Dhilan Singh s/o Khuman Singh Vs State of M.P.

This criminal revision under Section 397 / 401 of the Code of Criminal Procedure, 1973, hereinafter referred to "the Code", has been filed by the petitioner against the order dated 08.11.2002 passed in Criminal Appeal No.100/2001 by learned 1st Additional Sessions Judge, Rewa, arising out of judgment of conviction and sentence passed by Judicial Magistrate First Class, Rewa dated 11.05.2001 in Criminal Case No.190/1996, whereby the petitioner was convicted for offence punishable under Section 304-A of IPC and sentenced him to undergo rigorous imprisonment for 1 year and fine of Rs.400/-, with default stipulation.

The case of the prosecution, in nutshell, is that on 03.05.1993 at about 07:30 a.m., when the deceased Duasiya Bai, aged about 60 years, was going from Village Gahira to Govindgarh, at that time petitioner-Surendra Kumar, who was driving his vehicle (jeep), bearing registration No.WB-40-A/2559, rashly and negligently, hit the deceased from behind, due to that, she succumbed to the injuries on the spot. On complaint of Bhaiyalal (PW/1), FIR (Ex.P/1) was

registered by the police against the petitioner and after completing the investigation, police has filed charge sheet against the petitioner for offence punishable under Section 304-A of IPC before the concerned Magistrate.

During course of trial, the prosecution examined as many as 8 witnesses to bring home the guilt of the petitioner. After examining the petitioner under Section 313 of Cr.P.C., opportunity was also given to him to lead defence evidence for which he denied. While examining the petitioner under Section 313 of Cr.P.C., he stated that he is innocent. In defence, two witnesses, namely, Dharmendra Tamrakar (DW/1) and Janki Prasad Vishwakarma (DW/2) were examined.

After considering the testimonies of prosecution witnesses and material available on record, the petitioner was found guilty for causing death of deceased Duasiya, by driving of said Jeep bearing registration No. WB-40-A/2559 rashly and negligently and he was sentenced to undergo one year''s R.I. with fine of Rs.400/-, in default whereof, to further undergo 2 months Rigorous Imprisonment for the offences punishable under Section 304-A of the Act.

Aggrieved by the judgment and order dated 8.11.2002, passed by the learned Addl. Sessions Judge, Rewa, by which the appeal preferred against the judgment of the learned Judicial Magistrate First Class, Rewa, was dismissed, this revision petition has been filed praying for setting aside the judgment and order of sentence dated 11.5.2001, passed by learned Magistrate, Rewa and judgment dated 8.11.2002 passed by the Addl. Sessions Judge, Rewa, and acquittal of the petitioner for the aforesaid offence.

Learned counsel for the petitioner 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 petitioner so as to

hold him guilty under Section 304-A of IPC. He further submits that the petitioner has been falsely implicated in this case and in order to attract the provisions of Section 304-A of IPC, it was incumbent upon the prosecution to prove that the petitioner drove the offending jeep in rash or negligent manner. The prosecution witnesses inter alia stated that the petitioner 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 petitioner as the prosecution is required to prove the mens rea the guilty mind.

Learned counsel for the petitioner further submits that the impugned judgments of conviction and sentence passed by learned Courts below are contrary to facts and circumstances of the case and are liable to be set aside. There are lots of contradictions and omissions in the statements of the prosecution witnesses, hence, he prays that this revision be allowed and the petitioner be acquitted in respect of the offence punishable under Section 304-A of IPC.

Lastly, the learned counsel for the petitioner submitted that the incident is of 3.5.1993, i.e. about 20 years ago and petitioner is suffering from persistent mental and physical agony since last about 20 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. He further submits that he is doing the job of cycle repairing shop since last 15-20 years. In this context, learned counsel for the petitioner has relied upon the judgment in the case of (Kamla Prasad Vs. State of Rajasthan 2014 Cr.L.J. 2582).

Per contra, learned Panel Lawyer, appearing on behalf of the non-applicant/State has submitted that the case is based on the version of witnesses Bhaiyalal (PW/1), Indralesh Tripathi (PW/5) and Babadeen (PW/6), who are the witnesses and have fully

supported the prosecution case 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.

I have considered the rival submissions made by learned counsel for the parties and perused the entire material on record.

In the present case, the important witnesses are Bhaiyalal (PW/1), Indralesh Tripathi (PW/5) and Babadeen (PW/6), who are the eye witnesses of the incident and they have stated accident took place before them. They have further stated that petitioner was driving the offending vehicle rashly and negligently and due to which accident occurred, deceased was hit by the said offending Jeep. They further stated that petitioner did not take any care or caution, and due to which accident occurred. Deceased was hit by the said offending Jeep from back side. Petitioner did not stop the jeep, therefore, deceased succumbed to the injuries.

Dilip Kumar Nigam (PW/4) has stated that he reached on the spot after occurrence of the accident and saw that dead body of deceased was lying there and persons gathered there told that accident was caused by petitioner-Surendra Kumar. Thereafter, he went to police station Bhaiyalal (PW/1) for lodging report. ASI Y.S. Dwivedi (PW/8) has stated that during investigation, after reaching at spot, he prepared inquest memo of the dead body of Duasiya vide Ex.P/2 and sent the dead body for postmortem vide Ex.P/7 duly signed by him. He also stated that he had prepared the spot map and seized the said offending vehicle bearing registration No. WB-40-A/2559 from the petitioner vide Ex.P/6. Raghunandan Prasad (PW/3) has supported the version of ASI, Y.S. Dwivedi (PW/8), and stated that inquest memo of the dead body of the deceased Ex.P/2 was prepared by him and he had signed the

same. On some points, some witnesses have been declared hostile and have been cross-examined at length, but nothing have come out in support of defence.

From perusal of statements of aforesaid prosecution witnesses, it stands proved that the said jeep driven by the petitioner had hit the deceased and due to that deceased succumed to the injuries on the spot and further that the petitioner was driving it in a rash and negligent manner and caused the death of deceased Duasiya.

The evidence produced by the prosecution is sufficient to prove the guilt of the petitioner 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 petitioner 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.

In the case of T.N. Dhakkal V. 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, Cr.P.C ., 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 v. 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.

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.

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 Duasiya. This Court, concurs with the finding of learned Sessions Judge that death of Duasiya was caused by the petitioner while driving offending vehicle, 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 petitioner do not call for any interference by this Court in exercise of revisional jurisdiction.

So far as finding regarding sentence is concerned, the Hon''ble Apex Court, in Guru Basavaraj alias Benne Settappa V. State of Karnataka (Cr.Appeal No.1325/2012, decided on 29.8.2012) : (AIR 2012 SC (Cri) 1586, held as under :-

"16. In State of Karnataka V. 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 IPC., 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.250/- on the driver of a Motor Vehicle for an offence under Section 304-A of the IPC 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.

In Sevaka Perumal and another V. 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. V. 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 V. 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.

Recently, in State of Punjab V. 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."

In Alister Anthony Pareira V. 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 the 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."

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 304A of the I.P.C. 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. 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.

In the matter of Puttaswamy V. 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, IPC ., 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.

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. 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."

In the present case, the petitioner has undergone a protracted trial for a period of about 20 years and suffered trauma of protracted trial. Thus, looking to the overall circumstances of the case, specially the fact that the petitioner is suffering from the persistent agony for last about 20 years and he remained in jail for a period of about two weeks 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. As such, the petitioner''s conviction under Section 304-A of IPC is maintained and increase the amount of fine from Rs.400/- to Rs.5,000/- (Rupees Five Thousand) to be paid by the petitioner to the legal representatives of deceased Duasiya and reduce the sentence to the period already undergone, subject to payment of the fine. The aforesaid fine is to be deposited by the petitioner 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 Duasiya. 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 petitioner shall be sent to jail to serve remaining sentence.

The revision petition is disposed of accordingly. The record of trial Court as well as the appellate Court be sent back with the copy of this order.