The court considered the circumstances of the accident, including the time, location, and the condition of the vehicle, in determining the adequacy of the sentence and the release of the revisionist.

JUDGMENT :

Ravindra Maithani, J.

The challenge in this revision is made to the following:-

(A) Judgment and order dated 24.09.2021, passed in Criminal Case No.2421 of 2016, State of Uttarakhand Vs. Hemraj, by the court of 2nd Judicial Magistrate, Haldwani, District Nainital (“the case”).

By it, the revisionist has been convicted under Sections 279 & 304-A IPC and sentenced as hereunder:-

(i) Under Section 279 IPC- to undergo rigorous imprisonment for a period of six months with a fine of Rs.1000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.

(ii) Under Section 304-A IPC- to undergo rigorous imprisonment for a period of one years, with a fine of Rs.2000/-. In default of payment of fine, to undergo simple imprisonment for a further period of two months.

(B) Judgement and order dated 27.07.2022, passed in Criminal Appeal No. 46 of 2021 Hemraj Vs. State of Uttarakhand, by the court of 2nd Additional Sessions Judge, Haldwani, District Nainital (“the appeal”). By it, the judgment and order dated 24.09.2021 passed in the case has been upheld.

2. Heard learned counsel for the parties and perused the record.

3. This revision was admitted to the limited extent of examining the adequacy of sentence/probation.

4. Facts necessary to appreciate the controversy, briefly stated, are as follows:

On 02.02.2016, the deceased Rakesh Aggarwal, was travelling in his vehicle UK04 N 6006 at 11.45, in the night near Corbett Fall, Naya Gaon, District Nainital. The vehicle had some technical glitch. Therefore, at that time, the vehicle was parked on the road, and he was trying to remove the glitch. But, in the meantime, a Roadways Bus bearing Registration No. UK-07-PA-2167 being driven in a rash and negligent manner by the revisionist, hit the deceased due to which he died.

5. Learned counsel for the revisionist would submit that it was a dark night; the vehicle was parked on the main road, it is a highway, while accident took place.

6. It is argued that the act of the revisionist was not deliberate. The accident was so sudden that, the revisionist could not escape to it. The revisionist is in jail for more than five months, which is enough for the act attributed to him. It is submitted that the revisionist may be released on the sentence, which he has already undergone.

7. Learned State counsel was required to get instructions with regard to the antecedents of the revisionist. On instructions, he would submit that there is nothing adverse against the revisionist.

8. Lower court record is before the Court. The site plan also reveals that the accident took place on an open road in the midnight. It is the prosecution evidence itself that suddenly the lights of the vehicle went off. The vehicle was parked on the road, and the deceased and his driver were trying to remove the technical glitch. The wife of the deceased was inside the vehicle, it is at that time, when the accident took place.

9. Having considered the entirety of facts, including the time when the accident took place, the spot where it took place, the circumstances under which it took place, particularly keeping in view the fact that the lights of the vehicle were switched off, in the midnight on a road, this Court is of the view that the interest of justice would be served, if the revisionist is sentenced under Section 304A IPC with the sentence which he had already undergone. The fine and other sentences remain unaltered.

10. The conviction and sentence of the revisionist under Sections 304A and 279 IPC is upheld.

11. The sentence of the revisionist under Section 279 IPC remains unaltered.

12. The sentence under Section 304A IPC is modified and now the revisionist is sentenced under Section 304 A IPC with the imprisonment, which he had already undergone in the case.

13. The revisionist is in custody, he may be set free forthwith, if not wanted in any other case.

14. The revision is allowed accordingly.

15. Let a copy of this judgment be forwarded to the court