Chattisgarh High Court

Shakil Khan vs State Of Chhattisgarh on 9 September, 2022

                                  -1-




                                                                    NAFR

             HIGH COURT of CHHATTISGARH, BILASPUR

                Order Reserved on 20.06.2022
                Order Delivered on 09.09.2022


                       CRR No. 149 of 2011
   Shakil Khan, S/o Shri Ramjan Khan Musalman, aged about 32 years,
   Driver, R/o Village- Mainpur, District- Raipur
                                                            ---- Applicant
                                Versus
   State Of Chhattisgarh, through : District Magistrate, Dhamtari, District
   Dhamtari (CG)
                                                          ---- Respondent

     For Applicant        :    Shri S.P. Sahu, Advocate
     For Non-Applicant :       Shri Ashish Gupta, Panel Lawyer


                 S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
                                    CAV Order

1. Challenge in this revision is to judgment dated 28.02.2011 passed by

   learned Additional Sessions Judge (FTC), Dhamtari in Criminal

   Appeal No.35 of 2010 whereby learned Additional Sessions Judge

   has affirmed the judgment of conviction and order of sentence dated

   11.11.2010 passed by Judicial Magistrate First Class, Nagari in

   Criminal Case No.649 of 2009.


2. Facts

relevant for disposal of this revision are that on 27.10.2004 at

about 13:00 hrs., complainant Rustam Khan with his wife and

children were travelling in a Jeep bearing registration No.CG 04-ZA-

2214 driven by the applicant. At that relevant point of time, along with

the complainant and his family members, other passengers were also

travelling in the same vehicle. The complainant was travelling from

Mainpur to Sihava. On the way when the offending vehicle reached

Arsikanhar Sankara turn, due to rash and negligent driving of the

applicant, offending vehicle turned turtle. Complainant, his son, along

with others suffered injury over their persons. His wife Khalida

suffered head injury, who during course of treatment succumbed to

injury. Incident was reported to the concerned police station, based

upon which, first information report was registered against the

applicant for the offences defined under Sections 279, 337, 304-A of

IPC. After investigation, police submitted charge sheet for the

offences defined under Sections 279, 339, 338, 304-A of IPC.

Learned Judicial Magistrate First Class framed charges for the

aforementioned offences and after conclusion of trial, sentenced the

applicant for 1 month's SI and fine of Rs.100/-, in default of payment

of fine, additional SI for 1 day under Section 279 of IPC; SI for 2

months and fine of Rs.100/-, in default of payment of fine, additional

SI for 1 day under Section 337 of IPC; SI for 3 months and fine of

Rs.200/-, in default of payment of fine additional SI for 2 days under

Section 338 of IPC; SI for 6 months and fine of Rs.200/-, in default of

payment of fine, additional SI for 2 days under Section 304-A of IPC.

Judgment of conviction and sentence passed by learned Judicial

Magistrate First Class was put to challenge before the Additional

Sessions Judge in appeal filed under Section 374 of Cr.P.C. Learned

Appellate Court upon appreciation of the submissions and evidence

available on record affirmed the judgment of conviction and order of

sentence passed by learned trial Court vide impugned judgment.

3. Shri S.P. Sahu, learned counsel for the applicant would submit that

the learned Courts below have erroneously recorded a finding that

the applicant was driving the vehicle rashly and negligently which is

perverse to the evidence available on record. In alternate, he also

submits that even if this Court comes to the conclusion that the

prosecution proved the charges against the applicant, sentence

imposed upon the applicant be reduced to the period already

undergone by him during appeal as well as upon filing of revision

before this Court. He contended that the applicant has already

undergone the substantive jail sentence of 78 days before his release

on bail pursuant to the order passed by this Court on the application

for suspension of sentence and grant of bail. He contended that the

fine amount has already been deposited by the applicant.

4. Shri Ashish Gupta, learned counsel for the State opposing the

submission made by learned counsel for the applicant would submit

that the Trial Court as well as Appellate Court upon appreciation of

oral and documentary evidence placed on record have rightly

recorded finding that prosecution has proved the rash and negligent

driving of the offending vehicle by the applicant. Hence, no

interference is called for on the judgment of conviction. He also

submits that looking to the nature of offence committed by the

applicant and death of one of the passengers travelling in the

offending vehicle, the sentence awarded to the applicant is just and

proper which also calls for no interference.

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

of the Courts below.

6. So far as the first submission of learned counsel for the applicant

regarding finding of conviction recorded by the Courts below to be

perverse is concerned, perusal of the record of trial Court would

show that the date of accident was 27.10.2004 at about 13:00 hrs.

