Vijay Kumar Dwivedi vs State Of Chhattisgarh
2022 Latest Caselaw 5193 Chatt

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                                                                                NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            Criminal Revision No. 281 of 2011
      Vijay Kumar Dwivedi S/o Shri Ramdhani Dwivedi, aged about 41 years,
       Occupation Private Teacher, R/o Subhash Nagar, Charcha Colliery, Police
       Station Charcha, Tahsil Baikunthpur, District Korea (C.G.)

                                                                    ---- Applicant
                                    Versus
      State of Chhattisgarh, Through : District Magistrate, Korea, District Korea
       (C.G.)
                                                       ---- Non-Applicant/State
  For Applicant                   :      Shri Pritam Tiwari, Advocate
  For Non-Applicant/State         :      Shri Kunal Das, Panel Lawyer
                   Hon'ble Shri Justice Rakesh Mohan Pandey
                                 Order on Board
17.08.2022
   1.

The applicant has filed the instant criminal revision under Section 397 read

with Section 401 of Cr.P.C. against the judgment of conviction & order of

sentence dated 02.05.2011 passed by the First Additional Sessions Judge,

Mahendragarh, place Baikunthpur, District Korea (C.G.) in Cr.A. No.

77/2007, affirming the judgment of conviction and order of sentence dated

27.08.2007 recorded by the learned J.M.F.C., Baikunthpur District Korea in

Criminal Case. No. 180/05 whereby the applicant has been convicted for

commission of offence punishable under Section 337 of IPC and sentenced

to undergo R.I. for six months & fine of Rs.2,000/-, in default of payment of

fine to undergo S.I. for three months; Section 338 of IPC and sentenced to

undergo R.I. for one year & fine of Rs.2,000/-, in default of payment of fine to

undergo S.I. for three months and Section 304 (A) of IPC and sentenced to

undergo R.I. for two years & fine of Rs.2,000/-, in default of payment of fine

to undergo S.I. for three months. It is also directed that all the sentences to

run concurrently. However, the conviction and sentence recorded under

Section 279 of IPC were set aside.

2. Case of the prosecution is that on 31.01.2005 complainant namely

Nandkumar was working in the wine shop, after discharging his duties in the

said shop, at about 22:00 hours he was coming to his house, at that time

one jeep bearing registration No. MP 17 D 4541 driven by the present

applicant in a rash and negligent, dashed the complainant from behind as a

result of which he sustained injuries on his head, hands and legs. In the

accident, Manoj Kumar Soni, Kamleshwar and Kampo Udiya suffered

injuries, out of which, Kampo Udiya died on spot. The accident occurred on

the road of Maharana Pratap Colony and merg was recorded at Police

Station Baikunthpur. F.I.R. was lodged by the complainant on 01.02.2005

and Crime No. 0/05 for the offences punishable under Sections 279, 337,

304 (A) of IPC were registered against the applicant. Injured persons were

examined by the Doctor and dead body of Kampo Udiya was sent for

postmortem examination. Police seized the offending vehicle and its

documents from the possession of the applicant. The police after

investigation, filed charge-sheet under Sections 279, 337, 338 & 304 (A) of

IPC

3. The learned trial Court framed charges under Sections 279, 337, 338 & 304

(A) of IPC against the applicant. The applicant abjured the charges.

Prosecution examined 15 witnesses to prove guilt of the applicant and

exhibited 15 documents. Statement of the applicant under Section 313 of

Cr.P.C. was recorded and the applicant examined one defence witness. The

trial Court after appreciation of oral and documentary evidence, convicted

the applicant under Sections 279, 337, 338 & 304 (A) of IPC. Thereafter, the

applicant preferred an appeal against the judgment of conviction and

sentence dated 27.08.2007 recorded by trial Court before the learned First

Additional Sessions Judge, Manendragarh place Baikunthpur, District Korea

(C.G.) and the same was heard and decided in Cr.A. No. 77/2007 by

affirming the conviction and sentence under Sections 337, 338 & 304(A) of

IPC recorded by the learned J.M.F.C., Baikunthpur District Korea in Criminal

Case. No. 180/05 dated 27.08.2007, however, the conviction and sentence

recorded under Section 279 of IPC was set aside.

4. The applicant has preferred the instant criminal revision against the

judgment and conviction dated 02.05.2011 passed by the First Additional

Sessions Judge, Manendragar place Baikunthpur, District Korea (C.G.).

