Fatehmohmod Aliyasbhai Samanti vs State of Gujarat

M.B. Shah, J.—Being aggrieved and dissatisfied by the order dated 3rd September, 1984 passed by the Sessions Judge, Banaskantha District at Palanpur, in Criminal Appeal No. 12 of 1984, the petitioner-accused has filed this revision application.

It was the prosecution case that the petitioner was driving one bus belonging to the Agricultural University, Dantiwada, on 9-9-1981 at about 7-30 p.m. He was going from Palanpur to Dantiwada. When he came near village Chadotar on the Highway, two persons were found walking ahead of him on the edge of the tar road. It is the prosecution version that he was driving the bus rashly and negligently. He knocked down one person named Vaghari Ujambhai Punjabhai who died on the spot. The complaint was filed by Virabhai Mohanbhai at about 8-30 a. m. at the police station. After die investigation the accused was charge-sheeted before the Chief Judicial Magistrate, Palanpur. The case was transferred to the Judicial Magistrate, First Class, Palanpur. After taking into consideration the evidence of the eye-witnesses and other witnesses the Judicial Magistrate, First Class, Palanpur, by his judgment and order dated 9-1-1984 convicted the petitioner for the offences punishable under Sections 304A and 279 of the Indian Penal Code and Sections 112 & 116 of the Motor Vehicles Act and imposed S.I. for six months and a fine of Rs. 200/- in default, S.I. for 15 days. Against the said judgment and order the petitioner preferred Criminal Appeal No. 12 of 1984 before the Sessions Court, Banaskantha. After elaborate discussion of evidence and the law the learned Sessions Judge dismissed the appeal and confirmed the order of conviction and sentence passed by the Judicial Magistrate. He arrived at the conclusion that it cannot be said that the sentence was in any way excessive, inadequate or unjust.

At the time of admission of this revision application, the following order was passed:

Learned Advocate for the petitioner states that the petitioner is not pressing this revision application on merits but be merely prays that the petitioner may be released on probation u/s 360 of the Criminal Procedure Code. Rule to this limited extent. Same bail fresh bonds.

In this view of the matter, it is clear that the learned Advocate for the petitioner had not challenged the conviction order of the petitioner. At the time of hearing of this matter also the learned Advocate for the petitioner had not challenged the said conviction order but he submitted that the petitioner should be released on probation. He also relied upon the report of the Probation Officer wherein the Probation Officer has reported that taking into consideration the age of the accused and economical and financial position of the accused, he may be released u/s 4 of the Probation of Offenders Act. In my view, taking into consideration the conduct of the accused and the defence taken by him at the time of trial that he was not the driver of the said vehicle at the relevant time and also the nature of offence and the fact that one person has lost the life, this would not be a fit case for releasing the petitioner on probation.

Mr. Mehta, learned Advocate for the petitioner, however, vehemently submitted that in the cross-examination of hostile witnesses it has been pointed out that it was their version before the police that at the relevant time one tanker came from the opposite direction and to avoid accident the petitioner had taken turn on the left side which has caused this accident. In my view, this submission is without any substance. As such there was no suggestion by the defence to any of the eye-witnesses that from the opposite direction one tanker with full speed was coming and to avoid dash with the said tanker the petitioner was required to take a turn on the left side. As such the evidence on record clearly reveals that the petitioner was driving the bus rashly and negligently. The learned Sessions Judge has rightly considered the defence of the petitioner that he was not the driver of the said bus by which the accident had taken place. In my view, the petitioner has taken a false defence that he was not the driver of the bus and that he had not stopped the vehicle at the relevant time would be a factor for not reducing the sentence or for not releasing the petitioner on probation.

Apart from this aspect, in the case of Ravjibhai Maganbhai v. State of Gujarat 1984 GLH 306 : 1984 (1) GLR 122, I have held as under (at page 124-125 para 6 of GLR):

The other submission of the learned Advocate for the petitioner that the petitioner should be given benefit of Probation of Offenders Act or u/s 360 of the Criminal Procedure Code deserves to be discarded. In the case of Rattan Singh Vs. State of Punjab, , the Supreme Court has observed that a deadly spectacle is becoming so common these days in our towns and citizen that a truck driver whose lethal hands at the wheel of a heavy automobile has taken the life of a scooterist. More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country. It looks as if traffic regulations are virtually dead and Police checking mostly absent. By these proceases of lawlessness, public roads are now lurking death traps. The Court has further observed:

This, however, does not excuse the accused from his rash driving of a ''blind leviathan in berserk locomotion''. If we may adopt the words of Lord Green M.R. It scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt ringers.'' Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law u/s 304A I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menace. Thus viewed, it is fair to apply the Rule of res ipsa loquitor, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift. Looked at from this angel, we are convinced that the present case deserves no consideration on the question of conviction.

In that case the Court while considering the question of sentence had further held that the fact that the petitioner was having a large family to maintain and the proprietor of the truck has left his family in the cold, yet when a life has been lost and the circumstances of driving are harsh, no compassion can be shown."

In the case of State of Karnataka Vs. Krishna alias Raju, , while in a similar set of circumstances where the Magistrate has imposed the sentence of fine of Rs. 250/- for the offence punishable u/s 304A and other offences, the Supreme Court has observed that the Magistrate has shown utter disregard to the nature of offences, particularly the one u/s 304A of the Indian Penal Code and sentences provided for them under the Penal Code and the Motor Vehicles Act by imposing what may be terms as ''flea-bite'' sentences on the respondents. The Court has further held 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 judicial system. It would be worthwhile to reproduce the following observations of the Supreme Court in paragraph 7:

The High Court has failed to comprehend that the respondent has been let off with a total fine of Rs. 345/- for his convictions under all the five charges relating to the death of one person and the sustainment of injuries by another due to his rash and negligent driving besides his failure to secure medical assistance to the victims as well as his failure to make a report to the authorities about the accident. The reasons given by the High Court are really non-existent as well as irrelevant ones. It is not as if the respondent had been charged or convicted for a grave offence punishable with death or imprisonment for life and his fate had remained in suspense for a long time and as a consequence thereof, he had undergone mental agony and torment for a long period of time. Here was a case where the respondent had not only driven his bus in a reckless manner and caused the death or one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the Police authorities. Considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undetermine the confidence of the public in efficacy of the criminal judicial 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 u/s 304A, I.P.C. and that too without any extenuating or mitigating circumstance is bound to shock the conscience of anyone and will unmistakably leave the impression that the trial was a mockery of justice.

Further, following this decision, the Rajasthan High Court in the case of Ravjibhai Maganbhai Vs. State, , has analysed and pointed out that accidents have increased alarmingly and has observed as under:

The sentence of two years which was provided by the Legislature at a time the number of accidents was very meagre and the civilization has not come to automisation and automobiles running was not so frequent requires reconsideration by the Legislatures.

The latest statistical data furnished by various organisations like World Health Organisation, show as per the report of Raj Chegappa (Published in India Today Hindi dated 15 May, 1987 at page 71, that the fatal accidents have increased in geometrical proportion and the number of death has gone up to 40,000 during last year where as the number of deaths in such road accident was 17,778 in 1976. Injured has gone up from 82,547 in 1976 to 1,75,000 in 1986, and similarly the number of accident which were 1,24,662 in 1976 have increased 2,10,000 in 1986 showing an alarming situation, the report says that these accidents are 30 times more than the number of such accidents in other developing Countries of the World. Total persons killed in India on account of automobile accident on road is two and half per cent of the total death rate which again should be an eye opener to the all concerned. Only 24,600 persons died in 1980 and now as mentioned above the number has gone up to 40,000. This all shows that the Executive, Legislative and Judiciary all have to become alive to the warning of what Justice Holmes says as felt necessities of times and therefore the minimum mandatory punishment of one year rigorous imprisonment in fatal accident should be provided by the Legislature, in addition to the provision for increases of sentence u/s 304A IPC from two years to 5 years. This ''writing on the Walls'' too patent social need and if we ignore it, we can do so at our own peril.

Therefore, taking into consideration the alarming rate of increase in accidents, to avoid speeding menaces, to see that public roads do not become death-traps and/or lo see that heavy vehicles are not used as lethal weapons, some deterrent punishment is required to be provided tor such type ot cases, In any set or circumstances it would be totally misplaced sympathy if the accused is released on probation. This may lead to lawlessness, Furtner, the sentence also should not be a flea-bite sentence. In this case it should not be forgotten that it was a defence of the petitioner that he was not the driver of the vehicle and that as the prosecution Has proved beyond reasonable doubt that he was the driver of lhe vehicle, he seeks sympathy from the Court and prays that he may be released on probation. But taking into consideration all lhe facts it would not be just and proper to release the petitioner on probation or to reduce the sentence. Hence the revision application deserves to be rejected.

In the result, the revision application is rejected. Rule discharged. The bail bond of the petitioner shall stand cancelled.

At the request of the learned Advocate for the petitioner, six weeks'' time is granted to the petitioner to surrender to custody.