Uttarakhand High Court
Ishfakh vs State Of Uttarakhand on 8 January, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 531 of 2024
Ishfakh ....Revisionist
Vs.
State of Uttarakhand ..... Respondent
Mr. Raj Kumar Singh and Ms. Radha Arya, Advocates for the revisionist.
Ms. Manisha Rana Singh, D.A.G. for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The instant revision is preferred against the
following:-
(A) Judgment and order dated 27.01.2024,
passed in Criminal Case No.674 of 2011
(Case Crime No.101 of 2011), State Vs.
Ishfakh, by the court of Additional Chief
Judicial Magistrate, Vikasnagar, District
Dehradun ("the case"). By it, the revisionist
has been convicted under Sections 279 and
304-A IPC and sentenced as hereunder:-
(i) Under Section 279 IPC, 6 months'
simple imprisonment and a fine of Rs.
1,000/-. In default of payment of fine,
simple imprisonment for a further
period of 15 days.
(ii) Under Section 304-A IPC, 2 years'
simple imprisonment and a fine of Rs.
5,000/-. In default of payment of fine,
simple imprisonment for a further
period of one month.
(B) Judgment and order dated 05.07.2024,
passed in Criminal Appeal No.06 of 2024,
Ishfakh Vs. State, by the court of
Additional District and Sessions Judge,
Vikasnagar, District Dehradun ("the
appeal"), by which, the appeal has been
dismissed and the conviction and sentence
passed in the case, has been upheld.
2. Heard learned counsel for the parties and
perused the record.
3. The case is based on the FIR lodged by
PW1, Pankaj Kumar, according to which, on 07.05.2011,
when the deceased Somindra Kaur was waiting for a
bus, at 2:00 PM, in Harbatpur, a bus bearing
Registration No. UP 07A 8588 ("the vehicle"), driven by
the revisionist, hit her, due to which she sustained
injuries. Subsequently, she died. A report was lodged by
PW1, Pankaj Kumar, based on which Case Crime No.101
of 2011, under Sections 279 and 304-A IPC was lodged.
The investigation was carried out. The Investigating
Officer prepared the inquest; the post-mortem of the
deceased was done; site plan was prepared. Finally
chargesheet was submitted under Sections 279 and
304-A IPC and cognizance was taken.
4. On 10.11.2017, the revisionist was
examined under Section 251 of the Code of Criminal
Procedure, 1973 ("the Code"). The revisionist admitted
that he was driving the vehicle at the relevant time. But
according to him, it was the deceased, who was crossing
the road, while talking on phone, and she herself hit the
bus.
5. The prosecution, in order to prove its case,
examined as many as 7 witnesses, namely, PW1 Pankaj
Kumar, the informant, PW2 Constable Sunil Sharma,
PW3 Sub Inspector Umesh Kumar, PW4 Jaypal, PW5
Sunehri Saini, PW6 Dr. K.S. Chauhan, and PW7 S.I.M.T.
Lalit Singh.
6. After the prosecution evidence, the
revisionist was examined under Section 313 of the Code.
According to him, the witnesses have falsely deposed
against him. He was not driving the vehicle in a rash
and negligent manner. It is the deceased, who came in
front of his bus while running.
7. After hearing, by the impugned judgment
and order passed in the case, the revisionist has been
convicted and sentenced, as stated hereinbefore. This
judgment was unsuccessfully challenged in the appeal.
8. Learned counsel for the revisionist would
submit that the incident took place in a busy street; the
bus was not in a speed; the injury report could
corroborate it. It is argued that had the bus been in a
very high speed, there would have been serious injuries
on the deceased. It is argued that it is the first offence of
the revisionist; he has 7 children back at home; he is in
jail for more than 6 months in the instant case. He
would also submit that the period of sentence may now
be reduced and the sentence may be restricted to the
period of custody, which the revisionist has already
undergone in the case.
9. Learned State Counsel would submit that
the prosecution has been able to prove its case. She
admits that the revisionist is in jail since 05.07.2024.
10. It is a revision. The scope is quite restricted to
the extent of examining the correctness, legality and
propriety of the impugned judgment and order.
Appreciation of evidence is not done generally in such
cases, unless the finding is perverse or admissible
evidence is ignored or inadmissible evidence is taken
into consideration.
11. There are 7 witnesses. PW1, Pankaj Kumar,
has lodged the FIR. According to him, he had witnessed
the incident. On 07.05.2011, at about 2:00 PM, the bus
hit the deceased while she was waiting for a vehicle. The
bus driver managed to escape. He lodged the FIR.
12. PW2, Constable Sunil Sharma, lodged the
FIR.
13. PW3, Sub Inspector Umesh Kumar, is the
Investigating Officer. He has stated about the steps that
had been taken during investigation. According to him,
after the incident, the bus owner had approached the
police station along with the revisionist, who was the
driver. He has arrested him.
14. PW4, Jaypal, is the witness of inquest.
15. PW5, Sunehri Saini, is the neighbour of the
deceased. She is not the eye-witness.
16. PW6, Dr. K.S. Chauhan, has conducted post-
mortem of the deceased. He has proved his report.
17. PW7, Retired S.I. Lalit Singh, had conducted
the technical inspection of the vehicle involved in the
incident.
18. The revisionist has admitted that the accident
took place while he was driving the vehicle. He has a
different version. According to him, the accident took
place when the deceased, while talking over telephone
and crossing the road, hit his bus. Site plan, Ex. P3, has
been proved by PW3, Sub Inspector Umesh Kumar. He
has stated that it was prepared with the help of eye-
witness Kala Saini. In this site plan, the place of incident
is not on the road, instead it is beyond the road, on its
left side, while walking from Harbatpur to Vikasnagar
(South to North).
19. The trial court has rightly held that even if the
deceased was crossing the road while talking over the
telephone, it was the duty of the driver, i.e. the
revisionist, to take care and let the deceased cross the
road. The incident did not take place in any isolated
place. It took place in a market. The duty would have
been little more heavier on the driver of bus to take care
of the persons crossing the road. Therefore, this Court is
of the view that courts below has rightly held that the
prosecution is able to prove the charges under Sections
279 and 304-A IPC against the revisionist. There is no
error, illegality and impropriety in the impugned
judgments and orders, insofar as the conviction is
concerned.
20. Arguments have also been raised on the
question of sentence. Various factors have to be taken
into consideration while awarding a sentence, which
includes the nature of offence, the circumstances under
which the offence took place, the position of the offender,
the victim, etc. It is a case of accident in a market. The
revisionist is already in custody for more than 6 months.
21. Having considered the nature of offence,
the social status of the parties, including the revisionist
and the victim, and other attending factors, this Court is
of the view that the interest of justice would be better
served, if the revisionist is sentenced to the period of
custody, which he has already undergone in the instant
case.
22. The conviction of the revisionist under
Sections 279 and 304-A IPC, as recorded in the case,
and upheld in the appeal is confirmed.
23. The sentence of the revisionist is modified
as follows:-
(i) Under Section 279 IPC, simple
imprisonment for a period of one month.
The fine shall remain unaltered.
(ii) Under Section 304-A IPC, simple
imprisonment for a period of custody,
which the revisionist has already
undergone in the case. The fine shall
remain unaltered.
24. The impugned judgment and orders are
modified to the extent, as narrated above.
25. The revision is partly allowed, accordingly.
26. The revisionist is in custody. He be
released forthwith, if not wanted in any other case.
(Ravindra Maithani, J.)
08.01.2025
Ravi Bisht
RAVI DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
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e6d2018d38d0b669a5c068799391e6bb,
postalCode=263001, st=UTTARAKHAND,
BISHT serialNumber=AA64B1F44E60E652AE5485ED76
4961E4E52FD29C6F03C20917020ED093405536,
cn=RAVI BISHT
Date: 2025.01.08 04:11:07 +05'30'
