//
you're reading...
legal issues

rash and negligent driving of the driver.“Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society”. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be.”In view of the aforesaid, we have to weigh whether the submission advanced by the learned counsel for the appellant as regards the mitigating factors deserves acceptance. Compassion is being sought on the ground of young age and mercy is being invoked on the foundation of solemnization of marriage. The date of occurrence is in the month of March, 2006. The scars on the collective cannot be said to have been forgotten. 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. 31. Consequently, the appeal, being devoid of any substance, stands dismissed.

IN THE SUPREME COURT OF INDIA

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1325 OF 2012
(Arising out of S.L.P. (Criminal) No. 9132 of 2011
Guru Basavaraj @ Benne Settappa … Appellant
Versus
State of Karnataka … Respondent

 

J U D G M E N T
Dipak Misra, J.
Leave granted.

2. In this appeal preferred by special leave under Article 136 of the
Constitution of India, the assail is to the judgment and order dated
21.06.2011 in Criminal Revision Petition No. 2284 of 2009 passed by the
High Court of Karnataka Circuit Bench at Dharwad whereby the High court has
concurred with the judgment of conviction and order of sentence passed by
the learned Addl. Sessions Judge, Hospet in Criminal Appeal No. 58 of 2008
wherein the appellate court had set aside the sentence under Section 279 of
the Indian Penal Code, 1860 (for short “the IPC”) and affirmed the
conviction and sentence for offences punishable under Sections 337, 338 and
304 A of the IPC as passed by the Judicial Magistrate First Class, Hospet.
3. The broad essential facts leading to the trial of the accused-
appellant (hereinafter referred to as ‘the accused’) are that on
25.03.2006, about 10.15 a.m., the accused-driver was driving an
unregistered new tractor on National Highway No. 13 at bypass road near the
open well of one Golya Naik. The tractor turned turtle towards the left
side and caused simple injuries to many people who were sitting inside the
trailer of the tractor and grievous injuries to three persons. Injured
Kotraiah succumbed to the injuries sustained in the accident. Be it noted,
all the injured persons were travelling along with their goods in the
trailer of the said tractor.

4. After the accident took place, the concerned police sub-inspector
(PSI) reached the spot, recorded the statement of the injured persons and
after returning to the police station registered an FIR and thereafter
proceeded to the spot, prepared the sketch map, seized the vehicle in
question and sent the dead body for post-mortem. After completing the
investigation, he placed the charge-sheet before the Competent Court for
the offences punishable under Sections 279, 337, 338 and 304-A of the IPC
read with Section 187 of the Motor Vehicles Act, 1988.

5. The prosecution, in order to substantiate the allegations, examined
10 witnesses and got a number of documents marked as exhibits P-1 to P-24.

6. The accused, in his statement under Section 313 Cr.P.C., denied the
incriminating material brought against him and took the stand that the
accident occurred due to mechanical failure and not because of rash and
negligent driving. However, he chose not to adduce any evidence.

7. The learned Magistrate acquitted the accused of the offence under
Section 187 of the 1988 Act and convicted him for the offences punishable
under Sections 279, 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.
2000/- and, in default, to suffer simple imprisonment of 45 days.

8. On an appeal being preferred assailing the conviction and sentence,
the learned appellate Judge basically posed two questions, namely, whether
the findings recorded by the trial court are erroneous and whether the
sentence passed by the trial court required to be interfered with in
appeal. After analysing the evidence, the appellate court came to hold
that it had been proven beyond doubt that the accused being the driver of a
newly purchased unregistered tractor not only overloaded tamarind bags on
the old trailer but also allowed 22 passengers to travel on the loaded
trailer and due to his negligence, the trailer got detached from the
tractor as a consequence of which it turned turtle by the side of the road.
That apart, after detachment of the trailer, the tractor moved up to 30
feet which clearly reflected that the tractor was in high speed.

