Ramphal v. State

1. Issue notice. Ld. APP accepts notice on behalf of State.

2. Ld. counsel for the petitioner submits that vide judgment dated 19.05.2010, the petitioner was convicted under Section 279/304A Indian Penal Code, 1860 and vide order dated 21.05.2010 he was sentenced to undergo Rl for a period of one CRL.REV.P. 377/2011 Page 1 of[6] 2011:DHC:1988[1] (2) year under Section 304A with fine of ~5,000/- and in default of the fine the petitioner/convict shall undergo simple imprisonment for a period of one month.

3. Being aggrieved the petitioner assailed the aforesaid judgment and order passed by the ld. MM by filing the appeal before the Court of Sessions. Vide judgment dated 23.12.2011 the ld. ASJ has confirmed the same and benefit of Section 428 CrPC has also been granted to the petitioner/convict.

4. Ld.counsel for the petitioner submits that the petitioner/convict has already undergone more than 8 months out of his total sentence of one year. The present petition has been filed on the ground that the Ld. ASJ has failed to appreciate that there were glaring contradiction in the statement of the prosecution witnesses. Therefore, such contradictions can not be ignored.

5. He further submits that ld. ASJ has failed to appreciate that the registration number of alleged offending vehicle was not mentioned in the DD No.20A, whereas, according to the prosecution after the alleged accident, the bus was CRL.REV.P. 377/2011 Page 2 of[6]

6) apprehended on spot, thus, it clearly shows that the petitioner was falsely implicated in the present FIR.

6. Learned counsel for the petitioner further submits that ld. ASJ has failed to appreciate the fact that the deceased was under influence of alcohol, when, the alleged incident took place. Furthermore, there was no crossing or footpath for the pedestrian at the place of incident. In these circumstances,_ judgment/order are liable to be set aside.

7. Ld. counsel for the petitioner further submits that the ld. ASJ has failed to appreciate the fact that as per the prosecution, at the place of alleged incident, there was police barricade at a distance of about 100 yards. He submits that if the barricades was just 100 yards away from the place, where incident took place, in that case one cannot ride the vehicle in high speed or rash and negligent manner.

8. Ld. counsel for the petitioner further submits that the petitioner is aged at about 60 years with an illiterate wife and three children, who are fully dependent on him. Therefore, he could not deposit the fine of ~5,000/-. CRL.REV.P. 377/2011 Q

9. The settled law is that, the courts have limited powers and jurisdiction while dealing with the review petition. If the petitioner has not raised the issues either before the trial court or before the appellate court, then the same issue cannot be initiated in the revision petition.

10. The learned counsel for the petitioner has prayed to modify the order dated 23.12.2010 and the petitioner be released on cost of the circumstances mentioned above.

11. I note that the petitioner is from a poor family. The same is evident from the nominal roll, as he could not deposit even ~5,000/-- and he made up his mind to further undergo one month in lieu of ~5,000/-.

12. The ld. APP for the State has opposed any modification in the order because of the reasons that the petitioner has committed such an offence, whereby he has taken a precious life of the family of the deceased.

13. In my view, the offences under Section 279/337/338 and 304A are neither intentional nor deliberate. However, sometime even due to carelessness of the other persons, CRL.REV.P. 377!2011 ()) accidents take place.

14. In the present case, ld. counsel for the petitioner submits that deceased was under the influence of alcohol, therefore, it is uncertain to know the exact situation in which accident took place.