N.A. Britto, J.@mdashThis appeal is by the accused who was charged and tried under Sections 279, 338, 304(ii) I.P.C. but has been convicted under Sections 323, 325 and 304(ii) I.P.C. The accused was also charged, tried and convicted under Sections 119, 134(A) and (B) and Section 190 of the M.V. Act, 1938. There is no grievance made about this charge and conviction.
2. The accused came from the eastern bypass driving his truck No. MH-05-2294, entered the wrong side of the highway, near the junction, near Green Park Hotel and then travelled a distance of about 1.8 kms. When the accused reached opposite Ticlo Petrol Pump, the accused first gave a dash on an oncoming Maruti Zen Car bearing No. GA-01-R-2883 causing the death of Mohammad Siddik, Mrs. Tahseen Siddik and Master Mohammad Zahid and causing injuries to Arshiya and grievous injury to Junaid Siddiki and thereafter dashed the truck on another oncoming truck bearing No. MH-04-AL-593. It appears that the accused had also caused an accident as he was coming from Banda to Goa and the accused stands charged before J.M.F.C., Sawantwadi for having committed offences punishable under Sections 279 and 304(A) I.P.C. It is stated that the accused at Banda knocked down a cyclist causing his death. The said case is pending trial.
3. There is no dispute that the complaint/first information was initially filed against the accused under Sections 279, 337, 304(A). It appears that after the statements of PW5/Amjad Khan and PW7/Sagar Nanodkar were recorded that the case was converted from Section 304(A) to Section 304(ii) I.P.C. This is evident from the letter dated 12-4-2006 sent by the Police Inspector, Mapusa Police Station to the Assistant Engineer, Mapusa and this position is not disputed by the learned Public Prosecutor. It appears that charge u/s 304(A) I.P.C. was converted to Section 304(ii) I.P.C. because according to the prosecution, the said two witnesses had shouted to the accused stating that it was a no entry road and knowingly the accused speeded without listening to them and therefore had knowledge that he would cause death.
4. Although charge from Section 304-A was converted to Section 304(ii) I.P.C. while submitting the charge-sheet as well as at the time of framing the charge Sections 279 and 338 were not substituted and the learned Assistant Sessions Judge framed charges under Sections 279 and 338 I.P.C. also but at the time of conviction convicted the accused under Sections 323, 325 I.P.C.
5. Before the learned trial Court, as well as before this Court, on behalf of the accused, it is submitted that this was not a case for the accused to be convicted u/s 304(ii) I.P.C. and at the most the case was for conviction u/s 304-A. This is recorded by the learned trial Court in para 10 of the Judgment. It was argued on behalf of the accused, then and now, that the accused could be convicted only u/s 304-A I.P.C. and not u/s 304(ii) I.P.C. as at the utmost it could be said that the accused was rash and negligent in driving the truck and that there were no facts proved to show that the accused had knowledge that by his act he was likely to cause the death of others. The learned trial Court has convicted the accused u/s 304(ii) I.P.C. because the accused drove the truck only with one head light working; in a no entry zone/wrong lane; and in a fast speed and therefore the accused knew that by the said act he was likely to cause death of any person and thus Section 304(ii) was clearly attracted to the facts of the case.
6. Shri R. Satardekar, learned Counsel appearing on behalf of the accused has submitted that Section 304-A is distinct and separate from Section 304(ii) I.P.C. and that prosecution by submitting the charge-sheet for offences under Sections 279, 338 had admitted that it was a case of rash and negligent driving inasmuch as the Judge also framed charge against the accused under the said Sections which was not challenged by the prosecution and therefore the prosecution now cannot turn round and say that the death of the occupants of the said truck was caused with knowledge that his act of driving was likely to cause death. Learned Counsel further submits that all the offences for which the accused was charged took place in the course of a single act of rash driving, if at all, and therefore the accused could not be charged both for rash or negligent driving as well as causing death with knowledge that his driving could cause death. Learned Counsel further submits that PW5/Amjad Khan and PW7/Sagar Nanodkar were examined by the prosecution only in an attempt to attribute knowledge to the accused i.e. he had knowledge that death would be caused by his driving. Learned Counsel further submits that they were chance witnesses and their evidence shows that they could not have been present at the time and place from where they claimed to have shouted at the accused at the relevant time. Learned Counsel also submits that assuming for a moment that the accused had driven with only one head light, that act too was a reckless act and no knowledge that death would be caused could be attributed to the accused. He further submits that there is no corroboration on material aspects in the evidence of PW5/Amjad and PW7/Sagar.
