IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1915 of 2009() ------------------------------ CC.409/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): DE FACTO COMPLAINANT ----------------------------------------- AMBIKA K.V., W/O. KUTTEN, ATOTTU, AJANUR VILLAGE, HOSDURG, KASARAGOD DIST. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): ACCUSED/COMPLAINANT ---------------------------------- 1. RAMIA ARUMADI, W/O. VINU, PEETIKAVALAPPIL (A), ATOTTU AJANUR VILLAGE, HOSDURG, KASARAGOD. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1915 of 2009 -------------------------------------- Dated this the 22nd day of June, 2009. ORDER This revision is in challenge of the legality, regularity and propriety of sentence awarded to respondent No.1 who was found guilty of offence punishable under Sections 279, 338 and 304A of the Indian Penal Code (for short, “the Code”). Learned magistrate awarded sentence of maximum fine as provided for the said offences. Petitioner, defacto complainant whose child was killed in the accident is aggrieved and has come up in revision. Learned counsel submits that undue leniency has been shown to respondent No.1. 2. Accident occurred on 23.10.2004 at about 11.45 a.m.. As the court below found respondent No.1 was driving the car in a rash and negligent manner so as to endanger human life and it hit the autorickshaw in which the deceased and injured were travelling. The autorickshaw capsized. Learned magistrate convicted the respondent of the offences stated above. While considering sentence learned magistrate observed from the documentary evidence produced by respondent No.1 that she has delivered a child on 17.4.2009, the child was suckling and aged only three weeks when the judgment was pronounced and hence it is not proper to send the lady (accused/respondent No.1) behind the bars. Crl.R.P.No.1915/2009 2 3. True, petitioner who was travelling in the autorickshaw suffered hurt and her child aged 2 ½ years, as submitted by learned counsel the only child, succumbed to the injuries. Certainly, it is a serious matter which should have been taken note of by the court below while awarding sentence. It is also to be borne in mind that punishment prescribed under Sections 279, 338 and 304 A of the Code is imprisonment or fine or both. Question is whether in this case sentence of imprisonment ought to have been awarded to respondent No.1. In Nanu v. State of Kerala (1988 (1) KLT 37) a learned Single Judge of this Court observed, as to the policy of sentencing thus: “Sentencing is an aspect of importance in criminal trial. Sentence must be modulated to the facts and circumstances of the case, character and antecedents of accused, his personal situation, the absence or presence or moral turpitude, and like considerations. A soft sentence or probation is called for, in cases where lenient disposition is merited. Concept of probation is in the realms of humanistic jurisprudence, and its merit was never in dispute. It is no, new efflorescence on the skies. Justice tempered with mercy is, a principle of vintage. But, leniency must be Crl.R.P.No.1915/2009 3 judiciously applied. Unregulated benevolence and ill-exercised leniency, cannot be justified. Where a deterrent sentence is called for, such must be imposed. Philosophy of reformation which certainly must form part of sentencing process, beyond justifiable limits, may not be assented to or shared by victims of crime, or the aggrieved. If criminal law ceases to be deterrent or effective, injured will seek means of revenge. While sentences should not be unduly harsh or barbarically macabre, it cannot be unduly lenient either. Sentencing process must blend the various considerations germane, and set the right tone.” In this case the circumstances which were relevant for consideration are that respondent No.1 while in the box was in a repenting mood (possibly in the agony of a possible imprisonment) that she delivered a child just three weeks before the judgment and that the suckling child was aged only three weeks old. If respondent No.1 were to be sent to the jail she had to carry her suckling child also to that place. A little sympathy to the child at least was not misplaced. I am not inclined to think that this is a case where undue leniency or misplaced sympathy has been shown to respondent No.1 in the matter of sentence. I am Crl.R.P.No.1915/2009 4 also not inclined to think that discretion in the matter of awarding sentence has been wrongly exercised by the magistrate so that this Court in revision should interfere. Resultantly this revision fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks