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2016 DIGILAW 2499 (HP)

Kalimudeen v. State of H. P.

2016-11-28

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J.(Oral) The present criminal revision petition filed under Sections 397/401 of the Cr.PC, is directed against the judgment dated 2.5.2008, passed by the learned Sessions Judge, (F), Shimla, HP, in Criminal Appeal No. 1-S/10 of 2008/03, affirming the judgment of conviction dated 20.9.2003, passed by the learned Judicial Magistrate Ist Class, Chopal, District Shimla, HP, in Case No. 55-1 of 2003/24-II of 2003, whereby the accused-petitioner has been sentenced as per description given herein below:- "Section 279 IPC To undergo simple imprisonment for a period of six months and in case of default, to further undergo simple imprisonment for a period of one month. Section 337 of IPC To undergo simple imprisonment for three months with fine of Rs. 500/- and in default of deposit of fine, further simple imprisonment for a period of one month. Section 338 of IPC The convict is sentenced for six months with fine of Rs. 500/-. Section 304 (A) of IPC One year rigorous imprisonment with fine of Rs. 2000/- and in case of default of deposit of payment, to further undergo simple imprisonment for a period of two months." 2. Briefly stated facts as emerge from the record are that on 24.2.2003, one Sh. Rajinder Lal, got his statement recorded under Section 154 of Cr.PC, to the police stating therein that he was going with Dak to Post Office Nerwa and when he reached Rana Kiyar, he boarded the truck bearing No. HP-08-0811 and sat in the body of truck along with 80-90 persons. He further reported that vehicle in question was being driven by the petitioner accused namely Kalimudeen, who was known to him. As per, the complainant, when truck reached near Mahila Mandal Halao, it suddenly went off the road and fell into 150 feet deep gorge as a result of which, many people sustained injuries and some of them died on the spot. The complainant further stated that truck in question was being driven by the accused rashly and negligently, as a consequence, truck met with an accident. On the basis of aforesaid statement having been made by the complainant, police registered formal FIR Ext.PW17/A and I.O. visited the spot. The complainant further stated that truck in question was being driven by the accused rashly and negligently, as a consequence, truck met with an accident. On the basis of aforesaid statement having been made by the complainant, police registered formal FIR Ext.PW17/A and I.O. visited the spot. After completion of investigation, police came to conclusion that accident occurred due to rash and negligent driving of the petitioner accused, and accordingly, presented the challan under Sections 279, 337, 338 and 304(A) of the IPC, before the competent court of law. 3. Learned Judicial Magistrate Ist Class, Chopal District Shimla, (HP), after satisfying itself that prima facie case exists against the accused put a notice of accusation, to which he pleaded not guilty and claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having committed offence under the aforesaid Sections and convicted and sentenced him as per description already given above. 4. The present petitioner-accused being aggrieved with the judgment of conviction passed by the learned trial Court, filed an appeal under Section 374 of Cr.PC before the Court of learned Sessions Judge, (F), Shimla, HP, who vide judgment dated 2.5.2008, dismissed the appeal. Hence, this criminal revision petition before this Court. 5. Mr. Vinay Thakur, Advocate, representing the petitioner vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not sustainable as the same are not based upon the correct appreciation of evidence available on record, as such, same deserve to be quashed and set aside. Mr. Thakur, while referring to the judgments passed by the courts below, strenuously argued that bare perusal of the same suggests that both the courts below have failed to appreciate the evidence in its right perspective, as a result of which, great prejudice has been caused to the petitioner, who was admittedly not driving the vehicle rashly and negligently. Mr. Thakur, further contended that both the courts below wrongly convicted the petitioner for the aforesaid offences because, none of the prosecution witnesses supported the case of the prosecution that vehicle in question was being driven rashly and negligently at that relevant time, rather all the material prosecution witnesses turned hostile. Mr. Mr. Thakur, further contended that both the courts below wrongly convicted the petitioner for the aforesaid offences because, none of the prosecution witnesses supported the case of the prosecution that vehicle in question was being driven rashly and negligently at that relevant time, rather all the material prosecution witnesses turned hostile. Mr. Vinay further, contended that learned courts below failed to appreciate the positive evidence available on record suggestive of the fact that accident occurred due to mechanical defect in the truck. He further stated that it has specifically come in the statement of PWs that after noticing the mechanical defect by the accused, he (accused) shouted to passengers to save their lives, if possible, because truck went out of the control of the petitioner but by no stretch of imagination, it could be concluded by