Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 461 (HP)

State of H. P. v. Kuldip Singh alias Dippu

2013-05-23

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This appeal is directed against the judgment of the learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P. in case No. 117-II/98 dated 23.7.2005 whereby the respondent, who has been charged and tried for offences punishable under sections 279, 337 and 338 of the Indian Penal Code and section 184 of the Motor Vehicles Act has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 5.6.1997 at about 9.00 P.M. at place Bhali, respondent was driving bus No.HP-39-4398 on public highway in a rash and negligent manner endangering human life and personal safety of others. The bus went out of control and met with an accident. The accident occurred near place Bhali under Police Post, Kotla. The passengers of the bus sustained simple as well as grievous injuries. The matter was reported to the police, on the basis of which F.I.R. was registered against the accused. Statement of one of the passengers, Ramesh Chand was recorded under section 154 of the Code of Criminal Procedure. Thereafter, F.I.R. Ex.PW- 15/A was registered. The injured persons were medically examined in Shahpur Hospital. Their MLCs were obtained. Police visited the spot and prepared the site plan. Police also recorded the statements of witnesses. Mechanical report was also obtained, the manner in which the accident took place. The vehicle was taken into possession vide memo Ex.PW-16/B. 3. Prosecution examined as many as 21 witnesses in all. Statement of accused was also recorded under section 313 of the Code of Criminal Procedure. He pleaded innocence. The trial court acquitted the respondent on 23.7.2005. Hence, the present appeal. 4. Mr. Pramod Thakur, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the respondent. 5.Mr. Naresh Kaul has supported the judgment of the trial court. 6.I have heard the learned counsel for the parties and have perused the records carefully. 7. PW- 1 Ramesh Chand has deposed that Barat left at about 8/8.30 P.M. It was coming back in a private bus bearing registration No.HP-39-4398. Bus turned turtle since the accused was drunk. He could not control the bus. The bus was carrying 50-60 passengers. He received injuries. Similarly, 13-14 passengers also received injuries. The driver was requested by the marriage party not to drive the vehicle under the influence of liquor. Driver told that he knew how to drive. Bus turned turtle since the accused was drunk. He could not control the bus. The bus was carrying 50-60 passengers. He received injuries. Similarly, 13-14 passengers also received injuries. The driver was requested by the marriage party not to drive the vehicle under the influence of liquor. Driver told that he knew how to drive. Accident took place at about 9.00 P.M. His statement was recorded under section 154 of the Code of Criminal Procedure. Bus was taken into possession by the police. When the bus left Dulara, driver of H.R.T.C. was driving the bus. He has admitted that there was sharp curve. The bus hit against the stone and turned turtle. He has denied the suggestion that the marriage party had not requested him not to drive the vehicle. In his cross-examination, he has testified that from Bhali, accused had started driving the bus. He has denied the suggestion that the driver was not under the influence of liquor. 8. PW-2 Dr. V.K. Chaudhary has examined the injured and issued MLCs vide Ex.PW-2/A, PW-2/B and Ex.PW-2/C. 9. PW-3 Dr. J.R. Azad has given the opinion on the X-rays of injured persons vide Ex.PW-3/A, Ex.PW­3/B&C, Ex.PW-3/D, E, F, G and Ex.PW-3/H. 10.PW-4 Piar Singh has deposed that the accused was driving the bus on 5.6.1997. He struck the bus against hillock and the bus turned turtle. The driver was driving the bus at excessive speed. The driver was requested to drive the bus carefully. However, driver did not listen which led to accident resulting in injuries to him and other passengers. He has also deposed in his cross-examination that the bus was driven by the accused. He has denied the suggestion that bus was not driven at excessive speed. 11.PW-5 Megh Raj has deposed that he did not know who was driving the bus at the time of accident. He was declared hostile. 12. PW-6 Subhash Chand has deposed that the passengers had requested the driver to drive the bus slowly. It was being driven at a high speed. When the bus reached at a curve at Bhali, it turned turtle. He received injuries. His bone was also broken. He became unconscious. He was referred to Shahpur and thereafter to Dharamshala Hospital. He did not recognize the driver in the court. He has denied the suggestion that the bus was being driven by Rakesh Driver. When the bus reached at a curve at Bhali, it turned turtle. He received injuries. His bone was also broken. He became unconscious. He was referred to Shahpur and thereafter to Dharamshala Hospital. He did not recognize the driver in the court. He has denied the suggestion that the bus was being driven by Rakesh Driver. 13.PW-7 Kartar Singh has deposed that he also received injures when the bus met with an accident. He was also admitted in the hospital at Shahpur. 