, and submit compliance report, within a period of two months, from the date of receipt of a certified copy thereof. 16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is sent immediately thereafter, to this Court. 17. 16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is sent immediately thereafter, to this Court. 17. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not for further action.