the courts below on the basis of evidence available on record that the accident occurred due to rash and negligent driving of the petitioner, especially, when his own children were also travelling in the same. Mr. Vinay, while referring to the finding of the courts below to the effect that when the truck was in bad condition, petitioner should not have plied the same or he should have avoided the accident by applying brakes, contended that aforesaid circumstances relied upon to the petitioner were never put to him under Section 313 Cr.PC and as such, trial was vitiated as petitioner has been prejudiced by not putting such circumstances/evidence to him. He further stated that case of the prosecution was that petitioner was driving the vehicle rashly and negligently as he was driving the vehicle in high speed but there is no evidence led on record by the prosecution to prove speed at that relevant time of the vehicle involved in the accident. While concluding his arguments, Mr. Vinay, invited attention of this Court to the judgment passed by the Hon'ble Apex Court, in case titled Jacob Mathew v. State of Punjab, 2005 Cr. LJ. 3710 to suggest that "to prove the criminal negligence, the mensrea has to be proved and the principle of res-ipsa liquitor is not applicable in the criminal case especially when the accused is sought to be punished for criminal negligence. LJ. 3710 to suggest that "to prove the criminal negligence, the mensrea has to be proved and the principle of res-ipsa liquitor is not applicable in the criminal case especially when the accused is sought to be punished for criminal negligence. He also invited attention of this Court to the statements having been made by the PWs to demonstrate that none of PWs supported the case of the prosecution that vehicle in question was being driven rashly and negligently by the petitioner-accused that too in high speed and as such, no conviction could be recorded by the courts below on the aforesaid evidence adduced on record by the prosecution. Mr. Vinay Thakur, also contended that the learned trial Court swayed with emotion while recording the conviction of the petitioner because many people died and some of them suffered injuries on account of accident. In the aforesaid background, Mr. Vinay, prayed for acquittal of the petitioner after setting aside the judgment of conviction recorded by the courts below. 6. Per contra, Mr. Ramesh Thakur, learned Deputy Advocate General, representing the State supported the impugned judgments passed by the courts below. He vehemently argued that bare perusal of the impugned judgments suggests that same are based upon the correct appreciation of the evidence available on record and prosecution has been able to prove its case beyond reasonable doubt. He further contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially, in view of the concurrent findings of fact recorded by the courts below. Mr. Ramesh, further argued that there is no force in the contention put forth by the counsel representing the petitioner that none of prosecution witness has supported the case of the prosecution because all the material PWs though turned hostile, but in their cross examination, they have categorically admitted that at that relevant time, 80-90 people were travelling in the truck being driven by the petitioner in high speed. Mr. Thakur, further contended that bare factum that at that relevant time 80-90 people were travelling in the truck, was sufficient to conclude sheer negligence of the petitioner accused, which was not a passengers vehicle but was meant for carrying goods. Mr. Thakur, further contended that bare factum that at that relevant time 80-90 people were travelling in the truck, was sufficient to conclude sheer negligence of the petitioner accused, which was not a passengers vehicle but was meant for carrying goods. He specifically invited attention of this Court to the mechanical report Ext.PZ led on record by the prosecution to refute the contention put forth by the counsel representing the petitioner that there was mechanical defect, which led to the accident. While specifically referring to the mechanical report, Mr. Ramesh, vehemently argued that as per mechanical report, there was no defect in the truck at that relevant time, rather same was found to be in third gear, which suggest that vehicle in question was being plied in high speed at that relevant time. While concluding his arguments, Mr. Ramesh Thakur also reminded this Court that it has very limited powers while exercising its revisionary powers under Section 397 of the Cr. PC to re-appreciate the evidence, especially when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 7. I have heard learned counsel for the parties as well carefully gone through the record 8. I have heard learned counsel for the parties as well carefully gone through the record 8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record. 9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another v. Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order." 10. Perusal of the records made available to this Court suggests that on 24.2.2003, truck bearing No. HP-08-0811, carrying 80-90 persons met with an accident, as a result of which several people suffered injuries whereas some occupants lost their lives. Petitioner accused has admitted in his statement under Section 313 recorded by the court below as far as death of various occupants is concerned but denied that vehicle was being driven by him rashly and negligently. Hence, in view of the aforesaid statement having been made by the petitioner accused under Section 313, there is no dispute, if any, qua the accident as well as driving of the vehicle by him at that relevant time. Accordingly this Court, with a view to ascertain the genuineness and correctness of pleas/submissions having been made/taken by the learned counsel for the petitioner that there is no evidence available on record suggestive of the fact that accident took place due to rash and negligent act of the driver, carefully perused the entire evidence adduced on record by the prosecution. Prosecution with a view to prove its case examined as many as 23 witnesses. 11. PW1 Rajinder Singh (complainant) while making deposition before the learned trial Court stated that at that relevant time, he was travelling in the truck along with other persons but he is not aware who was driving the vehicle and he heard some noise and truck rolled down. He further stated that he does not know who was at fault and accident took place and some people have died and some received injuries. This witness was declared hostile but in his cross examination, aforesaid witness denied that he is not known to the accused. He also denied that accused was plying the vehicle rashly and negligently and caused accident. 12. Similarly, PW2 Kumari Savita stated that she was travelling in truck and accused was plying the truck and when they reached near Halao, truck rolled down, as a result of which, she sustained injury but she is not aware how accident occurred. This witness also turned hostile. But in her cross examination, she admitted that truck was in full speed and rolled down. 13. PW3 Govind (conductor of the truck) stated that there was a rally of Shatrughan Sinha at Nerwa and many people were sitting in truck and truck was being driven by the accused. This witness also turned hostile. But in her cross examination, she admitted that truck was in full speed and rolled down. 13. PW3 Govind (conductor of the truck) stated that there was a rally of Shatrughan Sinha at Nerwa and many people were sitting in truck and truck was being driven by the accused. He further stated that truck was in slow speed and he was seated on the conductor seat. He further stated that he heard the accused shouting that if any person can save himself, he can. This aforesaid witness was also declared hostile but in cross examination conducted by learned APP, he admitted that people were also sitting on the tool and body of the truck. He also in his cross examination denied the suggestion that vehicle in question was being driven rashly ad negligently by the petitioner accused. 14. PW4, Master Parkash (minor) also stated that he was not aware how accident took place but he was in the truck which rolled down. 15. PW5 Santosh Kumar stated that about 86 persons were sitting in the truck which met with an accident, as a result of which he sustained injuries. He also stated that his wife also sustained injuries but he is not aware about who was plying the truck. 16. PW6 Radho Devi stated that truck was in speed and it rolled down and she sustained injuries. 17. PW7 Ashok Kumar while deposing before the learned trial Court stated that at that relevant time there were about 75-80 persons in the truck. He further stated that people were sitting in the tool and body of the vehicle in question because there was a rally of BJP and truck was in speed and it rolled down due to negligent driving of the accused. However, in his cross examination, he stated that truck was in the speed of 100 km per hour. He denied that on that day, he came to Nerwa after running from house. He further admitted that he never drove the truck and cannot say about the speed of the truck. 18. PW8 Kumari Kaushalya and PW9 Kumari Devi also stated that at that relevant time, 70-80 persons were occupying the truck and truck was going to rally. In their cross-examination, they stated that they were not aware of the speed of the truck. 19. 18. PW8 Kumari Kaushalya and PW9 Kumari Devi also stated that at that relevant time, 70-80 persons were occupying the truck and truck was going to rally. In their cross-examination, they stated that they were not aware of the speed of the truck. 19. PW10 Parma Nand though stated that truck was in rash speed but in his cross examination, he admitted that there was defect in truck, as a result of which, accident took place. Aforesaid witness, on his re-examination on the aforesaid point again stated that he had heard the sound of breaking of "Kamani" of the truck, as a result of which, accident took place. 20. PW11 Sant Ram in his cross examination admitted that people were raising slogans and people were also telling the driver to ply the vehicle in speed as they wanted to reach the destination. But in his cross examination, PW11 specifically stated that since he never plied the vehicle, he cannot tell the exact speed of the vehicle. 21. PW12, Khiyali Ram stated that truck was full with people but he is not aware of the speed of the truck. PW 13 Rainu Devi stated that truck was in speed and rolled down. 22. PW14 Kumari Lalita stated that the truck was in speed. She also admitted in cross-examination that she was sitting in the back side of the truck. Similarly, PW15 Deeva Devi and PW16 Bali Devi also corroborated the version put forth by the PW14 that truck was in speed 23. PW17 ASI Yodha Ram only registered the FIR Ext. PW17/A. PW18 Bjagat Singh only identified the deceased. 24. PW19 Ran Singh, who also suffered injury on the accident also not supported the case of prosecution and as such, he was declared hostile. He in his cross examination by APP, also stated that he cannot tell about the actual speed of truck. 25. PW20 Jagat Ram also corroborated the version put forth by the other PWs that truck met with an accident, as a result of which some people died and some sustained injuries. But in his cross-examination, he was unable to state about the speed of the truck because many people had occupied the truck. PW21 Nek Mohammad (one of the injured) also supported the version put forth by PW10 that he heard some noise of breaking 'kamani'. He also stated that truck was in slow speed. 26. But in his cross-examination, he was unable to state about the speed of the truck because many people had occupied the truck. PW21 Nek Mohammad (one of the injured) also supported the version put forth by PW10 that he heard some noise of breaking 'kamani'. He also stated that truck was in slow speed. 26. PW23 ASI Ramesh Chand, stated that accident occurred due to rash and negligent driving of the accused. In his cross examination, he admitted that no witness from the village of the accused was associated. He further admitted that there are four shops of photographs and he did not get photographs clicked from the place from where the truck was rolled down. He also admitted that three daughters of the accused were also sitting in the truck but he denied that anybody told him that accused was plying the vehicle in rash and negligent manner. He further admitted in his cross examination that from where the vehicle rolled down, there is no parapet but he is not aware about from which door mechanic entered into the vehicle. 27. Conjoint reading of aforesaid PWs clearly suggests that none of PWs supported the version put forth on behalf of the prosecution. True, it is that all aforesaid prosecution witnesses stated that vehicle in question was carrying 80-90 people at that relevant time and the vehicle in question was being driven by the petitioner accused. But fact remains that all material prosecution witnesses who were occupants at that time of accident turned hostile as far as factum of rash and negligent driving of the petitioner accused is concerned. PW8, PW 14, PW15 and PW16 though in their examination in chief stated that truck was in speed but in their cross–examination all these aforesaid prosecution witnesses stated that they are unable to tell the exact speed of the vehicle at that relevant time. Similarly, depositions made by other prosecution witnesses in examination-in-chief though suggests that truck was in rash speed but if their cross examination is perused carefully, it nowhere supports the case of the prosecution that vehicle in question was being driven rashly and negligently, at that relevant time by the petitioner. Admittedly, all the PWs in one voice stated that at that relevant time there may be more than 80-90 people sitting in the truck. Admittedly, all the PWs in one voice stated that at that relevant time there may be more than 80-90 people sitting in the truck. True, it is that some of the PWs stated that truck was being driven rashly and in speed but admittedly, there was no evidence worth the name led on record by the prosecution suggestive of the fact that vehicle in question was being driven rashly and negligently by the petitioner accused at that relevant time because none of the prosecution witness stated something qua the exact speed, if any, of the vehicle. 28. True, it is that speed may not be exact criteria to determine the question with regard to rash and negligent driving of the accused, but while proving rash and negligent driving of the driver of the il-fated vehicle, prosecution is expected to lead positive evidence on record suggestive of the act that vehicle was in high speed or same was being driven in such a manner it endangered the human lives travelling in the same. 29. Though petitioner has made an attempt to demonstrate that accident occurred due to sudden mechanical defect occurred in the truck, which version of the petitioner, finds strength with statements of PW3, PW10 and PW21, wherein they stated that they heard some noise and thereafter, truck fell in the gorge. PW3 further stated that after noticing the mechanical effect petitioner accused, shouted and asked people to save their lives. But aforesaid attempt having been made by the petitioner accused could not succeed in view of the mechanical report i.e. Ext.PZ, whereby it has been specifically reported that truck was found in third gear and steering and break system were found in working order and there is no mention with regard to breakage of 'kamani' as claimed by the petitioner. 