Mangi Lal S/o Khin vs ingh Vs State

On 4.10.1984 an accident took place on the national highway

connecting Pali to Sojat involving roadways bus No.R.R.G.9902

and cycle. As per the prosecution, the petitioner was driving the

roadways bus in a rash and negligent manner and hit Gheesu,

from the rear, who was peddling on the extreme left, as a result of

which he received grievous injuries and died on the spot.

That the petitioner was driving the bus when the accident

took place is not disputed while arguing the revision. I have

perused the materials and evidence available on record especially

the testimony of PW2 Meena Ram and PW5 Chandra Ram. On

appreciation of evidence, the learned trial Judge has returned a

finding that the petitioner was driving the bus in a rash and

negligent manner and hit the deceased Gheesu from the rear.

From the site plan Ex.P3 and the evidence led by the prosecution, it is clear that the accident took place on the national

highway. The road was adequately wide, but the petitioner by

driving the bus rashly and negligently hit the deceased Gheesu.

The place of accident is marked as ''A'' in the site plan and the

deceased was found lying at place marked as ''B''; at a distance of

14 feet from place ''A''. Thus, it is well established that the bus was

driven with rashness and both the courts below have rightly held

so. The findings returned by the learned trial Judge affirmed by

the learned Appellate Judge cannot be said to be illegal or

erroneous or perverse, rather based on correct appreciation of

materials and evidence produced by the prosecution.

The petitioner has been sentenced to undergo rigorous

imprisonment for a period of one year for the offence punishable

under section 304A IPC. Lesser sentence for the offence

punishable under section 279 IPC has been directed to run

concurrently. Meaning thereby, the effective sentence which the

petitioner has to undergo is one year.

On the facts that the accident took place on 4.10.1984 and

the revision petition is being decided in July, 2017 the argument in

the alternative was to release the petitioner on probation on

account of long gap of time between the accident and the decision

by this Court.

The imposition of an appropriate sentence as also grant of

benefit of probation under Section 4 of the Probation of Offenders

Act, 1958 to offenders convicted for an offence punishable under

Section 304A IPC is the subject matter of various decisions passed

by the Supreme Court, and I find a divergence in the view taken.

In the decision reported as 1981 (Supp) SCC 17 Aitha

Chander Rao V/s State of Andhra Pradesh, noting that there

was an element of contributory negligence from the side of the

deceased, the appellant, who was sentenced to undergo RI for a

period of two years for an offence punishable under section 304A

IPC by the trial court, affirmed by the appellate court and not

interdicted by the High Court, was given the benefit of probation

by the Supreme Court.

In the decision reported as 1995 Supp (2) SCC 385

A.P.Raju V/s State of Orissa, for the offence punishable under

Section 304A IPC benefit of probation was granted in view of the

fact that between the date of the accident which was 20.5.1979

and the decision of the Supreme Court dated 16.2.1994, 15 years

had elapsed. Meaning thereby as per the Supreme Court no

purpose would be served to require A.P.Raju to suffer the sentence

imposed.

A discordant note was struck in the decision reported as

(2000) 5 SCC 82 Dalbir Singh V/s State of Haryana. The

argument that long period of time had elapsed between the date

of the accident and the decision by the Supreme Court was

rejected as entitling grant of probation on the reasoning that there

was an alarming rise in road accidents and that the offender was a

professional driver. In para 13 of the decision it was observed as

as under:-

"13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the P.O. Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."

The said decision was followed with approval by the Supreme

Court in the decision reported as (2003) 9 SCC 208 Thakur

Singh V/s State of Punjab.

The last two decisions afore-noted were followed once again

by the Supreme Court in the decision reported as (2008) 5 SCC

730 B.Nagabhushanam V/s State of Karnataka.

The decision next in line is reported as (2008) 8 SCC 225

Manish Jalan V/s State of Karnataka. Noting that the

appellant was not intoxicated, taking a lenient view, the sentence

imposed by the High Court to undergo SI for a period of one year

for the offence punishable under Section 304A IPC was reduced to

the period already undergone. The decision does not note the

period which the appellant therein had actually undergone. It

needs to be highlighted that the decision in Manish Jalan

pronounced by two Judges bench of the Supreme Court did not

note the earlier three decisions noted by me hereinabove in Dalbir

Singh''s case, Thakur Singh''s case and B.Nagabhushanam''s case.

In the decision reported as 2013(1) RCR (Criminal) 826

Ismail V/s Police Sub Inspector, Hospet, for the offence

punishable under Section 304A IPC, noting the age of the

appellant was 74 years and the medical certificate established that

the appellant''s movement was fairly restricted, sentence to

undergo 15 days imprisonment already suffered by Ismail was

held to be the proper sentence.

In the decision reported as (2012) 2 SCC 182 State of

Punjab V/s Balwinder Singh & ors., for the offence punishable

under section 304A IPC, the decision of the High Court to reduce

the sentence to the period already undergone, of 15 days, was set

aside. Balwinder Singh was sentenced to undergo imprisonment

for a period of six months. The decisions in Dalbir Singh''s case

and B.Nagabhushanam''s case were cited with approval. The

argument that 17 years had elapsed between the date of the

accident and the decision of the Supreme Court was negated as a

mitigating factor.

In the decision reported as (2015)5 SCC 182 State of M.P.

V/s Mehtaab, the decision of the High Court to let off Mehtaab

for the period already undergone was set aside. The sentence

was of 10 days.

In the decision reported as (2015) 5 SCC 182 State of

Punjab V/s Saurabh Bakshi, the reduced sentence by the High

Court was set aside and it was also held that Saurabh Bakshi

would not be entitled to the benefit of probation. As per the

decision, for professional drivers no leniency or compassion can be

shown unless mitigating circumstances were proved to be existing.

In a concurring judgment authored by Madan B.Lokur J, in

the decision reported as (2015) 13 SCC 444 State through

Central Bureau of Investigation V/s Sanjiv Bhalla, in para 22

it was observed as under:-

"22. It does appear that depending upon the facts of each case, causing death by what appears ( but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A IPC in an accident "where mens rea remains absent" and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A IPC, the convict must be released on probation-it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case."

Three principles emerge from the decisions. Firstly, the

Courts have to be strict where the offender is a professional driver.

Secondly, unless mitigating circumstances are shown, no leniency

can be shown. Lastly, mere delay is not a mitigating circumstance.

No mitigating circumstance other than the time lag between the

date of the accident and the decision by this Court has been

shown. It is not the case of the petitioner that he is aged and due

to age suffers from any medical disability. However, keeping in

view the overall perspective of the case and the fact that the

petitioner has undergone a sentence for a period of 11 days only,

ends of justice would be met if the sentence imposed for the

offence punishable under section 304A IPC is reduced to simple

imprisonment for a period of three months and fine in sum of

?500/-. In default of payment of fine to undergo SI for 15 days.

The petition is disposed of affirming the conviction but

reducing the sentence for all the offences which the petitioner has

been convicted for to undergo SI for a period of three months. All

sentences to run concurrently. Fine in addition in sum of ?500/- is

imposed and in default to undergo SI for 15 days.