5. Learned counsel for the applicant submits that the prosecution witnesses

have not supported the prosecution case and there were major

contradictions and omissions in their statements. He further submits that as

per statement of DW-1 Bhagwendra, on the date of incident the applicant

was not driving the vehicle, therefore, the prosecution has not proved the

case and the applicant has falsely been implicated. He also submits that the

judgment of conviction recorded by the trial Court which was affirmed by the

appellate Court is absolutely unsustainable and bad in law, as both the

courts below have committed grave illegality in relying upon the testimonies

of witnesses. Therefore, looking to the facts and circumstances of the case,

the sentence recorded by courts below against the applicant is too harsh.

6. On the other hand, learned counsel for the State opposes the argument

advanced by the learned counsel for the applicant and supported the

judgment of conviction and sentence recorded by the courts below.

7. I have heard learned counsel for the parties and perused the records of the

courts below.

8. It is evident from postmortem report (Ex.-P/14) prepared by Dr. Rameshwar

Sharma (PW-11) that deceased Kampo died due to injuries sustained by

him in the accident. PW-11 opined that cause of death of the deceased was

coma due to head injuries and opinion of the Doctor PW-11 has not been

rebutted by the applicant. The Jeep, its documents and licence of the

applicant were seized vide Ex.-P/4. PW-1 Nandkumar Singh (Complainant)

who lodged F.I.R. (Ex.-P/2) has supported the case of prosecution. PW-4

Manoj Kumar has stated that he was standing near the spot and the

applicant who was driver of the offending vehicle, driving the said Jeep in a

rash and negligent manner dashed the deceased from back side as a result

of which he died on the spot. PW-4 has also stated that in the said accident

he also sustained injuries on his shoulder, legs and other parts of the body.

PW-2 Kamleshwar has stated that on the date of incident, the applicant was

driving the said Jeep in a rash and negligent manner and dashed his bicycle

from back side and he also sustained injuries on various parts of his body.

PW-2 has also stated that in the said accident deceased Kampo succumbed

due to injuries. PW-08 Dr. Ashutosh Kumar has examined PW-1, PW-2 and

PW-4. Doctor (PW-08) has stated in his deposition that injured Manoj Kumar

(PW-4) sustained six injuries in which all the injuries were simple in nature

except injury no. 06 because there was fracture on left side of scapula;

injured Kamleshwar sustained three injuries which were simple in nature and

injured Nandkumar (PW-1) sustained four injuries which were simple in

nature. Doctor (PW-08) gave his reports vide Ex.-P/11, Ex.-P/10 & P/9 which

were duly proved by him.

9. So far as evidence of Bhagwendra Singh who examined as DW-1 is

concerned, he stated that at the time of accident, the present applicant was

not driving the Jeep, but the prosecution witnesses have clearly stated that

at the time of accident, the present applicant was driving the said offending

vehicle and that fact is not controverted in his cross-examination.

10. The medical evidence recorded by Dr. Rameshwar Sharma (PW-11) has not

been rebutted by the applicant. Therefore, the trial Court has not committed

any illegality in convicting the applicant under Sections 279, 337, 338 &

304(A) of IPC and further while acquitting the applicant for offence under

Section 279 of IPC, the lower Appellate Court has not committed any

illegality and has affirmed the conviction under Sections 337, 338 & 304(A)

of IPC .

11. Now coming to the question of reduction of sentence which is awarded to

the applicant. The incident had taken place in the year 2005 at that time age

of the applicant was 41 years. Deceased died due rash and negligent driving

of Jeep by the applicant, three persons had sustained injuries in the said

accident in which doctor found fracture on left of side of scapula of injured

Manoj (PW-4). As per learned counsel for the applicant, the applicant was on

bail during trial, after conviction by the lower appellate Court, he was granted

bail by coordinate bench of this Court i.e. during the pendency of this

revision. This Court is of the opinion that the sentence awarded to the

applicant cannot be reduced to the period already undergone, but looking to

the nature of injuries sustained by injured persons in which one person

(Kampo Udiya) died and gravity of offence, the conviction under Section

304(A) of IPC of applicant recorded by the courts below can be reduced

from two years to one year and fine amount imposed upon him can be

enhanced from Rs.2,000/- to Rs.5,000/-.

12. Consequently, the instant criminal revision is allowed in part. The conviction

of the applicant recorded by courts below under Sections 337 & 338 of IPC

is affirmed but the substantive jail sentence is modified from two years R.I. to

one year R.I. under Section 304 (A) of IPC and fine amount is enhanced

from Rs.2,000/- to Rs.5,000/-.

13. The applicant is reported to be on bail, his bail bonds so furnished stand

cancelled. The applicant is directed to surrender before the trial Court and to

be taken into custody forthwith to serve the remaining part of the sentence

awarded to him.

14. In the result, the criminal revision is partly allowed to the extent indicated

above.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti