Karnataka High Court
Sathish Poojary vs The State Of Karnataka on 26 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1023 OF 2014
BETWEEN:
SATHISH POOJARY
AGED ABOUT 34 YEARS,
S/O. LATE SHANKAR POOJARY,
RESIDING AT DURBOTTU HOUSE,
BELVAI VILLAGE,
MANGALORE TALUK - 575 001.
...PETITIONER
(BY SRI H. PAVANA CHANDRA SHETTY, ADV.)
AND:
THE STATE OF KARNATAKA
BY KARKALA POLICE STATION,
D.K.,
REPRESENTED BY STATE PUBLIC PROSECUTOR.
RESPONDENT
(BY SRI V.S. VINAYAKA, H.C.G.P.)
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO SET-
ASIDE THE JUDGMENT AND ORDER DATED 25-11-2014 PASSED BY
THE PRINCIPAL SESSIONS JUDGE, UDUPI, IN CRIMINAL APPEAL
NO.25 OF 2012 AND THE JUDGMENT AND ORDER DATED 29-2-2012
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., KARKALA, IN
CRIMINAL CASE NO.8 OF 2009.
THIS CRIMINAL REVISION PETITION IS COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard Sri H. Pavana Chandra Shetty, learned counsel appearing for the revision petitioner, Sri V. S. Vinayaka, learned High Court Government Pleader appearing for the respondent-State and perused the records.
2. This revision petition is filed by the accused- revision petitioner against the order of conviction passed by the learned Magistrate in Criminal Case No.8 of 2009 whereby, the accused was convicted for the offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860 (for short, 'IPC') and ordered to undergo simple imprisonment for a period of three months with a fine of Rs.1,000/- for the offence punishable under Section 279 of the IPC and to undergo simple imprisonment for a period of one year with a fine of Rs.5,000/- for the offence punishable under Section 304A of the IPC, which was confirmed in Criminal Appeal No.25 of 2012.
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3. Brief facts of the case are as under:
The accused was charge-sheeted for the offences punishable under Sections 279 and 304A of the IPC, upon the complaint received by Karkala Police, wherein it is contended that on 6-11-2008 at about 6:30 p.m., near Sanoor Village in front of Mahamayi Temple on National Highway, a bus, bearing Registration No.KA-19 B-5057, was proceeding from Moodbidri towards Karkala in a rash a negligent manner and in the process of overtaking a motorcycle, bearing Registration No.KA-20 R-9589 and after overtaking, left hind side portion of the bus dashed to the motorcycle, whereby the rider of the motorcycle fell down, sustained fatal injuries and ultimately, succumbed to the injuries.
4. The presence of the accused was secured and plea was recorded. Since the accused pleaded not guilty, the trial was held. In order to prove the case, the prosecution in all examined six witnesses as per PWs.1 to 6 and relied upon sixteen documentary evidence which were exhibited and 4 marked as Exs.P.1 to P.16. After conclusion of the prosecution evidence, the accused statement as contemplated under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') was recorded wherein, the accused denied all incriminating circumstances that was put to him. Vide question Nos.2 to 13, the accused failed to place his version on record as to the incident. Thereafter, the learned Magistrate heard the matter in detail and after considering the oral and documentary evidence on record, convicted the accused for the aforesaid offences and sentenced him as aforesaid.
5. Being aggrieved by the same, the accused preferred an appeal before the Sessions Court in Criminal Appeal No.25 of 2012.
6. Learned Judge in the First Appellate Court, after re-appreciating the entire material on record, dismissed the appeal and confirmed the judgment of the learned Magistrate. 5 Being aggrieved by the same, the accused preferred this revision petition before this Court.
7. Learned counsel appearing for the revision petitioner vehemently contended that the material on record does not warrant an order of conviction for the offences punishable under Sections 279 and 304A of the IPC, which has not been properly appreciated by the learned Magistrate as well the learned District Judge in the First Appellate Court resulting in miscarriage of justice. He drew the attention of this Court to the oral testimony of the prosecution witnesses and also the documentary evidence placed on record, namely the photographs of the bus, wherein damages are seen and also the spot sketch marked and exhibited by the prosecution and contended that material on record did not conclusively establish that the accident occurred solely on the rash and negligent driving of the Driver of the bus and therefore, the Trial Court ought not to have convicted the accused or the First Appellate Court would have re-appreciated the material 6 on record and would have allowed the appeal and thus, sought for allowing the revision petition.
