HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT

JAIPUR

S.B. Criminal Revision Petition No.92 /2003

Bhanwar Lal S/o Shri Prahlad, by caste Bairwa, R/o Godam Ki

Talai, Jhalawar (presently confined at District Jail, Jhalawar).

----Accused-Petitioner

Versus

State of Rajasthan through Public Prosecutor

----Respondent

_____________________________________________________

For Appellant(s) : Mr.Harendra Sinsinwar

For Respondent(s) : Mr.B.N. Sandhu, Public Prosecutor

_____________________________________________________

HON'BLE THE CHIEF JUSTICE

Judgment

18/07/2017

1)

Heard learned counsel for the parties. Perused the

record of the trial court.

2)

Convicted for offence committed punishable under

Section 279 and 304A IPC. The petitioner has been sentenced to

undergo three months RI for offence punishable u/S.279 IPC and

one year RI for offence punishable u/S.304A IPC. The accident

took place in the night at 8.45 p.m. on 10/07/1995. the place of

the accident is the State Highway connecting the city of Kota to

Jaipur.

3)

I find that both the courts below have overlooked the

Site Plan Ex.P.2. As per the same, the deceased who was

travelling in a Jeep had parked the Jeep in the middle of the

Highway. The place where the accident took place has been

marked as ‘XA’. It shows that the deceased who was driving the

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[S.B.Cr.Rev.-92/2003]

Jeep got down after parking the Jeep at Point ‘C” and was moving

in the Northern direction i.e. towards the other side of the road.

The petitioner who was riding on a motorcycle collided when the

deceased was crossing the road.

4)

The case of the petitioner was that the deceased

suddenly parked the Jeep on the middle of the road and darted

across the road and it being night, the motorcycle hit the

deceased.

5)

There is no discussion in the impugned judgment of

this aspect of the matter.

6)

The relevance thereof would be contributory negligence

of the deceased. Whilst it may be true that it being night the

petitioner was expected to be driving carefully and would also be

responsible for what happened.

7)

The age of the petitioner at relevant time was 18 years.

8)

The question which arises is whether the petitioner

would be entitled to probation or reduction in the sentence.

9)

The imposition of an appropriate sentence as also grant

of benefit of probation under Section 4 of the Probation of

Offenders Act, 1958 to offenders convicted for an offence

punishable under Section 304A IPC is the subject matter of

various decisions passed by the Supreme Court, and I find a

divergence in the view taken.

10)

In the decision reported as 1981 (Supp) SCC 17 Aitha

Chander Rao V/s State of Andhra Pradesh, noting that there was

an element of contributory negligence from the side of the

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[S.B.Cr.Rev.-92/2003]

deceased, the appellant, who was sentenced to undergo RI for a

period of two years for an offence punishable under section 304A

IPC by the trial court, affirmed by the appellate court and not

interdicted by the High Court, was given the benefit of probation

by the Supreme Court.

11)

In the decision reported as 1995 Supp (2) SCC 385

A.P.Raju V/s State of Orissa, for the offence punishable under

Section 304A IPC benefit of probation was granted in view of the

fact that between the date of the accident which was 20.5.1979

and the decision of the Supreme Court dated 16.2.1994, 15 years

had elapsed. Meaning thereby as per the Supreme Court no

purpose would be served to require A.P.Raju to suffer the sentence

imposed.

12)

A discordant note was struck in the decision reported

as (2000) 5 SCC 82 Dalbir Singh V/s State of Haryana. The

argument that long period of time had elapsed between the date

of the accident and the decision by the Supreme Court was

rejected as entitling grant of probation on the reasoning that there

was an alarming rise in road accidents and that the