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2024 DIGILAW 108 (RAJ)

Surajprakash S/o Madanlal v. State of Rajasthan

2024-01-17

SUDESH BANSAL

body2024
JUDGMENT : 1. Petitioner-accused has preferred this revision petition under Section 397 read with Section 401 CrPC, challenging the order dated 16.01.2004 in Criminal Appeal No.1/2003 passed by the Additional Sessions Judge, Ramganjmandi, Kota, dismissing his appeal and affirming the judgment dated 04.02.2003 in case No.164/1996 passed by the Judicial Magistrate First Class, Ramganjmandi, Kota whereby the petitioner has been convicted and sentenced as under: (a) Sections 279 IPC- Six months simple imprisonment, fine of Rs.100/-, in default to undergo one month simple imprisonment (b) Section 304-A IPC- Two year simple imprisonment, fine of Rs.100/-, in default to further undergo one month simple imprisonment. 2. Briefly stated, an accident occurred on 15.05.1996 when one Kalusingh, a labourer at M/s Mangalam Cement Factory, was removing stones from the road in the morning at about 9:00 AM, he was hit by a dumper truck (bearing No.RJ-20-G-1882) coming reverse and being driven by petitioner. In this accident Mr. Kalusingh got multiple injuries on different parts of his body and on the basis of his ‘Parcha Bayan’, FIR No.76/1996 came to be registered for offences under Sections 279, 337 IPC. Mr. Kalusingh stated in his ‘Parcha Bayan’ that the driver of dumper truck moved the dumper towards back side, rashly and negligently, and hit him. During course of medical treatment, Mr. Kalusingh succumbed to his injuries, hence, offence under Sections 304-A IPC was added. 3. After investigation in the FIR, charge-sheet was filed and charge was framed. The petitioner claimed no guilt of offences, hence trial commenced. The trial Court, on the basis of evidence on record, held that the petitioner drove the dumper truck towards backside without blowing horn in negligent manner and without noticing the presence of deceased who was working on the road. It was observed that the deceased Kalusingh died due to injuries sustained by him in the accident with the dumper truck and finally, vide judgment dated 04.02.2003, the petitioner was convicted and sentenced for offences under Sections 279 and 304-A IPC in the manner indicated hereinabove. 4. Criminal appeal filed by petitioner challenging the judgment of conviction and sentence dated 04.02.2003 remained unsuccessful and appellate Court affirmed the conviction as well as sentence of the petitioner and dismissed the appeal vide judgment dated 16.01.2004. 5. 4. Criminal appeal filed by petitioner challenging the judgment of conviction and sentence dated 04.02.2003 remained unsuccessful and appellate Court affirmed the conviction as well as sentence of the petitioner and dismissed the appeal vide judgment dated 16.01.2004. 5. There is a concurrent findings of fact against the petitioner in respect of proving his guilt to drive the dumper truck rashly and negligently due to which accident occurred and Mr. Kalusingh sustained injuries and later on, succumbed to his injuries. In respect of concurrent findings of fact, the legal position is well settled that unless a case is make out pointing out a patent error or error of jurisdiction or law, the fact findings is not liable to be interfered with by the High Court in exercise of its revisional jurisdiction. Further, it is also impermissible to re-appreciate the entire evidence afresh, just to draw an another conclusion than drawn by two courts. To fortify such proposition of law, reference of following two judgments of the Hon’ble Supreme Court, in case of Manju Ram Kalita Vs. State of Assam [ (2009) 13 SCC 330 ] and Malkeet Singh Gill Vs. The State of Chattisgarh [ (2022) 8 SCC 204 ] would be suffice. 6. Counsel for the petitioner argued the revision petition on merits but could not point out any such patent error/ defect in fact findings or an error of jurisdiction or law which warrant interference with the finding recorded by the trial Court as affirmed by the Appellate Court, by the High Court in exercise of its revisional jurisdiction under Section 397 read with 401 Cr.P.C. Hence, as far as finding of holding the guilt of petitioner to drive the dumper truck rashly, negligently and without taking necessary cautions, are hereby affirmed and conviction of the petitioner for offences under Sections 279 and 304-A IPC is sustained. 