Rajasthan High Court
Vinod Kumar vs State on 22 March, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:12822] (1 of 8) [CRLR-813/2005]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 813/2005
Vinod Kumar S/o Gulabchand resident of Kawai, Tehsil Atru,
District Baran (Rajasthan).
----Petitioner
Versus
State of Rajasthan, through Public Prosecutor
----Respondent
For Petitioner(s) : Mr.Rinesh Gupta
For Respondent(s) : Mr.Suresh Kumar, Public Prosecutor
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
Date of Reserve :: 07/02/2024
Date of Pronouncement :: 22/03/2024
1. The matter pertains to an incident which occurred in the year
1990 and the present criminal revision is pending since the year
2005.
2. This criminal revision petition under Section 397 read with
Section 401 Cr.P.C. has been preferred against the judgment dated
17.08.2005 passed by learned Additional Sessions Judge, Chabra,
District Baran in Criminal Appeal No.7/2000, whereby, the learned
Appellate Court has upheld the judgment of conviction dated
03.08.1999 passed by the learned Judicial Magistrate, Atru, District
Baran in Sessions Case No.80/90, whereby the revisionist-
petitioner was convicted and sentenced as under:
Under Section 304A IPC
Two years' simple imprisonment along with a fine of
Rs.3000/- and in default of payment of fine, to further
undergo one month's simple imprisonment.
[2024:RJ-JP:12822] (2 of 8) [CRLR-813/2005]
Under Section 279 IPC
Three months' simple imprisonment along with a fine
of Rs.500/- and in default of payment of fine, to
further undergo 15 days' simple imprisonment.
Under Section 337 IPC
Three months' simple imprisonment along with a fine
of Rs.500/- and in default of payment of fine, to
further undergo 15 days' simple imprisonment.
3. Brief facts of the case are that on 21.05.1990, the
complainant - Birdhi Lal submitted written report in the police
station Kawai, District Baran stating that on 18.05.1990, he along
with 25-30 people of his village, went to attend the marriage
ceremony of one Ram Pratap's daughter. He took Matador No.RPF
5222 of Vinod Kumar Mittal on rent and Viond Kumar Mittal was
driving the Matador. When they returning from the programme to
their village Phoolbardoa then near Salpura Railway Station, the
petitioner - Vinod Kumar was driving the vehicle in high speed. It is
also stated that at 10.00 PM due to high speed of vehicle, Matador
overturned and the passengers, sitting in the Matador received
injuries along with him. On the basis of written report, the police
registered the case under Sections 279 and 337 IPC. However,
after the incident, three persons, namely, Mangi Bai, Pana Bai and
Reena died, thus Section 304A IPC was added.
4. The trial Court framed charges but the petitioner denied
charges and claimed to be tried. The trial Court, after hearing both
the parties, passed an order of sentence and conviction dated
03.08.1999.
5. Aggrieved from the order dated 03.08.1999, the petitioner
filed an appeal before the appellate Court and the appellate Court
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confirmed the conviction of the petitioner vide order dated
17.08.2005. Hence, this petition.
6. Learned counsel for the petitioner submits that the Courts
below erred in passing the order. He submits that the appellate
Court did not consider the record, which includes statements of
the witnesses and material available on record. Learned counsel
submits that the appellate Court ought to have considered the
evidence before arriving at any conclusion.
7. Learned counsel submits that the Courts below failed to
consider the aspect that the prosecution could not prove rashness
and negligent driving on the part of the accused-petitioner before
convicting the petitioner under Section 304-A. Learned counsel
submits that there was no evidence that the petitioner was driving
rashly or negligently. He further submits that the Courts below
failed to consider the fact that the due to damage in the tyre, the
vehicle accidently overturned without rashness and negligence on
the part of the petitioner. He submits that the trial Court did not
properly examine the statements of PW - 6 Roop Singh, who has
not been declared hostile. PW - 6 Roop Singh, in his statements,
stated that the petitioner - Vinod Kumar was not driving the
vehicle and one 'Harijan' was driving the vehicle and he does not
know his name. PW - 7 Ganesh Ram and PW - 10 Ram Dayal has
also admitted that one 'Harijan' was driving the vehicle, however,
PW - 10 Ram Dayal was turned hostile.
8. Learned counsel further submits that the Courts below failed
to consider the fact that the prosecution has not produced the
witness Abdul Farid, Head Constable who conducted the medical
examination of the Vehicle but did not examine tyres of the
[2024:RJ-JP:12822] (4 of 8) [CRLR-813/2005]
vehicle, which is clear from the documents submitted by the
prosecution. He further submits that the prosecution did not
examine the investigating officer to prove its case. He further
submits that Courts below failed to consider that the prosecution
has failed to prove its case under Section 279 IPC. The trial Court
has not considered the material available on record in this regard.
Learned counsel submits that the Courts below failed to consider
the aspect that there was no material on record to convict the
accused-petitioner under Section 337 IPC. Learned counsel
submits that the Courts below have overlooked the material
aspects of the statements of the witnesses along with the
documents. The Courts below have failed to consider the aspect
that Head Constable and Investigating Officer have not been
produced by the prosecution and no reason was given for their
non-production. He further submits that the petitioner was not
given opportunity of hearing on the point of sentence under
Section 235 Cr.P.C. Learned counsel submits that Sections 360 &
361 CrP.C. are mandatory provisions and no reason has been given
in connection with these provisions. In view of the above, learned
counsel for the petitioner prays that the orders dated 17.08.2005
and 03.08.1999 may be quashed and set aside.
