Mata Din vs State of U.T.Chandigarh

M.L. Singhal, J.

The prosecution case in brief is that on 25.8.92, constable Kulwant Singh No. 2308 was on general duty in Sector 17, Chandigarh. He was on patrol duty along with HC Chatar Singh in the market area of Sector 21. When he along with HC Chatar Singh reached near the Nehru Youth Centre, HC Chatar Singh was called back to police booth at about 8.25 P.M. When he (constable Kulwant Singh) was coming towards police booth at about 8.25 P.M. and reached bus stop near Namdev Bhawan, bus bearing No. RJ14P2119 belonging to Rajasthan State Transport Corporation came from the side of sector 2021 at a very fast speed. Bus dashed against a young man who succumbed to his injuries at the spot. Matadin was the driver of that bus. He stopped the bus at some distance. Matadin ran away from the spot. Accident took place due to rash and negligent driving of Matadin. SI Kuldip Singh, SHO, PS Central Chandigarh reached the spot. He recorded the statement of constable Kulwant Singh on the basis of which case FIR No. 161 was registered at PS Central Chandigarh under section 279/304A IPC. After investigation accused was challaned.

Accused was charged under section 279/304A IPC by the learned Magistrate. Accused pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, Judicial Magistrate First Class, Chandigarh found the charge under section 279/304A IPC proved against the accused. He accordingly convicted him thereunder. He sentenced him to undergo RI for 11/2 years and to pay fine of Rs. 400/, in default of payment of fine to undergo further RI for 15 days under section 304A IPC. He sentenced him to undergo RI for 6 months and to pay fine of Rs. 100/, in default to undergo further RI for 7 days under section 279 IPC. Sentences were ordered to run concurrently. Aggrieved from this order dated 18.11.97 convicting and sentencing him, Matadin accused went in appeal to the Court of Session. Learned Additional Sessions Judge, Chandigarh dismissed the appeal but reduced the sentence to 1 year RI under section 304A IPC. Sentence of fine was maintained. Sentence imposed upon him under section 279 IPC was also maintained. Still not satisfied, Matadin has knocked the door of this court through this Crl. Revision.

In support of this revision, learned counsel for the petitioner submitted that there is no evidence that constable Kulwant Singh had identified the driver of the bus. Driver was not apprehended at the spot. As per constable Kulwant Singh, the driver had run away with the bus. Suffice it to say, constable Kulwant Singh had at the same time stated that he accompanied the police party for search of the bus. Bus was seen standing on petrol pump of M/s Gudial Singh & Sons, Sector 22, Chandigarh. He identified the bus and the accused who was arrested in his presence by SI Kuldip Singh. It was as good as if the accused had been apprehended at the spot.

Learned counsel for the petitioner submitted that if constable Kulwant Singh had really witnessed the accident, he would have tried to take the victim to the hospital or some nearby doctor. Suffice it to say, when the victim had succumbed to his injuries at the spot, there was no sense in taking him to the hospital or nearby doctor. It was further submitted that as per constable Kulwant Singh, PW, it was a very busy road and many people were coming and going on the road. So many people had gathered at the spot. Still nobody was cited as having witnessed the accident. Suffice it to say constable Kulwant Singh was merely on patrol duty. How could he know who the persons who had gathered at the spot were and further who had witnessed the accident. It was further submitted that constable Kulwant Singh had not witnessed the accident and it was after the accident had taken place that he noticed the accident having taken place. Constable Kulwant Singh stated that when he heard the noise then he saw the accident. It was submitted that this means that he had not witnessed the accident. Suffice it to say, constable Kulwant Singh has stated that when he reached near Namdev Bhawan sector 21, he saw one person (Avtar Singh) who was going on foot, crossing the road from Namdev Bhawan to the school opposite Namdev Bhawan. In the meantime, bus from sector 2021 side came at a very fast speed and dashed against Avtar Singh. We have to read these lines in the context of his entire statement. His statement suggests that the accident took place when he reached Namdev Bhawan and saw Avtar Singh going on foot crossing the road from Namdev Bhawan to the school opposite Namdev Bhawan.

It was submitted that it is improbable that when constable Kulwant Singh reached upto the petitioner after the collusion/accident and the petitioner told his name and then fled away. It was submitted that if the petitioner had authored this accident, why should he have told his name to constable Kulwant Singh particularly when constable Kulwant Singh had not known him earlier and he knew that disclosing his name would be injurious to him and facilitate his implication in the case.

In my opinion, there is no reason to interfere with the concurrent finding of fact recorded by the learned courts below. I have gone through the judgment of the learned Magistrate. Conclusion of fact arrived at by him is supported by the evidence on record. Conclusion of fact arrived at by him is warranted by the evidence on record.

I have gone through the judgment of the learned Additional Sessions Judge. Affirmance of conclusion of fact by the learned Additional Sessions Judge as arrived at by the learned Magistrate cannot be said to be unjustified and not supported by the evidence on record. Motor mechanic found two scratches on the head light of the bus towards driver side. Presence of scratches on the head light of the bus also lends support to the statement of constable Kulwant Singh. In my opinion, the learned Magistrate justifiably convicted the accused. Learned Additional Sessions Judge justifiably found the conviction in order and dismissed the appeal. Revision was dismissed vide order dated 29.4.1999 so far as conviction is concerned. Notice was issued to U.T. Chandigarh only in regard to sentence. On the question of sentence, learned counsel for the petitioner submitted that the petitioner is in govt. service. If he is sentenced to imprisonment and sent to jail, he will lose his job. It was submitted that he has wife and two sons to support. He is the only bread winner of the family. If he is sent to jail, the family would be exposed to starvation. In support of the submission that he should be released on probation of good conduct, he drew my attention to Aitha Chander Rao v. State of Andhra Pradesh, 1982 CAR 5 where Aitha Chander Rao was ordered to be released on probation of good conduct by the Hon''ble Supreme Court in view of the fact that there is some amount of contributing negligence on the part of Aitha Chander Rao. It was submitted that he was released on probation of good conduct so that his service career remained unaffected in view of section 12 of the Probation of Offenders Act, 1958. He drew my attention to Nand Ballabh Pant v. State (U.T. of Delhi), 1976 CAR 35 where sentence of Nand Ballabh Pant was reduced to one month''s RI and fine of Rs. 1,000/ whereas he had been earlier sentenced to 2 months RI and fine of Rs. 500/ under section 304A IPC. He drew my attention to A.P. Raju v. State of Orissa, 1995 SCC (Crl.) 675 where also A.P. Raju was released on probation of good conduct by the Hon''ble Supreme Court. JUDGMENT of the Hon''ble Supreme Court was influenced by the fact that accident had taken place 15 years ago i.e. on 20.5.79 and he had been acquitted by the trial court on 13.3.81 and after he was convicted by the High Court, he filed Special Leave Petition and on 18.11.85, leave was granted and the sentence imposed upon him by the High Court was suspended and he was allowed bail on 18.11.85. Hon''ble Supreme Court allowed him probation on 16.2.94.

It is quite clear that in A.P. Raju''s case (supra), the release on probation of good conduct was ordered in a different situation. It is true that release on probation of good conduct is not barred by the Probation of Offenders Act, 1958 of an offender under section 304A IPC. It is also true that if such an offender is not given the benefit of the Probation of Offenders Act, special reasons have to be given under section 361 Cr.P.C. why this benefit is not being given to him.

In this case Avtar Singh deceased was on foot just crossing the road to reach the school situated on the opposite side. It was not main road. It was rather internal road. The bus driver ought to have been extra careful and circumspect so far as the safety of the other users of the road was concerned. We have to look to the facts and circumstances of each case before releasing or refusing to release an offender on probation of good conduct. In Narender Singh v. State of Rajasthan, 1997(4) RCR(Crl.) 689, it was held that the court has to take into consideration the mental agony and hardships suffered by the relatives of the deceased who have lost their lives in the accident. In Rattan Singh v. State of Punjab, AIR 1980 SC 84, the Apex Court refused to interfere with the sentence of 2 years RI awarded to the truck driver by observing that when a life was lost and the circumstances were so harsh, no compassion can be shown. It was also observed by the Apex Court that sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with set reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State should attach a course for better driving together with a livelier sense of responsibility when the punishment is for driving offences, may be, the State may consider, in cases of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to govt. discretion."

It is not a case where the benefit of the provisions of Probation of Offenders Act can be given to the petitioner. Petitioner has been facing the agony of this trial for the last 7 years. Looking to the fact that he has been facing the agony of this trial for the last 7 years, I think some consideration should be shown to him in the matter of sentence. Sentence imposed upon him is therefore, slashed and is brought down to RI for 6 months but fine is enhanced to Rs. 4,000/, in default to undergo further RI for 20 days under Section 304A IPC. Sentence imposed upon him under section 279 IPC is also slashed and is brought down to RI for 3 months. Fine is enhanced to Rs. 1,000/ and in default of payment of fine, he shall undergo further RI for one month. Both the sentences shall run concurrently. Entire amount of fine, if recovered, shall be paid to the father of the deceased Avtar Singh i.e. Balwant Singh.

For the reasons given, revision fails and is dismissed subject to reduction/variation/modification in sentence.