Sonia Gokani, J.

1. Learned Chief Judicial Magistrate, First Class, Petlad in Criminal Case No. 2313 of 1991 awarded conviction and sentenced the petitioner-accused for the offence punishable under Section 304 (A) IPC for a period of six months; and for the offence punishable under Section 279 IPC and Section 184 of the Motor Vehicle Act, 1988 he was ordered to suffer simple imprisonment for a period of one year; and for the offence under Section 338 IPC, simple imprisonment for two months. They all are to run concurrently. This came to be confirmed by the learned Extra Assistant Sessions Judge, Nadiad vide Order dated 23rd July 2004 in Criminal Appeal No. 8 of 1998.

2. Brief facts are as follow :

2.1. On 23rd June 1991, when the applicant was driving a Tempo bearing registration No. GUG 7906 at around 18:45 hours on Sojitra Gansol Road, he lost control on the vehicle and as a result of which the vehicle turned turtled and fell into a ditch resulting into serious injuries to seven home-guard personnels and twenty-one others with minor injuries. One of the home-guard personnels sitting in the said vehicle namely Ramanbhai Gordhanbhai Parmar lost his life due to injuries sustained by him. The Court after recording evidence of those sitting in the vehicle and those who were injured, also took into account the medical evidence and concluded that there was clear negligence on the part of the driver. The panchnama of the Tempo also came to be recorded where it was noticed that the axle had also not broken down. The Court also noted that since the vehicle was in speed at the time of accident, in an attempt to apply the brakes to the vehicle, it had turned turtled, resulting into serious injuries to the witnesses.

3. The appellate Court also appreciated the evidence which was before it and concluded negligence on the part of the applicant-accused. There was nothing to indicate failure of brakes nor any sudden break-down. The Court observed that twenty eight persons were sitting in the vehicle, who all were on official duty of Election, and therefore, the accused ought to have been more careful by sheer number of persons it was carrying and the nature of duty they were performing and he could not have driven the vehicle in rash and negligent manner, and therefore, the Appellate Court has confirmed the judgment and order of conviction so also the order of sentence of the trial Court.

4. Nothing is on record to indicate wrong appreciation of evidence nor non appreciation of material available. It is also not the case of erroneous application of law to the facts proved on any manifest illegality in reaching to such conclusion on the strength of oral and documentary evidence. In fact, it could be noticed from the oral as well as documentary evidence, particularly from the version of injured witnesses so also panchnama of scene of offence, etc., that both the Courts committed no error much less any illegality in convicting the petitioner. They also aptly regarded the defence of petitioner while so deciding. No interference is desirable as far as order of conviction is concerned.

5. However, in respect of order of sentence, it is earnestly urged that the petitioner had unblemished record prior to this incident and he has already suffered all these years with hanging sword of conviction. It is also requested that mercy be shown to him, keeping in view his personal circumstances.

5.1 Bearing in mind factual matrix and also strong mitigating circumstances, which emerged in the instant case for reduction of sentence are - efflux of time in conducting the revision application i.e., twenty four years and such delay cannot be attributed to the applicant herein. Therefore, in such circumstances, it would be appropriate to direct payment of fine and compensation as far as sentence is concerned. The period undergone should be construed as sufficient for the purpose of sentencing under Section 304A IPC, particularly in absence of there being any all