advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, March 30, 2015

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. 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. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. 18. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a non-challant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304A, IPC. We say so with immense anguish. 19. Resultantly, the appeal is allowed to the extent indicated above and the respondent be taken into custody forthwith to suffer the remaining period of sentence.

 

                     IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.520 OF 2015
               [Arising out of S.L.P. (Crl.) No. 5825 of 2014]




State of Punjab                              ... Appellant

                                   Versus

Saurabh Bakshi                                     ... Respondent




                               J U D G M E N T


Dipak Misra, J.


Long back, an eminent thinker and author, Sophocles, had to say:
           "Law can never be enforced unless fear supports them."

      Though the aforesaid statement was made centuries  back,  it  has  its
pertinence, in a way, with the enormous vigour, in today's society.   It  is
the duty of every right-thinking citizen to show veneration to law  so  that
an orderly, civilized and peaceful society emerges.  It has to be  borne  in
mind that law is averse to any kind of chaos.  It is totally  intolerant  of
anarchy.  If any one defies law, he has to face the wrath of law,  depending
on the concept of proportionality that the law recognizes.  It can never  be
forgotten that the purpose of  criminal  law  legislated  by  the  competent
legislatures,  subject  to   judicial   scrutiny   within   constitutionally
established parameters, is to  protect  the  collective  interest  and  save
every  individual  that  forms  a  constituent  of   the   collective   from
unwarranted hazards.  It is sometimes said in an egocentric and  uncivilised
manner that law cannot bind the individual actions which  are  perceived  as
flaws by the large body of people, but, the truth is  and  has  to  be  that
when the law withstands  the  test  of  the  constitutional  scrutiny  in  a
democracy, the individual notions are  to  be  ignored.   At  times  certain
crimes assume more accent and gravity depending on the nature and impact  of
the crime on the society.  No court should ignore the same being  swayed  by
passion of mercy.   It is the obligation of the court to  constantly  remind
itself that the right of the victim, and be it said,  on  certain  occasions
the person aggrieved as well as the society at large can be  victims,  never
be marginalised.  In  this  context  one  may  recapitulate  the  saying  of
Justice Benjamin N. Cardizo "Justice, though due to the accused, is  due  to
the accuser too".   And,  therefore,  the  requisite  norm  has  to  be  the
established principles laid down in precedents.  It is neither to be  guided
by a sense of sentimentality nor to  be  governed  by  prejudices.   We  are
constrained to commence with this prologue because we are required  to  deal
with the concept of adequacy of quantum of  sentence  imposed  by  the  High
Court under Section 304A of the Indian Penal Code  (IPC)  after  maintaining
the conviction of the respondent of the said offence as the prosecution  has
proven the charge that the respondent has caused death  of  two  persons  by
rash and negligent driving of a motor vehicle.
2.    The facts which are necessitous to be stated  are  that  on  14.6.2007
Jagdish Ram and his nephew, Shavinder  Kumar  @  Tinku,  sister's  son,  had
proceeded from Sangrur to Patiala in their Maruti car  bearing  registration
PB-11-M-8050.  The said  vehicle  was  also  followed  by  Ramesh  Chand  in
another Maruti car bearing registration no. PB-09-C-6292.  Be it noted  that
all of them had gone to house of one Des Raj at Sangrur in  connection  with
matrimonial alliance of Shavinder Kumar alias Tinku.  The vehicle  that  was
driven by Tinku was ahead of Ramesh's at a distance of 25/30 kadams.   After
they reached some distance ahead of the bus stand  village  Mehmadpur  about
2.00 p.m. an Indica car bearing registration no. HR-02-6800  came  from  the
opposite side at a very high speed and  the  driver  of  the  said  car  hit
straightaway the car of Jagdish and dragged it to  a  considerable  distance
as a result of which  it  fell  in  the  ditches.   Ramesh  Chand,  who  was
following in his car, witnessed  that  his  brother-in-law  and  nephew  had
sustained number of injuries and their condition was  critical.    A  police
ambulance came to the spot and the injured persons were  taken  to  Rajindra
Hospital, Patiala where Jagdish and Shavinder Kumar succumbed  to  injuries.
In view of the said incident as FIR was lodged by Ramesh Chand,  brother-in-
law  of  Jagdish  and  accordingly  a  crime  under  Section  279/304A   was
registered against the respondent  for  rash  and  negligent  driving.   The
learned  trial  Magistrate,  Patiala  framed  charges   for   the   offences
punishable under Section 279/304A IPC to which the  respondent  pleaded  not
guilty and claimed to be tried.   The prosecution  in  order  to  prove  its
case examined six witnesses.  The learned Addl. Chief  Judicial  Magistrate,
Patiala vide judgment and order dated  23.4.2012  convicted  the  respondent
for the offences punishable under Section 304A  IPC  and  sentenced  him  to
undergo rigorous imprisonment for a period of one year and  pay  a  fine  of
Rs.2000/- with a default clause.  On an appeal being preferred, the  learned
Addl. Sessions Judge, Patiala dismissed the appeal  by  judgment  and  order
dated 6.9.2013.
3.    As the factual matrix would unveil the  respondent  being  grieved  by
the aforesaid conviction and the sentence preferred  Criminal  Revision  No.
2955 of 2013 and the High Court while disposing off  the  Criminal  Revision
addressed to the quantum of sentence and in that context observed that:-
"...the legal heirs of Jagdish Ram have been awarded a sum of  Rs.7,30,000/-
as compensation by the  MACT  and  Rs.12,07,206/-  to  the  legal  heirs  of
Swinder Kumar @ Tinku by the MACT.  The FAO Nos. 5329 and 5330  are  pending
in this Court.  In compliance of order dated 19.9.2013, the  petitioner  has
deposited Rs.85,000/- before the trial court as compensation to be  paid  to
the  LRs  of  deceased  Jagdish  Ram  and  Swinder  Kumar  @   Tinku.    The
compensation shall be divided as Rs.50,000/- to the LRs of Swinder  Kumar  @
Tinku and Rs.35,000/- to the LRs of Jagdish Ram.  The receipt  is  taken  on
record.  As per custody certificate petitioner Saurabh Bakshi has  undergone
24 days as on 30.9.2013 out of one year."

