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2013 DIGILAW 393 (RAJ)

Pyare Lal v. State of Rajasthan

2013-02-14

BANWARI LAL SHARMA

body2013
Hon'ble SHARMA, J.—The petitioner-convict Pyare Lal was convicted for the offences punishable under Sections 279 and 304A IPC by the learned Additional Chief Judicial Magistrate, Vallabhnagar (Udaipur) vide judgment and order dated 28.1.1995 and was sentenced as under:- U/S. Sentence Fine In default 279 IPC -- Rs. 1,000/- -- 304A IPC R.I. For 1 year Rs. 5,000/- 3 months' SI It was further ordered that after realisation of entire penalty amount of Rs. 6,000/-, it be paid to Ramlal Kalal, father of deceased child Devilal. 2. Aggrieved against the conviction and sentence, he preferred an appeal, which was dismissed by the learned Additional Sessions Judge, No. 3, Udaipur, vide judgment dated 5.6.1996. Now, petitioner has come up with the present revision petition against that conviction and sentence. 3. The revision petition was admitted and notice was issued to the learned Public Prosecutor for State of Rajasthan and the record of the trial court as well as of the appellate court was called for. 4. The brief facts of the case are that on 19.8.1991 the complainant PW.1 Babu Lal submitted a report Ex. P/1 at Police Station Vallabh Nagar (Udaipur) stating that he was sitting at his shop about 1.30 p.m., at that time, a truck bearing registration No. RSY 9633 came from Bhopal Pura Choraha which was loaded one and was in high speed. When the truck reached at Inayat Ali's shop, there was a turn and since the truck was in high speed, the driver lost its balance and hit Devi Lal S/o Ram Lal Kalal aged about 7 years from the front wheel of the driver side of the truck and crushed him, due to which Devi Lal succumbed to his injuries. Thereafter the truck stopped. It is further stated that the father of the child was also present and when the whereabouts of the driver were asked, it was said that his name is Pyra Lal S/o Tulsi Ram by caste Lodhha resident of Mawli who thereafter ran away. 5. From the above report, a case bearing FIR No. 77/1991 for the offences punishable under Sections 279 and 304-A IPC was registered at Police Station Vallabh Nagar (Udaipur) and investigation was started. During the investigation, the place of occurrence was inspected and a rough site inspection memo Ex. P/2 was prepared. Post-mortem of the dead body was conducted & post mortem report was prepared as Ex. During the investigation, the place of occurrence was inspected and a rough site inspection memo Ex. P/2 was prepared. Post-mortem of the dead body was conducted & post mortem report was prepared as Ex. P/3, Seizure memo of truck Ex. P/5, Fard Supardginama of dead body Ex. P/6 were also prepared and statement of witnesses were recorded. Thereafter, charge-sheet for the offences punishable under Sections 279 & 304 A IPC was filed in the competent court against the petitioner accused. The trial was conducted by the trial court. During the trial, the accused was read over the accusation of substance of charge for the offences punishable under Sections 279 and 304-A IPC. During the trial, prosecution examined 9 witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C. wherein he stated that the truck was being driven cautiously and slowly. The child suddenly came in front of the vehicle, therefore, the accident occurred. In defence, the petitioner accused examined DW/1 Shri Mangilal. The trial court after hearing the Assistant Public Prosecutor and learned counsel for the petitioner accused convicted the petitioner for offence punishable under Sections 279 and 304-A IPC as aforesaid. 6. Being aggrieved by the judgment and order of sentence dated 28.1.1995 passed by learned Addl. Chief Judicial Magistrate an appeal was preferred which was heard and decided by the learned Addl. Sessions Judge No. 3, Udaipur who maintained the conviction and sentence passed by the learned trial Court. Hence, this revision petition. 7. Learned counsel for the petitioner submitted that the boy came on the road all of sudden and he died due to his own mistake. He further submitted that the vehicle was stopped on the spot. It did not move ahead which shows that there was no rash and negligent act on the part of the driver. He further submitted that the prosecution witnesses have exaggerated their statements in the court which cannot be believed. Only single witness stated in his police statement that the driver was seeing back side. He further submitted that the prosecution witnesses themselves deposed that the truck was not being driven rashly and negligently. They deposed that the child came running in front of the truck which resulted into the accident as such, the petitioner cannot be held guilty for the alleged offences. He further submitted that the prosecution witnesses themselves deposed that the truck was not being driven rashly and negligently. They deposed that the child came running in front of the truck which resulted into the accident as such, the petitioner cannot be held guilty for the alleged offences. He further submitted that the truck was loaded with the stone slabs, therefore, it would not have driven in high speed. The deceased suddenly came in front of truck and that resulted in death of the deceased. Further the prosecution witness are the interested and relative witness of the deceased so their statements cannot be believed as true. As such the judgments passed by the courts below are perverse, illegal and contrary to the record and there is an error apparent on the face of the record, therefore, judgments passed by the courts below deserve to be quashed and set aside. 