Ramesh Kumar vs State of Punjab

M.L. Singhal, J.

Ramesh Kumar was convicted under Section 304A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 5000/ or in default of payment of fine to undergo further rigorous imprisonment for two months by Shri B.R. Garg, Judicial Magistrate Ist Class, Ludhiana vide order dated 18.10.1996 in case FIR No. 419 dated 27.10.1991 under Section 304A of the Indian Penal Code of Police Station, Sadar, Ludhiana.

His appeal to the Court of Sessions failed. Learned Additional Sessions Judge, Ludhiana vide order dated 25.9.1998 dismissed the appeal without any tinkering with the judgment/order of the learned Magistrate.

Ramesh Kumar has not felt disheartened with the dismissal of his appeal by the learned Additional Sessions Judge, Ludhiana. He has come up in revision to this Court, whereby he has prayed for his acquittal.

Prosecution case in brief is that on 27.10.1991, Punnu Ram was standing in front of the shop of Mulakh Raj. It was about 5.00 p.m. He was talking to one Sat Pal Bains, Property Dealer and one Parveen owner of Video shop. Naresh Kumar alias Kaka, who is son of Punnu Ram reached there and asked Punnu Ram to go home. In the meantime, one Swaraj Mazda tempo No. PB10J9610 came from the side of GT road. It was being driven by Ramesh Kumar rashly, negligently and at a very fast speed. The right side front wheel of the tempo ran over Naresh Kumar and with the impact head of Naresh Kumar was crushed. He died at the spot. At the time when the mishap took place, Naresh Kumar alias Kaka was standing on the Kacha berm of the road. Ramesh Kumar struck his tempo in Naresh Kumar alias Kaka after taking the tempo to the wrong side of the road. Driver of the tempo tried to speed away with the tempo. On the statement of Punnu Ram made to HC Ravinder Pal Singh, the aforesaid case was registered. After investigation accused was challaned under Section 304A of the Indian Penal Code.

Accused was charged under Section 304A of the Indian Penal Code. He pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, Judicial Magistrate Ist Class, Ludhiana vide order dated 18.10.1996 found the charge under Section 304A of the Indian Penal Code proved against the accused. He convicted him and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 5000/ or in default of payment of fine to further undergo rigorous imprisonment for two months.

I have heard learned Counsel for the petitioner and have gone through the record.

I have gone through the judgment passed by the learned Magistrate. I went through the judgment passed by learned Magistrate and did not notice any illegality or infirmity in the appraisal of the evidence by the learned Magistrate. Constable Teja Singh, Motor MechanicPW4 mechanically tested Swaraj Mazda and found the same to be in order. He stated that the brakes and lights of the vehicle were all right. Sarabjit Singh Photographer PW3 photographed the place of mishap. Photographs also suggest that Ramesh Kumar dashed the tempo in Naresh Kumar alias Kaka on the point where Rakesh Kumar had no occasion to have taken his tempo at all.

Learned Counsel for the petitioner submitted that Mohinder Singh should have been examined as his state was recorded at the spot. Nonexamination of Mohinder Singh should be fatal to the prosecution. Suffice it to say, in criminal case every witness is not required to be examined. We have to look to quality of the evidence and not quantity thereof. PWPunnu Ram has supported the prosecution case. Prosecution case derives support from the circumstantial evidence in the shape of photographs of the place of mishap. It was submitted that if the complainant had been present at the spot, he could have taken care to rescue his child. Suffice it to say, how could he save his child when the Swaraj Mazda tempo dashed against him in no time and when the Swaraj Mazda tempo had no occasion at all to have reached there. Petitioner cannot dispute his identity. If he were to dispute his identity, he could have surrendered before the Magistrate and requested him that he put at test identification parade. He failed to surrender before the Magistrate and request him that he be put at test identification parade. It is clear that tempo was being driven by the accused rashly, negligently and at a fast speed and the boy was on the kacha berm of the road and the tempo had no occasion to dash against the boy when he was on the kacha berm of the road.

Finding no ground to interfere so far as conviction is concerned, revision was dismissed qua conviction. It was admittedly only qua sentence.

Qua sentence, learned Counsel for the petitioner submitted that he should have been released on probation of good conduct. It was submitted that he was put up on trial in the year 1992 before the Magistrate. He was convicted and sentenced by the learned Magistrate in October, 1996. He, thus, faced the agony of the criminal trial for about 41/2 years before the learned Magistrate. He went in appeal to the Court of Session where his fate hanged in the balance for about two years and eventually his appeal was dismissed and he remained convicted and sentenced. Right of speedy trial is a fundamental right of the accused flowing from Article 21 of the Constitution of India. If the Court is not able to assure speedy trial to the accused, the Court should at least show some consideration to him in the matter of sentence. He submitted what is the recompense to the accused if he is dealt with in the matter of sentence like any other accused whose trial takes no time visavis the one whose trial takes years together and proceeds at a snail''s pace.

In my opinion, some compassion should be shown to the accused in the matter of sentence keeping in view that he has been facing agony of criminal trial for the last 7 years. This criminal trial has been hanging on his head like Damoclean sword for the last 7 years. Accused cannot, however, be released on probation of good conduct as road accidents are on the increase. It is the duty of the drivers of the heavy vehicles to be careful and circumspect when they are on highways while driving, more so when they are on internal roads. They have to be extra careful, cautious and circumspect so far as safety of the children, pedestrians and scooterists etc. is concerned. In this case petitioner brought about the death of a child aged 10 years by dashing Swaraj Mazda in him when he was on a point where Swaraj Mazda had no occasion to have been. It is, thus, not a case where the provisions of Probation of Offenders Act or Section 360 of the Code of Criminal Procedure should be brought into play to the aid of the accused. Releasing such an accused on probation of good conduct would be putting premium on his criminal negligence. Sentence imposed upon him is, however, slashed and is brought down to rigorous imprisonment for one year. Sentence of fine shall remain intact together with the default clause. The entire amount of fine, if recovered shall be paid to Punnu Ram father of the deceased.