Full Judgment
S.M. Rizvi, J.
1. This criminal revision is directed against the judgment and order of the learned Sessions Judge, Udhampur dated 21-1-1976 whereby he has dismissed the appeal of the petitioner against his conviction for the offence under Section 338 Ranbir Penal Bode and under Section 117 of the Motor Vehicles Act, and confirmed the said conviction and also the sentence imposed upon him there under, by the learned Chief Judicial Magisrate, Udhampur.
2. The perusal of record shows, that ASI Traffic, Mr. Trikha in the course of his official duty was sitting in a chair under the shade of a mango tree at Jakhani on the National Highway and was checking the documents of truck No. JK 9584. The driver and the cleaner of the said truck were standing before him. The jeep No. DLI 2537 was also standing there in a stranded condition due to some mechanical defect. In the meanwhile, the petitioner/accused while driving truck No. JK 9947 struck the stranded jeep which in turn struck Mr. Trikha injuring him grievously as also injuring the driver and the cleaner of truck No. JK 9584.
3. On the matter being referred to police, the investigation started. The investigation revealed that the petitioner/accused was driving rashly and negligently and was under the influence of alcohol at the time of alleged occurrence. Consequently, he was challenged for the offence under Sections 279, 337, 338, Ranbir Penal Code and under Section 117 of the Motor Vehicles Act in the court of the learned Chief Judicial Magistrate, Udhampur. The petitioner was charged for the offence under Sections 279, 337 and 338, Ranbir Penal Code. He pleaded not guilty to the charges.
4. At the conclusion of the trial, the petitioner was convicted for the offence under Sections 279, 337, 338, Ranbir Penal Code and under Section 117, Motor Vehicles Act and sentenced to various terms of imprisonment and fine. He filed an appeal against the said order of conviction and sentence. The learned Sessions Judge maintained his conviction and sentence for the offence under Sections 338, Ranbir Penal Code and 117, Motor Vehicles Act. He was, however, acquitted by him in the remaining charges. Having felt aggrieved of the said order of the learned Sessions Judge, maintaining his conviction and sentence for the offence under Section 338, Ranbir Penal Code and under Section 117, Motor Vehicles Act, he filed this revision.
5. I have heard the learned Counsel for the parties and have thoroughly examined the record. The learned Counsel for the petitioner has assailed the impugned order on many grounds, in his petition. In his arguments, however, he has pressed only two grounds. Firstly, he argued that the petitioner has been convicted by the learned trial magistrate for the offence under Section 117, Motor Vehicles Act without charging him for the said offence. The learned Sessions Judge has not looked into this aspect of the case, and has without any legal basis maintained the conviction and sentence of the petitioner for the said offence.
6. From the perusal of the file, it transpires, that the petitioner has not been charged for the offence under Section 117, Motor Vehicles Act, though he was challenged for the said offence along with other offences. The learned Chief Government Advocate has conceded, and, rightly so, that the conviction of the petitioner for an offence without charging him there under is not maintainable in the eyes of law. This is so, because the petitioner was not called upon to face the trial for the said offence, thereby, his defence has been prejudiced to that extent. In these circumstances, the conviction of the petitioner for the offence under Section 117, Motor Vehicles Act is, hereby, set aside and he is acquitted for the offence under Section 117, Motor Vehicles Act.
7. The second argument of the learned Counsel for the petitioner is based on humanitarian consideration. The occurrence has taken place as far back as on 16-7-1970. The petitioner had to face the trial for more than four years and he was convicted on 8-7-1974. Besides other sentences, his driving licence was also cancelled. He being a driver, his livelihood was very badly affected. He filed his appeal on 11-11-1974 which, too, remained pending till 21-1-1976. On the dismissal of his appeal, he filed the present revision which has remained pending in this court for nearly ten years. According to him, the petitioner has suffered a lot for the last more than fifteen years, when the Damocles' sword of jail sentence was hanging on his head. He has, therefore, prayed that a very lenient view may be taken in favour of the petitioner.
8. I have given my anxious consideration to the submissions made by the learned Counsel for the petitioner, and I think, it has much force to be humanely considered. The proceedings have dragged on in the courts for such a long time is really shocking, and this delay cannot be attributed to the petitioner in any manner whatsoever. He has exercised his constitutional right to defend himself at the trial, and at its conclusion to file an appeal and, thereafter, a revision. He could not be denied this sacred right. But, the delay caused in exhausting his available remedies is none of his faults. This is a fault of the legal system itself. There is no doubt, that such an inordinate delay in the disposal of criminal matters must have shattered the petitioner mentally, physically and economically, and he cannot be compensated for such a colossal damage. The very purpose of sending him to a long jail term to suffer the sentence would be futile. It will not work as a deterrent to the society which is too quick to forget such incidents and that is why, justice delayed is justice denied.
9. Keeping in view the observations made above, I think, a lenient and humane view should be taken in favour of the petitioner. It may however be pertinent to mention here, that the impugned order to the extent of maintenance of conviction and sentence for the charge under Section 338, Ranbir Penal Code does not suffer from any illegality or impropriety, and this has been conceded even by the learned Counsel for the petitioner, though at this late stage. But, for other circumstances of the case, as detailed above, the petitioner had to suffer the punishment imposed upon him by the learned trial court for the offence under Section 338, Ranbir Penal Code and confirmed by the learned appellate court.
10. In these circumstances, while maintaining the conviction of the petitioner for the offence under Section 338, Ranbir Penal Code, the sentence of one year's rigorous imprisonment imposed upon him by the learned trial court, and confirmed by the learned appellate court is reduced to one month's rigorous imprisonment. He is also sentenced there under to a fine of Rs. 1,000/-, moiety, of which shall be given as compensation to Mr. Krishan Lai Trikha the then ASI, Traffic, who had suffered grievous injury, as a result of the offence committed by the petitioner/accused. The remaining fine shall be deposited in the Government Treasury, as provided under law. In default of payment of fine, he shall undergo a simple imprisonment for one month. The fine of Rs. 500/- imposed upon him by the learned trial court for the abovesaid offence shall stand merged in the sentence of fine, imposed by this court.
11. The revision is, accordingly, disposed of. Let the revision file be consigned to records. The record received from the learned courts below shall be remitted back to them. The petitioner is not present in this court, and therefore, the learned Chief Judicial Magistrate, Udhampur shall take immediate necessary steps under law to execute the sentence imposed upon the petitioner, as mentioned above. He shall issue the necessary warrants against the petitioner making him to suffer one month's rigorous imprisonment and for recovery of Rs. 1,000/- as fine, moiety whereof shall be disbursed as directed above.