7. The first question which requires consideration is whether the accused could be charged and tried under Sections 279, 338 I.P.C. but convicted under Sections 323 and 325 I.P.C.?
8. Section 279 deals with driving of a vehicle on a public way in a manner so rash or negligent as to endanger human life, etc. The offence is made punishable with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees. Section 338 deals with causing grievous hurt by doing an act so rashly or negligently as to endanger human life, etc. The punishment provided is two years or fine. Section 323 deals with voluntarily causing hurt and provides punishment which may extend to one year and with fine. Likewise, Section 325 deals with voluntarily causing grievous hurt and the punishment provided is imprisonment which may extend to seven years. It is obvious that Sections 279 and 338 are less serious offences compared to Sections 323 and 325 I.P.C. There is no doubt that if an accused is charged for a major offence but is not found guilty thereunder, he can be convicted of a minor offence, if the facts established indicate that such minor offence has been committed by the accused. However, the reverse of that proposition cannot be accepted and an accused who has been charged for a minor offence cannot be certainly convicted for a major offence. It appears that the learned trial Court having come to the conclusion that the death of the said persons was caused by the accused with knowledge of causing death, u/s 304(ii), the learned Judge with no other option left, converted the offences caused due to rash or negligent driving into offences of voluntarily causing hurt and grievous hurt.
9. The Apex Court in
10. The next question is whether the accused could be convicted u/s 304(ii) I.P.C.? For the purpose of securing a conviction under the aforesaid Section prosecution had introduced the evidence of PW5/Amjad and PW7/Sagar. According to PW5/Amjad he and his friends Sagar, Rafiq and Shaukat had decided to go for a cricket match and had purchased tickets and they had decided to leave early on the night of 2nd April, 2006 because there would be heavy rush for the match on the next day, and as such he had left his house at about 11.00 p.m. and requested PW7/Sagar to wait for him at Mapusa taxi stand and he and PW7/Sagar started on a motorcycle at about 11.20 p.m. to go to Panaji on the way to Margao and so did his two other friends. According to him, when they reached the junction near Green Park Hotel, they noticed a truck coming in a speed with only one head light on, from Karaswada highway and the said truck then entered one way lane which was meant for vehicles coming from Panaji towards Mapusa. He then stated that it is the left side head light of the said truck which was working and the truck was in a high speed and they shouted at the driver informing him that it was no entry zone and although the driver of the said truck had seen them, he proceeded further, inspite of their warning and thereafter they proceeded towards Panaji on the left side lane. He stated that normal traffic was plying on either side of the road in the lanes towards Panaji as well as towards Mapusa, and in view of that, a driver could make out that those lanes were of one way. According to him, when they reached near Ticlo Petrol Pump, they noticed that the said truck had dashed a Zen and then another truck and they also saw the driver of the truck running in the fields. He stated that the accident had taken place in the right hand side lane as one proceeds from Mapusa towards Panaji and the impact of the truck was on the right hand side of the Zen and the truck had overrun the Zen on the driver''s side. He also stated that the other truck which had given dash was bearing No. MH-04/AL 593 and they saw one vehicle of Asilo Hospital passing by that side and the injured were shifted in the said vehicle to the hospital. In cross-examination he stated that after seeing the truck coming towards the junction they had stopped their motorcycle and they had seen the truck at a distance of about 75 meters and the truck was being driven at a speed of more than 55 kms. per hour. He stated that the said distance between the spot where they had stopped was to go to the other end of the circle and the junction was at a distance of 5 meters. In further cross-examination he stated that for the first time he saw the driver when he was getting down from the truck on the left hand side of the road and at the time when they reached the spot the vehicles of the Fire Brigade and the hospital were not at the spot but some public had gathered there and when the van of the hospital reached the spot in about 10 minutes after they had reached there, and, the said van came from Bambolim. He stated that they were driving the motorcycle at 40 to 50 kms. per hour. He denied the suggestion that the accused had to come by that lane since the work of the divider was going on at the junction.
