Babu Lal Vs State of Rajasthan

Banwari Lal Sharma, J.@mdashBy this revision, the petitioner-convict Babu Lal @ Pappu Singh is challenging the judgment dated 17.5.1995 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur whereby the conviction of the petitioner-convict under Sections 279, 304 IPC and Section 134 /187 of the Motor Vehicles Act awarded to him by the learned Judicial Magistrate, Bilara (Jodhpur), vide judgment and order dated 12.2.1995 was affirmed. Briefly, as set up the prosecution case is that on 5.6.1992, a written report was submitted by Ashok Kumar PW.1 to S.H.O., P.S. Bilara stating that he (Ashok Kumar, Land Record Inspector) along with Jai Ram Patel, Krishna Ram, Kishanlal, Jawaharlal, and Shyamlal Suthar went to Barni Khurd from Bilara by Jeep No. RRT 6082. The driver of the jeep was Babulal Meghwal and when they were returning from Barni Khurd via Pipar City, another driver was boarded in the jeep and started to drive it. His name was best known to Babulal. The complainant was not aware of his name. He identified him only by face, who was driving the jeep from Pipar. When they arrived at the farm of Kaluramji, which is before check-post, a truck was going in-front-of the jeep, the driver of the jeep tried to over-take the truck in rash and negligent manner and hit the moped No. RNL 4907, which was coming from front side. The moped driver died on the spot and the pillion rider got serious injured. The accident took place in the evening at 8.00 pm.

2. On the basis of the above report Ex. P/2, formal FIR No. 135/92 was registered at P.S. Bilara (Jodhpur) for committing offence punishable under Sections 279, 337 and 304A IPC. On completion of investigation, charge-sheet was filed against the present petitioner for the offences punishable under Sections 279, 304A IPC and 134 /187 of the Motor Vehicles Act before the learned Judicial Magistrate, Bilara (Jodhpur) on 13.7.1992.

3. During the course of trial, the prosecution examined as many as 8 witnesses to bring home the guilt of the petitioner. After examining the petitioner (who was accused in the case), examined himself and one person as witnesses in defence. In his statement u/s 313 Cr.P.C., the petitioner denied the prosecution version and stated that the facts narrated by the witnesses of prosecution are wrong and further stated that he is not responsible for rash and negligent act, rather the moped driver himself was responsible for rash and negligent driving and he himself fell down in the jeep.

4. After considering the testimonies of the prosecution witnesses, defence witnesses and the material available on the record, the petitioner-accused was found guilty for causing death of Mohanlal and Babulal due to rash and negligent driving of jeep bearing No. RRT 6082 and he was sentenced to undergo six months'' simple imprisonment with fine of Rs. 500/- for the offence punishable under Sec. 279 IPC, in default of payment of fine to further undergo one month''s simple imprisonment; for the offence punishable under Sec. 304A IPC, he was sentenced to undergo one year''s simple imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further undergo three months'' simple imprisonment; and for the offence punishable under Sections 134 /187 of the Motor Vehicles Act, he was sentenced to undergo one month''s simple imprisonment with fine of Rs. 200/-, in default whereof to undergo is days'' simple imprisonment. All the sentences were ordered to run concurrently but the default sentence was ordered to run separately.

5. Aggrieved by the judgment dated 17.5.1995 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur vide which the appeal preferred against the judgment of the learned Judicial Magistrate Bilara (Jodhpur) was dismissed, this revision petition has been filed praying for setting aside the judgment and order of sentence dated 15.2.1995 passed by the learned Judicial Magistrate, Bilara (Jodhpur) and the judgment dated 17.5.1995 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur and acquittal of the petitioner for the offences complained off.

6. The revision petition was admitted by this Court vide order dated 31.5.1995 and the record was called for.

7. The learned counsel for the petitioner has submitted that both the courts below tailed to appreciate that the prosecution failed to prove the rash and negligent act on the part of the petitioner so as to hold him guilty under Sees. 279, 304A IPC and Section 134 /187 of the Motor Vehicles Act. He further submitted that the complainant himself mentioned in the FIR, which was promptly lodged, that the vehicle in question was driving by another person, viz., Madanlal from Pipar City and the accident also took place after crossing Pipar City, which was not appropriately appreciated by the courts below. He further submitted that the petitioner was wrongly implicated in the matter and the witnesses deposed against the contents of the FIR, which ought not to have been relied upon. He also submitted that the moped riders were in the impression of liquor. The defence witnesses DW-1 and DW-2, both have stated that the moped riders were in the impression of liquor and the moped was being driven in rash and negligent manner. The driver of the moped was not having driving license. It was being driven without the headlight. He further submitted that the moped came on the road suddenly amongst the trucks, which caused the accident, for which the petitioner cannot be held liable. He further submitted that both the courts below have convicted the petitioner while relying on the explanation given under Sec. 313 Cr.P.C., which is not proper. He also submitted that the doctor, who conducted the autopsy, was not examined, therefore, it cannot be said that the autopsy reports are proved and such reports cannot be relied upon for the purpose of conviction of the petitioner. Lastly he submitted that the petitioner, at the time of accident, was below 20 years and it was his first conviction. He belongs to SC Family, therefore, if this Court also finds him guilty of the offences complained off, then may be extended the benefit of the provisions of the Probation of Offenders Act. Learned counsel for the petitioner has relied upon the judgments delivered in the cases of T. Gurumurthy vs. State through Chief Secretary, UT of Andaman & Nicobar (2005 (2) WLC (SC) Cri. 592), Puttaswamy Vs. State of Karnataka and Another, and Yusuf @ Babu Khan Vs. State of Rajasthan,

