State Of Punjab vs Balwinder Singh Etc

State of Punjab .... Appellant(s)

Versus

Balwinder Singh and Ors. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) These appeals are filed against the common final

judgment and order dated 04.11.2009 passed by the High

Court of Punjab and Haryana at Chandigarh in Criminal

Revision Petition Nos. 653 and 655 of 2000 for nature of

offence and quantum of sentence whereby the High Court

partly allowed the revision petition and reduced the quantum

of sentence awarded by the Judicial Magistrate, Ist Class,

Amritsar as upheld by the Additional Sessions Judge,

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Amritsar under Sections 304A, 337 and 279 of Indian Penal

Code, 1860 (in short `IPC').

3) Brief facts:

(a) On 30.10.1992, one Dhian Singh-the Complainant

(PW-3), after attending the last rites of one of his relatives at

Village Mustabad, Amritsar was returning to Batala along with

his family members in a Jhang Transport Bus bearing No. PB-

02-D-9485. The bus was being driven at a very high speed by

the driver-Respondent No. 1 herein. When the aforesaid bus

reached the bus stand at Mudhal, at that time, a truck

bearing No. PB-02-C-9665 which was being driven by

Respondent No. 2 herein was coming from the opposite side at

a very high speed. Both the drivers were driving their vehicle

at a very high speed and in rash and negligent manner, as a

result of which, both the vehicles collided with each other and

two passengers, namely, Darshan Singh s/o Bela Singh and

Banso w/o Ajit Singh died at the spot. The other passengers,

namely, Sonia, Dalbir Singh and Ramandeep were taken to the

Civil Hospital but later on they succumbed to their injuries.

2 (b) On the basis of the complaint of Dhian Singh, FIR No.

125/92 was registered under Sections 304A, 279 and 337 of

IPC and after formal investigation the case was forwarded to

the Court of Judicial Magistrate, Ist Class, Amritsar. The

Judicial Magistrate, by order dated 14.12.1998, convicted both

the accused persons and directed them to undergo rigorous

imprisonment for 2 years each for the offence under Section

304A and to pay fine of Rs. 200/- each, in default, to further

undergo rigorous imprisonment for two months and to also

undergo rigorous imprisonment for a period of six months

each for the offence punishable under Sections 337 and 279

IPC.

(c) Aggrieved by the judgment and order dated 14.12.1998,

the accused persons preferred an appeal before the Additional

Sessions Judge, Amritsar. Vide judgment dated 20.05.2000,

the Additional Sessions Judge upheld the judgment and order

passed by the Judicial Magistrate, Ist Class, Amritsar.

(d) Questioning the same, the respondents herein filed

Criminal Revision Petition being Nos. 653 and 655 of 2000

qua nature of offence and quantum of sentence before the

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High Court. The High Court, by order dated 04.11.2009, while

confining to the question of quantum of sentence only,

reduced the sentence of the accused persons to the period

already undergone (15 days) and in addition thereto, enhanced

the fine to an amount of Rs. 25,000/- each.

(e) Against the order of the High Court, the State of Punjab

has filed these appeals before this Court by way of special

leave petitions.

4) Heard Mr. Ashok Aggarwal, learned senior counsel for the

appellant and Mr. Sudhir Walia and Mr. K.G. Bhagat, learned

counsel for the respondents.

5) Before the High Court, the respondents, who preferred

the revisions, did not dispute the finding relating to negligence

rendered by the courts below and confined their submissions

to the quantum of sentence only and prayed that the sentence

be reduced to the period already undergone. In support of the

above claim, they pointed out that they had suffered a

protracted trial for about 17 years and had already undergone

custody for 15 days, therefore, prayed for lenient view by

modifying the sentence. On the other hand, on behalf of the

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State, it was submitted that inasmuch as the negligence was

proved beyond reasonable doubt, therefore, no leniency should

be shown to the accused. The High Court, without taking note

of the seriousness of the matter, namely, due to the negligence

of the two drivers, five persons traveling in the bus died,

merely because of protracted trial of about 17 years and both

of them had served sentence for a period of 15 days, reduced

the same to the period already undergone and enhanced the

fine to an amount of Rs.25,000/- each.

6) It is not in dispute that the trial Court on appreciation of

evidence and accepting the prosecution witnesses convicted

the respondents for an offence under Section 304A. The said

section reads as under:

304A. Causing death by negligence.- 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."

7) Section 304A was inserted in the Penal Code by the

Indian Penal Code (Amendment) Act 27 of 1870 to cover those

cases wherein a person cause the death of another by such

acts as are rash or negligent but there is no intention to cause

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death and no knowledge that the act will cause death. The

case should not be covered by Sections 299 and 300 only then

it will come under this section. The section provides

punishment of either description for a term which may extend

to two years or fine or both in case of homicide by rash or

negligent act. To bring a case of homicide under Section 304A

IPC, the following conditions must exist, namely,

1) There must be death of the person in question;

2) the accused must have caused such death; and

3) that such act of the accused was rash or negligent

and that it did not amount to culpable homicide.

8) Even a decade ago, considering the galloping trend in

road accidents in India and its devastating consequences, this

Court in Dalbir Singh vs. State of Haryana, (2000) 5 SCC

82 held that, 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 should not take a chance

thinking that even if he is convicted, he would be dealt with

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leniently by the court. The following principles laid down in

that decision are very relevant:

"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."

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9) The same principles have been reiterated in B.

Nagabhushanam vs. State of Karnataka, 2008 (5) SCC

730.

10) 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

304A 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 (supra).

11) 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

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the Court. For lessening the high rate of motor accidents due

to careless and callous driving of vehicles, the courts are

expected to consider all 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.

12) In the light of the above principles, we express our

inability to accept the reasoning of the High Court in reducing

the sentence of imprisonment to the period already undergone,

that is, 15 days. Merely because the fine amount has been

enhanced to Rs.25,000/- each, is also not a sufficient ground

to drastically reduce the sentence, particularly, in a case

where five persons died due to the negligent act of both the

drivers of the bus and the truck. Accordingly, we set aside the

impugned order of the High Court and impose a sentence of

rigorous imprisonment for six months with a fine of Rs.

5,000/- each. The trial Court is directed to take appropriate

steps for surrender of the accused in both the appeals to serve

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the remaining period of sentence. The appeals are allowed to

the extent mentioned above.

...........................................J.

(P. SATHASIVAM)

...........................................J.

(J. CHELAMESWAR)

NEW DELHI;

JANUARY 6, 2012.

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