11. PW7/Sagar stated that on 2-4-2006 they were proceeding for a cricket match between India and England which was to be held on 3-4-2006 at Fatorda stadium and they had decided to go there on the previous night. He stated that at about 11.05 to 11.10 p.m. PW5/Amjad telephoned to him and he went to the taxi stand at Mapusa and waited for him and thereafter they started from Mapusa between 11.15 to 11.20 p.m. and when they reached near the Green Park junction, they saw one truck coming from Karaswada by the highway in a fast speed and the said truck went on the wrong side in full speed and they shouted and warned him that he was going on the wrong side but the said truck proceeded in the no entry lane. He further stated that only left side head light of the truck was working but the right hand side light was not working. He stated that he was the pillion rider of the motorcycle driven by PW5/Amjad and his two other friends were on another motorcycle and thereafter they proceeded towards Panaji and found that an accident had taken place near Ticlo Petrol Pump in a lane where vehicles coming from Panaji to Mapusa were plying. He stated that the accident had taken place between the truck at which they had shouted and warned that he was taking the truck in a wrong lane. He also stated that another truck was involved in the accident and the said truck was running in the wrong lane and had dashed against the other truck and the truck driver had run in the fields by the side of the road. He stated that he immediately telephoned the Fire Brigade and the ambulance and accompanied the injured to Goa Medical College. According to him, the injured were a couple with two small boys and a girl and all were the occupants of the Zen. He stated that the driver and a boy had died on the spot and later on he came to know that the injured lady also expired in the hospital. He stated that the road on which the accident had taken place is a highway divided into two one way lanes, by a divider and one lane was for traffic coming towards Panaji and the other lane for traffic going towards Mapusa and that looking at the vehicles plying one could know that it was a road with two one way lanes. In cross-examination, he stated that there was no work going on the road at the Green Park junction at the time of accident and that there are five roads meeting at the circle at the junction. In further cross-examination he stated that when they reached the spot there were about 10 members from the public, mostly from the petrol pump, at the spot of accident, but he did not know if the driver of the other truck was at the spot when they reached there. He stated that he had called the ambulance after they had reached the spot and the ambulance was called from Mapusa and the ambulance was parked in the lane towards which traffic was plying towards Panaji. He further stated that his statement was recorded on 6th April. He denied the suggestion that the truck had not gone in the wrong lane at the junction.
12. Learned Counsel on behalf of the accused, has submitted that both the above witnesses do not corroborate one another on material particulars. Learned Counsel submits that the fact that they were going for a cricket match on the previous day cannot be believed. He further submits that they were chance witnesses and their statements were recorded with delay. He further submits that considering the time the accident had taken place i.e. 11.55 hours, they must have already crossed the accident spot in case they had left Mapusa about 11.15 to 11.20 p.m. considering that they had to travel about 3 kms., that being the approximate distance from Mapusa town to the said Ticlo Petrol Pump. Learned Counsel further points out that according to PW5/Amjad, he had seen the truck when it was at a distance of about 75 meters from the junction and PW7/Sagar is totally silent on that aspect. Learned Counsel further submits that if according to PW5/Amjad the Asilo van came from Bambolim, according to PW7/Sagar, it came from Mapusa and that is because either of them were not present at the time when the accident took place. He further submits that there were about 10 witnesses available near Ticlo Petrol Pump and their statements were not recorded by the Police.
13. Admittedly, the National Highway going from Panaji to Mapusa was a four lane highway, separated by a divider. The accused entered the wrong side of the highway, after coming from the bye-pass near Green Park Hotel and then travelled a distance of about 1.8 kms. when it caused the accident, first by giving a dash to Maruti Zen car and then to the truck. There is also evidence on record that at the said entry point there was a road signal that drivers should keep to the left, and sufficient light too.
