Pawan Kumar vs State of Haryana

M.L. Singhal, J.

Prosecution case in brief is that on 18.3.1991 at about 8.30 a.m., Lakhmir Singh and his uncle Surjan Singh were going to his fields. They were on cycles. Their fields are situated on the western side of the State highway. Surjan Singh after getting the tyres of the cycle inflated was getting on to the road near village Patreheri. The moment Surjan Singh was on the road, a tractortrolley came from the side of the village Karasan carrying a marriage party. It was being driven by Pawan Kumaraccused. He could not control the tractortrolley and the tractor tilted towards the left and hit the cycle being pedalled by Surjan Singh. Pawan Kumar was driving the tractortrolley rashly and negligently and without any regard for human safety. As a result of the impact, Surjan Singh fell down and suffered injuries on the head and other parts of the body. Arjun Singh and Bachna Ram of village Petreheri also witnessed the occurrence. Pawan Kumar ran away from the spot. Dr. Ashwani Kashyap performed post mortem on the dead body of Surjan Singh. Matter was reported to the police by Lakhmir Singh, on the basis of which, case FIR No. 45 dated 18.3.1991 was registered at Police Station, Naraingarh under Sections 279/304A of the Indian Penal Code on 18.3.1991. Tractor was got mechanically tested from Raghbir Singh, motor mechanic. He found the tractor in order. Place of mishap was photographed by Suresh Kumar. Case was investigated by ASI Swaran Lal. After investigation, Pawan Kumar was challaned.

Pawan Kumar was charged under Sections 279/304A of the Indian Penal Code by the learned Magistrate. He pleaded not guilty to the charge and claimed the trial.

On the conclusion of the trial, he was found guilty of the charge under sections 279/304A of the Indian Penal Code framed against him by the learned Magistrate, who accordingly convicted him thereunder and sentenced him to undergo rigorous imprisonment for 1 years under Section 304A of the Indian Penal Code. He did not pass any separate sentence on him under Section 279 of the Indian Penal Code.

Aggrieved from this order dated 10.12.1997 passed by the learned Judicial Magistrate Ist Class, Ambala City convicting and sentencing Pawan Kumar under Sections 279/304A of the Indian Penal Code, Pawan Kumar went in appeal to the Court of Session.

Learned Sessions Judge vide order dated 18.9.1998 found the conviction and sentence passed upon Pawan Kumar by the learned Magistrate quite in order and he accordingly dismissed the appeal both as regards conviction and sentence.

Pawan Kumar has not lost heart and has knocked the door of this Court through this Criminal revision.

Learned counsel for the petitioner submitted that Pawan Kumar has not been successfully connected by the prosecution with the driving of the tractortrolley at the relevant time. It was submitted that name of Pawan Kumar does not figure in the first information report. In the first information report, it is recorded that the author of the accident ran away from the spot. In the first information report, Lakhmir Singh mentioned that he would be able to identify him if he is brought before him. In this case identity of Pawan Kumar as driving the tractortrolley at the relevant time cannot be disputed. Pawan Kumar did not surrender before the Magistrate. He did not pray that he be sent to judicial lock up and be put up at test identification parade. At the trial Lakhmir Singh PW3 stated that the accused facing trial in the court was driving the tractortrolley at the relevant time. It was suggested to Lakhmir Singh and Bachna Ram PWs that Surjan Singh was too old to be able to control the cycle. It was further suggested to them that his vision was poor on account of old age and it was he who brought about his own doom. The suggestion shows that Pawan Kumar was driving the tractortrolley and that he was laying blame on Surjan Singh for this accident. No question was put to them suggesting that Pawan Kumar was not driving the tractortrolley. Photographs taken from the spot suggest that tractor went towards kacha and rammed into a tree. Had the petitioner been driving the tractor carefully, tractor would not have rammed into the tree. Bachna and Lakhmir Singh PWs emphatically stated that there was no loss of vision so far as Surjan Singh was concerned. Site plan prepared by ASI Swaran Lal also suggests that the tractor driver authored the accident. Why did the tractor driver take the tractor on to the kacha and ram it into the tree if he was driving the tractor carefully and cautiously ? In my opinion, learned Courts blow justifiably found the tractor driver to have been rash and negligent in driving the tractortrolley resulting in the death of Surjan Singh. In my opinion the conviction recorded against the petitioner by the learned Magistrate was quite in order and learned Sessions Judge justifiably maintained it.

This revision was dismissed so far so conviction is concerned vide order dated September 28, 1998. Notice was issued to Advocate General, Haryana in re: sentence only for today.

Learned counsel for the petitioner submitted that petitioner has got two younger brothers and two sisters. His sisters are of marriageable age. His father is dead. He has also aged mother. They all are dependent upon him. If he is sent to jail, they will be exposed to starvation as he is the only bread winner of the family. Learned counsel submitted that equities of the case demand that he should be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958/Sections 360/361 of the Code of Criminal Procedure. In support of his submission, he drew my attention to Mann Parkash v. State of Haryana, 1996(1) Recent Criminal Reports 437 where it was held that benefit of Probation of Offenders Act and Sections 360/361 of the Code of Criminal Procedure can neither be granted as a matter of rule nor can be declined as a matter of rule. Each case must be dealt with on its own merits. Learned counsel submitted that in Jagdish Chander v. State of Haryana, AIR 1973 SC 2127, Hon''ble Supreme Court reduced the sentence of imprisonment already undergone by Jagdish Chander against whom the charge proved was that he turned to his right suddenly without giving any signal and without paying any heed to the traffic on the right. The result was the accident giving rise to the death of a child in the lap of his mother. The front bumper of the left side of the truck struck the rear left side of the body of Jagdish Chander''s scooterrickshaw. As a result, he lost control of his scooterrickshaw and swerved to the right and after crossing the edge of the road, crashed into a tree under which Smt. Vidya Sharma was standing with her baby in her arms and her brother Sat Pal standing by her side. On being hit by scooterrickshaw Smt. Vidya Sharma could not keep control over her baby who fell down on the ground and received injuries. Smt. Vidya Sharma and Sat Pal also sustained simple hurts but the injuries suffered by the baby were serious and they proved fatal. The Hon''ble Supreme Court found that the death of the child was not the proximate, direct and immediate consequence of Jagdish Chander''s rash and negligent driving. Hon''ble Supreme Court found that after the impact between the heavy vehicle like a truck and a much lighter autorickshaw, the latter must in all probability, have been so pushed as to make its driver lose all control of the rickshaw. In such circumstances it could, no doubt, have been contended with a certain amount of reason that the death of the child was a remote and indirect result of the rash and negligent driving on the part of the appellant and not an immediate, direct, natural and proximate consequence. Hon''ble Supreme Court did not, however, upset the finding of the three Courts below which was that the death was the direct, immediate and proximate consequence of the rash and negligent driving of the scooterrickshaw but the Hon''ble Supreme Court keeping this fact in view brought down the sentence to three weeks rigorous imprisonment only but increased the sentence of fine.

In this case, however, the facts are materially different inasmuch as the tractor driver went on the kacha and rammed into the tree and then hit the cyclist Surjan Singh fatally. It is not a case where the provisions of Probation of Offenders Act, 1958 can be brought into play. It is the duty of the drivers of the heavy vehicles to be careful and cautious so far as pedestrians, cyclists, scooterists etc. on the highways are concerned. Keeping, however, in view that the petitioner has unmarried sisters, younger brothers, and aged mother and to maintain them, there will be no one left, I feel sentence imposed should be slashed. So, the sentence imposed upon the petitioner is slashed and is brought down to six months rigorous imprisonment under Section 304A of the India Penal Code. He will pay fine of Rs. 5000/. In default of payment of fine, he will undergo further rigorous imprisonment for one month. Amount of fine, if recovered, shall be paid to Suresh Pal PW son of Surjan Singh.

Subject to the reduction/variation in sentence, this revision fails and is dismissed.

Revision dismissed.