Bombay High Court
The State Of Maharashtra And Ors vs Jalal Pasha Shekh Mahehood on 11 April, 2017
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 29 OF 2002
State of Maharashtra,
Through the Police Station Officer,
(R), Nanded, Dist. Nanded. .. Appellant
Versus
Jalal Pasha S/o Shekh Mahemood,
Age : 29 years, Occu. Auto Rickshaw Driver,
R/o. Pangara, Tq. & Dist. Nanded. .. Respondent
..............
Shri K. N. Lokhande, APP for appellant/State
Shri A. M. Gaikwad, Advocate for respondent
..............
CORAM : V. L. ACHLIYA, J.
RESERVED ON : 11.01.2017
PRONOUNCED ON : 11.04.2017
JUDGMENT : -
1. The challenge raised in the appeal confines to inadequacy of
sentence awarded by the trial Court while convicting the accused-respondent
for committing offences punishable u/s 279 & 304A of the Indian Penal Code.
2. In view of the limited issue involved as to the inadequacy of
sentence awarded by the trial Court, it is not necessary to discuss in detail the
facts leading to conviction. The respondent-accused was tried for committing
offence punishable u/s 279 & 304A of IPC with allegations that, on
24.07.1998 at about 11:00 hrs., he has driven the auto-rickshaw bearing No.
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MH-26/B-5427 in a rash and negligent manner thereby endangering the
human life and gave dash to motorcycle which was driven by deceased. On
receiving the dash, the deceased motorcyclist fell down on the eastern side of
the road and sustained head injury. When he was taken to Hospital, the
Medical Officer declared him as dead. On the basis of complaint lodged by Dr.
Deepak Ade (PW1), the offence u/s 279, 338 & 304A of IPC came to be
registered against the respondent-accused vide C.R. No. 143/99 on
24.07.1998. In order to prove its case, the prosecution has examined six
witnesses. On conclusion of trial, the learned Judicial Magistrate First Class,
Nanded convicted the appellant u/s 279 & 304A of IPC. For committing
offence u/s 304A of IPC, the respondent-accused sentenced to suffer
imprisonment till rising of the court and pay fine of Rs. 300/-, in default of
payment of fine, to undergo simple imprisonment for 15 days. For committing
offence u/s 279 of IPC, respondent-accused sentenced to suffer imprisonment
till rising of the Court and pay fine of Rs. 200/-, in default of payment of fine,
to suffer simple imprisonment for 15 days. The respondent-accused has
undergone the sentence and paid the fine. Being aggrieved by the quantum of
sentence awarded, the prosecution has preferred this appeal seeking
enhancement of sentence.
3. I have heard learned APP and Mr. A. M. Gaikwad representing the
respondent-accused and further perused the Judgment & Order passed by the
trial Court.
4. Learned APP has supported the reasons & findings recorded by
the trial Court, convicting the appellant guilty of offence u/s 279 & 304A of
IPC. Learned APP assailed the reasons recorded in awarding sentence till
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rising of the court in an offence u/s 279 & 304A of IPC. He submitted that,
the sentence awarded is grossly inadequate, unreasonable & against the
settled principles of law & grossly disproportionate to crime committed by
accused and urged to allow the appeal and enhance the sentence.
5. On the other hand, learned counsel for the respondent submits
that the conviction of appellant itself not sustainable in law and the trial Court
ought to have acquitted the accused. He submits that, though the respondent
has not preferred appeal against the impugned Judgment & Order, still the
respondent can plead for acquittal in an appeal preferred seeking
enhancement of the sentence. In this context, learned counsel referred to sub-
section 3 of Section 377 of the Cr.P.C. and further placed reliance upon the
decisions of the Hon'ble Apex Court in the cases of Arun Balkrishna Nirmal
& Ors. Versus State of Maharashtra reported in 2006(6) SCC 429 and Sumer
Singh v. Surajbhan Singh and Ors. reported in AIR 2014 SC 2840. Learned
counsel submitted that, the evidence as adduced by the prosecution is not
sufficient to prove the guilt against the accused. By referring the testimony of
prosecution witnesses, the learned counsel submits that the prosecution
witnesses PW1 & PW2 have not witnessed the incident & therefore their
testimony is of no avail to prove the guilt against the accused. He further
submits that the testimony of prosecution witnesses Gahnaji (PW3) & Gopal
Deshmukh (PW4) are full of omissions and contradictions. By referring the
testimony of said witnesses, the learned counsel submitted that the material
facts deposed by them are deposed by way of improvement. By referring the
spot panchanama Exh. 19, the learned counsel submitted that the accident
was occurred on old Mondha to Kautha road near the bridge over Godavari
river. Accused was proceeding with Auto-rickshaw towards Mondha whereas
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the motorcycle was coming from Mondha and going towards Kautha. Auto-
rickshaw was proceedig in an upward direction towards the bridge over the
Godavari river. Motorcycle was coming from opposite direction and going
towards the downward side. The road on which the accident was occurred
was heavy traffic road. He therefore submitted that the testimony of the
prosecution witnesses that auto-rickshaw was driven in a high speed and in a
rash and negligent manner cannot be believed. He submitted that, the
motorcycle was found towards eastern side of the road. The auto-rickshaw
was found to the western side of the road. The deceased died due to reason
that his head was hit to the railing by the side of the road. In the light of the
evidence on record, the learned counsel submits that no case of proving rash
and negligent driving that too endangering the human life and property
proved by the prosecution to sustain the charge u/s 279 & 304A of the IPC.
He, therefore, urged to acquit the accused.
6. I have carefully considered the submissions advanced in the light
of the evidence adduced by the prosecution and the reasons & findings
recorded by the trial Court. For proper appreciation of submissions advanced,
it is necessary to consider the spot panchanama. Spot panchanama (Exh. 19)
reflects that the incident was occurred on old Mondha to Kawtha road. The
spot of incident was located about 200 ft. from main Bridge over the river
Godavari. As per the position depicted in the sketch map, old Montha to
Kautha road runs into north-south direction. The motorcycle was found lying
towards eastern side of the road near the railing of the bridge. So also, the
offending vehicle i.e. the auto-rickshaw also found to be towards the eastern
side of said road at a short distance from motorcycle.
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7. As per the fact deposed by Gahanaji (PW2) the eye-witness to the
incident, the incident was occurred at about 11:00 AM. He was proceeding on
bicycle and going from Kautha towards Nanded road. He deposed that auto-
rickshaw driven by the accused came from CIDCO area and proceeded ahead
of him. At that time, one motorcycle was coming from Mondha side. The
auto-rickshaw driver was driving the auto-rickshaw in a high speed and he
took his auto-rickshaw towards his extreme right side and gave dash to
motorcycle. Due to dash, motorcycle rider fell down on the railing which
resulted into causing bleeding injury to his head. After causing the accident,
the auto-rickshaw driver ran towards Mondha side. He further deposed that,
after the accident number of people gathered there which includes Gopal
Deshmukh (PW4). He removed the injured from spot and brought him to
Guru Govind Singh General Hospital, Nanded. On examination, Medical
Officer declared him dead. He has categorically deposed that the accident was
occurred due to driving of auto-rickshaw by accused in a high speed & that
too on wrong side. If we consider the testimony of PW3 in the light of spot
panchanama, then auto-rickshaw was proceeding towards Mondha side.
Whereas motorcycle was coming from opposite direction i.e. from Mondha
towards Kautha. The auto-rickshaw was proceeding from south to north
direction. Whereas; motorcycle was going from north to south direction. As
per the panchanama after the accident, the motorcycle as well as auto-
rickshaw were found towards eastern side of the road. Thus, the position as
depicted in the spot panchanama clearly reflects that the auto-rickshaw was on
wrong side. At the time of accident he was driving the auto-rickshaw to his
extreme right side and gave dash to motorcycle, which was proceeding to its
correct side of the road.
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8. PW3 was cross-examined at length by the counsel representing
the accused. Although in the cross-examination of PW3 certain omissions
have been brought on record but same are not significant. It is brought on
record through the cross-examination of PW3 that the motorcycle was coming
down towards Kautha side and auto-rickshaw was proceeding towards
Mondha side in upward direction towards the bridge. It is also brought on
record that the road where the accident was occurred was heavy traffic road.
It is also brought on record that after the incident the motorcycle was found
on eastern side of the road and auto-rickshaw was on western side of the road.
9. If we consider the overall cross-examination then there is nothing
to discard the testimony of PW3. Only for the reason that the place where the
accident was occurred was heavy traffic road and auto-rickshaw was going in
a upward direction, it cannot be presumed that auto-rickshaw driver was not
at fault. In fact, PW3 has specifically deposed that auto-rickshaw driver was
driving the auto-rickshaw in a high speed and took auto-rickshaw to his
extreme right side and gave dash to motorcycle coming from opposite
direction. It clearly establishes the rash and negligent driving on the part of
accused. The testimony of PW3 find due corroboration from the testimony of
PW4. The fact deposed by PW3 & PW4 find due corroboration from Spot
Panchanama (Exh. 19). The position depicted in the panchanama as to
position of vehicles after the incident clearly establishes that the prosecution
has duly proved that the accused has driven the auto-rickshaw in a rash &
negligent manner. At the relevant time of accident, he took the vehicle to his
extreme right side and gave dash to motorcycle coming from opposite
direction which has resulted into accident & consequent death of the deceased.
In this view, the reasons & findings recorded by the trial Court convicting the
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appellant are quite consistent with the evidence adduced by the prosecution. I
am therefore of the view that the conviction of the appellant is sustainable &
reasons & findings recorded by trial court to that effect are fully in consonance
with evidence on record. Thus, no case is made out to establish the innocence
of respondent-accused.
10. Now the next question poses for my consideration is whether the
sentence awarded by trial court needs to be enhanced. For commission of
offence punishable u/s 279 of IPC, punishment provided is imprisonment of
either description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both. For committing
offence punishable u/s 304A of IPC, sentence provided is imprisonment of
either description for a term which may extend to two years, or with fine, or
with both. Trial Court has awarded the substantive sentence till rising of court
by accepting the submission made by the learned counsel for the respondent-
accused that he is a sole bread earning member in his family and awarding
harsh sentence may cause serious consequences to his family.
11. In my view, the sentence awarded is inadequate &
disproportionate to the gravity of offence committed by the accused. The act
of rash & negligent driving on the part of the accused has resulted into death
of the deceased. Awarding sentence of a term 'till rising of the court' cannot
be termed as a punishment commensurate to crime committed by the accused.
It is quite settled position in law, that while awarding sentence the courts of
law are required to take into consideration over all facts of the case, nature of
offence and other factors like antecedent, age, character of the offender and
the circumstances under which the crime was committed as well as the
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possibility of offender being reformed. It is also to be borne in mind that the
sentence to be awarded must act as deterrence so as to prevent the other
persons from committing such offence.
12. In the case of Dalbir Singh Vs State of Haryana reported in
(2000) 5 SCC 82, the apex Court has observed that while considering the
quantum of sentence to be imposed for the offence of causing death by rash &
negligent driving due to automobiles, one of the prime consideration should
be deterrence. It is further observed that when the automobiles have become
death traps any leniency shown to the drivers who are found guilty of rash
driving would be at the risk of further escalation of road accidents and one of
the most effective way of keeping such drivers under the mental vigil is to
maintain a deterrent element in sentencing sphere. Any latitude shown to
them in that sphere would tempt to make driving frivolous and a frolic. In
para 13 the court has observed as under:
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 P.O. 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 consid-erations 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 think 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 causing death of a human being due to his callous
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driving of vehicle he cannot escape from 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.