14. In my view, the submission of the learned Counsel that it is improbable that PW5/Amjad and PW7/Sagar were going for India England match on the previous night can be accepted. There are number of cricket fans who go on the previous day to the stadium so as to enable them to get tickets or a vantage place to sit to watch the match. However, other facts stated by them are difficult to be believed and make their evidence improbable. For example, according to PW5/Amjad he had seen the truck when it was at a distance of about 75 meters from the junction. PW7/Sagar is totally silent on that aspect and he has not given any particular reason as to why they had to stop at a junction to alert the accused, the driver of the truck. In case the truck driver was seen by PW5/Amjad from a distance of about 75 meters, there was no particular reason for PW5/Amjad and PW7/Sagar to have stopped there with a view to shout at the accused driver that he should not enter the no entry zone. If the accused, came in a fast speed, as they reached the junction, as stated by PW7/Sagar, the accused must have passed like breeze without knowing as to what they were shouting about. It is quite probable that they reached near Ticlo Petrol Pump after the accident but the fact that they had stopped and alerted the accused driver and brought to his notice that he was entering a no entry zone is a fact which is not free from doubt and therefore on the basis of their evidence, the accused could not be convicted u/s 304(ii) I.P.C.
15. PW6/Ramchandra is the Police Constable who claims that he was at the border check-post at Patradevi. He stated that at about 22.30 hours he noticed one truck proceeding towards Pernem side of which the right side head light was not working and there was a dent to the tin near the right side head light. He further stated that he had signalled the said truck and whistled at him to stop suspecting that the truck was involved in the accident. He stated that after 22.45 hours after the other constable returned he went to the Police Out-Post at Patradevi and sent a message to Panaji and Pernem Police Stations to detain the said truck. The evidence of PW6/Ramchandra Sawant that the truck driven by the accused came from Banda side coming towards Pernem with one head light on could be accepted. However, that he had made any efforts to detain the said truck is an explanation which cannot be accepted for its common knowledge that at the Check-Post, unless the barrier put, is lifted no vehicle is allowed to go and if that be the situation it was the duty of PW6/Ramchandra, in case he had seen him coming with only one head light or for that matter with a dent which made him suspect that it had met with an accident, to stop the truck. PW18/Suresh Shankar Singan is the driver of the other truck against which the truck of the accused dashed after dashing the Maruti Zen. He has stated that he left Madkai at about 10.00 to 10.30 p.m. and reached Porvorim at about 11.30 to 11.45 p.m. and thereafter ahead of them there was a red colour Maruti Zen then the truck came from the wrong direction and dashed against the Maruti Zen Car and then dashed against the right hand side of their truck and stopped. According to him, the said truck was driving in a very fast speed. He stated that the Maruti Zen car was completely crushed in the accident and two persons immediately died on the spot out of five occupants who were there in the car. He did not make any mention about the right head light of the truck. PW19/Rajaram Garal is the owner of the said truck. He stated that they reached Porvorim-Guirim Petrol Pump at about 11.45 p.m. and infront of their truck there was a truck moving at a distance of about 10 to 15 meters and a truck came from opposite wrong direction from Mapusa side and dashed against the Maruti Zen and gave a dash to their truck and their truck gave a dash first to the front side of the truck at the driver''s side and then at the rear side and then it stopped. According to him, the said truck was in a fast speed more than 90 kms. per hour. He stated that the Maruti car was completely damaged, the occupants were injured and they were taken to the hospital. He stated that the truck which came from the opposite direction was having only one head light. He was confronted with the statement earlier recorded, wherein he had not made such mention that the truck was having only one head light.
16. That the truck driven by the accused was coming with only one head light is a conclusion which can be based on the evidence of PW6/Sawant as well as PW19/Garal although such a fact was earlier not stated by him in his statement. In fact, the learned trial Court has observed, and in my view rightly, that the accused was driving on a National Highway and he being a professional driver, as stated by the owner of the truck, must have come to know, whilst driving at a long distance that one head light was not working and therefore it is unbelievable that the accused who was a professional driver, and who was driving his truck without one head light on, at night, at a long distance or at least from Banda would not know that his right side head light was not working. Moreover, no defence was taken by the accused in his statement recorded u/s 313 Cr. P. C. that he was unaware that his driver''s side head light was not working from Banda to Guirim even at the places where it was dark in between .To come to know that his driver''s side head light was not working the accused had not even attempted to give any explanation in that regard, in his statement recorded u/s 313 Cr. P. C., and, therefore the learned trial Court concluded that the accused was having knowledge of the fact that he was driving on a National Highway with one head light on and without the right hand side working. The prosecution has also amply proved through the evidence of Assistant Engineer Radhakrishna/PW14 not only that there was sufficient illumination at the junction near Green Park but there was also a road sign which required the vehicles to keep, to the left. In other words, it prohibited the vehicles going towards the right and entering the wrong side of the National Highway, namely the road coming from Panaji to Mapusa. In other words, the prosecution has abundantly proved that the accused inspite of the said road sign at the Green Park Hotel entered the wrong side of the road and that too with only one head light on and after proceeding a distance of about 1.8 kms. dashed against the oncoming Maruti Zen car, almost in the middle of the said two lane road coming from Panaji to Mapusa as can be seen from the panchanama and the sketch proved through Rajendra/PW4. It appears that the impact by the truck was with such a force that its front wheels came out.
