Prabhakar S/O Hari Asutkar vs State Of Mah. Pso Gadchiroli Tah. ...
2022 Latest Caselaw 425 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH : NAGPUR


     CRIMINAL REVISION APPLICATION NO. 111 OF 2020


     Prabhakar S/o Hari Asutkar
     Age 47 years, Occ. Driver,
     R/o. Pathanpura Ward, Chandrapur,
     Tah. & Dist. Chandrapur.                APPLICANT


       Versus


     The State of Maharashtra,
     P.S.O. Gadchiroli,
     Tah. & Dist. Gadchiroli.                NON-APPLICANTS



-----------------------------------------------
Mr. R.M. Tahaliyani, Advocate for the Applicant.
Mr. Amit R. Chutke, A.P.P. for the Non-Applicant/State.
-----------------------------------------------


                  CORAM : AVINASH G. GHAROTE, J.

                  DATED     : 12th JANUARY, 2022.


ORAL JUDGMENT :-




           Heard.
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2.          Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsel for the rival parties.



3.          The   application       challenges   the      judgment               of

conviction passed by the learned Judicial Magistrate First Class,

Gadchiroli, dated 09.04.2019, convicting the applicant for an

offence under Section 279 of the Indian Penal Code (hereinafter

to be referred as the "IPC" for short) for a period of three

months with fine of Rs. 1,000/-, (Rs. One Thousand Only), in

default 10 days SI and sentence for a period of one year for the

offence under Section 304-A of the IPC with fine of Rs. 10,000/-

(Rs. Ten Thousand Only), in default SI of 60 days and so also

fine of Rs. 1,000/-(Rs. One Thousand Only), under Section 184

of the Motor Vehicles Act, in default 10 days SI and a

compensation of Rs. 50,000/-, (Rs. Fifty Thousand Only), the

sentences to run concurrently. This judgment, has been

confirmed in Appeal by the learned Sessions Judge, Gadchiroli,

by his judgment dated 22.09.2020.



4.          Mr. Tahaliyani, learned counsel for the applicant

submits, that there was no criminal negligence on part of the
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applicant, which is indicated from the evidence of PW-2. He

submits, that the entire prosecution was flawed, inasmuch as,

there is nothing on record to indicate what was the speed of the

vehicle, width of the road, traffic density, location of the speed

breaker, surrounding situation, the position about the light,

weather and visibility and the existence of pot holes, all of

which are necessary to be brought on record by the prosecution,

in order to sustain a conviction of the applicant. Relying upon

Chamman Lal Vs. The State, AIR 1954 ALL 186 , it is submitted,

that the negligence under Section 304-A of the IPC, must be one

which must amount to recklessness or utter indifference to

consequences and not merely negligence of tort. Reliance is also

placed upon Abdul Subhan Vs. State, 2007 CRI.L.J., 1089 , to

contend that the expression high speed, is an unclear

expression. Reliance is also placed upon A.P. Raju Vs. State of

Orissa, 1995 Supp (2) SCC 385, to contend, that the benefit of

Section 360 of the Code of Criminal Procedure (hereinafter to

be referred as the "CrPC" for short) or Section 4 of the

Probation of Offenders Act, 1958, ought to have been granted to

the applicant. He further points out, that it is not a case, as if

the applicant after the incident had run away from the spot but
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he has taken the victim to the hospital for medical aid, where

unfortunately the victim passed away. He therefore submits,

that this is an ameliorating circumstance, which would call for

the reduction of sentence imposed. He further submits, that the

applicant, has already being behind bars for a period from

20.09.2020 to 19.10.2020, which would indicate, that the

applicant, has already suffered and may be taken into

consideration for the reduction in sentence.



5.          Mr.     Chutke,       learned      APP            for          the

non-applicant/State, invites my attention to the evidence of

PW-2, who was the eye witness, to contend, that the demise

of the victim, is directly attributable, to the action of the

applicant, in driving the vehicle in rash and negligent manner,

from the middle of the road, whereas, every user of the road, by

law is required to use his side of the road. He therefore submits,

that there cannot be any contributory negligence on part of the

victim in the matter of the accident, and therefore, the position

has been correctly considered by the Court's below.



6.          The incident has happened on 08.11.2016, and has
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been witnessed by PW-2, who in his evidence has stated, that he

was present on the spot alongwith his wife and has seen the

accident caused by the applicant driving a Bolero Jeep, at very

high speed, which had dashed against the two wheeler driven

by the victim. He further states, that the vehicle was driven from

the center of the road. This testimony, has not been shaken in

cross-examination. This testimony, has been believed upon and

relied by both the Court's below, and nothing has been brought

to my notice to the contrary. The evidence which has been

brought on record has been correctly appreciated by the Court's

below. The contention of Mr. Tahaliyani, learned counsel for the

applicant, that details regarding the speed of the vehicle, width

of the road, traffic density, location of the speed breaker and

surrounding circumstances including condition of the road, has

not been brought on record, pales into insignificance in light of

the evidence of PW-2, who is the eye witness, who has seen the

vehicle driven at high speed, giving a dash to a two wheeler

driven by the victim. Of course, as held in Abdul Subhan

(Supra), the expression "high speed" is one, which is unclear,

and is relative, however the meaning of the expression has to be

construed based upon the factuality of each case and no fixed
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parameters can be prescribed for the same. The very fact, that

the vehicle was in a very high speed and had dashed against the

two wheeler resulting in the demise of the victim, in addition to

what has been stated by PW-2, that it was driven from the

middle of the road, would indicate the establishment of the rash

and negligent act on part of the applicant, in view of which, in

my considered opinion, Chamman Lal & Abdul Subhan (Supra),

relied by the learned counsel for the applicant, do not assist

him.



7.          That takes me to the plea, that the benefit of Section

360 of the CrPC and the Probation of the Offenders Act, ought

to have been granted to the applicant. In my considered

opinion, for the purpose of claiming benefit under Section 360

of the CrPC, it is necessary, to bring on record, the character or

antecedents of the offender and any attending circumstances, in

which, the offence was committed, which would indicate, that it

is expedient for the offender to be released on probation on

good conduct. In the instant case, though the plea was raised

before the learned trial Court, the same has been turned down.

That apart, nothing of the aforesaid nature has been brought on
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record, so as to enable me to exercise discretion under Section

360 of the CrPC, considering which, I am not inclined to accept

the request.



8.             The next argument, is regarding the reduction of the

sentence. Mr. Tahaliyani, learned counsel for the applicant, is

correct in saying that the applicant, after the accident did not

run away from the spot but has taken the injured to the hospital

so that medical aid could be made available to him. In my

considered opinion, this is one circumstance, which would be

considered in favour of the applicant, who though was involved

in the accident has not lost sight of his duty towards the victim

in procuring medical aid to the victim. It is quite a different

matter altogether, that by the time the medical aid could be

procured, the victim had succumbed to his injuries. In my

considered opinion, this is one action, which every law abiding

citizen should undertake, and therefore, it is an ameliorating

circumstance, considering which, I am inclined to reduce the

sentence imposed by the learned trial Court under Section

304-A of the IPC. Hence the following order:
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                                                              ORDER

(i) Criminal Revision Application is partly allowed.

(ii) The sentence imposed by the learned trial Court, insofar as the conviction under Section 304-A of the Indian Penal Code, is reduced from one year to six months. The rest of the judgment is maintained.

9. Rule accordingly. No costs.

10. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:13.01.2022 17:17