Karnataka High Court
State Of Karnataka vs Kumayian on 26 March, 2010
Equivalent citations: 2010 CRI. L. J. 3376, 2010 (3) AIR KANT HCR 140, (2010) 3 KCCR 2402, (2011) 1 ALLCRILR 196, (2010) 4 KANT LJ 560
I ',_C.J.M.,.. ._
VLVRESFONEENT/ACCUSED FOR THE OFFENCE P/U/S.2?9,
x335, 8; 304--A OF IFC.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2617"' DAY OF MARCH 2010* Q
BEFORE V' E O V.
THE HON'BLE MR. JUSTICE E
CRIMINAL APPEAL NO:;I:13Ci9:'§.0O7
BETWEEN:
STATE OF KARNATAKA II I
BY KR. TRAFFIC POLICE _ x APPELLANT
[By sRI.E.BALAKR1sHNA,.IIC:GF.--}_ E
AND:
KUMAYIAN s.,gGi,_ I;/ATE JQTE' SAB
NO.1125,NO§'1'v'!'4,_«V _
MUNESHWARA V '-
UDAYAGIRI ' '
MYSORE. " ... RESPONDENT
_ [By 33.0:/$».S_BALI;XN.A<3:v_I{§SSOCIATES, ADVS.]
IS FILED U/S.37'8 {1} 8: (3) CR.P.C
A.F15é.AYING'-3:0 LEAVE TO FILE AN APPEAL AGAINST
TI>IE"-vJUDG"E:MENT DT.28.02.2007 IN C.C.NO.I07'2/2005
ON "THE__*FILE' OF THE I ADDL. CIVIL JUDGE [SR.I)N) &
MYSORE ACQUITTING THE
THIS APPEAL COMING ON FOR HEARING THIS DAY,
COURT DELIVERED THE FOLLOWING:
51
'A
tw.)
JUDGMENT
This appeal filed under Section 378 (1) and'--{f.'_5),:o.f Cr.P.C. by the State is directed against and order dated 28.2.2007 passed" by the 22 C.J.M., Mysore in c.c.No.1o72°/2ooVs2 a¢q';§:tting'i respondent - accused of the.:charges--. _1eve:j1'1edvJagainst 2 him for the offences. "p1;nisi1'abiefj4dhder $ectior1s 279. 338 and 304--A of IPC. 2 V
2. ..acc«us'ed charge sheeted by «Mysore for the aforesaid offencesirtlt-er «that on 27.6.2005 at about 11.00. a.m.2'Eth_e accL1As.ed":whi1e as driver of KSRTC bus .2it°bearifigi.'registratioriMNo.KA 09/17' 2124 drove the said
-b'1V1s- o'11.T'Mysore~~ -- Manandavadi Road in a rash and neg1iger1t'niar}rier so as to endanger human life and "near «INIE College, whiie over taking the b'u110ck--cart ahead of him dashed against a Fierro motor cycle
-bearing registration No.KA 09/3c.397s driven by one a»/ 3 Venkat along with PW.3--Ramachandra as pillion rider which came from the opposite direction and after dashing the motor cycle, dragged the motor some distance along with its rider and V' ultimately stopped the bus on tlleright 'side rdad'; and as a result of this, the gVrider:4'as:"vsiel1 as-'the rider sustained grievous inju"ries. and the rider of the motor cycie'~~s_uccuHrnbe:d ._injuries and thus the accused has committedVtheaforelsalidoffences.
3. Th? Vupori of summons, appeared Magistrate and pleaded not guilty forthe "levelled against him and claimed to To"'br.in_g.home the guilt of the accused, the 'prosecutiotnvexamined PWs.1 and 2 who were stated to be ythe eyefifiritnesses to the accident, PW.3--pillion rider 'g_a3ad't;wo«;_other witnesses as PWs. 4 and 5. EXs.P.1 to marked.
4
4. During his examination under Section 313 Cr.P.C. the accused merely denied all the incriiriinating circumstances appearing against him in the evitije1'1c:c.g.ovf the prosecution witnesses. The accused to lead any defence evidence. p_ accused is one of total denial occurred on account of the of himself in riding the rriotor that ltherelwas no negligence on his part. l 'V l l l
5. The le~a1"ned Magist-i=ate,Aliétfterlléaring both sides and on*v.Aas:sessIlnefrit"oif era; as well as documentary evidence, lbgrpglthelljudgrrieirit under appeal, acquitted the ggvaccused__lhoiding"'that_sthe prosecution has failed to prove the" accused beyond all reasonable doubt. The 'learned 'Magistrate disbelieved the evidence of PWS. to held that their testimonies do not indicate "tlthatllthe accident occurred on account of the negligence W 5 of the bus driver. It is against this judgment of acquittal, the State has presented this appeal.