9. Learned Public Prosecutor vehemently opposes the prayer
made by learned counsel for the petitioner.
10. I have considered the submissions made by learned counsel
for the parties and perused the material available on record.
11. It is settled law that powers conferred under Section 397 of
CrPC are very limited and Court can interfere only when there is
apparent error on record and order under challenge is grossly
[2024:RJ-JP:12822] (5 of 8) [CRLR-813/2005]
erroneous or the finding recorded is based on no evidence or the
material evidence is ignored and judicial discretion is exercised
arbitrarily or perversely. In the light of the above, this Court has to
see whether there is illegality and perversity in the findings arrived
at by both the Courts below.
12. The accused-petitioner after reading over the substance by
the learned trial Court has admitted the fact that at the time of the
accident, he was driving the Matador. Similarly, in the statement
recorded under Section 313 of the Cr.P.C., he reiterated the fact
that he was driving the questioned vehicle. Therefore, accused is
staved off from objecting that he was not the driver of the vehicle
at the time of occurrence. The accused has also accepted the fact
that due to an accident passengers sustained injuries and Mangibi,
Panabai and girl child Reena aged two years lost their lives.
Material eye-witnesses PW1 Birdhilal, PW-2 Rampartap, PW-3
Babulal, PW-4 Ramkaran, PW-5 Parmanand, PW-6 Roopchand, PW-7
Ganeshlal, PW-8 Radhyshyam, PW-9 Bherulal, PW-10 Ramdayal,
PW-11 Kastoori and PW-12 Rajulal unequivocally substantiates the
prosecution story that accused-petitioner was driving the Matador
speedily and despite warning gave deaf ears to their voices,
ultimately resulting into its turtling and loss of life to three persons
and injuries to the witnesses. In cross-examintion of the eye-
witnesses, accused tried to raise multiple defences and all the
witnesses denied the fact that the accident occurred due to some
mechanical defect in the Matador or due to the sudden bursting of
a tyre or the coming up of a stray animal. This exhibits that the
accused did not have any specific defence and tried to come up
[2024:RJ-JP:12822] (6 of 8) [CRLR-813/2005]
with inconsistent defences. Therefore, I do not find any perversity
in the findings arrived at by both Courts below.
13. Learned counsel for the accused-petitioner in alternative
prays that accused-petitioner has now attained the age of 59
years and occurrence relates back to 1990 and the accused-
petitioner has already served the sentence of about 01 month 13
days out of maximum sentence of two years S.I. awarded to him.
Therefore, sentence awarded to accused-petitioner may be
reduced to period already undergone by him.
14. Learned counsel for the accused-petitioner places his
reliance upon the judgments passed in Mahipal Vs. State of
Rajasthan: 2016 SCC OnLine Raj 277, Dilip Singh Vs. State: 2015
SCC OnLine Raj 9919 & Bhanwara Ram Vs. State of Rajasthan:
2020(3) RLW 2348 (Raj.)
15. Per contra, learned Public Prosecutor has vehemently
opposes the prayer to reduce the sentence of accused-petitioner
as already undergone. He fervently submits that due to the rash
and negligent act of the accused-petitioner, three persons
succumbed to death and many persons got seriously injured.
Therefore, no leverage may be given to the accused-petitioner.
16. The Hon'ble Apex Court in the matter of State of Punjab Vs.
Dil Bahadur rendered in Criminal Appeal No.844/2023 SLP
(Criminal) No.2984 of 2018 dated 28.03.2023 after referring the
judgments of State of M.P. Vs. Bablu 2014 (9) SCC 281 held as
under:-
"the prime objective of criminal law is the
imposition of adequate, just, proportionate punishment
which is necessary with the gravity nature of crime and
[2024:RJ-JP:12822] (7 of 8) [CRLR-813/2005]
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, the solemn duty of the Court
to strike a proper balance while awarding the sentence
as awarding the lesser sentence encourages any
criminal and as a result of the same, the society
suffers."
(Emphasis supplied)
The Hon'ble Apex Court in the matter of State of Punjab Vs.
Dil Bahadur set aside the judgment of Hon'ble Punjab and Haryana
High Court whereby, Hon'ble High Court upheld the conviction of
respondent under Section 304A of the IPC. However, has reduced
the sentence from two years to eight months, subject to prior
deposit of Rs.25,000/- towards compensation to be paid to
family/legal heirs of the deceased. The Hon'ble Apex Court in the
above matter, restored the sentence of two years and fine
imposed by the trial Courts below.
17. Considering the facts of the present case, I am of the view
that sentence awarded to accused-petitioner under Sections 279,
337 and 304A of the IPC commensurate with the offence
committed and there is no cogent reasons for the Court to reduce
the sentence of the accused-petitioner.
18. In view of the above, the criminal revision petition is
dismissed. The accused-petitioner is on bail. His bail bonds and
sureties are forfeited. He is directed to be taken into custody
[2024:RJ-JP:12822] (8 of 8) [CRLR-813/2005]
forthwith and sent to the concerned Jail to undergo the remaining
period of his sentences. All pending applications are disposed of.
Record of the learned Courts below be sent back forthwith.
(PRAVEER BHATNAGAR),J
Preeti Asopa /Rahul Joshi
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