STATE OF HIMACHAL PRADESHversusRAM PAL

                   [2015] 2 S.C.R. 955


            STATE OF HIMACHAL PRADESH                          A

                             v.
                         RAM PAL

            (Criminal Appeal No. 393 of 2015)                  B

                  FEBRUARY 27, 2015

   [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]

     PENAL CODE, 1860: ss.279 and 304A - Fatal accident        C
of 20 years old girl due to rash and negligent driving -
Conviction ulss.279 and 304-A - High Court noticed the
post mortem report to the effect that "the cause of death of
the deceased was crush injury of Jumbo-sacral spine and
                                                               0
pelvic bone leading to cardio respiratory arrest" - It was
inferred that such injury could be possible only with rash
and negligent driving - However, sentence of imprisonment
was set aside and substituted by fine of Rs.40,0001- - On
appeal, held: Sentence of fine of Rs.40, 000 was inadequate    E
- Insurance company had awarded Rs.360,000 as
compensation to the heirs of the deceased - In the ends
of justice, accused required to pay total compensation of
Rs. 1 lakh and the State to pay a sum of Rs.3 lakhs -
Compensation - Code of Criminal Procedure, 1973 -              F
s.357A.

    Disposing of the appeal, the Court

    HELD: 1. The facts and circumstances of the case
clearly show that the respondent did not call in question G
his conviction. The challenge was only to the
inadequacy of the sentence in the instant appeal filed


                           955                                 H
~56        SUPREME COURT REPORTS               [2015] 2 S.C.R.


A by the State. Moreover, in an appeal under Article 136
  of the Constitution, this Court does not re-appreciate
  the evidence, in absence of perversity or patent legal
  error, merely because a different view was also
  possible. The correctness of conviction of the
B respondent is, therefore, not opened. As regards the
  sentencing, the sentence of mere fine of Rs.40,000/·
  imposed by the High Court was not adequate and
  proportionate to the offence. A sum of Rs.3,60,000/· has
  been awarded as compensation by the insurance
C company to the heirs of the deceased. Where the
  accused is unable to pay adequate compensation to the
  victim or his heir, the Court ought to have awarded
  compensation under Section 357A, Cr.P.C. against the
  State from the funds available under the Victim
0
  Compensation Scheme framed under the said section.
  The ends of justice would be served if the accused is
  required to pay total compensation of Rs.1 lakh and the
  State to pay a sum of Rs.3 lakhs. In case the respondent
E fails to pay any part of the compensation, that part of
  compensation will also be paid by the State so that the
  heirs of the victim get total sum of Rs. 4 lakhs towards
  compensation. [Paras 13, 14] [959-E-H; 960-A-C, E]

F        Suresh VS. State of Haryana 2015 (2) sec 227;
      Manohar Singh vs. State of Rajasthan & Ors. Crl. A. 99 of
      2015 decided on 16.1.2015; State ofM.P. vs. Mehtaab Crl
      A 290 of 2015 decided on 13.2.2015 - relied on.
                         Case Law Reference
G        2015 (2) sec 221       Relied on.        Para 13
         CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No 393 of 2015 ..
      From the Judgment and Order dated 27 .02.2013 of the
H High Court of Himachal Pradesh, Shimla in Criminal Appeal
     STATE OF HIMACHAL PRADESH v. RAM PAL                       957


No. 406 of 2011.                                                 A
           .
   Varinder Kumar Sharma, Sanjeev Kumar for the
Appellant.
        '                   ~

   P. C. Sharma, Anchit Sharma, Sumit Kumar for the
                                                    8
Respondent.

    The Judgment of the Court was delivered by

    ADARSH KUMAR GOEL, J. 1. Leave granted.
                                                                 c
    2. This appeal has been preferred against judgment
and order dated 27'h February, 2013 passed by the High
Court of Himachal Pradesh at Shimla in Criminal Appeal
No.406 of 2011.
                                                                 D
     3. Only question raised for consideration is whether the
sentence imposed in the facts and circumstances is fair and
just.·

     4. On 20'h August, 2009 at 5.35 P.M. FIR was lodged
by PW 3 Chhering to the effect that he was a mason in the E
work of construction of road at Gulaba near Manali. At 2.30
P.M., a tanker driven by the respondent accused struck the
deceased Sonam a 20 year old girl, which was on account
of rash and negligence driving by the respondent. The F
injured was taken to Mission hospital, Manali where she was
declared dead on arrival. After completing the investigation,
the accused was sent up for trial.

    5. The prosecution examined six witnesses, namely,
PW 1 Dr. Balbir Rawat, PW 2 Budhi Singh, PW 3 Chhering, G
PW 4 Smt. Seema, PW 5 Sange Sherpa and PW 6 SI Om
Chand. The accused took up the plea that the deceased
came under the rear tyre after a part of the vehicle had
already crossed. The girl had come running and struck H
958        SUPREME COURT REPORTS                [2015) 2 S.C.R.


