Karnataka High Court
Vasanth Kumar N vs State By Sub Inspector Of Police on 17 December, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:52186
CRL.RP No. 652 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.652 OF 2022
BETWEEN:
1. VASANTH KUMAR N
S/o MARAPPA
AGED 37 YEARS,
R/O MUDDINAKOPPA
BHOVI COLONY,
SHIVAMOGGA TALUK-577 201.
...PETITIONER
(BY SRI IQBAL AHMED KHAN, ADVOCATE)
AND:
1. STATE BY SUB INSPECTOR OF POLICE
EAST TRAFFIC POLICE STATION
SHIVAMOGGA
REPRESENTED BY ITS PUBLIC PROSECUTOR
HIGH COURT-560 001.
...RESPONDENT
Digitally (BY SMT WAHEEDA.M.M, ADVOCATE)
signed by
MALATESH THIS CRL.RP IS FILED UNDER SECTION 397 R/W
KC 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
Location: ORDER DATED 03.10.2020 FOR THE OFFENCE P/U/S 279,
HIGH
COURT OF 337, 304(A) OF IPC PASSED BY THE III ADDL. CIVIL
KARNATAKA JUDGE AND JMFC, SHIVAMOGGA IN C.C.NO.2170/2015
AND UPHELD BY THE III ADDL. DISTRICT AND SESSIONS
JUDGE, SHIVAMOGGA IN CRL.A.NO.108/2020 BY ITS
JUDGMENT AND ORDER DATED 07.01.2022 BY ALLOWING
THE R.P.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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CRL.RP No. 652 of 2022
ORAL ORDER
Heard Sri Iqbal Ahmed Khan, learned counsel for the revision petitioner and Smt. Waheeda M.M., learned High Court Government Pleader for the respondent/State.
2. Accused person who suffered an order of conviction for the offences punishable under Sections 279, 337, 304-A IPC and sentenced to undergo six months imprisonment for the offence punishable under Section 304A IPC, confirmed in Crl.A.No.108/2020, is the revision petitioner.
3. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under:
Sri Ananathamurthy S/o S.V. Sathyanarayana Bhatta, filed a complaint with Shimoga East Traffic Police Station, contending that on 15.07.2014 his sister by name Smt. Nagarathnamma and brother-in-law by name Ramakrishna were moving on walk by the side of the road near Krishna Cafe, situated at B.H. Road, Shivamogga. At that juncture, a car came from the hind side of his sister and brother-in-law in a rash and negligent manner and -3- NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 dashed against them. Smt.Nagarathnamma and Ramakrishna fell down and sustained injuries. Persons who were gathered nearby the place of incident by name of Chandrashekara, Aravinda and others shifted the injured persons in an autorikshaw to Mc.Gann Hospital for treatment.
4. The incident was reported to the family members of the injured persons. Complainant Sri Anantha Murthy immediately rushed to the hospital and enquired about the health condition of his sister and brother-in-law. He also ascertained the name of the driver of the car so also the registration number of the car.
5. Accused was captured by the persons, who had gathered near the place of the incident, have taken the accused to the hospital along with the injured persons. Accused was present when the complainant visited the hospital. At that juncture, accused said to have assured the complainant that he would meet the expenses of the treatment and told that matter can be settled amicably without informing the police.
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6. However, complainant did not heed to such a request and informed the police about the incident on 23.07.2014 and a case came to be registered in Cr.No.92/2014.
7. Police have registered the case initially for the offences punishable under Sections 279, 337 and 338 IPC. However, despite best treatment, Smt. Nagarathnamma did not survive, since she was succumbed to the accidental injuries on 01.09.2014, her husband Sri Ramakrishna went to the police Station and informed the police about the death of Smt. Nagarathnamma.
8. On receipt of such information, Investigating Agency invoked offence punishable under Section 304A IPC by seeking necessary permission from the learned Trial Magistrate and after completion of investigation, filed charge sheet against the accused for the offences punishable under Sections 279, 337 and 304-A IPC.
9. Presence of the accused was secured and plea was recorded. Accused pleaded not guilty. Therefore, trial was held.
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10. In order to prove the case of the prosecution, in all nine witnesses were examined by the prosecution as P.Ws.1 to 9 and sixteen documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.16, comprising of First Information Report, photographs, inquest mahazar, Post mortem report, IMV report, wound certificate, spot mahazar, seizure mahazar, First Information Report, statement of Smt. Nagarathnamma, Indemnity bond, spot sketch.
