Full Judgment Text
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PETITIONER:
JAGDISH CHANDER
Vs.
RESPONDENT:
STATE OF DELHI
DATE OF JUDGMENT03/05/1973
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
MATHEW, KUTTYIL KURIEN
CITATION:
1973 AIR 2127 1974 SCR (1) 204
1973 SCC (2) 203
ACT:
Penal Code s. 304A- constitution of India Art. 136-
Concurrent finding by Court below ’that accused was guilty
of rash and negligent driving This Court will not interfere.
in appeal by special leave-Protected trial a good reason for
reduction of sentence-Scientific investigation of offences,
desirability of-Delay in criminal proceedings a cause of
concern.
HEADNOTE:
The appellant was driving his auto-scooter rikshaw which on
account of a sudden turn taken by the appellant struck a
truck. After the impact the appellant lost control of his
scooter-rickshaw and crashed into a tree. As a result a man
and a woman received simple in juries and the child whom the
woman was holding in her arms received fatal injuries. The
appellant and the truck driver were charged under s. 304A of
the Indian Penal Code and were convicted by the trial court.
The Additional Sessions Judge allowed the appeal of the
truck driver but held the appellant guilty. On revision a
single Judge of the High Court confirmed the conviction of
the appellant. In appeal to this Court by special leave.
HELD : (i) According to the findings of the three courts
below the appellant suddenly turned to the right without
paying proper heed to the truck coming from the opposite
direction and in doing so he was both rash and negligent.
Under article 136 of the Constitution this Court would not
like to appraise the evidence again for determining how far
the concurrent conclusion of the three ,court below
upholding the appellant’s act as rash and negligent was
justified. [207H]
(ii) The criminal proceeding against the appellant had gone
on for a little more than 8 years. The circumstances in
which the collision between the truck and the appellant’s
scooter occurred seemed prima facie to suggest that both the
drivers were to blame. Harassment of a criminal trial for
more than 8 years and the expense which the appellant must
have incurred could legitimately be taken into account when
considering the question of sentence to be imposed by this
Court at this point of time. [208F]
[Sentence of imprisonment reduced to period already
undergone. The Court also observed that the investigation
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of the case was not conducted on scientific lines and that
the undue delay in the disposal of the case was a matter of
concern.]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 20 of
1970.
Appeal by special leave, from the, judgment and order dated
September 11, 1969 of the Delhi High Court in Criminal Rev.
No. 291-D of 1966.
I. M. Lall, S. K. Mehta, K. R. Nagaraja and M. Qumaruddin,
for the appellant’.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
DUA, J. Jagdish Chander appellant has preferred this appeal
by special leave from the judgment and order of the High
Court of Delhi dated ’September 11, 1969 dismissing the
appellant’s revision from the judgment and order of the
learned Additional Sessions
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Judge, Delhi dated September 7, 1966 dismissing his appeal
against the order of a Magistrate 1st Class, New Delhi dated
April 30, 1966 convicting him for an offence under s. 304-A,
I.P.C. and sentencing him to rigorous imprisonment for six
months and a fine of Rs. 500/-.
The occurrence giving rise to these criminal proceedings
against the appellant took place on April 20, 1965 at about
8.50 a.m. According to the prosecution version, the
appellant was driving hi& auto-scooter rickshaw No. DLR 5614
and was proceeding from the side of Yusaf Sarai when near
the D.T.U. Bus Stand Engineering College Hauz Khas I.I.T. he
suddenly turned to his right towards Mehrauli Road.
Apparently, he wanted to turn back and reverse, his
direction. A truck No. DLG 8468 driven by one Labh Singh
was coming from the opposite direction, that is, from
Mehrauli Side. It is said that the appellant turned to his
right suddenly without giving any signal and without paying
any heed to the traffic on the right. The result was the
accident giving rise to the present criminal proceedings.;
The front bumper on the left side of the truck struck the
rear left side of the body of the appellant’s scooter
rickshaw. ’ As a result of this impact the appellant lost
control of his scooter-rickshaw and swerved. to the right
and. after crossing the edge of the road, crashed into a
tree Under which Smt. Vidya Sharma was standing with her
baby in her arms and her brother Sat Pal standing by her
side. On being hit by the appellant’s scooter-rickshaw,
Smt. Vidya Sharma could not keep control over her baby who
fell down on the ground and received injuries. Smt. Vidya
Sharma and Sat Pal also sustained simple hurts but the
injuries suffered, by the baby were serious and indeed they
proved fatal resulting in the child’s death, in the hospital
soon after the occurrence in question.
