Viral Thakorbhai Patel vs State Of Gujarat
2023 Latest Caselaw 6924 Guj

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     R/CR.RA/271/2012                           JUDGMENT DATED: 20/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 271 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI
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1     Whether Reporters of Local Papers may be allowed               No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        No

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        VIRAL THAKORBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR SD BHORACHA FOR MR ZUBIN F BHARDA(159) for the Applicant(s)
No. 1
MS DIVYANGANA ZALA, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 20/09/2023

                           ORAL JUDGMENT

1. This Revision under section 397 read with section 401 of Code of Criminal Procedure assails legality of the judgment and order passed in Criminal Appeal No.40 of 2007 by the learned 2nd (Ad-hoc) Additional Sessions Judge, Navsari whereby allowing the Appeal filed by the State of Gujarat, learned

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R/CR.RA/271/2012 JUDGMENT DATED: 20/09/2023

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Additional Sessions Judge has modified the punishment passed by the learned JMFC, Navsari in Criminal Case No.6913 of 2005 to the effect that sentence to undergo imprisonment till rising of the Court has been altered to undergo Simple Imprisonment for 2 months for the offence under section 279 of IPC and Simple Imprisonment for 6 months for the offence under section 338 of IPC with order of running both the sentence concurrently.

2. Facts of the case are as under :-

2.1. According to the case of the prosecution on 25.09.2005, accused Viralbhai Patel was driving Mini Door Rickshaw at high speed, rashly and negligently within village. At around 10.00 in the morning, when he reached near Ibrahim Gujarati School, he dashed Mini Door Rickshaw to witness - Shashikant Chotubhai Patel who at that time was crossing the road and as such accident took place and it caused simple grievous injury to witness. It happened because of negligent driving of the accused. FIR for the offence under sections 279, 337, 338 of IPC and under section 177, 184 and 134 of MV Act came to be registered with Jalalpur Police Station.

2.2. Usual investigation took place and at the end of investigation, charge sheet was filed qua said offence against the accused. Charge sheet was registered as Criminal Case No.6913 of 2005 before the learned JMFC, Navsari. Plea was taken (Exh.2). Accused pleaded not guilty and claimed to be tried. Therefore, Criminal Case was rested for recording evidence of prosecution. After recording oral and documentary evidence of the prosecution, learned JMFC has recorded further statement of

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accused. Learned Trial Court after hearing learned advocates for both the sides having framed issues reached to the conclusion that prosecution has proved the case that accused was driving Mini Door Rickshaw rashly and negligently and caused injury to the witness and as such committed offence under section 279 and section 338 of IPC. While recording so, learned Court below has acquitted the accused for the offence under section 337 of IPC and sections 177, 184 and 134 of MV Act. Learned JMFC has passed punishment and sentence the accused to undergo imprisonment till rising of the Court and also ordered to pay fine of Rs.600/- for each offence.

3. State has taken this judgment into Appeal by filing Criminal Appeal No.40 of 2007. In the said Appeal, learned Additional Sessions Judge enhanced the imprisonment for the offence under section 279 and section 338 of IPC from till rising of the Court to 2 months SI for offence under section 279 of IPC and 6 months SI for offence under section 338 of IPC with order to run both the sentence concurrently. Revision is filed challenging the judgment passed in Criminal Appeal No.40 of 2007 at the instance of original accused.

4. Heard learned advocate Mr.S.D.Bhoracha for learned advocate Mr. Bharda for the revisionist and learned APP Ms. Divyangna Zala for the State.

5. Learned advocate for the appellant - revisionist would submit that learned Additional Sessions Judge while enhancing the sentence failed to notice that learned Trial Court has acquitted the accused from the offence under section 337 of IPC

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read with sections 177, 184 and 134 of MV Act. He would further submit that there is no palpable reason assigned by the First Appellate Court for enhancing the sentence and imprisonment. Therefore, he would submit to allow this Revision in peculiar facts and circumstances of the case.

6. On the other hand learned APP would support the impugned judgment and submit that no error much less error of understanding provision of law has been committed by the learned Appellate Court. Therefore, the revision being bereft of merits, requires to be rejected.

7. Considering peculiar facts and circumstances of the case, what appears that learned First Appellate Court has viewed entire case from the eyes of appellant - State of Gujarat. Learned First Appellate Court failed to notice that the learned Court below has acquitted the accused from the offence punishable under section 337 of IPC read with section 177, 184 and 137 of MV Act. This finding is not disturbed in appeal acquitting from offence under provision of MV Act and convicting the accused for offence of rash and negligent driving appears diametrically apposite. In this circumstance, there is no reason to enhance punishment and sentence of the accused which has been imposed by the learned JMFC. Perusal of the impugned judgment of First Appellate Court, it appears that reason which weighed First Appellate Court to enhance sentence is that the Court has to pass punishment which may give accused remembrance of error he has committed. According to this Court, such finding is not permissible. First Appellate Court believed that imposing sentence of till rising of the Court is flea

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bite sentence. Learned First Appellate Court has also applied mind to the principle of victimology in absence of any argument. According to this Court all consideration were irrelevant and unnecessary more particularly in the peculiar facts of the case where accused was acquitted for the offence under section 337 of IPC read with section 177, 184 and 137 of MV Act. To be noted that Court should not be guided by the extraneous consideration. The Court has to stuck with the facts of the case. Learned advocate for the appellant would submit that though learned Trial Court has imposed punishment to pay fine of Rs.600/- for each offence, the appellant - Revisionist is ready and willing to pay higher amount which may proportionate to the imposing of sentence in the facts of the case.

8. In the peculiar facts of the case considering the aspect that sword of punishment and sentence hangs upon the accused since 2005, some linenecy is required to be given to the appellant - Revisionist. To be noted that State has not brought forward fact of any other offence committed by the accused subsequently. Thus, in this given fact and circumstances, the Revision is required to be allowed.

9. For the foregoing reasons, the Revision is allowed. Judgment and order passed in Criminal Appeal No.40 of 2007 replacing sentence from till rising of the Court to 2 months SI for offence under section 279 of IPC and 6 months SI for offence under section 338 of IPC are quashed and set aside. Order passed by learned JMFC, Navsari in Criminal Case No.6913 of 2005 so far as imposing sentence is concerned, it is restored. Order of paying fine is modified, the appellant - Revisionist shall

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pay fine of Rs.5000/- each for the offence under section 279 as well as section 338 of IPC before the learned JMFC, Navsari within one week from today. Since this judgment is delivered in peculiar facts of the case, it shall not be treated as precedent.

(J. C. DOSHI,J) SATISH