14.PW-8 Ravinder Singh is Mechanic. He has examined the bus mechanically and submitted his report Ex.PW-8/A. In his cross-examination, he has only deposed that if the bus is over loaded, it can turn due to swing. 15. PW-9 Desh Raj has deposed that he did know who was driving the bus. The bus hit against the hillock and turned turtle. He received injuries. According to him, he did not know whether the driver was under the influence of liquor or not. He was declared hostile. 16. PW-10 Angrej Singh has deposed that the driver struck the bus against the hillock and it turned turtle. The bus was being driven in a high speed at the time of accident. He did not know who was driving the bus. He has given a new version that the bus met with an accident due to break failure. 17.PW- 11 Dr. Vipin Sharma has examined 10 injured and issued MLCs. 18.PW-12 Budhi Singh has deposed that the bus was driven at a high speed when it reached near Bhali. It struck against the stone. However, he did not know who was driving the bus at that time. 19.PW-13 Tilak Raj is the owner of the bus. He has deposed that he could not say that the driver was driving the bus on the date of accident. 20.PW-14 Chaman Lal has deposed that the bus turned turtle and he received injuries. He did not know who was driving the bus. 21.PW- 15 Dalip Kumar has registered F.I.R. Ex.PW- 15/A. 22. PW-16 has taken the bus into possession vide memo Ex.PW-16/B. The photographs of the bus were also taken. He has recorded the statement of passengers. 23.PW- 17, PW- 18, PW- 19, PW-20 and PW-2 1 are formal witnesses. 24.What emerges from the evidence discussed hereinabove is that the bus was being driven by the accused at a high speed. PW-16 has taken the bus into possession vide memo Ex.PW-16/B. The photographs of the bus were also taken. He has recorded the statement of passengers. 23.PW- 17, PW- 18, PW- 19, PW-20 and PW-2 1 are formal witnesses. 24.What emerges from the evidence discussed hereinabove is that the bus was being driven by the accused at a high speed. He could not negotiate the sharp curve which resulted into an accident. Number of passengers received injuries. They were medically examined. One passenger has received grievous injuries and other passengers received simple injuries. 25.They have been examined by PW-2 Dr. V.K. Chaudhary and PW- 11 Dr. Vipin Sharma. The opinions on the X-rays were given by PW-3 Dr. J.R. Azad. It has come on record that witnesses and other passengers had been requesting the driver not to drive the bus under the influence of liquor. He told PW- 1 that he knew how to drive. 26. Mr. Naresh Kaul, learned counsel for the accused has argued that in fact it was the driver of the H.R.T.C. bus and not the accused, who was driving the bus. It cannot be accepted. It has come on record that the bus was initially driven by some other driver, but at the time of accident it was being driven by the accused. The accused instead of helping the passengers fled away from the spot, as such, he could not be medically examined. 27.According to the prosecution version, accused and conductor of the bus ran away from the spot. The bus was mechanically examined by PW-8 Ravinder Singh. Though one of the witnesses has deposed that the bus met with an accident due to failure of break but it is not mentioned in Ex.PW-8/A that the accident has taken place due to the failure of break. The accused was driving the bus at high speed, that too, under the influence of liquor. It has come on record that there were sharp curves on the road. The accused has no business to drive the vehicle under the influence of liquor. The witnesses have identified the accused who was present in the Court. PW-13 Tilak Raj, owner of the bus though was declared hostile but he has admitted that his bus met with an accident near Bhali and the same was seized by the police. The accused has no business to drive the vehicle under the influence of liquor. The witnesses have identified the accused who was present in the Court. PW-13 Tilak Raj, owner of the bus though was declared hostile but he has admitted that his bus met with an accident near Bhali and the same was seized by the police. The injuries have duly been proved vide MLCs Ex.PW-2/A, PW-2/B and PW-2/C and PW-11-A to PW-1 1/H. The MLCs of Desh Raj, Subhash and Bir Singh were issued by PW-3 Dr. V.K. Chaudhary. The MLCs of Budhi Singh, Dharam Singh, Chaini Singh, Karam Chand, Bodhi Singh, Chaman Lal, Kartar Singh, Subhash Chander, Kamal Kishore, Suneet Kumar and Angrej Singh were issued by PW- 11 Dr. Vipin Sharma. The X-rays of Suneet Kumar and Angrej were advised and the opinion was given by PW-3 Dr. J.R. Azad. 28. Their Lordships of the Hon’ble Supreme Court in Rathnashalvan versus accused was driving any vehicle on public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Their Lordships have held as under: 2. The appellant was the driver of a bus of the Himachal Pradesh Road Transport Corporation (in short the ‘Corporation’). According to the prosecution version on 19.11.1991 while he was driving the vehicle, the bus had stopped at a bus stop. One passenger after alighting from the bus went to its roof top for the purpose of unloading his luggage. The accused without waiting for a signal from the conductor and without verifying if all the passengers who were to board, had boarded and who were to alight had alighted, all of a sudden started the bus as a result of which the said passenger fell down and sustained injuries. He was carried to the hospital where he succumbed. 