Vivek Singh Thakur JUDGMENT
Vivek Singh Thakur, J.
1. Petitioner has been convicted by learned trial Court under Section 279, 337 and 304-A IPC for causing death of Shyam Lal, grievous injuries to Balwinder Singh and simple injuries to Ajit Singh while driving Three-Wheeler bearing No. HP50-0394 rashly and negligently endangering human life on public way on 24.9.2001 at 8.30 p.m. Conviction and sentence imposed upon petitioner has been affirmed by learned Additional Sessions Judge, Sirmaur District at Nahan.
2. On fateful day P.W. 1 Balwinder Singh, P.W. 2 Ajit Singh and deceased Shyam Lal were ridding scooter being driven by P.W. 2 Ajit Singh. Petitioner coming from opposite direction struck his three-wheeler with scooter causing injuries to occupants of the scooter which had ultimately resulted death of one of the occupants of the scooter.
3. Mr. C.N. Singh, Advocate, learned counsel for petitioner has argued that accident in question causing death and injury had occurred on account of negligence on the part of occupants of scooter whose driver had struck his scooter with three-wheeler and occupants were riding scooter without wearing helmet by taking risk of life themselves which is real cause of the accident as the scooter driver had lost control of scooter and had struck on back side of three-wheeler for which petitioner cannot be held to be driving three-wheeler in rash and negligent manner causing injuries to the occupants of scooter resulting into death of one of them.
4. He has further contended that the accident causing death of one of the occupants is a result of contributory negligence on the part of occupants of the scooter, therefore, petitioner is liable to be acquitted. Learned counsel for petitioner has referred mechanical report of three-wheeler Ex. P.W. 7/K and Mechanical report of scooter Ex. P.W. 7/L. He has argued that as per these reports there were fresh scratches on rear portion of body of three-wheeler and mudguard, leggaurd, beading and top of left side of the scooter and glass of headlight of scooter was also broken and therefore these reports rule out head on collusion but indicates that scooter had struck against three-wheeler on its rear portion for which driver of three-wheeler cannot be held responsible.
5. Petitioner has also relied upon judgment of Coordinate Bench of this Court passed in case Sanjay Arora vs. Pritam Singh and another reported in MANU/HP/0054/2005 : 2006 ACJ 1163 HP, in which relief to claimant in a Motor Accident Claim case was denied on account of contributory negligence. Learned counsel for petitioner has referred findings returned in the said judgment in following paras:-
"21. The scooter is meant actually for two persons, i.e. driver and the pillion rider. The scooter is not expected to be ridden by three persons. When three persons who are under the influence of alcohol go on a scooter ride, it is clear that they are asking for a trouble to say the least.
22. Section 128 of the motor Vehicles Act reads as under:-
"128. Safety measures for drivers and pillion riders.-(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures.
(2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon."
6. In the aforesaid judgment, there was evidence on record that three persons were riding the scooter under influence of alcohol. Further claimants in that case had intentionally withheld truth from Court as evident from para 19 of the said judgment which is as under:-
"19 In the present case, the claimant's statement is doubtful and he has made false averments. His statement with regard to the manner in which the accident occurred cannot be relied upon. On the other hand, the respondents have given cogent and reliable evidence to show that the scooter fell down due to the fault of the scooter driver and the bus driver was not at all at fault. In fact the bus did not hit the scooter at all.
7. In judgment supra relied upon by petitioner, it has also been specifically held that violation of provisions of Motor Vehicle Act or any other law itself is not sufficient ground to declare that scooter rider was negligent. Finding returned in para 24 of the judgment referred supra is as under:-
"24. This by itself may not be a sufficient ground to hold that the claimant or the other scooter driver was negligent. However, when this is coupled with the fact that claimant has tried to hide material facts especially with regard to driving of the scooter, the number of persons on the scooter, the manner in which the accident occurred, etc., it can safely be presumed that accident had occurred due to rash and negligent driving of the scooter driver who along with pillion riders was under the influence of alcohol at the relevant time.
