State of J. and K. vs Mohammad Sidiq Fafoo.

Hasnain Massodi, J.—On 16th September, 1993 at 14:30 hrs. police station Budgam, received information from the reliable sources that

one Ghulam Hassan Rather S/o Ghulam Mohd. Rather R/6 Yetehgam, was hit by Bus No. JKC-170 at Ichgam. The receipt of the report

prompted Police Station Budgam, to register case FIR No. 131 of 1993, under Sections 337, 279, RPC. The injured succumbed to injuries in a

local hospital and the case was converted into one under Sections 304-A, 279, RPC. After usual investigation charge sheet was filed in the

competent Court alleging commission of offence punishable under Sections 304-A, 279, RPC against Sh. Mohd. Sadiq Fafoo - driver of the

offending vehicle. The trial court convicted the driver of the offending vehicle accused before the Court of the offences punishable u/s 304-A, RPC

and sentenced him to imprisonment of one year and a fine of Rs. 5000/- and to default imprisonment of one year. The amount of fine if realised

was directed to be paid to the dependents of the deceased. The accused /convict threw challenge to the trial Court judgment dated 15th April,

2003 in an appeal before Sessions Judge, Budgam. The Appellate Court did not find any merit in the appeal and accordingly dismissed it vide

order dated 10th May, 2006. However, the Appellate Court reduced the sentence into simple imprisonment of one year. The Appellate Court in

other words reduced the sentence awarded by the trial Court by the sentence of fine.

The State as well as accused /convict have filed two separate revision petitions, questioning the order of the Appellate Court.

The State in its revision petition, registered as Cr. Revision No. 31 of 2006 is aggrieved with the Appellate Court judgment dated 10th May,

2006 on the grounds that the Appellate Court has modified the sentence awarded by the trial Court without detailing and discussing its reasons for

such modification/ reduction. It is pointed out that as the punishment prescribed for the offence punishable u/s 304-A, RPC is five years

imprisonment of either description and fine, the Appellate Court while reducing the sentence awarded by the trial Court was to set out convincing

reasons and that in any case it was not competent to completely delete the sentence of fine. In the present case, the Appellate Court is said to have

failed to give any reasons, let alone cogent and convincing, to reduce /modify the sentence;

The accused/convict in his revision petition registered as Cr. Revision No. 14/2006 assails the judgment dated 15th April, 2003 of the trial

Court whereby he has been convicted of offence punishable under Ss. 304-A. RFC and sentenced to one years imprisonment and fine of Rs.

5000/- and default imprisonment of one year, as also the judgment of the Appellate Court dated 10th May, 2006 whereby his appeal has been

dismissed, on the grounds that the trial Court failed to appreciate that the prosecution withheld important prosecution witnesses namely PW

Ghulam Mohd. Bhat, who made a mechanical check of the vehicle, PW constable No. 389/BD - a witness to the seizure of the vehicle and PW

Dr. Saleem, who examined and attended to the deceased in the hospital and that non examination of the witnesses cast a shadow on the veracity of

the prosecution case. The Courts below are also said to have ignored contradictions in the statement of Investigating Officer. It is insisted that the

Trial Court and the Appellate Court failed to appreciate that none of the witnesses cited by the prosecution was present at the time of the accident,

and a witness to the occurrence inasmuch as all of them admittedly were busy in their work in the adjoining fields when the accident took place.

The defence version is said to have been not given due weightage by the Trial Court and the Appellate Court. The petitioner is aggrieved that the

Trial Court and the Appellate Court while rendering their judgments have not directed the period of police and judicial custody, to be set off

against the sentence awarded. The other grounds urged in the petition are intended to persuade the Court to show compassion to the petitioner. It

is pleaded that the petitioner is a father of three minor children and has a grown up deaf and dumb sister, to look after and that in absence of the

petitioner his dependents would be left with no source to fall back upon.

Heard and considered.

Since challenge in Cr. Revision No. 14/2006 filed by the accused/convict is not restricted to the Appellate Court judgment but trial Court

judgment is also called in question, it would be appropriate to deal with the revision filed by the accused/convict in the first instance. For in case

challenge succeeds, there would be no need to deal with the revision filed by the State.