8. Per contra, learned Public Prosecutor argued that both the courts below rightly appreciated the evidence and convicted the accused for the offences punishable under Sections 279 and 304 IPC. She further submitted that the age of the deceased is said to be seven years only and the incident took place in the city itself in the day light at about 1.30 p.m. and the offending vehicle truck was loaded with stone slabs is a heavy vehicle and while passing the heavy vehicles through the city, it is the duty of the driver that he drive his vehicle cautiously and when there are chances to some the children on the road then extra cautions are required on the part of the drivers of the vehicles. A child aged about 7 years cannot be attributed for negligence in the accident. 9. I have heard learned counsel for the parties and considered the rival submissions put forth by them and gone through the impugned judgments as well as records of the case. 10. There is no dispute regarding involvement of the offending vehicle truck No. RSY 9633 and it is also not disputed that at the time of accident the petitioner convict was driving the truck. The only point for determination is whether the petitioner was liable for rash and negligent driving of the vehicle which caused death of the deceased Devi Lal. As per the site plan Ex. The only point for determination is whether the petitioner was liable for rash and negligent driving of the vehicle which caused death of the deceased Devi Lal. As per the site plan Ex. P/2, it reveals that the width of the road at the place of the accident was 25 feet and the truck was 14 feet away from the left corner of the road and was only 4 feet away from the right corner of the road. As such, apparently, it was on wrong side. From the perusal of one seizure memo of truck Ex. P/5 it also reveals that it was full of stone slabs which is also proved by the statements of the witnesses. From the perusal of the photographs Ex.P/6 to P/13 which were proved by PW/7 Vinod Kumar, show that the head of the deceased boy was crushed by front wheel of the truck which has also been proved by PW.5 Inayat Ali. 11. Rules 2 and 11 of the Rules of Road Regulation, 1989 reads as under: "2. Keep left.- The driver of a motor vehicle shall drive the vehicles as close to the left side of the road as may be expedient and shall allow all traffic which is proceeding in the opposite direction to pass him on his right hand side. 11. Right of way.- The pedestrians have the right of way at uncontrolled pedestrian crossings. When any road is provided with footpath or cycle track specially for other traffic, except with permission of a police officer in uniform, a driver shall not drive on such footpath or track." The vehicle in question was about 14 feet away from the left corner of the road and was passing through town and deceased was a pedestrian. As such, it was violation of Rules 2 and 11 of the Rules of 1989. Violation of the Rules of Road Regulation amount to rash and negligent act of the driver. Further the witnesses clearly state that at the time of accident the petitioner was talking with some-one sitting back side in the cabin of the truck. This act also amounts to rash and negligent act of the driver. The cause of death of the deceased shown in Ex. P/15 is due to trauma and cerebral injuries which is proved by PW.9 Dr. Suresh Kumar. 12. This act also amounts to rash and negligent act of the driver. The cause of death of the deceased shown in Ex. P/15 is due to trauma and cerebral injuries which is proved by PW.9 Dr. Suresh Kumar. 12. The petitioner, in his statement under Section 313 Cr.P.C., denied this and only stated that the truck was in slow speed and the market was crowded. All of sudden a boy came in front of the truck, which resulted in the accident, which cannot be relied upon in view of statements of prosecution witnesses. 13. The defence witness DW/1 Mangilal has admitted in his statement that he was there in the truck with the petitioner at the time of the accident. He also admitted that the deceased child was crushed by front wheel of the truck though he denied for rash and negligent act of the petitioner. In cross-examination he admitted that he is known to the petitioner accused. The prosecution witnesses deposed that the petitioner was talking with some one sitting in the cabin which fact is supported from the statement of this witness as another person was also sitting in the cabin. When the independent witnesses of the prosecution clearly stated that the driver was talking with some one and was not concentrated on the driving. The statement of defence witnesses DW/1 Mangilal who was firstly introduced in the court only cannot be believed. 14. From the perusal of the prosecution witness and the photographs as well as the postmortem report, it stands proved that the bus driven by the petitioner had hit deceased Devi Lal when he was crossing the road. Further, that the petitioner was driving the truck in rash and negligent manner and has caused death. The learned Addl. Sessions Judge by the impugned judgment has also appreciated the evidence in right perspective. 15. In revision meticulous examination need not be undertaken the submission made before this Court which were also before the courts below and have been duly considered in the impugned judgment. In the case T.N. Dhakkal vs. James Basnett and Another (2001) 10 SCC 419 , the Apex Court has laid down the principles as to under what circumstances the revisional jurisdiction should be exercised by the High Court. The relevant paragraphs are extracted as under: 7. In the case T.N. Dhakkal vs. James Basnett and Another (2001) 10 SCC 419 , the Apex Court has laid down the principles as to under what circumstances the revisional jurisdiction should be exercised by the High Court. The relevant paragraphs are extracted as under: 7. By virtue of the powers under Section 401 Cr.P.C. the High Court has jurisdiction to examine the proceedings of inferior courts if the necessity for doing so is brought to its notice in amy manner. Under Section 397 of Code, the High Court possesses general power of superintendence over actions of the courts subordinate to it and that discretionary power; when administered on the judicial side is terms as the power of "revision". 8. While giving its reasoned judgment in Janata dal vs. H.S. Chodhary a Division Bench of this Court speaking through Pandian, J. (as his Lordship then was) dealt with the object of revisional jurisdiction of the High Court in the following works: (SCC p. 355, para 130). 130. The object of the revisions jurisdiction under Section401 is to confer power upon superior criminal courts- a kind of paternal or supervisory jurisdiction- in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or appearance harshness of treatment which has resulted, on the one hand, or on the other hand in some underserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case. The Bench then went on to say that: (SCC p. 355, para 132) "132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justiae to do real and substantial justice for the administration of which alone the courts exist. The power possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. The power possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. 9. We are in agreement with the above exposition of law. We are of the opinion that though the High Court has revisional jurisdiction under Section 401 of the Code and can exercise its discretionary jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court under Section 401 of the Code being discretionary is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically." 16.This Court is concurrent with the finding of the learned Addl. Sessions Judge that the death was caused by the petitioner while driving the truck No. RSY 9366 in rash and negligent manner and hit the boy who was crossing the road. 17. Having carefully perused the impugned judgment and testimonies of the prosecution witnesses and the defence witnesses which is on record, I am of the view that the finding does not call for any interference by this Court in exercise of revisional jurisdiction. So far as the sentence is concerned, the accident took place on 19.8.1991 which is about more than 21 years ago. In the case of Puttaswamy vs. State of Karnataka & Another reported in 2009(1) WLC (SC) Criminal 623 the offence punishable under Section 279 and 304-A IPC the sentence was reduced to already under gone and enhanced the fine to Rs. 20,000/- where the accused caused death of 7 years old girl. 18. In the present case, due to rash and negligent driving of truck by the petitioner, the deceased Devi Lal aged 7 years died. The accident took place on 19.8.1991 which is more than 21 years ago and as such indisputedly the petitioner has under gone protracted trial for more than 21 years. He has suffered persistent agony and trauma of protracted trial. 19. The accident took place on 19.8.1991 which is more than 21 years ago and as such indisputedly the petitioner has under gone protracted trial for more than 21 years. He has suffered persistent agony and trauma of protracted trial. 19. Thus, looking to the over all circumstances, specially the fact that the petitioner suffered persistent agency and trauma of protracted trial for the last more than 21 years, the petitioner's conviction under Section 279 & 304 -A IPC is maintained and increase the amount of fine from Rs. 6000/- to Rs. 25,000/- to be paid by the petitioner to the father of the deceased Devi Lal and reduce the sentence to the period already under gone subject to the payment of fine. The aforesaid fine is to be deposited by the petitioner in the trial court within three weeks from the date of the order and on such deposit the said amount shall be made available to the father of the deceased. In default of such deposit, this revision petition shall be treated as dismissed and the petitioner convict will be taken in custody to serve the remaining sentence. 20. The revision petition stands disposed of accordingly. The record of the trial Court as well as the appellate court be returned forthwith with a copy of this order.