Kartar Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

The accused Kartar Singh was convicted for the offences under Sections 279, 337 and 304A, I.P.C. and sentenced to 4 months R.I. for an offence under section 279, I.P.C., 4 months'' R.I. for an offence under Section 337, I.P.C. and 18 months'' R.I. under Section 304A, I.P.C., with a fine of Rs. 500/ in default 6 months'' R.I. All the sentences were to run concurrently. The accused preferred an appeal against his conviction and sentence, but that too was rejected by Shri R.S. Madan, Additional Sessions Judge II, Bhiwani by his judgment dated 25th January, 1988. Hence this revision.

The learned defence Counsel relying on M.H. Lokra v. The State of Maharashtra, AIR 1972 Supreme Court 221, contended that from the prosecution evidence adduced in this case, it is evident that the rickshaw was coming down the slope. It had three passengers and certain household goods were also loaded therein. Observing the approaching tanker, the rickshaw puller lost balance and collided with the tanker. The tanker was on the left side of the road. Thus it is apparent that as the rickshaw suddenly dashed against the tanker because the rickshaw puller lost the control, it would not have been held that the accused was driving the truck (tanker) rashly or negligently.

M.H. Lokre''s case (supra) is distinguishable on facts because in that case a pedestrian suddenly crossed the road without taking note of the approaching Bus and he dashed against the Bus without the Driver becoming aware of it. Under these circumstances, it was held that Bus Driver could not save the accident, however slowly he may be driving and, therefore, he cannot be held to be negligent, in such a case. In this case, the prosecution has examined Ram Sarup (PW1) an eyewitness and Mange Ram (PW2) who was a passenger in the fateful rickshaw and who sustained injuries in this accident. These two witnesses have categorically stated that the truck was coming at excessively high speed though they were not able to state the speed in terms of kilometres per hour, but on that account alone, their sworn testimony on this score could not be rejected.

The learned defence counsel further stressed that from the evidence of these two witnesses named above, it is evident that the truck stopped at a distance of 2025 paces from the place of the accident. Hence there was no material before the trial Court to conclude that the accused was driving the truck rashly and negligently. In support of this contention, he has relied on Krishna Bahadur Chetri v. State of Assam, 1979 Criminal Law Journal 1258.

In Krishna Bahadur Chetri''s case (supra), the truck driven by the accused was stopped only at a distance of half a furlong or so from the place of accident. It was held that this fact clearly showed that the truck was running at a moderate speed and was not being driven at the alleged break neck speed. It is further held criminal negligence must always reach the stage of gross and culpable negligence or failure to exercise the requisite, reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which is required to be judged having regard to all the circumstances out of which the charge has arisen, that it was the imperative duty of the accused to have adopted a course which he has neglected or failed to adopt". No doubt from the site plan as well as from the photographs produced before the trial Court and from the ocular evidence, it is evident that the truck of the accused was on the left side of the road, but simply because after the accident it was stopped at 2025 paces, this factor alone is not sufficient to arrive at a conclusion that the accused was not driving the truck rashly or negligently.

As discussed above, Ram Sarup (PW1) and Mange Ram (PW2) have clearly stated that the truck was being driven at an excessively high speed. Even the authority Bhagwana v. The State of Rajasthan, 1979 Accidents Claims Journal 481, cited by the defence counsel is distinguishable on this account.

The petitioner''s counsel further contended that the accused was all through driving his truck on the left side of the road. It is the rickshaw puller who brought his rickshaw on his wrong side and dashed against the truck. Since the rickshawpuller has died, there is no explanation on record as to why at all he came on the wrong side of the road. Every driver of a vehicle is required to explain as to why he swerved his vehicle on the wrong side. To support this contention, he relied upon the State v. Mathai Abraham, 1953 Criminal Law Journal 1850. He further argued that it has come in the statement of Ram Sarup (PW1) that the rickshaw was coming down from a slope. It is evident that the rickshaw being overloaded with 3 passengers and household goods, the rickshawpuller lost control and dashed against the truck.

Even this contention has no merit. No doubt that the rickshawpuller has died, but from the photographs as well as from the visual plan produced before the trial Court, it is not visible that the accident took place at a slope. Ram Sarup (PW1) has stated so, but at that time when he saw the accident he was standing at a distance of few paces from the place of accident. But Mange Ram (PW2) was sitting in that very rickshaw. He has categorically stated that the accident took place after the rickshaw had crossed the slope. Baldev Kumar (PW6) is the photographer and Bakhtawar Singh (PW3) is the Investigating Officer who prepared the site plan. No. question has been put to these witnesses in the crossexamination that the accident took place at a slope. Even then the accusedpetitioner was examined under Section 313 Cr.P.C. He has not taken this plea that the rickshaw was coming down from a slope and he was climbing up the height. His only plea is that the accident took place due to negligence of the rickshawpuller. He has not adduced any evidence to prove this plea.

