STATE Vs. BABAJI GALAJI

JUDGEMENT

(1.) This is a criminal revision application by the State for the enhancement of the sentence passed on one Babaji Galaji, who was convicted by the learned Judicial Magistrate, First Class, Ahmedabad, under Section 304A, I. P. C. and sentenced to two months' R. I. The prosecution case was that the opponent was driving his car at a rash speed and ran over the boy.

(2.) There is, therefore, no doubt that the conviction of the opponent under Section 304A, I.P.C. for causing the death of the boy is correct. As regards the sentence, the offence took place on the road between Three-Gates and Bhadra, which is a very busy locality in Ahmedabad, and on a Diwali day. Instead of taking extra precaution an such a day and on such a road, the opponent drove his car at a rash speed. The fact that both the wheels of his car ran over the boy indicates the high degree of negligence and rashness. In the circumstances, the sentence of two months R. I. is certainty grossly inadequate. But the learned counsel for the opponent relies on Emperor v. Hari Singh, 14 Cri LJ 599 (Lab), where it is observed that even when the order of the Court below Is clearly wrong, the High Court should not interfere when the accused has already undergone the sentence of imprisonment or has paid the fine Imposed upon him. It is also contended by the learned counsel for the opponent that under Section 439, Cr.P.C. a sentence which is not in existence cannot be enhanced; and he relies on Emperor v. Jagat Singh', ILR 1 Lah 453 : ( AIR 1920 Lah 213). in this case, it was observed as follows:

(3.) I, therefore, order that the sentence passed on the opponent be enhanced to rigorous imprisonment for six months. The learned Magistrate will pass necessary orders under Section 442, Cr.P.C.