@JUDGMENTTAG-ORDER
G. Rajasuria, J.@mdashAnimadverting upon the order dated 25.04.2007, passed by the learned Sessions Judge of Nilgiris at Udhagamandalam, in C.A. No. 5 of 2007, confirming the judgment and order of conviction dated 22.02.2007, passed by the learned Judicial Magistrate, Udhagamandalam, in STC No. 843 of 2003, this criminal revision is focussed.
2. Compendiously and concisely, the relevant facts which are absolutely necessary and germane for the disposal of this revision would run thus:
(a) The police laid the police report in terms of Section 173 Cr.P.C. as against the accused for the offences under Sections 279, 304(A) and 338 IPC on the ground that the accused was driving the lorry bearing Registration No. TN-N-4905 along Kudalur Main Road near Kamaraj Dam towards Ooty, so to say from north to south direction, in a rash and negligent manner and at that time, the driver of the lorry dashed the lorry as against the said motor cyclist and caused his death and caused grievous injuries to the pillion rider.
(b) Inasmuch as the accused pleaded not guilty, trial was conducted. During trial, on the prosecution side, P.Ws.1 to 17 were examined and Exs.P1 to P9 were marked. No oral or documentary evidence was adduced on the side of the accused.
(c) Ultimately, the trial Court recorded the conviction and imposed the sentence as under:
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Case No. Offence Punishment imposed
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STR No. u/s 304(A) IPC Three months R.I.
843 of 2003 u/s 338 IPC One month R.I.
(Sentence to run concurrently)
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3. Animadverting upon such judgment of the lower Court, C.A. No. 5 of 2007 was filed for nothing, but to be dismissed, confirming the judgment of the lower Court.
4. Challenging and impugning the judgments of both the Courts below, this revision has been filed on various grounds, the warp and woof of them would run thus:
The judgments of both the Courts below would evince that the Courts have not taken into consideration that no negligence on the part of the accused was attributed by any of the witnesses examined on the prosecution side. In proper perspective the oral and documentary evidence have not been analysed by the Courts below. The lower Court found as though the lorry was coming downwards, when in fact it was not so. The lorry was going upwards in that hill area. In the absence of clear proof to show that the accused was rash and negligent in causing the accident, the Courts below were not justified in finding him guilty. Accordingly, he prays for setting aside the order passed by both the Courts below.
5. The point for consideration is as to whether there is any perversity or non-application of law in rendering judgments by both the Courts below.
6. The learned Counsel for the revision petitioner inviting the attention of this Court to various parts of the evidence would set forth and put forth his argument to the effect that the lorry was negotiating upwards and in such a case, he could not have been rash and negligent as it is obvious and axiomatic; however, without taking into consideration this basic principle, both the Courts below simply jumped to the conclusion that the driver of the lorry was at fault. According to the learned Counsel for the revision petitioner, the deceased rider of the motor cycle was not having driving licence and hence, both the Courts below were not justified in mulcting the accused with criminal liability.
7. Whereas, the learned Government Advocate (crl.side) by way of torpedoing and pulverising the argument as put forth on the side of the accused would submit that the lorry which was moving upwards was expected to give way for the vehicle which is coming downwards and the driver of the lorry should have been careful in driving the vehicle upwards, but he failed to do so and that without sounding the horn, he simply drove the vehicle.
8. In this factual matrix, I would like to refer to the sketch which was marked as Ex.P.8. A bare look at Ex.P.8 would evince and disclose that there is no ''L'' or ''V'' bend on the road at the place of the accident. It is explicitly clear that while the lorry was negotiating along the acclivitous slope of the road, the deceased motor cyclist was negotiating along the declivitous slope of the same road, by adhering to the proper side, so to say the left side.
9. It is a trite proposition of law that the vehicle which is moving upwards should give way for the vehicle which is coming downwards. It is also a common or garden principle that bigger the vehicle, bigger the responsibility. The driver of the lorry should have been careful in driving the lorry while driving it upwards, but from the evidence it is shown that he in the process of moving upwards, he deviated from the path and moved towards right side and came in violent contact with the deceased motor cyclist. Both the Courts below gave a concurrent finding relating to the actual occurrence warranting no interference, as I could see no perversity or non-application of mind in their finding.
10. There is nothing to indicate and divulge that the rider of the motor cycle was not having licence to drive the vehicle. Even for arguments sake if taken so, it cannot be presumed that simply because of that factor, the accident occurred. The responsibility on the person who is having no driving licence cannot be fixed in the absence of clinching evidence pointing towards the negligence on his part.
11. P.W.13, the Motor Vehicle Inspector with reference to Ex.P4 would state that the accident might not have been due to any mechanical defect in the vehicles. Accordingly, I could see no perversity or non-application of law in recording the finding of guilt as against the accused and as such, no interference relating to the findings are required.
12. Regarding the sentence is concerned, the lower Court imposed only three months substantive imprisonment along with fine and the appellate Court also confirmed it.
13. The learned Counsel for the revision petitioner would pray for imposing fine only and exonerate the accused from undergoing imprisonment.
14. At this juncture, my mind is redolent of the following decision of the Hon''ble Apex Court:
2002 (2) Supreme 500 - State of Karnataka v. Sharanappa Basnagouda Aregoudar, an excerpt from it would run thus:
6. We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to the subordinate courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system.
A bare perusal of it would show that atleast three months imprisonment should be imposed in the matter relating to Section 304-A IPC and the lower Court adhering to the cited precedents, imposed the sentence warranting no interference.
In the result, this criminal revision case is dismissed.
