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2002 DIGILAW 188 (HP)

UMA SHANKAR v. STATE OF HIMACHAL PRADESH

2002-07-05

W.A.SHISHAK

body2002
JUDGMENT W.A. Shishak, C.J.—Heard Mr. Bhupinder Ahuja, learned vice Counsel for the petitioner and Mr. R.M. Bisht, learned Assistant Advocate General, for the State. 2. The matter relates to an incident, which took place in 1994, involving the death of a child of about five and half years old. The case was registered under Sections 279 and 304-A of the Indian Penal Code. The petitioner was found guilty and he was accordingly convicted under aforesaid Sections of law sentencing him to pay a fine of Rs. 1,000/- under Section 279 of the Indian Penal Code and also to undergo simple imprisonment for two years under Section 304-A of the Indian Penal Code. When this matter was taken up for hearing on 19th April, 2002, learned Counsel representing the petitioner submitted that he was unable to make submissions on merits and instead he would appeal to the Court to consider this petition, on humanitarian grounds. On that day, I was of the view" that it would be just to allow little more time to enable the learned Counsel for the petitioner as well as learned Assistant Advocate General to give thought to the matter, so that they would be able to render useful assistance to the Court before final orders are passed. 3. In the nut shell, the prosecution story is that on 4th June, 1994, at about 1.15 p.m. when the petitioner was driving bus No.DBP-833 on the Public Highway at village Swahan, a small child, namely, Hari Chand, aged about five and half years was run over, due to rash and negligent driving of the petitioner. The said child died on the spot. The case was registered under Sections 279 and 304-A of the Indian Penal Code and investigation was carried out, charge sheet was framed and the petitioner was put on trial. The petitioner pleaded not guilty to the charge. The prosecution examined as many as seven witnesses. Statement of the petitioner was also recorded under Section 313 of the Code of Criminal Procedure. After hearing the parties and on consideration of the evidence recorded in the present case, the Court of Judicial Magistrate 1st Class at Bilaspur came to the conclusion that the prosecution had proved the case beyond doubt. Accordingly, the petitioner was convicted under the aforesaid Sections of law and sentenced him to pay a fine of Rs. After hearing the parties and on consideration of the evidence recorded in the present case, the Court of Judicial Magistrate 1st Class at Bilaspur came to the conclusion that the prosecution had proved the case beyond doubt. Accordingly, the petitioner was convicted under the aforesaid Sections of law and sentenced him to pay a fine of Rs. 1,000/- under Section 279 of the Indian Penal Code and also to undergo sentence of simple imprisonment for two years under Section 304-A of the Indian Penal Code. 4. Being aggrieved, the petitioner preferred an appeal before the learned Sessions Judge at Bilaspur by a Criminal Appeal No. 33 of 1995. The learned Sessions Judge disposed of the appeal upholding the order of conviction and sentence passed by the learned Judicial Magistrate 1st Class at Bilaspur vide order dated 9th July, 1999. Hence, this revision petition. 5. As stated above, since the matter has not been argued on merit, I have heard the learned Counsel for the petitioner as to the circumstances, which justify this Court to consider the revision petition from the humanitarian point of view. 6. First submission of the learned Counsel for the petitioner is that the incident took place in June, 1994 and eight years have passed after the said incident. According to the learned counsel, it would be extremely harsh to send this petitioner to jail after such a long gap of time. In support of his submission, reliance was placed on a case decided by the Supreme Court in Jagdish Chander v. State of Delhi, AIR 1973 SC 2127. Paragraph 9 of the said judgment is extracted hereinbelow : "The more difficult question seems to be one of sentence in the present case. The accident took place on April 20, 1965, the trial Court convicted the appellant on April 30, 1966 sentencing him to rigorous imprisonment for 6 months and to a fine of Rs. 500/-. His appeal was dismissed by the Addl. Sessions Judge on September 7, 1966 and his revision was disallowed on September 11, 1969. He was ordered to be released on bail by this Court on February 2,1970. We are now in May, 1973. The criminal proceedings against the appellant have thus gone on since April, 1^65 which means a little more than 8 years. Sessions Judge on September 7, 1966 and his revision was disallowed on September 11, 1969. He was ordered to be released on bail by this Court on February 2,1970. We are now in May, 1973. The criminal proceedings against the appellant have thus gone on since April, 1^65 which means a little more than 8 years. The circumstances in which the collision between the truck and the appellants scooter occurred seems prima facie to suggest that they (their drivers) were both to blame. Penalties designed to deter crime should be gauged so far as possible to the degree of social danger that is represented by the crime and its repetition. To send the appellant back to Jail to serve the sentence of 6 months after 3 years seems to us to be highly unjust for the kind of offence which has-been upheld against him by the three covirts below. It is unlikely to have any reformatory affect on him. Harassment of a criminal trial for more than 8 years and the expense which he must have incurred, in our opinion, can legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time. The appellant is stated to have served out only three weeks of imprisonment but on a consideration of all the relevant circumstances of the case we think it would be just and proper to reduce the sentence of imprisonment to that already undergone but to increase the sentence of fine from Rupees 500/- to Rs. 700/-. Out of the fine, if realised, Rs. 500/- should be paid to the mother of the deceased child. We, however, cannot help expressing our grave concern over the inordinate delay in the disposal of criminal cases including appeals and revisions. If our criminal justice is to achieve its real purpose and if it is to inspire the confidence of the people generally causes for such delays should be eliminated as early as practicable. Laws delays tend to turn justice sour. The appeal is allowed in part in the terms stated above." 7. Learned Counsel submits that the present case is similar to the case dealt with by the Supreme Court in the aforesaid case. 8. An affidavit has also been filed by the petitioner highlighting some of the hard circumstances with which he is now faced. The appeal is allowed in part in the terms stated above." 7. Learned Counsel submits that the present case is similar to the case dealt with by the Supreme Court in the aforesaid case. 8. An affidavit has also been filed by the petitioner highlighting some of the hard circumstances with which he is now faced. Paragraph 2 of the said affidavit states that the petitioner is a very poor person and he has a large family to support. The father of the petitioner died in the year 1994. The mother of the petitioner is more than 74 years of age now and she is entirely dependent upon the petitioner. It is further stated that the petitioner has been driving the bus belonging to another person and he does not earn high salary like the Government employees. It is further stated that the petitioner has four children, who are all minors and with great difficulty he is sending them to School to receive basic education. In paragraph 5, it is further stated that the brother of the petitioner died in an accident leaving behind him his widow and three children, who are all now dependent upon the meagre earning of the petitioner. It has been submitted that the petitioner has become quite repentant of what had happened eight years ago. 9. Though I have not heard learned Counsel for the petitioner on merit, he has stated at the Bar today that in fact the small child, who was run over on the fateful day suddenly rushed in front of the vehicle being driven by the petitioner and in this view of the matter, according to the learned counsel, the Courts below ought not to have held that the death of the child was wholly due to the negligence or rash driving of the petitioner. Be that as it may, as far as the merit of the case is concerned, the matter stands concluded. The learned Assistant Advocate General submits that once the sentence of imprisonment has been inflicted, it cannot be converted into a fine only 10. I have given serious thought to the circumstances that have been placed before me. I have also perused paragraph 9 of the Supreme Court decision, referred to above. The learned Assistant Advocate General submits that once the sentence of imprisonment has been inflicted, it cannot be converted into a fine only 10. I have given serious thought to the circumstances that have been placed before me. I have also perused paragraph 9 of the Supreme Court decision, referred to above. Taking into consideration various circumstances surrounding the life of the petitioner that he has to maintain his old mother, his own minor children and the minor children of his brother and also his brothers widow and also the fact that unfortunately the incident took place eight years ago, if this man is sent to Jail to undergo imprisonment, welfare of the entire family is likely to be seriously affected. Further, I am of the view that for an incident which took place in 1994 to send this man to Jail now in 2002 will be extremely harsh and unfair. In the result, this petition is disposed of with the direction that sentence of simple imprisonment for two years under Section 304-A of the Indian Penal Code shall be converted into a sentence of fine, which I would quantify at Rs.7,000/-. This sum of Rs.7,000/- is apart from the sentence of fine of Rs.1,000/- imposed upon the petitioner under Section 279 of the Indian Penal Code. Let the said sum of Rs.7,000/- be deposited in the Court of Judicial Magistrate 1st Class, Bilaspur latest by 31st August, 2002. On receipt of the said amount of money, the same shall be handed over to the parents of the child. The name of the father is Desh Raj son of Tirath Ram, resident of village Dolra, Sub Tehsil Naina Devi, Tehsil Sadar, District Bilaspur. I have passed this order in the peculiar facts and circumstances of the present case. I also make it clear here that in the event of default of payment, as directed by this Court now, the sentence of imprisonment shall be undergone fully. The revision petition is disposed of in the aforesaid terms. Surety bonds stand discharged.