Bombay High Court
State Of Maha vs Mahadev Vitthal Bansode on 25 April, 2016
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.592 OF 2003
The State of Maharashtra,
Through the City Police
Station Officer, Bhusawal
...APPELLANT
(Ori. Complainant)
VERSUS
Madhav Vitthal Bansode,
Age-57 years,
R/o-15 Blocks Bhusawal,
Tq-Bhusawal, Dist-Jalgaon.
...RESPONDENT
(Ori. Accused)
...
Mr. S.M. Ganachari, A.P.P. for Appellant.
Mr.Vijay Y. Patil Advocate for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 11TH APRIL,2016
DATE OF PRONOUNCING JUDGMENT: 25TH APRIL, 2016
JUDGMENT :
1. This Appeal by State has been filed
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against the orders passed by the Joint Judicial
Magistrate, First Class, Bhusawal on 31st May 2003
in Summary Criminal Case No.32 of 1999 whereby the
trial Court, while convicting the Respondent -
accused for offence under Section 184 of the Motor
Vehicles Act, 1988, instead of passing sentence of
imprisonment or fine, directed his release on the
bond of Rs.5000/- and the bond of "one month's
period contemplated in Section 4" of the Probation
of Offenders Act, 1958 ("Probation Act" in brief).
The present Appeal was filed by the State seeking
leave under Section 377 (1) of the Code of
Criminal Procedure, 1973 ("Cr.P.C." in brief),
with prayer to enhance the sentence awarded by the
J.M.F.C. The Appeal was admitted on 5th October
2005.
2. In brief, the case is as follows:-
(A). On 17th December 1998 at about 4.15 p.m.,
complainant Raman Chaudhari (PW-1) filed F.I.R.
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with Bhusawal City Police Station informing that
when he was at his tailor's shop in the market, he
came to know that Bhanudas s/o Gopal, the brother
of the complainant, had met with an accident near
Hambardikar Bakery. He went there. School Bus No.
MH-19/2446 was standing there on the road. There
was blood near the rear left wheel of the bus.
There was big crowd. He came to the hospital and
found that body of Bhanudas, a 13 years old boy
was lying on the table and that the boy was dead.
The boy was going to attend classes on cycle when
the incident had occurred.
(B). Police recorded Spot Panchnama (Exhibit
18) at about 6.00 - 6.30 p.m. The incident had
occurred in Hambardikar square. The child had come
from South towards North and was approaching the
square when the incident occurred. Police recorded
statements of witnesses. Other necessary steps as
required by investigation were taken. After
completing the investigation, charge-sheet came to
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be filed.
3. The J.M.F.C. explained particulars for
offence under Section 279, 304-A of the Indian
Penal Code, 1860 ("I.P.C." in brief). Particulars
were also explained about Section 184 of the Motor
Vehicles Act. The accused pleaded not guilty. The
prosecution brought on record evidence of five
witnesses. After holding the trial, the Magistrate
acquitted the accused of offence under Section 279
and 304-A of I.P.C. but convicted him under
Section 184 of the Motor Vehicles Act.
4. Against the conviction under Section 184
of the Motor Vehicles Act, the accused did not
file any Appeal. The State has not filed this
Appeal against the acquittal under Section 279 and
304-A of I.P.C. Before proceeding to discuss the
prayer of the State to enhance the sentence, it
would be appropriate to make a quick reference to
the evidence which has come on record.
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5. There is evidence of PW-1 Raman Chaudhari
- the complainant, uncle of the victim. There is
also evidence of PW-3 Gopal Chaudhari, father of
the victim. The evidence of these witnesses shows
that PW-4 Shaligram Teli who happens to be
acquainted with them, reached the spot of incident
soon after the incident and on identifying the
victim, had informed the brothers. The evidence is
that these brothers rushed to the spot and having
seen the spot, proceeded to the hospital to find
the victim dead. PW-2 Mahadeo Bonde is Panch of
the spot who proved Panchnama Exhibit 18. PW-5
Kailas Barhate is the eye witness.
6. Section 184 of the Motor Vehicles Act
reads as under:-
"184. Driving dangerously.- Whoever drives
a motor vehicle at a speed or in a manner
which is dangerous to the public, having
regard to all the circumstances of the
case including the nature, condition and
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use of the place where the vehicle is
driven and the amount of traffic which
actually is at the time or which might
reasonably be expected to be in the place,
shall be punishable for the first offence
with imprisonment for a term which may
extend to six months or with fine which
may extend to one thousand rupees, and for
any second or subsequent offence if
committed within three years of the
commission of a previous similar offence
with imprisonment for a term which may
extend to two years, or with fine which
may extend to two thousand rupees, or with
both."
7. Keeping in view this Section, it would be
appropriate to visualize the spot and
circumstances of the case, nature, condition and
use of the place concerned where the vehicle was
driven, including the traffic.
8. The Spot Panchnama shows that it was
Bhusawal - Yawal road proceeding from the side of
Pani Gate to Gandhi Statute. It was proceeding
from South to North. It was 30 ft. broad road with
5 X 5 Kacchha portion. The bus, at the time of
Panchnama, was standing towards East of one Hemraj
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Restaurant, on main road at 10 ft. On the cleaner
side, from rear wheel towards South on main road
at about 2 ft., there were blood stains. From spot
at about 3 ft. Atlas Gold Line cycle was lying
with books scattered and school bag.
9. Apart from above, in the evidence of
virtually all the witnesses, the accused himself
brought on record various details of the Spot
Panchnama. To avoid repetition, reference to even
evidence of PW-5 Kailas Barhate would be
sufficient. Evidence of PW-5 Kailas is that he was
working at Hambardikar medical, which is situated
near Hemraj Hotel. According to him, the incident
took place at about 3.45 p.m. by the side of
Hemraj Hotel. He deposed that he saw the MSEB
school bus coming from railway bridge side. He
deposed that the bus gave dash to one cyclist
school going boy and the boy was thrown by the
side of the bus from cleaner side. Blood came out
from the mouth of the boy. According to this
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witness, at that concerned time, he was present in
the shop. He deposed that the said bus was coming
in fast speed and it dashed from rear portion of
the cleaner side.
. Evidence shows that the concerned
Hambardikar square has branches going North,
South, East, West. On East, road goes to DRM
Office. On West, road goes towards Satara. Towards
North, it goes to Court. To the South of the
square at some distance it appears that Satara
bridge comes down and then there is an incline
towards the square. The said road coming to the
bridge appears to be coming from Yawal.
. The evidence of PW-5 (and also other
witnesses) shows that the medical store where this
witness was working, is towards Southern side of
the square. PW-5 admits that there is railway
station road and road approaching to Mamaji
Talkies going from near their medical shop. There
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is also Ajanta Lodge towards Western side. Witness
admitted that there are flower shops near his
medical shop on Mamaji Talkies road. There were
two Pan shops at the corner of Kachane building.
The width of the road was narrow at the time of
incident. There was electric pole at the corner of
the hotel and Kachane building was to the West of
the electric pole. There was one cycle repairing
shop near the electric pole. There were two Pan
Shops and cycle repairing shop at the corner of
Dutt Hotel. All these shops were on the road.
There were railway quarters, medical stores and
hand-loom shops and other shops on the other side
of the road. There is always crowd in the said
shops. There was one vegetable shop to the East-
North corner of the building. Apart from medical
stores, there were beer bars near the building.
The witness (PW-5) admitted that traffic coming
from railway station side, Court side and Mamaji
Talkies side flows by the railway bridge road
only. The railway bridge is narrow. Near the
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medical shop of this witness there is Hambardikar
Bakery and another hotel. The witness admitted
that steps of all these shops were "on the road".
Witness admitted that there is downward slope
towards railway bridge and Court side road is
ascending. Witness admitted that generally
vehicles coming from bridge side are in slow speed
because of the slope of the road. Witness admitted
that road condition was bad and there were ditches
on the road.
10. The above evidence which was brought on
record by accused himself and regarding which
there is no dispute, shows that it was a congested
square with stairs of the shops coming down
directly on the road and vegetable shops and Pan
Shops and other vendors crowding the place and it
was a main square with heavy traffic. The time was
also of 3.45 p.m. which are working hours. At such
spot where generally the vehicles moved slow, the
evidence of PW-5 is that the bus driven by accused
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came in fast speed. Details of the Spot Panchanama
and the exact place where by the dash of the bus
the cycle was thrown, shows that in such crowed
place, the victim was going on cycle and received
dash from rear left side portion of the bus. The
trial Court while dealing with Sections 279 and
304-A of I.P.C. observed that at the spot there is
always crowd and in such situation it was highly
improbable (?) that one should drive in rash
speed. Discussing the evidence, trial Court
concluded that rashness or negligence was not
established. I need not go into those findings as
the acquittal on that count is not challenged.
However, the same Judge while dealing with the
evidence of PW-5 observed that the evidence of PW-
5 shows that the vehicle was coming in "some
what?" more speed than expected in such crowed
place. It observed that mere speed is not criteria
to connect the accused with the offence under
Section 279 of I.P.C., but it could be considered
for Section 184 of the Motor Vehicles Act. The
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trial Court accordingly convicted the accused
under Section 184 of the Motor Vehicles Act.
