AT CHANDIGARH v. Mr.Gaurav Garg Dhuriwala, A.A.G. Punjab

Judgment

1. The present revision petition is directed against judgment dated 4.11.2009 rendered by the Court of Additional Sessions Judge (Adhoc), Fast Track Court, Gurdaspur, vide which it dismissed the appeal against judgment of conviction and order of sentence dated 23.11.2006 rendered by the Court of Chief Judicial Magistrate, Gurdaspur, vide which the accused was held guilty for commission of offences punishable under Sections 279/337/304-A of Indian Penal Code (hereinafter to be referred as `IPC') and was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 15 days for offence under Section 304-A IPC and was further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in Crl.R.No.3098 of 2009 (O&M) -2- default of payment of fine to further undergo rigorous imprisonment for a period of 10 days for offence under Section 279 IPC and to further undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for 10 days for offence under Section 337 IPC in

FIR No.74, dated 10.7.1999, registered under Sections 304-A/279/337/427 IPC, at Police Station Kalanaur, and however, all the sentences were ordered to run concurrently.

2. Briefly stated, case of the prosecution is that on 10.7.1999, Nazir Masih complainant alongwith Kaka Masih, Sukhdev @ Bara, and Gurnam Singh were sitting in front of the shop of Amir Kaur after digging trenches for laying down the telephone wires in Village Bakshiwala. In the meantime, a truck bearing registration No.PAT-4445, which was being driven by the present revision-petitioner accused-Bakshish Singh in a very rash and negligent manner came from the side of Kalanaur. The driver of the truck could not control the truck and had taken the same on katcha path and hit the same against the shop as a result of which Kaka Masih succumbed to the injuries and Sukhdev @ Bana and Gurnam Singh also received injuries. A cycle standing in front of the shop was also damaged. The shop of Amrik Kaur was also damaged. On the statement of Nazir Masih, FIR was registered and investigation was taken in hand.

3. After completion of the investigation, report under Section 173 of the Code of Criminal Procedure (hereinafter to be referred as `Cr.P.C.') was filed against the accused, who was charged for offences punishable under Sections 304-A/279/337427 IPC, to which he did not Crl.R.No.3098 of 2009 (O&M) -3- plead guilty and claimed trial.

4. In order to substantiate the allegations against the accused, the prosecution examined as many as 12 witnesses.

5. PW1 is Jaspal Singh, an eye-witness of the occurrence, who deposed that accused was driving truck bearing registration No.PAT-4445 in a rash and negligent manner and that he came from Kalanaur side and could not control the same and hit against a shop as a result of which 2/3 persons sustained injuries and Kaka Masih succumbed to the injuries at the spot. He deposed that he had also received injuries in the accident and his shop was also damaged. PW2 is Gurnam Singh, another injured eye- witness, who corroborated the version of PW1 Jaspal Singh. PW3 is Nazir Masih, complainant of this case, who deposed regarding the entire case of prosecution as detailed above. PW4 is Gurnam Singh, who got conducted postmortem examination on the dead body of deceased Kaka Masih. PW5 is Jagir Masih, who identified the dead body of Kaka Masih. PW6 is Sukhdev Singh, another eye witness of the occurrence, who also corroborated the version of the complainant-Nazir Masih-PW3. PW7 is Dr.Vijay Kumar, who proved MLR of Gurnam Singh, injured, as Ex.PW7/A and of deceased Kaka Masih as Ex.PW7/B. PW8 is Dr.Sudhir Kumar, who proved the post mortem report of deceased Kaka Masih as PW8/A. PW9 is Rajesh Kumar, Photographer, who proved photographs of the accident as Exs.PW9/1 to PW9/3, negatives of which are Exs. PW9/4 to PW9/6. PW10 is Dalip Kumar, Registration Clerk, DTO Office, Gurdaspur, who proved registration certificate of Truck bearing No.PAT- 4445 involved in that accident. PW11 is Nand Lal, Mechanic, who proved Crl.R.No.3098 of 2009 (O&M) -4- the mechanical test report of the truck involved in the accident as Ex.PW11/A. PW12 is Arwinder Singh, Sub Inspector, i.e., the Investigating Officer of this case.

6. Statement of accused in terms of Section 313 Cr.P.C. was recorded by learned trial Court, in which he denied the incriminating evidence coming against him and pleaded innocence. However he did not lead any evidence in his defence.

7. Learned trial Court came to the conclusion that prosecution has been able to prove its case against the accused for the commission of offences punishable under Sections 279/337/304-A IPC beyond any reasonable shadow of doubt. Hence, he was convicted and sentenced as aforementioned. The appeal filed against the judgment was dismissed by the Court of learned Additional Sessions Judge (Adhoc) Fast Track Court, Gurdaspur, vide impugned judgment against which the present revision petition has been filed.

8. I have heard learned counsel for the revision-petitioner, learned State counsel and have gone through the whole record.

9. It is settled principle of law that in its revisional jurisdiction, this Court is not to reappreciate and reappraise the evidence until and unless it comes to the conclusion that the findings recorded by the trial Court are perverse, illegal and erroneous on account of misreading of evidence. The Courts below while relying upon the cogent and convincing evidence of prosecution witnesses were right in coming to the conclusion that the prosecution had proved its case against the accused beyond a reasonable shadow of doubt. Crl.R.No.3098 of 2009 (O&M) -5-

10. Moreover learned counsel for the revision petitioner has not pressed the present revision against judgment of conviction passed against the present revision-petitioner by both the courts below. However, it has been contended that the occurrence had taken place on 10.7.1999 and hence, he has been facing criminal proceedings for the last about 11 years and has suffered much agony of protracted trial. He has further contended that he is not a previous convict and hence he should be given benefit of probation under the Probation of Offenders Act. On the point he has placed reliance upon three different judgments delivered by Coordinate Benches of this Court in Santoksh Singh v. State of Punjab 2006(1) RCR (Criminal) 834; Sudh Ram v. State of Punjab 2006(3) RCR (Criminal) 550; and Rohtash Kumar v. State of Haryana 2009(1) RCR (Criminal) 383.

11. Law on the point as to whether the benefit of probation under the Probation of Offenders Act should be granted to the accused convicted for offence under Section 304-A IPC, has been settled by Hon’ble Apex Court in Dalbir Singh vs. State of Haryana, 2000 (2) RCR (Crl.) 816 by observing that the courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act when the accused is convicted of the offence under Section 304-A IPC in causing death of human beings by rash or negligent driving. Relevant paragraphs no.12 and 13 of the judgment read as under: “12. In State of Karnataka v. Krishna alias Raju(1987) 1 SCC 538 : ( AIR 1987 SC 861 : 1987 Crl.L.J. 776) this Court did not allow a sentence of fine, imposed on a driver who was convicted under S.304-A IPC to remain in force Crl.R.No.3098 of 2009 (O&M) -6- although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposed a fine.

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 S. 304-A I.P.C. as attracting the benevolent provisions of S.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. 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 of 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.”

12. This judgment was subsequently followed by the Hon’ble Apex Court in B.Nagabhushanam v. State of Karnataka, 2008(3) RCR (Crl.)50 and the benefit under the Probation of Offenders Act was denied Crl.R.No.3098 of 2009 (O&M) -7- to the accused for commission of offence punishable under Section 304-A IPC.

13. Hence, there is no force in the argument of learned counsel for the revision-petitioner that he deserves the benefit of probation under the Probation of Offenders Act. He has taken life of an innocent person by driving his truck in a rash and negligent manner and by taking the same on katcha path and by hitting against a shop thereby damaging the shop, a cycle standing there and causing injuries to two other persons as well. Hence, merely on the ground that he is facing trial for the last about 11 years, it cannot be said that he deserves the benefit of probation under the Probation of Offenders Act. Santokh Singh's case (supra), Sudh Ram's case (supra) and Rohtash Kumar's case (supra), on which reliance has been placed on behalf of the revision-petitioner are not of any help to him in view of the authoritative pronouncement by the Hon'ble Apex Court in Dalbir Singh's case (supra) followed in B.Nagabhushanam's case(supra) and in view of peculiar facts and circumstances of the case, as narrated above. However, taking into consideration the fact that the present revision-petitioner is facing criminal proceedings for the last about 11 years and that he is not a previous convict, he deserves some leniency in the matter of sentence.

14. Hence, sentence of rigorous imprisonment of two years for offence punishable under Section 304-A IPC imposed by the Courts below upon the accused is modified to the extent that the same is reduced to one year while maintaining the remaining sentences.

15. Hence, the present revision petition is dismissed being devoid Crl.R.No.3098 of 2009 (O&M) -8- of any merit except for modification in the quantum of sentence as aforementioned.

16. The concerned Chief Judicial Magistrate shall take necessary steps to comply with the judgment with due promptitude keeping in view the applicability of provisions of Section 428 Cr.P.C.

25.5.2010 (Ram Chand Gupta) Judge Note: Whether to be referred to Reporter? Yes/No.