Both, Labh Singh, driver of the truck and the appellant,
were challaned and convicted by the learned Magistrate under
section 304A, I. P. C. The trial court sentenced both of
them to rigorous imprisonment for 6 months each and also to
a fine of Rs. 500/each and in default of payment of fine
they were both directed to undergo further rigorous
imprisonment for 2 months each. Out of the fine, if
realised, Rs. 500/- were directed to be paid to the parents
of the deceased child.
Both the convicted drivers appealed to the Sessions Court.
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The learned Additional Sessions Judge, somewhat
surprisingly, allowed the appeal of Labh Singh holding that
he was not in a position to stop the truck instantaneously
with a view to avoid the collision of the two vehicles
because the appellant had all of a sudden brought his
vehicle in front of the truck after taking a turn, at a high
speed. The Addl. Sessions Judge also observed that the
back portion of the appellant’s scooter-rickshaw was not
seriously damaged by the impact with the truck and the
vehicle remained in a normal functioning condition. On this
premise, the appellate Judge took the view that it ’Was in
order to save himself that the appellant took his vehicle
towards the kacha side of the road in a state of utter con-
206
fusion, his vehicle having got out of his control. In.
spite of this, however, according to the appellate Court,
Jagdish Chander was in a position to avoid hitting Smt.
Vidya Sharma. The scooter-rickshaw, to use the words of the
Addl. Sessions Judge, ’was not thrown towards the tree
because of the violent push given by the truck but... it was
actually driven by the accused Jagadish Chander towards the
direction where Smt. Vidya Sharma and here brother were
standing". The entire occurrence in this case, according to
the Sessions Judge, had taken place as a result of the
rashness or negligence of the appellant because he had
decided to take a turn in a, sudden manner at a high speed
in the middle of the road and that in spite of the fact,
that he had seen the truck of the accused coming towards him
from a distance of less than 30 yards. The driver of the
truck was considered by the Addl. Sessions Judge to be
within his right to drive the vehicle on Mehrauli Road at
the speed of 30 to 40 miles per hour. At the time of the
occurrence in question when driving his truck at this
speed,. Labh Singh was considered not to be in a position
to avoid the collision. The sentence on the appellant was
upheld by the appellate Court and it was directed that the
fine, if paid by him, should be paid by way of compensation
to the parents of the. deceased child.
On revision, a learned single judge of the High Court
referred to the evidence of Asa Nand, P.W. 3, Vidya Sharma
P.W. 1 1 and Sat Pal, P.W. 12, the three witnesses on whom
the two courts below had placed reliance. After referring
to the relevant version given by these three witnesses and
also after noticing what the Motor Vehicles Inspector had
said about the damage done to the appellant’s auto-rickshaw
and to the truck in question, the High Court observed that
the road between Yusaf Sarai & Mehrauli had not much
traffic, particularly in the early hours of the morning.
Vehicles could therefore, be expected to be driven on that
road at a fairly high speed. The appellant’s act in taking
a sudden turn on that road without ensuring that there was.
no vehicle coming from the opposite direction, was however,
considered to be a rash or negligent act and it was this act
which resulted in the impact between the truck and, the
appellant’s auto-rickshaw and this impact was the direct and
proximate cause of the death of Smt. Vidya Sharma’s child
and of the injouries caused to her and to her brother Sat
Pal. So holding, the appellant’s conviction and sentence
were confirmed by the High Court.
In this Court it was streously contended that the courts
below had approached the case from an erroneous point of
view and had not read the evidence correctly. The appellate
court and the High Court, according to the submission, also
erroneously absolved the driver of the truck who had no
justification for driving at a fast speed, even if it be in
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the early hours of the morning. According to the
appellant’s learned counsel, 8.50 a.m. in the month of April
cannot be described as early hours. of the morning, it being
added that there is no evidence on the record showing that
at that time there was not much traffic on Mehrauli Road.
The High Court was also not right in observing that vehicles
could be expected to be
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driven at a fairly fast speed, argued the counsel, adding
that if the vehicles could be expected to be driven at a
fast speed, then the appellant should also have been held
justified in driving his auto-rickshaw at a fast speed. The
appellant’s case should in that event have also been
considered with leniency. Particular stress was laid on the
contention that the unfortunate death of the child could on
no rational or logical reasoning be considered to be the
direct and natural result of the collision between% the
truck and the rickshaw; in other words this collision was
not the proximate and immediate cause of the unfortunate
death of the child. Our attention was also invited by the
appellant’s counsel to the evidence for showing that it was
the truck driver and not the appellant who was to blame for
this accidental collision.