8. Alternatively, the learned counsel for the revision petitioner has contended that having regard to the nature of accident that has taken place and the scope of the revision petition, this Court may consider the revision petition by enhancing the fine amount to be payable to the dependants of the deceased and allow the accused to pay the fine alone for the offences punishable under Sections 279 and 304A of the IPC by setting-aside the order of imprisonment ordered by the learned Magistrate and confirmed by the First Appellate Court.
9. Per contra, the learned High Court Government Pleader while supporting the impugned judgments has contended that nature of accident itself depicts the rash and negligent driving of the revision petitioner and therefore, none of the contentions urged on behalf of the revision petitioner holds merit and sought for dismissal. He further pointed out 7 that there is a categorical allegation made against the revision petitioner in the complaint itself and in the matter of this nature, eyewitness to the incident is seldom available and therefore, the Court has to reconstruct the scene of occurrence by the material on record and appreciate the case of the prosecution which has been rightly appreciated by the Trial Court and confirmed by the First Appellate Court. Therefore, there is no illegality or legal infirmity in recording the finding that the accused is guilty of the offences punishable under Sections 279 and 304A of the IPC and thus, sought for dismissal of the revision petition.
10. In respect of the alternative submission, the learned High Court Government Pleader has contended that the Hon'ble Supreme Court in the case of STATE OF PUNJAB v. SAURABH BAKSHI reported in (2012) 5 SCC 182 has clearly held that the Courts are not expected to take lenient view and the accused, who is alleged about negligence resulting in death of an innocent in the road traffic accident, 8 consequent to that, if there is a death of human being, the accused must know that a jail sentence is certain in such circumstances and therefore, this Court should not show any leniency to the accused and sought for dismissal of the revision petition in toto.
11. In view of the rival contentions and having regard to the scope of the revisional jurisdiction, the following points would arise for consideration:
i. Whether the findings recorded by the learned Magistrate and confirmed by the First Appellate Court that the accused is guilty of the offences punishable under Sections 279 and 304A of the IPC is suffering from legal infirmity or perversity and thus, calls for interference?
ii. Whether the sentence is excessive?
12. In the case on hand, the material on record clearly depicts that there was accident involving a bus, bearing Registration No.KA-19 B-5057, and a motorcycle, bearing 9 Registration No.KA-20 R-9589, on 6-11-2018 at about 6:30 p.m. near Sanoor Village in front of Mahamayi Temple on National Highway. As an impact of the accident, the rider of the motorcycle sustained fatal injuries and ultimately, he succumbed to injuries. The material on record also indicate that the Driver of the bus, i.e. the revision petitioner has overtaken the motorcycle and after overtaking the motorcycle, the bus has come to a ground halt and therefore, the rider of the motorcycle could not bring his motorcycle to halt and dashed against the bus. The photographs produced and marked at Exs.P.4 to P.10 coupled with IMV report-Ex.P.13 clearly shows that there is a serious damage caused to the bus on the backside above the bumper on the left hind side of the bus. Admittedly, these documents are produced and relied upon by the prosecution. Therefore, the prosecution was expected to explain as to how such an incident would have occurred, if the complaint averments were to be proved.
Admittedly, in complaint, it has been stated that after overtaking the motorcycle, the left hind side of the bus 10 touched the motorcycle, whereby the rider of the motorcycle fell on the other left hand side of the road and sustained injuries. If that were to be proved, there could not have been serious damage as is noticed in Exs.P.4 to P.10-photographs, Ex.P.4 in particular. IMV report is a document relied upon by the prosecution and therefore, the prosecution cannot be turned down the documents and say that, the accident occurred otherwise what is shown in the IMV report as well as the photographs. Therefore, the material evidence on record depicts that it is because of the rash and negligent driving of the Driver of the bus, the incident had occurred resulting in the death of the rider of the motorcycle. However, it was also expected that the rider of the motorcycle would have exercised some more caution to prevent the accident and such a thing is not forthcoming on record. Nevertheless, since there is rashness in driving by the revision petitioner, noticed in the incident, resulting in the accidental death of the rider of the motorcycle, the Magistrate recorded the finding that accidental death of the rider of the motorcycle is 11 on account of the Driver of the bus. It is also pertinent to note that the accused is totally silent about the incident. He did not place his version. Moreover, in a matter of this nature, the accused is bound to have his version to be placed before the Court. In this regard, this Court gainfully place reliance on the judgment of the Hon'ble Supreme Court in the case of RAVI KAPUR v. STATE OF RAJASTHAN reported in (2012) 9 SCC 284, wherein at paragraph No.39, it has been held 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 12 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."