17. Section 304-A I.P.C. states that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is so and with further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it will probably be caused. The criminality in such act lies in running the risk or doing such an act with recklessness or indifference to the consequences. A rash act is primarily an overhasty act as opposed to deliberate act but done without due care and caution. Criminal negligence is the gross and culpable neglect or failure to exercise all reasonable and proper care and to take proper precaution to guard against injury either to the public generally or to an individual in particular which having regard to the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. Rashness and negligence are both comparative terms, for, there is no such thing as culpable rashness or culpable negligence in the abstract. They become criminal by reason of their association and when taken along with other circumstances. The amount of diligence necessary to be used on a particular occasion varies with the necessity of the case and if it imperils human life, it is deemed as criminal. The Apex Court in Prabhakan v. State of Kerala 2008 All MR (Cri.) 288 (S.C.) has stated as follows:
Section 304-A speaks of causing death by negligence. This Section applies to rash and negligent acts and does not apply to cases where death has been voluntarily caused. This Section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Directior of Public Prosecutions (1937) AC 576 at p. 583 : 2 All ER 552, observed as under:
Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ''recklessness'' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for ''recklessness'' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.
18. The Apex Court has further stated that Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300, IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements u/s 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused''s conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and with further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
19. The Apex Court in Balwant Singh v. State of Punjab and Anr. : 1994 Supp (2) SCC 67 has stated that the provision of Section 304-A I.P.C. is directed at offences outside the range of Sections 299 and 300 I.P.C. and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an overhasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case.
20. Again, in Naresh Giri v. State of M.P. 2007 All MR (Cri) 3550 (S.C.) the Apex Court stated that Section 304-A carves out a rash or negligent act and that act does not amount to culpable homicide u/s 299 or murder u/s 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person''s death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide.
21. The facts of the case at hand show that the accused came with one head light on and with the driver''s side head light off and entered the wrong side of the highway and travelled a distance of 1.8 kms. before he met with an accident. The accused came from Banda with one head light on and then travelled 1.8 kms, after entering the wrong side of the highway. Knowledge that his acts would cause death could not be the motivating force but rashness yes, with the hope that nothing will happen. Driving with one head light on, on the wrong side of the highway, in my view, could amount only to a rash or reckless act i.e. he knew that he was driving on the wrong side and without head light on with knowledge that it was dangerous and it may cause injury to others but with a belief that nothing would happen. In my view, therefore, the accused ought to have been convicted not u/s 304(ii) but u/s 304-A I.P.C.
22. From the above discussion, the conviction of the accused has got to be reduced from Sections 323, 325 and 304-II I.P.C. to Sections 279, 338 and 304(A) I.P.C., the conviction in relation to other offences under the Motor Vehicles Act, 1988 remaining unchanged.