Being of this view the High Court upheld  the  conviction  and  reduced  the
sentence, as has been  stated  before,  to  the  period  already  undergone.
Hence, the State is in appeal.
4.    At this juncture, it is essential to state  that  the  respondent  who
had initially wanted  to  argue  the  matter  in-person  had  agreed  to  be
assisted  by  a  counsel  and  accordingly  this  court  had  appointed  Ms.
Meenakshi Arora, learned senior counsel to assist the court in the matter.
5.    We have heard Mr. V. Madhukar,  learned  Additional  Advocate  General
and Ms. Meenakshi Arora, learned senior counsel for the respondent.
6.    It is submitted by Mr. Madhukar that when  the  prosecution  had  been
able to establish the charges leveled against the respondent  and  both  the
trial court and the appellant court had maintained the  sentence  there  was
no justification on the part of the High Court to  reduce  the  sentence  to
the period already undergone solely on the basis  that  the  respondent  had
paid some compensation.  It is his further submission that keeping  in  view
the gravity of the offence that two  deaths  had  occurred  the  High  Court
should have kept itself alive to the nature of the  crime  and  should  have
been well advised not to interfere with the quantum  of  sentence.   He  has
commended us to the decisions in State of  Punjab  v.  Balwinder  Singh  and
Others[1] and Guru Basavaraj Alias Benne Settappa v. State of Karnataka[2].
7.    Ms. Meenakshi, learned senior counsel, per contra, has contended  that
the respondent was quite young at the time the accident took  place  and  it
may be an act of negligence, but the contributory facet by  the  Maruti  car
driver cannot be ruled out.  That apart, there are mitigating  circumstances
for reduction of the sentence and in the obtaining factual matrix  the  High
Court has appositely adopted corrective machinery which  also  reflects  the
concept of proportionality.  The learned senior counsel  would  also  submit
that when the High Court has exercised the discretion which  is  permissible
under Section 304A this court should be slow to interfere.  It is  urged  by
her that when the compensation had been paid, the High  Court  has  kept  in
view the aspect of rehabilitation of the victim and when that  purpose  have
been sub-served the reduction of sentence should  not  be  interfered  with.
The learned senior counsel has drawn inspiration from Gopal Singh  v.  State
of Uttarakhand[3] and a recent judgment in Criminal Appeal No. 290  of  2015
titled State of M.P. v. Mehtaab[4].
8.    At the outset, it is essential  to  note  that  the  respondent  stood
convicted by the trial court as well by the appellate court.   The  findings
recorded by the said two courts are neither perverse nor did they  call  for
interference in exercise of the revisional jurisdiction.  The High Court  as
we notice has been persuaded by the factum of  payment  of  compensation  by
the respondent herein, amounting to  Rs.85,000/-  to  the  LRs  of  deceased
Jagdish Ram and his nephew and the said compensation had  been  directed  to
be paid by virtue of the order dated 19.9.2013 passed  by  the  High  Court.
It is submitted  by  Ms.  Arora  that  apart  from  the  young  age  of  the
respondent at the time of occurrence the aforesaid aspect  would  constitute
the mitigating factor.  In Mehtaab's case  a  two-Judge  Bench  was  dealing
with the case under Section 304A IPC wherein the  respondent  was  convicted
under Section 304A IPC and 337 IPC and sentenced to  undergo  one  year  and
three  months  rigorous  imprisonment  respectively.   The  High  Court  had
reduced the sentence to 10 days.  It is apt to note here that in  that  case
the deceased had received injuries due to shock of  electric  current.   The
court took note of the submission of the learned counsel for the  State  and
proceeded to opine as follows:-
"7. Learned Counsel for the State submitted that the accused Respondent  had
installed a transformer in his field  and  left  the  electric  wires  naked
which was a negligent act. The deceased Sushila Bai died on account  of  the
said naked wire which had high voltage and was not visible in the dark.  The
offence having been fully proved by the evidence on record, the  High  Court
was not justified in reducing the sentence to 10 days  which  was  not  just
and fair. Even if liberal view on sentence of imprisonment was to be  taken,
the High Court ought to have enhanced the sentence of  fine  and  awarded  a
reasonable compensation as a condition for reduction of sentence.

8. We find force in the submission. It is the duty of  the  Court  to  award
just sentence to a convict  against  whom  charge  is  proved.  While  every
mitigating or aggravating circumstance may be given due  weight,  mechanical
reduction  of  sentence  to  the  period   already   undergone   cannot   be
appreciated. Sentence has to be fair not only to the  accused  but  also  to
the victim and the society. It is  also  the  duty  of  the  court  to  duly
consider the aspect  of  rehabilitating  the  victim.  Unfortunately,  these
factors are missing in  the  impugned  order.  No  cogent  reason  has  been
assigned for imposing only 10 days sentence when an innocent life  has  been
lost."

After so stating the court referred to the decision in Suresh  v.  State  of
Haryana[5] and enhanced  the  compensation  taking  note  of  the  financial
capacity of the accused respondent therein, and directed as follows:-
"10. As already  observed,  the  Respondent  having  been  found  guilty  of
causing death by his  negligence,  the  High  Court  was  not  justified  in
reducing the sentence of  imprisonment  to  10  days  without  awarding  any
compensation to the heirs of the deceased. We are of the view  that  in  the
facts and circumstances of the case, the order of  the  High  Court  can  be
upheld only with the modification that the accused will pay compensation  of
Rs. 2 lakhs to the heirs of the deceased within six months. In  default,  he
will undergo RI for six months. The compensation of Rs.  2  lakhs  is  being
fixed having regard to the limited financial resources of  the  accused  but
the said compensation may not be adequate for the heirs of the deceased.  In
such situation, in addition to the compensation to be paid by  the  accused,
the State can be required to pay compensation Under  Section 357-A.  As  per
judgment of this Court in Suresh (supra), the scheme adopted  by  the  State
of Kerala is applicable to all the States and the said scheme  provides  for
compensation upto Rs. 5 lakhs in the case of death. In the present case,  it
will  be  appropriate,  in  the  interests  of  justice,  to  award  interim
compensation of Rs. 3 lakhs Under Section 357-A payable  out  of  the  funds
available/to be made available by the  State  of  Madhya  Pradesh  with  the
District Legal Services, Authority, Guna. In case, the accused does not  pay
the compensation awarded as above, the State of Madhya Pradesh will pay  the
entire amount of compensation of Rs.  5  lakhs  within  three  months  after
expiry of the time granted to the accused."

9.    In our considered view the  decision  in  the  said  case  has  to  be
confined to the facts of that case.  It cannot be said as a  proposition  of
law  that  whenever  an   accused   offers   acceptable   compensation   for
rehabilitation of a victim, regardless of the gravity  of  the  crime  under
Section 304A, there can be reduction of sentence.
10.   In this  context,  we  may  refer  with  profit  to  the  decision  in
Balwinder Singh (supra) wherein the High Court had allowed the revision  and
reduced the quantum of sentence awarded by the  Judicial  Magistrate,  First
Class, for the offences punishable under Section 304A, 337, 279  of  IPC  by
reducing the sentence of imprisonment already undergone  that  is  15  days.
The court referred to the decision in Dalbir Singh v.  State  of  Haryana[6]
and  reproduced  two  paragraphs  which  we  feel  extremely  necessary  for
reproduction:-
"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 [pic]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."