The main edifice of petitioner's case in Cr. Revision No. 14/2006 is that as the prosecution had withheld three of its listed witnesses, an adverse

influence ought to have been drawn against' the prosecution and its case thrown out on the said ground alone. The legal proposition put forth by

learned counsel for the petitioner that failure of one or more prosecution witnesses must invariably lead to dismiss(sic) of the prosecution case is far

from convincing. The prosecution is not duty-bound to examine each and every witness listed in the calendar of witnesses appended to the charge

sheet. The list of witnesses given in the charge sheet does not bind down the prosecution to examine all the witnesses or not to travel beyond the

list. It is for the prosecution to decide as the trial proceeds on the number of witnesses that in its opinion is likely to enable it to sail through and

prove its case. It is not the quantity but quality that matters and the law in any case discourages repetition of evidence. To illustrate, if there are four

witnesses to seizure of a prosecution item likely to be produced as prosecution evidence during the trial, the prosecution may without danger of it

being accused of withholding prosecution witnesses, feel contended with examination of only one or two of the witnesses to such seizure. Again

there may be witnesses listed in the charge sheet who are expected to depose as regards peripheral or fringe matters and not the core of the

prosecution case. The prosecution instead of burdening the record and claiming the precious time resources of the Court may settle on examining

only few of such witnesses. However, (position would be different if a material prosecution witness who is to depose regarding core of the

prosecution case, is not examined, depriving the accused/convict of an opportunity to elicit true facts in cross examination from such witness. In

such case also mere failure of the witness to stand in the witness box would not be by itself fatal to the prosecution case. The prosecution would be

within its rights to give cogent and convincing reasons for absence of such witness from the witness box and in case the Court is satisfied with the

explanation given, failure of the prosecution to examine such witnesses is not to have any negative fallout on the prosecution case. In the present

case, all the three witnesses mentioned in the petition, who according to the petitioner did not cross, the witness box are not in the context of the

prosecution case, material prosecution witness and their absence does not in any matter cast a shadow on the prosecution case, otherwise,

convincingly proved against the accused/convict.

The plea that none of the witnesses cited in the charge sheet was a witness to the accident and that some of the prosecution witnesses have been

erroneously shown as witness to the occurrence is devoid of any substance. True that the witnesses shown as eye witnesses were busy in their

agricultural operation in the fields near the place of accident, yet for that reason alone they cannot be said to have not witnessed the accident and

seen the deceased being run over by the vehicle driven rashly and negligently by the accused /convict. The witnesses, as is being projected by

learned counsel for the petitioner could not anticipate the accident, leave their fields well in advance, stand on the road side before the accident

took place and wait for the deceased to be run over by the speeding bus driven by the accused/convict, so as to be cited as witnesses to the

occurrence. There is, thus, no reason to disagree with the trial Court and the Appellate Court and rush to the Opinion that witnesses cited as

witness to the occurrence were not present near the place of accident and did not witness the accident.

The plea that defence stand was not given due weightage is equally without merit. The trial Court as well as the Appellate Court have looked at

the prosecution evidence from all aspects and after holistic view of the evidence brought on the file as also stand taken by the accused/convict held

the prosecution to have proved its case against the accused/ convict beyond reasonable doubt. The impugned judgments in the circumstances do

not suffer from any irregularity or illegality or impropriety.

This takes us to the next limb of the case set up in the revision petition. In terms of Section 397A Code of Criminal Procedure Svt. 1989 the

period of detention undergone by the accused is to be set off against the sentence of imprisonment. It reads :-

Where an accused person has on conviction been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during

the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed

on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any,

of the term of imprisonment imposed on him.

Provided that where an accused person is in detention as an undertrial & the period prescribed under the law as the maximum period of sentence

for offence alleged to have been committed by him expires, he shall be entitled to bail.

In the present case both the trial Court and the Appellate Court have observed the mandate of the provision in breach. Neither the trial Court

nor the Appellate Court have found it necessary to direct the period of detention undergone by the accused /convict to be set off against the period

of sentence. The lapse is likely to prejudiciously affect the accused /convict. The Trial Court judgment dated 15th April, 2003 and the Appellate

Court judgment dated 10th May, 2006 suffer from illegality and warrants interference u/s 435 of the Code.

Let us now shift focus to Criminal Revision No. 31/2006 filed by the State against the Appellate Court judgment dated 10th May, 2006. The

petitioner grievances is two fold :-

Firstly, it is pointed out that the Appellate Court after upholding the Trial Court judgment and sentence has without giving any reasons rushed

to modify the sentence. Secondly, it is pleaded that the Appellate Court unmindful of the punishment prescribed u/s 304-A, RFC has deleted the

sentence of fine awarded by the trial Court. Both the grievances are valid and have merit.

