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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 205 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 207 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. 210