Applying the above legal principles to the case on hand, when the prosecution has come out with the documentary evidence and when there is no contra-evidence placed by the accused either in the form of explaining the incident while recording the statement of the accused or at least, by placing the written submission as is contemplated under Section 313(5) of the Cr.P.C., or examining himself before the Court, the findings recorded by the learned Magistrate and confirmed by the First Appellate Court do not find any legal infirmity or perversity having regard to limited scope of revisional jurisdiction. Accordingly, point No.1 is answered in the 'negative'.
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13. Now, the task of this Court is to find out having regard to the peculiar facts and circumstances of the case on hand, the sentence of imprisonment ordered by the learned Magistrate and confirmed by the First Appellate Court needs interference.
14. In the case on hand, admittedly, the material on record shows that the Driver of the bus had overtaken the motorcycle on which the deceased was moving. Impact of the accident resulting in the damage of the bus is very much visible in Ex.P.4. As discussed supra, incident as is contended by the prosecution could not have happened having regard to the damage, i.e. caused to the motorcycle as well as to the bus. Therefore, this Court finds that there is some scope to re-look into the sentencing portion in as much as rider of the motorcycle would have been more careful in which event, incident itself would not have occurred. It is the duty of the accused to drive the bus in such a way that other persons moving on the road are not put to any harm. 14 Keeping these aspects and also appreciating the principles of law enunciated in the case of Saurabh Bakshi stated supra, this Court is of the considered view that in the peculiar facts and circumstances of this case, if jail sentence is set aside and the amount of compensation to be enhanced and the same be ordered to pay to the family members of the victim would meet the ends of justice.
15. It is not a case, where this Court can agree with the sentence of imprisonment passed by the Trial Court and confirmed by the First Appellate Court. More so, having regard to the prosecution evidence itself showing that there is serious impact caused to the bus on the left side.
16. At this Stage, it is pertinent to note that the learned counsel appearing for the petitioner submits that sum of Rs.7.00 lakh and odd has been received by the family members of the deceased as compensation awarded by the Motor Accident Claims Tribunal.
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17. Learned High Court Government Pleader submits that the family members of the deceased have received the compensation under the provisions of Motor Vehicles Act before the Motor Accident Claims Tribunal and the same should not detur this Court in awarding reasonable compensation to the family members of the deceased. Taking into consideration the peculiar facts and circumstances of the case discussed supra, this Court is of the considered opinion that awarding another sum of Rs.50,000/- as fine and to be paid as compensation under Section 357 of the Cr.P.C. to the family members or dependants of the deceased would meet the ends of justice by setting aside simple imprisonment of one year for the offence punishable under Section 304A of the IPC.
18. Since there is only one death, separate sentence of imprisonment for the offence punishable under Section 279 of the IPC cannot be countenanced in law in view of the principles of law enunciated by the Hon'ble Supreme Court in 16 the case of GURU BASAVARAJ v. STATE OF KARNATAKA reported in (2012) 8 SCC 734. Hence, point No.2 is answered partly in the affirmative and I pass the following ORDER i. Revision petition is partly-allowed;
ii. While maintaining the conviction of the revision petitioner-accused for the offences punishable under Sections 279 and 304A of the IPC, the revision petitioner is ordered to pay a fine of Rs.50,000/- (Rupees fifty thousand only) exclusive of the fine amount already imposed in a sum of Rs.1,000/- and Rs.5,000/- for the offences punishable under Sections 279 and 304A of the IPC respectively, the imprisonment ordered by the Trial Magistrate and confirmed by the First Appellate Court for a period of three months and one year for the offences punishable under Sections 279 and 304A of the IPC respectively is hereby set-aside;
17iii. It is made clear that, if the revision petitioner fails to pay the fine amount, the order passed by the learned Magistrate stands restored. Time is granted till 31-12-2021 for the revision petitioner to pay the additional fine amount imposed by this Court; iv. After deposit of fine amount, the Trial Magistrate shall secure the presence of the family members or dependants of the deceased and pay the fine amount as compensation under Section 357 of the Cr.P.C.; and v. Office is directed to return the Trial Court records with a copy of this order, forthwith.
Ordered accordingly.
Sd/-
JUDGE kvk