11. While arguing before me, the learned
counsel for the Respondent - accused did not
question the correctness of the conviction under
Section 184 of the Motor Vehicles Act. He merely
submitted that the accused is a person who has
served in military. According to him the incident
was unfortunate. He stated that it was first
incident and accused daily used to carry children.
According to him, the trial Court rightly gave
benefit of The Probation of Offenders Act to the
accused.
12. The learned A.P.P. has however drawn my
attention to the above evidence and observations
of the trial Court to submit that in such a
serious matter where in such crowded place,
admittedly there was evidence on record showing
that the accused drove the bus in a fast speed
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which was inappropriate at the place concerned,
the accused has been let off lightly. According to
learned A.P.P., this was not a fit case looking to
the facts, to grant benefit of the Probation of
Offenders Act. According to him a little boy
hardly 13 years of age lost his life and although
the trial Court found that in the factual
situation the speed and manner in which the
vehicle was driven was dangerous, and accused was
liable to be punished under Section 184 of the
Motor Vehicles Act, still virtually no punishment
was awarded.
13. The present Appeal is under Section 377
of the Cr.P.C. for enhancing sentence. What the
trial Court did is that after convicting the
accused, it simply passed orders -
"-------- instead of passing any sentence
of imprisonment or fine, he be released
on the bond of Rs. 5000/- and the bond of
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one month's period contemplated in
Section 4 of the Probation of Offenders
Act."
. Where one month is contemplated, is not clear.
14. Section 4 of the Probation of Offenders
Act, 1958 in sub-Section (1) requires the Court
that:
"when any person is found guilty of
having committed an offence not
punishable with death or imprisonment for
life and the Court by which the person is
found guilty is of opinion that, having
regard to the circumstances of the case
including the nature of the offence and
the character of the offender, it is
expedient to release him on probation of
good conduct, then, notwithstanding
anything contained in any other law for
the time being in force, the court may,
instead of sentencing him at once to any
punishment direct that he be released on
his entering into a bond, with or without
sureties, to appear and receive sentence
when called upon during such period, not
exceeding three years, as the court may
direct, and in the meantime to keep the
peace and be of good behaviour."
(Emphasis supplied)
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. Sub-Section (2) of Section 4 of the
Probation of Offenders Act requires that the court
shall take into consideration the report, if any,
of the probation officer concerned in relation to
the case. In the present matter, the record of the
trial Court does not show that at any time the
report was called. The Court did not resort to
sub-Section (3) of Section 4 also where
supervision orders could be passed. I have gone
through the original record of the trial Court.
The Roznama shows that on 31st May, 2003 the Court
passed the Judgment. The operative part of the
Judgment has been reproduced in the Roznama. The
Roznama was then closed and shut. The record does
not show that any such bond as mentioned in the
operative order was even taken. The operative
order of the trial Court gives a feeling that
trial Court had not even read the provisions
properly. There is nothing like a bond of one
month's period contemplated. If the record is
perused, it can be said that although the trial
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Court convicted the accused under Section 184 of
the Motor Vehicles Act, it practically let off the
accused without passing any sentence and even
without taking any bonds. At least the record is
totally silent.
15. Now, the question before me is the
applicability of Section 377 of Cr.P.C. Section
377 of Cr.P.c. relates to inadequate sentence.
Here no sentence has been passed. But the order is
under the Probation of Offenders Act. As per Sub-
Section (2) of Section 11 of the Probation of
Offenders Act, where an order under Section 3 or
Section 4 is made by any court trying the offender
(other than a High Court), an appeal shall lie to
the court to which appeals ordinarily lie from the
sentences of the former court. The present
conviction is of 2003. Section 377 of Cr.P.C.
before amendment vide Act 25 of 2005 provided for
an appeal to the High Court against the sentence
on the ground of its inadequacy. Thus, although
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the present Appeal tendered relied only on Section
377 of Cr.P.C., I treat the appeal as one under
Sub-Section (2) of Section 11 of the Probation of
Offenders Act, 1958 read with Section 377 of
Cr.P.C. Support, if any, though does not appear to
be necessary, can be taken even from Judgment in
the matter of State (Union Territory), Chandigarh
vs. Manjit Singh and others, reported in 1983 CRI.
L.J. 1401.
