Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 78 (CHH)

SURENDRA v. STATE OF M. P.

2011-02-25

T.P.SHARMA

body2011
ORDER 1. By this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') applicant has challenged the legality and propriety of the judgment dated 4/2/1999 passed by Second Additional Sessions Judge, Rajnandgaon in criminal appeal No. 46/98 affirming the judgment of conviction and modifying the order of sentence dated 20/4/1998 passed by Judicial Magistrate First Class, Rajnandgaon in criminal case No. 391/97 whereby and where under after holding the applicant guilty for the commission of offence punishable under Sections 279,337,338 & 304A of the Indian Penal Code and sentenced simple imprisonment for 6 months and fine of Rs. 500/-, simple imprisonment for 6 months and fine of Rs. 500/-, simple imprisonment for 6 months and fine of Rs. 500/- & simple imprisonment for 6 months and fine of Rs. 500/-, while maintaining the conviction and sentence under Sections 304-A, 337 & 338 of the Indian Penal Code Second Additional Sessions Judge, Rajnandgaon has modified and quashed the separate sentence of simple imprisonment for 6 months and fine of Rs. 500/- passed for offence punishable under Section 279 of the Indian Penal Code has been set-aside. 2. As per case of the prosecution, on 2717/1994 at about 9:00 A.M. present applicant was driving Mini Bus bearing registration No. MP-24-C/1602 in public place. While driving the vehicle rashly and negligently, he caused accident of Mini Bus near Bagdai Bridge resulting into death of Sonbai, Sukwarobai, Vandana & Beeju Nair, caused grievous injury to Arun Shukla, Mahesh & Ku. Pramila and simple injury to Jyoti, Sunita, Pravesh, Harish nkar, S.P. Govardhan, Dilip Kumar, Devkibai, Bhuvneshwar, Alka, Sharad & Afzal Khan. First Information Report was lodged vide Ex. P-44. Marg intimation was recorded. Autopsy of dead persons namely Sonbai, Sukwarobai, Vandana & Beeju Nair were conducted and injured witnesses were also examined by doctors. Damaged Mini Bus was seized vide Ex. P-I. Papers relating to vehicle i.e. Mini Bus was seized vide Ex. P-2. After completion of the investigation, charge sheet was filed before Chief Judicial Magistrate, Rajnandgaon, case was subsequently transferred to Judicial Magistrate First Class, Rajnandgaon. 3. Damaged Mini Bus was seized vide Ex. P-I. Papers relating to vehicle i.e. Mini Bus was seized vide Ex. P-2. After completion of the investigation, charge sheet was filed before Chief Judicial Magistrate, Rajnandgaon, case was subsequently transferred to Judicial Magistrate First Class, Rajnandgaon. 3. After providing an opportunity of hearing to the parties learned Judicial Magistrate First Class, Rajnandgaon convicted and sentenced the applicant as• aforementioned, same was challenged before the Second Additional Sessions Judge, Rajnandgaon, while maintaining the conviction and sentence for other offences Second Additional Sessions Judge, Rajnandgaon has quashed the separate sentence of simple imprisonment for 6 months and fine of Rs.500/under Section 279 of the Indian Penal Code. 4. Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashi Bhushan, Advocate for the applicant and Mr. Rakesh Kumar Jha, Dy. G.A. for the State/non-applicant are heard. 5. Judgment of both the Courts below and record of both the Courts below perused. 6. Learned counsel for the applicant vehemently argued that in the present case, prosecution has failed to prove rash and negligent act resulting into death of 4 persons, simple and grievous injury to other persons. Mere injury, death and accident are not offence punishable under Sections 279, 337, 338 & 304A of the Indian Penal Code unless it is coupled with rash and negligent act of the applicant. 7. Learned counsel for the applicant further argued that present applicant was driving the vehicle carefully and cautiously, he has not caused any accident and speed of Mini Bus is normal and accident took place as a result of vismajor therefore, applicant is not liable for commission of aforesaid offence. 8. Learned counsel for the applicant also argued that present applicant was in custody since 4/2/1999 till his release i.e. till 15/2/1999 for about 11 days. Applicant is facing trial since 1994 for about 16 years. Considering the mental agony the period already undergone would be sufficient sentence to the applicant. 9. On the other hand, learned counsel for the State/non-applicant opposed the criminal revision and argued that present applicant was driving Mini Bus rashly and negligently and by his rash and negligent act, he has caused homicidal death not amounting to murder of Sonbai, Sukwarobai, Vandana & Beeju Nair i.e. 4 persons, grievous injury to Arun Shukla, Mahesh & Ku. 9. On the other hand, learned counsel for the State/non-applicant opposed the criminal revision and argued that present applicant was driving Mini Bus rashly and negligently and by his rash and negligent act, he has caused homicidal death not amounting to murder of Sonbai, Sukwarobai, Vandana & Beeju Nair i.e. 4 persons, grievous injury to Arun Shukla, Mahesh & Ku. Pramila and simple injury to Jyoti, Sun ita, Pravesh, Harishankar, S.P. Govardhan, Dilip Kumar, Devkibai, Bhuvneshwar, Alka, Sharad & Afzal Khan. 10. Learned counsel for the State/non-applicant further argued that conviction is based on legal, credible and clinching evidence. Concurrent finding of facts of two Courts below are not required to be disturbed without any cogent reason. Finding of Courts below is not perverse and Court below has already taken lenient view. After all present applicant has caused death of 4 persons and caused injury to 14 persons. 