8. Per contra, Ms. Chandralekha, learned Public Prosecutor for the State, submitted that the case is based on the version of eye-witnesses who were travelling in the offending vehicle and were well aware about the facts of the case. The prosecution has proved the case beyond reasonable doubt and the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur has rightly dismissed the appeal, which need not be interfered with by this court in exercise of revisional jurisdiction for the reason that there is no illegality or infirmity in the impugned judgment and order of sentence.

9. I have heard the learned counsel for the parties and considered the rival submissions put-forth by them.

10. In this case, the petitioner examined himself as DW-1 and admitted that at the time of accident, he was driving the jeep. When the petitioner himself admitted the fact that he was driving the jeep, then it cannot be said that another person was driving the jeep. The petitioner has also admitted the factum of accident and also admitted that the moped was coming from front side and there was no other way from where the moped came. It was also admitted that the space between check-post and barrier point was so short that a man could not cross it with the moped. It was further admitted that the speed of the moped was only 20 km. Per hour. The passengers of the jeep told him to slow down the speed of the jeep. So far as DW-2 Madan Singh is concerned, though he deposed that deceased Mohanlal and Babulal consumed liquor but in cross-examination, he admitted that he came to know Babulal and Mohanlal only on the date of the accident. He was not familiar with them before it. His statements were recorded on 25.1.1995 while the accident took place on 5.6.1992. In postmortem reports of Mohanlal and Babulal, there is no finding regarding consumption of liquor. In absence of finding of consumption of liquor in postmortem reports, this witness cannot be relied upon.

11. Further, mere consumption of liquor does not prove that the vehicle was being driven rashly and negligently. It is also to be proved that the person consumed liquor was in the impression of liquor and there is no such evidence, which proves that the driver of moped was in the impression of liquor. Rather, the petitioner failed to prove the consumption of liquor by the driver of the moped.

12. The site plan Ex. P/16, which was proved by PW.8 Magna Ram clearly shows that the jeep No. RRT 6082 was coming from Pichiyak to Bilara and hit the moped after coming towards wrong side. It has also been mentioned in the site plan that the jeep crossed the center line of the road by 9-1/2 ft. and stopped after dragging the moped up to 69 feet.

13. PW. 1 Ashok Kumar, scriber of the FIR, identified the petitioner in the court and clearly stated that from Piper, second driver was sitting behind and he further stated that he was besides the driver in front side. He also stated that from Piper, the petitioner started driving the jeep in fast and negligent manner for which he was accosted but he did not care and by his rash and negligent driving, committed and accident. In his cross-examination, he has stated that the jeep was stopped due to accident but the driver did not try to stop the jeep. The passengers of jeep PW.2 Jawaharlal, PW.3 Jairam, PW.4 Kishnaram, PW.5 Kishanlal, PW.6 Madanlal and PW.7 Shyamlal also corroborated the statement of PW. 1 and clearly stated that the jeep driver was the petitioner who drove the jeep in rash and negligent manner and committed the accident while over-taking the truck.

14. Rule 6 of the Rules of the Road Regulations, 1989 states as under:-

6. Overtaking prohibited in certain cases.-The driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself:

(a) if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction:

(b) xxx

(c) xxx

(d) If the driver ahead of him was not signaled that he may be overtaken.

15. Any violation of the above Regulations, 1989 by the driver of the motor vehicle, amounts to rash and negligent act of the driver.

16. In the present case, the petitioner examined himself as DW-1 and he did not state anywhere that the driver of the vehicle to whom he was overtaking, has signaled him for overtaking. Further he did not care that his overtaking will cause danger to other traffic coming from the front side. As such, he violated the Rules 6(a) and 6(d) of the aforesaid regulations, while overtaking the truck, which clearly proves his rash and negligent act.

