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2022 DIGILAW 111 (BOM)

Prabhakar v. State of Maharashtra

2022-01-12

AVINASH G.GHAROTE

body2022
JUDGMENT Avinash G. Gharote, J. - Heard. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the rival parties. 3. The application challenges the judgment of conviction passed by the learned Judicial Magistrate First Class, Gadchiroli, dated 09.04.2019, convicting the applicant for an offence under Section 279 of the Indian Penal Code (hereinafter to be referred as the 'IPC' for short) for a period of three months with fine of Rs. 1,000/-, (Rs. One Thousand Only), in default 10 days SI and sentence for a period of one year for the offence under Section 304-A of the IPC with fine of Rs. 10,000/-(Rs. Ten Thousand Only), in default SI of 60 days and so also fine of Rs. 1,000/-(Rs. One Thousand Only), under Section 184 of the Motor Vehicles Act, in default 10 days SI and a compensation of Rs. 50,000/-, (Rs. Fifty Thousand Only), the sentences to run concurrently. This judgment, has been confirmed in Appeal by the learned Sessions Judge, Gadchiroli, by his judgment dated 22.09.2020. 4. Mr. Tahaliyani, learned counsel for the applicant submits, that there was no criminal negligence on part of the applicant, which is indicated from the evidence of PW-2. He submits, that the entire prosecution was flawed, inasmuch as, there is nothing on record to indicate what was the speed of the vehicle, width of the road, traffic density, location of the speed breaker, surrounding situation, the position about the light, weather and visibility and the existence of pot holes, all of which are necessary to be brought on record by the prosecution, in order to sustain a conviction of the applicant. Relying upon Chamman Lal Vs. The State, AIR 1954 ALL 186 , it is submitted, that the negligence under Section 304-A of the IPC, must be one which must amount to recklessness or utter indifference to consequences and not merely negligence of tort. Reliance is also placed upon Abdul Subhan Vs. State, 2007 CRI.L.J., 1089, to contend that the expression high speed, is an unclear expression. Reliance is also placed upon A.P. Raju Vs. State of Orissa, 1995 Supp (2) SCC 385, to contend, that the benefit of Section 360 of the Code of Criminal Procedure (hereinafter to be referred as the 'CrPC' for short) or Section 4 of the Probation of Offenders Act, 1958, ought to have been granted to the applicant. Reliance is also placed upon A.P. Raju Vs. State of Orissa, 1995 Supp (2) SCC 385, to contend, that the benefit of Section 360 of the Code of Criminal Procedure (hereinafter to be referred as the 'CrPC' for short) or Section 4 of the Probation of Offenders Act, 1958, ought to have been granted to the applicant. He further points out, that it is not a case, as if the applicant after the incident had run away from the spot but he has taken the victim to the hospital for medical aid, where unfortunately the victim passed away. He therefore submits, that this is an ameliorating circumstance, which would call for the reduction of sentence imposed. He further submits, that the applicant, has already being behind bars for a period from 20.09.2020 to 19.10.2020, which would indicate, that the applicant, has already suffered and may be taken into consideration for the reduction in sentence. 5. Mr. Chutke, learned APP for the non-applicant/State, invites my attention to the evidence of PW-2, who was the eye witness, to contend, that the demise of the victim, is directly attributable, to the action of the applicant, in driving the vehicle in rash and negligent manner, from the middle of the road, whereas, every user of the road, by law is required to use his side of the road. He therefore submits, that there cannot be any contributory negligence on part of the victim in the matter of the accident, and therefore, the position has been correctly considered by the Court's below. 6. The incident has happened on 08.11.2016, and has been witnessed by PW-2, who in his evidence has stated, that he was present on the spot alongwith his wife and has seen the accident caused by the applicant driving a Bolero Jeep, at very high speed, which had dashed against the two wheeler driven by the victim. He further states, that the vehicle was driven from the center of the road. This testimony, has not been shaken in cross-examination. This testimony, has been believed upon and relied by both the Court's below, and nothing has been brought to my notice to the contrary. The evidence which has been brought on record has been correctly appreciated by the Court's below. The contention of Mr. This testimony, has not been shaken in cross-examination. This testimony, has been believed upon and relied by both the Court's below, and nothing has been brought to my notice to the contrary. The evidence which has been brought on record has been correctly appreciated by the Court's below. The contention of Mr. Tahaliyani, learned counsel for the applicant, that details regarding the speed of the vehicle, width of the road, traffic density, location of the speed breaker and surrounding circumstances including condition of the road, has not been brought on record, pales into insignificance in light of the evidence of PW-2, who is the eye witness, who has seen the vehicle driven at high speed, giving a dash to a two wheeler driven by the victim. Of course, as held in Abdul Subhan (Supra), the expression 'high speed' is one, which is unclear, and is relative, however the meaning of the expression has to be construed based upon the factuality of each case and no fixed parameters can be prescribed for the same. The very fact, that the vehicle was in a very high speed and had dashed against the two wheeler resulting in the demise of the victim, in addition to what has been stated by PW-2, that it was driven from the middle of the road, would indicate the establishment of the rash and negligent act on part of the applicant, in view of which, in my considered opinion, Chamman Lal & Abdul Subhan (Supra), relied by the learned counsel for the applicant, do not assist him. 7. That takes me to the plea, that the benefit of Section 360 of the CrPC and the Probation of the Offenders Act, ought to have been granted to the applicant. In my considered opinion, for the purpose of claiming benefit under Section 360 of the CrPC, it is necessary, to bring on record, the character or antecedents of the offender and any attending circumstances, in which, the offence was committed, which would indicate, that it is expedient for the offender to be released on probation on good conduct. In the instant case, though the plea was raised before the learned trial Court, the same has been turned down. In the instant case, though the plea was raised before the learned trial Court, the same has been turned down. That apart, nothing of the aforesaid nature has been brought on record, so as to enable me to exercise discretion under Section 360 of the CrPC, considering which, I am not inclined to accept the request. 8. The next argument, is regarding the reduction of the sentence. Mr. Tahaliyani, learned counsel for the applicant, is correct in saying that the applicant, after the accident did not run away from the spot but has taken the injured to the hospital so that medical aid could be made available to him. In my considered opinion, this is one circumstance, which would be considered in favour of the applicant, who though was involved in the accident has not lost sight of his duty towards the victim in procuring medical aid to the victim. It is quite a different matter altogether, that by the time the medical aid could be procured, the victim had succumbed to his injuries. In my considered opinion, this is one action, which every law abiding citizen should undertake, and therefore, it is an ameliorating circumstance, considering which, I am inclined to reduce the sentence imposed by the learned trial Court under Section 304-A of the IPC. Hence the following order: Order (i) Criminal Revision Application is partly allowed. (ii) The sentence imposed by the learned trial Court, insofar as the conviction under Section 304-A of the Indian Penal Code, is reduced from one year to six months. The rest of the judgment is maintained. 9. Rule accordingly. No costs. 10. Pending application/s, if any, shall stand disposed of accordingly.