16. Coming to the sentence, the Judgment of
the trial Court shows that for the lenient
approach it took into consideration the arguments
for the accused that he was a retired military
person who spent life in discipline and the
incident occurred because of the crowded place as
well as the fact that it was first incident. He
was in permanent service of M.S.E.B. The Court
observed that the sentence of imprisonment or fine
will ruin the future career of the matured bus
driver of the school bus and thus resorted to give
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benefit of Probation of Offenders Act. Thus the
trial Court was concerned with the future career
of the accused but ignored the plight of the
victim and the future of family of the victim and
that it is a menace that vehicles should be driven
in high speed in such crowded places, un-mindfully
of the surrounding circumstances. The trial Court
had not collected any information about the
accused by calling report as contemplated by sub-
Section (2) of Section 4 of the Probation of
Offenders Act. Looking to the facts of the case, I
do not concur with the trial Court regarding it
resorting to an order purporting to be under
Section 4 of the Probation of Offenders Act
without ensuring any compliance as required by
law. The order on this count deserves to be
quashed and set aside.
17. Now, if sentence under Section 184 of the
Motor Vehicles Act is to be passed, Section says
that there can be imprisonment for a term which
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may extend to six months "or" with fine which may
extend to one thousand rupees. Thus the option is
only in alternative. The difficulty before me is
that the incident occurred as long back as on 17th
December, 1998. Now, we are in 2016. After about
18 years, when the Respondent-accused must have
now retired from M.S.E.B. also and should be above
70 years old now, would it be appropriate to send
him to jail ? If I pick the other option of fine,
it can extend only to Rs.1000/-.
18. Looking to the facts of the matter, it
appears to me appropriate that compensation should
be awarded. I would thus, resort to first option
but make it nominal and as the fine would not form
part of the sentence, invoking sub-Section (3) of
Section 357 of Cr.P.C., compensation would be
necessary to be directed.
19. The compensation has to be reasonable and
not arbitrary. As mentioned, I am keeping in view
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the fact that the accused must be quite old by now
as in 1998 he was shown to be 57 years old. He
served military and then was in permanent
employment of M.S.E.B. He must have retired and
getting pension. The compensation cannot be very
high. At the same time, keeping in view the
tragedy suffered by PW-3 Gopal Ramdas Chaudhari of
having lost his son hardly 13 years of age, some
compensation would be appropriate.
20. In this matter I find myself in a fix. It
is difficult to send accused to jail looking to
his advance age and other factors like no other
earlier criminal antecedents. There is constraint
even as regards the compensation which he can be
made to pay looking to the fact that he must have
retired quite some time back. In my view father of
the victim should have been given compensation of
at least Rs.1 Lakh at the time concerned. But now,
the accused being retiree, there is difficulty.
These factors are on one side and on the other is,
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the victim whose father must have suffered trauma
due to loss of his little son of 13 years of age.
There is definitely loss to the family and the
family needs to be rehabilitated for the injury
and loss caused to it. I propose to invoke Section
357-A of Cr.P.C. for awarding necessary
compensation by the District Legal Services
Authority, as the compensation I am awarding under
Section 357 of Cr.P.C. is really not adequate. The
State must pay the compensation as may be decided
by District Legal Services Authority as State is
also responsible for letting exist the utter chaos
in the street as seen above in which citizens are
put to constant risks.
21. I thus, proceed to pass the following
order:
O R D E R
(I) The Appeal is allowed.
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(II) Part of the order of the trial
Court where instead of passing any
sentence of imprisonment or fine it
was directed to release the accused
on bond of Rs.5000/- and the bond
under Section 4 of the Probation of
Offenders Act, is quashed and set
aside.
. Instead, it is directed that the
accused having been convicted under
Section 184 of the Motor Vehicles
Act, is sentenced to suffer simple
imprisonment till rising of the
Court and under Sub Section (3) of
Section 357 of the Code of Criminal
Procedure, he is directed to
pay compensation of Rs.40,000/-
(Rupees Forty Thousand) to PW-3
Gopal Ramdas Chaudhari. The amount
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should be deposited in Trial Court
and shall be then paid to PW-3 Gopal
Ramdas Chaudhari.
(III) The Respondent - accused shall
appear before the trial Court on 9th
May 2016. The amount of compensation
shall be deposited in two equal
installments within four months
thereafter.
(IV) The trial Court shall get the
sentence executed.
(V) Under Section 357-A of
Cr.P.C., recommendation is made to
the District Legal Services
Authority, Jalgaon to provide
compensation to PW-3 Gopal Ramdas
Chaudhari. The District Legal
Services Authority shall decide the
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quantum of compensation to be
awarded under Section 357-A of
Cr.P.C. and the State would be bound
to pay the compensation as may be
decided by the District Legal
Services Authority.
[A.I.S. CHEEMA, J.]
asb/APR16