17. So far as argument of the learned counsel for the petitioner that the moped suddenly came from between the trucks is concerned, no such suggestion was given to any of the prosecution witnesses. Even the petitioner himself did not state this fact in his explanation given u/s 313 Cr.P.C. This fact was introduced for the first time in the statement of DW-1 on 25.1.1995, which cannot be relied upon.

18. So far as the argument that admission of accused during examination u/s 313 Cr.P.C. cannot be made the basis of conviction, is concerned, is wrong notion. The facts admitted before the court cannot be said to be inadmissible in evidence. Further, in the case in hand, not only during examination u/s 313 Cr.P.C., but after seeking permission u/s 315 Cr.P.C., the petitioner chose to examine himself as a defence witness and in his deposition on oath before the trial Court, he admitted that he was the driver of the offending vehicle at the time of accident. Therefore, now at the stage of revision, the argument advanced by the learned counsel for the petitioner that this fact cannot be relied upon is not tenable.

19. The evidence brought by the prosecution is sufficient to prove the guilt of the petitioner beyond reasonable doubt. The learned Special Judge has discussed the prosecution evidence in detail, which does not require repetition and has rightly come to the conclusion that the case against the petitioner stands proved beyond reasonable doubt.

20. At the stage of revision, meticulous examination of the material on record need not be undertaken. The submissions made before this court were also made before the courts below and have been duly considered in the impugned judgments:

21. In the case of T.N. Dhakkal v. James Basnett reported as, (2001) 10 SCC 419 the Apex Court has laid down the principles as to under what circumstances the revisional jurisdiction should be exercised by the High Court. The relevant paragraphs are extracted a under:-

7. By virtue of the powers u/s 401 Cr.P.C. the High Court has jurisdiction to examine the proceedings of inferior courts if the necessity for doing so is brought to its notice in any manner. u/s 397 of Code, the High Court possess general power of superintendence over actions of the courts subordinate to it and that discretionary power; when administered on the judicial side, is termed as the power of "revision."

8. While giving its reasoned judgment in Janta Dal vs. H.S. Chowdhary a Division Bench of this Court speaking through Pandian, J. (as his Lordship then was) dealt with the objection of revisional jurisdiction of the High Court in the following words: (SCC p. 355, para 130).

130. The object of the revisions jurisdiction u/s 401 is to confer power upon superior criminal courts-a kind of paternal or supervisory jurisdiction-in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or appearance harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said and circumstances which vary greatly from case to case.

The Bench then went on to say that: (SCC p. 355, para 132)

132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power through unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist.

The power possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on second principles.

9. We are in agreement with the above exposition of law. We are of the opinion that though the High Court has revisional jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court u/s 401 of the Code being discretionary is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically.

22. The prosecution has been able to prove the manner of accident and the vehicle involved in the accident as well as the person responsible for the rash and negligent driving that caused into death of Mohanlal and Babulal. This court, concurs with the finding of the learned Special Judge that death of Mohanlal and Babulal was caused by the petitioner while driving Jeep No. RRT 6082 in a rash and negligent manner who failed to driver the jeep in a responsible manner and caused the accident.

23. Having carefully perused the impugned judgments and testimonies of the prosecution witnesses as also the record of the case, I am of the view that finding of the guilt of the petitioner do not call for any interference by this Court in exercise of revisional jurisdiction.

24. The learned counsel for the petitioner has relied upon the judgment delivered in the case of T. Gurumurthy vs. State through Chief Secretary, UT of Andaman & Nicobar (supra), wherein the victim was tsunami victim and the accused was convicted for the Offences under Sections 279 and 304A IPC and sentenced to one year''s imprisonment and he remained in jail for five months, so looking to this fact, the Hon''ble Supreme Court reduced the sentence to five months as already undergone. Hence, the learned counsel for the petitioner, in the alternative, has also prayed for releasing the accused-petitioner on the sentence already undergone.

25. In Puttaswamy vs. State of Kamataka & Ors. (supra), the rash and negligent driving caused a girl aged 7 years lost her life and the accused convicted for the offences punishable u/s 279 and 304A IPC, which was upheld up to the High Court. Before Hon''ble the Supreme Court, it was argued that the parties have arrived at a compromise. Looking to the facts, the Hon''ble Supreme Court, without going into the said compromise, reduced the sentence to that already undergone and enhanced the fine from Rs. 2,000/- to Rs. 20,000/-.

26. The judgment delivered in the matter of Yusuf @ Babu Khan vs. State of Raj. (supra) relates to Terrorist and Disruptive Activities (Prevention) Act, 1987. As such it does not help the petitioner. Further in this case, it has been held that Sec. 313 Cr.P.C. is mandatory and the court has to take great care in putting all incriminating circumstances to the accused, which is not disputed.