11.   In B. Nagabhushanam  v.  State  of  Karnataka[7]   the  appellant  was
directed to undergo simple imprisonment for  six  months  for  the  offences
punishable under Section 304A IPC.  The two-Judge Bench referred  to  Dalbir
Singh (supra) and declined to interfere with the quantum  of  sentence.   Be
it stated, in the  said  case  a  passage  from  Ratan  Singh  v.  State  of
Punjab[8] was quoted:-
"Nevertheless, sentencing must have a policy of correction. This driver,  if
he 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.  Punishment  in  this  area  must,   therefore,   be
accompanied by these components. The State, we hope, will  attach  a  course
for better driving together with a livelier sense  of  responsibility,  when
the punishment is for driving offences. Maybe, the State  may  consider,  in
case of men with poor families, occasional parole  and  reformatory  courses
on appropriate application, without the rigour of the old  rules  which  are
subject to Government discretion."

12.   In Guru Basavaraj (supra) the  appellant  was  found  guilty  for  the
offences punishable under Sections 337, 338, 279 and 304A IPC and  sentenced
to suffer simple imprisonment of six months and to pay a fine  of  Rs.2000/-
and in default to suffer simple imprisonment  of  45  days.   The  two-Judge
Bench after placing reliance on State of  Karnataka  v.  Krishna[9],  Sevaka
Perumal v.  State  of  T.N.[10],  Jashubha  Bharatsinh  Gohil  v.  State  of
Gujarat[11], State of Karnataka v. Sharanappa Basanagouda Aregoudar[12]  and
State of M.P. v. Saleem[13] opined that there is a constant concern  of  the
court 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.  There  has  been  emphasis  on  the  concern  to
impose adequate sentence for the offence punishable under Section 304A  IPC.
 The Court  has  observed  that  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
emphasised 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)  CrPC  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. Thereafter, the Court proceeded to observe:-
"32. 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.

33. 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 [pic]which includes adequate punishment cannot be lightly ignored."

Being of this view, the Court declined to interfere.

13.   In Siriya v. State of M.P.[14] 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 cornerstone 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 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."

14.    In  Alister  Anthony  Pareira  v.  State  of  Maharashtra[15]   while
emphasizing on the inherent danger the Court observed thus:-
"39. Like Section 304-A, Sections 279, 336, 337 and 338  IPC  are  attracted
for only the negligent or rash act. The scheme of Sections 279, 304-A,  336,
337 and 338 leaves no manner of  doubt  that  these  offences  are  punished
because of the inherent danger of the acts  specified  therein  irrespective
of knowledge or intention to produce the  result  and  irrespective  of  the
result. These sections make punishable the acts themselves which are  likely
to cause death or injury to human life."

15.   While dealing with the policy of sentencing  in  Gopal  Singh  (supra)
the two-Judge Bench quoted a paragraph from Shailesh  Jasvantbhai  v.  State
of Gujarat[16] which is as follows:-
"7. The law regulates social interests, arbitrates  conflicting  claims  and
demands. Security of persons and property of  the  people  is  an  essential
function of the State. It  could  be  achieved  through  instrumentality  of
criminal law. Undoubtedly, there is a cross-cultural conflict  where  living
law must find answer to the new challenges and the courts  are  required  to
mould the sentencing  system  to  meet  the  challenges.  The  contagion  of
lawlessness would undermine social order and lay it in ruins. 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  cornerstone  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  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.  The
facts and given circumstances in each case, the nature  of  the  crime,  the
manner in which it was planned and committed, the motive for  commission  of
the crime, the conduct of the accused, the nature of weapons  used  and  all
other attending circumstances are relevant facts which would enter into  the
area of consideration."

