Sukh Ram vs State

S.M. Rizvi, J.—This criminal revision is directed against the judgment and order of the learned Sessions Judge, Udhampur dt. 16-2-1976,

dismissing the appeal of the petitioner against the judgment and order of the learned Chief Judicial Magistrate, Udhampur convicting him for the

offence u/s 304-A, RPC, and sentencing him to two years' rigorous imprisonment and a fine of Rs. 2,000/-.

The petitioner was driving Truck No. 481/JKA on the National Highway on 14-7-1971, and while coming from Udhampur side towards Jammu

at Tikri, his truck hit one Devi Dass causing his death instantaneously. One Mangat Ram was also hit and injured. The matter was referred to the

police, which resulted in challenging him for the offence Under Sections 304-A, 279 and 337 of the RPC in the Court of the learned Chief Judicial

Magistrate, Udhampur. He was charged for the said offences. He pleaded not guilty. The petitioner was tried and found guilty. He was convicted

for the offence u/s 304-A, RPC, and sentenced to two years' rigorous imprisonment, and a fine of Rs. 2,000/-. He was also convicted for the

offence u/s 337, RPC, and sentenced to a fine of Rs. 500/-. He challenged the said judgment and order of the learned Chief Judicial Magistrate by

medium of an appeal in the Court of the learned Sessions Judge, Udhampur. The learned Sessions Judge acquitted him of the charge u/s 337, RPC

but maintained his conviction and sentence for the offence u/s 304-A, RPC. He has felt aggrieved of the said judgment and order, and hence this

revision.

I have heard the learned Counsel for the parties, and have examined the record thoroughly.

Mr. Thakur has assailed the order of the learned Sessions Judge, mainly, on the following grounds: Firstly, he has argued that the learned

Sessions Judge has not given sufficient reasons for disbelieving the testimony of Maya Devi, a defence witness. She has deposed that, she was

travelling in the truck of the petitioner, and was seated on the front seat, when the alleged occurrence took place. According to her, the petitioner

was not driving his vehicle, rashly, and that the accident was the result of some ditch on the spot of alleged occurrence.

I have thoroughly gone through the statement of Maya Devi. In my opinion, the learned Sessions Judge has rightly disbelieved her testimony.

She has stated that, she too was injured in the occurrence, and was carried to Janmu in an ambulance. This is manifestly an afterthought, and she

appears to have, been introduced in the case, just to replace the unknown lady passenger, who was actually travelling in the truck of the petitioner.

How she was known to the petitioner, that he traced her out to be produced as his witness, has not been explained by her. Why she was silent for

all the time in the world-right up from the day of alleged occurrence till the day she was produced as a defence witness. She has not come forward,

to be examined during the course of investigation or the trial. This all shows that, she was not the same lady who travelled in the truck of the

petitioner at the time of the alleged occurrence, but has been introduced, just to replace the said lady.

The second argument of Mr. Thakur was that, the prosecution evidence lacked in proving the alleged rash and negligent driving of the petitioner,

and, hereby causing the death of the deceased. By this argument, the learned Counsel wants this Court to go into the appreciation of evidence

which cannot be done, in this revision. Suffice it to say that, the learned trial Court after going into the question thoroughly, has come to the

conclusion that, the petitioner was driving his vehicle rashly and negligently, and thereby caused the death of the deceased. The learned appellate

Court has also gone into this question, and has given sufficient reasons for confirming the finding of the trial Court, in this regard. In my opinion, the

learned Courts below have not committed any illegality or impropriety in arriving at such a conclusion. There is sufficient material on the file, which'

goes to prove the rashness and the negligence of the petitioner, in causing the death of the deceased.

The third argument of Mr. Thakur was that, the evidence of Prem Nath, a prosecution witness, was sufficient to establish the innocence of the

petitioner and that the Courts below have not judicially considered his testimony, which was binding on the prosecution. The perusal of the

statement of Prem Nath shows that, at the request of the Investigating officer, he checked up the vehicle in question soon after the occurrence, as a

Motor Mechanic. He issued the certificate about his inspection of the vehicle. When he was examined in the Court as a prosecution witness, he

proved the said certificate. In his cross-examination, however, he introduced some fresh facts, which were not found in the certificate. He stated

therein that, the 'shaft' of the vehicle was broken, which could drag the vehicle sideways.

This argument of Mr. Thakur is also about the appreciation of evidence, which this Court is not expected to do in a revision. The learned

appellate Court has thoroughly gone into this question, and has confirmed the finding of the learned, trial Court, and rightly, so. They appear to

have correctly understood the pith and substance of the witnesses' testimony.

Lastly, the learned Counsel for the petitioner has submitted that, the sentence of two years' imprisonment awarded to the petitioner was

extremely excessive, as there were extenuating circumstances calling for a very lenient view to be taken in his favour. According to him, the

petitioner was the only earning hand to support his family, and if he is sent to jail for two years, the members thereof will die of starvation.

Though, this argument of Mr. Thakur also is not very much convincing, but the fact remains that the petitioner has been facing the Court

proceedings for the last fifteen years. The occurrence has taken place in the year 1971, and since then, the petitioner has crossed over from his

youth to middle age. The jail sentence must have hung over his head like a hanging sword for all these years. Then in the matter of sentence, the

Court should not allow itself to be prejudiced by the circumstances of loss of human life. The sentence to be imposed cannot be measured by the

consequences of the act, unless those consequences were necessarily inherent in the act. One has to consider, whether the rash or negligent act of

the accused, which occasioned the death, shows callousness on his part, as regards the risk to which he was exposing other persons. The severity

of the sentence must depend, to a great extent, on the degree of callousness, which is present in the conduct of the accused. That apart,

harassment of a criminal trial for a long time, and the expenses, which may have been incurred by the accused, can, however, be taken into

account in reducing the sentence. Similarly, the fact that driver's family is likely to suffer, and, in the meanwhile, he is also likely to lose his job

during the period of imprisonment, should not be ignored. The ends of justice can be better served, if the punishment of rigorous imprisonment is

reduced, and instead, the sentence of payment of fine is enhanced reasonably.

Keeping in view, the observations made above, the sentence of two years' rigorous imprisonment imposed on the petitioner, appears

somewhat excessive. It would be in the interest of justice, if the sentence of rigorous imprisonment is reduced, and the sentence of payment of fine

is enhanced, so as to compensate the legal heirs of the deceased to some extent by making some payment to them, from the same.

In these circumstances of the case, though there is no illegality or impropriety in the order passed by the learned Sessions Judge, in dismissing the

petitioner's appeal, the ends of justice would be, however, met by altering the sentences imposed on the petitioner by the learned Courts below, so

as to make the punishment commensurate with the gravity of the offence. The sentence of rigorous imprisonment of two years is, therefore,

reduced to six months rigorous imprisonment, and the sentence of fine of Rs. 2,000/- is enhanced to Rs. 5,000/- with the direction that, Rs.

4,000/- shall be given to the heirs of the deceased, after it is realised from the petitioner. The revision is, accordingly, disposed of. The revision file

shall be consigned to record. The record received from the Courts below shall be remitted back to them. The learned Chief Judicial Magistrate,

Udhampur shall take further necessary action in the matter, by enforcing the order of this Court, as mentioned above.