Karnataka High Court
K Devendra vs State By Traffic Police Station on 19 December, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:52845
CRL.RP No. 1218 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1218 OF 2016
BETWEEN:
K. DEVENDRA
S/O KRISHNAPPA,
AGED ABOUT 39 YEARS,
LORRY DRIVER BEARING
REG NO. KA- 41 NO. 4326,
R/O II CROSS, VIJAYANAGAR,
BHADRAVATHI - 577 301,
SHIMOGA DISTRICT.
...PETITIONER
(BY SRI. PRASAD B.S., ADVOCATE)
AND:
STATE BY TRAFFIC POLICE STATION,
Digitally BHADRAVATHI,
signed by SHIMOGA DISTRICT - 577 301,
MALATESH REP. BY SPP,
KC
HIGH COURT OF KARNATAKA,
Location:
HIGH BENGALURU - 560 001.
COURT OF ...RESPONDENT
KARNATAKA
(BY SMT. WAHEEDA M.M., HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
07.10.2015 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC,
AT BHADRAVATHI IN C.C.NO.780/2013 AND THE JUDGMENT
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CRL.RP No. 1218 of 2016
AND ORDER DATED 30.07.2016 PASSED BY THE IV ADDL.
DIST. AND S.J., SHIVAMOGGA, SITTING AT BHADRAVATHI IN
CRL.A.NO.272/2015 AND ACQUIT THE PETR. FROM ALL THE
CHARGES LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Mr.B.S.Prasad, learned counsel for the revision petitioner and Smt.M.M.Waheeda, learned High Court Government Pleader for the respondent.
2. The accused suffered an order of conviction for the offence punishable under Section 279 and 304A of Indian Penal Code, 1860 in C.C.No.780/2013 and confirmed in Crl.A.No.272/2015, has preferred this revision petition.
3. Facts in the nutshell for the disposal the revision petition are as under:
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 3.1 In respect of road traffic accident, a complaint came to be lodged with Traffic Police Station, Bhadravathi, contending that on 21.05.2012 at about 3.15 p.m., when complainant was crossing the road in front of Taluk Office, Court Road, Old Town in Bhadravathi, accused being the driver of the lorry bearing registration No.KA 41 4326 drove the same in a rash and negligent manner from KSRTC depot side towards Rangappa circle and dashed against the Channegowda. The said Channegowda sustained grievous injuries on his head, face and succumbed to the injuries at the spot. The son of the complainant was in the business of selling cucumber near Taluk office was intimated by the eye-witness about the incident and he rushed to the spot and found the dead body of his father.
3.2 Based on the complaint, traffic police registered a case and conducted the detailed investigation inter alia seized the lorry in question and filed charge sheet. The cognizance of the offence was taken by the Trial -4- NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 Magistrate on receipt of the charge sheet and summoned the accused. The accused appeared before the court and pleaded not guilty, therefore, trial was held.
3.3 In order to bring home the guilt of the accused, prosecution proceeded to examine the complainant who is the son of the deceased as PW1, eye-witness viz., Girisha as PW2 and other witnesses including the investigation officer as PWs3 to 7.
3.4 Prosecution placed on record 10 documents, which were exhibited and marked as Ex.P1 to Ex.P10 comprising of complaint, spot Mazhar, photograph, inquest mahazar post-mortem report, IMV report, indemnity bond, spot sketch.
3.5 On conclusion of recording of evidence, trial magistrate recording the accused statement and put across the incriminatory circumstances found in the case of the prosecution. The accused has denied all the incriminating materials and did not choose to place any written submission on record as is contemplated under -5- NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 Section 313(4) of Code Of Criminal Procedure, 1973 nor placed any defence evidence on record.
3.6 Subsequent thereto learned trial magistrate heard the parties and on cumulative consideration of the oral and documentary evidence placed on record noting that there was no explanation whatsoever offered by the accused with regard to the incident nor placed any version of the on record with regard to the incident, convicted the accused for the offence punishable under Section 279 and 304A of Indian Penal Code, 1860 and for the offence under Section 304A of IPC, imposed sentence of two years simple imprisonment and fine of Rs.5,000/- and for the offence under Section 279 of IPC, accused has been imposed with six months simple imprisonment and fine of Rs.1,000/-.
3.7 Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No. 272 of 2015.-6-
NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 3.8 The learned judge in the first appellate court after securing the records heard the parties in detail in the light of the grounds urged in the appeal memorandum and on re-appreciation of the material on record, dismissed the appeal of the accused by judgment dated 30.07.2016 and confirmed the order of conviction and sentence. Being further aggrieved by the same, accused is before this court in this revision on the following grounds:
1. That the impugned judgment and order passed by the courts below are illegal, invalid and contrary to law and evidence on record.