27. The Hon''ble Apex Court, in Guru Basavaraj @ Benne Settappa vs. State of Karnataka (Criminal Appeal No. 1325/2012, decided on 29.8.2012), held as under:-

16. In State of Karnataka Vs. Krishna alias Raju, while dealing with the concept of adequate punishment in relation to an offence u/s 304-A of the IPC, the Court stated that considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a Motor Vehicle for an offence u/s 304-A of the IPC and that too without any extenuating or mitigating circumstances is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice. Thereafter, this court enhanced the sentence to six months rigorous imprisonment with fine of Rs. 1000 and, in default, to undergone rigorous imprisonment for two months.

17. In Sevaka Perumal, etc. Vs. State of Tamil Nadu, it has been emphasized that undue sympathy resulting in imposition of inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law.

18. In Jashubha Bharatsinh Gohil and Others Vs. State of Gujarat, the Court, adverting to the new challenges of sentencing, opined that the courts are constantly faced with the situation where they are required to answer to new challenges and mould the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.

20. In Dalbir Singh Vs. State of Haryana, this Court expressed thus:

Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting thee victims and their families, criminal courts cannot treat the nature of the offence u/s 304-A IPC as attracting the benevolent provisions of Section 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.

Thereafter, the Court proceeded to highlight what is expected of a professional driver:

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 ensures 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 for 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.

20. In State of Karnataka Vs. Sharanappa Basnagouda Aregoudar, it has been ruled that 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 different effect on potential wrongdoers 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 the 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.

21. In State of Madhya Pradesh Vs. Saleem @ Chamaru and Another, it has been ruled that the object should be to protect society and the avowed object of law is achieved by imposing appropriate sentence to deter thee criminal. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stem where it should be.

22. Yet again in B. Nagabhushanam Vs. State of Karnataka, the court, taking note of the fact that the vehicle was being driven rashly and negligently, opined that six month''s simple imprisonment and a direction the appellant to pay a fine of Rs. 1,000/- for commission of the offence punishable u/s 304A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable u/s 279 of the Indian Penal Code cannot be said to be shocking.

23. Recently, in State of Punjab Vs. Balwinder Singh and Others, , this Court while dealing with the concept of sentencing, has stated thus:

While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted, he would be dealt with leniently by the Court.

24. In Alister Anthony Pareira Vs. State of Maharashtra, it has been laid down that sentencing is an important task in relation to criminal justice dispensation system. One of the prime objective of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the same is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of the of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. It has been further opined that the principles of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, the proportion between crime and punishment bears the most relevant influence in the determination of sentencing the crime-doer. The court has to take into consideration all aspects including the social interest and conscience of the society for award of appropriate sentence.

28. From the aforesaid authorities, it is luminous that the Hon''ble Supreme Court has expressed concerns in respect of commission of offence regarding the nature of the offence and demand of the conscience of the society. That apart, the concern has been to impose adequate sentence for the offence punishable u/s 304A of the IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case. As the trend of authorities would show, the proficiency in professional driving is emphasized upon and deviation therefrom that results in rash and negligent driving and causes accident has been condemned. In a motor accident, where a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquility of the collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It bears impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation u/s 357(3) with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence.

29. Recently, the Hon''ble Supreme Court, in Rattiram and Others Vs. State of M.P., though in a different context, has stated that criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. It is the duty of the court to see that the victim''s right is protected.

30. The Hon''ble Supreme Court further held, "We may note with profit that an appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like files to the wanton boys.'' They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act."

31. Moreover, in the present case, the of the petitioner was decided on 15.2.1995 and the appeal against this was decided on 17.5.1995. Thereafter, the matter remained pending before this Court. Hence, it cannot be said that the petitioner faced protracted trial.

32. Hence, in view of the above, the petitioner''s sentences do not deserves to be reduced to the sentence already undergone and further he cannot be extended the benefit of the provisions of Probation of Offenders Act.

33. So far as the offence punishable u/s 134 /187 of the Motor Vehicles Act is concerned, neither it has been suggested to the prosecution witnesses nor the defence witnesses nor any argument was advanced that in any way the petitioner tried to help the victims. Rather, he ran away from the place of occurrence. As such the offence u/s 134 /187 of the Motor Vehicles Act stands proved.

34. In view of the above, this revision petition deserves to be dismissed being devoid of merit and is hereby dismissed. The petitioner is on bail. His bail bonds are cancelled. He is directed to surrender before the trial court to serve the remaining sentence. However, if the accused-petitioner did not surrender before the trial court, the trial court will be free to take coercive steps for ensuring his presence to serve the remaining sentence. The record of the trial Court as well as the appellate court be sent back with the copy of this order for compliance.