advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 27, 2015

inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana[1], Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs. 14. Accordingly, we modify the impugned order passed by the High Court and enhance the compensation to be paid by the respondent accused to Rs.1 lakh to be paid within four months failing which the sentence awarded by the Court of Session shall stand revived. In addition, we direct the State of Himachal Pradesh to pay interim compensation of Rs.3 lakhs. In case the respondent fails to pay any part of the compensation, that part of compensation will also be paid by the State so that the heirs of the victim get total sum of Rs. 4 lakhs towards compensation. The amount already paid may be adjusted.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 393 OF 2015
                 (ARISING OUT OF SLP (CRL.) NO.4213 OF 2013)



STATE OF HIMACHAL PRADESH                              ...APPELLANT

VERSUS

RAM PAL                                                       ...RESPONDENT









                               J U D G M E N T

ADARSH KUMAR GOEL, J.

1.    Leave granted.

2.    This appeal has been preferred against judgment and order  dated  27th
February, 2013 passed by the High Court of Himachal  Pradesh  at  Shimla  in
Criminal Appeal No.406 of 2011.

3.    Only  question  raised  for  consideration  is  whether  the  sentence
imposed in the facts and circumstances is fair and just.

4.    On 20th August, 2009 at 5.35 P.M. FIR was lodged by PW 3  Chhering  to
the effect that he was a mason in  the  work  of  construction  of  road  at
Gulaba near Manali.  At  2.30  P.M.,  a  tanker  driven  by  the  respondent
accused struck the deceased Sonam a 20 year old girl, which was  on  account
of rash and negligence driving by the respondent.  The injured was taken  to
Mission hospital, Manali where she was declared  dead  on  arrival.    After
completing the investigation, the accused was sent up for trial.

5.    The prosecution examined  six  witnesses,  namely,  PW  1  Dr.  Balbir
Rawat, PW 2 Budhi Singh, PW 3 Chhering, PW 4 Smt. Seema, PW 5  Sange  Sherpa
and PW 6 SI Om Chand.  The accused took up the plea that the  deceased  came
under the rear tyre after a part of the vehicle had  already  crossed.   The
girl had come running and struck against the vehicle and the  appellant  was
not rash or negligent in driving.

6.    The trial Court noted that the vehicle was coming uphill  as  admitted
by PW 4 Seema.  It was also admitted that the girl was struck  on  the  back
side of the vehicle.  The vehicle was going uphill on a road,  condition  of
which was bad.  Thus, the vehicle could not be at high speed.

7.    On appeal, the view taken by the trial Court  was  reversed.   It  was
held that even if the vehicle was  going  at  slow  speed  and  uphill,  the
vehicle could have been stopped and its striking  to  the  girl  could  have
been prevented.  Undoubtedly, the death was because of vehicle  hitting  the
girl which in the circumstances was clear result of rash and  negligent  act
of driving.  Accordingly,  the  appellate  Court  convicted  the  respondent
under Section 279 and 304 A IPC and awarded  sentence  of  imprisonment  for
six months and fine of Rs.1000,  in  default  further  imprisonment  of  one
month under Section 304 A IPC and concurrent imprisonment for  three  months
and fine of Rs.500, in default further imprisonment of  fifteen  days  under
Section 279 IPC.

8.    The respondent accused preferred appeal to the High  Court.  The  High
Court noticed the post mortem report to the effect that "the cause of  death
of the deceased was crush injury  of  lumbo-sacral  spine  and  pelvic  bone
leading to cardio respiratory arrest".  It was  inferred  that  such  injury
could be possible only with rash and negligent driving.   However,  sentence
of imprisonment was set aside and substituted by  fine  of  Rs.40,000/-,  in
default of which sentence awarded by the trial Court  was to revive.

9.    We have heard learned counsel for the parties.

10.   Learned counsel for the State   pointed out that it was  the  duty  of
the Court to award just and fair sentence.  If a liberal view was  taken  on
sentence of imprisonment, reasonable amount of compensation was required  to
be awarded.  On this  text,  the  view  taken  by  the  High  Court  is  not
sustainable.  The amount of  Rs.40,000/-  cannot  be  held  to  be  adequate
compensation when life of a young girl aged 20 years was lost.

11.   Learned counsel for the respondent submitted that the  accused  was  a
poor man and a driver and could not pay more  amount  as  compensation.   He
also submitted that even though it was a case  of  driving  in  a  difficult
terrain where different parameters  ought  to  be  applied  for  determining
negligence.

12.   We have given our anxious consideration to the rival  submissions  and
perused the record.

13.   It is evident from the facts and circumstances of the  case  that  the
respondent has not called in question his conviction.   We  have  before  us
only challenge to the inadequacy of  the  sentence  in  the  present  appeal
filed by the State.   Moreover, in  an  appeal  under  Article  136  of  the
Constitution, this Court does not re-appreciate the evidence, in absence  of
perversity or patent legal error, merely because a different view  was  also
possible.   We  are  thus,  not  inclined  to  reopen  the  correctness   of
conviction of the  respondent  and  proceed  to  consider  the  question  of
adequacy of the sentence.  In  our  view,  the  sentence  of  mere  fine  of
Rs.40,000/- imposed by the High Court is not adequate and  proportionate  to
the offence.  We have been informed that a sum  of  Rs.3,60,000/-  has  been
awarded as compensation by  the  insurance  company  to  the  heirs  of  the
deceased.  We are also of the view that where the accused is unable  to  pay
adequate compensation to the victim or his heir, the  Court  ought  to  have
awarded compensation under Section 357A against the  State  from  the  funds
available under  the  Victim  Compensation  Scheme  framed  under  the  said
section.  This Court has dealt  with  the  issue  in  Suresh  vs.  State  of
Haryana[1], Manohar Singh vs. State of Rajasthan  &  Ors.  (Criminal  Appeal
No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab  (Criminal
Appeal No.290 of 2015 decided on 13.2.2015).  Having regard to  totality  of
circumstances of the present case, we feel that  ends  of  justice  will  be
served if the accused is required to pay total  compensation  of  Rs.1  lakh
and the State to pay a sum of Rs.3 lakhs.

14.   Accordingly, we modify the impugned order passed  by  the  High  Court
and enhance the compensation to be paid by the respondent  accused  to  Rs.1
lakh to be paid within four months failing which  the  sentence  awarded  by
the Court of Session shall stand revived.  In addition, we direct the  State
of Himachal Pradesh to pay interim compensation of Rs.3 lakhs.  In case  the
respondent fails  to  pay  any  part  of  the  compensation,  that  part  of
compensation will also be paid by the State so that the heirs of the  victim
get total sum of Rs. 4 lakhs towards compensation.  The amount already  paid
may be adjusted.

15.   The appeal is disposed of accordingly.


                                    ......................................J.
                                                 [T.S. THAKUR]



                                  ........................................J.
                                             [ADARSH KUMAR GOEL ]
NEW DELHI
FEBRUARY 27, 2015
-----------------------
[1]    2015 (2) SCC 227

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.