Santosh vs State Of M.P

(1) Applicant has preferred this revision petition under Section 397 read with Section 401 of Criminal Procedure Code (In short 'the code') against the judgment dated 28/11/2019 passed by Fourteenth Additional Sessions Judge, Indore in criminal appeal No.260/2016 whereby the judgment of conviction passed by the Court of Judicial Magistrate First Class, Sanwer, District Indore on 02/03/2016 in Criminal Case No.730/2012 has been affirmed wherein the applicant has been convicted for commission of offence punishable under Section 304(A) of IPC, 1860 and sentenced to undergo 1 year R.I. with fine of Rs. 1,000/- with default stipulation.

(2). Relevant facts necessary for adjudicating the present revision are that on 27.07.2012 at about 08:00 pm Omkarsingh alongwith his wife Seema @ Tejubai was proceeded for village Solsindhi on his motorcycle bearing registration No.MP-09-NA-7059. When he reached near the house of Babulal situated at Village Jamnod, at that time motorcycle without having any registration number come from opposite direction which was being driven by the applicant very rashly and negligently and hit the motorcycle of the Omkar Singh resulting thereby he sustained injury on his head and hand. He brought to hospital where during the treatment, he died on 31.07.2012. The incident was reported to the Police Station Sanwer, on the basis of which FIR bearing registration No.406/2012 for offence under Section 304(A) of IPC, 1860 was registered. After completion of investigation, charge-sheet was filed against the applicant before the court of Judicial Magistrate First Class, Sanwer, District Indore.

(3). After conclusion of trial the learned Judicial Magistrate First Class, vide its judgment dated 02.03.2016 has awarded conclusion at paragraph 15 of the judgment that the prosecution has been able to prove that Omkarsingh sustained injuries in the accident which had occurred due to negligent act of the present applicant, while driving the vehicle as a result of which he has died. Therefore, the applicant was convicted for the offence under Section 304(A) of IPC, 1860 and sentenced to undergo 1 year R.I. with a fine of Rs.1,000/-. This judgment was called in question by filing an appeal before the Fourteen Additional Sessions Judge, Indore, which was registered as Criminal Appeal No.160/2016.

(4). The appellate court did not interfere with the order of conviction and repelled the contention of the present applicant that there is material discrepancy in the statement of the eye witnesses. The appellate court was of the view that the identity of the present applicant as a driver of the offending vehicle is well established and according to the statement of all the eye witnesses, the applicant was driving the motorcycle rashly and negligently because of this the accident has occurred. The present revision arises out of rejection of the appeal vide judgment dated 28.11.2019 passed by the Fourteen Additional Sessions Judge, Indore.

(5). Assailing the judgment aforesaid, it is contended by the learned counsel for the applicant that both the Courts below committed grave error by overlooking the fact that there is no eye witness of the incident except Seemabai (PW-4) who happens to be the wife of the deceased. But she could not identify the applicant. The prosecution projected and examined two eye witnesses Arjun Singh (PW-1) and Maya Ram (PW-2) but there are contradictions and omissions in their statement which create suspicion about their presence on the spot. The FIR had been registered with a delay of fourteen days for which no explanation has been given by the prosecution. There is no legal evidence available to show that accident was caused by applicant's motorcycle. Hence, he prays for setting aside of conviction and sentence passed by the courts below.

(6). Per contra, learned Public prosecutor supported the impugned judgment and submits that the trial court and appellate court after appreciating the evidence of the eye witnesses Arjun Singh (PW-1) and Maya Ram (PW-2) rightly come to the conclusion that the accident occurred on account of rash and negligent driving of the driver of the motorcycle. It is further submitted that the evidence of Arjun Singh (PW-1) and Maya Ram (PW-2) who are eye witnesses of the accident is consistent and corroborative and there are no grounds to interfere with the judgment of conviction and order of sentence passed by the trial court and affirmed by the learned Additional Session Judge, therefore, he prays for rejection of the revision application.

(7). I have heard, learned counsel for the parties and perused the material available on record.

(8). The prosecution had examined Seema Bai (PW-4), the wife of the deceased, she deposed that two years back, she was ill so her husband Omkar Singh was taken her on a motorcycle for treatment, when they reached beyond village Jamodi, one black colour motorcycle come there from opposite side in rash and negligent manner and hit their motorcycle due to which Omkar Singh sustained injuries on his hand. Her husband died during treatment.

(9). Arjun Singh (PW-1) states that he knows the applicant as well as deceased Omkar Singh. 7 to 8 months back, he alongwith Mayaram were going from Sanwer to Village Solsindi on his motor. Omkar Singh and his wife were going on their motorcycle infront of his motorcycle. When they reached beyond the house of Babulal, one motorcycle driven by the applicant Santosh in rash and negligent manner came from opposite direction hit the motorcycle of Omkar Singh resulting injuries to his head, legs and hand. After that the applicant fled away from the spot in the offending vehicle. The said motorcycle was without a registration number.

(10). Maya Ram (PW-2) being the eye witness of the accident narrated the entire episode on the lines of Arjun Singh (PW-1), however, in the cross-examination he accepted that there was a distance of around one and half kilometer between their motorcycle and motorcycle of Omkar Singh which contradicts the statement of Arjun Singh (PW-1) who stated distance was about ten feets.

(10). Maya Ram (PW-2) also admits that they reached on the spot after the incident and at that time, the applicant Santosh was not there but Arjun Singh (PW-1) denied the said suggestion in his cross-examination. From the perusal of the judgment passed by Fourteenth Additional Session Judge, Indore, it appears that the applicant has raised this ground before the appellate court also. The judgment dated 28.11.2019 passed by Fourteenth Additional Session Judge deals with the ground raised by the applicant and to justify the conviction and sentence imposed upon the applicant. The learned ASJ has elaborately discussed and appreciated the evidence, therefore, there is no reason to re-appreciate the entire evidence while exercising the revisional jurisdiction.

(11). The statement of Arjun Singh (PW-1), who saw the incident remained intact during his cross-examination. Evidence of this witness is reliable and nothing come in his cross-examination that he has any enmity against the applicant on that basis he is trying to falsely implicate him in the present crime. Therefore, there is no reason to disbelieve his testimony.

(12). Further the impact of the hit can be easily made out from the mechanical inspection report of offending vehicle i.e. Ex.P-8. The mechanical inspection report was proved by inspector/ M.T.O. Nandram Sukwal (PW-7). As per the mechanical inspection report Ex. P-8 the headlight of the vehicle was broken and no other mechanical defect were found on it. Though Ravi (PW-11) is the owner of the offending vehicle declared hostile by the prosecution but he admits his signature on Ex. P-11 in which he has given the information to the police under Section 133 of Motor Vehicle Act that on the date of incident, the applicant had taken his motorcycle and it had caused an accident. This is also corroborated the testimony of eye witness Arjun Singh (PW-1).

(13). This Court is conscious of the view that the purpose of deciding the present revision petition for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the Appellate Court or the learned Judicial Magistrate First Class while convicting and sentencing the applicant. For the foregoing discussions and observations, this Court does not find any illegality or infirmity in the order passed by learned Judicial Magistrate first Class, Sanwer convicting the applicant for the offence punishable under Sections 304 of IPC and in the order passed by learned Fourteenth Additional Sessions Judge, Indore in appeal preferred by the applicant. .

(14). From above, I do not have any hesitation to record that the applicant was driving the offending vehicle in such a rash and negligent manner which resulted culpable homicide death of deceased. The Courts below have concurrently and consistently held that applicant is found guilty for offences punishable under Sections 304-A of IPC. I am of the considered view that there is no error on point of law and it cannot be said that because of non-appreciation of evidence in a manner as suggested by learned counsel for the applicant that there is a flagrant miscarriage of justice. There is no material on record to dislodge the reasons on the basis of which both the Courts below have come to a definite concurrent and consistent finding based on facts. Accordingly, the conviction of applicant under Section 304-A of I.P.C. is upheld.

(15). So for the plea of reducing the period of imprisonment is concerned, in the case of State Of M.P vs Surendra Singh AIR 2015 SC 398 the Hon'ble Supreme Court considered the proportionally of the sentence and opined that undue sympathy to impose inadequate sentence would do more harm to the justice sysem to undermine the public confidence in the efficacy of law and also held that it is duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. In the present case, the trial court awarded the sentence under Section 304-A of I.P.C. for a period of one year. Appellate Court also affirmed the sentence but looking to the fact that the applicant has not been found involved in any other case and he is first offender. He is only earning member of the family. Having said that, this Court feels no hesitation to conclude that ends of justice would be adequately met if the sentence of the applicant is ordered to be reduced from one year R.I. to six months R.I., while upholding his conviction.

(16). Further, reduction of the sentence of the applicant from one year R.I. to six months R.I. will also be in consonance with the recent judgment of the Hon'ble Supreme Court in State of Punjab Vs. Saurabh Bakshi passed in Criminal Appeal No.520 of 2015 decided on 30.03.2015.

(17). Considering the peculiar facts and circumstances of the case this Court is of the considered view that applicant has been found entitled for reduction of sentence from one year R.I. to six months R.I. Accordingly, while upholding the conviction of the applicant, his sentence is ordered to be reduced from one year R.I. to six months R.I.

(18). Resultantly, with the abovesaid observations made and directions issued, instant criminal revision petition stands disposed of. The applicant is on bail, he is directed to surrender before the trial court so that he may be sent to custody for serving his remaining jail sentence. The office of this Court is also directed to arrange for issuance of supersession warrant against the appellant.

Let a copy of this judgment be sent to the concerned court alongwith record for information and necessary compliance.