2. That the judgments of the courts below are illegal, arbitrary, capricious and opposed to sound principles of law.
3. That the courts below have committed serious error in convicting the petitioner when the prosecution has failed to prove the guilt of the petitioner.
4. That the courts below have not considered the facts and circumstances of the case in proper perspective but have simply mislead themselves by stressing unnecessarily on the alleged rash and negligent act on the part of the petitioner.-7-
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5. That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the manner in which the alleged incident took place.
6. That the courts below have committed serious error in relying on the witnesses who are interested and whose evidence suffers from legal infirmities.
7. That the courts below ought to have accepted the defence of the petitioner and ought to have acquitted him:
8. That the courts below have committed serious error in convicting the petitioner when none of the witnesses have deposed with regard to the true version of the case in as much as they are interested witnesses as they are interested in compensation.
9. That the courts below failed to appreciate the fact that there is contradiction of the witnesses and sketch E-P9, hence it is liable to be set aside.
10. That the courts below failed to appreciate the fact that the eye witnesses who are interested witnesses, and they failed to identify the Accused before the Trial Court, hence it is liable to be set aside.
11. That the courts below failed to appreciate the fact that the prosecution examined the eye witnesses -8- NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 before the Trial Court who are all the relatives of the deceased and as per the prosecution the accident was occurred in the busy area at about 3.15 p.m. in front of the Taluk Office when there is a availability of the Independent witnesses, the prosecution examined the interested witnesses and it creates doubt hence, it is liable to be set aside.
12. That the courts below failed to appreciate the fact that the independent witnesses have not supported the case of the prosecution, hence it is liable to be set aside.
13. That the courts below failed to appreciate the fact that there is a lot of contradiction of the PW1 and PW2 who are all the eye witnesses to the incident and they are the interested witnesses.
14. That the courts below have failed to consider the fact that PW-1 and PW-2 have not identified the accused and further PW-3 has not supported the case of prosecution hence, the prosecution has miserably failed to prove the case beyond reasonable doubt and benefit of doubt ought to have been extended in favour of the petitioner
15. That the courts below ought to have acquitted the petitioner on the ground that the prosecution has failed to prove the death and the injuries caused as neither the postmortem reports nor the wound -9- NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 certificates have spoken about the incident and prosecution has to examine author of the document. Hence in the absence of any materials showing injuries or death, conviction of petitioner under Section 337, 338, and 304A is bad in law.
16. That the courts below ought to have considered the fact that the rough sketch produced by the prosecution clearly shows that there is no negligence of the driver of the lorry, hence conviction of petitioner is liable to be set-aside.
17. That the courts below ought to have acquitted the petitioner on the ground that the evidence of the punch for the spot and an eyewitness is an improvement and another punch for spot ExP2 has not supported the case of prosecution. Hence the prosecution has failed to prove the alleged place of accident and therefore the petitioner is liable to be acquitted.
18. That the courts below have committed serious error in convicting and sentencing the petitioner under section 304 IPC which is improper and illegal.
19. That the courts below ought to have taken into consideration that the petitioner had exercised care and caution while driving inasmuch as he was not driving in a high speed or rashly and negligently, the fact is clearly evident in the evidence
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20. That the courts below have committed serious error in attributing rashness and negligence on the petitioner and further convicting him when the prosecution has miserably failed to prove the same.
21. That the learned Sessions Judge has committed serious error in not applying his mind to the case independently and has approved the findings of the learned Magistrate.
22. That the entire approach of the case by the courts below are erroneous, misconceived and the same has resulted in mis-carriage of justice.
23. That the petitioner may be permitted to raise any grounds at the time of arguments/hearing.
4. Sri.B.S.Prasad, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that even though version of the eyewitness is highly improbable and did not inspire the confidence of the court and mechanically an order of conviction has been recorded which has been mechanically confirmed by the first appellate Court without considering
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 the contradictions elicited in the case of the prosecution through prosecution witnesses.
5. He further contended that the order of conviction passed by the trial magistrate suffers from serious legal infirmities which has been totally ignored by the learned judge in the First Appellate Court while upholding the order of conviction and sought for allowing the revision petition.
6. Alternatively, Sri.B.S.Prasad contended that in the event this court upholding the order of connection, taking note of the mitigating circumstances of the accused viz., revision petitioner is having lung infection and his daughter died recently, the order of sentence of imprisonment may be set aside by enhancing the fine amount reasonably.
7. In support of his arguments, he placed reliance on the judgement of the Hon'ble Apex Court in the case of MANISH JALAN VS. STATE OF KARNATAKA reported in
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 S.L.P.(CRIMINAL) No.1080/2007. The relevant paragraph of the judgment reads as under:
15. True that in the instant case the appellant has been found to be guilty of offences punishable under Sections 279 and 304A, IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of a precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment.
16. Having regard to all these facts and bearing in mind the fact that the mother of the victim has no grievance against the appellant and has prayed for some compensation, we are of the view that a lenient view can be taken in the matter and the sentence of imprisonment can be reduced.
We are of the opinion that the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone but in addition thereto, the appellant should be directed to pay an amount of Rs.1,00,000/- to the mother of the deceased by way
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 of compensation. Learned counsel for the appellant, in fact, indicated that his client was willing to pay that much amount. We order accordingly.
8. He also placed reliance on the judgment of the Hon'ble of Apex Court in the case of GEORGE VERSUS STATE OF KERALA reported in SLP (CRIMINAL) NO.11041/2024 dated 03.09.2024. The relevant paragraph of the judgment reads as under:
13. In the present case, the appellant was arrested on 10.05.2024 and by now, he has been in custody for about 117 days. Considering the circumstances, while upholding the conviction of the appellant, we deem it appropriate to modify the sentence to the period already undergone, in the interest of justice. Ordered accordingly.
14. Insofar as the direction in the impugned judgment, for payment of compensation of Rs.2.5 lakhs, the learned counsel would point out that the appellant is a poor person and is now aged around 69 several medical issues and therefore compensation sum be either waived or be reduced.
15. In the peculiar facts of this case, conviction, we reduce the compensation payable by
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 the appellant to This amount should be deposited before the trial The trial Rs.50,000/-. while upholding the court within 60 days of the release of the appellant. court should then family. arrange for remitting the amount to the victim's family.
16. Following the above, and the modification of sentence to the period undergone, the appellant, who is lodged currently in the Central Prison and Correctional Home, Thiruvananthapuram, is ordered to be released forthwith. The appeal is disposed of with this order.
17. Pending application(s), if any, shall stand closed.
9. Per contra, Smt.Waheeda M.M., learned High Court Government Pleader for the respondent supports the impugned judgment. She has further contended that the incident has occurred in the broad daylight near the taluk office and complainant being the son of the deceased was carrying on the business in the Taluka office compound by selling the cucumber and PW2 Girisha has informed about the incident and immediately complainant rushed to the spot and found that his father was no more and he had
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 died on the spot on account of rash and negligent driving of the lorry by the accused. Therefore, the prosecution was successful in establishing the incident with cogent and convincing evidence on record, which requires no interference by this court in this revision.
10. Insofar as the alternative submission is concerned, she has contended that in view of the authoritative principles enunciated by the Hon'ble Apex Court in the case of STATE OF PUNJAB V. SAURABH BAKSHI reported in (2015) 5 SCC 182, sentence ordered by the trial magistrate confirmed by the First Appellate Court needs no interference and sought for dismissal of the revision petition in toto.
11. Having heard the parties in detail, this court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration:
(i) Whether the revision petitioner makes out a case that impugned judgments are
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 suffering from legal infirmity, patent factual errors and perversity and thus, calls for interference?
(ii) Whether the sentence is excessive?
(iii) What order? RE: Point No.1:
12. In the case on hand, death of Channegowda being the father of PW1 in a road traffic accident that occurred on 21.05.2012 at about 3:15 P.M. on main road in front of the Tarika office, Bhadravati Town is established by placing cogent and convincing evidence on record. Accused being the driver of the lorry bearing No.KA 41 4326 is also established by placing necessary evidence on record.
13. PW2 is examined as the eyewitness to the incident. In his chief-examination, he has supported the case of the prosecution in toto stating that he was present and he has seen the incident. In his cross-examination, it has been questioned that who are all at the place of
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 incident present along with him on the day of incident, for which witness has answered himself and deceased were standing near the Taluka office in Canteen. He admits that he has not mentioned the registration number of the lorry in his statement before the Investigating Officer. He denied the suggestion that he has not witnessed the accident. There was a specific suggestion made to him that he had not seen the accused at the time of incident, for which witness has answered that he had seen the accused as PW1 has held him on the spot. He has answered that the incident has occurred around 3:15 P.M. He has further answered that the mahazar has been written at about 5.00 P.M.
14. PW1 being the son of the deceased, rushed to the spot based on the information given by PW2 and noted that his father was no more. The indemnity bond executed by the owner of the lorry shows that they accused was the driver of the lorry as on the date of the incident.
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15. The postmortem report shows that Channegowda died on account of shock and hemorrhage on account of the injury to the vital organ viz., the brain. Autopsy surgeon also noticed that there was a crush injury on the forehead and right side of the face. Forehead bone was broken and it was visible. Abrasion on the scalp and frontal portion was also noted. Tongue was cut and other injuries are also noted by the autopsy surgeon.
16. It is also pertinent to note that Channegowda died on the spot and the lorry was found in a parked state till the police came and conducted the mahazar on the spot. IMV a report shows that there was no mechanical defect.
17. Admittedly, insofar as PW1 and PW2 are concerned, accused is a stranger. In the absence of any previous enmity or animosity, why would PW1 and PW2 falsely implicate the accused in the case is a question which remains unanswered.
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18. Thus, prosecution evidence was sufficient enough to infer that accused drove the lorry in a rush and negligent manner resulting in the death of Channegowda being the father of PW1.
19. In a matter of this nature, when the prosecution establishes its case by placing necessary evidence on record, the trial magistrate is bound to put across the incriminating circumstances and seek the explanation from the accused by recording the accused statement as is contemplated under Section 313 of CRPC.
20. Recording of the accused statement is not an empty formality or purposeless. Firstly, it mandates that the trial magistrate is duty-bound to put across the incriminatory circumstances and seek necessary explanation from the accused.
21. Secondly, it serves an important purpose in affording an opportunity for the accused to have his version of the incident placed on record.
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22. If the accused deliberately fails to make use of such an opportunity granted to him by denying the incriminatory circumstances and not placing any version of his side to the incident, the consequences in law has to be followed. Same is the principles of law enunciated in the case of RAVI KAPOOR VERSUS STATE OF PUNJAB REPORTED IN 2012 SS SNC.
23. In the case on hand, accused failed to place his version on record and denied all incriminating materials. Therefore, the trial magistrate was justified in passing the order of conviction for the offence punishable under Section 279 and 304A of IPC. The learned judge in the First Appellate Court after re-appreciation of the above material on record has rightly dismissed the appeal.
24. This court, that too in a revisional jurisdiction, cannot go into the factual aspect of the matter in upsetting the findings recorded by the both the courts with cogent and convincing reasons having regard to the scope of revisional jurisdiction as has held in the case of 'AMIT
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 KAPOOR VS. RAMESH CHANDER AND ANOTHER', (2012) 9 SCC 460.
25. Therefore, the order of the conviction recorded by the Trial Magistrate confirmed by the First Appellate Court needs no interference in this revision petition.
Accordingly, point No.1 is answered in the 'Negative'. RE: Point No.2:
26. It is settled principles of law and requires no emphasis that the role to be played applied by the court while recording an order of conviction is altogether different from the role to be played while passing an appropriate sentence in a given case.
27. In the case on hand, the trial magistrate has granted six months imprisonment for the offence under Section 279 of IPC and two years simple imprisonment for the offence under Section 304A of IPC.
28. Since there is only one death in the incident and no other persons have been injured, offence under
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 Section 279 merges with the higher offence under section 304A of IPC. As such, recording a separate sentence for the offence punishable under Section 279 of IPC is impermissible by applying the principles of doctrine of merger. Therefore, separate sentence of six months ordered by the trial magistrate for the offence under Section 279 of IPC needs to be set aside.
29. Taking note of the fact that there was no explanation whatsoever offered by the accused and accused even went to the extent of denying the accident itself while recording the accused statement, the trial magistrate using his discretion, has awarded a maximum punishment of two years for the office under Section 304A of IPC.
30. The trial magistrate has also taken a note of the principles of law enunciated by the Hon'ble Apex Court in the case of DALBIR SINGH VS. STATE OF HARYANA reported in AIR 2000 SC 1677 while denying the benefit of provisions of Probation Of Offenders Act.
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31. Further, the trial magistrate did not offer any special reasons for according the maximum punishment of two years for the offence under Section 304A of IPC.
32. The mitigating circumstances now pleaded before this court is that the accused is suffering from lung infection.
33. The second mitigating circumstance that has been put forward by the accused is he lost his daughter recently.
34. Taking note of these aspects of the matter, this court is of the concerned opinion that awarding two years imprisonment under Section 304A of IPC needs a re-look.
35. This court has taken into consideration principles of enunciated in 'AMIT KAPOOR VS. RAMESH CHANDER AND ANOTHER', (2012) 9 SCC 460 referred to supra.
36. In the case of GEORGE VS. STATE OF KERALA, the Hon'ble Apex Court took into consideration
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 that accused has already undergone custody period of 117 days and therefore, set aside the balance portion of the sentence imprisonment ordered by the trial magistrate. It also took into consideration that accused is aged 69 years by the time order came to be passed and he was not having sufficient financial capacity to pay compensation of Rs.2.5 Lakhs and therefore, reduced the amount of fine of compensation to a sum of Rs.50,000/-.
37. In the case on hand, accused is neither aged 69 years nor has he shown any economic conditions so as to pass appropriate order of compensation. Therefore, the principles of law enunciated in GEORGE supra, is not applicable to the case on hand as the facts would be distinguished.
38. In case of MANISH JALAN referred to supra there was a compromise between the parties and therefore, placing the compromise on record, the Hon'ble Apex Court modified the order of conviction and sentence,
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 Hence, the principles of law enunciated therein is not applicable to case on hand.
39. What is an appropriate sentence in case of an offence under Section 304A of IPC having regard to the galloping trend of the road traffic accident was the subject matter of Hon'ble Apex Court in the case of SAURABH BAKSHI supra. The relevant portion of the said judgment is culled out hereunder for ready reference:
13. In Siriya v. State of M.P.[14] it has been held as follows:-
"Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 should be, and tempered with mercy where it warrants to be."
14. In Alister Anthony Pareira v. State of Maharashtra[15] while emphasizing on the inherent danger the Court observed thus:-
"39. Like Section 304-A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. The scheme of Sections 279, 304-A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life."
15. While dealing with the policy of sentencing in Gopal Singh (supra) the two-Judge Bench quoted a paragraph from Shailesh Jasvantbhai v. State of Gujarat[16] which is as follows:-
"7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."
In the said case it has been laid as follows:-
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the [pic]accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play.
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment."
40. The learned counsel for the revision petitioner also placed on record the order passed by this court in Crl.R.P.No.311/2021 in the case of RANJITH NANDAKUMAR MENAN VS. THE STATE OF KAGGALIPURA POLICE STATION AND OTHERS, wherein this court has set aside the sentence of imprisonment in toto by enhancing the fine amount.
41. This court is aware of the facts and circumstances involved in the case of RANJITH
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 NANDAKUMAR MENAN and the facts of the present case.
42. In case of RANJITH NANDAKUMAR MENAN, this court took into consideration the conduct of the accused - revision petitioner post incident. In the said case, it is the accused who shifted the injured to the hospital, informed the parents of the deceased, stood along with the injured, till the injured breathed his last, paid sufficient compensation apart from the compensation that the dependants of the deceased obtained under the Motor Accident Claims Tribunal which moved this court to consider the peculiar facts and circumstances of the said case and then set aside the imprisonment.
43. Facts in the case in hand are altogether different wherein the accused revision petitioner even went to the extent of denying that he was the driver of the lorry and denying the accident itself. Therefore, principles of law enunciated in RANJITH NANDAKUMAR MENAN is not applicable to the case on hand. Following the principles
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NC: 2024:KHC:52845 CRL.RP No. 1218 of 2016 of Hon'ble Apex court in the case of SAURABH BAKSHI supra, the imprisonment period ordered by the Trial Magistrate and confirmed by the First Appellate Court needs to be reduced from two years to one year. Accordingly, point No.2 is answered partly in the affirmative.
44. Regarding point No.3, the finding of this court on point Nos.1 and 2 as above, the following:
ORDER
(i) The revision petition is allowed in part while maintaining the conviction of the accused for the offence under Section 279 and 304A of IPC.
The sentence ordered by the Trial Magistrate confirmed by the First Appellate Court is modified as under:
(a) For the offence under Section 279 of IPC, the six months imprisonment period ordered by the Trial Magistrate confirmed by the First Appellate Court is set aside by maintaining the fine amount of Rs.1,000/-.
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(b) In respect of offence under Section 304A of IPC, while maintaining the fine amount, sentence of imprisonment of two years is reduced to one year.
(c) The accused shall appear before the trial court for serving remaining part of sentence on 10.01.2025.
Sd/-
(V SRISHANANDA) JUDGE SS List No.: 1 Sl No.: 79