Suknandan vs State

T.P. Sharma, J.—By this revision, the petitioner has challenged legality and propriety of the judgment dated 15.2.2011 passed by the Additional Sessions Judge (F.T.C.), Balod in Criminal Appeal No. 80/09, affirming the conviction and modifying the sentence dated 7.9.2009 passed by the Judicial Magistrate First Class, Dondilohara in Criminal Case No. 48/09, whereby learned Judicial Magistrate First Class after holding the applicant guilty for the offence punishable under Sections 279 and 338 of the I.P.C. sentenced him to undergo R.I. for three months and fine of Rs. 200, in default of payment of fine to further undergo R.I. for one month and R.I. for six months and fine of Rs. 200, in default of payment of fine to further undergo R.I. for one month. While maintaining conviction the appellate Court has modified the sentence and has sentenced the applicant fine of Rs. 1,000, in default of payment of fine to undergo R.I. for one month and R.I. for three months and fine of Rs. 800/-, in default of payment of fine to undergo R.I. for one month.

As per case of prosecution, on 27.2.2004 Ku. Sunita aged about 14 years was going to her school along with other girls, present applicant was driving matador bearing registration number C.G. 4 ZB 2827 rashly and negligently and has caused injury to Sunita resulting into amputation of her right leg. Report was lodged. Matter was investigated. Finally charge sheet was filed. After affording an opportunity of hearing to the parties, learned Judicial Magistrate First Class, Dondilohara convicted and sentenced the applicant as aforementioned. Same was challenged before the appellate Court and vide judgment impugned the appellate Court has maintained the conviction and modified the sentence as aforementioned.

I have heard learned counsel for the parties, perused the judgment impugned, judgment of the trial Court and records of the Courts below.

Learned counsel for the petitioner submits that prosecution has not proved the fact that the applicant was driving the vehicle rashly and negligently and has caused injury to Ku. Sunita. Even otherwise, the applicant is in custody since 15.2.2011 and has completed more than one month out of sentence of R.I. for three months and same would be treated as sufficient sentence to the applicant.

On the other hand, learned State counsel opposes the revision and submits that the applicant has caused fatal injury i.e.. amputation of right leg of 14 years aged Ku. Sunita by his rash and negligent act, therefore, the applicant does not deserve any sympathy.

As per evidence of prosecution witnesses, especially evidence of Sahdevram (PW 2), injured Ku. Sunita (PW 4), Saraswati (PW 6), Ku. Sama (PW 9) and Ramsai (PW 10), at the time of incident the applicant was driving the vehicle and has caused fatal injury to Sunita resulting into separation of her right leg. As per evidence of Dr. Satish Meshram (PW 12) and Dr. Anil Mahakalkar (PW 13), leg of Ku. Sunita has been separated. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to show that the present applicant was not driving the vehicle. The present applicant has tried to establish the fact that at the time of incident he was driving the vehicle in normal speed and all of sudden one monkey jumped, therefore, incident took place.

Evidence of the aforesaid witnesses reveal that 14 years aged girl Sunita was going to her school along with other girls of same age group, they were five in number, they have admitted that monkey was present near the place of incident. This fact shows that school going children were going to school and monkey was also present near the place of incident. This requires extra precaution to driver the vehicle safely to avoid any accident and if driver would have taken precaution then there was no occasion for causing any accident, that too to the extent of separation of leg of one girl/student.

These facts are sufficient to establish the fact that the applicant was driving the vehicle rashly and negligently and has caused aforesaid serious and grievous injury.

After appreciating the evidence, both the Courts below have convicted the applicant under Sections 279 and 338 of the I.P.C. While convicting the applicant both the Courts below have not committed any illegality.

As regards the question of sentence, offence punishable u/s 279 of the I.P.C. is included in the offence punishable u/s 338 of the Indian Penal Code and is part of offence punishable u/s 338 of the I.P.C, therefore, separate conviction u/s 279 of the I.P.C. is permissible under the law but separate sentence is not permissible under the law.

While sentencing, the Courts below have awarded sentence of imprisonment and also of fine, but the Courts below have not considered the nature of Injury resulting into separation of leg of girl aged about 14 years which made her disabled for life.

While sentencing the Courts are not always under obligation to impose sentence of imprisonment or sentence of fine only but in appropriate cases they are required to award compensation u/s 357 of the Code of Criminal Procedure to give some support to the injured.

Consequently, the revision is partly allowed. Conviction of the applicant under Sections 279 and 338 of the I.P.C. is hereby maintained and sentence of fine of Rs. 1,000 to the applicant u/s 279 of the I.P.C. is hereby set aside. However, instead of R.I. for three months and fine of Rs. 800 to the applicant u/s 338 of the I.P.C., he is hereby sentenced to the period already undergone i.e., since 15.2.2011 till today for about one month and he shall also pay compensation of Rs. 20,000 to injured complainant Sunita before his release.