30. Leaving everything aside, this Court after perusing the entire evidence available on record is fully convinced and satisfied that prosecution was able to prove on record that at that relevant time, vehicle in question was carrying 80-90 people. It also emerge from the statement of PWs that people were sitting on the tool box and body of the truck also. Leaving everything aside, this Court after perusing the entire evidence available on record is fully convinced and satisfied that prosecution was able to prove on record that at that relevant time, vehicle in question was carrying 80-90 people. It also emerge from the statement of PWs that people were sitting on the tool box and body of the truck also. It has also come in the statement of PWs that people were going to attend some political rally at Nerwa, which suggest that vehicle in question was specifically engaged by the occupants of the ill fated truck on that relevant date for carrying them to the site of rally. 31. Now the question which arises for determination of this court is :- "Whether act of petitioner accused, who was driving the vehicle at that relevant time, in allowing 80-90 people to board the truck, which is admittedly not a passenger vehicle, is rash and negligent act or not?" This Court has no hesitation to conclude that though, there may not be any evidence suggestive of the fact that vehicle in question was being driven in rash and negligent manner by the petitioner accused at that relevant time but admittedly there is ample evidence suggestive of the fact that petitioner accused was negligent in allowing 80-90 people to board the vehicle in question on that day. Suggestion put forth by the defence to some of the prosecution witnesses that some of the occupants of the vehicle were insisting upon driver of the vehicle to drive fast also supports the case of the prosecution that driver was negligent while driving the vehicle as a result of which so many people lost their lives and many sustained injury. 32. Hence, this Court sees force much less substantial in the argument having been made by the learned Deputy Advocate General that petitioner accused was negligent. Mere permission by the petitioner accused to allow 80-90 people to board the vehicle is itself a sheer negligence at his part. True, it is that concept of negligence differs in civil and criminal law and what may be negligence in civil law may not necessarily be negligence in criminal law. To prove negligence in criminal law, the element of mens rea must be shown to exist. True, it is that concept of negligence differs in civil and criminal law and what may be negligence in civil law may not necessarily be negligence in criminal law. To prove negligence in criminal law, the element of mens rea must be shown to exist. In the Jacob Mathew's case supra, Hon'ble Apex Court has stated that for an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. In the instant case, conduct of the petitioner in allowing 80-90 people to board the truck itself indicates towards the high degree of negligence. 33. It is not the case of the petitioner that he was compelled to drive ill fated truck, which was carrying 80-90 people at that relevant time, meaning thereby, decision, if any, to allow 80-90 people to board ill fated truck was of petitioner accused. There cannot be any quarrel with the argument having been advanced by the counsel representing the petitioner that driving of vehicle at fast speed cannot be termed as rash and negligent act but as has been discussed above, sheer conduct of the petitioner to allow large number of people in truck suggest that he was negligent and because of his rash and negligent act, many people lost their lives and others suffered injuries. 34. In the present case, it stands duly proved that accused allowed 80-90 people to board his truck, which was not meant for carrying the passengers. It also emerges from the evidence available on record that the petitioner accused allowed some passengers to sit in the tool box on a hilly road, which is certainly an act of serious negligence. It may be taken note of that there is no space or sitting for passenger, if any, in the truck, which is admittedly a goods transport vehicle. 35. This Court while sifting evidence also found that suggestion was put to PW11 Sant Ram that vehicle was not in good condition and more people should not have boarded the same. It may be taken note of that there is no space or sitting for passenger, if any, in the truck, which is admittedly a goods transport vehicle. 35. This Court while sifting evidence also found that suggestion was put to PW11 Sant Ram that vehicle was not in good condition and more people should not have boarded the same. This aforesaid suggestion having been made by the defence also indicates towards the high degree of negligence on the part of the petitioner accused, because if at all, vehicle was not in good condition, petitioner ought not to have allowed the passengers to board the truck but in the present case, it stands duly proved on record that vehicle in question was carrying passengers to the rally at Nerwa. This Court cannot lose sight of the fact that due to aforesaid act of negligence, many people lost their lives and suffered several injuries, which fact stands duly proved by the medical evidence led on record by the prosecution. 36. Hence, this Court sees no illegality and infirmity in the judgments passed by the courts below and same deserve to be quashed and set-aside. 37. Faced with this situation, learned counsel for the petitioner-accused also prayed that accused may be given the benefit of probation under Section 4(b) of the Probation of Offenders Act, 1958 keeping in view his age and his being first offender. He also stated that mitigating circumstance in this case is that more than 13 years have passed after happening of that incident and passing the judgment dated 20.9.2003, whereby the accused was convicted and he has already suffered agony during the pendency of the appeal in the court of learned Sessions Judge, as well as in High Court of Himachal Pradesh. In support of the aforesaid arguments, Mr. Vinay Thakur, also invited the attention of this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh v. State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under: 9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behaviour for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons. 38. In this regard, reliance is also placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla v. State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under: "7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life. 8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour." 39. The reliance is also placed upon the Hon'ble Apex Court judgment Hari Kishan and State of Haryana v. Sukhbir Singh 1988 AIR (SC) 2127, wherein it has been held as under: "8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code, 1973 Section 357, leaving aside the unnecessary, provides:- "357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The Court may enforce the order by imposing sentence in default." 40. This Court also cannot lose sight of the stern observations made by the Hon'ble Apex Court in State of Punjab v. Saurabh Bakshi 2015 (5) SCC 182 , while dealing with the accident case. Their lordships in the aforesaid judgment in paras No. 1, 14, 24 and 25 have held as under; "1. Long back, an eminent thinker and author, Sophocles, had to say: "Law can never be enforced unless fear supports them." Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every right thinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If any one defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognises. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N. Cardizo "Justice, though due to the accused, is due to the accuser too". And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. 14. In this context, we may refer with profit to the decision in Balwinder Singh (supra) wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana and reproduced two paragraphs which we feel extremely necessary for reproduction:- (Balwinder Singh case, SCC pp. 186- 87, para12) "12…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. 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." (Dalbir Singh case, SCC pp. 84-85 & 87, paras 1 &13)" 24. Needless to say, the principle of sentencing recognises the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months 25. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months 25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish." 41. After giving my thoughtful consideration to the submissions as well as law cited by Mr. Vinay Thakur, Advocate representing the accused in the present case, I am of the view that same cannot be made applicable in the present case for granting the benefit of Section 4 of probation of Offenders Act, 1958. The Hon'ble Apex Court in the judgment cited above has deprecated the practise of courts in settling the matter by awarding compensation or releasing the accused by giving the benefit of Probation of Offenders Act, 1958. 42. After bestowing my thoughtful consideration to the evidence led on record, I have no hesitation to conclude that prosecution was not able to prove on record rash and negligent driving, if any, on the part of the petitioner accused. However, action of accused in allowing 80-90 persons to board the ill fated truck clearly suggests that he was negligent. It has also come in evidence that truck was not in good condition and as such, petitioner accused should not have allowed the people to board the truck, which is/was definitely meant for carrying passengers. However, action of accused in allowing 80-90 persons to board the ill fated truck clearly suggests that he was negligent. It has also come in evidence that truck was not in good condition and as such, petitioner accused should not have allowed the people to board the truck, which is/was definitely meant for carrying passengers. Hence, this Court is of the view that boarding of 80-90 people in the ill fated truck, certainly indicates towards the negligent conduct on the part of the petitioner and as such, he deserves to be convicted and sentenced for the same. In view of the above, judgment passed by the courts below deserve to be upheld. This Court is of the view that conviction recorded by the courts below is on higher side and same needs to be modified, especially, when prosecution was not able to prove the rash and negligent driving of the petitioner. Moreover, more than 13 years have passed after occurrence of the incident and during this period, petitioner must have suffered mental agony. It has also come in evidence that at the time of incident, his daughters were also travelling in the same. Hence, this Court deems it fit to modify the sentence as imposed by the courts below to three months for all the offences. Petitioner accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by learned trial Court, which has been further modified by this Court vide this judgment. Needless to say that order dated 22.10.2009, passed by this Court, whereby sentence imposed by the Court below was suspended, shall stand vacated automatically. Pending applications, if any, stand disposed of.