1. As per the prosecution case, on 24.12.2001, at about 2150 hours, one Motor-Cycle bearing registration No.GJ-16-H-1974 was driven by the accused and at that time, Head Constable Jitendrasinh Takhatsinh, Buckle No.1247, was on duty and it was found by him that said motorcycle had dashed with one cyclist Mukeshbhai Lalitbhai Patel from backside and as a result of that, cyclist has fallen down and upon further inquiry by the said Constable Hitendrasinh Takhatsinh, it was found that he was in a drunken condition, and therefore, he was taken to the Police Station, and thereafter, the complaint was recorded. The complaint was investigated by the police and the charge-sheet was filed. The prosecution examined this witness to prove the guilt of the accused and also produced five documentary evidence, the details of which are mentioned at Paragraph-3 of the judgment of the learned Sessions Judge.
2. The learned Magistrate thereafter, recorded statement under Section 313 of the Code of Criminal Procedure wherein the accused denied the charge against him and ultimately, the learned Magistrate was pleased to convict the accused for the offence punishable under Section 279 of the Indian Penal Code and sentenced to suffer simple imprisonment for a period of four months and fine of Rs.500/- with 15 days simple imprisonment in default of making payment of fine. The learned Magistrate was pleased to convict the accused for the offence punishable under Section 177 of the Motor Vehicles Act and imposed fine of Rs.100/- and 1 day simple imprisonment in default of making payment of fine. The learned Magistrate was pleased to convict the accused for the offence punishable under Section 184 of the Motor Vehicles Act and imposed fine of Rs.500/- and 15 days simple imprisonment in default of making payment of fine. The learned Magistrate was pleased to convict the accused for the offence punishable under Section 185 of the Motor Vehicles Act and sentenced to suffer simple imprisonment for a period of one month and fine of Rs.1000/-.
3. The accused being aggrieved by the said decision preferred appeal before the learned Sessions Judge being Criminal Appeal No.04/2006. The learned Sessions Judge after hearing both the sides, dismissed the appeal. Under the circumstances, the present Criminal Revision Application before this Court.
4. I have considered the relevant evidence which has been made available by the learned Counsel for the petitioner during the course of hearing. I have considered the judgment and the reasons recorded by the learned Sessions Judge. I have heard learned advocate Mr.Kapadia for the petitioner and Ms.Thakkar, learned Additional Public Prosecutor for the respondent-State.
5. Learned Counsel, at the outset, submitted that the petitioner is not challenging the conviction. However, he is restricting the challenge only on the quantum of sentence imposed by both the courts for the offence punishable under Section 279 of the Indian Penal Code and for the offence punishable under Section 185 of the Motor Vehicles Act where the learned Magistrate has imposed sentence of one month simple imprisonment. It was submitted that the petitioner has already undergone 24 days imprisonment pending the trial, and therefore, it may be reduced to the period undergone and on the aspect of all the fines, the amount has already deposited by the petitioner.
6. Learned Counsel, in his submissions, brought to my notice that there was no injury sustained by the victim except muscular pain, and therefore, in his submission the gravity of offence could be said as diluted and the sentence imposed by the learned Magistrate and as confirmed by the learned Sessions Judge was excessive.
7. Learned Additional Public Prosecutor submitted that considering the facts and circumstances of the case, sentence imposed is appropriate since the accused was found driving the vehicle in a drunken position.
8. The principles of sentencing are by now well settled. The gravity of the offence would be one of the relevant aspect to be considered while imposing sentence. As such, the victim did not support the case of the prosecution for the purpose of identification of the motor-cycle by giving number and also for the purpose of condition of the accused. He was also declared turned hostile.
9. P.W.4, Mukeshbhai Lalitbhai Patel was examined Exh.13. As per his deposition, he has only sustained muscular pain. Further, he was taking “U” turn and at that time, the incident had happened.
10. Under these circumstances, when the muscular pain was only sustained by the victim and no further damage or injury was caused, it could be said that the gravity of the offence charged offences have been diluted. Even if it is considered that since the accused was driving the vehicle in a drunken condition, as per the evidence of P.W.5 Doctor Ashok Parmanand Gupta was examined at Exh.17, he was not under the effect of intoxication. Therefore, it appears that the sentence undergone of 24 days would met with the end of justice for the offence punishable under Section 279 of the Indian Penal Code and for the offence punishable under Section 185 of the Motor Vehicles Act. On the aspect of fine for the offence punishable under Section 279 of the Indian Penal Code is of Rs.1000/- whereas the learned Magistrate has imposed fine of Rs.500/-. The same cannot be said to be on the higher side keeping in view the gravity of offence. The other sentences imposed are only for fine and if the fine is paid, the question of undergoing default sentence would not arise.
11. It further appears from the perusal of the judgment and the reasons recorded by the learned Magistrate and also from the judgment of the learned Sessions Judge that the aspect of proportionality of punishment has not been properly considered. Hence, the following order:-
12. The judgment and the order of the learned Magistrate and confirmation thereof by the learned Sessions Judge for conviction for the charged offence is not interfered with. However, on the aspect of sentence, it is ordered that for the offence under Section 279 of the Indian Penal Code and for the offence punishable under Section 185 of the Motor Vehicles Act, the sentence shall be for the period already been undergone. The sentences imposed of fine for the respective offence are not interfered with. The sentence of imprisonment shall be undergone concurrently. The petition is partly allowed to the aforesaid extent. Rule is made absolute.
Girish (JAYANT PATEL,J.)