9. The learned appellate Judge concurred with the view of the learned
Magistrate that the accident had not occurred due to mechanical defect but
there was rash and negligence on the part of the accused and the same had
been established by the unimpeachable evidence of independent witnesses.
Because of the aforesaid view, he answered the first question in the
negative. As far as the second question is concerned, he sustained the
conviction in respect of all the offences but set aside the sentence
imposed for the offence punishable under Section 279 of the IPC.

10. Questioning the legal sustainability of the conviction, it is
submitted by Mr. S. N. Bhat, learned counsel for the appellant, that all
the courts have fallen into grave error by expressing the opinion that the
accident had not occurred due to mechanical failure, namely, due to non-
functioning of the hydraulic system in a proper manner, and such an
expression of opinion vividly exposits perversity of approach. It is
further urged by him that when the appellant has been acquitted of the
offence punishable under Section 279 of the IPC, he could not have been
punished in respect of the rest of the offences. The last limb of
submission of Mr. Bhatt is that at the time of the accident, the appellant
was 22 years of age and, in the meantime, his marriage has taken place and,
therefore, the same should be regarded as acceptable mitigating factors and
the substantive sentence should be restricted to the period already
undergone in custody and the quantum of fine be enhanced.

11. Ms. Vishruti Vijay, learned counsel for the State, per contra,
contended that the analysis of the evidence made by the learned Magistrate
as well as by the appellate court are absolutely flawless and the
concurrence thereof by the High Court, in no manner, can be stated to be
perverse. It is put forth by him that there is ample evidence on record
that the incident took place due to rash and negligent act on the part of
the appellant and the said finding, being appositely founded on the
material on record, does not warrant any interference by this Court.
Commenting on the submission that the appellant has been acquitted under
Section 279 of the IPC and hence, he deserves to be acquitted in respect of
the other offences, it is propounded by Ms. Vishruti Vijay that on a
studied perusal of the judgment of the learned appellate Judge, it is quite
clear that he has maintained the conviction and not imposed a separate
sentence under Section 279 of the IPC and, for that reason, he has set
aside the sentence but not the conviction. The learned counsel further
submitted that regard being had to the careless, negligent and callous
attitude that has been exhibited by the drivers who are expected to be
professionals, the rate of road accidents that has extremely gone high and
further, in the case at hand, when so many people have been injured, some
have sustained grievous injuries and a life has been lost, lenient
delineation would be an anathema to the concept of adequate punishment.

12. First, we shall deal with the facet of rash and negligent driving of
the driver. The learned counsel for the appellant has submitted that the
vehicle turned turtle due to mechanical failure i.e. non-functioning of the
hydraulic system in a proper manner. To appreciate the said submission, we
have carefully perused the material brought on record and the analysis made
by the courts below. On a careful scrutiny of the same, we find that all
the courts have placed reliance on independent witnesses as well as the
testimony of PW-10, the Motor Vehicle Inspector. The manner in which the
accident occurred due to detachment of the trailer from the tractor and the
distance to which the tractor moved vividly reveals that the vehicle in
question was driven recklessly at a high speed. The plea of mechanical
failure as put forth by the accused was not even suggested to the
Inspector. What is sought to be emphasised before this Court is that PW-3
has deposed that the accident occurred due to mechanical failure. The
trial court as well as the High Court has not accepted the testimony of PW-
3 as he is only an agriculturist while the other technical experts
including the Motor Vehicle Inspector have deposed about the rash and
negligent driving. Analysing the evidence in entirety, the learned trial
judge as well as the appellate judge has returned the finding as regards
the rash and negligent driving. The appellate court, on further scrutiny,
has found that the evidence on record clearly shows that the driver has
taken the vehicle to the left side of the road and, in the process, he
moved away from the main road to the ‘kachcha’ road and thereby the link
between the tractor and the trailer got detached. The High Court has
opined that the accused has not taken care to see that the speed of the
tractor was within limit so that the trailer could not be detached. In our
considered view, the analysis of the factual score in this regard cannot be
regarded to be perverse and, therefore, not liable to be unsettled by this
Court.

13. The next limb of submission of the learned counsel for the appellant
is that when he has been acquitted under Section 279 of the IPC, he cannot
be punished in respect of the other offences as the allegation of rash and
negligent act cannot be treated to have been proven. The aforesaid
submission, on a first blush, may look quite attractive, but on a deeper
scrutiny of the judgment passed by the appellate court, it melts into total
insignificance. The learned appellate judge, after due appreciation of the
evidence on record as expected of an appellate court, has come to the
conclusion that the accused was driving the vehicle in a rash and negligent
manner. After ascribing some reason, he has thought it apposite that a
separate sentence should not be imposed under Section 279 of the IPC, and,
accordingly, he has set aside the sentence awarded by the trial court. It
is apposite to state here that there is a distinction between conviction
and sentence. A conviction is the proof of the offence committed by an
accused. It is the proof of guilt of the offence. The punishment
component is the sentence. In Rama Narang v. Ramesh Narang and others[1],
a three-Judge Bench of this Court, after referring to Section 354 of the
Code of Criminal Procedure, has stated that every judgment referred to in
Section 353 of the Code, shall, inter alia, specify the offence of which
the accused is convicted and the punishment to which he is sentenced. This
Court, while dealing with the power of the High Court under Section 389(1)
of the Code, has observed that ordinarily an order of conviction by itself
is not capable of execution under the Code, but it is the order of sentence
or an order awarding compensation or imposing fine or release on probation
which are capable of execution and which, if not suspended, would be
required to be executed by the authorities. It has been further stated
that in certain situations, the order of conviction can be executable in
the sense that it may incur a disqualification. We have referred to the
aforesaid authority only to highlight that there is a distinction between a
conviction and a sentence. In the instant case, as the judgment of the
appellate court would show, the view has been expressed that a separate
sentence under Section 279 of the IPC is not necessary and, accordingly,
the said sentence has been set aside. The reading of the entire judgment
makes it graphically clear that the conviction under Section 279 of the IPC
has not been annulled. It is noticeable that the rash and negligent
driving by the accused that resulted in the causation of injuries to the
persons travelling in the trailer has been proved. There is no cavil that
some have been seriously injured and one person who was grievously injured
breathed his last. Thus, the submission of the learned counsel for the
appellant that he has been acquitted of the offence under Section 279 of
the IPC does not deserve acceptance, and, accordingly, we, unhesitatingly,
repel the same.

14. The last plank of submission of Mr. Bhat is that the accused-
appellant was a young man of 22 years at the time of the occurrence and in
the meantime, he has entered into wedlock and, therefore, maintaining of
substantive sentence would be inapposite, and in fitness of things, it
should be restricted to the period already undergone and the amount of fine
may be enhanced with the stipulation that it shall be paid as compensation
to the victims of the accident.

15. The aforesaid submission, in our considered opinion, requires a
careful and cautious examination. What is basically sought to be argued on
behalf of the appellant is that there are mitigating circumstances
warranting lenient treatment. As we perceive, two aspects, namely, (i) the
age of the accused at the time of the accident; and (ii) his present
marital status, have been highlighted as mitigating factors. Before we
dwell upon whether these two aspects should be regarded as extenuating
factors to reduce the sentence in a crime of this nature in the present
social context, we think it apt to refer to certain authorities in the
field.
16. In State of Karnataka v. Krishna alias Raju[2], while dealing with
the concept of adequate punishment in relation to an offence under Section
304-A of the IPC, the Court stated that considerations of undue sympathy in
such cases will not only lead to miscarriage of justice but will also
undermine the confidence of the public in the efficacy of the criminal
justice dispensation system. It need be hardly pointed out that the
imposition of a sentence of fine of Rs. 250 on the driver of a Motor
Vehicle for an offence under Section 304-A of the IPC and that too without
any extenuating or mitigating circumstance is bound to shock the conscience
of any one and will unmistakably leave the impression that the trial was a
mockery of justice. Thereafter, this Court enhanced the sentence to six
months rigorous imprisonment with fine of Rs. 1000 and, in default, to
undergo rigorous imprisonment for two months.
17. In Sevaka Perumal and another v. State of Tamil Nadu[3], it has been
emphasized that undue sympathy resulting in imposition of inadequate
sentence would do more harm to the justice system and undermine the public
confidence in the efficacy of law.
18. In Jashubha Bharatsinh Gohil and Ors. v. State of Gujarat[4], the
Court, adverting to the new challenges of sentencing, opined that the
courts are constantly faced with the situation where they are required to
answer to new challenges and mould the sentencing system to meet those
challenges. Protection of society and deterring the criminal is the avowed
object of law and that is required to be achieved by imposing appropriate
sentence.

19. In Dalbir Singh v. State of Haryana[5], this Court expressed thus:

“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 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 considerations should be
deterrence.”

Thereafter, the Court proceeded to highlight what is expected of a
professional driver:

“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.”

 

20. In State of Karnataka v. Sharanappa Basanagouda Aregoudar[6], it has
been ruled that if the accused are found guilty of rash and negligent
driving, courts have to be on guard to ensure that they do not escape the
clutches of law very lightly. The sentence imposed by the courts should
have deterrent effect on potential wrong-doers and it should commensurate
with the seriousness of the offence. Of course, the courts are given
discretion in the matter of sentence to take stock of the wide and varying
range of facts that might be relevant for fixing the quantum of sentence,
but the discretion shall be exercised with due regard to the larger
interest of the society and it is needless to add that passing of sentence
on the offender is probably the most public face of the criminal justice
system.

21. In State of M.P. v. Saleem alias Chamaru and Anr.[7], it has been
ruled that the object should be to protect society and the avowed object of
law is achieved by imposing appropriate sentence to deter the criminal. It
is expected that the courts would operate the sentencing system so as to
impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be.
22. Yet again in B. Nagabhushanam V.  State of Karnataka[8], the Court,
taking note of the fact that the vehicle was being driven rashly and
negligently, opined 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 304-A 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.
23. Recently, in State of Punjab v. Balwinder Singh and Ors.[9], this
Court while dealing with the concept of sentencing, has stated thus:
“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”.

24. In Alister Anthony Pareira v. State of Maharashtra[10], it has been
laid down that sentencing is an important task in relation to criminal
justice dispensation system. One of the prime objectives of the criminal
law is imposition of appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of crime and the manner in which
the crime is done. There is no straitjacket formula for sentencing an
accused on proof of crime. The courts have evolved certain principles: twin
objective of the sentencing policy is deterrence and correction. What
sentence would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the gravity of
the crime, motive for the crime, nature of the offence and all other
attendant circumstances. It has been further opined that the principle of
proportionality in sentencing a crime-doer is well entrenched in criminal
jurisprudence. As a matter of law, the proportion between crime and
punishment bears the most relevant influence in the determination of
sentencing the crime-doer. The court has to take into consideration all
aspects including the social interest and conscience of the society for
award of appropriate sentence.

25. In State TR. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda[11], one
of us (K.S. Radhakrishnan, J.), in his separate opinion, pertaining to the
conception of adequate sentencing, has expressed thus:

“Law demands that the offender should be adequately punished for the
crime, so that it can deter the offender and other persons from
committing similar offences. Nature and circumstances of the offence;
the need for the sentence imposed to reflect the seriousness of the
offence; to afford adequate deterrence to the conduct and to protect
the public from such crimes are certain factors to be considered while
imposing the sentence.”
26. From the aforesaid authorities, it is luminous that this Court has
expressed its concern on imposition of adequate sentence in respect of
commission of offences regard being had to the nature of the offence and
demand of the conscience of the society. That apart, the concern has been
to impose adequate sentence for the offence punishable under Section 304-A
of the IPC. It is worthy to note that in certain circumstances, the
mitigating factors have been taken into consideration but the said aspect
is dependent on the facts of each case. As the trend of authorities would
show, the proficiency in professional driving is emphasized upon and
deviation therefrom that results in rash and negligent driving and causes
accident has been condemned. In a motor accident, when a number of people
sustain injuries and a death occurs, it creates a stir in the society;
sense of fear prevails all around. The negligence of one shatters the
tranquility of the collective. When such an accident occurs, it has the
effect potentiality of making victims in many a layer and creating a
concavity in the social fabric. The agony and anguish of the affected
persons, both direct and vicarious, can have nightmarish effect. It has its
impact on the society and the impact is felt more when accidents take place
quite often because of rash driving by drunken, negligent or, for that
matter, adventurous drivers who have, in a way, no concern for others. Be
it noted, grant of compensation under the provisions of the Motor Vehicles
Act, 1988 is in a different sphere altogether. Grant of compensation under
Section 357(3) with a direction that the same should be paid to the person
who has suffered any loss or injury by reason of the act for which the
accused has been sentenced has a different contour and the same is not to
be regarded as a substitute in all circumstances for adequate sentence.

27. Recently, this Court in Rattiram & Ors. v. State of M.P. Through
Inspector of Police[12], though in a different context, has stated that
criminal jurisprudence, with the passage of time, has laid emphasis on
victimology which fundamentally is a perception of a trial from the view
point of the criminal as well as the victim. Both are viewed in the social
context. The view of the victim is given due regard and respect in certain
countries. It is the duty of the court to see that the victim’s right is
protected.
28. We may note with profit that an appropriate punishment works as an
eye-opener for the persons who are not careful while driving vehicles on
the road and exhibit a careless attitude possibly harbouring the notion
that they would be shown indulgence or lives of others are like “flies to
the wanton boys”. They totally forget that the lives of many are in their
hands, and the sublimity of safety of a human being is given an indecent
burial by their rash and negligent act.
29. There can hardly be any cavil that there has to be a proportion
between the crime and the punishment. It is the duty of the court to see
that appropriate sentence is imposed regard being had to the commission of
the crime and its impact on the social order. The cry of the collective
for justice which includes adequate punishment cannot be lightly ignored.
In Siriya alias Shri Lal v. State of M.P.[13], it has been held as follows:

“Protection of society and stamping out criminal proclivity must be
the object of law which must be achieved by imposing appropriate
sentence. Therefore, law as a corner-stone of the edifice of “order”
should meet the challenges confronting the society. Friedman in his
“Law in Changing Society” stated that, “State of criminal law
continues to be – as it should be – a decisive reflection of social
consciousness of society”. Therefore, in operating the sentencing
system, law should adopt the corrective machinery or the deterrence
based on factual matrix. By deft modulation sentencing process be
stern where it should be, and tempered with mercy where it warrants to
be.”
30. In view of the aforesaid, we have to weigh whether the submission
advanced by the learned counsel for the appellant as regards the mitigating
factors deserves acceptance. Compassion is being sought on the ground of
young age and mercy is being invoked on the foundation of solemnization of
marriage. The date of occurrence is in the month of March, 2006. The
scars on the collective cannot be said to have been forgotten. 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.

31. Consequently, the appeal, being devoid of any substance, stands
dismissed.

……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
August 29, 2012.
———————–
[1] (1995) 2 SCC 513
[2] (1987) 1 SCC 538
[3] (1991) 3 SCC 471
[4] (1994) 4 SCC 353
[5] (2000) 5 SCC 82
[6] (2002) 3 SCC 738
[7] (2005) 5 SCC 554
[8] (2008) 5 SCC 730
[9] (2012) 2 SCC 182
[10] (2012) 2 SCC 648
[11] 2012 (7) SCALE 120
[12] AIR 2012 SCW 1772
[13] AIR 2008 SC 2314

 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,343 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: