K.N. Saikia, J.
1. The petitioner herein impugns the judgment and order dated 7-2-1985 passed in appeal by the Sessions Judge, Cachar and Karimganj at Silchar upholding his conviction under Section 279/304-A Indian Penal Code but reducing the sentence to imprisonment for 3 months and to pay a fine of Rs. 1000/- in default simple imprisonment for two months under Section 304-A, and the imprisonment for 2 months under Section 279 Indian Penal Code, both the sentences being ordered to run concurrently.
2. On 30-10-1979 at about 5.30 p.m. the accused petitioner Sri Chiram Mukta Singh while driving the line Bus No. 4331 towards Udharbond from Silchar, knocked down a girl named Laila Begum Choudhury who died on the spot. He did not stop the vehicle on the spot but drove it towards Udharbond Police Station where he surrendered.
3. The trial court considering the evidence and materials on record convicted him under the aforesaid sections and sentenced him to R.I. for 6 months under Section 279 and to. R.I. for 2 years under Section 304-A Indian Penal Code. Before the appellate court the learned Counsel for the appellant urged only the question of sentence. Me submitted that the prison term was not compulsory under Sections 279/304-A of the Indian Penal Code and accordingly prayed for altering the sentence of imprisonment to that of fine only. The appellate court, however, maintained the conviction under both the Sections but reduced the sentences as stated above.
4. Mr. B.L. Singh, learned Counsel for the petitioner submits that prosecution case was that the girl was knocked down on the grassy portion of the road while the defence case was that the girl was on the middle of the road. The knocking down of the girl and her death thereafter are not in dispute. Mr. Singh, however, submits that the petitioner was not rash and negligent in driving as he was driving at the speed of only 40/50 miles per hour. The petitioner before the appellate court urged only the question of sentence and impliedly he did not have any other ground of appeal. Under the facts and circumstances of the case, the girl having been knocked down and killed on the road can it be said that the learned courts below wrong in finding the petitioner guilty under the' above sections and imposing the sentence.
5. Mr. Singh relies on Mohammad Saffique v. State 1983 Cr.L.J. 535 wherein it was held that driving at high speed itself is not sufficient to hold that a driver is rash or negligent. To constitute offence under Section 304-A the act causing death must be the cause causans. There is no dispute about this proposition of law. The fact that the bus was driven at the speed of 40/50 miles per hour would not make the petitioner guilty of rash and negligent driving. What made the petitioner guilty was the knocking down and running over of the girl on the grassy portion of the road. If the bus was not driven rashly and negligently it could not have knocked down the girl on the grassy portion of the road or even in the middle portion of the road. The principle of reships loquitur may be applicable to such a case. Mr. Singh submits that the girl was actually found in the middle of the road. Even then there was need for care and caution on the part of the driver. However, counsel does not deny that the driver did not halt the bus inspite of the girl being knocked down but instead he drove the vehicle to the Udharbond Police Station straight way and surrendered there. Of course this shows that the petitioner did not try to conceal his guilt. It might be out of fear of being assaulted and the bus being damaged that he did not step the bus at the spot and moment of the accident. He deserves some consideration on this ground.
6. In Rattan v. State of Punjab : 1980CriLJ11 where rash and negligent driving of the truck driver had resulted in a fatal accident, the Supreme Court held that when life had been lost, no compassion could be shown and refused to interfere with the sentence of 2 years R.I. awarded to the truck driver though he had to maintain a large family and the owner of the truck had 'left his family in the cold'. However, it was observed that sentencing must have a policy of correction and that the victimisation of the family of the convict might well be a reality and was regrettable. Krishna Iyer, J speaking for the court observed that it was a weakness of our jurisprudence that the conviction of the crime, and the distress of the dependants of the prisoner, do not attract the attention of the law' and that victim reparation was still the vanishing point of our criminal law, and the deficiency could be rectified by the legislature. The only scope for modulation of punishments in this case is in that neither under Section 279 I.P.C. nor under Section 304A I.P.C. imprisonment is inevitable. It can be imprisonment within the prescribed duration or fine within prescribed time or both. Within this range the Court can choose the penalty to suit the offence and the offender.
7. In Sayad v. State of Karnataka : 1979CriLJ1374 it was held that if the accident occurred due to error of judgment and inspire of the driver adopting the best course according to his knowledge and belief, the principle of reships loquitur may not be attracted unless there is clear proof of negligent or rash driving. In Jagadish Chander v. State of Delhi 1973 S.C. 2127 where there was a concurrent finding of fact as to rash and negligent driving of an auto rickshaw by the accused while colliding with a truck and dashing against a child whose death was the direct result, Supreme Court reduces the sentence from 6 months to the period already undergone, which meant only 3 weeks, as the proceeding went on for 6 years. The reasons are not far to seek. In such a case there is split-second error of judgment on the part of the driver, and if he is not found to have been rash or negligent. He should be judged accordingly. Prolonged proceeding itself was punitive effect on the accused.
8. In the instant case the occurrence look place on 30-10-79 and the proceedings continued for about six years. The learned Additional Judge has reduced the sentences to two months simple imprisonment under Section 279 and three months simple imprisonment under Section 304A with a fine of Rs. 1000/-. The sentences have been ordered to run concurrently. The petitioner is stated to be about 30 years old. There is nothing to show that this was not his first offence of the kind. There is no doubt that his imprisonment for the short period will have manifold effects. The choice of an appropriate sanction out of many permitted by law in a given situation is of enormous consequence to the individual offender, as is also to the society at large. The fitting of the sanction to the offender as also to the offence is a cherished ideal in penology. We have to take the corrective approach and modulate the sentence with that purposes. Ends of justice may be met and recurrence of such negligent acts may be prevented, if the petitioner is not made to suffer imprisonment for the first time but is made to pay fine instead, in so far as it is permitted by law. Keeping the above principles and taking a corrective approach. I am inclined to order for this time that instead of imprisonment, the petitioner is to pay a fine of Rs. 1000/- under Section 279 and another Rs. 1000/- under Section 304A, in default to suffer simple imprisonment for two months each on either counts. The default sentences will run consecutively. It is ordered accordingly. Out of the fines realised, Rs. 1000/- shall be paid to the parents of the deceased child as reparation. The petitioner shall be severaly punished if he repeats such offences in future.
9. The petition is accordingly rejected subject to modification of the sentence as stated above.