23. On sentence, learned Counsel on behalf of the accused submits that the accused has undergone sentence of about one year, two months and therefore the same be considered as substantive sentence imposed upon the accused. Learned Counsel further submits that the accused has a child of 5 years of age and any further imprisonment to be imposed will come in the way of his family life. Learned Counsel has also placed reliance on the case of
24. The offence u/s 304(A) provides punishment with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 279 provides punishment with imprisonment of either description or a term which may extend to six months, or with fine which extend to Rs. 1000/- or with both. Section 338 provides punishment which may extend to two years or with fine which extend to Rs. 1000/- or with both. In my view, there is no question of the accused being given benefit of Section 4 of the Probation of Offenders Act, 1958 or the benefit of the period of imprisonment undergone by him. The Apex Court in
25. A sentence is said to be the most public face of the criminal justice system, and, as observed by the Apex Court time and again the sentence imposed by the Courts should have a deterrent effect on potential wrongdoers and it should commensurate with the seriousness of the offence committed. Though the Courts are given a discretion in the matter of sentence, Courts are required to take stock of the wide and varying range of facts and the discretion ought to be exercised with due regard to the larger interest of the society. A punishment is a debt which the offender has to pay to society. In the words of the French Philosopher Simone Weil (quoted from Quotable Lawyer) "punishment must be an honour. It must not only wipe out the stigma of the crime, but must be regarded as a supplementary form of education compelling a higher devotion to public good. The severity of punishment must also be in keeping with the kind of obligation which has been violated...." In the case of Prabhakaran v. State of Kerala (supra) the Apex Court took note of the fact that 80,000 people were killed on roads in the year 2002 and the estimate of people injured is taken to be 15 to 20 times more than that figure and observed that the punishment provided u/s 304-A is grossly inadequate in view of the increasing number of vehicular accidents resulting in large number of innocent persons but further observed that it was for the Legislature to provide for an appropriate sentence.
26. In then case of
27. In the case of Dalbir Singh, the Apex Court observed that in case of deaths due to rash or negligent driving, one of the prime situations should be deterrence. The Apex Court further observed that the 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 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. The Court observed that 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.
28. In Criminal Revision Application No. 5 of 2009 in the case of Shri Devesh Tukaram Chodanker v. Martin Fernandes and Anr. by unreported Judgment dated 27-4-2009 this Court observed as follows:
The case at hand is almost similar to the case of Rattan Singh(supra) where in the words of the Apex Court, the lethal hands of a truck driver had taken the life of a scooterist � a deadly spectacle so common in our towns and cities. That was almost 3 decades back since then much water has flown down the Zuari. Down the line, things have not improved but on the contrary, the situation has worsened, with more and more deaths taking place on our roads with vehicles becoming larger and more powerful and the road conditions almost remaining the same. The Apex Court refused to interfere with the maximum sentence imposed and that too of two years R.I. Deterrence remains one of the important objects of punishment, as George Saville would put it "men are not hanged for stealing horses but so that horses may not be stolen. Deterrence, as main object of punishment was considered in Rattan''s case and also in Dalbir Singh''s case. Society in general and Courts in particular have now found that the punishment prescribed u/s 304-A is inadequate but so far Legislature has not stepped in. At times efforts are made to bring the case u/s 304(ii) Indian Penal Code. Courts are therefore required to step in within the frame work of law and impose maximum punishment, when required. Liberal attitude of imposing meagre sentences or misplaced sympathies either on account of lapse of time of personal inconvenience to the accused or his family have been always counter productive and against the interests of the society. Courts are required to operate sentence system in a way it reflects the conscience of society. The contention that the accused has a wife and two children to look after, must be immediately brushed aside. The deceased too must be having a family. As observed by the Apex Court "it scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers". The contention that the accused had a large family to maintain was immediately shot down. It was further observed that when life was lost and circumstances of driving were harsh no compassion could be shown. Prabhakaran (supra) has taken note that 82,000 people were killed on roads in the year 2002 and the estimate of people injured is taken 15 to 20 times more than that figure.
29. The accused therefore deserves a sentence which is commensurate not only with the crime committed by him but should act as a deterrent to others. This is required in order to curb the ever increasing deaths being caused on the roads due to rash and negligent driving so that there is some decrease in fatal accidents. Considering the facts and circumstances of the case, therefore, I hereby order that the accused shall undergo a sentence of three months u/s 279 I.P.C. and pay a fine of Rs. 500/-, and in default to undergo imprisonment for one month. The accused is also sentenced u/s 338 to undergo R.I. for a period of six months and a fine of Rs. 1000/-, in default to undergo three months S.I. The accused is also sentenced u/s 304(A) to undergo R.I. for a period of two years and to pay a fine of Rs. 5000/-, in default to undergo six months S.I. The sentences imposed under Sections 337 and 338 to run concurrently but the sentence imposed under Sections 337/338 shall run consecutively with the sentence imposed u/s 304-A. In this regard reference could be made to para 69 of the decision of the Apex Court in
30. Consequently, the appeal is partly allowed and the impugned Judgment would stand modified to the extent indicated herein above, with no order as to costs.