In the said case it has been laid as follows:-
"18. Just punishment is  the  collective  cry  of  the  society.  While  the
collective cry has to be kept uppermost  in  the  mind,  simultaneously  the
principle of proportionality between the  crime  and  punishment  cannot  be
totally brushed aside. The principle of just punishment is  the  bedrock  of
sentencing in respect of a criminal offence.  A  punishment  should  not  be
disproportionately  excessive.  The  concept  of  proportionality  allows  a
significant discretion to the Judge  but  the  same  has  to  be  guided  by
certain principles.  In  certain  cases,  the  nature  of  culpability,  the
antecedents of the [pic]accused, the factum of age, the potentiality of  the
convict to become a criminal in future, capability of  his  reformation  and
to lead an acceptable life in the prevalent milieu, the effect -  propensity
to become a social threat or nuisance, and sometimes lapse of  time  in  the
commission of the crime and his conduct in the interregnum bearing  in  mind
the nature  of  the  offence,  the  relationship  between  the  parties  and
attractability of the doctrine of bringing the convict  to  the  value-based
social mainstream may be the guiding factors. Needless to  emphasise,  these
are certain illustrative aspects put forth in a  condensed  manner.  We  may
hasten to add that there  can  neither  be  a  straitjacket  formula  nor  a
solvable theory in mathematical exactitude. It would  be  dependent  on  the
facts  of  the  case  and  rationalised  judicial  discretion.  Neither  the
personal perception of  a  Judge  nor  self-adhered  moralistic  vision  nor
hypothetical apprehensions should be allowed to have  any  play.  For  every
offence, a drastic measure cannot be  thought  of.  Similarly,  an  offender
cannot be allowed to be treated  with  leniency  solely  on  the  ground  of
discretion  vested  in  a  court.  The  real  requisite  is  to  weigh   the
circumstances in which the crime has been committed  and  other  concomitant
factors which we have indicated hereinbefore and also have been stated in  a
number of pronouncements by this Court. On such  touchstone,  the  sentences
are to be imposed. The discretion should not be in the realm  of  fancy.  It
should be embedded in the conceptual essence of just punishment."

16.   In Shyam Narain v. State (NCT of Delhi) [17]  though  in  a  different
context while dealing with the issue of sentencing it has been  stated  that
primarily it is to be borne in mind that sentencing for any  offence  has  a
social goal. Sentence is to be imposed regard being had  to  the  nature  of
the offence and the manner in which the  offence  has  been  committed.  The
fundamental purpose of imposition of sentence  is  based  on  the  principle
that the accused must realise that the crime committed by him has  not  only
created a dent in his life but also a concavity in the  social  fabric.  The
purpose of just punishment is  designed  so  that  the  individuals  in  the
society which ultimately constitute the collective do not  suffer  time  and
again for such crimes. It serves as a deterrent.  True  it  is,  on  certain
occasions, opportunities  may  be  granted  to  the  convict  for  reforming
himself but it is equally true that [pic]the  principle  of  proportionality
between an offence committed and the penalty  imposed  are  to  be  kept  in
view. While carrying out this complex exercise,  it  is  obligatory  on  the
part of the court to see the impact of the  offence  on  the  society  as  a
whole and its ramifications on the  immediate  collective  as  well  as  its
repercussions on the victim.
17.   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.   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.  In  our  view,  the  sentence  of  one  year  as
imposed by the trial Magistrate which has been  affirmed  by  the  appellate
court should be reduced to six months.
18.   Before parting with the case we are compelled to  observe  that  India
has a disreputable record  of  road  accidents.   There  is  a  non-challant
attitude among the drivers.  They feel that they are the  "Emperors  of  all
they survey".  Drunkenness contributes to careless driving where  the  other
people become their prey.  The poor feel that their lives are not safe,  the
pedestrians  think  of  uncertainty  and  the  civilized  persons  drive  in
constant fear but still apprehensive about the  obnoxious  attitude  of  the
people who project themselves as "larger  than  life".   In  such  obtaining
circumstances,  we  are  bound  to  observe  that   the   lawmakers   should
scrutinize, re-look and re-visit the  sentencing  policy  in  Section  304A,
IPC.  We say so with immense anguish.
19.   Resultantly, the appeal is allowed to the extent indicated  above  and
the respondent be taken into  custody  forthwith  to  suffer  the  remaining
period of sentence.


                                  ........................................J.
                                 [DIPAK MISRA]



                                  ........................................J.
                                            [PRAFULLA C. PANT]

NEW DELHI
MARCH 30, 2015.

-----------------------
[1]    (2012) 2 SCC 182
[2]    (2012) 8 SCC 734
[3]    (2013) 7 SCC 545
[4]    2015 (2) SCALE 386
[5]    Crl Appeal No. 420 of 2012, decided on 28.11.2014
[6]     (2000) 5 SCC 82
[7]    (2008) 5 SCC 730
[8]    (1979) 4 SCC719
[9]    (1987) 1 SCC 538
[10]   (1991) 3 SCC 471
[11]   (19940 4 SCC 353
[12]   (2002) 3 SCC 738
[13]   (2005) 5 SCC 554
[14]   (2008) 8 SCC 72
[15]   (2012) 2 SCC 648
[16]   (2006) 2 SCC 359
[17]   (2013) 7 SCC 77

-----------------------
24

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.