Mehinder Singh Sullar, J.@mdashThe contour of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that on 28.2.2003, the petitioner-convict was driving the offending Tempo in question at a high speed, rashly and negligently despite repeated requests by the passengers to the contrary. As soon as, it reached the bridge of minor canal near village Ghikara (place of occurrence), the petitioner-convict could not control and the Tempo turned turtle. As a result thereof, one Joginder Singh had fallen outside the Tempo and sustained injuries. Subsequently, he succumbed to his injuries. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the accident in question had taken place due to rash and negligent driving of petitioner-convict while driving the offending Tempo, in which, Joginder Singh had died. In the background of these allegations and in the wake of complaint of complainant Rajpal (PW2), a criminal case was registered against the petitioner-convict, by means of FIR No. 556 dated 28.2.2003 (Ex. PA), on accusation of having committed the offences punishable under sections 279, 337 and 304-A IPC by the police of Police Station Sadar Dadri, District Bhiwani in the manner depicted here-in-above.
2. After the completion of investigation, the police submitted the final police report (challan) and consequently, the trial Court framed the charges against the petitioner-convict to face the trial of indicated offences and the case was slated for evidence of the prosecution.
3. The prosecution, in order to substantiate the charges against the petitioner-convict, examined PW1 Dr. Ishwar Singh, PW2 Rajpal (complainant-injured), eye witnesses PW3 Rajbir, PW4 Surender, PW5 Ram Singh Sharma, Mechanic, PW6 Dr. S.C. Gupta and PW7 ASI Prakash Chand (Investigating Officer).
4. Having completed all the codal formalities and taking into consideration the evidence on record, the trial Court convicted & sentenced the petitioner-convict to undergo rigorous imprisonment for a period of six months for the commission of offence punishable u/s 279 IPC, to undergo RI for a period of two months u/s 337 IPC and to undergo RI for a period of two years u/s 304-A IPC. However, all the sentences were ordered to run concurrently by the trial Court, by way of impugned judgment of conviction dated 6.12.2010 and order of sentence dated 7.12.2010.
5. Aggrieved thereby, the appeal filed by the petitioner-convict was dismissed as well, by the appellate Court, by virtue of impugned judgment dated 27.9.2011.
6. The petitioner-convict still did not feel satisfied and preferred the present revision-petition to challenge the impugned judgments of conviction and order of sentence, invoking the provisions of Section 401 Cr. P.C.
7. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant revision petition in this context.
8. During the course of preliminary hearing, a Coordinate Bench of this Court (Ajai Lamba, J.) passed the following order on 14.10.2011:-
This revision petition has been filed in challenge to judgment of conviction and order of sentence passed by the Trial Court and confirmed by the lower Appellate Court.
The petitioner was charged for commission of offence under Sections 279, 337, 304-A IPC and has been convicted and sentenced to 2 years rigorous imprisonment.
Facts in brief are that on 28.2.2003, the petitioner was driving a tempo while carrying 10-12 passengers. Despite the fact that the tempo was over-loaded, the same was being driven at a fast speed which resulted in its over-turning, causing the death of Joginder Singh and injuries to Rajpal.
No plausible argument has been addressed so as to substantiate that negligence was not involved.
I have considered the facts and circumstances and am of the considered opinion that at the first instance, the tempo should not have been driven at a speed at which it went out of control. Negligence on the part of the petitioner is writ large and therefore, calls for no interference.
Learned counsel contends that at the point in time when the incident took place, the petitioner was 19 years of age. This Court may consider reduction in sentence.
Notice of motion re: quantum of sentence only, for 18.1.2012.
9. Moreover, both the Courts below have recorded the findings of fact based on the appreciation of evidence that the accident in question had taken place due to rash & negligent driving of petitioner-convict while driving the offending Tempo and recorded the cogent grounds in this respect. Such articulated judgments, containing valid reasons, cannot possibly be interfered with by this Court, in the exercise of limited revisional jurisdiction u/s 401 Cr. PC, unless and until, the same are illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-convict, so, the impugned judgments of conviction deserve to be and are hereby maintained in the obtaining circumstances of the case.
10. Faced with the situation, the next argument of learned counsel that as the petitioner is a first offender, therefore, he be released on probation, sans merit. The law as to whether the benefit of probation under the Probation of Offenders Act should be granted to a person convicted for an offence punishable u/s 304-A IPC is no more res integra and is now well settled.
11. An identical question came to be decided by the Hon''ble Apex Court in case Dalbir Singh v. State of Haryana 2000 (2) RCR (Crl.) 816, wherein, it was ruled that the courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act when the accused is convicted of the offence u/s 304-A IPC in causing death of human beings by rash or negligent driving. It was further ruled (paras 12 & 13) as under:-
12. In
13. 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 u/s 304A 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 consideration 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 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.
The same view was again reiterated by the Hon''ble Supreme Court in case B. Nagabhushanam v. State of Karnataka, 2008 (3) RCR (Crl.) 50. The law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
12. For the reasons stated here-in-above and the law laid down by Hon''ble Supreme Court in the indicated cases, to me, the benefit of probation cannot possibly be extended to the petitioner-convict in this relevant connection.
13. Be that as it may, but taking into consideration the fact that the petitioner-convict is a first offender, he was of tender age of 19 years at the time of accident, as per custody certificate, he has already undergone a substantive portion of his sentence of imprisonment of one year, one month and nine days out of the total sentence of two years and he is prepared to pay additional adequate compensation of Rs. 25,000/- to the victim/LRs of the deceased, to my mind, it would be expedient in the interest and justice would be squarely met and sub-served, if the sentence of imprisonment of two years imposed by the Courts below on the petitioner-convict u/s 304-A IPC, is reduced to the period (one year, one month and eight days) already undergone by him, subject to his payment of Rs. 25,000/- as compensation to the victim/LRs of the deceased, in view of the ratio of law laid down by Hon''ble Apex Court in case
14. In the light of aforesaid reasons, the impugned judgments of conviction are maintained, but for the indicated reduction in the quantum of sentence, the revision petition is hereby dismissed as such. However, the petitioner-convict is directed to pay an additional sum of Rs. 25,000/- more as compensation to the victim/LRs of the deceased within a period of three months, failing which, the sentence of imprisonment imposed on him by the Courts below would be deemed to have been revived. Consequently, the impugned order of sentence is modified accordingly in the manner and to the extent indicated here-in-above. Needless to mention that necessary consequences & compliance will naturally follow accordingly.
