JAI BHAGWAN Vs. STATE OF U P

JUDGEMENT

(1.) Jai Bhagwan has filed this revision against the order dated 1. 8. 85 passed by Sri N. C. Jain, Additional Sessions Judge, Ghaziabad confirming the order of conviction and sentence recorded by the trial court in Criminal Appeal No. 16 of 1985 (Jai Bhagwan v. State) arising out of Criminal Case No. 1732 of 1984 (State v. Jai Bhagwan) decided by Sri V. K. Gupta, Chief Judicial Magistrate, Ghaziabad by his judgment and order dated 23. 1. 85 convicting the applicant under Section 304-A I. P. C. and sentencing him to undergo R. I. for one year and a fine of Rs. 1,000. 00 In default of payment of fine, to further undergo 6 months R. I. The aforesaid revision was admitted by this court on the question of sentence only by Hon'ble V. N. Khare, J. on 8. 8. 85. The prosecution story is that on 29. 4. 82 at about 5. 45 P. M. while the deceased Vinod Kumar was going on his Scooter No. D. H. Z. 5326 from Meerut towards Delhi on the main road, he was hit by Bus No. URJ 1315, U. P. State Road Transport Corporation driven by the applicant rashly and negligently near Sewa Nagar, P. S. Sihanai Gate, Ghazia bad. At the time of the accident, the bus was on wrong side of the road and it had struck against the scooter resulting the death of Vinod Kumar instantanceously on the spot. The scooter was also damaged. A report of the occurrence was lodged by constable Jai Kishan who was on patrol duty at that time. It was also come in the first information report that shortly after the occurrence, the applicant (driver) and the conductor of the Bus got down from the bus and had run away from the place of occurrence realising the death of Vinod Kumar. A case was registered against the driver of the aforesaid Bus, Investigation followed. The identity of the deceased was established. The accused was also put to identification proceedings and he was correctly identified by witnesses, con sequently, a charge-sheet was submitted against the accused. Accused did not pleads guilty and stated that he was falsely impli cated in the case. The Chief Judicial Magistrate, considering the evidence produced before him, came to the conclusion that prosecution has succee ded in bringing home the guilt of the accused relying on the evidence of Constable Jai Kishan P. W. 1, Kali Charan P. W. 2 and Ram Nath P. W. 3. I have gone through the findings arrived -it by the trial court and I am fully satisfied that the accused was rightly convicted and sentenced by the trial court. I have also gone through the judgment of the Addl. Sessions Judge dismissing the appeal of the applicant and I am in complete agreement with the findings of guilt arrived at by the apellants court against the applicant. Under the circumstance the conviction of the applicant under Section 304-A I. P. C. de serves to be maintained. Sri I. M. Khan submitted that the occur rence had taken place about 8 years back and the applicant has lost his job. It was further submitted by him that the applicant is not a previous convict and he is the only earning member of his family. Under the circumstance, it was further submitted that if the applicant is sent to jail for serving out the remaining sentence, his family members may be put to starvation and the education of the children of the applicant may also be adversely effected. Sri I. M. Khan, learned counsel for the applicant has placed before me a certified copy of the order passed by 1st Additional District Judge Ghaziabad in Motor Accident Claims Tribunal Case No. 47 of 1982 (Virendra v. Jai Bhagwan) dated 21. 5. 86 wherein an order for payment of Rs. 47,700. 00 was issued in favour of Virendra Singh, the younger brother and the hair of the deceased. The learned counsel submitted that after the accident Virendra Singh, brother of Vinod Kumar deceased, had filed a claim petition for, damages regarding the death of his brother Vinod Kumar before the Motor Accident Claims Tribunal and consequently Rs. 47,700. 00 were awarded to Virendra Singh as compensation for the death of his brother Vinod Kumar in the above mentioned motor accident case. Learned counsel further submitted that the applicant was also sentenced to a fine of Rs. 1000. 00 along with the sentence of one year R. I. and the applicant had deposited the same in the court below. In case the aforesaid amount of Rs. 1,000. 00 as fine, has not been deposited by the applicant, the applicant shall deposit the same within a month from today. I have also heard the learned counsel for the State. Having considered the facts and circum stances of the case and also the submissions made by the learned counsel for the parties I affirm the conviction of the applicant under Section 304-A I. P. C. and while setting aside the remaining sentence of imprison ment maintain the fine of Rs. 1,000. 00 imposed upon him by the courts below to meet the ends of justice. In the result, the revision is partly allowed. The conviction of the applicant under Sec. 304-A I. P. C. is affirmed as recorded by the courts below. However, the remsining sentence of imprisonment passed against the applicant is set aside but the fine of Rs. 1,000. 00' imposed upon the applicant and the period already under gone by him are maintained. In default of payment of fine, the applicant shall undergo six months R. I. The applicant is allowed time to pay the fine of Rs. 1,000. 00 in the court of Chief Judicial Magistrate, Ghaziabad within a month from today if he has not deposited the aforesaid fine of Rs. 1000. 00 till now in the court of Chief Judicial Magistrate, Ghaziabad. With the directions as indicated above, this revision is finally disposed of. Partly Allowed. .