6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused-appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that; the driver had knowledge that any passenger was on the roof top of the bus. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that; the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that die accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 31. Their Lordships of the Hon’ble Supreme Court in Guru Basavaraj alias Benne Settappa versus State of Karnataka, (2012) 8 SCC 734 have held that appropriate sentence should imposed if the charges under sections 304-A, 279, 337 and 338 of the Indian Penal Code are proved. Their Lordships have explained how the plea of mechanical failure is to be proved. Their Lordships have held as under: “12. First, we shall deal with the facet of rash and negligent driving of the driver. The learned counsel for the appellant has submitted that the vehicle turned turtle due to mechanical failure i.e. non-functioning of the hydraulic system in a proper manner. To appreciate the said submission, we have carefully perused the material brought on record and the analysis made by the courts below. On a careful scrutiny of the same, we find that all the courts have placed reliance on independent witnesses as well as the testimony of PW-10, the Motor Vehicle Inspector. To appreciate the said submission, we have carefully perused the material brought on record and the analysis made by the courts below. On a careful scrutiny of the same, we find that all the courts have placed reliance on independent witnesses as well as the testimony of PW-10, the Motor Vehicle Inspector. The manner in which the accident occurred due to detachment of the trailer from the tractor and the distance to which the tractor moved vividly reveals that the vehicle in question was driven recklessly at a high speed. The plea of mechanical failure as put forth by the accused was not even suggested to the Inspector. 13. What is sought to be emphasised before this Court is that PW-3 has deposed that the accident occurred due to mechanical failure. The trial court as well as the High Court has not accepted the testimony of PW- 3 as he is only an agriculturist while the other technical experts including the Motor Vehicle Inspector have deposed about the rash and negligent driving. Analysing the evidence in entirety, the learned trial judge as well as the appellate judge has returned the finding as regards the rash and negligent driving. The appellate court, on further scrutiny, has found that the evidence on record clearly shows that the driver has taken the vehicle to the left side of the road and, in the process, he moved away from the main road to the ‘kachcha’ road and thereby the link between the tractor and the trailer got detached. The High Court has opined that the accused has not taken care to see that the speed of the tractor was within limit so that the trailer could not be detached. In our considered view, the analysis of the factual score in this regard cannot be regarded to be perverse and, therefore, not liable to be unsettled by this Court. 19. In State of Karnataka v. Krishna alias Raju [ (1987) 1 SCC 538 ], while dealing with the concept of adequate punishment in relation to an offence under Section 304-A of the IPC, the Court stated that: “considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a Motor Vehicle for an offence under Section 304-A of the IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice.” Thereafter, this Court enhanced the sentence to six months rigorous imprisonment with fine of Rs. 1000 and, in default, to undergo rigorous imprisonment for two months. 20. In Sevaka Perumal and another v. State of Tamil Nadu [ (1991) 3 SCC 471 ], it has been emphasized that undue sympathy resulting in imposition of inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. 21 . In Jashubha Bharatsinh Gohil and Ors. v. State of Gujarat [ (1994) 4 SCC 353 ], the Court, adverting to the new challenges of sentencing, opined that the courts are constantly faced with the situation where they are required to answer to new challenges and mould the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. 22. In Dalbir Singh v. State of Haryana [ (2000) 5 SCC 82 ], this Court expressed thus: “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.” 23. Thereafter, the Court proceeded to highlight what is expected of a professional driver: “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. Thereafter, the Court proceeded to highlight what is expected of a professional driver: “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 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.” 24. In State of Karnataka v. Sharanappa Basanagouda Aregoudar [ (2002) 3 SCC 738 ], it has been ruled that if the accused are found guilty of rash and negligent driving, courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence. Of course, the courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to the larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system. 