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2005 DIGILAW 1039 (RAJ)

Laxmi Chand v. State of Rajasthan

2005-04-06

H.R.PANWAR

body2005
JUDGMENT 1. - By the instant criminal revision petition under Section 397/401 Cr.P.C., the accused-petitioner has challenged the judgment dated 10.12.2004 passed by the Sessions Judge, Dungarpur (for short, "the appellate court" hereinafter) in Criminal Appeal No. 20/99, by which the appeal filed by the petitioner has been dismissed and the judgment and order dated 4.8.99 passed by the Chief Judicial Magistrate, Dungarpur (for short, "the trial court" hereinafter) convicting and sentencing the petitioner for the offences under Sections 279 and 304-A, IPC has been affirmed. 2. Briefly stated, the facts giving rise to this revision petition are that on 22.6.1994, complainant PW 7 Dilip Kumar orally informed the Police Station, Varda, district Dungarpur that on account of marriage of his sister, he along with Velji, PW 2 Harish Chandra and PW 1 Gautam Lal, was sitting in the court-yard of his house. His son deceased Gautam Lal, aged about 7 yeas, was sitting in the corner of the court-yard of his house. All of a sudden, one Dumper came there and knocked down deceased Gautam Lal, who sustained injuries on his head and other parts of the body. It was further alleged that the said dumper was being driven rashly and negligent with a high speed by its driver, which leaving the bitumen road, hit the deceased, who died while taking to hospital. It was further alleged that they chased the dumper by a mini-truck but the driver of the dumper hit the mini-truck from its rear portion, due to which the mini-truck plied down towards right side of the road and the dumper ran away. On this report, the investigation ensued. After investigation, challan was filed against the petitioner. The trial court, after hearing the parties and appreciating the evidence on record, vide judgment and order dated 4.8.1999, came to the conclusion that the accident occurred due to rash and negligent driving of the dumper by the petitioner and consequently convicted the petitioner for the offences under Sections 279 and 304-A, IPC and sentenced him to three months' simple imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo 15 days' simple imprisonment for the offence under Section 279 IPC; and one year's simple imprisonment and a fine of Rs. 2000/-and in default of payment of fine further to undergo two months' simple imprisonment for the offence under Section 304-A, IPC. 500/- and in default of payment of fine further to undergo 15 days' simple imprisonment for the offence under Section 279 IPC; and one year's simple imprisonment and a fine of Rs. 2000/-and in default of payment of fine further to undergo two months' simple imprisonment for the offence under Section 304-A, IPC. Being aggrieved by the judgment and order dated 4.81999, accused-petitioner preferred an appeal, which has been dismissed by the appellate court vide impugned judgment dated 10.12.2004. Hence this revision petition. 3. I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Perused the judgments of the courts below and the record of the case. 4. It has been contended by the learned counsel for the petitioner that the accident did not occur due to any rash and negligent driving of the dumper but it occurred on account of the fact that all of a sudden the deceased crossed the road and came in contact of the dumper. His further contention is that though the prosecution witnesses could not have seen the accident and being relatives interse, they have claimed themselves to be the eye witnesses. 5. PW 1 Gautam Lal and PW 2 Harish Chandra are the eye witnesses of the occurrence. In their statement, these two eye witnesses have specifically stated that the accident took place on account of the rash and negligent driving of the dumper by its driver, i.e. the petitioner. These eye witnesses have clearly stated that deceased Gautam was playing beneath a Neem tree and the dumper crossing the heap of sand and pebble, knocked down the deceased. These two witnesses, being relatives, were present there on account of marriage of the sister of the complainant. 6. PW7 Dilip Kumar is the father of the deceased and has stated that at the time of the accident, he was sitting in the court-yard of his house and on hearing the cries, he went to the spot and saw his son Gautam seriously i injured. In his statement, he has stated that the dumper was going towards Sagwara town and when it reached near his house, its driver accelerated the speed, on account of which the dumper left the road and the front wheels of the dumper knocked down his son Gautam. In his statement, he has stated that the dumper was going towards Sagwara town and when it reached near his house, its driver accelerated the speed, on account of which the dumper left the road and the front wheels of the dumper knocked down his son Gautam. He has further stated that they chased the dumper by a mini truck but on account of being hit by the dumper, the mini-truck fell into a pit. 7. PW 4 Ratan Singh is the investigating officer. He has denied the suggestion put by the defence that the place of accident cannot be seen from the place from where the eye witnesses claimed to have seen the accident. He has proved the site plan and the site inspection memo Ex.P/4, according to which the dumper climbed over the heap of concrete lying nearly 4 feet away the road-side and hit the deceased. The site plan further suggests that there was a road-turn at the place of accident. 8. PW 4 Dr. Rakesh Verma conducted autopsy on the corpse of the deceased and stated that the cause of death was the injury caused to the head of the deceased. He has further stated that all the injuries were ante-mortem in nature. 9. Thus, from the evidence on record it is clearly established that the story put forward by the defence that the accident occurred due to sudden crossing of the road by the deceased, is unbelievable. The prosecution has established the case, beyond any shadow of doubt, against the petitioner that it was on account of rash and negligent driving of dumper by the petitioner that the accident took place and the deceased succumbed to the injuries. Ignoring the road-turn, the petitioner continued to drive the dumper not only rashly but negligently also, which hit the deceased after climbing over the heap of concrete lying nearly 4 feet away the road-side. There is concurrent finding of the courts below regarding the guilt of the petitioner. After going through the record, I am of the view that the courts below have appreciated the evidence in right perspective and there is no illegality, error or perversity in the judgments impugned which may require interference in revisional jurisdiction. 10. There is concurrent finding of the courts below regarding the guilt of the petitioner. After going through the record, I am of the view that the courts below have appreciated the evidence in right perspective and there is no illegality, error or perversity in the judgments impugned which may require interference in revisional jurisdiction. 10. The next contention raised by the learned counsel for the petitioner is that the sentence awarded to the petitioner maybe reduced to the period of imprisonment already undergone by him. In support of his contention, he has placed reliance on decision of the Hon'ble Supreme Court in Lakshmanan v. State of Tamil Nadu, JT 2001 (Suppl) 2 SC 396 , wherein while maintaining the conviction under Section 304-A, IPC, the sentence awarded to the accused was reduced to the period of three months' simple imprisonment. In that case, an old lady of 75 years, while crossing the road, was knocked down by a bus which was being driven rashly and negligently and a plea of contributory negligence was raised. The Hon'ble Supreme Court held that contributory negligence is not a permissible defence but its factor which affects the quantum of sentence. The evidence on record does not suggest any contributory negligence on the part of the deceased. Petitioner has remained in Police custody for one day, i.e. on 23.6.99. Thereafter, since 10.12.2004, he is in jail. Thus, the petitioner has already undergone the imprisonment for 119 days (118+1), i.e. about four months. Looking to the facts and circumstances of the case, I consider it just and proper to reduce the sentence to the period of imprisonment already undergone by the petitioner; however, increasing the amount of fine, with a direction that the amount of fine, if. recovered, shall be paid to the complainant as compensation. 11. Consequently, the revision petition is partly allowed. While maintaining the conviction of the petitioner for the offences under Sections 279 and 304-A, IPC, the sentence of imprisonment is reduced to the period of imprisonment already undergone by the petitioner. However, the amount of fine is increased from Rs. 500/- to Rs. 1000/- for the offence under Section 279 IPC, and from Rs. 2000/- to Rs. 6500/- for the offence under Section 304-A, IPC. The petitioner shall deposit the amount of fine of Rs. 7500/- (1000 +6500) before the trial court within two months. However, the amount of fine is increased from Rs. 500/- to Rs. 1000/- for the offence under Section 279 IPC, and from Rs. 2000/- to Rs. 6500/- for the offence under Section 304-A, IPC. The petitioner shall deposit the amount of fine of Rs. 7500/- (1000 +6500) before the trial court within two months. On fine being deposited by the petitioner, it shall be paid to the complainant Dilip Kumar, father of the deceased, as compensation. The petitioner is in jail and he be set at liberty forthwith if not required in any other case. The application for suspension of sentence stands disposed of.Revision partly allowed. *******