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2011 DIGILAW 10 (JK)

State of J. And K. v. Mohammad Sidiq Fafoo

2011-01-31

HASNAIN MASSODI

body2011
JUDGMENT (1) ON 16th September, 1993 at 14:30 hrs. police station Budgam, received information from the reliable sources that one Ghulam Hassan Rather S/o Ghulam Mohd. Rather R/o Yetehgam, was hit by Bus No. JKC-170 at Ichgam. The receipt of the report prompted Police Station Budgam, to register case FIR No. 131 of 1993, under Sections 337,279, RPC. The injured succumbed to injuries in a local hospital and the case was converted into one under Sections 304- A, 279, RPC. After usual investigation charge sheet was filed in the competent Court alleging commission of offence punishable under Sections 304-A, 279, RPC against Sh. Mohd. Sadiq Fafoo - driver of the offending vehicle. The trial court convicted the driver of the offending vehicle accused before the Court of the offences punishable under Section 304-A, RPC and sentenced him to imprisonment of one year and a fine of Rs. 5000/- and to default imprisonment of one year. The amount of fine if realised was directed to be paid to the dependents of the deceased. (2) THE accused /convict threw challenge to the trial Court judgment dated 15th April, 2003 in an appeal before Sessions Judge, Budgam. THE Appellate Court did not find any merit in the appeal and accordingly dismissed it vide order dated 10th May, 2006., However, the Appellate Court reduced the sentence into simple imprisonment of, one year. THE Appellate Court in other words reduced the sentence awarded by the trial Court by the sentence of fine. (3) THE State as well as accused convict have filed two separate revision petitions,: questioning the order of the Appellate Court. (4) THE State in its revision petition registered as Cr. Revision No. 31 of 2006 is aggrieved with the Appellate Court judgment dated 10th May, 2006 on the grounds that the Appellate Court has modified the sentence awarded by the trial Court without detailing and discussing its reasons for such modification/reduction. It is pointed out that as the punishment prescribed for the offence punishable under Section 304-A, RPC is five years imprisonment of either description and fine, the Aappellate Court while reducing the sentence awarded by the trial Court was to set out convincing reasons and that in any case it was not competent to completely delete the sentence of fine. It is pointed out that as the punishment prescribed for the offence punishable under Section 304-A, RPC is five years imprisonment of either description and fine, the Aappellate Court while reducing the sentence awarded by the trial Court was to set out convincing reasons and that in any case it was not competent to completely delete the sentence of fine. In the present case, the Appellate Court is said to have failed to give any reasons, let alone cogent and convincing, to reduce /modify the sentence. (5) THE accused/convict in his revision petition registered as Cr. Revision No. 14/ 2006 assails the judgment dated 15th April, 2003 of the trial Court whereby he has been convicted of offence punishable under Ss. 304-A RPC and sentenced to one years imprisonment and fine of Rs. 5000/- and default imprisonment of one year, as also the judgment of the Appellate Court dated 10th May, 2006 whereby his appeal has been dismissed, on the grounds that the trial Court failed to appreciate that the prosecution withheld important prosecution witnesses namely PW Ghulam Mohd. Bhat, who made a mechanical check of the vehicle, PW constable No. 389/BD - a witness to the seizure of the vehicle and PW Dr. Saleem, who examined and attended to the deceased in the hospital and that non examination of the witnesses cast a shadow on the veracity of the prosecution case. THE Courts below are also said to have ignored contradictions in the statement of Investigating Officer. It is insisted that the Trial Court and the Appellate Court failed to appreciate that none of the witnesses cited by the prosecution was present at the time of the accident, and a witness to the occurrence inasmuch as all of them admittedly were busy in their work in the adjoining fields when the accident took place. THE defence version is said to have been not given due weightage by the Trial Court and the Appellate Court. THE petitioner is aggrieved that the Trial Court and the Appellate Court while rendering their judgments have not directed the period of police and judicial custody, to be set off against the sentence awarded. THE other grounds urged in the petition are intended to persuade the Court to show compassion to the petitioner. THE petitioner is aggrieved that the Trial Court and the Appellate Court while rendering their judgments have not directed the period of police and judicial custody, to be set off against the sentence awarded. THE other grounds urged in the petition are intended to persuade the Court to show compassion to the petitioner. It is pleaded that the petitioner is a father of three minor children and has a grown up deaf and dumb sister, to look after and that in absence of the petitioner his dependents would be left with no source to fall back upon. (6) HEARD and considered. (7) SINCE challenge in Cr. Revision No. 14/2006 filed by the accused/convict is not restricted to the Appellate Court judgment but trial Court judgment is also called in question, it would be appropriate to deal with the revision filed by the accused/convict in the first instance. For, in case challenge succeeds, there would be no need to deal with the revision filed by the State. (8) THE main edifice of petitioner's case in Cr. Revision No, 14/2006 is that as the prosecution had withheld three of its listed witnesses, an adverse influence ought to have been drawn against the prosecution and its case thrown out on the said ground alone. THE legal proposition put forth by learned counsel for the petitioner that failure of one or more prosecution witnesses must invariably lead to dismissal of the prosecution case is far from convinoing. THE prosecution is not duty-bound to examine each and every witness listed in the calendar of witnesses appended to the charge sheet. THE list of wit nesses given in the charge sheet does not bind down the prosecution to examine all the wit nesses or not to travel beyond the list. It for the prosecution to decide as the trial pro ceeds on the number of witnesses that in its opinion is likely to enable it to sail through and prove its case. It is not the quantity but quality that matters and the law in any case discourages repetition of evidence. To illustrate, if there are four witnesses to seizure of a prosecution item likely to be produced a prosecution evidence during the trial, the prosecution may without danger of it being accused of withholding prosecution wit nesses, feel contended with examination of only one or two of the witnesses to such seizure. To illustrate, if there are four witnesses to seizure of a prosecution item likely to be produced a prosecution evidence during the trial, the prosecution may without danger of it being accused of withholding prosecution wit nesses, feel contended with examination of only one or two of the witnesses to such seizure. Again there may be witnesses listed in the charge sheet who are expected to depose as regards peripheral or fringe matters and not the core of the prosecution case. THE prosecution instead of burdening the record and claiming the precious time resources of the Court may settle on examining only few of such witnesses. However, position would be different if a material prosecution witness who is to depose regarding core of the prosecution case, is not examined, depriving the accused/convict of an opportunity to elicit true facts in cross examination from such witness. In such case also mere failure of the witness to stand in the witness box would not be by itself fatal to the prosecution case. THE prosecution would be within its rights to give cogent and convincing reasons for absence of such witness from the witness box and in case the Court is satisfied with the explanation given, failure of the prosecution to examine such witnesses is not to have any negative fallout on the prosecution case. In :he present case, all the three witnesses mentioned in the petition, who according to the petitioner did not cross the witness box are lot in the context of the prosecution case, naterial prosecution witness and their absence does not in any matter cast a shadow on the prosecution case, otherwise, convincingly proved against the accused/convict. (9) THE plea that none of the witnesses cited in the charge sheet was a witness to the accident and that some of the prosecution witnesses have been erroneously shown as d witness to the occurrence is devoid of any substance. True that the witnesses shown as eye witnesses were busy in their agricultural operation in the fields near the place of accident, yet for that reason alone they cannot be said to have not witnessed the accident and seen the deceased being run over by the vehicle driven rashly and negligently by the accused /convict. True that the witnesses shown as eye witnesses were busy in their agricultural operation in the fields near the place of accident, yet for that reason alone they cannot be said to have not witnessed the accident and seen the deceased being run over by the vehicle driven rashly and negligently by the accused /convict. THE witnesses, as is being projected by learned counsel for the petitioner could not anticipate the accident, leave : their fields well in advance, stand on the road side before the accident took place and wait for the deceased to be run over by the speeding bus driven by the accused/convict, so as to be cited as witnesses to the occurrence. THEre is,' thus, no reason to disagree with the trial Court and the Appellate Court and rush to the opinion that witnesses cited as witness to the occurrence were not present near the place of accident and did not witness the accident. (10) THE plea that defence stand was not given due weightage is equally without merit. THE trral Court as well as the Appellate Court have looked at the prosecution evidence from all aspects and after holistic view of the evidence brought on the file as also stand taken by the accused/convict held the prosecution to have proved its case against the accused/ convict beyond reasonable doubt. THE impugned judgments in the circumstances do not suffer from any irregularity or illegality or impropriety. (11) THIS takes us to the next limb of the case set up in the revision petition. In terms of Section 397-A, Code of Criminal Procedure Svt. 1989 the period of detention undergone by the accused is to be set off against the sentence of imprisonment. It reads :- "Where an accused person has on conviction been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Provided that where an accused person is in detention as an undertrial and the period prescribed under the law as the maximum period of sentence for offence alleged to have been committed by him expires, he shall be entitled to bail". (12) IN the present case both the trial Court and the Appellate Court have observed the mandate of the provision in breach. Neither the trial Court nor the Appellate Court have found it necessary to direct the period of detention undergone by the accused/convict to be set off against the period of sentence. The lapse is likely to prejudiciously affect the accused /convict. The Trial Court judgment dated 15th April, 2003 and the Appellate Court judgment dated 10th May, 2006 suffer from illegality and warrants interference under Section 435 of the Code. (13) LET us now shift focus to Criminal Revision No. 31/2006 filed by the State against the Appellate Court judgment dated 10th May, 2006. The petitioner grievances is two fold :- (14) FIRSTLY, it is pointed out that the Appellate Court after upholding the Trial Court judgment and sentence has without giving any reasons rushed to modify the sentence. Secondly, it is pleaded that the Appellate Court unmindful of the punishment prescribed under Section 304-A, RPC has deleted the sentence of fine awarded by the trial Court. Both the grievances are valid and have merit. (15) THE Appellate Court in terms of Section 423 of the Code in an appeal from conviction may dispose of the appeal in the following manner :- (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of Section 106, sub-section (3), not so as to enhance the same; (16) IT follows that the Appellate Court is well within its power to reduce the sentence or alter the nature of the sentence without recording any disagreement as regards the finding returned by the Trial Court. In other words, the Appellate Court may reduce the term or quantum of sentence i.e. period of imprisonment or amount of fine and alter the sentence i.e. rigorous imprisonment into simple imprisonment. However, like any other power this power in view of its plentitude is to be exercised not in an arbitrary manner. The power is to be exercised objectively detailing the reasons for such reduction or alteration as recording reasons is the test of objectivity. The reasons given tell us, what prompted the Appellate Court to reduce or alter the nature of the sentence and then to test whether such reasons are valid or tainted with perversity. (17) IN the present case we do not find a whisper in the Appellate Court judgment dated 10th May, 2006 as regard the reasons that made the Appellate Court to modify the sentence. IN the first place the Appellate Court without going through the Trial Court judgment worked on the assumption that the accused/convict was to suffer rigorous imprisonment of one year. The Trial Court judgment does not indicate that the imprisonment to be undergone by the accused/convict was rigorous in nature. It is pertinent to point out that whenever the Trial Court while awarding sentence of imprisonment does not indicate nature of imprisonment, it is to be taken as simple imprisonment. The Appellate Court erroneously recorded in judgment that the accused /convict was sentenced to one year rigorous imprisonment and thereafter converted it into simple imprisonment. The Appellate Court as a matter of fact neither reduced nor altered the nature of the imprisonment. However, the Appellate Court altogether deleted the sentence of fine awarded by the trial Court. This was done by the Appellate Court without recording reasons and oblivious to the punishment prescribed under Section 304-A, RPC. Section 304-A, RPC needs to be noticed. 304-A Whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. Provided that where the death is caused by rash and negligent act by a person driving a motor vehicle without holding a driving licence, the minimum imprisonment under this section shall be two years. Provided that where the death is caused by rash and negligent act by a person driving a motor vehicle without holding a driving licence, the minimum imprisonment under this section shall be two years. (18) IT is evident that punishment prescribed under law is imprisonment of either description and fine. Neither the trial Court nor the Appellate Court in exercise of powers under Section 423(1) (b) of the Code can in the event of conviction of an accused of offence punishable under Section 304-A, RPC omit to award or delete sentence of fine. The Appellate Court may reduce the amount of fine but cannot modify/alter sentence so as to altogether delete the sentence of fine. Neither is the trial Court or the Appellate Court in exercise if powers under Section 423 (1) (b) of the Code competent to award subminimal sentence. This cannot be done even for the reasons recorded by the trial Court or the Appellate Court. In the present case though the Appellate Court was competent to reduce the sentence of Rs. 5000/- fine but it had no power even for the reasons recorded to altogether delete the sentence of fine. The Appellate Court judgment, thus, suffers from an irregularity to the said extent and is required to be corrected in exercise of powers under section 435 of the Code. (19) LET us last of the all go to the grounds that are spelt out in the criminal revision No. 14/2006 filed by the accused/convict that according to him "constitute mitigating and extenuating circumstances" and call for a lenient view. The accused/convict has been before the Courts, one after another for last eighteen years. Though long drawn trial faced by the accused/convict cannot be technically taken as substitute for punishment yet it has undoubtedly exposed the accused/convict to immense hardship and taken to have drained his meagre resources. The accused/ convict has, to provide for a family of five members including a physically challenged sister. All these factors together constitute extenuating and mitigating circumstances, warranting a lenient view. (20) FOR the reasons discussed, the Trial Court and Appellate Court judgment dated to the extent the judgment omit to direct setting off the period of custody against the sentence awarded, and altogether deleting the sentence of fine are set aside. All these factors together constitute extenuating and mitigating circumstances, warranting a lenient view. (20) FOR the reasons discussed, the Trial Court and Appellate Court judgment dated to the extent the judgment omit to direct setting off the period of custody against the sentence awarded, and altogether deleting the sentence of fine are set aside. Though one of the option available is to remand the matter to the Trial Court for a fresh look as regards quantum of sentence in the backdrop of above observations yet long pendency of the matter does not suggest such recourse. (21) IN the circumstances, while conviction of the accused/convict - for the offence punishable under Sections 304-A, RPC, 279, RPC is maintained, sentence is reduced to six months simple imprisonment and a fine of Rs. 2500/- to be paid on realization to the dependents of the deceased. The period of custody in connection with case FIR No. 131 of 1993 under Section 304, RPC in terms of Section 397-A, Cr. P. C. be set off against the period of sentence. The accused/convict accordingly shall appear before the Trial Court to be remanded to Central Jail, Srinagar to suffer the sentence. IN default Trial Court shall take steps under Law to secure presence of accused and thereafter remand him to Central Jail Srinagar in accordance with (sic) Order accordingly.