11. Eye witnesses to the incident and the complainant have supported the case of the prosecution in toto.
12. Detailed cross-examination of the prosecution witnesses including the eye witnesses did not yield any positive materials so as to disbelieve the case of the prosecution.
13. Thereafter learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 Cr.P.C. Accused denied all the incriminatory materials found against him in the case of the prosecution and did not offer any written explanation as is contemplated under -6- NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 Section 313 (4) Cr.P.C., nor placed any defence evidence on record.
14. Thereafter, learned Trial Magistrate heard the parties in detail and on noticing the fact that the prosecution is able to establish its case with cogent and convincing material on record, took note of the fact that there was no explanation forthcoming from the accused, convicted the accused for the aforesaid offences and passed sentence as under:
"In exercise of power conferred U/Sec.255(2) of Code of Criminal Procedure the accused is convicted for the offences punishable U/Secs.279, 337 and 304(A) of Indian Penal Code.
The accused shall undergo simple imprisonment for a period of 6 months for the offence punishable U/Sec.279 of Indian Penal Code and he is sentenced to pay a fine of Rs.1,000/-. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of one month.
Further. accused shall undergo simple Imprisonment for a period of 2 months for the offence punishable U/Sec.337 of Indian Penal Code and he is sentenced to pay a fine of Rs.500/-. In default to pay -7- NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 the fine amount, the accused shall undergo simple imprisonment for a period of one month.
Further, accused shall undergo simple imprisonment for a period of 6 months for the offence punishable U/Sec.304 (A) of Indian Penal Code and he Is sentenced to pay a fine of Rs.3,000/-. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of one month.
All the sentence shall run concurrently.
Bail bonds and surety bonds shall in force for a period of 6 months."
15. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.108/2020.
16. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail in the light of the appeal grounds and by considered judgment dated 07.01.2022, dismissed the appeal of the accused and confirmed the order of conviction.
17. Being further aggrieved by the same, accused is before this Court in this revision.
18. Sri Iqbal Ahmed Khan, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition contended that the prosecution has not -8- NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 been able to establish the nexus between the death of Smt. Nagarathnamma and accident that occurred on 15.07.2014 and said aspect of the matter is not properly appreciated by the learned Trial Magistrate while convicting the accused for the offence punishable under Section 304A IPC. Therefore, he sought for allowing the revision petition, by setting aside the impugned judgments.
19. He further contended that the material on record would go to show that P.W.1 is not an eye witness and learned Trial Magistrate has relied much on the oral evidence of P.W.1 while convicting the accused which has resulted in miscarriage of justice and sought for allowing the revision petition.
20. He also pointed out that the death of Smt. Nagarathnamma occurred on 01.09.2014 itself shows that there was no material on record which would connect the injury sustained by Smt. Nagarathnamma by virtue of the accident that occurred on 15.07.2014. Therefore, conviction of the accused for the offence punishable under -9- NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 Section 304A IPC is not sustainable and sought for allowing the revision petition.
21. Alternatively, Sri Iqbal Ahmed Khan, learned counsel for the revision petitioner contended that in the event this Court upholding the order of conviction by enhancing the fine amount and paying the portion of the fine amount as compensation to the husband of Smt. Nagarathnamma namely Sri Ramakrishna and set aside the imprisonment period of six months by allowing the revision petition in part.
22. Per contra, Smt. Waheeda M.M., learned High Court Government Pleader contended that P.W.3 is the eye witness to the incident and P.W.2 is another injured eye witness to the incident and P.W.4 is an independent eye witness. These witnesses have deposed about the incident with graphic details and the accused being the driver of the silver coloured Maruthi Omni van, dashed Sri Ramakrishna (P.W.2) and Smt.Nagarathnamma (deceased) from hind side, near Krishna Cafe which shows rash and negligent driving of the accused.
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23. Wound certificate of Sri Ramakrishna and Smt.Nagarathnamma and injuries found on the body of Smt.Nagarathnamma as depicted in the post mortem examination report would sufficiently establish the impact of the accident on the injured and the deceased.
