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2010 DIGILAW 76 (CHH)

Banshilal v. State of Madhya Pradesh

2010-03-08

T.P.SHARMA

body2010
ORDER 1. By this revision petition, the applicant has challenged the legality & propriety of the appellate judgment dated 29.1.1996 passed by the Sessions Judge, Raipur, in Criminal Appeal No.33/90, affirming the judgment of conviction & order of sentence dated 3.2.1990 passed by the Judicial Magistrate First Class, Raipur, in Criminal Case No.947/89, whereby & whereunder learned Judicial Magistrate First Class after holding the applicant guilty for causing death by rash and negligent act of Bhauram @ Sadhuram, convicted under Section 304A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for two months. 2. Judgment is challenged on the ground that the trial Court has failed to exercise the jurisdiction vested on it by not considering unchallenged statements/evidence of the defence witnesses and thereby committed illegality. 3. Brief facts necessary for disposal of this revision petition are that according to the case of the prosecution, on 15.9.86 at about 6 a.m., the applicant was driving the truck bearing registration number M.P.N.-5292 rashly and negligently and dashed to hotel and deceased Bhauram @ Sadhuram, who was present in the hotel and caused his death. Lakhanlal (PW-1) immediately lodged the F.I.R. vide Ex.P/1. Merg intimation was also recorded vide Ex.P/8. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/9, inquest over the dead body of the deceased was prepared vide Ex.P/2. Dead body of the deceased was sent to Government Hospital, Rajim vide Ex.P/4A. Autopsy was conducted by Dr.Badri Vishal Gupta (PW-5) vide Ex.P/4 and found fracture of scalp bone, ribs and other injuries. Spot map was prepared by patwari vide Ex.P/5. Truck loaded with cement and other documents including driving licence of the applicant were seized vide Ex.P/7. Vehicle was examined vide Ex.P/11 and excel was found broken. 4. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short `the Code') and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur. 5. In order to prove the guilt of the applicant, the prosecution has examined as many as 10 witnesses. 4. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short `the Code') and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur. 5. In order to prove the guilt of the applicant, the prosecution has examined as many as 10 witnesses. Accused was also examined under Section 313 of the Code where he denied the circumstances appearing against him and took the specific defence that at the time of accident, he was not driving the truck and he has been falsely implicated in the crime in question. He has also examined defence witnesses Ramkumar Verma (DW-1) and Yado Ram (DW-2) who have deposed in their evidence that at the time of accident some other person was driving the vehicle. The applicant along with Ramkumar Verma (DW-1) was sitting on cabin of the truck and after accident, driver of the truck fled from the spot. Persons gathered on the spot were caught hold the present applicant on suspicion that he was driving the vehicle. 6. After providing opportunity of hearing to the parties, learned Judicial Magistrate First Class has convicted and sentenced the applicant as aforementioned. While dismissing the appeal, learned Sessions Judge, Raipur affirmed the conviction & sentence of the applicant vide judgment impugned. 7. I have heard learned counsel for the parties, perused the judgment impugned and records of the Courts below. 8. Learned counsel for the applicant vehemently argued that the prosecution was under obligation to prove its case beyond all shadow of doubt and the Court was also under obligation to consider the evidence of the applicant who has specifically taken the defence that at the time of accident he was not driving the vehicle and some other person was driving the vehicle who fled from the spot. The applicant has examined Ramkumar Verma (DW-1) and Yado Ram (DW-2) whose evidence are unchallenged in their cross-examinations by the prosecution. The evidence of the defence witnesses are worth of credence and cannot be lightly a brushed. Learned counsel further argued that the applicant is facing trial since 1986 for more than 24 years. He was in custody since 16.9.86 to 22.9.86 for about 6 days during trial and after judgment of the appellate Court dated 29.1.1996 at least till 6.2.96 for about 8 days, thereby he was in custody for about 15 days. Learned counsel further argued that the applicant is facing trial since 1986 for more than 24 years. He was in custody since 16.9.86 to 22.9.86 for about 6 days during trial and after judgment of the appellate Court dated 29.1.1996 at least till 6.2.96 for about 8 days, thereby he was in custody for about 15 days. The applicant has also sentenced to pay a fine of Rs.2000/-. After lapse of 24 years, again sending the applicant in jail would not serve any useful purpose and period already undergone and fine amount would serve the purpose of criminal justice. 