Amar Singh S/o Sadul Singh vs State of Rajasthan

On 9.9.1989 an accident took place on the national highway

connecting Bilara to Jaipur involving a truck bearing registration

No.R.S.B.2225 and a Maruti 800 car bearing registration No.D.A.E.

5523. As per the prosecution, the petitioner was driving the truck

in a rash and negligent manner and hit the Maruti car which was

coming from the opposite direction. A passenger in the car named

Kalawati suffered grievous injuries as a result of the accident. She

died as a result of the injuries caused.

In the statement under section 313 Cr.P.C. the petitioner

admitted driving the truck when the accident took place.

I have perused the testimony of PW1 and PW5. With

reference to their testimony the learned trial Judge has returned a

finding that the petitioner was driving the truck in a rash and

negligent manner. The truck driven by the petitioner came on the

wrong side of the road and hit the Maruti car which was moving on

its side of the road.

Argument of the learned counsel for the petitioner that the

Maruti car had more passengers and not all were examined is

neither here nor there, for the reason the prosecution has not to

duplicate its evidence.

Site plan Ex.P14 has a story to tell. As per the site plan the

truck driven by the petitioner hit the Maruti car at the point

marked ''A''. So severe was the impact that the Maruti car was

pushed 17 feet on the point marked ''B''. The truck driven by the

petitioner which had served on the wrong side of the road was

found at point marked ''C''. The said point is at a distance of over

120 feet from spot ''A''. The truck cut across the road diagonally on

to the wrong side and became stationary after hitting the foot-

path. The site plan establishes the rashness with which the truck

was being driven.

The petitioner has been sentenced to undergo simple

imprisonment for a period of one year for the offence punishable

under section 304A IPC. However, on appeal the sentence was

reduced and he was sentenced to undergo three months SI for the

offences punishable under sections 304A, 279, 337 and 338 IPC

and sentences have been directed to run concurrently.

On the fact that the accident took place on 9.9.1989 and the

revision petition is being decided by this Court in July, 2017 the

argument in the alternative was to release the petitioner on

probation on account of long gap of time between the date of the

accident and the decision by this Court.

The imposition of an appropriate sentence as also grant of

benefit of probation under Section 4 of the Probation of Offenders

Act, 1958 to offenders convicted for an offence punishable under

Section 304A IPC is the subject matter of various decisions passed

by the Supreme Court, and I find a divergence in the view taken.

In the decision reported as 1981 (Supp) SCC 17 Aitha

Chander Rao V/s State of Andhra Pradesh, noting that there

was an element of contributory negligence from the side of the

deceased, the appellant, who was sentenced to undergo RI for a

period of two years for an offence punishable under section 304A

IPC by the trial court, affirmed by the appellate court and not

interdicted by the High Court, was given the benefit of probation

by the Supreme Court.

In the decision reported as 1995 Supp (2) SCC 385

A.P.Raju V/s State of Orissa, for the offence punishable under

Section 304A IPC benefit of probation was granted in view of the

fact that between the date of the accident which was 20.5.1979

and the decision of the Supreme Court dated 16.2.1994, 15 years

had elapsed. Meaning thereby as per the Supreme Court no

purpose would be served to require A.P.Raju to suffer the sentence

imposed.

A discordant note was struck in the decision reported as

(2000) 5 SCC 82 Dalbir Singh V/s State of Haryana. The

argument that long period of time had elapsed between the date

of the accident and the decision by the Supreme Court was

rejected as entitling grant of probation on the reasoning that there

was an alarming rise in road accidents and that the offender was a

professional driver. In para 13 of the decision it was observed as

as under:-

"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 P.O. 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 for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."

The said decision was followed with approval by the Supreme

Court in the decision reported as (2003) 9 SCC 208 Thakur

Singh V/s State of Punjab.

The last two decisions afore-noted were followed once again

by the Supreme Court in the decision reported as (2008) 5 SCC

730 B.Nagabhushanam V/s State of Karnataka.

The decision next in line is reported as (2008) 8 SCC 225

Manish Jalan V/s State of Karnataka. Noting that the

appellant was not intoxicated, taking a lenient view, the sentence

imposed by the High Court to undergo SI for a period of one year

for the offence punishable under Section 304A IPC was reduced to

the period already undergone. The decision does not note the

period which the appellant therein had actually undergone. It

needs to be highlighted that the decision in Manish Jalan

pronounced by two Judges bench of the Supreme Court did not

note the earlier three decisions noted by me hereinabove in Dalbir

Singh''s case, Thakur Singh''s case and B.Nagabhushanam''s case.

In the decision reported as 2013(1) RCR (Criminal) 826

Ismail V/s Police Sub Inspector, Hospet, for the offence

punishable under Section 304A IPC, noting the age of the

appellant was 74 years and the medical certificate established that

the appellant''s movement was fairly restricted, sentence to

undergo 15 days imprisonment already suffered by Ismail was

held to be the proper sentence.

In the decision reported as (2012) 2 SCC 182 State of

Punjab V/s Balwinder Singh & ors., for the offence punishable

under section 304A IPC, the decision of the High Court to reduce

the sentence to the period already undergone, of 15 days, was set

aside. Balwinder Singh was sentenced to undergo imprisonment

for a period of six months. The decisions in Dalbir Singh''s case

and B.Nagabhushanam''s case were cited with approval. The

argument that 17 years had elapsed between the date of the

accident and the decision of the Supreme Court was negated as a

mitigating factor.

In the decision reported as (2015)5 SCC 182 State of M.P.

V/s Mehtaab, the decision of the High Court to let off Mehtaab

for the period already undergone was set aside. The sentence

was of 10 days.

In the decision reported as (2015) 5 SCC 182 State of

Punjab V/s Saurabh Bakshi, the reduced sentence by the High

Court was set aside and it was also held that Saurabh Bakshi

would not be entitled to the benefit of probation. As per the

decision, for professional drivers no leniency or compassion can be

shown unless mitigating circumstances were proved to be existing.

In a concurring judgment authored by Madan B.Lokur J, in

the decision reported as (2015) 13 SCC 444 State through

Central Bureau of Investigation V/s Sanjiv Bhalla, in para 22

it was observed as under:-

"22. It does appear that depending upon the facts of each case, causing death by what appears ( but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A IPC in an accident "where mens rea remains absent" and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A IPC, the convict must be released on probation-it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case."

Three principles emerge from the decisions. Firstly, the

Courts have to be strict where the offender is a professional driver.

Secondly, unless mitigating circumstances are shown, no leniency

can be shown. Lastly, mere delay is not a mitigating circumstance.

No mitigating circumstance other than the time lag between the

date of the accident and the decision by this Court has been

shown. It is not the case of the petitioner that he is aged and due

to age suffers from any medical disability.

The petition is dismissed.