Mahender Singh vs State of Haryana

P.K. Jain, J.

This criminal revision is directed against the judgment dated July 6, 1995, passed by the Additional Sessions Judge, Sirsa, whereby conviction and sentence of the petitioner for the offences under Sections 279, 337, 338 and 304A of the Indian Penal Code, recorded by the Judicial Magistrate, Dabwali, by judgment/order dated 21st and 22nd December, 1992, have been confirmed. The petitioner has been sentenced to undergo simple imprisonment for 15 days for the offence under Sections 279, I.P.C.; 3 months for the offence under Section 337, I.P.C.; 6 months for the offence under section 338, I.P.C.; and one year for the offence under Section 304A, Indian Penal Code. All the sentences have been ordered to run concurrently.

The case of the prosecution as can be gathered from the record of the trial Court is that on August 10, 1986, marriage of one Dhara Ram son of the complainant Jaila Singh resident of village Desu Malkana, was to take place. The petitioner was engaged to carry the marriage party in his truck No. HYN 2665 from village Desu Malkana to village Teetu Khera and back. After the marriage, the bridegroom and the bride along with 3/4 other left for Desu Malkana by car. The remaining marriage party consisting of 28/30 persons started back in the same truck at about 6.00 p.m. from village Teetu Khera. Jaila Singh the complainant, Manjit Singh (PW 5) were sitting along the side of the driver in his cabin. On the way, the petitioner started driving the truck in a rash and negligent manner which was objected by Jaila Singh and Manjit Singh, and the petitioner was asked to slow down the speed but he did not care. As a result, at about 8 or 8.15 p.m. when the truck reached near village Chakarian, it overturned. The petitioner immediately left the truck and the injured on the spot and slipped away. All the members of the marriage party suffered injuries. They were taken to the Rural Dispensary, Kalanwali, in a passing truck and a jeep. Pyara Singh, the son, and Pado Bai wife of the complainant Jaila Ram, Puran and Ranjha had serious injuries and become unconscious while reaching the hospital and as such they were referred to Civil Hospital, Sirsa. Jaila Singh made a statement Exhibit PA to the police of the basis of which the present case was registered.

Dr. D.K. Bhardwaj (PW 14) medically examined 19 injured persons and prepared their medicolegal reports. Injured Pyara Ram and Puran were got x rayed. Dr. R.K. Bisnoi, the Radiologist, (PW 10) prepared their reports Exhibits PW 10/A and PW 10/C on the basis of their xray films Exhibits PW 10/B2, PW 10/D1/2, respectively. Pyara Ram was found to have a communicated fracture of right lower femoral shaft, whereas Puran singh was found to have fracture olecranon process right ulna and lower end right humerus. On the next day i.e 11.8.1996 Pado Bai sucummbed to her injuries at about 7.15 p.m. Inquest report was prepared and then postmortem was conducted by Dr. D.B.Grover (PW 12). On the completion of the investigation, a chargesheet was filed against the petitioner for the offences under Sections 279/336, 337/338 and 304A, Indian Penal Code.

A charge for the above offences was framed against the petitioner which he denied and claimed trial.

In support of its case the prosecution examined 14 witnesses, out of which 9 witnesses are the injured travelling in the said truck. Sham Singh (PW 9) conducted mechanical inspection of the truck and prepared report Exhibit PW 9/A. Dr. R.K. Bishnoi (PW 10) is the Radiologist, who examined the xray report of Pyara Ram and Puran Singh, as stated above. Dr. B.D. Grover had conducted postmortem on the body of Smt. Pado Bai. Dr. D.K. Bhardwaj (PW 14) had medically examined the injured persons and Dharm Pal H.C.(PW 11) is the Police Photographer who had taken the photograph of the spot of occurrence. S.I. Atma Nand (PQ 13) had recorded the formal first information report (Exhibit PW 13/A) on the basis of statement Exhibit PA made by Jaila Singh.

In his examination under Section 313 of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code''), the petitioner denied all the allegations of the prosecution and pleaded innocence. He examined two witnesses in his defence to prove that he was not the driver at the relevant time.

On an appraisal of the evidence produced on the record, the trial Magistrate convicted and sentenced the petitioner, as stated above. His appeal against conviction and sentence did not find favour with the Additional Sessions Judge and the same was rejected by the impugned judgment. Feeling aggrieved, the petitioner has approached this Court under Section 401 of the Code.

I have heard the learned counsel for the parties and have gone through the record.

Shri. K.K. Aggarwal, Advocate, learned counsel for the petitioner made a vain attempt to assail the conviction of the petitioner on the ground that the petitioner was not a driver of the truck in question; that the prosecution has not examined all the injured persons; that the accident in question took place due to the failure of the brakes; that the prosecution has not been able to prove rash and negligent driving on the part of the petitioner and that the petitioner has been falsely implicated.

On the other hand, Shri P.S. Sullar, learned Assistant Advocate General for the State of Haryana, has argued that it was not necessary for the prosecution to examine all the injured persons at the trial; that nine injured witnesses have been examined whose testimony proves beyond reasonable doubt that the petitioner was driving the truck in question in a rash and negligent manner at the relevant time and the accident did not take place on account of the failure of the brakes and the brakepipe got broken due to overturning of the truck. It has been further argued by the learned Assistant Advocate General that there being a concurrent finding of fact this Court ought not to interfere with the order of conviction.

