ORDER
P.S. Brahme, J.
1. Applicant-Bharat Pandhari-nath More was tried for the offence under Section 304-A of the Indian Penal Code before the Judicial Magistrate, First Class, Akola, Court No. 7 in Regular Criminal Case No. 1371 of 1996 and the learned Judicial Magistrate, by his order dt. 12-10-1998, convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month. The appellant challenged this order of conviction and sentence passed against him in Criminal Appeal No. 31 of 1998 before the 3rd Additional Sessions Judge, Akola. The learned Additional Sessions Judge in appeal, by his order dt. 18-10-1999, confirmed conviction of the appellant for the offence under Section 304-A of the Indian Penal Code and modified the sentence by reducing substantive sentence to simple imprisonment for two months and also sentenced him to pay a fine of Rs. 500/- in default to undergo further simple imprisonment for one month. This order of sentence is under challenge in this revision.
2. It is not disputed that the applicant was driving a Goods Truck bearing No. MH-30 B-2460 on 29-11-1996 and that, this truck met with an accident on that day at about 21.30 hours, when the truck was passing near the bifurcation of Bandu Gota Phata at about 7.00 p.m. victim Manohar Varma, who was seated on rear side of the truck amongst other persons, was thrown from the truck on receiving jerk when the applicant immediately turned the truck to a side to avoid clash with other vehicle coming from opposite side. It is admitted that, as a result of being thrown out from the truck victim Manohar died on the spot. That is how, the applicant was tried for the offence Under Section 304-A of the Indian Penal Code on the allegation that the victim died on account of rash and negligent driving by the applicant.
3. Mr. Mardikar, the learned counsel, though initially questioned correctness and legality of conviction of the appellant, in the alternative submitted that having regard to the circumstances attending the case, also the fact that the applicant is about 25 years of age and that death of the victim was not direct result of rash and negligent act of driving of the applicant, this Court should take lenient view in the matter and that the applicant should be given benefit of Probation of Offenders Act by releasing him oh probation.
4. Mr. Mirza, the learned A.P.P. vehemently opposed this submission contending that the Appellate Court has already shown leniency by reducing the substantive sentence to two months of simple imprisonment and that, in the facts and circumstances of the case, it is not warranted to give benefit of the Probation of Offenders Act, particularly when the victim has lost his life in the accident without there being any fault on his part.
5. I have given thoughtful consideration to the submissions made by the learned counsel for the parties. The Appellate Court, as could be seen from the judgment, did consider the submission made on behalf of applicant as regards entitlement of benefit of Probation of Offenders Act to the applicant. In that, the Appellate Court has rightly taken into consideration the decision of the Apex Court in the case of Aitha Chander Rao v. State of A.P., 1981 SCC (Cri) 637, in which the Apex Court has held that the offence under Section 304-A of I.P.C. comes within the purview of the provisions under the Probation of Offenders Act. In that case, benefit of Section 4 of the Probation of Offenders Act was given to the accused who was convicted for the offence Under Section 304-A of I.P.C. But the Appellate Court distinguished the case before it on facts and therefore, came to the conclusion that having regard to the facts and circumstances of the case, benefit of Probation of Offenders Act cannot be given to the applicant, even though in cases arising out of the offence Under Section 304-A of I.P.C. benefit of Probation of Offenders Act could be given. In view of this, the request made by the learned counsel for the applicant for giving benefit of the Probation of Offenders Act to the applicant cannot be accepted.
6. The alternate submission for taking lenient view in the matter, as has been taken by the trial Court in reducing the substantive sentence, appears to be acceptable having regard to the facts and circumstances of the case. While taking lenient view, the Appellate Court has stated in the judgment that taking into consideration the factors coupled with the fact that the offence is of the year 1996, it would be proper to modify the substantive sentence. The Appellate Court has, therefore, in a way taken lenient view in the matter by reducing substantive sentence having regard to the facts and circumstances of the case. The Appellate Court has reduced the substantive sentence to rigorous imprisonment for two months. In my opinion, having regard to the fact that the incident had taken place in the year 1996, i.e. a period of almost eight years has passed by now since when the sword of prosecution, conviction and that of substantive sentence was hanging on the head of applicant and that accidental death of the victim was not direct result of only rash and negligent act of driving of the applicant, I feel that the substantive sentence is further to be reduced to the period undergone by the applicant. The record shows that the applicant surrendered on 25-10-1999, after the Appellate Court passed the judgment on 18-10-1999. It was on 29-10-99 that the applicant filed present revision before the Court and this Court, by order dt. 29-10-99, while admitting the revision, directed the lower Court to release the applicant on ball on his executing a P.R. bond in the sum of Rs. 5,000/- with one solvent surety in the like amount. The record further shows that the writ by this Court was received by the Additional Sessions Judge, Akola and on 1st November, 1999, in compliance with the writ an order came to be passed by the 2nd Additional Sessions Judge to release the applicant as he furnished P.R. bond of Rs. 5,000/- with one solvent surety in the like amount. This shows that the applicant was in jail for about 7 to 8 days. In my opinion, sentence undergone by the applicant is sufficient and at the same time, it would meet the ends of justice. At the same time, I feel that the amount of fine is to be increased making it to the amount of Rs. 2,000/-. The applicant has already paid fine of Rupees 500/-. The applicant, who is already on bail, shall deposit remaining amount of fine in the trial Court within four weeks. In case of default, the applicant shall be required to undergo simple imprisonment for 15 days. Hence, the order.
ORDER
The revision is partly allowed. The order of conviction is maintained.
The sentence is modified by reducing substantive sentence to the period already undergone by the applicant and the applicant is to pay amount of Rs. 2,000/- as additional amount of fine within four weeks from the date of order in the trial Court, failing which the applicant shall undergo simple imprisonment for fifteen days.