Sobin vs State of Haryana

Ram Chand Gupta, J.—The present revision petition has been filed against the judgment dated 8.3.2013 passed by learned Additional Sessions Judge, Palwal dismissing the appeal filed by the present petitioner-convict against the judgment of conviction dated 8.2.2012 and order of sentence dated 9.2.2012 passed by learned Sub Divisional Judicial Magistrate, Hathin vide which the petitioner was convicted for the offences punishable under Sections 279 and 304-A of Indian Penal Code (for short ''IPC'') and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000 for the offence punishable u/s 279 IPC and in default of payment of fine, to further undergo simple imprisonment for a period of fifteen days. He was further sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs. 5000 for the offence punishable u/s 304-A of IPC and in default of payment of fine, to further undergo simple imprisonment for a period of two months. Both the sentences were ordered to run concurrently. Briefly stated, case of the prosecution is that on 9.8.2005 at about 11.30 AM Amit Sharma alongwith Amit, Prem Parkash, Yadwinder, Gaurav Singla and Dhiraj was travelling in a bus bearing registration No. HR-38N-3003. On the asking of driver and conductor of the bus, they occupied the roof of the bus. However, present petitioner-convict who was driver of the bus, drove the same in a rash and negligent manner and when they reached near turning of village Ruparka, petitioner had taken a sudden turn due to which Gaurav fell down and sustained multiple injuries. They raised noise and petitioner stopped the bus. Gaurav became unconscious and the blood was oozing out of his ear. Firstly, he was taken to Govt. Hospital, Hathin and thereafter to Diamond Hospital, Palwal and from there he was taken to Sunflag Hospital, Faridabad. Later on, he succumbed to the injuries.

Petitioner-convict faced trial. He was convicted and sentenced by learned trial Court as afore-mentioned. Appeal filed by him against the judgment of conviction and order of sentence was also dismissed by learned appellate Court.

I have gone through both the judgments rendered by learned Courts below. Same are based on evidence. Though injured Gaurav expired after 6-7 months of receiving the injuries, however, his death was rightly held to be caused on account of injuries sustained in the accident. Hence, notice of motion was issued qua quantum of sentence only.

It has been contended by learned counsel for the petitioner-convict that he has been facing trial for the last about eight years. It is also contended that he has already undergone more than six months of the sentence awarded. It is further contended that he is not a previous convict and even injured died after 6-7 months of receiving the injuries. It is further contended that petitioner is having small children to look after and that he is not involved in any other case. Hence, it is contended that he be given the benefit of probation under the Probation of Offenders Act, 1958 or his sentence be reduced to the sentence already undergone by him.

So far as the argument of learned counsel for the petitioner that he be given the benefit of probation under the Probation of Offenders Act, 1958 is concerned, law on the point as to whether the benefit of probation under the Probation of Offenders Act, 1958 should be granted to the accused- convicted for offence u/s 304-A IPC, has been settled by Hon''ble Apex Court in Dalbir Singh Vs. State of Haryana, by observing that the courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act, 1958 when the accused is convicted for the offence u/s 304-A IPC in causing death of human beings by rash or negligent driving. Relevant paragraphs no. 12 and 13 of the judgment read as under:

In State of Karnataka Vs. Krishna alias Raju, this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A IPC to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposed a fine.

Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304-A I.P.C. as attracting the benevolent provisions of S. 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident, or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence, and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence of causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles.

This judgment was subsequently followed by the Hon''ble Apex Court in B. Nagabhushanam Vs. State of Karnataka, and the benefit under the Probation of Offenders Act, 1958 was denied to the accused for commission of offence punishable u/s 304-A IPC.

Moreover, in this case, petitioner-convict has taken life of a young boy by his rash and negligent act. Firstly, he allowed the deceased to occupy the roof of the bus and thereafter, he drove the bus in a rash and negligent manner and hence, the deceased fell down. It was required from the driver of the bus to drive the same with a moderate speed and cautiously if he allowed some passengers to occupy the roof of the bus.

Hence, in view of these facts and in view of the legal proposition settled by Hon''ble Apex Court in Dalbir Singh''s case (supra) and B. Nagabhushanam''s case (supra) petitioner-convict does not deserve the benefit of probation under the Probation of Offenders Act, 1958.

However, taking into consideration the fact that he is not a previous convict and facing trial for the last about eight years, some leniency in the quantum of sentence can be granted to him.

Hence, the present petition is partly accepted. While affirming the judgment of conviction as passed by learned trial Court and as affirmed by learned first Appellate Court, the order of sentence is modified to the extent that the period of rigorous imprisonment is reduced from two years to one year for the offence u/s 304A IPC, maintaining the fine and sentence for other offence. Disposed of accordingly.