I have given my careful thought to the respective arguments advanced at the Bar. It is wellsettled that the High Court will not interfere in the revision unless it is satisfied that it is necessary to do so to prevent an otherwise irreparable injustice. The mere fact that the High Court sitting as a Court of appeal might have come to a different conclusion on facts from what the Magistrate arrived at is also not a sufficient ground for interference in revision. When there is a concurrent finding of facts recorded by the two Courts below, the High Court, as a rule, will not go into the evidence save in exceptional cases or where the judgment of the facts is manifestly wrong and grossly and palpably unjust. In Duli Chand v. Delhi Administration, 1975 CRI. L.J. 1732 their Lordships of the Supreme Court of India held that the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon a reappreciation of evidence. That was also a case for an offence under Section 304A, Indian Penal Code, and there was a concurrent finding of facts recorded by the two Courts below that the appellant therein was guilty of negligence in driving the bus and the death of the deceased was caused due to his said negligence driving.

A close scrutiny of the judgments rendered by the Courts below reveal that the finding of guilty recorded against the petitioner is based on a proper appreciation of the oral and documentary evidence on the record. Both the Courts below have recorded a concurrent finding of facts against the petitioner which is based on cogent and convincing reasons with which I am in full agreement. The learned counsel for the petitioner has not been able to bring to my notice that any manifest illegality or grave and serious miscarriage of justice has occasioned to the petitioner which requires interference with the aforesaid concurrent finding of facts recorded by both the Courts below. Even otherwise, I have perused the oral as well as documentary evidence produced during the trial by the prosecution as well as the petitioner. I am fully satisfied that the petitioner has been rightly convicted for the offences, as stated above.

Then the learned counsel for the petitioner has argued that the petitioner has already undergone the mental agony of a criminal trial for a period of 10 years till date and a lenient view regarding the sentence to be awarded be taken. It has been pointed out by the learned counsel that the charge in this case was framed against the petitioner on 17.2.1987 and thereafter the prosecution lingered on for the default on the part of the prosecution in not producing and examining its witnesses. Thus, it has been argued that the sentence awarded to the petitioner may be reduced to the period already undergone. In support of this plea reliance has been placed upon a judgment of this Court in Kashmiri Lal v. The State of Haryana, 1995(2) C.L.R. 112.

On the other hand learned Assistant Advocate General has argued that the petitioner was guilty of rash and negligent driving whereby he has taken the life of a female and has caused injuries at least to 19 other persons. It has been also pointed out by the learned Assistant A.G. that the petitioner, after the truck had overturned and the passengers were injured, left them in the lurch and ran away from the spot instead of making efforts to secure some help so as to remove the injured to the hospital and to inform the police. It is, thus, contended that the sentence awarded to the petitioner is already lenient in nature inasmuch as the petitioner has been sentenced to simple imprisonment instead of rigorous imprisonment.

I have given my careful thought to the said arguments. It cannot be disputed that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The question of sentence would always differ from case to case. In State of Karnataka v. Krishna alias Raju, A.I.R. 1987 Supreme Court 861, while dealing with an identical case, the apex Court made the following observations :

"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 failure to make a report to the authorities about the accident. The respondent had not only driven his bus in a reckless manner and caused the death of 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 undermine the confidence of the public in the efficacy of the criminal judicial system. It need be hardly pointed out that the imposition of sentence of fine of Rs. 250/ on the driver of a Motor Vehicle for an offence under Section 304A I.P.C. and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was mockery of justice."

With the above observations the sentence in that case was enhanced to six months'' rigorous imprisonment and a fine of Rs. 1000/.

I do agree with the learned Assistant Advocate General that in the present case the petitioner must be kept in the environment of an institution of confinement for some period to enable him to ponder and brood over his rash and negligent act whereby he has taken the life of one person and caused injuries to 19 others. However, a sentence of long term imprisonment in a particular case like the present one, may not have a healthy effect or result. It is not disputed that the charge in this case was framed against the petitioner on 17.9.1987 and the trial before the Magistrate dragged on for the reason that the prosecution was not able to produce and examine its witnesses promptly. Keeping a person in suspended animation for 8 to 10 years without any reason at all cannot be with the spirit of the procedure established by law. Fair, just and reasonable procedure implicit in Article 21 of the Constitution of India creates a right in the accused to be tried speedily. Keeping in view the provision of Article 21 of the Constitution and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution.

Keeping in view the various facts and circumstances discussed above and in all fairness, the ends of justice would be served if the sentence awarded to the petitioner for the offence under Section 304A, Indian Penal Code, is reduced to simple imprisonment for six months.

For the foregoing reasons, this revision is allowed in part. The conviction of the petitioner for the offences under Sections 279, 337, 338 and 304A, Indian Penal Code, is confirmed. The sentence awarded to the petitioner for the offence under section 304A, Indian Penal Code, is hereby reduced to six months'' simple imprisonment. The sentence awarded to the petitioner for the other offences is also affirmed. All the sentences shall run concurrently. The petitioner is on bail. His bail bond and surety bond are hereby cancelled and he is directed to surrender to custody to serve out the remaining part of his sentence.