After going through the record to which our attention was
drawn, we cannot help observing that the investigation into
the officers in question was not conducted on scientific
lines and it leaves much to be desired. Our attention was
not drawn to any material on the record showing if the tyre
marks of the two vehicles on the road were carefully
examined with the object of finding out the approximate
speed an& the manner of application of brakes at the time of
the collision. Nor were photographs taken of the position
of the site soon after the unfortunate occurrence which is
usually done in the course of efficient investigations. Our
attention was no doubt drawn to the site-plan, Ext. P.W. 9A
which purports to show that the two vehicles in question
which were coming from opposite directions, started swerving
to their right presumably on seeing each other and that the
collision took place at point ’A’ from where the truck drove
straight on the. road, while the auto-rickshaw was driven
towards its right to the point ’B’ where Smt. Vidya Sharma
was standing with her baby in her arms and her brother by
her side, This plan, however, seems to be a rough plan. Our
attention was not invited to any statement of the witnesses
explaining at whose instance various nothings. were made on
this plan. So far as the witnesses deposing as having seen
the occurrence in question are concerned, their evidence has
always to be carefully scrutinised because such witnesses
only observe accidents after their attention is drawn to the
impact resulting from the collision. Their statement about
the events immediately preceding the occurrence are
generally and to a very large extent influenced by what they
imagine must have happened. After looking at the plan and
going through the evidence to which our attention was drawn,
one forms an impression that both the truck driver and the
appellant were equally guilty of rash and negligent driving.
But since the driver of the truck has been acquitted by the
learned Addl. Sessions Judge and no appeal was preferred
against his acquittal, we have to take his acquittal to be
final. According to the findings of the three courts below
the appellant suddenly turned to the right without paying
proper heed to the truck coming from the opposite
direction and in doing so be was both rash and negligent.
Under Article 136 of the Constitution we should not like to
appraise the evidence for ourselves to see bow
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208
far the concurrent conclusion of the three courts below
upholding the appellant’s act as rash and negligent is
justified. The argument raised before us on behalf of the
appellant on this ’point relates only to the appreciation of
evidence and no serious legal infirmity was brought to our
notice.
The question, however, remains if the death of the baby in
Smt. Vidya Sharma’s arms was the proximate, direct and
immediate consequence of the appellant’s rash and negligent
driving. Looking at Exht. P.W. 9A, it does appear that
after the impact between ,the heavy vehicle like a truck and
a very much lighter auto-rickshaw, the latter must in all
probability, have been so pushed as to make its ,driver lose
all control of the rickshaw. In such circumstances it
could, no doubt, have been contended with a certain amount
of ,reason that the death of the child was a remote and
indirect result of the rash and negligent driving on the
part of the appellant and not an immediate direct, natural
and proximate consequence. But the three courts having so
held, we do not think this Court will be justified in
appraising the evidence for itself on this part of the case
on the peculiar facts and circumstances disclosed on the
printed record. The appellant’s conviction must, therefore,
be upheld in agreement with the conclusions of the three
courts below.
The more difficult question seems to be one of sentence in-
the present case. The accident took place on April 20,
1965, the trial Court convicted the appellant on April 30,
1966 sentencing him to rigorous imprisonment for 6 months
and to a fine of Rs. 500/-. His appeal was dismissed by the
Addl. Sessions Judge on September 7, 1966 and his revision
was disallowed on September 11, 1969. He was ordered to be
released on bail by this Court on February 2, 1970. We are
now in May 1973. The criminal proceedings against the
appellant have thus gone on since April 1965 which means a
little more than 8 years. The circumstances in which the
collision between the truck and the appellant’s scooter
occurred seems prima facie to suggest that they (their
drivers) were both to blame. Penalties designed to deter
crime should be gauged so far as possible to the degree of
social danger that is represented by the crime and its
repetition. To send the appellant back to Jail to serve the
sentence of 6 months after 8 years seems to us to be highly
unjust for the kind of offence which has been upheld against
him by the three courts below. It is unlikely to have any
reformatory effect on him. Harassment of a criminal trial
for more than 8 years and the expense which he must have
incurred, in our opinion, can legitimately be taken into
account when considering the question of sentence to be
imposed by this Court at this point of time. The appellant
is stated to have served out only three weeks of
imprisonment but on a consideration of all the relevant
circumstances of the case we think it would be just and
proper to reduce the sentence of imprisonment to that
already undergone but to increase the sentence of fine from
Rs. 500/- to Rs. 700/-. Out of the fine, if realised, Rs.
500/- should be paid to the mother of the deceased child.
We, however, cannot help expressing our grave con-
209
cern over the inordinate delay in the disposal of criminal
cases including appeals and revisions. If our criminal
justice is to achieve its real purpose and if it is to
inspire the confidence of the people generally, causes for
such delays should be eliminated as early as practicable.
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Law’s delays tend to turn justice sour. The appeal is
allowed in part in the terms stated above.
G.C. Appeal allowed in part.
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