Jai Pal vs State of Haryana

P.K. Jain, J.

This revision is directed against the judgment dated 19.4.1996 passed by the Sessions Judge, Gurgaon whereby the conviction and sentence of the petitioner for the offences under sections 279/304A of the Indian Penal Code recorded by Judicial Magistrate, Gurgaon by his judgment and order dated 14.3.1995/15.3.1995 have been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for a period of three months for the offence under section 279 IPC and also to undergo imprisonment for a period of one year for the offence under section 304A IPC. Both sentences have been ordered to run concurrently.

The facts necessary for the disposal of this revision are that on 10.12.1988 the petitioner was proceeding on DelhiJaipur road while driving Haryana Roadways bus No. HNM121. When he reached near Bilaspur Chowk he tried to overtake a Liquid Petroleum Gas tanker No. DIG 6573 going ahead without caring for the oncoming traffic. As a result of his rash and negligent driving the bus had headon collusion with truck No. HYU7751 coming from the opposite direction, which overturned resulting into death of six of his inmates. The matter was reported to the police by the conductor employed on the said gas tanker. After completing the investigation, a chargesheet in respect of the said offences was submitted to the court against the petitioner. The charge for the said offence was framed against the petitioner to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined seven witnesses. Statement of the petitioner was recorded under section 313 of the Code of Criminal Procedure (for short the Code) wherein he denied the allegations of the prosecution and pleaded false implication.

On an appraisal of the prosecution evidence, the Judicial Magistrate, Gurgaon found the accused guilty and convicted and sentenced him as stated above. The appeal of the petitioner against his conviction and sentence did not find favour with the Sessions Judge and the same was dismissed by the impugned judgment. The petitioner has approached this Court under section 401 of the Code.

At the motion hearing the learned counsel for the petitioner, while being faced with the concurrent findings of facts recorded by the two courts below and having no material to point out any irregularity or illegality in the said findings, has confined his argument only in respect of the sentence imposed upon the petitioner. Accordingly a notice was issued to the respondentState.

I have heard the learned counsel for the parties and have perused the record.

Shri M.L. Saini, Advocate, the learned counsel for the petitioner, has argued that both the courts below have been impressed with the fact that on account of this accident six persons have lost their lives and certain other persons were injured but have not considered the plea of the petitioner in the context of the facts and circumstances, for his release on probation. It has been pointed out by the learned counsel that the petitioner is not a previous convict, that he has four children besides his ailing mother and if he is awarded substantive punishment he would lose his job also which would affect the subsistence of the entire family. It has been pointed by the learned counsel that both the courts below have not taken into consideration the fact that the petitioner has been facing this protracted criminal trial for the last about 7/8 years. According to the learned counsel, the petitioner ought to have been released on probation. In support of this plea, the learned counsel has placed reliance upon a judgment of the apex Court rendered in A.P. Raju v. State of Orissa, 1995 Supreme Court Cases (Crl) 675 a and judgment of this Court in Mann Parkash v. State of Haryana, 1996(1) Recent Criminal Reports 437 and the various decisions referred to therein.

On the other hand, Shri H.S. Beniwal Advocate while appearing on behalf of the State has argued that the petitioner is guilty of rash and negligent driving whereby he has taken the lives of six persons and injured certain others. It has been thus argued that consideration of undue sympathy on the question of sentence in such cases will lead to miscarriage of justice.

Respective arguments have been considered carefully. Admittedly, the prosecution against the petitioner was launched in the year 1988. In other words, the petitioner has been facing a protracted criminal trial for the last about 8 years. It is evident from Para 4 of the judgment recorded by the Judicial Magistrate that the trial against the petitioner was prolonged on account of the default of the prosecution in not producing its evidence in spite of the several opportunities. This fact of a long protracted trial while considered in the context of the right of the accused for speedy trial under Article 21 of the Constitution of India goes a long way in support of the plea raised on behalf of the petitioner for his release on probation. It is not disputed that the petitioner is a first offender and has a big family to support. If any substantive sentence is imposed upon him, the petitioner is bound to lose his job thereby adversely affecting his family members. It is also not disputed that the legal heirs of the deceased persons have already been awarded compensation by the Motor Accident Claims Tribunal. It may also be stated that for the last more than one month, the petitioner is being kept in the environment of an institution of confinement to enable him to ponder and brood over his rash and negligent act in question. The present case is squarely covered by the ratio of the decision of the apex Court in A.P. Raju''s case (supra) and the decision of this court in Mann Parkash''s case (supra).

As a result of the above discussion, this revision succeeds in part. The conviction of the petitioner for the offences under sections 279/304A of the Indian Penal Code is hereby confirmed. The sentence imposed upon the petitioner on both the counts is hereby set aside. The petitioner is directed to be released on probation on his entering into a bond in the sum of Rs. 10,000/ with one surety in the like amount for one year to the satisfaction of the trial Court, to appear and receive the sentence when called upon during the said period, and in the meantime to keep peace and be of good behaviour.