9. On the other hand, learned State counsel supported the judgment impugned and argued that the applicant was the person who was driving the vehicle at the time of accident. He has caused death of the person who was present in the hotel. The circumstance in which the accident occurred clearly shows that the applicant was driving the vehicle rashly and negligently and caused death of one person. Learned counsel further argued that after appreciating the evidence available on record, the trial Court has rightly convicted and sentenced the applicant as aforementioned and the trial Court has neither exceeded the jurisdiction vested on it and not failed to exercise the jurisdiction vested on it. 10. This is a criminal revision after dismissal of criminal appeal. In exercise of revisional jurisdiction, the concurrent findings of two Courts below are not liable to be set aside unless grave miscarriage of justice is found. 11. In order to establish guilt against the accused/applicant, the prosecution is required to prove all essential ingredients of the offence beyond all reasonable doubt. In case of offence punishable under Section 304A of the Indian Penal Code, the following conditions are essential conditions required to establish, i) There must be death of a person in question, ii) The accused must have caused such a death, iii) That such act of the accused was rash and negligent and that it did not amount to culpable homicide. 12. In the present case, death of the deceased as a result of motor accident has not been substantially disputed by the applicant, on the other hand, also established by the evidence of Lakhanlal (PW-1), F.I.R. Ex.P/1, merg intimation Ex.P/8, evidence of Dr.Badri Vishal Gupta (PW-5) and autopsy report Ex.P/4. 13. 12. In the present case, death of the deceased as a result of motor accident has not been substantially disputed by the applicant, on the other hand, also established by the evidence of Lakhanlal (PW-1), F.I.R. Ex.P/1, merg intimation Ex.P/8, evidence of Dr.Badri Vishal Gupta (PW-5) and autopsy report Ex.P/4. 13. As regards the question of causing death of deceased Bhauram by rash and negligent act of the applicant is concerned, Khorbahra (PW-4) has specifically deposed in his evidence that at the time of accident he was taking tea in the hotel of Ramchandra along with deceased Bhauram, at that time truck came towards Rajim. Speed of the truck was high, he entered inside the hotel and Bhauram also rushed, Bhauram crushed down by the truck which was driven by the applicant and thereafter, the applicant left the truck and rushed. Bhauram was dashed by the truck and died on the spot is also not disputed by the appellant and also established by the evidence of Lakhanlal (PW-1) and Meghnath Sahu (PW-2). Khorbahra (PW-4) has specifically deposed that the applicant was driving the truck and he left the truck and fled from the spot. Chandan Prasad Dixit (PW-9) has deposed in his evidence that he has seized the truck and papers of the truck from the accused vide Ex.P/6 which has been supported by the evidence of Kishun (PW-8) vide Ex.P/7. Driving licence of the applicant was also seized. 14. By adducing defence witnesses Ramkumar Verma (DW-1) and Yado Ram (DW-2), the applicant has tried to establish that at the time of accident, he was sitting on cabin of the truck and some other person was driving the vehicle, who fled after the accident and he was caught hold by the persons gathered at the place of accident. Ramkumar Verma (DW-1) has deposed in his evidence that he was sitting on cabin with the applicant and he was going to Rajim from Bhilai. After accident the driver of the truck fled and he along with the applicant got down from the truck, then persons present there were caught hold the applicant. He has also deposed that he tried to explain that the applicant was not driving the vehicle but, nobody was prepared to hear. After accident the driver of the truck fled and he along with the applicant got down from the truck, then persons present there were caught hold the applicant. He has also deposed that he tried to explain that the applicant was not driving the vehicle but, nobody was prepared to hear. The prosecution has not asked anything to this witness, but while answering the Court's question, this witness has deposed that he has not lodged report to police or higher officers relating to this fact and even he has not intimated to the Court. Yado Ram (DW-2) has deposed in his evidence that at the time of accident he was taking tea in the hotel of Ramchandra, at that time, truck came, accused was sitting on cabin. After accident when accused came down he was caught hold by the persons gathered at the place of accident and they assaulted him. He has also stated that he tried to explain the persons that the applicant was not driving the vehicle, but nobody was prepared to hear, then he went in his duty. While answering the Court's question, he has admitted that he has not lodged report or made any complaint before the Court or other authorities. According to the evidence of these two witnesses, they were not known to the applicant. After accident, persons present there were caught hold the applicant and took them to police station, but these persons have not accompanied the accused. Ramkumar Verma (DW-1) and Yado Ram (DW-2) have not stated anything to show that after accident they were having opportunity to meet with the applicant and tried to explain the situation or accused met them for calling them as a defence witnesses. They have deposed first time on 22.1.90 after lapse of 4 years. The defence has not explained that how these two persons have witnessed the accident and how the applicant came to know their addresses for calling them as defence witnesses. 