A     against the vehicle and the appellant was not rash or
      negligent in driving.

       6. The trial Court noted that the vehicle was coming
  uphill as admitted by PW 4 Seema. It was also admitted
B that the girl was struck on the back side of the vehicle. The
  vehicle was going uphill on a road, condition of which was
  bad. Thus, the vehicle could not be at high speed.

         7. On appeal, the view taken by the trial Court was
c reversed. It was held that even if the vehicle was going at
    slow speed and uphill, the vehicle could have been stopped
    and its striking to the girl could have been prevented.
    Undoubtedly, the death was because of vehicle hitting the
    girl which in the circumstances was clear result of rash and
D . negligent act of driving. Accordingly, the appellate Court
    convicted the respondent under Section 279 and 304 A IPC
    and awarded sentence of imprisonment for six months and
    fine of Rs.1000, in default further imprisonment of one
    month under Section 304 A I PC and concurrent
E imprisonment for three months and fine of Rs.500, in default
    further imprisonment of fifteen days under Section 279 IPC.

       8. The respondent accused preferred appeal to the
  High Court. The High Court noticed the post mortem report
F to the effect that "the cause of death of the deceased was
  crush injury of lumbo-sacral spine and pelvic bone leading
  to cardio respiratory arrest". It was inferred that such injury
  could be possible only with rash and negligent driving.
  However, sentence of imprisonment was set aside and
G substituted by fine of Rs.40,000/-, in default of which
  sentence awarded by the trial Court was to revive.

         9. We have heard learned counsel for the parties.

         10. Learned counsel for the State    pointed out that it
H
     STATE OF HIMACHAL PRADESH v. RAM PAL                  959
            [ADARSH KUMAR GOEL, J.]

was the duty of the Court to award just and fair sentence. A
If a liberal view was taken on sentence of imprisonment,
reasonable amount of compensation was required to be
awarded. On this text, the view taken by the High Court is
not sustainable. The amount of Rs.40,000/- cannot be held
to be adequate compensation when life of a young girl aged B
20 years was lost.

    11. Learned counsel for the respondent submitted that
the accused was a poor man and a driver and could not
pay more amount as compensation. He also submitted that C
even though it was a case of driving in a difficult terrain
where different parameters ought to be applied for                t"'.
determining negligence.                                     ,

     12. We have given our anxious consideration to the      o
rival submissions and perused the record.

     13. It is evident from the facts and circumstances of
the case that the respondent has not called in question his
conviction. We have before us only challenge to the E
 inadequacy of the sentence in the present appeal filed by
the State. Moreover, in an appeal under Article 136 of the
Constitution, this Court does not re-appreciate the evidence,
in absence of perversity or patent legal error, merely
because a different view was also possible. We are thus, .F
not inclined to reopen the correctness of conviction of the
respondent and proceed to consider the question of
adequacy of the sentence. In our view, the sentence of mere
fine of Rs.40,000/- imposed by the High Court is not
adequate and proportionate to the offence. We have been G
informed that a sum of Rs.3,60,000/- has been awarded as
compensation by the insurance company to the heirs of the
deceased. We are also of the view that where the accused
is unable to pay adequate compensation to the victim or
                                                              H
960         SUPREME COURT REPORTS              [2015] 2 S.C.R.


A his heir, the Court ought to have awarded compensation
  under Section 357A against the State from the funds
  available under the Victim Compensation Scheme framed
  under the said section. This Court has dealt with the issue
  in Suresh vs. State of Haryana 1, Manohar Singh vs. State
B of Rajasthan & Ors. (Criminal Appeal No.99 of 2015
  decided on 16.1.2015) and State of M.P. vs. Mehtaab
  (Criminal Appeal No.290 of 2015 decided on 13.2.2015).
  Having regard to totality of circumstances of the present
  case, we feel that ends of justice will be served if the
C accused is required to pay total compensation of Rs.1 lakh
  and the State to pay a sum of Rs.3 lakhs.

       14. Accordingly, we modify the impugned order passed
  by the High Court and enhance the compensation to be paid
D by the respondent accused to Rs.1 lakh to be paid within
  four months failing which the sentence awarded by the
  Court of Session shall stand revived. In addition, we direct
  the State of Himachal Pradesh to pay interim compensation
  of Rs.3 lakhs. In case the respondent fails to pay any part
E of the compensation, that part of compensation will also be
  paid by the State so that the heirs of the victim get total
  sum of Rs. 4 lakhs towards compensation. The amount
  already paid may be adjusted.

F         15. The appeal is disposed of accordingly.
      Devika Gujral                           Appeal disposed of.



G




H 1 201 s (2) sec 227