11. This is a criminal revision after dismissal of criminal appeal. In exercise of revisional jurisdiction, the concurrent findings of two Courts below are liable to be set aside unless grave miscarriage of justice is found. 12. In order to establish the guilt against the applicant prosecution is required to prove the essential ingredients of the offence beyond all shadow of doubts and in case of offence punishable under Section 304A of the Indian Penal Code prosecution is required to establish the following ingredients:(i) Death of persons in question. (ii) Accused has caused such death. (iii) The act of accused was rash and negligent not amounting to culpable homicide. (iv) Likewise in order to establish the guilt of the applicant for the offence punishable under Sections 337 & 338 of the Indian Penal Code prosecution is required to prove the fact that by rash and negligent act of applicant, he has caused simple and grievous injury to injured persons by his negligent act 13. As per evidence adduced on behalf of the prosecution, present applicant was driving Mini Bus bearing registration No. MP-24-C/1602, on 27/ 7/1994 near Bagdai Bridge it was turtle. As a result of such accident 4 persons were died and other persons were injured. PW2 P.O. Kankariya, Advocate who was going to Ambagarh Chowki has collected the persons for help and succeeded in helping the injured persons. As a result of such accident 4 persons were died and other persons were injured. PW2 P.O. Kankariya, Advocate who was going to Ambagarh Chowki has collected the persons for help and succeeded in helping the injured persons. At that time applicant was driving the vehicle and he has seen the applicant who was driving the vehicle while crossing his scooter. Factum of accident is well corroborated by the evidence of PW3 Smt. P.M. Dubey, PW4 Ku. Ilara Jhor, PW5 Ku. Alka Kaushik, PW6 Ku. Pramila Bansod, PW7 N.E. Mathew, PW8 Satyendra Kumar, PW9 Sarvesh Kumar Mishra and other witnesses. As per evidence of PW11 L.N. Mishra, there was no any mechanical fault. PW 12 Dr. G.L. Saraf conducted autopsy and examined injured persons. PW13 Dr. A.K. Gupta has also examined injured persons. 14. As per statement of aforesaid witnesses, applicant was driving the vehicle, when vehicle reached near Bagdai Bridge accident took place and Mini Bus was turtled not as a result of some collusion with any other vehicle or dashing by any vehicle. Accident was not as a result of mechanical fault. In case of safe driving of Mini Bus in which passenger were sitting there was no occasion for such accident, this itself shows that applicant was rashly and negligently driving the vehicle. 15. While dealing with the question of applicability of maxim res ipsa loquitur in case under Section 304A of the Indian Penal Code, in the matter of Thakur Singh Vs. State of Punjab 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. ' 16. Evidence adduced on behalf of the prosecution is sufficient to establish the fact that present applicant was rashly and negligently driving the vehicle and caused accident resulting into death of aforesaid persons and simple & grievous injury to aforesaid persons. ' 16. Evidence adduced on behalf of the prosecution is sufficient to establish the fact that present applicant was rashly and negligently driving the vehicle and caused accident resulting into death of aforesaid persons and simple & grievous injury to aforesaid persons. Finding of both the Courts below relating to conviction of the applicant under Sections 304A, 279, 337 & 338 of the Indian Penal Code are based on credible and clinching evidence sustainable under the law. 17. As regard the question of sentence is concerned, theory of deterrence (Penology) was dealt by the Apex Court in the matter of Dalbir Singh Vs. State of Haryana, 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 304A 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. 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." 18. In the matter of Thakur Singh I (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." 19. While dealing with the question of sentence in case of rash and negligent driving, the Apex Court in the matter of State of Kamataka Vs. Sharanappa Basanagouda Aregouda?, 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." 20. 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." 20. In the present case, trial Court has passed the sentence and has sentenced the applicant simple imprisonment for 6 months and fine of Rs. 500/- in under Section 337 of the Indian Penal Code, simple imprisonment for 6 months and fine of Rs. 500/- in under Section 338 of the Indian Penal Code & simple imprisonment for 6 months and fine of Rs. 500/- in under Section 304A of the Indian Penal Code. 21. In the light of aforesaid dictum of the Supreme Court, I do not find any ground for interference in the sentence imposed upon the applicant. Consequently, criminal revision is liable to be dismissed and is hereby dismissed. Applicant is in bail, he shall surrender himself immediately before the Judicial Magistrate First Class, Rajnandgaon for serving remaining sentence imposed upon him. Revision Dismissed.