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2015 DIGILAW 722 (GUJ)

Abdul Afiz Gulamrasul Vohra v. State of Gujarat

2015-07-23

SONIA GOKANI

body2015
JUDGMENT : Sonia Gokani, J. 1. Learned Chief Judicial Magistrate, First Class, Petlad in Criminal Case No. 2313 of 1991 awarded conviction and sentenced the petitioner-accused for the offence punishable under Section 304 (A) IPC for a period of six months; and for the offence punishable under Section 279 IPC and Section 184 of the Motor Vehicle Act, 1988 he was ordered to suffer simple imprisonment for a period of one year; and for the offence under Section 338 IPC, simple imprisonment for two months. They all are to run concurrently. This came to be confirmed by the learned Extra Assistant Sessions Judge, Nadiad vide Order dated 23rd July 2004 in Criminal Appeal No. 8 of 1998. 2. Brief facts are as follow : 2.1. On 23rd June 1991, when the applicant was driving a Tempo bearing registration No. GUG 7906 at around 18:45 hours on Sojitra Gansol Road, he lost control on the vehicle and as a result of which the vehicle turned turtled and fell into a ditch resulting into serious injuries to seven home-guard personnels and twenty-one others with minor injuries. One of the home-guard personnels sitting in the said vehicle namely Ramanbhai Gordhanbhai Parmar lost his life due to injuries sustained by him. The Court after recording evidence of those sitting in the vehicle and those who were injured, also took into account the medical evidence and concluded that there was clear negligence on the part of the driver. The panchnama of the Tempo also came to be recorded where it was noticed that the axle had also not broken down. The Court also noted that since the vehicle was in speed at the time of accident, in an attempt to apply the brakes to the vehicle, it had turned turtled, resulting into serious injuries to the witnesses. 3. The appellate Court also appreciated the evidence which was before it and concluded negligence on the part of the applicant-accused. There was nothing to indicate failure of brakes nor any sudden break-down. 3. The appellate Court also appreciated the evidence which was before it and concluded negligence on the part of the applicant-accused. There was nothing to indicate failure of brakes nor any sudden break-down. The Court observed that twenty eight persons were sitting in the vehicle, who all were on official duty of Election, and therefore, the accused ought to have been more careful by sheer number of persons it was carrying and the nature of duty they were performing and he could not have driven the vehicle in rash and negligent manner, and therefore, the Appellate Court has confirmed the judgment and order of conviction so also the order of sentence of the trial Court. 4. Nothing is on record to indicate wrong appreciation of evidence nor non appreciation of material available. It is also not the case of erroneous application of law to the facts proved on any manifest illegality in reaching to such conclusion on the strength of oral and documentary evidence. In fact, it could be noticed from the oral as well as documentary evidence, particularly from the version of injured witnesses so also panchnama of scene of offence, etc., that both the Courts committed no error much less any illegality in convicting the petitioner. They also aptly regarded the defence of petitioner while so deciding. No interference is desirable as far as order of conviction is concerned. 5. However, in respect of order of sentence, it is earnestly urged that the petitioner had unblemished record prior to this incident and he has already suffered all these years with hanging sword of conviction. It is also requested that mercy be shown to him, keeping in view his personal circumstances. 5.1 Bearing in mind factual matrix and also strong mitigating circumstances, which emerged in the instant case for reduction of sentence are - efflux of time in conducting the revision application i.e., twenty four years and such delay cannot be attributed to the applicant herein. Therefore, in such circumstances, it would be appropriate to direct payment of fine and compensation as far as sentence is concerned. The period undergone should be construed as sufficient for the purpose of sentencing under Section 304A IPC, particularly in absence of there being any allegation against the accused that at the time of accident, he was under the influence of any drug or intoxicant substance impairing his driving skills. 6. The period undergone should be construed as sufficient for the purpose of sentencing under Section 304A IPC, particularly in absence of there being any allegation against the accused that at the time of accident, he was under the influence of any drug or intoxicant substance impairing his driving skills. 6. On the aspect of compensation, the law on the subject is well settled and it is desirable to grant compensation in a criminal matter, which results into conviction. Right from the decision in case of Hari Kishan v. Sukhbir Singh, AIR 1988 SC 2127 , till the decision of the Apex Court in case of Suresh & Anr. v. State of Haryana, reported in 2015 (2) SCC 227 , the Apex Court has time and again mandated grant of amount of compensation to the victim by holding that Section 357A has been incorporated in CrPC vide Act 5 of 2009 and the amendment duly came into force in view of the Notification dated 31.12.2009. The object and purpose of Section 357A CrPC is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 CrPC is not adequate or where the case ended in acquittal or discharge and the victim is required to be rehabilitated. The provision was incorporated on the recommendation of the 154th report of the Law Commission. It recognises compensation as one of the methods of protection of victims. 7. In case of Manish Jalan v. State of Karnataka, reported in (2008) 8 SCC 225 , the Apex Court while partly allowing the appeal has held and observed, thus - "16. True that in the instant case, the appellant has been found to be guilty of offence punishable under Sections 279 and 304-A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the lost of a precious human life. But, it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment. 17. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment. 17. Having regard to all these facts and bearing in mind the fact that the mother of the victim has no grievance against the appellant and has prayed for some compensation, we are of the view that a lenient view can be taken in the matter and the sentence of imprisonment can be reduced. We are of the opinion that the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone but in addition thereto, the appellant should be directed to pay an amount of Rs. 1,00,000/- to the mother of the deceased by way of compensation. The learned counsel for the appellant, in fact, indicated that his client was willing to pay that much amount. We order accordingly." 8. It could be noticed from the above decision that the Apex Court while partly allowing the appeal has taken note of the requirement of compensation in criminal cases and recognised the principle of sentencing as a corrective measure. 9. In the instant case, nothing comes on the record as to what amount of compensation is awarded under the Motor Accident case and no record is available in respect of the amount of compensation awarded under the Fatal Accidents Act, 1855 or the Motor Vehicles Act, 1988. Even if that be the case, liability to pay compensation under Section 357A CrPC shall continue. 10. At the same time, the factum of death of a person on account of injuries sustained due to negligent driving of the accused also need to be borne in mind and therefore, it would be in the fitness of the things to direct award of compensation to the tune of Rs. 25,000/- to the family members of the victim by the applicant; and in default, to suffer simple imprisonment for a term of six months by the applicant. 11. It is informed at the bar that the applicant-accused has undergone sentence from 23rd July 2004 to 4th August 2004. The said period undergone shall be treated sufficient. 12. Rule nisi made absolute to the extent above. Direct service is permitted. Order accordingly.