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Madhya Pradesh High Court · body

2016 DIGILAW 1154 (MP)

Krishnadeo Singh v. State Of M. P.

2016-12-15

H.P.SINGH

body2016
ORDER : This Revision has been preferred by the applicants under section 397/401 of the ‘Code’ of Criminal Procedure, 1973 (hereinafter referred to as the Code for short), against the judgment dated 18-8-2007, passed in Cr. Appeal No. 98/2007, by learned Addl. Sessions Judge, Rewa, District Rewa (MP), whereby conviction of applicant under section 304-A of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) and sentencing him to undergo R.I. for one year, with default clause, awarded to him by learned Judicial Magistrate First Class, Teothar, District Rewa, vide judgment and order dated 1-3-2007 in Criminal Case No. 54/2000, was affirmed. 2. In nutshell, the case of prosecution is that a complaint was made by complainant-Bhanu Pratap Singh (PW/1) on 31-12-1999, that deceased Tarun Pratap Singh was hit by a Jeep bearing registration No. MP-17-B/3260 near Rambagh, which was being driven rashly and negligently by its driver at a very high speed. Deceased was taken to the hospital at Choukhandi, but on way, he succumbed to the injuries. On complaint, a FIR (Ex.P/1) was registered by the police against the accused/applicant and after completing the investigation, police has filed charge-sheet against the accused/applicant for offence punishable under section 304-A of Indian Penal Code before the concerned Magistrate. 3. During course of trial, the prosecution examined as many as 12 witnesses to bring home the guilt of the applicant after examining the accused/applicant under section 313 of Criminal Procedure Code, opportunity was also given to him to lead defence evidence for which he denied. While examining the applicant under section 313, Criminal Procedure Code, he stated that he is innocent. 4. After considering the testimonies of prosecution witnesses and material available on record, the accused/applicant was found guilty for causing death of deceased Tarun Singh, due to rash and negligent driving of Jeep bearing registration No. MP-17-B/3260 and he was sentenced to undergo one year’s R.I. with fine of Rs. 1500/- (Fifteen hundred), in default whereof, to further undergo 2 months Simple Imprisonment for the offences punishable under section 304-A of the Act. 5. Aggrieved by the judgment and order dated 18-8-2007, passed by the learned Addl. 1500/- (Fifteen hundred), in default whereof, to further undergo 2 months Simple Imprisonment for the offences punishable under section 304-A of the Act. 5. Aggrieved by the judgment and order dated 18-8-2007, passed by the learned Addl. Sessions Judge, Rewa, by which the appeal preferred against the judgment of the learned Judicial Magistrate First Class, Teothar, was dismissed, this revision petition has been filed praying for setting aside the judgment and order of sentence dated 1-3-2007, passed by learned Magistrate, Teothar and judgment dated 18-8-2007 passed by the Addl. Sessions Judge, Rewa, and acquittal of the accused/applicant for the offence complained of. 6. Learned counsel for the applicant has submitted that both the Courts below failed to appreciate that prosecution has failed to prove the rash and negligent act on the part of applicant so as to hold him guilty under section 304-A of Indian Penal Code. In fact, the deceased was in an intoxicated condition and stumbling on the road. He further submits that the applicant has been falsely implicated in this case and in order to attract the provisions of section 304-A of Indian Penal Code, it was incumbent upon the prosecution to prove that the applicant drove the offending jeep in rash or negligent manner. The prosecution witnesses inter alia stated that the accused/applicant was driving the offending vehicle in a rash and negligent manner, but failed to prove the decree of rashness and negligence by strong evidence. He further submitted that mere carelessness is not sufficient to convict the accused/applicant as the prosecution is required to prove the mens rea the guilty mind. 7. Lastly, the learned counsel for the applicant submitted that the incident is of 31-12-1999, i.e. about 17 years ago and applicant is suffering from persistent mental and physical agony since last about 17 years, therefore, in case this Court also finds guilty, then Court may extend the fine amount awarding jail sentence upto his custody period, which has been spent by him. In this context, learned counsel for the applicant has relied upon the judgment in the case of (Kamla Prasad vs. State of Rajasthan, 2014 Cr.L.J. 2582). 8. In this context, learned counsel for the applicant has relied upon the judgment in the case of (Kamla Prasad vs. State of Rajasthan, 2014 Cr.L.J. 2582). 8. Per contra, learned Panel Lawyer, appearing on behalf of the non-applicant/State has submitted that the case is based on the version of two eye witnesses, Smt. Anupma (PW/3) and Udaibhan (PW/4), who were travelling in the offending Jeep at the time of incident, have fully supported the prosecution case. The mechanical inspection report, post-mortem report, the statements of aforesaid eye witnesses and the witnesses who reached on the site after the accident, proved the case of prosecution beyond reasonable doubt and, therefore, learned Sessions Judge Rewa, has rightly dismissed the appeal which need not be interfered by this Court in exercise of revisional jurisdiction for the reason that there is no illegality or infirmity in the impugned judgment or order of sentence. 9. I have considered the rival submissions made by learned counsel for the parties and perused the entire material on record. 10. In the present case, the important witnesses are Smt. Anupma (PW/3) and Udaibhan (PW/4), who were travelling in the offending Jeep at the time of incident. As per their statements, it is clear that the accident took place in the evening hour i.e. about 6:30 P.M. These witnesses have stated that applicant was driving the offending vehicle rashly and negligently. They further stated that they asked the applicant to drive the offending Jeep in a moderate speed, but he did not take any care or caution, and due to which accident occurred. Deceased was hit by the said offending Jeep. Accused/applicant did not stop the jeep at the spot and thereafter stopped it at Rambagh. These witnesses further stated that at Rambagh, they stated the incident to other people also. Udaibhan (PW/4) has further stated that from Rambagh, he further reached at the spot and saw that deceased Tarun Singh was alive in an injured condition. He took him to Choukhandi Hospital, but deceased died in the way. 11. Ramlakhan Mishra (PW/5), who conducted mechanical examination of the Jeep bearing registration No. MP-17-B/3260 at P.S. Panwar, on 30-3-2000, has stated that foot brake, clutch, headlight, some play in steering, tyre, rod, tyre pressure were found correct. He proved his mechanical report as Ex.P/4. He has not stated anything in cross-examination. 12. Dr. 11. Ramlakhan Mishra (PW/5), who conducted mechanical examination of the Jeep bearing registration No. MP-17-B/3260 at P.S. Panwar, on 30-3-2000, has stated that foot brake, clutch, headlight, some play in steering, tyre, rod, tyre pressure were found correct. He proved his mechanical report as Ex.P/4. He has not stated anything in cross-examination. 12. Dr. R. S. Gautam (PW/2), who conducted the post-mortem of deceased Tarun Singh, has proved the post-mortem report Ex.P/3, has stated that cause of death was rupture of spleen in the stomach and internal heavy bleeding. As per post-mortem report of deceased Tarun Singh, the cause of death was heavy internal bleeding due rupture of spleen and from outside the intestine. The factum of death has also not been denied by the accused/applicant in the statement recorded under section 313 of Criminal Procedure Code. 13. From perusal of statement of prosecution witnesses and post-mortem report of deceased, it stands proved that the jeep driven by the accused/applicant had hit the deceased and further that the applicant was driving it in a rash and negligent manner and caused the death of deceased Tarun Singh. 14. The evidence produced by the prosecution is sufficient to prove the guilt of the accused/applicant beyond the reasonable doubt. The Additional Sessions Judge has discussed the prosecution evidence in detail, which does not require repetition and has rightly come to the conclusion that the case against the applicant stands proved beyond reasonable doubt. At the stage of revision, meticulous examination of the material on record need not be undertaken. The submissions made before this Court were also made before the Courts below and have been duly considered in the impugned judgment. 15. In the case of T. N. Dhakkal vs. James Basanett 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, Criminal Procedure Code, the High Court has jurisdiction to examine the proceedings of inferior Courts if the necessity for doing so is brought to its notice in any manner. The relevant paragraphs are extracted as under :— “7. By virtue of the powers under section 401, Criminal Procedure Code, the High Court has jurisdiction to examine the proceedings of inferior Courts if the necessity for doing so is brought to its notice in any manner. Under section 397 of Code, the High Court possess general power of superintendence over actions of the Courts subordinate to it and that discretionary power; when administered on the judicial side, is termed as the power of “revision”. 8. While giving its reasoned judgment in Janta Dal vs. H. S. Chowdhary ( AIR 1993 SC 892 , p. 922, para 128), 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 words : (SCC p.355, para 130) 130. The object of the revisional jurisdiction under section 401 is to confer power paternal or supervisory jurisdiction – 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 undeserved 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 circumstances which very greatly from case to case. The Bench when on to say that : (SCC p. 355, para 132) (pp. 922-23, Para 130 of AIR) : 132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power through unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitae 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 plentitude 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. 16. The power possessed by the High Court under section 482 of the Code are very wide and the very plentitude 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. 16. Now, I am of the considered opinion that though the High Court has revisional 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. 17. The prosecution has been able to prove the manner of accident and the vehicle involved in the accident as well as the person responsible for the rash and negligent driving that caused death of Tarun Pratap Singh. This Court, concurs with the finding of learned Sessions Judge that death of Tarun Pratap Singh was caused by the applicant while driving vehicle bearing registration No. MP-17-B/3260, in a rash and negligent manner who failed to drive the same in a responsible manner and hit the deceased. I am of the view that finding of the guilt of the applicant do not call for any interference by this Court in exercise of revisional jurisdiction. 18. So far as finding regarding sentence is concerned, the Hon’ble Apex Court, in Guru Basavaraj alias Benne Settappa vs. State of Karnataka, Cri. Appeal No. 1325/2012 decided on 29-8-2012 : AIR 2012 SC (Cri) 1586, held as under :— “16. In State of Karnataka vs. Krishna alias Raju, (1987) 1 SCC 538 : AIR 1987 SC 861 , while dealing with the concept of adequate punishment in relation to an offence under section 304-A of Indian Penal Code., 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. 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 Indian Penal Code and that too without any extenuating or mitigating circumstances is bound to shock the conscience of any one and will unmistakably level 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. 19. In Sevaka Perumal and another vs. State of Tamil Nadu, (1991) 3 SCC 471 : AIR 1991 SC 1463 , 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. In State of M. P. vs. Saleem alias Chamaru and another, (2005) 5 SCC 554 : AIR 2005 SC 3996 , 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 of the society and the sentencing process has to be stern where it should be. Yet again in B. Nagabhushanam vs. State of Karnataka, (2008) 5 SCC 730 : AIR 2008 SC 2557 , the Court, taking note of the fact that the vehicle was being driven rashly and negligently, opined that six month’s simple imprisonment and a direction that 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. 20. Recently, in State of Punjab vs. Balwinder Singh and others, (2012) 2 SCC 182 : AIR 2012 SC 861 , 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 deterrance. 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.” 21. In Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648 : AIR 2012 SC 3801, it has been laid down that sentencing is an important task in relation to criminal justice dispensation system. One of the prime objective 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 same 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 fact 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.” 22. From the aforesaid authorities, it is luminous that the Hon’ble Supreme Court has expressed concerns in respect of commission of offence regarding had 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 Indian Penal Code. 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. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It bears 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. 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. 23. In the matter of Puttaswamy vs. State of Karnataka and another, 2009 AIR SCW 1744, the Hon’ble Supreme Court, in the matter where the accused person was convicted for committing offence punishable under sections 279 and 304-A, Indian Penal Code., reduced the sentence to that already undergone and enhanced the fine from Rs. 2,000/- to Rs. 20,000/-, where the accused caused death of a 7 years old girl on account of his rash and negligent driving tractor. 24. In the matter of B. G. Goswami vs. Delhi Administration, AIR 1973 SC 1457 , the Hon’ble Apex Court has held that : “10. --------the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is only harmful to the society of which he forms an integral part, but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. Once does not deter and the other may frustrate, thereby making the offender a hardened criminal. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. Once does not deter and the other may frustrate, thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after seven years of the agony and harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same.” 25. In the present case, the applicant has undergone a protracted trial for a period of about 17 years and suffered trauma of protracted trial. Thus, looking to the overall circumstances of the case, specially the fact that the applicant is suffering from the persistent agony for last about 17 years and he has remained in jail for more than 1½ months, to meet the ends of justice, it will be just and proper if the sentence is reduced as already undergone and the fine amount is enhanced. Accordingly, revision is partly allowed and increased the amount of fine from Rs. 2500/- to Rs. 7,500/- (Rupees Seven Thousand Five Hundred) to be paid by the applicant to the legal representatives of deceased Tarun Pratap Singh and reduce the sentence to the period already undergone, subject to payment of the fine. The aforesaid fine is to be deposited by the applicant in the trial Court within three weeks from the date of receipt of certified copy of this order, and on such deposit, the said amount shall be made over to the legal representatives of deceased Tarun Pratap Singh. The aforesaid fine is to be deposited by the applicant in the trial Court within three weeks from the date of receipt of certified copy of this order, and on such deposit, the said amount shall be made over to the legal representatives of deceased Tarun Pratap Singh. In default of such deposit, this order shall remain in abeyance for further period of four weeks and if still no deposit is made within the said period, this revision shall be treated as dismissed and the applicant shall be sent to jail to serve remaining sentence. 26. The revision petition is partly allowed. The record of trial Court as well as the appellate Court be sent back with the copy of this order.