6. tipori service of notice of this appeal,"---the respondent appeared through his counsel. heard Sri.B.Ba1akrishna, learned _ H __ ' _g Vi' "~ Government Pleader appearing and Sri.S.Ba1ar1, learned V(;o_1_.1nse1'-._appeariié_ig..::for {the respora.dent--accused.
7. Sri.B.Ba1akri'sh'na, vvouid as under:
of learned Magistrate is perverse'; illegal to the evidence on record; that 5 the Magistrate has, for strange and reasons, disbelieved the evidence of PWS. I -eviderice of PWs. 1 to 3 is consistent and cogent as to-"'the manner in which the accident occurred, '4 Jt}3.erefo1"e,.. the rejection of the evidence of PWS. 1 to 3 by learned Magistrate is perverse and illegal; that it "having regard to the undisputed facts that the accident /3 fl/' occurred as a resuit of coliision between KSRTC___bus and the motor cycie and the respondent -- accusjed:'f.va--sA the driver of the offending bus, and from ' which the accident occurred as spolrern 3 and as depicted in Ex.P.4 -- spot the Investigating Officer. itVis».rt:';fi:anifest1y 'the if respondent - accusedvas_.driver'r. in the process of overtaking ahead of him in the seeing the two wheeler 'direction, proceeded furthervjdviianipdi said motor cycle resuitinxgi the"the rider and injuries to the piliio}; ..rider""the motor cycie. In that view of the .flVI'i1a'tfé'-if. according learned Additional Government PiVes;der~,dti1Ve iearned Magistrate ought to have convicted _ the for the offences for which he had been Jchaifged"*'as such the judgment of the court beiow is ii'ab'ie'to be set aside and the respondent is liable to be if " "convicted for the aforesaid offences.
/a 7
8. On the other hand, Sri.S.Ba1an, learned counsel for the respondent - accused sought to justify_.__the judgment of the Court below and further conten~:.1ed:. the learned Magistrate after proper "
evidence of PWS. 1 to 3 and acceptable reasons, has held that 2 not witnessed the actual collision» theydo V the reason for the accidentert'ar1d:':sinc.e thevevidence of PW.3 indicated that he 'position to identify the driver of the aglsa tliels-peedilsfat which the bus was learned .'lVV1\/Vllagistrate has rightly disbelie9ved"the' "PVVS. 1 to 3 and there is no illegalitypp or.' : committed by the learned dlvmagistrlate acduitting the' accused; that since the "et}idence clearly disclosed that the accused for the"'pur.pos.e'of over taking the bullock-cart going ahead Jof Vrhim;"-'nioved on to the right side of the road, the e~__'c1.eceased as rider of the motor cycle ought to have "avoided the bus coming from the opposite direction, A 8 either by stopping the vehicle at a distance so that the bus could complete the overtaking and then move on to the left side of the road or by moving on to the edge of the road, but instead )the rider of the-;rriot.or' V' proceeded further even after overtake the bullock-cart in ._ in question, as such, the dnvellvttoltjthe V negligence of the bus':'driver°on. hand it was due to the neg1igencel'loi»'.':t'V}l;'(:;v' motor cycle himself, therefore; theg is justified in acquittingt Eltcclording to the learned counsel,' the learned Magistrate is in accordarlce 'withilaw "and evidence on record, and since in the judgment, this Court sitting not lightly interfere with the reasoned judgment court below.
is have bestowed my serious considerations to the submissions made by the learned counsel on both l 9 sides. Perused the records and the judgment under appeal
10. The perusal of the records and the suggestionsié put to the prosecution witnesses during "
examination indicates that the :~responCient_d}i'ilaccusedv-.A has not disputed the fact that KSRTC bus bearing registrati0h"'--N0.' and it he drove the said bus'"o_n thee"'iI}:=:iated._ day' on 'Mysore ~ Manandavadi Road and involved in an accident cycie near NIE Coilegeg, It that the accused during his examinationii nhder::_"..'Section 313 Cr.P.C. did not . _cone_te.nd__tth.at he "Wa_S._..I1ot the driver of the bus which was iravoivedin;*the.._accident nor he has said that the bus drivefi not meet with any accident on that today. Thegefere, from this it is clear that the involvement A ":jb{1S in question and the identity of the accused as dtéiver of the bus are not in dispute. @- IO 1 1. PWS. 1 and 2 have consistently stated in their evidence that on the date of the accident at about 11.20 a.m. whiie they were drinking tea near the teafjstali situated on the Eastern side of the road oppo;si*tei'uto__!:'tiie' NIE College, they saw the KSRTC bus trgiirigg over take the bu11ock--cart going dashgiog/Magainst th_e motor cycle vehich Vcarri'e'.V;froVm_:§the opposite direction and after the cjzcle, the bus dragged the cycle%.j_§aV'ri(3.';vit'Si riders to some distance and thereaftei;-:fe.to'ppedé."'_ori'ifthe foot path situated sidehof the road. It is their specificiisay Vthat"thVe'Vrighfportion of the bus dashed against the xmoitofcytgletttiand the motor cycle as well as Vxfere under the right front wheel of the it :the$rAtW:ere dragged.
