Raghbir Singh vs State of Punjab

Swatanter Kumar, J.

Petitioner Raghbir Singh has preferred this revision petition against the judgment and order of the learned Additional Sessions Judge, Patiala, dated 16.1.1995. While dismissing the appeal of the petitioner the learned Additional Sessions Judge held him guilty of offences under Sections 279, 337 and 304A of Indian Penal Code and as well upheld the sentence awarded to him by the trial Court. The petitioner was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/ under Section 304A I.P.C. In default of payment of fine he was to undergo further rigorous imprisonment for two months. He was also sentenced to undergo rigorous imprisonment for six months each under Sections 337 and 279 I.P.C.

The case of the prosecution which led to the conviction of the petitioner was that on 4.4.1989 complainant Harkirat Singh along with his brother Jujhar Singh came from Ambala to Patiala on car No. HRY2043 for leaving a passenger there. On their return journey, when Harkirat Singh was driving the car, two passengers of Rajpura were taken from the Railway Station Chowk, Patiala. At that time Jujhar Singh was driving the car. While one passenger was sitting at the back seat, other was on the front seat with the driver. When the car reached Bahadurgarh, a truck came from the Rajpura side at a very high speed. Jujhar Singh is stated to have taken the car on the Kacha portion of the road. The truck driver while driving the vehicle rashly and negligently took to the extreme right of the road and hit the car. Jujhar Singh died at the spot while Harkirat Singh, his brother and other occupants received injuries. They were taken to the hospital and were admitted there. At about 12.15 a.m. on 5.4.1989, A.S.I. Des Raj left for hospital but met Harkirat Singh near the police station and recorded his statement Ex.PW 7/A. The investigating officer went to the spot and prepared the inquest report. The dead body of Jujhar Singh was subjected to postmortem examination. The report of the doctor is Ex. P/1. The death was resulted from the injuries received in the vehicular accident. The investigating officer also recorded the statements of Sukhwant Singh and Rajesh Kumar, who were admitted to the hospital in injured condition. Bloodstained clothes of the deceased were also taken into possession. After completion of investigation challan against the accused was put up in the Court for trial under Sections 279, 337, 427 and 304A I.P.C.

On the basis of these facts and the evidence of the prosecution, which examined eight witnesses, the trial Court convicted the accused as afore stated and his conviction and sentence, both were upheld by the learned Appellate Court.

In his statement under Section 313 Cr.P.C. the petitioner denied the allegations and claimed innocence. He did not lead any evidence in defence.

The revision petition came up for hearing before Hon''ble Mr. Justice H.S. Bedi, who vide his order dated 7.6.1995 declined to admit the same on merits and restricted the notice relating to quantum of sentence only.

The counsel for the petitioner has argued that it was a case of contributory negligence by the car driver as well. He also urged that the truck driver was not driving the vehicle in a rash and negligent manner and the accident occurred as a result of some negligence of both the drivers. He submits that the quantum of punishment should be reduced in these circumstances. He further argued that the petitioner be released on probation because he is a poor man and family members are dependent upon him. The counsel also submitted that the petitioner has been in jail earlier as well as from 16.1.1995, the date on which he was convicted and sentenced by the learned Additional Sessions Judge. As he has already undergone more than half of the sentence awarded to him, he should be released on probation by the Court.

While declining to interfere on the quantum of sentence, I find some force in the submission of the learned counsel for the petitioner with regard to the petitioner being given the benefit of Probation of Offenders Act read with Section 360 of the Criminal Procedure Code. The purpose of providing benefit to an accused under the aforementioned provisions is primarily to give another chance to the accused to improve his conduct and to live as a better humanbeing in the society. The seriousness of the offence, the conduct of the accused and the likelihood of his repeating the offence are the basic criterion which would normally weigh with the Court while granting or refusing such benefit to the accused.

The learned counsel for the petitioner has relied upon the judgment of the Supreme Court in 1982 CAR 5 (SC) (Aitha Chander Rao v. State of Andhra Pradesh), where the accusedappellant in that case was allowed the benefit of probation without affecting the service career of the driver. It was observed by the Supreme Court as under:

"The Sessions Judge has found that there was some amount of contributory negligence on the part of the appellant and having regard to the peculiar circumstances of this case we think it is eminently a fit case in which the appellant may be released on probation."

