Friday 6 September 2024

Supreme Court: Under which circumstances the appellate court can reduce sentence given for conviction U/S 279,338 and 304A of IPC?

 The main charge against the appellant is about causing death

by rash and negligent driving of the mini Lorry which resulted in

the death of the pillion rider of the motorcycle. For conviction

under Section 304(A) and Section 338 of the IPC, there is no

minimum sentence prescribed but the term of sentence may extend to 2 years. The sentence can also be limited to fine without any term of imprisonment. For the offence under Sections 279 and 337 of the IPC, the maximum punishment prescribed is 6 months and punishment can also be fine only.

{Para 10}

12. A three-Judges Bench of this Court, on 30.06.2021, while

considering the case of negligent driving by a bus driver in

Surendran v. Sub-Inspector of Police, 2021 17 SCC 799, ordered for substitution of sentence, for the conviction under Sections 279 and 338 of the IPC, to fine only. The Court took into account that the accident had happened over 26 years ago and the concerned accused was on bail throughout the trial.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

GEORGE  Vs STATE OF KERALA .

Dated: SEPTEMBER 03, 2024.


1. Leave granted.

2. Heard Mr. P. A. Noor Muhamed, learned counsel appearing for

the appellant. The State of Kerala is represented by Mr. Harshad V

Hameed, learned counsel.

3. The appellant stands convicted of the offences punishable

under Sections 279, 337, 338 and 304(A) of the Indian Penal Code,

1860 (for short, the “IPC”) in connection with a road accident

which took place at around 9:00 p.m. on 07.08.2007. The allegation

against the accused was that he drove the mini Lorry in a rash and

negligent manner and the mini Lorry hit against the motorcycle

coming from the opposite direction. The pillion rider Santhosh

Kumar fell down from the impact, sustained grievous injuries and

died. The Lorry also hit a pedestrian walking on the road.

4. The Judicial First Class Magistrate-I, Alappuzha on the basis

of evidence adduced before the Court convicted the mini Lorry

driver and sentenced him in the following way:

“In the result, accused is sentenced to undergo simple

imprisonment for 3 months u/s. 279 IPC and to pay fine

of Rs 500/-; in default of payment of fine he shall

undergo simple imprisonment for 5 days. He is sentenced

to undergo simple imprisonment for 3 months u/s. 337 IPC

and to pay fine of Rs 500/-, in default of payment of

fine he shall undergo simple imprisonment for 5 days. He

is sentenced to undergo simple imprisonment for one year

u/s. 338 IPC and to pay fine of Rs 1000/-; in default of

payment of fine he shall undergo simple imprisonment for

10 days. He is sentenced to undergo simple imprisonment

for one year u/s. 304A IPC and to pay fine of Rs 1000/-;

in default of payment of fine he shall undergo simple

imprisonment for 10 days. Sentences shall run

concurrently. He is acquitted of offence u/s. 162 r/w s.

177 of M.V. Act.”

5. The judgment of the trial court rendered on 17.03.2015 was

sustained by the learned Additional Sessions Judge-II, Alappuzha in

the Criminal Appeal No. 99 of 2015. The Criminal Revision filed by

the accused was thereafter dismissed by the High Court under the

impugned judgment dated 13.06.2024.

6. When this case was taken up on 20.08.2024, it was pointed out

by the learned counsel for the appellant that the accused on being

found guilty for the charged offences has been in custody for 103

days for the awarded sentence of 6 months. Accordingly, returnable

notice was issued by this Court.

7. Today, when the case is taken up, Mr. P. A. Noor Muhamed,

learned counsel would point out that PW-1, PW-4 and PW-5, who were

at the place of occurrence, turned hostile and their evidence was

relevant only for the purpose of proving the accident. The

identification of the appellant is made on the basis of testimony

of PW-6 Sugalal who was riding the motorcycle. PW-6 deposed in his

evidence that after the accident, he saw the accused driver coming

out from the driver seat of the mini Lorry and although the PW-6

was thrown away by the collision, he was in a conscious state at

the relevant point of time.


8. The learned counsel for the appellant would then advert to the

provisions of section 161 Code of Criminal Procedure (for short

Cr.P.C.) statement given by PW-6 (Annexure P/2) where it was

mentioned that the mini Lorry driver was an elderly person.

Adverting to this omission in the statement given by PW-6 before

the Police and his improved testimony before the trial court, the

appellant’s counsel argues that this will amount to contradiction

under the explanation given to Section 162(2) of the Cr.P.C.

9. On the above contention, the crucial thing that needs to be

noted is that the appellant, at the relevant time of the accident,

was aged around 52 years and the statement given by PW-6 before the

Police with regard to the mini Lorry driver being an elderly person

and his subsequent testimony before the trial court therefore is

not found to be so significantly different, which might amount to

contradiction. Therefore, the benefit of the explanation to

Section 162(2) of the Cr.P.C. cannot be granted to the appellant.

10. The main charge against the appellant is about causing death

by rash and negligent driving of the mini Lorry which resulted in

the death of the pillion rider of the motorcycle. For conviction

under Section 304(A) and Section 338 of the IPC, there is no

minimum sentence prescribed but the term of sentence may extend to 2 years. The sentence can also be limited to fine without any term of imprisonment. For the offence under Sections 279 and 337 of the IPC, the maximum punishment prescribed is 6 months and punishment can also be fine only.

11. The High Court in the impugned judgment after noticing the

circumstances and the material evidence upheld the conviction and

sentenced the appellant to suffer simple imprisonment for 6 months.

The accused was also asked to pay compensation of Rs.2.5 lakhs on

the basis of assurance given by his counsel offering to compensate

the victim’s family.

12. A three-Judges Bench of this Court, on 30.06.2021, while

considering the case of negligent driving by a bus driver in

Surendran v. Sub-Inspector of Police, 2021 17 SCC 799, ordered for

substitution of sentence, for the conviction under Sections 279 and

338 of the IPC, to fine only. The Court took into account that the

accident had happened over 26 years ago and the concerned accused

was on bail throughout the trial.

13. In the present case, the appellant was arrested on 10.05.2024

and by now, he has been in custody for about 117 days. Considering

the circumstances, while upholding the conviction of the appellant,

we deem it appropriate to modify the sentence to the period already

undergone, in the interest of justice. Ordered accordingly.

14. Insofar as the direction in the impugned judgment, for payment

of compensation of Rs.2.5 lakhs, the learned counsel would point

out that the appellant is a poor person and is now aged around 69

years. He has several medical issues and therefore the

compensation sum be either waived or be reduced.

15. In the peculiar facts of this case, while upholding the

conviction, we reduce the compensation payable by the appellant to

Rs.50,000/-. This amount should be deposited before the trial

court within 60 days of the release of the appellant. The trial

court should then arrange for remitting the amount to the victim’s

family.


16. Following the above, and the modification of sentence to the

period undergone, the appellant, who is lodged currently in the

Central Prison and Correctional Home, Thiruvananthapuram, is

ordered to be released forthwith. The appeal is disposed of with

this order.

17. Pending application(s), if any, shall stand closed.

..................J.

(HRISHIKESH ROY)

..................J.

(SATISH CHANDRA SHARMA)

NEW DELHI;

SEPTEMBER 03, 2024.


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