8. In the present case, there is nothing on record to establish that victims were liable for negligence on their part causing accident in question. The driver of scooter, for permitting two persons as pillion rider on scooter which is meant for one pillion rider, can be liable for action for violation of Motor Vehicle Act and Rules, but it cannot be treated a negligent act on his part as a direct or approximate causes of accident which ultimately resulted in the tragedy. Every violation of Motor Vehicle Act and Rules framed thereunder cannot be treated as a contributory negligence for the accident. There must be nexus of the said violation with the cause of accident. In the case referred supra there was ample evidence on record to hold that scooter riders were negligent on their part whose driver hit the bus under influence of alcohol. In present case there is nothing on record to suggest that cause of accident was riding scooter by three persons without wearing helmets or for any other act on the part of driver of the scooter.
9. As per mechanical report Ex. P.W. 7/L, left side of scooter has scratches on it. Photographs relied upon by prosecution Ex. A-1 to Ex. A-3, which were not questioned by petitioner, unambiguously proves that scooter is lying on the extreme left side of road having its left portion down side on the road. In such situation, it is obvious to have scratches on left side of the scooter as these were bound to be there after falling of scooter on left side down on metalled road. Besides scratches of left side, glass of headlight of scooter is also broken which indicates that front side of scooter was hit by three wheeler.
10. Mechanical report Ex. P.W. 7/K of three-wheeler is also of no help to the petitioner as it is admitted case of parties that scooter and three-wheeler were coming opposite side and it is not the case of petitioner that both vehicles were moving in same direction and scooter had hit three-wheeler from backside nor any question has been put to any witness in this regard that scooter had struck three-wheeler from back side.
11. Perusal of site plan Ex. P.W. 7/A as well as photographs Annexure A-1 to A-3 reveals that spot, where vehicles had collided, is on correct side of scooter but wrong side of three-wheeler the same had struck with scooter by coming its extreme right hand side. It appears that before head on collusion three-wheeler driver had moved front of three-wheeler towards its left resulting into striking of scooter on rear portion of three-wheeler.
12. In post mortem report Ex. P.W. 7/C, it is opined that deceased Shyam Lal had expired due to head injury leading to compression and shift of Brain Stem leading to failure of the vital centres of brain. But there is nothing on record to show that whether riders of scooter were wearing helmet or not.
13. On scrutiny of evidence on record it is apparent that only defence set up by petitioner is that scooter driver had hit three-wheeler on loosing control over it. There is no question, as argued, was put to any of witness regarding manner of accident, mechanical report Ex. P.W. 7/K and Ex. P.W. 7/L. There is no question that head injury of deceased was due to non-wearing of helmet by deceased. Post mortem report is also not questioned. Petitioner has also chosen not to examine any witness in defence so as to explain circumstances for driving three-wheeler on wrong sides and also that injury received by occupants of scooter was on account of negligence of scooter rider.
14. In the statement recorded under Section 313 Cr.P.C. defence of petitioner is limited to the extent that the scooter had struck with three-wheeler. Petitioner has not questioned site plan Ex. P.W. 7/A and photographs Ex. A-3 to Ex. A-3 at any stage clearly establishes site plan and photographs that it was the driver of three-wheeler who crossed his line and struck with scooter after going its extreme right-hand side on the road.
15. It has been further submitted on behalf of petitioner that at the time of accident petitioner was 24 years old and the accident in question had occurred 14 years ago. During the intervening time, liability of the petitioner towards his family and dependency of his family upon him has also increased. Petitioner was convicted in the year 2003 and since then petitioner is continuously living in trauma of being detained in jail. For these reasons, in case of disagreement with contention of petitioners, prayer has been made by his counsel to reduce the sentence. Learned counsel for petitioner has also relied upon for reduction of sentence, pronouncement of the Hon'ble Apex Court in Guru Basavaraj Alias Benne Settappa v. State of Karnataka MANU/SC/0682/2012 : (2012) 8 SCC 734 wherein the Hon'ble Apex court held as under:-
"6. The learned Magistrate acquitted the accused of the offence under Section 187 of the 1988 Act and convicted him for the offences punishable under Sections279, 337, 338 and 304-A of the IPC and sentenced him to pay a certain sum as fine and, in default of payment of the same, to undergo simple imprisonment for a specific period in respect of the offences under Sections 279 and 337 and Section 338 of the IPC As far as the offence under Section 304-A of the IPC is concerned, the learned Magistrate imposed the sentence of simple imprisonment of six months and to pay a fine of Rs. 2,000/- and, in default, to suffer simple imprisonment of 45 days.