13. Having appreciated the over all facts of the case & plea raised
before the trial Court seeking leniency, I am of the view that too much lenient
approach has been adopted by the trial Court. No such reasons exist to have
adopted such liberal approach in the matter. While awarding the sentence,
though the trial Court has considered the hardship which may result to the
family of the accused but forgotten the suffering of victim of such case. The
act of the accused has resulted into loss of human life. Deceased was 26 years
old. I am therefore of the view that the sentence awarded by the trial Court
was inadequate and calls for enhancement.
14. Mr Gaikwad, learned counsel for the respondent submits that, at
the time of the incident i.e. in the year 1999, the age of the respondent was
about 28 years. Pendency of the proceedings for a period of about 20 years
has caused lot of suffering to the respondent. He submits that appellant had
no criminal antecedents. Looking to the age & dependency, the trial Court has
taken the lenient view in the matter. He submits that, looking to the
maximum sentence provided for the offence & offence being made punishable
with sentence or fine or both, the sentence awarded by the trial Court cannot
be termed as inadequate. He further submitted that, the legislature in their
wisdom has provided even the punishment of fine only for such offences & left
the discretion with the courts of law to award appropriate sentence. He
therefore urged that looking to the long pendency of the proceeding, age,
antecedent, character of the accused, sentence may not be enhanced.
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15. On the other hand, learned APP for state has urged that, mere
pendency of appeal for a period of 15 years cannot be the reason to enhance
the sentence once it is found that the sentence awarded is inadequate and not
proportionate to the crime committed by the accused.
16. Although I am of the view that the sentence awarded by the trial
court is inadequate and not proportionate to the gravity of the crime
committed by the accused, still I am of the view that after 15 years of sentence
awarded by the trial Court, it may not be desirable to enhance the substantive
sentence for a crime committed about 18 years back. The offence leading to
prosecution of appellant was occurred in the year 1999. The accused was
convicted in the year 2002. He has already undergone the substantive
sentence awarded by the trial Court and also deposited the fine. At the time of
commission of offence, the accused was about 29 years of age. Now the age of
accused may be 48 to 50 years. While convicting the appellant and awarding
the sentence, learned Judge of the trial Court has noted that appellant is a sole
bread earner in his family and maintaining his family by plying auto-rickshaw.
In the administration of criminal justice, the purpose of awarding punishment
is to remove the element of criminality and not the removal of criminal.
Punishment to be awarded always depends upon the facts & circumstances of
the case. The Court of Law are expected to award the appropriate punishment
depending upon the facts & circumstances of the case. No purpose would be
achieved by awarding the harsh punishment after 18 years of commission of
crime though the sentence was found to be inadequate and not proportionate
to the crime committed by appellant. In my view, looking to the facts &
circumstances of the case, the enhancement of fine would meet the ends of
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justice. Both the offences u/s 279 & 304A of the IPC are punishable with
sentence or fine or both. I am, therefore, inclined to allow the appeal to the
extent of enhancing the fine amount and pass the following order.
ORDER
(I) The Criminal Appeal is partly allowed.
(II) The Judgment & Order of the trial Court awarding the sentence is
modified as under:
(i) The appellant-accused is held guilty of offence u/s 279 of
IPC and sentenced to suffer imprisonment till rising of the
court and pay fine of Rs. 25,000/-, in default of payment of
fine to undergo simple imprisonment for six months.
(ii) The appellant-accused is further held guilty of offence
punishable u/s 304A of the IPC and sentenced to undergo
imprisonment till rising of the Court and pay fine of Rs.
25,000/-, in default of payment of fine to suffer simple
imprisonment for six months.
(III) Fine amount if recovered, same be paid to the family of the
deceased as compensation.
(IV) The appellant-accused is given eight weeks' time to deposit the
fine amount.
(V) Criminal Appeal stands disposed of in above terms.
[ V. L. ACHLIYA ]
JUDGE