The learned Counsel for the State contended that the accident took place on the middle part of the road. He further argued that both the Courts below have held that the accident took place because the accused was driving the truck rashly and negligently and that evidence does not suffer from any infirmity.

The learned defence Counsel has also relied on Ghisa v. The State, 1950 Criminal Law Journal 1289. In this case the accused was driving a motorlorry on the correct side of the road. The speed was moderate. A girl of 10 years was run over who succumbed to the injuries sustained in the accident. The Judicial Commissioner held that it was possible that the accident took place because the girl unexpectedly crossed the road and in that case it was further held that the accused was not guilty of rash or negligent driving.

In this case, there is no such circumstance that suddenly rickshaw came on the scene of occurrence. It is a case of headon collision. It is expected that the accused must have seen the rickshaw coming from the opposite direction. The accused being the driver of heavy vehicle was required to take more care to avert any accident which the accused unfortunately failed to take. Both the Courts below have held that the accused was driving the truck rashly and negligently. He dashed the truck against the rickshaw wherein three passengers were travelling out of which two passengers and the rickshawpuller died on the spot. This further indicates the forcefulness of the impact with which this accident took place. Therefore, there is no plausible reason to set aside the concurrent findings of the Courts below on this point.

Lastly, it is contended that the accident took place on 8th July, 1983. Since then the accused was facing this criminal trial. The trial Court convicted him on 20th July, 1987 and he lost his appeal on 25.1.1988. He was engaged as a private driver. After the accident, he has lost his job also and hence it is prayed that lenient view about the sentence should be taken. Further, it is contended that the accused could not have been sentenced for offences under Sections 279 and 337, I.P.C. separately as one of the ingredients of the offence under section 337 I.P.C. itself constitutes an offence under Section 279 I.P.C. Hence when the accused is sentenced under Section 337 I.P.C., he should not have been sentenced separately for an offence under that suddenly rickshaw came on the scene of occurrence. It is a case of headon collision. It is expected that the accused must have seen the rickshaw coming from the opposite direction. The accused being the driver of heavy vehicle was required to take more care to avert any accident which the accused unfortunately failed to take. Both the courts below have held that the accused was driving the truck rashly and negligently. He dashed the truck against the rickshaw wherein three passengers were travelling out of which two passengers and the rickshawpuller died on the spot. This further indicates the forcefulness of the impact with which this accident took place. Therefore, there is no plausible reason to set aside the concurrent findings of the Courts below on this point.

Lastly, it is contended that the accident took place on 8th July, 1983. Since then the accused was facing this criminal trial. The trial Court convicted him on 20th July, 1987 and he lost his appeal on 25.1.1988. He was engaged as a private driver. After the accident, he has lost his job also and hence it is prayed that lenient view about the sentence should be taken. Further, it is contended that the accused could not have sentenced for offences under Sections 279 and 337, I.P.C. separately as one of the ingredients of the offence under section 337, I.P.C. itself constitutes an offence under Section 279, I.P.C. Hence when the accused is sentenced under Section 337 I.P.C., he should not have been sentenced separately for an offence under section 279, I.P.C. For this proposition, he has relied on B.D. Vittal Shetty v. State of Karnataka, 1979 Criminal Law Journal N.O.C. 150, State v. Gulam Meer, AIR 1956 Madhya Bharat 141, Ragho Parshad v. Emperor, AIR 1939 Patna 388, M.H. Mohmadali v. State of Gujarat, AIR 1971 Gujarat 72 and Shiva Ram v. State, AIR 1965 Allahabad 196.

The learned Counsel appearing for the State contended that since all the three sentences of imprisonment were ordered to run concurrently, such a fault cannot be pointed out in the judgment.

To my mind, the above contention of the learned defence Counsel is forceful. The accused was convicted for offences under Sections 279 and 337 I.P.C. and he was sentenced separately for both these offences. When he was sentenced for an offence under Section 337 I.P.C. he should not have been sentenced separately for an offence under Section 279 I.P.C. Hence the sentence awarded to the accusedpetitioner for an offence under Section 279 IPC of 4 months'' R.I. is liable to be set aside.

So far as taking of lenient view in this case is concerned, the sword of this criminal prosecution was hanging on the head of the accused from 8th July, 1983. More than a decade has passed. No doubt in this accident three persons have died, but in my view, if the sentence is reduced to 9 months under section 304A, I.P.C. with a fine of Rs. 500/ that will meet the ends of justice. No other point is pressed before me.

Accordingly, the criminal revision is hereby partly allowed. The accused petitioner''s conviction under Section 279, I.P.C., 337 and 304A, I.P.C. is hereby confirmed. His sentence of 4 months and R.I. under Section 273, I.P.C. is set aside, while his sentence of 4 months'' R.I. under Section 339, IPC is confirmed. The sentence for the offence under Section 304A, I.P.C. is reduced from 18 months to 9 months with a fine of Rs. 500/ in default of which he is to undergo R.I. for six months. Both the substantive sentences are to run concurrently. The petitioner is directed to surrender to undergo the aforesaid sentence.