34.Weighing the individual difficulty as against the social order, collective conscience and the duty of the Court, we are disposed to think that the substantive sentence affirmed by the High Court does not warrant any interference and, accordingly, we concur with the same".
16. Hon'ble Apex Court in B. Nagabhushanam v. State of Karnataka MANU/SC/7688/2008 : (2008) 5 SCC 730, has held as under:-
"2 Appellant was the driver of a bus bearing registration No. AP-10-Z-5260. He was driving the said bus on Bangalore-Hindupur road. On 10.1.1999, at about 2:00 p.m. when the bus was passing through a village commonly known as Kamalapura, it dashed against a child by name Shantha, as a result whereof she died. Shantha was about 7 years old at that time. A criminal prosecution under Sections 279 and 304A of the Indian Penal Code was initiated against him. He was found guilty of the said offences. He was sentenced to one year's simple imprisonment and to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 304A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Indian Penal Code. The appeal preferred there against by him was dismissed. The High Court, however, by reason of the impugned judgment modified the sentence directing:
"The order of sentence passed against the revision petitioner for the offence punishable under Section 304-A IPC is modified. He shall undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-. In default of payment of fine amount, he shall undergo simple imprisonment for one month. Out of the fine amount of Rs. 5,000/- if deposited by the revision petitioner-accused, a sum of Rs. 4,000/- shall be paid to P.W. 6 Gowramma and remaining Rs. 1,000/- shall be credited to the State exchequer."
"14.............. that six months' simple imprisonment and a direction to the appellant to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 304A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Indian Penal Code cannot be said to be shocking."
17. After considering the various judgments, Hon'ble Apex Court in State of Punjab vs. Saurabh Bakshi MANU/SC/0362/2015 : (2015) 5 Supreme Court Cases 182, has concluded as under:-
"23. In the instant case the factum of rash and negligent driving has been established. This court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage. The protagonists, as we perceive, have lost all respect for law. A man with the means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse then death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental.
"24. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system"
18. The impugned judgment does not appear leading to injustice and no glaring features have been pointed out which may be considered tantamounting to grave miscarriage of justice.
19. The Courts below have considered the evidence on record and have recorded concurrent findings of facts regarding the rash and negligent driving on the part of the petitioner in causing the accident. There is no misconstruction and misinterpretation of the evidence. The view taken by the two Courts below emerges from the evidence on record and the findings recorded by learned Addl. Chief Judicial Magistrate, Paonta Sahib in Criminal Case No. 65/2 of 2002/01 under Sections 279, 337 & 304-A IPC affirmed by learned Addl. Sessions Judge, Sirmour, District at Nahan in Criminal Appeal No. 1-N/10 of 2004 are upheld.
20. In totality of circumstances in the present case and pronouncement of Hon'ble Apex Court, in my opinion, the sentence is to be modified. Accordingly revision is partly allowed and conviction and sentence of the petitioner-accused is modified from one year to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-. Under Section 304-A IPC and in default of payment of fine amount the petitioner/accused will further undergo simple imprisonment for two months. Accused/petitioner is also sentenced to undergo simple imprisonment of one month and to pay fine of Rs. 500/- under Section 279 IPC and in default of payment of said fine, he shall undergo further simple imprisonment for 15 days and to undergo simple imprisonment for one month and to pay fine of Rs. 500/- under Section 337 IPC and in default of payment of said fine, he shall undergo further simple imprisonment for 15 days. Bail bonds of the petitioner are cancelled. He is directed to surrender before the trial Court in 30 days to serve sentence. Record of learned trial Court as well as first appellate Court be sent back alongwith copy of judgment.
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