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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 393 OF 2015 (ARISING OUT OF SLP (CRL.) NO.4213 OF 2013)

STATE OF HIMACHAL PRADESH           …APPELLANT

VERSUS

RAM PAL                    …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

2. This  appeal  has been preferred against  judgment  and order  

dated 27th February,  2013 passed by the High Court of Himachal  

Pradesh at Shimla in Criminal Appeal No.406 of 2011.

3. Only question raised for consideration is whether the sentence  

imposed in the facts and circumstances is fair and just.

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4. On 20th August,  2009 at 5.35 P.M.  FIR was lodged by PW 3  

Chhering  to  the  effect  that  he  was  a  mason  in  the  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 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, 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  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 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 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

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have  been  prevented.   Undoubtedly,  the  death  was  because  of  

vehicle hitting the girl which in the circumstances was clear result of  

rash and 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 IPC and concurrent 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 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  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 was the duty  

of the Court to award just and fair sentence.  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

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Rs.40,000/- cannot be held to be adequate compensation when life  

of a young girl aged 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 even though it  

was a case of driving in a difficult terrain where different parameters  

ought to be applied for determining negligence.

12. We  have  given  our  anxious  consideration  to  the  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 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,  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 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

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to pay adequate compensation to the victim or 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 Haryana1,  Manohar Singh  vs.  

State 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 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 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  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.

1 2015 (2) SCC 227

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15. The appeal is disposed of accordingly.

….…………………………….J. [T.S. THAKUR]

.….……………………………..J. [ADARSH KUMAR GOEL ]

NEW DELHI FEBRUARY 27, 2015