Mohan Lal vs The State of Raj.

Banwari Lal Sharma, J.—This revision petition has been preferred against the judgment dated 12.11.1997 passed by the learned Additional Sessions Judge, Rajsamand in Criminal Appeal No. 15/1996 whereby he affirmed the judgment of conviction and order of sentence dated 09.06.1994 passed by the learned Judicial Magistrate, First Class, Rajsamand in Criminal Regular Case No. 300/1993 by which the petitioner-accused was convicted for the offences punishable under Sections 279, 337, 338 and 304A IPC and was sentenced as under:--

"U/s. 279 IPC:

Three months'' simple imprisonment with fine of Rs. 200/-.

U/s. 337 IPC:

Two months'' simple imprisonment with fine of Rs. 200/-.

U/s. 338 IPC:

Six months'' simple imprisonment with fine of Rs. 400/-.

U/s. 304A IPC:

Six months'' simple imprisonment with fine of Rs. 400/-."

It was also ordered that on being deposited the amount of fine, Rs. 100/- be paid to Mst. Nari W/o Mangilal, Rs. 300/- to Laxmi W/o Banshilal and Rs. 400/-be paid to the legal representatives of the deceased.

The brief facts of the case are that on 27.11.1990, a telephonic information was received at P.S. Rajnagar to the effect that on that day, one Tractor No. GJC 8711, being driven by the petitioner-accused rashly and negligently, hit 2-3 women, sitting on the roadside due to which one girl child died.

On the basis of this information, FIR No. 330/1990 was registered and investigation commenced. After investigation, the police filed charge-sheet for the offences under Sections 279, 337, 338 and 304A IPC. The learned trial court, thereafter took cognizance of the offences against the petitioner-accused and thereafter framed charges to which he denied and claimed trial.

To substantiate the charges, the prosecution examined as many as 8 witnesses and exhibited documents. Thereafter, the petitioner-accused was examined under Section 313 Cr.P.C. in which he stated the prosecution evidence as false and did not lead any evidence in defence.

The learned trial court, after hearing, convicted and sentenced the petitioner-accused as aforesaid vide impugned judgment of conviction and order of sentence dated 09.06.1994. Being aggrieved of the same, the petitioner-accused preferred appeal, which too was dismissed vide impugned judgment dated 12.11.1997 and the judgment of the learned trial court was affirmed. Hence, this revision petition.

I have heard Mr. Dilip Kawadia, learned counsel appearing on behalf of the petitioner and Mr. MS Panwar, learned Public Prosecutor.

Mr. Kawadia, learned counsel appearing on behalf of the petitioner, submits that the petitioner-accused was not identified by the witnesses and prosecution failed to prove that at the time of accident, the petitioner-accused was driving the alleged vehicle. He submits that rash and negligent act of the petitioner has also not been proved by the prosecution. Still, both the courts below have convicted the petitioner-accused, which is perverse and illegal. Therefore, the revision petition may be allowed. He placed reliance upon the judgments delivered in the cases of State of Rajasthan v. Kailash Chandra [2012 (2) Cr.L.R. (Raj.) 694], State of Rajasthan v. Jamna Lal [2012 (2) Cr.L.R. (Raj.) 743 ] and Bhag Chand Vs. The State of Rajasthan, (2014) 1 WLN 626 .

In the alternative, he submitted that the petitioner-accused has remained in custody for about a month, therefore, his sentence may be reduced to already undergone. He placed reliance upon the judgment delivered in the case of Navab Singh Vs. State of Rajasthan, (2012) 4 RLW 3565 .

Per contra, the learned Public Prosecutor supported the impugned judgment and submitted that there is concurrent finding regarding rash and negligent act of the petitioner-accused. He submitted that in reply to the notice under Section 133 of the Motor Vehicles Act, owner of the tractor, clearly stated that the petitioner-accused was driving the tractor at the time of accident and the same was admitted by the learned counsel for the petitioner-accused during trial and Bakhtavar (PW-5), during his examination in trial, identified the petitioner-accused as driver of the offending vehicle at the time of accident and on this point, no question was put to him during cross-examination. He further submits that as per the site plan, the petitioner-accused drove the tractor in the wrong side and hit the ladies, sitting on the roadside. Therefore, the rash and negligent act of the petitioner-accused is apparent. He also submitted that in cases of road accidents, no sympathy should be shown towards the negligent drivers as the Hon''ble Supreme court time and again clearly held. Lastly, he prayed that the revision petition is devoid of merit which may be dismissed.

I have heard the rival submissions made at the Bar and perused the material available on record.

In the case of State of Rajasthan v. Kailash Chandra (supra), the trial court acquitted the accused on the ground that the prosecution failed to establish as to who was driving the offending vehicle at the time of accident and that only on the ground that the ground that the owner claimed that the accused was the driver of the vehicle, it cannot be assumed that he was driving the vehicle at the time of accident. A Coordinate Bench of this court, while considering these facts, upheld the judgment of the trial court and refused to grant leave.

In the matter of State of Rajasthan v. Jamna Lal (supra), the learned trial court, while holding that the prosecution has failed to establish the identity of the driver of the offending vehicle, acquitted and a Coordinate Bench of this court upheld the same.

In the matter of Bhag Chand (supra), a Coordinate Bench of this Court at Jaipur Bench, while holding that the prosecution was failed to establish the identity of the accused and while finding that there was no evidence of any other eye-witness that the accused was driving the vehicle, acquitted the accused.

In the present case, from the perusal of the record, it reveals that the owner of the tractor, in reply to the notice under Section 133 of the Motor Vehicles Act, clearly admitted that the petitioner-accused was the driver of the offending vehicle and the learned counsel for the petitioner-accused admitted the reply to the notice before the trial court. Not only this, he was identified by Bakhtavar (PW-5) during trial and he clearly stated that he was driving the vehicle at the time of accident due to which one girl child died and two women sustained injuries. Further, from the site plan (Ex.P/1), it is clear that the tractor was driven in the wrong side and caused the accident. Thus, the prosecution was successful in establishing the fact that the offending vehicle was driven by the petitioner-accused at the time of accident in a rash and negligent manner due to which, one girl child died and two women sustained injuries. Thus, the case law cited by the petitioner-accused also does not help him. The learned trial court, while considering all these aspects of the matter, has rightly convicted and sentenced the petitioner-accused as aforesaid and the learned appellate court has also rightly upheld the same, which does not require any interference by this court while exercising revisional jurisdiction.

So far as the sentence is concerned, it was submitted by the learned counsel for the petitioner-accused that looking to the fact that he has remained in custody for about a month and is facing trauma of protracted trial, his sentence may be reduced to already undergone.

In the case of Navab Singh (supra), a Coordinate Bench of this court extended the benefit of the provision of Section 4 of the Probation of Offenders Act.

The Hon''ble Supreme in a recent judgment delivered in the matter of State of Punjab v. Saurabh Bakshi [Criminal Appeal No. 520/2015, decided on 30.03.2015], while considering the various case law on the point, has held as under:--

"The protagonists, as we perceive, have lost all respect for law. A man with the means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse then death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is ''the crowning glory'', ''the sovereign mistress'' and ''queen of virtue'' as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system."

The Hon''ble Supreme Court, in para No. 18, further observed as under:--

"18. Before parting with the case, we are compelled to observe that India has a disreputable record of road accidents. There is a non-challan attitude among the drivers. They feel that they are the ''Emperors of all they survey''. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as ''large than life''. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304-A IPC. We say so with immense anguish."

The Hon''ble Supreme Court, while considering the facts of that case, awarded sentence for six months'' simple imprisonment for the offence under Section 304A IPC.

In the present case, due to rash and negligent act of the petitioner-accused one girl child died and two women sustained grievous injuries and the learned trial court, awarded sentence for a period of six months'' simple imprisonment which was affirmed by the appellate court, which also does not warrant any interference by this court.

In view of the above, I find no merit in this revision petition, which deserves to be dismissed and is hereby dismissed.

The petitioner is already in custody. Records of the courts below be returned with a copy of this order forthwith.