Incident was reported on the same day to the concerned police

station at about 23:00 hrs. by the Station House Officer, Police

Station- Sihava. The report was lodged based on the information

received by the police at about 15:00 hrs. on the date of accident i.e.

immediately after two hours of the accident. FIR is placed along with

dehati nalishi as Ex.P1. Morgue was reported by Rustam Khan

(PW1). In the morgue intimation report, it is specifically mentioned

that the applicant was driving the offending vehicle with a high speed,

negligently. In FIR also, rash and negligent driving of the vehicle by

the applicant is mentioned. Rustam Khan (PW1) in examination-in-

chief of his Court's statement stated that he along with his deceased

wife and children were travelling in the offending vehicle. In his

evidence, he stated that accident was of the result of high speed and

negligent driving of offending vehicle by the applicant. Nothing

adverse has come in his cross-examination. Dr. Ramesh Kumar

Thakur (PW2) proved the injury suffered by the deceased as

mentioned in postmortem report (Ex.P-4) as also MLC reports (Ex.P-

6 and Ex.P-7). In his cross-examination, admitted that the injury

suffered by the deceased- Khalida can be caused due to falling from

the running vehicle. Shadab Khan son of Rustam Khan aged about

12 years was also examined as PW6 and he has also stated that at

the time of accident, offending vehicle was being driven in a rash and

negligent manner. Statement of accused/applicant is recorded under

Section 313 of Cr.P.C., wherein, he stated that on the way, suddenly

a person on bicycle came from back of bullock-cart and in course of

making an attempt to save the bicyclist, accident occurred. No

defence witnesses was examined by the applicant.

7. From perusal of the documents and oral evidence placed on record, I

am of the view that the finding recorded by both the Courts below of

rash and negligent driving of the offending vehicle by the applicant is

based on the evidence. Hence, it does not call for any interference.

Learned trial Court as well as appellate Court have not committed

any error in holding that the applicant has committed the offence as

mentioned in the cause title of the revision application. Hence,

submission of learned counsel for the applicant that finding recorded

by both the Courts below for commission of offence under Sections

279, 337, 338, 304 -A of IPC by the applicant is perverse, is not

sustainable in law and it is hereby repelled.

8. So far as the alternate submission made by learned counsel for

applicant with regard to sentence to be imposed upon the applicant,

to be reduced to the period already undergone by him i.e. 78 days, in

preceding paragraph, this Court, upon considering the evidence

available on record, came to the conclusion that the finding recorded

by the Courts below for commission of offence under Sections 279,

337, 338, 304-A of IPC to be not perverse and further considering the

manner in which accident took place resulting death of one of the

occupant in taxi- Jeep driven by the applicant rashly and negligently, I

am of the view that the submission of learned counsel for the

applicant cannot be accepted as the learned trial Court has already

shown leniency while sentencing the applicant for the commission of

aforementioned offence. The discretion is provided in the statute for

fixing the quantum of sentence, but the discretion has to be exercised

with due regard to the larger interest of the society and it is needles

to add that passing of sentence on the offender is probably the most

public face of the criminal justice system. Undue sympathy resulting

in imposition of inadequate sentence would do more harm to the

justice system and undermine the public confidence in the efficacy of

law and the society cannot endure long under serious threats. It is

the duty of every Court to award proper sentence having regard to

the nature of the offence and the manner in which it occurred.

Hon'ble Supreme Court in the case of Guru Basavaraj alias Benne

Settappa Vs. State of Karnataka (2012) 8 SCC 734 in an appeal

challenging the order of conviction under Section 304-A of IPC and

sentence of simple imprisonment of six months and to pay fine of

Rs.2,000/-, affirmed by the appellate Court, held as under :

"34. In view of the aforesaid, we have to weigh

whether the submission advanced by the

learned counsel for the appellant as regards

the mitigating factors deserves acceptance.

Compassion is being sought on the ground of

young age and mercy is being invoked on the

foundation of solemnization of marriage. The

date of occurrence is in the month of March,

2006. The scars on the collective cannot be

said to have been forgotten. Weighing the

individual difficulty as against the social order,

collective conscience and the duty of the

Court, we are disposed to think that the

substantive sentence affirmed by the High

Court does not warrant any interference and,

accordingly, we concur with the same."

9. In case of State of Madhya Pradesh Vs. Surendra Singh (2015) 1

SCC 222, wherein respondent therein for commission of offence

under Section 304-A was awarded sentence of two years rigorous

imprisonment, upheld by Additional Sessions Judge in appeal and

High Court reducing the sentence to the period already undergone,

Hon'ble Supreme Court set aside the order of High Court and

restored the sentence imposed by trial Court and held thus :-

"14. In a recent decision in the case of State

of Madhya Pradesh vs. Bablu (2014) 9 SCC

281, after considering and following the earlier

decisions, this Court reiterated the settled

proposition of law that one of the prime

objectives of criminal law is the imposition of

adequate, just, proportionate punishment

which commensurate with the gravity, nature

of crime and the manner in which the offence

is committed. One should keep in mind the

social interest and conscience of the society

while considering the determinative factor of

sentence with gravity of crime. The

punishment should not be so lenient that it

shocks the conscience of the society. It is,

therefore, solemn duty of the court to strike a

proper balance while awarding the sentence

as awarding lesser sentence encourages any

criminal and, as a result of the same, the

society suffers."