The Appellate Court in terms of Section 423 of the Code in an appeal from conviction may dispose of the appeal in the following manner:-

(1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction

subordinate to such Appellate Court or committed for trial, or

(2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or,

(3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of Section

106, sub-section (3), not so as to enhance the same;

It follows that the Appellate Court is well within its power to reduce the sentence or alter the nature of the sentence without recording any

disagreement as regards the finding returned by the Trial Court. In other words, the Appellate Court may reduce the term or quantum of sentence

i.e. period of imprisonment or amount of fine and alter the sentence i.e. rigorous imprisonment into simple imprisonment. However, like any other

power this power in view of its plentitude is to be exercised not in an arbitrary manner. The power is to be exercised objectively detailing the

reasons for such reduction or alteration as recording reasons is the test of objectivity. The reasons given tell us, what prompted the Appellate

Court to reduce or alter the nature of the sentence and then to test whether such reasons are valid or tainted with perversity.

In the present case we do not find a whisper in the Appellate Court judgment dated 10th May, 2006 as regard the reasons that made the

Appellate Court to modify the sentence. In the first place the Appellate Court without going through the Trial Court judgment worked on the

assumption that the accused/convict was to suffer rigorous imprisonment of one year. The Trial Court judgment does not indicate that the

imprisonment to be undergone by the accused/convict was rigorous in nature. It is pertinent to point out that whenever the Trial Court while

awarding sentence of imprisonment does not indicate nature of imprisonment, it is to be taken as simple imprisonment. The Appellate Court

erroneously recorded in judgment that the accused /convict was sentenced to one year rigorous imprisonment and thereafter converted it into

simple imprisonment. The Appellate Court as a matter of fact neither reduced nor altered the nature of the imprisonment. However, the Appellate

Court altogether deleted the sentence of fine awarded by the trial Court. This was done by the Appellate Court without recording reasons and

oblivious to the punishment prescribed u/s 304-A, RPC. Section 304-A, RPC needs to be noticed.

304-A Whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide shall be punished with

imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to

fine.

Provided that where the death is caused by rash and negligent act by a person driving a motor vehicle without holding a driving licence, the

minimum imprisonment under this section shall be two years.

It is evident that punishment prescribed under law is imprisonment of either description and fine. Neither the trial Court nor the Appellate Court

in exercise of powers u/s 423( 1) (b) of the Code can in the event of conviction of an accused of offence punishable u/s 304-A, RPC omit to

award or delete sentence of fine. The Appellate Court may reduce the amount of fine but cannot modify/alter sentence so as to altogether delete

the sentence of fine. Neither is the trial Court or the Appellate Court in exercise if powers u/s 423 (1) (b) of the Code competent to award sub-

minimal sentence. This cannot be done even for the reasons recorded by the trial Court or the Appellate Court. In the present case though the

Appellate Court was competent to reduce the sentence of Rs. 5000/- fine but it had no power even for the reasons recorded to altogether delete

the sentence of fine. The Appellate Court judgment, thus, surfers from an irregularity to the said extent and is required to be corrected in exercise

of powers u/s 435 of the Code.

Let us last of the all go to the grounds that are spelt out in the criminal revision No. 14/2006 filed by the accused/convict that according to him

constitute mitigating and extenuating circumstances"" and call for a lenient view. The accused/convict has been before the Courts, one after another

for last eighteen years. Though long drawn trial faced by the accused/convict cannot be technically taken as substitute for punishment yet it has

undoubtedly exposed the accused/convict to immense hardship and taken to have drained his meagre resources. The accused/ convict has to

provide for a family of five members including a physically challenged sister. All these factors together constitute extenuating and mitigating

circumstances, warranting a lenient view.

For the reasons discussed, the Trial Court and Appellate Court judgment dated to the extent the judgment omit to direct setting off the period

of custody against the sentence awarded, and altogether deleting the sentence of fine are set aside. Though one of the option available is to remand

the matter to the Trial Court for a fresh look as regards quantum of sentence in the backdrop of above observations yet long pendency of the

matter does not suggest such recourse. In the circumstances, while conviction of the accused/convict - for the offence punishable under Sections

304-A, RPC, 279, RPC is maintained, sentence is reduced to six months simple imprisonment and a fine of Rs. 2500/- to be paid on realization to

the dependents of the deceased. The period of custody in connection with case FIR No. 131 of 1993 u/s 304, RPC in terms of Section 397-A,

Cr.P.C be set off against the period of sentence. The accused/convict accordingly shall appear before the Trial Court to be remanded to Central

Jail, Srinagar to suffer the sentence. In default Trial Court shall take steps under Law to secure presence of accused and thereafter remand him to

Central Jail Srinagar in accordance with (sic)