25. In State of M.P. v. Saleem alias Chamaru and Anr. [ (2005) 5 SCC 554 ], it has been ruled that the object should be to protect society and the avowed object of law is achieved by imposing appropriate sentence to deter the criminal. 25. In State of M.P. v. Saleem alias Chamaru and Anr. [ (2005) 5 SCC 554 ], it has been ruled that the object should be to protect society and the avowed object of law is achieved by imposing appropriate sentence to deter the criminal. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience ofthe society and the sentencing process has to be stern where it should be. 26. Yet again in B. Nagabhushanam V. State of Karnataka [ (2008) 5 SCC 730 ], the Court, taking note of the fact that the vehicle was being driven rashly and negligently, opined that six months’ simple imprisonment and a direction to the appellant to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 304-A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Indian Penal Code cannot be said to be shocking. 27. Recently, in State of Punjab v. Balwinder Singh and Ors. [ (2012) 2 SCC 182 ], this Court while dealing with the concept of sentencing, has stated thus: “While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the Court”. 28. In Alister Anthony Pareira v. State of Maharashtra [ (2012) 2 SCC 648 ], it has been laid down that sentencing is an important task in relation to criminal justice dispensation system. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. It has been further opined that the principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, the proportion between crime and punishment bears the most relevant influence in the determination of sentencing the crime-doer. The court has to take into consideration all aspects including the social interest and conscience of the society for award of appropriate sentence. 29. In State TR. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda [ 2012 (7) SCALE 120 ], one of us (K.S. Radhakrishnan, J.), in his separate opinion, pertaining to the conception of adequate sentencing, has expressed thus: “Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.” 30. From the aforesaid authorities, it is luminous that this Court has expressed its concern on imposition of adequate sentence in respect of commission of offences regard being had to the nature of the offence and demand of the conscience of the society. That apart, the concern has been to impose adequate sentence for the offence punishable under Section 304-A of the IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case. As the trend of authorities would show, the proficiency in professional driving is emphasized upon and deviation therefrom that results in rash and negligent driving and causes accident has been condemned. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquility of the collective. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquility of the collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence. 31. Recently, this Court in Rattiram & Ors. v. State of M.P. Through Inspector of Police [ AIR 2012 SCW 1772 ], though in a different context, has stated that criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. It is the duty of the court to see that the victim’s right is protected. 32. We may note with profit that an appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like “flies to the wanton boys”. They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act. 33. They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act. 33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored. In Siriya alias Shri Lal v. State of M.P. [ AIR 2008 SC 2314 ], it has been held as follows: - “Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society”. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be.” 32. Consequently, the accused is held guilty of committing offence punishable under section 279 for rash and negligent driving at high speed without taking into consideration the nature and condition of the place, i.e. narrow hilly road with sharp curves and also under sections 337 and 338 for causing simple as well as grievous injuries to the passengers due to rash and negligent act. The accused is also held guilty of committing offence under section 184 of the Motor Vehicles Act for driving the bus dangerously on a narrow/hilly road with sharp curves without taking necessary precautions. 33.Accordingly, in view of the observations and discussions made hereinabove, the appeal is accepted. The judgment of the trial court is set aside. Accused is convicted for committing offence under sections 279, 337 and 338 of the Indian Penal Code and 184 of the Motor Vehicles Act. Bail bonds furnished by the accused are cancelled. Accused now be produced before the Court on 28.6.2013 for being heard on the issue of quantum of sentence. The judgment of the trial court is set aside. Accused is convicted for committing offence under sections 279, 337 and 338 of the Indian Penal Code and 184 of the Motor Vehicles Act. Bail bonds furnished by the accused are cancelled. Accused now be produced before the Court on 28.6.2013 for being heard on the issue of quantum of sentence. The Registry to take necessary follow up action.