The learned counsel also relies upon other cases reported as Gobind Ram v. The State of Haryana, 1978 Chandigarh Law Reporter 255 and Sadhu Ram v. The State of Haryana, 1983(1) Chandigarh Law Reporter 420. In these cases the F.I.Rs were registered against the State Transport drivers under Sections 304A I.P.C. etc., but they were ordered to be released on probation by the orders of this Court.

On the other hand, the State counsel has relied upon the case of Gurcharan Singh v. State of Punjab, 1983(1) Recent Criminal Reports 1 and submitted that the principles laid down in the said judgment are that the provisions of Sections 360 and 361 of the Criminal Procedure Code are not applicable to such cases.

I find it difficult to uphold the contention of learned counsel for the State as in the same judgment it was because of the peculiar facts and circumstances of the case that the Court had declined to give the benefit of Sections 360 and 361 of the Code of Criminal Procedure to the accused in that case. The learned Judge in para No. 7 of the judgment indicated the following reasons:

"These offences are on the increase by leaps and bounds and, therefore, the provisions of Sections 360 and 361, Criminal Procedure Code, are to be applied to such cases only in a very rare and exceptional circumstance. The case in hand, in my view, is not of that kind."

Thus, the benefit to the accused in that case was declined, keeping in view the peculiar facts and circumstances of the case as two young children had lost their lives and 8 others were injured.

The Courts have emphasised that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Courts are required to collect material necessary to award just punishment and also to apply its mind to the facts and circumstances of the case whether the accused convict can be given the benefit of the provisions of Section 360 Cr.P.C. or the provisions of Probation of Offenders Act. The Supreme Court in the case of Ved Parkash v. State of Haryana, AIR 1981 Supreme Court 643, while emphasising the need of dealing with the offenders in such a manner that he becomes a nonoffender, observed as under:

"We emphasise this because the legislations which relate to amelioration in punishment have been regarded as ''Minor acts'' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act."

In a very recent case titled as A.P. Raju v. The State of Orissa, 1995 Supreme Court Cases 675, the Supreme Court while dealing with a case of death by rash and negligent driving under Section 304A of the Indian Penal Code, held as under:

"Taking in view all these factors, in our opinion, the interest of justice would be met if instead of now sentencing the appellant to serve a term of imprisonment and sending him to prison again, we order his release under Section 360, Criminal Procedure Code on the appellant''s entering into a bond with one surety to keep peace for a period of one year from the date of execution of the bond. We make an order accordingly. The bond shall be executed by the appellant within one month from today before the trial court. With the above modification of sentence, the appeal is disposed of."

The Courts, therefore, have to draw a balance between the chances of the offender becoming a nonoffender and minimizing the chances of such an offender repeating commission of such offences on the one hand, and, on the other hand, from the accused drawing a premium over the commission of the offence, in the event the accused is granted such benefit. This would depend upon various factors which have been settled by various pronouncements of all Courts and they form kind of guidelines for the Courts to strike this balance.

There can be no two opinions that the benefit of Section 360 and 361 of the Criminal Procedure Code and the provisions of Probation of Offenders Act 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. In the present day when the road accidents are certainly on the increase, the Courts will have to apply reasonable caution while granting such benefit to the accused in these cases.

Keeping in view the above discussion and while upholding the conviction of the petitioner, it is desirable that he should be released on probation. Number of persons are dependent upon the petitioner. He is a first offender and belongs to a poor family. There is no complaint of his conduct during the trial. He has already undergone substantial portion of the sentence. Consequently, it is directed that the petitioner be released on probation for a period of two years under Section 360 of the Criminal Procedure Code read with the provisions of Section 4 of the Probation of Offenders Act, on his furnishing a personal bond in the sum of Rs. 10,000/ with one surety in the like amount, for the said period, for keeping peace and be of good behaviour, to the satisfaction of Chief Judicial Magistrate, Patiala. In the event, the petitioner is involved in any accident case while committing such offence during the above said period, the benefit of probation granted to him under the aforesaid provisions, shall be deemed to be withdrawn and the petitioner shall have to appear before the Court of competent jurisdiction to receive and undergo the remaining portion of sentence. The revision petition is disposed of according.