7. Counsel for the petitioner made an alternative prayer to reduce the substantive sentence of petitioner, to the period already undergone, and pointed out following mitigating circumstances in the present case. He urged that the petitioner is a poor driver and labourer class man, the manner in which the present accident occurred on the spot itself shows that it was just an accident by a chance. He urged that the petitioner is a poor driver and labourer class man, the manner in which the present accident occurred on the spot itself shows that it was just an accident by a chance. There is no evidence against the petitioner to drive the dumper truck with high speed and as far as negligence for not blowing horn is concerned, if the weight and size of the dumper truck is taken into account, same itself creates such a noise while moving on the road that a common man, in ordinary course of business becomes aware and careful by his own. He urged that as per the ‘Parcha Bayan’ of deceased, he was hit by the dumper truck when same was rolling down towards back and hit him from the back. It is not the case that the petitioner was not holding a valid license or was not skilled to drive the dumper truck or was driving the truck under influence of inebriated conditions. He urged that the petitioner has remained in jail for a period of about two and half months and now after a period of 28 years from the date of accident, it would not be just and proper to send the petitioner again in jail more so, when the petitioner has attained an advance age in his life and has also suffered a lot of mental agony and trauma of his conviction during this period. Hence, he prayed to modify the sentence of petitioner suitably as to reduce the period of imprisonment to the period already undergone by him. 8. Learned Public Prosecutor opposed the prayer to reduce the period of sentence, however is not in a position to counter the aforestated mitigating circumstances. 9. This Court is aware that the Apex Court has given various judgments on the point of sentencing the accused for offences under Sections 279 and 304-A IPC, depending upon different facts and circumstances. In few of judgments, the period of sentence has been allowed to be reduced, to the extent of period already undergone but there are other set of converse judgments as well, adversely commenting upon reduction of sentence period by the High Court, merely on account of long lapse of time because of pendency of appeal/ revision. In few of judgments, the period of sentence has been allowed to be reduced, to the extent of period already undergone but there are other set of converse judgments as well, adversely commenting upon reduction of sentence period by the High Court, merely on account of long lapse of time because of pendency of appeal/ revision. Nevertheless, it depends on facts and circumstances of each case as to what would be just and proper sentence which would be commensurate to the nature and gravity of offence as well as to advance the cause of justice. 10. The Hon’ble Apex Court, in case of Dalbir Singh Vs. State of Haryana [ 2000 (5) SCC 82 ], held that while considering the quantum of sentence to be imposed for offence of causing death by rash or negligent driven of automobiles, one of the prime considerations should be deterrence. A professional driver should not take a chance thinking that even if he is convicted, he would be dealt with leniently by the Court. 11. In a recent judgment delivered by the Apex Court in case of Uggarsain Vs. State of Haryana and Ors.[ (2023) 8 SCC 109 ], while dealing with principles for sentencing the accused, it was held that proportionality/ balancing of aggravating and mitigating circumstances should guide the sentencing process. Giving reference to the previous judgments, it has been held that the sentence should “deter the criminal from achieving the avowed object to law” and the endevour should be to impose an “appropriate sentence”. The Court hold that the imposing “Meagre sentences” “merely on account of lapse of time”, would be corrective. The Apex Court, while referring to the dictum of the judgment delivered in case of Jameel V. State of U.P. [ (2010) 12 SCC 532 ], emphasized para 15 which is being extracted hereunder:- “ ………...law should adopt the corrective machinery or 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. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.” 12. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.” 12. In an another judgment of the Hon’ble Supreme Court in case of State of Rajasthan V. Banwari Lal [(2022) 12 SCC 116], after giving adherence to large number of previous judgments of Hon’ble Supreme Court and high Courts, it was held and observed that “from the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court can not afford to be casual while imposing the sentence, in as much as both the crime and the criminal are equally important in the sentencing process. Courts musts see that the public do not lose the confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to the private vengeance” 13. In the afore-referred judgment of Banwari Lal (supra), the Apex Court referred and relied upon the verdict of the apex Court in case of Alister Anthony Pareira Vs. State of Maharashtra [ (2012) 2 SCC 648 ], wherein while dealing with convicts for offences under Section 304-A, 338 and 337 IPC comparing to the offence under Section 304-Part II in respect of sentencing process, in para 84, it was observed as under:- “Sentencing is an important task in the matters of crime. 