Dismissed

Shakil Khan v. State of Chhattisgarh

Chhattisgarh HC9 Sept 2022CRR/149/2011

Case brief

AI extract

What is this about?

Chhattisgarh High Court dismissed a revision petition challenging conviction for rash and negligent driving (304-A IPC) and sentence. Court affirmed lower courts' findings and rejected plea for sentence reduction, ordering applicant returned to jail.

What did the court decide?

Revision dismissed; application for suspension of sentence abandoned; applicant directed to jail to undergo remaining sentence.

Shakil Khan Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT of CHHATTISGARH, BILASPUR Order Reserved on 20.06.2022 Order Delivered on 09.09.2022

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CRR No. 149 of 2011

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Shakil Khan, S/o Shri Ramjan Khan Musalman, aged about 32 years, Driver, R/o Village- Mainpur, District- Raipur

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---- Applicant

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Versus

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State Of Chhattisgarh, through : District Magistrate, Dhamtari, District Dhamtari (CG)

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---- Respondent

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For Applicant : Shri S.P. Sahu, Advocate For Non-Applicant : Shri Ashish Gupta, Panel Lawyer

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order

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Challenge in this revision is to judgment dated 28.02.2011 passed by learned Additional Sessions Judge (FTC), Dhamtari in Criminal Appeal No.35 of 2010 whereby learned Additional Sessions Judge has affirmed the judgment of conviction and order of sentence dated 11.11.2010 passed by Judicial Magistrate First Class, Nagari in Criminal Case No.649 of 2009.

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Facts relevant for disposal of this revision are that on 27.10.2004 at about 13:00 hrs., complainant Rustam Khan with his wife and children were travelling in a Jeep bearing registration No.CG 04-ZA2214 driven by the applicant. At that relevant point of time, along with

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the complainant and his family members, other passengers were also travelling in the same vehicle. The complainant was travelling from Mainpur to Sihava. On the way when the offending vehicle reached Arsikanhar Sankara turn, due to rash and negligent driving of the applicant, offending vehicle turned turtle. Complainant, his son, along with others suffered injury over their persons. His wife Khalida suffered head injury, who during course of treatment succumbed to injury. Incident was reported to the concerned police station, based upon which, first information report was registered against the applicant for the offences defined under Sections 279, 337, 304-A of IPC. After investigation, police submitted charge sheet for the offences defined under Sections 279, 339, 338, 304-A of IPC. Learned Judicial Magistrate First Class framed charges for the aforementioned offences and after conclusion of trial, sentenced the applicant for 1 month's SI and fine of Rs.100/-, in default of payment of fine, additional SI for 1 day under Section 279 of IPC; SI for 2 months and fine of Rs.100/-, in default of payment of fine, additional SI for 1 day under Section 337 of IPC; SI for 3 months and fine of Rs.200/-, in default of payment of fine additional SI for 2 days under Section 338 of IPC; SI for 6 months and fine of Rs.200/-, in default of payment of fine, additional SI for 2 days under Section 304-A of IPC. Judgment of conviction and sentence passed by learned Judicial Magistrate First Class was put to challenge before the Additional Sessions Judge in appeal filed under Section 374 of Cr.P.C. Learned Appellate Court upon appreciation of the submissions and evidence

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available on record affirmed the judgment of conviction and order of sentence passed by learned trial Court vide impugned judgment.

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Shri S.P. Sahu, learned counsel for the applicant would submit that the learned Courts below have erroneously recorded a finding that the applicant was driving the vehicle rashly and negligently which is perverse to the evidence available on record. In alternate, he also submits that even if this Court comes to the conclusion that the prosecution proved the charges against the applicant, sentence imposed upon the applicant be reduced to the period already undergone by him during appeal as well as upon filing of revision before this Court. He contended that the applicant has already undergone the substantive jail sentence of 78 days before his release on bail pursuant to the order passed by this Court on the application for suspension of sentence and grant of bail. He contended that the fine amount has already been deposited by the applicant.

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Shri Ashish Gupta, learned counsel for the State opposing the submission made by learned counsel for the applicant would submit that the Trial Court as well as Appellate Court upon appreciation of oral and documentary evidence placed on record have rightly recorded finding that prosecution has proved the rash and negligent driving of the offending vehicle by the applicant. Hence, no interference is called for on the judgment of conviction. He also submits that looking to the nature of offence committed by the applicant and death of one of the passengers travelling in the

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offending vehicle, the sentence awarded to the applicant is just and proper which also calls for no interference.

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I have heard learned counsel for the parties and perused the records of the Courts below.

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So far as the first submission of learned counsel for the applicant regarding finding of conviction recorded by the Courts below to be perverse is concerned, perusal of the record of trial Court would show that the date of accident was 27.10.2004 at about 13:00 hrs. Incident was reported on the same day to the concerned police station at about 23:00 hrs. by the Station House Officer, Police Station- Sihava. The report was lodged based on the information received by the police at about 15:00 hrs. on the date of accident i.e. immediately after two hours of the accident. FIR is placed along with dehati nalishi as Ex.P1. Morgue was reported by Rustam Khan (PW1). In the morgue intimation report, it is specifically mentioned that the applicant was driving the offending vehicle with a high speed, negligently. In FIR also, rash and negligent driving of the vehicle by the applicant is mentioned. Rustam Khan (PW1) in examination-inchief of his Court's statement stated that he along with his deceased wife and children were travelling in the offending vehicle. In his evidence, he stated that accident was of the result of high speed and negligent driving of offending vehicle by the applicant. Nothing adverse has come in his cross-examination. Dr. Ramesh Kumar Thakur (PW2) proved the injury suffered by the deceased as

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mentioned in postmortem report (Ex.P-4) as also MLC reports (Ex.P6 and Ex.P-7). In his cross-examination, admitted that the injury suffered by the deceased- Khalida can be caused due to falling from the running vehicle. Shadab Khan son of Rustam Khan aged about 12 years was also examined as PW6 and he has also stated that at the time of accident, offending vehicle was being driven in a rash and negligent manner. Statement of accused/applicant is recorded under Section 313 of Cr.P.C., wherein, he stated that on the way, suddenly a person on bicycle came from back of bullock-cart and in course of making an attempt to save the bicyclist, accident occurred. No defence witnesses was examined by the applicant.

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From perusal of the documents and oral evidence placed on record, I am of the view that the finding recorded by both the Courts below of rash and negligent driving of the offending vehicle by the applicant is based on the evidence. Hence, it does not call for any interference. Learned trial Court as well as appellate Court have not committed any error in holding that the applicant has committed the offence as mentioned in the cause title of the revision application. Hence, submission of learned counsel for the applicant that finding recorded by both the Courts below for commission of offence under Sections 279, 337, 338, 304 -A of IPC by the applicant is perverse, is not sustainable in law and it is hereby repelled.

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So far as the alternate submission made by learned counsel for applicant with regard to sentence to be imposed upon the applicant,

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to be reduced to the period already undergone by him i.e. 78 days, in preceding paragraph, this Court, upon considering the evidence available on record, came to the conclusion that the finding recorded by the Courts below for commission of offence under Sections 279, 337, 338, 304-A of IPC to be not perverse and further considering the manner in which accident took place resulting death of one of the occupant in taxi- Jeep driven by the applicant rashly and negligently, I am of the view that the submission of learned counsel for the applicant cannot be accepted as the learned trial Court has already shown leniency while sentencing the applicant for the commission of aforementioned offence. The discretion is provided in the statute for fixing the quantum of sentence, but the discretion has to be exercised with due regard to the larger interest of the society and it is needles to add that passing of sentence on the offender is probably the most public face of the criminal justice system. Undue sympathy resulting in imposition of inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law and the society cannot endure long under serious threats. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it occurred. Hon'ble Supreme Court in the case of Guru Basavaraj alias Benne Settappa Vs. State of Karnataka (2012) 8 SCC 734 in an appeal challenging the order of conviction under Section 304-A of IPC and sentence of simple imprisonment of six months and to pay fine of Rs.2,000/-, affirmed by the appellate Court, held as under :

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“34 . In view of the aforesaid, we have to weigh whether the submission advanced by the learned counsel for the appellant as regards the mitigating factors deserves acceptance. Compassion is being sought on the ground of young age and mercy is being invoked on the foundation of solemnization of marriage. The date of occurrence is in the month of March, 2006. The scars on the collective cannot be said to have been forgotten. Weighing the individual difficulty as against the social order, collective conscience and the duty of the Court, we are disposed to think that the substantive sentence affirmed by the High Court does not warrant any interference and, accordingly, we concur with the same. ”

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In case of State of Madhya Pradesh Vs. Surendra Singh (2015) 1 SCC 222, wherein respondent therein for commission of offence under Section 304-A was awarded sentence of two years rigorous imprisonment, upheld by Additional Sessions Judge in appeal and High Court reducing the sentence to the period already undergone, Hon'ble Supreme Court set aside the order of High Court and restored the sentence imposed by trial Court and held thus :-

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“14 . In a recent decision in the case of State

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of Madhya Pradesh vs. Bablu (2014) 9 SCC 281, after considering and following the earlier decisions, this Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with the gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. ”

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10.In the case at hand also, there was no mechanical failure of the vehicle which met with an accident, but the accident was due to rash and negligent driving of the vehicle by the applicant.

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11.For the aforementioned discussions, alternate prayer made by learned counsel for the applicant is also not acceptable. I do not find any merit in

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this revision. It is accordingly dismissed.

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12.By virtue of order of suspension of jail sentence passed in this revision, the applicant is on bail. His bail bonds are cancelled and the applicant be sent back to jail to undergo remaining period of jail sentence.

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Sd/-/-/--/---/-/-

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(Parth Prateem Sahu) Judge

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Praveen

Shakil Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shakil Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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