Kameshwar Yadav vs State Of U.P.
2017 Latest Caselaw 4534 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
RESERVED
 
AFR
 

 
Case :- CRIMINAL REVISION No. - 668 of 2004
 

 
Revisionist :- Kameshwar Yadav
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- K.N.Misra,R N Gupta
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Anil Kumar Srivastava-II,J.

1. Second Additional Civil Judge (Junior Division), Gonda, vide judgment and order dated 02.2.1999, has convicted and sentenced the accused-revisionist Kameshwar under section 279 IPC and sentenced for six months rigorous imprisonment, under section 338 IPC sentenced for one year rigorous imprisonment and under section 304 A IPC sentenced for two years rigorous imprisonment and fine of Rs.2000/-, in default of payment of fine two months imprisonment was awarded.

2. Accused- revisionist preferred criminal appeal no.5/99 against the judgment of the trial court which was dismissed by Additional Sessions Judge/ FTC-III Gonda on 17.12.2004. Conviction and sentence awarded to the accused- revisionist by the learned trial court was confirmed.

3. Feeling aggrieved, accused-revisionist has preferred the revision.

4. According to the prosecution version, an FIR was lodged by Vishambhar Prasad o 01.3.1990 stating that he was going to Nawabganj from Sultanpur for God Bharai Rasm of his son in Jeep No. MP 20-6359. Babloo, Pintoo, Gauri Shankar and others were also sitting. Total 11 persons were sitting in the jeep. Complainant was in another jeep behind this jeep. At about 06:30 PM on Saryu Bridge, Bus No. UP 53-4113 was coming from the northern side which was being driven very rashly and negligently by the driver. Bus hit the jeep no. MP 20-6359. Four persons died while others were injured. On the basis of written report chik FIR was registered at case crime no.50/90, under secion 279, 304 A, 427, 338 IPC at Police Station Nawabganj, District Gonda. Investigation was handed over to SI Subedar Singh Yadav. Inquest proceedings were conducted and postmortem of the dead bodies was also conducted. During investigation bus and jeep were technically examined. Site plan was prepared by the Investigating Officer. After lodging the report one more person died. Injured were medically examined at Shri Ram Hospital, Ayodhya. After investigation charge sheet was submitted against the accused under section 279, 338, 304 A, 427 IPC. Accused was summoned by the learned Magistrate. His statement was recorded wherein it is admitted by the accused on 11.01.1994 that he was the driver of the bus but it is denied that he was driving the bus rashly and negligently resulting in the accident and death of five persons and injuries to four persons.

5. In order to prove its case prosecution has produced PW-1 Vishambhar Prasad, PW-2 Raj Kumar, PW-3 Ram Bhajan, PW-4 Jagat Narain, PW-5 Dr. J.P. Pandey who has conducted the postmortem, PW-6 Praveen Kumar, PW-7 Prakash Chandra, PW 8 SI Subedar Singh, PW-9 Constable Driver Mechanic Kaishar Rizvi, PW-10 Constable Ram Sajiwan, PW-11 Dr. Pankaj Srivastava.

6. In the statement under section 313 CrPC accused has stated that witness have given a false statement.

7. PW-5 Dr.J.P. Pandey has conducted the postmortem of the dead body of four persons and opined that the cause of death of all the four persons is causing injuries with some hard object on 01.3.1990 at 06:30 PM. PW-11 Dr Pankaj Srivastava has conducted the medico-legal examination of Jawahar Narain, Ram Bhajan, Chhedi Lal, Raj Kumar and opined that the injuries to the injured persons could be caused in an accident. PW-6 Praveen Kumar and PW-7 Prakash Chandra are the witnesses of inquest. PW-10 Ram Sajiwan is a formal witness. PW-9 Kaishar Rizvi has technically examined the vehicle and found that in the bus there is a dent in the bumper. PW-8 SI Subedar Singh is also Investigating Officer.

8. PW-1 Vishambhar Prasad, PW-2 Raj Kumar, PW-3 Ram Bhajan and PW-4 Jagat Narain were the eyewitnesses.

9. After appreciating the evidence on record learned trial court has held that the accused himself has admitted this fact that he was the driver of the bus when accident took place. There is no denial to the fact that accident did not occur, rather a defence is set up that it was due to the overcrowding in the jeep and the driver of the jeep lost control and accident took place. There was no negligence on the part of the bus driver. This defence was not accepted by the learned trial court, rather it was held that the accident took place due to the rash and negligent driving of the accused. Accordingly he was convicted and sentenced.

10. Learned appellate court has also appreciated the evidence on record and confirmed the findings recorded by the learned trial court.

11. Learned counsel for the revisionist submits that the learned courts below have not recorded any finding that the bus was being driven rashly and negligently. Only on the basis of presumption it is found that the bus was being driven rashly and negligently. It is further submitted that statement of the doctor has not been discussed by the learned court below. Compensation has already been awarded in favour of the injured or the dependents of the deceased.

12. Learned A.G.A. would submit that the learned court below have categorically recorded the finding that bus was being driven by the accused rashly and negligently resulting in the accident wherein five persons have died and four received injuries.

13. There is concurrent finding of fact on record that the accused was driving the bus when accident took place. Factum of accident is not disputed. Death of five persons and injuries to four persons is also not disputed. Hence, even if the injuries sustained by the injured or the statement of the doctor is not discussed by the learned court below it will not affect the merit of the case.

14. The only point to be seen is as to whether it was a rash and negligent act of the accused resulting in the accident.

15. In the site plan exhibit ka-12 bus was coming from south to north direction while jeep was going from north to south direction. Accident took place at point ''X' wherein it is clear that the bus was not moving towards its left, rather it was moving towards its right side while the jeep was coming on its left side. Investigating Officer, PW-8, Subedar Singh has proved the site plan. Nothing could be extracted from his statement to disbelieve the site plan. PW-1 Vishambhar Prasad was sitting in the jeep which was behind the unfortunate jeep who has stated that the bus was coming from the opposite direction very rashly and negligently in high speed. Driver and conductor of the bus has left the bus and ran away from the scene. PW-2 Raj Kumar was sitting in the jeep no. MP20-6359, who received injuries who has stated that the bus was coming from the opposite direction very rashly and negligently in the high speed. Accident took place from the right side of the bus. PW-3 Ram Bhajan was also sitting in the same jeep who is also an injured witness. PW-4 Jagat Narain is also injured witness. All these four witnesses have categorically stated that the bus was coming from the opposite direction in the high speed which was being driven very rashly and negligently. Accident took place from the right side of the bus which fact finds support from the technical examination report of the bus. It is admitted and also stated by the PW-2 Raj Kumar that accused revisionist was driver of the bus. Site plan, as prepared by the Investigating Officer, also proves negligence of the accused.

16. Having considered the submissions and after going through the evidence available on record, I am of the view that the learned court below have rightly recorded the finding of conviction against the accused and sentenced him which did not require any interference in the revision. Learned court below have not committed any material illegality or irregularity in recording the conviction against accused.

17. Learned trial court has sentenced the accused for six months rigorous imprisonment under section 279 IPC, one year rigorous imprisonment under section 338 IPC and two years rigorous imprisonment and fine of Rs.2000/- under section 304 A IPC.

18. In Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 it was held in para 1 & 13:-

"1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.

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 under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders 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. 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 the vehicle he cannot escape from a 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 principles have been reiterated inB. Nagabhushanamv.State of Karnataka[(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61

19. In State of Punjab vs. Balwinder Singh (2012) 2 SCC 182 it was held in para 13 that :-

"It is settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have a better training in traffic laws and moral responsibility with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208]"

20. 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.

21. For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt.

22. Five persons have lost their lives due to the rash and negligent act of the accused. 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 the vehicle he cannot escape from a jail sentence.

23. Accordingly the sentence imposed upon the accused by the learned court below for causing the death of five innocent persons by the rash and negligent driving of the accused did not require any leniency towards the accused. Accordingly, revision is devoid of merit and is liable to be dismissed and is accordingly dismissed.

24. Judgment of the learned trial court and learned appellate court dated 02.02.1999 and 17.12.2004 are confirmed. Accused is on bail. His bail is cancelled. Accused shall surrender before the learned Magistrate within a period of three weeks from today, to serve out the sentence failing which learned Magistrate should issue process against him for taking him into custody.

25. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

Date :-    18.9.2017
 
mks 
 
(Anil Kumar Srivastava-II, J.)