1 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 *** Mukimkhan S/o Abedkhan Pathan, Age: 31 years, Occu.: Driver, R/o Kazi Mohalla Bhokardhan, Tq. Bhokardhan, Dist. Jalna. ... PETITIONER. Versus The State of Maharashtra. Through Bhokardhan Police Station, Tq. Bhokardhan, Dist. Jalna. [Copy to be served on P. P. of High Court of Judicature of Bombay Bench at Aurangabad]. ... RESPONDENT. *** Mr. R. V. Gore, Advocate for the Petitioner. Mr. D. V. Tele, A.P.P. for the Respondent. *** CORAM: S. B. DESHMUKH, J. DATED:- 29th NOVEMBER, 2011. ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. Rule. Rule is made returnable forthwith, heard finally by consent of the parties. 3. This revision petition, filed under section 397 of Cr.P.C. challenges the judgment and order passed by learned Sessions Judge, Jalna in Criminal Appeal No.13 of 2009 on 22nd June, 2010. By this order, learned Sessions Judge, Jalna has dismissed 2 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 Criminal Appeal No.13 of 2009 confirming the conviction and sentence recorded by learned Judicial Magistrate, First Class, Bhokardan in S.T.C. No.1307 of 2007. 4. The present petitioner was tried for the offence punishable under sections 304-A, 279, 337, 338 and 427 of Indian Penal Code. 5. According to the prosecution, on 7th October, 2007 at about 11.30 hours on Jafrabad-Bhokardan road present petitioner was driving vehicle - TATA 407 Matador. It was registered as MH-21-6274. It is further the case of prosecution that, on the date of the accident one Mr. Shaikh Azhar S/o Shaikh Rafique was riding with Motor bike (Hero Honda No.MH-28-B-6137) on the same road. The said motor bike was being driven by the said person on same road and more specifically from Bhokardan to Jafrabad. Mr. Shaikh Ayaz was the pillion rider on said motor bike. The matador which was being driven, at the relevant time, by the present petitioner, according to the prosecution, was being driven with high speed and negligently. Petitioner gave dash of his matador to the motor bike. Mr. Shaikh Azhar sustained head injury and pillion 3 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 rider Mr. Shaikh Ayaz also sustained injuries on his head. Both of them were rushed to Bhokardan Hospital. Mr. Azhar, who drove the motor-cycle was declared to be dead. Pillion rider was referred to hospital at Aurangabad. Based on the information given by Mr. Dadarao to police station, Bhokardan, Crime No.115 of 2007 was registered against the present petitioner/ accused for the offence refered to above. 6. On completion of investigation, charge sheet was submitted against the present accused in the Court of learned Judicial Magistrate, First Class, Bhokarkan. Charge was framed for the offence referred to above. It was explained to the accused/ present petitioner who denied the same and claimed to be tried. On trial, the present petitioner has been convicted by the learned trial Court for the offence under section 279 I.P.C. and sentenced to suffer is S.I. for 1 month and fine of Rs.1,000/-, in default of payment of fine, S.I. for further one month was also directed. For offence under section 338 I.P.C. present petitioner has been acquitted by the trial Court. For the offence punishable under section 337 of I.P.C. the 4 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 petitioner has been directed to suffer S.I. for 1 month and to pay a fine of Rs.1,000/-. In default of payment of fine, he has to undergo S.I. for 1 month. Petitioner/ accused also has been convicted for the offence punishable under section 304-A I.P.C. and sentenced to suffer S.I. for 3 months and to pay fine of Rs.3,000/- in default to suffer further S.I. for one month. 7. Thus, the substantive sentences imposed upon the petitioner for various offences is maximum 3 months i.e. for the offence punishable under section 304-A I.P.C. For offence punishable under section 337, substantive sentence is one month. For offence punishable under section 279 substantive sentence is one month. As I have noticed above, for offence under section 338 the petitioner has been acquitted. 8. With the assistance of learned A.P.P. and learned counsel for the Petitioner, I have seen the punishment prescribed for various offences for which the petitioner was tried. Offence punishable under section 304-A I.P.C. prescribes imprisonment for two years or fine. In the present case, offence punishable under section 304-A I.P.C. seems 5 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 to be major or serious offence. It is important to notice that punishment prescribed is either two years substantive sentence or fine. Trial Court has imposed 3 months substantive sentence and fine. Fine amount is deposited by the present petitioner in the trial Court. Learned counsel for the petitioner, on perusal of R. & P., could show the endorsement of deposit of fine by the present petitioner. It is the copy of the judgment (page 20 of the trial Court's record). There is an endorsement of payment of fine of Rs.5,000/- under receipt No.0837774. Towards substantive sentence, counsel for the petitioner points out order passed by this Court in Criminal Application No.2398 of 2010 on 28th June, 2010. In this order, it has been mentioned that the present petitioner's appeal No.13 of 2009 was dismissed by the Appellate Court on 22nd June, 2010. During the pendency of the appeal, present petitioner was on bail. However, he was taken in custody on 22nd June, 2010. This Court has granted bail during pendency of this Revision by order dated 28th June, 2010. 9. Counsel for the petitioner states that the petitioner has undergone 10 days imprisonment since 6 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 he was taken in custody after dismissal of the appeal and till grant of bail by this Court. Thus, total amount of fine i.e. Rs.5,000/- imposed by the trial Court and maintained by the Appellate Court, has been deposited by the present petitioner in the trial Court. He has undergone 10 days imprisonment towards substantive sentence. 10. After hearing learned counsel for the parties and considering the material on record, in my view, this petition can be partly allowed. The conviction awarded by the trial Court and confirmed by the Appellate Court can be maintained and sentence/ punishment can be modified. 11. In the result, the revision is partly allowed. The order of conviction passed by the trial Court for offence punishable under sections 304-A, 279 and 337 of Indian Penal Code and confirmed by Appellate Court is maintained. However, the substantive sentence of imprisonment for offence punishable under sections 304-A and 279 and 337 of Indian Penal Code is restricted to the period of 7 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 imprisonment the petitioner has already undergone i.e. 10 days. Since the amount of fine is already deposited by the petitioner, the sentence of fine is not disturbed. 11. Rule is made absolute partly in above terms. [S. B. DESHMUKH, J.] Dated:29/11/2011. ans/158 8 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 CRIMINAL REVISION APPLICATION NO.: 158 OF 2010 Date of decision: 29th NOVEMBER, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE