Karnataka High Court
Irshad vs State Of Karnataka on 12 June, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:20009
CRL.RP No. 269 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.269 OF 2020
BETWEEN:
IRSHAD
S/O SAHKE ALI
AGED ABOUT 26 YEARS,
R/AT GANDHI NAGAR,
2ND CROSS, TIPTUR TOWN-572201
TUMKUR DISTRICT.
...PETITIONER
(BY SRI VIJAYAKUMAR S C, ADVOCATE)
AND:
STATE OF KARNATAKA
BY P.S.I. GUBBI POLICE STATION
GUBBI-572216
TUMAKURU DISTRICT.
...RESPONDENT
Digitally
signed by R
(BY SRI K.KRISHNAKUMAR, HCGP)
MANJUNATHA
Location:
HIGH COURT THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING
OF
KARNATAKA TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE
LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MACT AT TUMAKURU IN CRL.A.NO.48/2018 DATED 19.12.2019
CONFIRMING THE JUDGMENT AND SENTENCE PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC GUBBI IN
C.C.NO.545/2014 DATED 13.08.2018 AND ACQUIT THE
PETITIONER.
THIS REVISION PETITION, COMING ON FOR ADMISSION,
THIS DAY THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:20009
CRL.RP No. 269 of 2020
ORDER
1. Heard Sri Vijayakumar S.C., leaned counsel for the Revision Petitioner/accused and Sri K. Krishnakumar, learned High Court Government Pleader for respondent/State and perused the records at the stage of admission itself.
2. The present Revision Petition is filed under Section 397 of Cr.PC. with the following prayer:
"Wherefore, the petitioner prays that this Hon'ble Court be pleased to call for records and set aside the judgment and sentence passed by the learned I Addl. District Judge and MACT at Tumakuru in Criminal Appeal No.48/2018 dated 19.12.2019 confirming the Judgment and sentence passed by the learned Senior Civil Judge and J.M.F.C Gubbi in C.C.545/2014 dated 13.08.2018 and acquit the petitioner and grant such other relief as this Hon'ble Court deems fit under the circumstances of the case in the interest of justice."
3. The brief facts of the case are as under:
The accused was charge sheeted for the offence punishable under Sections 279 and 304A IPC, in respect of the accident that took place on 17.09.2014 in the public road on -3- NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 NH No.206 at about 6.00 a.m., and at that time, the deceased Kumar was proceeding in his Hero Honda splendor Motor cycle bearing No.KA-06/ER-5279 from N. Mathighatta Village towards Nittur, wherein the Revision Petitioner, who was accused before the Trial Court was the driver of the Tata Indica Car bearing No.KA-01/MF-0045 drove the said car in a rash and negligent manner resulting in the accident, whereby the deceased Kumar fell down from the motorcycle and sustained fatal injuries.
After noticing the accident, the people who are nearby, shifted the injured to the District Hospital for treatment and after obtaining first aid, the injured was shifted to Srinivasa Hospital, Bengaluru and then to NIMHANS, Bengaluru. Despite best treatment, on 20.09.2014 at about 4.00 p.m., the injured succumbed to the injuries. The incident was reported to the jurisdictional Police and a case came to be registered in Crime No.193/2014, initially for the offence punishable under Sections 279 and 337 IPC. Thereafter, upon receipt of the information of the death of the injured, Section 304A was invoked by the investigation agency. The Police after thorough investigation, filed charge sheet against the accused/petitioner for the offence punishable under Sections 297 and 304A IPC.-4-
NC: 2023:KHC:20009 CRL.RP No. 269 of 2020
4. The learned Magistrate took cognizance of the matter and summoned the accused and recorded the plea of the accused. Accused pleaded not guilty and therefore, trial was held.
5. In order to establish the case of the prosecution, in all 9 witnesses were examined as PWs.1 to 9 and 11 documentary evidence were placed by the prosecution which were marked as Exs.P1 to P11 comprising of Complaint, Mahazar, Second complaint, Statement of PW-4, IMV Notice, Reply, Indemnity bond, Inquest report, PM Report, FIR and IMV report in respect of the vehicle of the accused.
6. Thereafterwords, the accused statement as contemplated under Section 313 Cr.PC. was recorded, wherein, the accused denied all the incriminatory circumstances that were put to him, but did not choose to offer his explanation either orally or in writing under Section 313(5) Cr.PC. Thereafter, the accused also did not choose to lead any defence evidence.
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020
7. Thereafter, the learned Trial Magistrate heard the arguments of both sides and passed an order of conviction and sentenced the accused as under:
"Acting under Section 255(2) of Cr.P.C. accused is convicted of the offences punishable under Secs.279 and 304(A) of IPC.
For the offence punishable under Sec.279 of IPC, the accused shall undergo simple imprisonment for 3 months and shall pay fine of Rs.500/- and in default of payment of fine, he shall under go simple imprisonment for 5 days.
For the offence punishable under Sec.304 (A) of IPC, the accused shall under go simple imprisonment for 6 months and shall pay fine of Rs.1,000/- and in default of payment of fine, he shall under go simple imprisonment for 10 days.
Both the sentences shall run consecutively.
Bail bonds of the accused and surety stand cancelled. Furnish free copy of the Judgment to the accused forthwith."-6-
NC: 2023:KHC:20009 CRL.RP No. 269 of 2020
8. Being aggrieved by the same, the accused preferred an appeal before the District Court, Tumkuru. The same was numbered as Criminal Appeal No.48/2018.
9. The learned District Judge after securing the records from the learned Trial Magistrate and also after affording sufficient opportunity for the parties, heard the arguments of both sides and after re-assessing the material on record, dismissed the appeal on merits and confirmed the Judgment of conviction and order of sentence passed by the learned Trial Magistrate.
10. It is pertinent to note that the State did not file any Appeal or Revision, challenging the sentence of imprisonment of six months and therefore, the order passed by the learned Trial Magistrate convicting the accused for the offence punishable under Section 304A IPC for a period of six months became final in so far as the State is concerned. Thereafter, being aggrieved by the order passed by the learned Trial Magistrate and the learned District Judge as aforesaid, the present Revision Petition is filed by the Revision Petitioner on the following grounds:
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 The impugned judgment and Sentence passed by the courts below is contrary to law, facts and principles of criminal jurisprudence. Hence the same are liable to be set aside. It is submitted that both the courts below committed serious illegality in not analyzing the documentary evidence on record in its proper perspective. It is submitted that the Ex-P11, Motor Vehicle Accident Report clearly mentioned that the right side portion of the front bumper damaged and right side of the body of the car is damaged and right side front wheel disk is damaged and also the front wheel rim of the two wheeler is twisted. This clearly shows that the accident in question was caused by the two wheeler when he hits right front portion of the car. It is submitted that both the courts below without appreciating the documentary evidence on record in its proper perspective convicted the petitioner.
It is submitted that both the courts below failed to notice that there is serious lapses on the part of the investigation officer in investing the case. It is submitted that the investing officer reached the spot of the accident at 2.30 PM though the accident occurred at about 6-00AM in the morning. The distance between the place of accident and the police station is just 6 KM.-8-
NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 It is submitted that both the courts below failed to notice that all the alleged eye witnesses Pw1,3,4 and 5 are all relatives and interested witnesses and they spoke against the petitioner and in favour of the deceased on the ground that the deceased is their relative. This clearly shows that the alleged eye witnesses are not eye witnesses, they are hearsay persons and all are come after thought.
It is submitted that both the courts below committed grave error in law by imposing severe punishment for the offence which has happened in the absence of mensria. It is submitted that both the courts below failed to notice that the alleged offence under Section 304(A) of IPC is an exceptional offence where in the absence of the mensria punishment can be imposed.
It is submitted that both the courts below come to the conclusion that due to rash and negligent act of the petitioner the accident was occurred in absence of the material evidence on record. It is submitted that the in the instant case the prosecution has not produced the spot sketch in order to prove the guilt of the accused. In the absence of the material documents on record, the courts below by relaying on the oral testimony of the interested witnesses -9- NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 Pw1,3 to 5 passed the order of sentence against the petitioner."
11. Re-iterating the grounds urged in the Revision Petition, Sri Vikjayakumar.S.C., learned counsel for the Revision Petitioner vehemently contended that the learned Trial Magistrate has grossly erred in appreciating the case of the parties in its proper perspective. He further contended that the learned Trial Magistrate failed to note that the prosecution witnesses are relatives and friends of the deceased and therefore, they are to be termed as interested witnesses and their testimony could not have been believed by the learned Trial Magistrate for recording an order of conviction as against the petitioner herein and sought for allowing the Revision Petition. He also pointed out that the grant of 6 months imprisonment for the offence punishable under Section 304A IPC against the Revision Petitioner who was the first time offender is excessive and sought for setting aside the Judgment and sentence by allowing the Revision Petition and to have the benefit of the Probation of Offenders Act and sought for allowing the Revision Petitioner to that extent.
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12. Per contra, learned High Court Government Pleader opposes the Revision Petition by contending that the case of the prosecution has been properly established by the prosecution by examining 9 witnesses as Exs.P1 to P9 and 11 documentary evidence placed on record which were marked as Exs.P1 to P11. He further contended that the interestedness that has been canvassed on behalf of the Revision Petitioner, cannot be countenanced in law in as much as, the witnesses who are present at the place of incident were examined and the injured has been shifted from the place of incident to the District Hospital Tumkur at the first instance then to Srinivasa Hospital, Bengaluru and subsequently to NIMHANS. The persons who had witnessed the incident soon after the accident took place are the persons who are cited as witnesses before the Trial Court or mere say of the interestedness alone should not have come in the way of the learned Trial Magistrate in recording an order of conviction unless the accused points out the prejudice that has been caused to him by examining such witnesses. He also pointed out that the accused did not offer any explanation whatsoever with regard to the incident when he was questioned before the Trial Court while recording the
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 accused statement as contemplated under Section 313 Cr.PC. and therefore, the Trial Court was justified in recording an order of conviction. He also pointed out that the learned Trial Magistrate has granted six months imprisonment using his discretion taking note of the fact that the accused is a first time offender and in such circumstance the accused is not entitled for grant of probation.
13. Having heard the arguments of both sides and on meticulous perusal of the materials on record, following points would arise for consideration:
(i) Whether the finding recorded by the learned Trial Magistrate, which was confirmed by the first appellate court that accused is guilty of the offence punishable under Sections 279 and 304A IPC?
(ii) Whether there is any error of jurisdiction in recording the order of conviction and sentence passed by the learned Trial Magistrate, which was confirmed by the first appellate court is suffering from patent defect or illegality and thus calls for interference?
(iii) Whether the sentence passed by the learned Trial Magistrate, which was confirmed by the first appellate court is excessive?
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020
14. REGARDING POINTS NO.1 & 2: Before adverting to the rival contentions of the parties, it is necessary to rely upon two judgments of the Hon'ble Apex Court in the case of (1) Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 9 SCC 460 and (2) State of Rajasthan vs. Fatehkaran Mehdu reported in (2017) 3 SCC 198 wherein it has been held that:
"Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with provisions of law, finding recorded is based on material evidence is ignored or jurisdictional discretion is exercised arbitrarily or perversely."
15. In the background of the legal principles enunciated in the above pronouncements of the Hon'ble Apex Court, when the material facts of this case is analysed, in the case on hand, identity of the accused person and the incident as alleged by the prosecution stands established by prosecution placing cogent evidence. Vehicle involved is also not in dispute and petitioner being the driver of the vehicle is established by placing sufficient evidence on record. Material fact also
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 establishes that the injured was shifted to the hospital and he succumbed to the injuries in the hospital.
16. When both the courts have decided these factual aspects by appreciating the materials available on record, as rightly argued by the learned High Court Government Pleader, this court in this revision, cannot re-visit as to the finding of fact unless the said finding is based on surmises and conjunctures.
17. It is also pertinent to note that accused did not offer any explanation as to the incident when his statement was recorded under Section 313 Cr.PC. nor led any defence evidence. What is the role of an accused in a matter of this nature and what is expected of an accused when he is facing charge under Section 304A IPC is clearly spelt out in the case of Ravi Kapur Vs State of Rajasthan reported in (2012) 9SCC 284. The relevant paragraph of the said judgment is culled out hereunder:
"35. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
18. Applying the said legal principles to the case on hand, it is pertinent to note that in the absence of any explanation offered by accused and denying all incriminatory circumstances, the learned Trial Magistrate had to record a finding that accused is guilty of the charges levelled against him.
19. In the case on hand, the death of the rider of the motor cycle namely Kumar in respect of a road traffic accident is thus successfully established by the prosecution by placing oral and documentary evidence on record. Postmortem report which is not seriously questioned on behalf of the accused
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 establishes the injuries which in the normal course of business, was sufficient enough to take away the life of the deceased and therefore, the prosecution has successfully established that Kumar has lost his life on account of the road traffic accident that took place on 17.09.2014 on public road near Mattighatta on NH 206.
20. According to the prosecution, it is the accused/Revision Petitioner who was the driver of Tata Indica Car bearing No.KA-01/MH-0045, who is responsible for the injuries sustained by the deceased Kumar. It is the specific case of the prosecution that he drove the said car in a rash and negligent manner resulting in the accident.
21. In order to prove the case of the prosecution, the prosecution examined 9 witnesses. Among them, PW-1 is the person who lodged the complaint and set the criminal law into motion. He deposed that, when he was proceeding towards Nittur on his two wheeler, deceased was also moving on his two wheeler on the left side of the road and at that juncture, the offending car came from opposite direction in a rash and negligent manner and caused the accident. But, it is the case of the accused-Revision Petitioner before this court as is
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 contended by Sri Vijaykumar S.C that the Car was also moving in the same direction. In order to establish the same, there is no material placed on record. The accused did not enter the witness box and spoke about the real facts by leading defence evidence nor he has produced anything in writing as is contemplated under Section 313(5) Cr.PC. On the contrary, he has gone to the extent of denying the very accident itself while recording the accused statement.
22. Therefore, the contentions urged on behalf of the Revision Petitioner that he is not responsible for the accident cannot be countenanced in law. Likewise, the other witnesses have also supported the case of the prosecution and the documentary evidence on record coupled with the oral testimony of the prosecution witnesses, was rightly appreciated by the learned Trial Magistrate and recorded a finding that accused is guilty of the offence punishable under Sections 279 and 304A IPC. Accordingly, Points No.1 and 2 are answered in negative.
23. REGARDING POINT NO.3 : No doubt the counsel for revision petitioner contended that revision petitioner is first
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 time offender and therefore he must be given to the benefit of probation.
24. In the case on hand, the learned trial Judge has granted punishment for six months imprisonment for the offence punishable U/sec.304A IPC. The State has not preferred any appeal and enhancement of the sentence. Therefore, insofar as the State is concerned, the same has become final.
25. What is an appropriate sentence in a matter of this nature and what is the role of the Court in sentencing an accused resulting in death of a human being in a road traffic accident is no longer res integra.
26. The Hon'ble Apex Court in the case of State of Punjab vs. Saurabh Bakshi, reported in (2015) 5 SCC 182 it has been held in paragraph 8 as under:
11. In Mehtaab's case a two-Judge Bench was dealing with the case under Section 304A IPC wherein the respondent was convicted under Section 304A IPC and 337 IPC and sentenced to undergo one year and three months rigorous imprisonment respectively. The High Court had reduced the sentence to 10 days. It is apt to note here that in that case the deceased had received injuries due to shock of electric
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 current. The court took note of the submission of the learned counsel for the State and proceeded to opine as follows:-
"6. Learned Counsel for the State submitted that the accused Respondent had installed a transformer in his field and left the electric wires naked which was a negligent act. The deceased Sushila Bai died on account of the said naked wire which had high voltage and was not visible in the dark. The offence having been fully proved by the evidence on record, the High Court was not justified in reducing the sentence to 10 days which was not just and fair. Even if liberal view on sentence of imprisonment was to be taken, the High Court ought to have enhanced the sentence of fine and awarded a reasonable compensation as a condition for reduction of sentence.
7. We find force in the submission. It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim. Unfortunately, these factors are missing in the impugned order. No cogent reason has been assigned for imposing only 10 days sentence when an innocent life has been lost."
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12. After so stating the court referred to the decision in Suresh v. State of Haryana [5] and enhanced the compensation taking note of the financial capacity of the accused respondent therein, and directed as follows:-
"10. As already observed, the Respondent having been found guilty of causing death by his negligence, the High Court was not justified in reducing the sentence of imprisonment to 10 days without awarding any compensation to the heirs of the deceased. We are of the view that in the facts and circumstances of the case, the order of the High Court can be upheld only with the modification that the accused will pay compensation of Rs. 2 lakhs to the heirs of the deceased within six months. In default, he will undergo RI for six months. The compensation of Rs. 2 lakhs is being fixed having regard to the limited financial resources of the accused but the said compensation may not be adequate for the heirs of the deceased. In such situation, in addition to the compensation to be paid by the accused, the State can be required to pay compensation Under Section 357-A.
11. As per judgment of this Court in Suresh (supra), the scheme adopted by the State of Kerala is applicable to all the States and the said scheme provides for compensation upto Rs. 5 lakhs in the case of death. In the present case, it will be appropriate, in the interests of justice, to award
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 interim compensation of Rs. 3 lakhs Under Section 357-A payable out of the funds available/to be made available by the State of Madhya Pradesh with the District Legal Services, Authority, Guna. In case, the accused does not pay the compensation awarded as above, the State of Madhya Pradesh will pay the entire amount of compensation of Rs. 5 lakhs within three months after expiry of the time granted to the accused."
13. In our considered view the decision in the said case has to be confined to the facts of that case. It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304A, there can be reduction of sentence.
14. In this context, we may refer with profit to the decision in Balwinder Singh (supra) wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana[6] and reproduced two paragraphs which we feel extremely necessary for reproduction:-
"12.......1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles,
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
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13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for [pic] causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
27. Applying the legal principles enunciated in the said case to the case on hand, in the absence of any mitigating circumstances placed by the Revision Petitioner, awarding simple imprisonment of six months for the offence punishable under Section 304A of IPC by the learned Trial Magistrate, is most appropriate. No benefit of probation can be granted. Accordingly, no interference is necessary by this court.
28. However, since the sentence of six months is ordered for the offence under Section 304A IPC ordering separate sentence of three months imprisonment for the offence punishable U/sec.279 IPC cannot be countenanced in law in view of the fact the doctrine of merger, no separate
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NC: 2023:KHC:20009 CRL.RP No. 269 of 2020 sentence can be ordered for the offence punishable U/sec.279 IPC as there is only one death and no other persons are injured in the case on hand. Accordingly, the separate sentence of three months ordered U/sec.279 IPC needs to be set aside. Hence, Point No.3 is answered partly in the Affirmative.
29. In view of finding of this Court on Points No.1 to 3, following order is passed:
ORDER (1) The Criminal Revision Petition is allowed in part.
(2) While maintaining the conviction for the offence punishable under Section 304A IPC, the sentence ordered by the learned Trial Magistrate and confirmed by the first appellate court is modified to the extent that separate sentence ordered for the offence punishable under Section 279 IPC is hereby set aside and the rest of the sentence stands unaltered.
(3) The Revision Petitioner/Accused is directed to surrender before the learned Trial Magistrate on or before
30.06.2023. Failing which the learned Trial Magistrate is at liberty to secure his presence and send him to prison in accordance with law.
Sd/-
JUDGE PL*/List No.: 1 Sl No.: 24