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Gujarat High Court
Judgename :H.H.MEHTA
MAHADEV BHAGWANJI PATEL - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION APPLICATION 240 of 1992
Decided On : 04/24/2001
In this case, two Courts below have concurrently and consistently held that accused is found guilty for offences punishable under Secs. 279 and 304-A of IPC. When this Court is not supposed to reappreciate the evidence again and to come to a different conclusion, here in this case, looking to the evidence led by both sides, there is no possibility of any other decision which can be arrived at. In view of this, this Court is fully satisfied that in this case, there is no glaring defect in the procedure. There is no error on point of law and in no case, it cannot be said that because of non-appreciation of evidence in a manner as suggested by Shri A.J. Patel, there is a flagrant miscarriage of justice. There is no material on record to dislodge the reasons on the basis of which both the Courts below have come to a definite concurrent and consistent finding based on facts.
[Para 33]
(b) Penal Code, 1860 (Central Act 5 of 1860) — Secs. 279 and 304-A under Offence — Motor Vehicles Act, 1988 (Central Act 59 of 1988) — Secs. 112 and 116 — Conviction — Benefit of probation — Probation of Offenders Act, 1958 (Central Act 20 of 1958) — Sec. 4 — No plea before Courts below to grant benefit of probation — Held, this Court is of view that accused does not deserve any leniency and Magistrate inflicted just and adequate sentence
It appears from the judgment rendered by the learned Magistrate that accused did not advance his case for benefit of probation before the learned Magistrate. Even in Appellate Court, accused had not pleaded his case for benefit of probation to be given to him.
[Para 38]
To pass an order with regard to sentence is a discretionary order and when both the Courts below have properly exercised their jurisdiction on the point of quantum of sentence, this Court is of the view that there is no reason for disturbing the finding with regard to quantum of sentence.
[Para 39]
In view of the legal position with regard to benefit of Probation of Offenders Act to be given in such type of accident cases, this Court is of the view that revision petitioner does not deserve any leniency and this Court finds that the learned Magistrate has inflicted just and adequate sentence and the same is not required to be disturbed.
[Para 41]
( 1 ) ). THIS is a Criminal Revision Application under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (for short the "cr. P. C. ") filed by the original accused of Criminal Case No. 752 of 1988 tried and decided by the learned Judicial Magistrate, First Class, Bhachau (who will be referred to hereinafter as the learned Magistrate for the sake of convenience) by rendering his judgment Ex. 29 dated 22nd February, 1991. By preferring this Criminal Revision Application, original accused of said case has challenged the correctness, legality and validity of the judgment Ex. 7 dt. 30/7/1992 rendered by the learned Sessions Judge, Kachchh at Bhuj (who will be referred to hereinafter as the learned Judge) in Criminal Appeal No. 5 of 1991.
( 2 ) ). The present revision petitioner was an accused in Criminal Case No. 572 of 1988 in the trial Court and the appellant in Criminal Appeal No. 5 of 1991 which he preferred to the Sessions Court, Bhuj-Kachchh. For the sake of convenience, parties will be referred to hereinafter as the prosecution, complainant and accused respectively at appropriate places.
( 3 ) ). AS per the judgment of the learned Magistrate, the facts leading to this present Criminal Revision Application, in a nutshell, are as follows :3. 1 on or about 15/8/1988, one Shri Laturisinh, P. S. O. of Bhachau Police Station wrote a Yadi, wherein he informed that one vehicular accident has occurred by S. T. Bus at a place 14 KMs. away from Bhachau just opposite to Vondh Railway Station on National High Way No. 8 and as reported in that Yadi that S. T. bus knocked down one pedestrian who was brought to Government hospital, Bhachau. On the basis of that Yadi, one Entry No. 11/88 was made in the Police Station Diary. On the strength of that Entry No. 11/88 in Station Diary, P. S. O. Kanaiyalal Shankarlal Makwana conducted a police investigation. During the course of that investigation, it was found that person who was brought to Bhachau Government hospital was one Bhikhabhai Kalyan Maharaj aged about 65 years. He succumbed to injuries which he sustained in said vehicular accident. It is the case of the prosecution that said S. T. Bus which was of route of Narayan Sarovar to Ahmedabad was being driven by Mahadev Bhagvanji Patel who is the present revision petitioner before this Court. In that S. T. Bus, one Natvarbhai Pujabhai Solanki was performing his duties as Conductor of the said bus. As per the deposition of said Natvarlal, they left Bhachau at about 11-45 p. m. and incident took place at about 11-55 p. m. 3. 2 During the course of investigation, it was revealed that P. W. 3 Indiraben Danjibhai and her son Khajur Danji both had come as guests to the house of deceased Bhikhalal Kalyan Maharaj at village Vijyasar on previous day. They had a short stay in the night on a previous day. On the fateful day of incident, said Indiraben and her son Khajur both had come to Ramdev Pir Bus Stop as they had to catch a bus. P. W. 4 Sitaben Bhikhalal Maharaj who is a widow of deceased had come in company of deceased to see off their relative Indiraben. As per deposition of said Sitaben, Indiraben was her sister. Indiraben and her son boarded the bus which was to proceed towards Bhachau. When Sitaben and her husband i. e. deceased victim Bhikhalal were crossing the road, one S. T. bus came with full speed from Bhachau side and that S. T. bus knocked down said Bhikhalal as a result of which deceased sustained serious bodily injuries. As per evidence of P. W. 5 -Balvantsin Narubha Jadeja, Sitaben and deceased were trying to cross the road from behind the S. T. bus in which their relatives had boarded, and therefore, when they were crossing the road from behind the stationary bus which was to proceed towards Bhachau, S. T. bus came from Bhachau side with full speed and that bus caused an accident. That deceased Bhikhalal who sustained injuries was brought to Bhachau hospital where he was declared to be dead. Thereaf
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