15. Defence has cross-examined investigating officer Chandan Prasad Dixit (PW-9) at length. In para 12 of his cross- examination, he has admitted that persons present on the spot were assaulting the applicant and the applicant was telling them that he is not driver but he is conductor. The applicant told this witness in low sound that he was driver, then he took him safely to the police station. In para 12 of his cross- examination, he has admitted that persons present on the spot were assaulting the applicant and the applicant was telling them that he is not driver but he is conductor. The applicant told this witness in low sound that he was driver, then he took him safely to the police station. It shows that the applicant was driving the vehicle and to save himself from assault made by the persons and in danger of his life, he was introduced himself as a conductor. Ex.P/7 documents relating to the vehicle including driving licence of the applicant. If the applicant was not driver of the vehicle, then there was no propriety of seizure of documents relating to the vehicle from the applicant. The applicant has not explained that how he was in possession of the documents of the vehicle. 16. According to the case of the prosecution, the truck dashed the deceased who was present in the hotel shows that driver of the vehicle was not driving the vehicle safely and was driving the vehicle negligently. This was not the case of dash of two vehicles, but the vehicle has dashed the deceased who was not standing in the road, but was standing in the hotel which shows that the applicant was negligent. 17. Maxim res ipsa loquitur is applicable in case of Section 304-A of the Indian Penal Code. In the matter of Thakur Singh v. State of Punjab1, 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 of 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. 18. In the present case, the applicant, who was driving the vehicle, has dashed deceased Bhauram who was standing in the hotel by the truck shows that he was driving the vehicle rashly and negligently and thereby caused death of deceased Bhauram. 19. 18. In the present case, the applicant, who was driving the vehicle, has dashed deceased Bhauram who was standing in the hotel by the truck shows that he was driving the vehicle rashly and negligently and thereby caused death of deceased Bhauram. 19. Theory of deterrence (Penology) was dealt by the Apex Court in the matter of Dalbir Singh v. State of Haryana2, in which it has held that 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. Para 13 of the said judgment reads as under: "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 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 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. 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. In the matter of Thakur Singh (supra), after discussing the case of Dalbir Singh (supra), the Apex Court has held that conviction under section 304-A of the IPC cannot escape from a jail sentence. Para 4 of the said judgment reads as under: "4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part." 20. While dealing with the question of sentence in case of rash and negligent driving, the Apex Court in the matter of State of Karnataka v. Sharanappa Basanagouda Aregoudar3 has held that the sentence imposed by the Courts below 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:- "7. 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 undergo the sentence imposed by the trial Magistrate and affirmed by the appellate Court. Consequently, we direct that for the offence punishable under Section 304-A, the respondent be taken into custody to undergo simple imprisonment for six months. As regards the offences under Sections 279, 337 and 338 IPC, no separate sentence has been awarded by the trail Magistrate. The direction of the trial Magistrate is maintained." 21. In the light of the aforesaid dictum of the Apex Court, I do not find any illegality in convicting the accused and maintaining his conviction under Section 304A of the Indian Penal Code by the Courts below. 22. The direction of the trial Magistrate is maintained." 21. In the light of the aforesaid dictum of the Apex Court, I do not find any illegality in convicting the accused and maintaining his conviction under Section 304A of the Indian Penal Code by the Courts below. 22. Considering the pendency of criminal case and dictum laid down by the Apex Court in the matter of State of Karnataka (supra), the revision petition is partly allowed. Conviction of the applicant is hereby maintained. However, instead of rigorous imprisonment for one year and to pay a fine of Rs.2000/-, he is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for two months. The applicant is on bail, he shall surrender himself immediately before the Judicial Magistrate First Class, Raipur for serving the remaining sentence.