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CR.RA/1189/1991 5/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 1189 of 1991
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VIKRAM
PABJI CHAVDA - Applicant
Versus
STATE
OF GUJARAT & 1 - Respondents
=========================================================
Appearance
:
MR
ASHIM PANDYA for MR VIJAY H PATEL for
Applicant.
MR KC SHAH, ADDL.PUBLIC PROSECUTOR for Respondent : 1 -
State
NOTICE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 01/12/2008
ORAL
JUDGMENT
1. This
Criminal Revision Application is preferred by the revisionist to
challenge the judgment and order rendered by the City Sessions Court,
in Criminal Appeal No.20/1991, on 4.10.1991, and to challenge the
judgment and order passed by the Metropolitan Court No.3, in Criminal
Case No.3369/1989, on 27.3.1991, convicting and confirming the
conviction of the revisionist for the offences punishable under
Sections 279 & 304-A of the Indian Penal Code. The trial Court,
after considering the evidence, found that the prosecution was
successful in establishing the charge and while convicting the
revisionist for the offence punishable under Section 279 IPC,
sentenced him to undergo S.I for one month and to pay a fine of
Rs.100/-, in default, to undergo further S.I for one week. While
convicting the revisionist for the offence punishable under Section
304A IPC, the Court sentenced him to undergo S.I for six months and
to pay a fine of Rs.200/-, in default, to undergo further S.I for 15
days.
1.1 The
said judgment and order of the Metropolitan Court was challenged by
the accused-revisionist before the City Sessions Court by preferring
Criminal Appeal No.20/1991 and the Sessions Court by the judgment
impugned, dismissed the appeal confirming the conviction and
sentence. Hence, this revision application before this Court.
2. The
facts of the case, briefly stated, are that the revisionist was
driving Jeep-Car No. GUF-478 travelling from Dehgam side to Naroda
side on 29.10.1989 around 19.45 hours. It was the case of the
prosecution that the vehicle was being driven by the accused on the
wrong side in a rash and negligent manner, and when the Jeep-Car was
passing by the Naroda S.T. Bus Stand, it dashed against Cyclist
Deepak and as a result of the accident, Deepak suffered several
injuries and ultimately, succumbed to the same. The Jeep-Car also
dashed against the first informant and caused injuries to his right
leg. An FIR was, therefore, lodged and offence was registered under
Sections 279, 304A & 337 of the Indian Penal Code and Sections
112 & 116 of the Motor Vehicles Act. The witnesses were examined
and ultimately, conviction came to be recorded.
2.1 A
dispute was raised regarding identity of the driver of the vehicle,
but, was turned down by both the Courts below on merits. It has also
been recorded that the identity aspect of the accused did not remain
a matter of challenge any more, when the accused, while giving an
application for exemption, specifically stated that identity of the
accused is not in dispute.
3. This
Court has heard learned advocate Mr.Asim Pandya for the revisionist,
and learned A.P.P. Mr.K.C.Shah for the respondent-State.
4. Learned
advocate Mr.Asim Pandya submitted that accidents occur many a time in
absence of any rashness or negligence on the part of driver of the
vehicle. He submitted further that almost 19 years have gone by since
the accident and 17 years since the conviction and, therefore, if the
Court is not convinced about the merits, the sentence of imprisonment
may be altered by enhancing fine and reducing the sentence of
imprisonment.
5. The
revision is opposed by learned A.P.P. Mr.Shah. He submitted that it
is true that a long time has passed since the occurrence and the
judgment, but, the fact remains that a young boy has lost his life in
the accident. He further submitted that this is a revision
application and the scope of revision is very limited. He also
submitted that so far as altering the sentence is concerned, the
scope is still further limited and unless judicial discretion is
shown to have been used in a manner, which would shock the conscious
of the Court, Court may not interfere with the discretion used by the
trial Court. He submitted that there are two concurrent findings of
the competent criminal Courts before this Court. Mr.Shah lastly
submitted that in a case, where a young boy has died in an accident,
six months’ S.I cannot be considered to be too harsh, so as to brand
the discretion as improper, arbitrary or perverse. The Court may,
therefore, not interfere with, in exercise of its revisional
jurisdiction.
6. This
Court has considered the rival side contentions in light of the
evidence on record and the legal proposition.
7. Besides
the fact that there are concurrent findings of two competent criminal
Courts below, the learned advocate for the revisionist also could not
assail the judgments and orders on merits. The involvement of the
revisionist in the accident has virtually been admitted. The accident
and negligence part are also proved. The scope of revision
application, considering as it is, would therefore, deter this Court
from entering into the merits of the conviction.
8. So
far as the sentence part is concerned, what has been argued is that
long time has elapsed since the occurrence and the conviction. It is
also contended that the revisionist is financially weak and his
family may suffer, if he has to go in jail after such a long time
and, therefore, the sentence may be altered.
9. In
the opinion of this Court, financial condition may be a relevant
factor at the time of imposition of sentence and/or fine. But, when
this Court is called upon to exercise its revisional jurisdiction,
relevant factor would be, whether the sentence imposed by the Court
below is in improper or arbitrary or perverse exercise of judicial
discretion, and if the answer is not in affirmative, the Court would
refrain from exercising its revisional jurisdiction to interfere with
the sentence imposed by the Court below using its judicial
discretion. In the instant case, in the accident in question, a young
boy has lost his life and for that purpose, the revisionist came to
be convicted and sentenced to S.I for six months, which, by no
stretch of leniency or sympathy, can be said to be unduly harsh or
disproportionate to the criminal act on the part of the revisionist.
The discretion cannot be said to have been exercised in an improper,
arbitrary or perverse manner. In this set of circumstances, this
Court is of the view that revisional powers cannot be invoked in
favour of the revisionist. The revision application must fail.
10. This
Revision Application stands dismissed. The judgment and order dated
4.10.1991 passed by the City Sessions Court, Ahmedabad, in Criminal
Appeal No.20/1991 and the judgment and order dated 27.3.1991 passed
by the Metropolitan Court No.3, in Criminal Case No. 3369/1989 are
hereby confirmed.
11. At
this stage, learned advocate Mr.Pandya requests for time of two
weeks for the revisionist to surrender to the custody. In the opinion
of this Court, the request is reasonable and merits acceptance. The
request is, therefore, accepted. The revisionist shall surrender
before the Lower Court within a period of two weeks from today,
failing which, it would be open for the Lower Court to take
appropriate action for storing him to prison.
[A.L.Dave,J.]
(patel)
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