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. 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: the 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.” 14. In an another verdict of the Apex Court, delivered in case of Sagar Lolienkar V. The State of Goa: Criminal Appeal NO.1415/2021 decided on 18th November, 2021, while affirming the conviction of accused appellant for offences punishable under Sections 279 and 304-A IPC, the substantive sentence of imprisonment was reduced to the period already undergone, simultaneously besides the fine, appellant was directed to deposit the some amount by way of compensation to the widow of deceased. The relevant portion of judgment reads as under:- “In the instant case, the appellant has been found to be guilty of offences punishable under Sections 279 and 304A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of the precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment.” 15. In a recent judgment dated 03.01.2024, delivered in criminal Appeal NO.39 of 2024 in case of K. Dinesh Vs. It was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment.” 15. In a recent judgment dated 03.01.2024, delivered in criminal Appeal NO.39 of 2024 in case of K. Dinesh Vs. The State of Karnataka & Anr by the Hon’ble Supreme Court reported in MANU/SCOR/0021/2024, the appellant who was bus driver and convicted for offence punishable under Section 279, 337 and 304-A IPC and was sentenced for a period of six months, his period of incarceration for four months and nine days was held to be adequate punishment and accordingly, the Hon’ble Supreme Court while granting no indulgence with the conviction of appellant, reduced the sentence to the one which is already undergone. 16. Coming to facts of the present case, it is not the case of prosecution that petitioner at the time of accident, was under influence of liquor or any other substance impairing his driving skills nor it is a case that the petitioner drove the dumper truck back side in a high speed or all of sudden but it is a simple case where the petitioner has been held guilty for driving the dumper truck rashly and negligently on the road without taking of necessary precautions to avoid the accident and petitioner did not blow horn while moving back his truck. Unfortunately, the deceased Kalusingh who was hit from the back of dumper truck, succumbed to injuries and died after four days of accident. There is nothing on record to show that it was a repeated accident on the part of the petitioner or the petitioner has been held guilty for similar nature of offences in any another case either prior or post to the present case. The accident occurred way back on 15.05.1996, it means near about 28 years ago. As per record, the petitioner has already suffered incarceration for a period of about two and half months and as much as has been facing mental agony and trauma of his conviction since about 28 years. Now, petitioner has attained to an advance age, hence, considering all such attending facts and circumstances, holistically, the cause of justice does not demand to send the petitioner again into Jail. Now, petitioner has attained to an advance age, hence, considering all such attending facts and circumstances, holistically, the cause of justice does not demand to send the petitioner again into Jail. Therefore, in the light of ratio decidendi, expounded by the Apex Court in catena of judgments, which have been referred hereinabove, and considering the mitigating circumstances of the present case, it would not be improper and unjust if the period of sentence already undergone by the petitioner is held to be adequate substantive punishment to him and while maintaining the amount of fine, petitioner be directed to pay some compensation to legal heirs of deceased. In the opinion of this Court, same would serve the cause of justice in order to maintain a balance between the corrective theory and deterrence theory required to be followed in sentencing process. 17. As a final result, the present revision petition is partly allowed and while upholding the conviction of petitioner for offences under Sections 279, 304-A IPC, the sentence awarded to petitioner in the impugned judgment stands modified in the following manner:- i) the substantive sentence of imprisonment of the petitioner is reduced to the period already undergone, ii) fine amount imposed against the petitioner is maintained and in addition, the petitioner is directed to deposit a compensation amount to the tune of Rs.10,000/- before the trial Court within a period of 90 days, which shall be disbursed to legal heirs of the deceased. 18. The petitioner is already on bail, he need not to surrender and his bail bonds stand canceled. 19. Record of the trial court be sent back.