24. Learned High Court Government Pleader also contended that it is the eye witnesses who have shifted the injured - Smt. Nagarathnamma and P.W.2 - H.M. Ramakrishna in an autorikshaw to Mc.Gann hospital and the incident was informed to the complainant and accused did not choose to shift the injured persons.
25. She further contended that accused wanted to escape away from the scene of the incident, but the persons who had gathered near place of incident had apprehended the accused and he was brought to the hospital.
26. Therefore, the prosecution is able to establish that it is because of the rash and negligent driving of the accused, Smt.Nagarathnamma lost her life and there is direct nexus between the accident injuries and death of Smt.Nagarathnamma which has been rightly appreciated
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 by the learned Trial Magistrate and re-appreciated by the learned Judge in the First Appellate Court and sought for dismissal of the revision petition.
27. Insofar as alternate submission is concerned, she has contended that life of an innocent lady has been lost by virtue of rash and negligent driving of the car by the accused and incident has occurred at about 5.30 p.m., in the month of July and sufficient sun light is available at that point time. Therefore, there cannot be any concession or leniency that could be shown to the accused in reducing the sentence of imprisonment of six months ordered by the learned Trial Magistrate and sought for dismissal of the revision petition in toto.
28. Having heard the parties in detail, this Court perused the material on record meticulously.
29. On such perusal of the material on record, road traffic accident that occurred on 15.07.2014 wherein P.W.2 and Smt.Nagarathnamma who is the wife of P.W.2 sustained injuries is established by placing necessary material on record.
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30. So also prosecution is successful in establishing that the accused being the driver of a silver coloured Maruthi Omni Car bearing registration No.KA.14-N-8956 is not in dispute.
31. The indemnity bond executed by the owner of the car and oral testimony of P.W.1 Anantha Murthy who is the brother of deceased Smt.Nagarathnamma amply establishes that the Car was involved in the incident.
32. Admittedly, P.W.2 got cured of his injuries and he was discharged from the hospital. Whereas, Smt.Nagarathnamma continued in the hospital for treatment of accidental injuries and ultimately lost her life.
33. Final opinion of the autopsy surgeon shows that cause of death is due to complications as a result of Septicemia in the wounds of Smt.Nagarathnamma on account of accidental injuries. Smt.Nagarathnamma lost her life in Nanjappa hospital on 01.09.2014 at 12.15 a.m.
34. The rashness and negligent driving of driver of car is spoken in clear and categorical terms by P.Ws.2 to
4.
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35. Admittedly, P.W.2 is an injured eye witness being the husband of the deceased Smt. Nagarathnamma has deposed with the graphic details as to what exactly happened at the time of incident on the fateful day.
36. P.Ws.3 and 4 are the independent eye witnesses who did not nurture any previous enmity or animosity as against the accused to depose falsely against the accused.
37. In the cross-examination of P.W.3 it has been suggested that he had not seen the accused at the time of incident, has been denied by the witness, but he has reiterated that the he had seen the accused on the day of accident itself.
38. He admits that Krishna Cafe is situated near City bus stand, Shivamogga and width of the road is wide and there is a footpath. He answered that there is no road hump near the place of incident and he has answered that he has seen the incident from a distance of 15 to 20 feet.
39. Likewise in the cross-examination of P.W.4, he has answered that he was drinking coffee by standing
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 outside Krishna Cafe as there was huge rush inside the Krishna Cafe.
40. It was suggested that at 5.00 p.m., on account of huge movement of Traffic near Krishna Cafe, accused could not have driven the vehicle with high speed for which P.W.4 has answered that accused has driven the car in a rash and negligent manner. He denied the suggestion that injured and deceased are his friends and therefore he is deposing falsely.
41. In the cross-examination of the injured eye witness, he has answered that he is the scribe of the complaint and he admits that for the purpose of visiting Bhadravathi, he was waiting near the place of incident along with his wife.
42. P.W.2 denied the suggestion that there was a road hump near the place of incident. He also denied the suggestion that the accident has occurred on account of negligent crossing of the road by him and his wife.
43. The above evidence on record was compiled in the form of incriminatory materials and was put to the accused while recording the accused statement. Accused
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 has flatly denied all the incriminatory circumstances including the accident. For the reasons best known to the accused, he did not offer any explanation whatsoever at the time of recording the accused statement nor examining himself to place on record his version about the incident.
44. In a matter of this nature, after the prosecution examined all its witnesses and the incriminatory materials are found against the accused, it is the bounden duty of the learned Trial Magistrate to put across the incriminatory materials to the accused and seek his explanation as is contemplated under Section 313 Cr.P.C.
45. Recording of the accused statement is not an empty formality and it serves dual purpose. Firstly, the learned Trial Magistrate shall put across the incriminatory materials to the accused and seek his explanation. Secondly, the accused is given an opportunity of placing his version about the incident before the Court.
46. If the accused deliberately fails to utilize such an opportunity, then the consequences in law has to
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 follow. Some are the principles of law that has been enunciated by the Hon'ble Apex Court in the case of Ravi Kapur v State of Rajasthan reported in 2012 (9) SCC 284, paragraph 39 of the said judgment reads as under:
"39. 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 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."
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47. In the case on hand, the prosecution witnesses namely P.Ws.2 to 4 have deposed before the Court about the rash and negligent driving of the Omni car (offending vehicle).
48. In the cross-examination of P.W.2 it has been suggested on behalf of the accused that on account of the negligent crossing of the road, resulted in the accident which has been denied by P.W.2 who is an injured eye witness and husband of the deceased. Such a suggestion is not forthcoming in the cross-examination of P.Ws.3 and
4.
49. Likewise, while recording the accused statement, accused himself did not say anything before the Court with regard to the accident.
50. All these factors had been cumulatively considered by the learned Trial Magistrate by recording an order of conviction
51. Learned judge in the First Appellate Court has rightly re-appreciated the material on record and upheld the order of conviction.
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52. This Court, that too in the revisional jurisdiction, cannot revisit into the factual aspects in upsetting the finding of guilt of accused by both the Courts by supplying cogent and convincing reasons. Accordingly, order of conviction needs no interference by this court in this revision.
53. This would take this Court next submission made on behalf of the accused. Counsel for the petitioner has sought for showing lenience to the accused on the ground that the family to be maintained and incident has occurred without there being any intention and therefore, fine amount may be enhanced by setting aside the imprisonment.
54. Offence under Section 304A IPC does not contemplate any intention but it is based on rash and negligent driving of a motor vehicle. Therefore, irrespective of the intention, on account of rash and negligent driving of the accused, if a human life is lost then punishment of imprisonment shall follow in a matter of this nature as of a course.
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55. Hon'ble Apex Court had an occasion to discuss about extending the benefit of Probation of Offenders Act in a matter of this nature, in the case of Dalbir Singh v. State of Haryana, reported in (2000) 5 SCC 82.
56. Hon'ble Apex Court held in categorical terms that beneficial things of legislation in the form of provisions of Section 4 of the Probation of Offenders Act is not applicable to a conviction under Section 304A IPC. Some principle has been reiterated by the Hon'ble Apex Court in the case of State of Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182 wherein, Their Lordships in paragraph 14 and 15 have held as under:
14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 :
(2012) 1 SCC (Cri) 706] 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 Sections 304-
A, 337, 279 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 [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208]
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 and reproduced two paragraphs which we feel extremely necessary for reproduction : (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12) "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, 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.
***
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
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 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 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 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.' (Dalbir Singh case [Dalbir Singh v. State of Haryana,(2000) 5 SCC 82:2004 SCC (Cri) 1208],SCC pp. 84-85 & 87, paras 1 & 13)"
15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] the
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NC: 2024:KHC:52186 CRL.RP No. 652 of 2022 appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] , SCC p. 735, para 16) "16. ... '5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.' (Rattan Singh case [(1979) 4 SCC 719 : 1980 SCC (Cri) 17], SCC pp. 720-21, para 5)"
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57. Applying the legal principles enunciated in the aforesaid paragraphs to the facts of the case on hand, the alternate submission made on behalf of the accused that by enhancing the fine amount, the sentence of imprisonment needs to be set aside cannot be countenanced in law, more so, when there is no mitigating circumstances placed on record.
58. Under such circumstances, the order of sentence passed by the learned Trial Magistrate, confirmed by the First Appellate Court needs no interference by this Court in this revision petition.
59. In view of foregoing discussion, following order is passed:
ORDER
(i) Revision petition is meritless and hereby dismissed.
(ii) Accused/revision petitioner is granted time till 10th January, 2025 to surrender before the Trial Court for serving the sentence.
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(iii) Office is directed to return the Trial Court Records along with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 82