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2012 DIGILAW 302 (HP)

State Of Himachal Pradesh v. Manohar Singh

2012-05-23

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. In Criminal Case No. 77-II/99/95, the learned trial Court vide its judgment dated 27.9.2002 convicted the respondent, hereinafter referred to be as "the accused" for the offences punishable under Sections 279, 338 and 304-A of the Indian Penal Code and sentenced him to undergo imprisonment under each of the sections as under:- Section Sentence 304-A I.P.C. Simple Imprisonment for 6 months and fine of 1,000/- and in default of payment of fine, simple imprisonment for 1 month. 338 I.P.C. Simple Imprisonment for 3 months and fine of 500/- and in default of payment of fine, simple imprisonment for 15 days. 279 I.P.C. Sentence of fine of Rs. 500 and in default of payment of fine, simple imprisonment for 7 days. 2. The learned Additional Sessions Judge (1), Kangra at Dharamshala while maintaining the sentence of fine, set-aside the sentence. Hence the present appeal is filed by the State against inadequacy of sentence. 3. The appeal was admitted for hearing on 28.2.2005, but considering the facts, vide order dated 31.10.2011, notice of enhancement was given to the accused. However in reply, the learned counsel for the accused submitted that it was a fit case for acquittal and the conviction and sentence passed by the learned trial Court was uncalled for, but no formal reply was filed. 4. As a matter of fact, when the accused is asked to show cause against the enhancement of the sentence, he acquires the right to challenge also the conviction and that he is entitled for his acquittal or for reduction of the sentence. 5. Before adverting to the points raised, the necessary facts giving rise to the present appeal can be stated thus. The occurrence giving rise to the present criminal proceedings against the accused took place on 27.6.1994 at 4.30 a.m. at the place known as Pihad. According to the case of the prosecution, A Tempo bearing registration No. PB-07-2153 was being driven rashly and negligently by the accused. One Naresh Kumar (deceased) was also sitting besides him in the said Tempo. The Tempo fell off the road about 100 meters down into the Khud. Accused himself suffered grievous injuries, whereas Naresh Kumar had died. On hearing the noise of the rolling of the said Tempo, nearby villagers visited the spot and the injured was taken to the hospital. The FIR was registered against the accused. The Tempo fell off the road about 100 meters down into the Khud. Accused himself suffered grievous injuries, whereas Naresh Kumar had died. On hearing the noise of the rolling of the said Tempo, nearby villagers visited the spot and the injured was taken to the hospital. The FIR was registered against the accused. Police on investigation found the complicity of the accused for the alleged offences, therefore, the challan was presented against him in the Court. 6. The accused was accordingly charge-sheeted, tried and convicted, which was challenged by him in Cr.A. No. 28-G/X-2000. The learned Sessions Judge, vide his detailed judgment dated 25.3.2002 set-aside the conviction and sentence of the accused on the ground that statement under Section 313 of the Code of Criminal Procedure was mechanically recorded by the learned trial Court, without putting the material facts appearing in the evidence, to the accused, as such, the case was remanded back with the direction to the learned trial Court to record the statement of the accused under Section 313 of the Code of Criminal Procedure again by putting all incriminating circumstances appearing in the evidence against the accused and then to rehear the arguments and decide the case afresh, thus, the accused was re-examined under Section 313 of the Code of Criminal procedure. 7. The accused had taken up the defence that it was the deceased Naresh Kumar, who was driving the Tempo in question at the relevant time and not him, however, no evidence in defence was led. Learned trial Court rejected the defence raised, accordingly convicted and sentenced the accused as aforesaid and in appeal substantive sentence was set-aside while maintaining fine and default clause. Hence the present appeal under Section 377 of the Code of Criminal Procedure. 8. Significantly the learned Additional Sessions Judge in the impugned judgment has given the brief account of the prosecution evidence and noted the arguments of the counsel for parties, but did not come to its independent conclusion whether the accused was guilty of the offences charged and the findings returned by the learned trial Court holding him guilty are correct. Instead he proceeded to consider whether the accused deserves to be given the benefit of the Probation of Offenders Act or not. Instead he proceeded to consider whether the accused deserves to be given the benefit of the Probation of Offenders Act or not. But however, the learned Additional Sessions Judge did not find himself in agreement with the arguments of the learned counsel for releasing him on probation and observed that it would be extremely harsh to send him in jail after the lapse of such a long time, more particularly when he has been quite repentant, besides considering the plea that he has an old mother, children and wife to maintain, thus modified the sentence as aforesaid. 9. As a matter of fact, the Courts are expected to decide such cases without unnecessary delay and once the accused is held guilty and stands convicted for the offences punishable under Sections 304-A, 338 and 279 of the Indian Penal Code causing death or bodily injury by rash and negligent act, he has to be dealt with firmly and seriously. In State of Punjab v. Balwinder Singh and others [ AIR 2012 SC 861 ] the following principles laid down in Dalbir Singh v. State of Haryana [ (2000) 5 SCC 82 ] held to be very relevant: "1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic. 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 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. 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." {Please also see B. Nagabhushanam v. State of Karnataka, [ 2008 (5) SCC 730 ]}. 10. It is a settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have a better training in traffic laws and moral responsibility with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, the Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt. 11. Thus, keeping in mind the above principles of law laid down with respect to the sentence, first of all, I would proceed to examine whether it was at all a case of conviction? Once this conclusion is arrived at against the accused, the inadequacy of sentence will come for consideration only thereafter. 12. 11. Thus, keeping in mind the above principles of law laid down with respect to the sentence, first of all, I would proceed to examine whether it was at all a case of conviction? Once this conclusion is arrived at against the accused, the inadequacy of sentence will come for consideration only thereafter. 12. Since the learned Additional Sessions Judge disposed of this matter in a slipshod manner without coming to independent finding of guilt, the course open to this Court was also to remand the case to the Learned Additional Sessions Judge to give a clear cut finding whether on the evidence on record the findings of guilt are borne out as he had omitted to do it. But however, considering the date of accident and also the time taken in deciding the appeal and the fact that once the case was already remanded to the trial Court as aforesaid, it shall again be injustice to replicate the same procedure. Therefore, to do complete justice and obviate avoidable pain and suffering, I proceed to re-assess the evidence against the accused qua his guilt. 13. As the appeal is on the ground of inadequacy of sentence and this Court had given reasonable opportunity of showing the cause against such enhancement, the accused has pleaded for his acquittal and in alternative also for reduction of sentence, which as already stated supra is permissible under sub-Section (3) of Section 377 of the Code of Criminal Procedure. 14. Admittedly, the Tempo in question was carrying 99 luggage items of PW4 Achhru Ram, which consist of empty plastic drums and iron. These articles were taken into possession by the police on the spot vide memo Ext.PW4/A and given on supurdari to him. He did not make any whisper as to who was the driver at that time of the alleged offending vehicle. PW7 Jagdish Chand is a marginal witness to Ext.PW4/A, though he stated that the accused was the driver of the Tempo owned by one Sh. Jogeshwar Lal who was not produced as a witness and even PW8 Dina Nath on reaching the spot immediately after the accident found the accused who was injured and in cross-examination, stated that he did not know as to who was driving the vehicle at the time of alleged accident, but accused had told that he was the driver. Jogeshwar Lal who was not produced as a witness and even PW8 Dina Nath on reaching the spot immediately after the accident found the accused who was injured and in cross-examination, stated that he did not know as to who was driving the vehicle at the time of alleged accident, but accused had told that he was the driver. Though accused was a driver by profession, but there is no evidence that at the relevant time he was driving the Tempo/ truck in question. 15. PW11 Sumit Sharma stated about the production of the driving licence of the accused to the police by one Shri Om Prakash, which was taken into possession vide memo Ext.PW11/A on 23.9.1994, whereas, the accident had taken place in June, 1994. PW14 SI Hari Nand stated that accused driver was injured and he was medically examined. PW3 Moti Ram was also to arrive on the spot after the accident. He stated that later he came to know that the injured was the driver, but he did not see him driving the said vehicle. 16. The Investigating Officer stated that the accident in question had taken place on account of rash and negligent driving by the accused as stated by the prosecution witnesses. But no such witness was produced and examined during the trial. He denied the suggestion in defence that the deceased Naresh Kumar was driving the said vehicle at the time of accident. Further the evidence on record suggests that it was a Kacha road and it has come in evidence that during the previous night, it had heavily rained. Photographs also show that the rain water had collected on the road, which could have also attributed to the accident. 17. In view of the above discussed evidence, though it stands proved that accused was the driver holding a driving licence, but there is no reliable evidence on record that he was driving the Tempo/ truck in question at the relevant time that too rashly or negligently, which are the essential ingredients of the offences charged. 18. Therefore, in the light of the above discussion, in my opinion the prosecution is not able to prove the offences charged against the accused in accordance with law. Hence the accused deserves to be acquitted by giving the benefit of doubt. In result, conviction and sentence of the accused are set-aside. He stands acquitted. 18. Therefore, in the light of the above discussion, in my opinion the prosecution is not able to prove the offences charged against the accused in accordance with law. Hence the accused deserves to be acquitted by giving the benefit of doubt. In result, conviction and sentence of the accused are set-aside. He stands acquitted. Consequently, the present appeal against the inadequacy of sentence does not survive, hence dismissed. 19. The fine amount, if deposited shall be refunded to the accused. Appeal disposed of. 20. The respondent is discharged of his bail bonds, entered upon by him at any during the proceedings of this case. 21. Send down the records.