A 12; who was stated to be the piliion rider on ]theg_ motor cycle, has given graphic account of the _' maiitrier in which the accident occurred. According to &/ 1.1 his evidence, he was proceeding in the motor cycle as pillion rider with the deceased Venkat a rider from__ Silk Factory side on the left side of the road, and College, the KSRTC bus came from opposite_.directi.oi'1--TdL. . a high speed and while overtaking"t1"ie"ibi;ii'1oci{{c;Lrt._V nu going ahead of the bus, the driveifi extreme right side of the roé1c1_irwiz., extrernedwestern 'side * V of the road and dashedgigainst 'motor cye}.eg§Though these witnesses have $b'ee'n, .§'i"cross§_exeunined by the defence courisei, *~not§hing_:',is.._e1icited"vto discard their evidence. it ' = i3.u"F_4rom the cross-examination, it is e1icited_t11eit ai'te--r. he_aring the sound, he turned and saw the -V.zic<:'iC1-entii' He has denied all other suggestions iri.c1i1din'g'.'--d'jth.-edVsuggestion that he did not see the "._>'aCCid€1';itj._ V in fact. when PW.1 was cross-examined ,,:if"_irriiri~ediately after his examination-in--chief, nothing was sjizggested to him regarding the accident. However, he 12
-'-\~'«.u§(L.£&-
was recalled{ for the purpose of further cross- examination, at the request of the accused and during further cross--exan'1ination, certain suggestions' relating to the accident were put to M denied. Nothing is elicited from 2' to could not see the accident in V4'question.d_--v_l'The it material suggestion put to him. the was since the bullock§c~a_rt ._ahead"of'V the bus he could not see the denied this suggestion. suggestion" is'-."inc.o:ngruouS, as the bulloclt-heart' theuldus, as the bus is taller than the the seat of the driver of the bus itself vi4ri1l.:vbew.'above.".the height of bullock--cart. In ""fact"it fnot.suggested to PW.2 that he was not present I and he did not see the accident. Thus, thelpreseiicjedof PW.2 near the tea stall is not seriously s3"dispute'cl. in the cross--examination. There is no s.tiggestion to PW.2 that he did not witness the actuai "collision between the two Vehicles. in fact, from the W 13 tenor of cross-examination of PWS. 1 to 3 on behalf of the accused indicates that the accused seriously dispute the fact that the collision took ' extreme western side of the tar ro-ad' whiie9_4the"bt14s driVTerV.e V was overtaking the bullock-cart of him.
14. In the there was no suggestion that he as piliion rider on faécfijtiiieiieizidence on record shows 5<v.;_;;a5L, accident and for several." -~ as impatient in the hospital. Wherefore is no difficulty in believing his Q_ evidence' that h'e.W_as» proceeding as piliion rider on the 'r;io'to¥. such he was the best witness to speak as to therj'j_r1:i;anner in which the accident occurred. 'u_Howeverg,_ the learned Magistrate for strange and ":i:"_pec"u._1iar reasons has disbelieved the evidence of PW.8. The learned Magistrate has disbelieved the evidence of é§,/ 14 PW.1 on the ground that in his cross--eXamination he has stated that after hearing the sound he turned round and came to the piace of the accident; he disbelievedftheié evidence of PW.2 on the ground that while V' near the tea stali he could not conC'e«ntr'ated_:has:
happens on the road and that as a bu1Iock--cart was proceeding. aheadof. He disbelieved the evidenee.._ of grou'nd'V:that he could not identify the he saw the bus comiiigdfitom 15 feet and he couid not isdayanthe the bus was driven. I fail to how the evidence of these witnesses be disheiieved for the above reasons. jvshown PW.3 was the pinion rider of the it when it was not disputed that the acc'u.sed'\vaaS the driver of the bus which was invoived in :_flth.ec_.accident, the fact that the pillion rider did not identify the bus driver should not be a ground to reject T "his evidence. On the ground that PW.3 could not say '1 15 the speed with which the bus was driven, his evidence could not have been disbelieved, as ) iniihpisggos/ec1;'1gi'\(~)!fi//1/fQr the offence under Sections 279, 338 and _ question required to be consideregdé "
accused drove the vehicle in a manner so as to endanger"hV:u~nfian"Alil;e. r L' the reasons assigned the reject the evidence of PWs. 1'1"./tQ'"~3v and are irrelevant reasons.___ and 2 clearly establish nearwlllthe tea stall and they of PW.3 who was thepillion' and acceptable. For improper and ..irr'eil'evant 'reasons, the learned Magistrate themevidence of PWS. 1 to 3. Therefore, learned Magistrate in this behalf is perv'lerse'aj-id illegal.
A. , 15; Now the question is whether the accused drove the" bus in a rash and negligent manner so as to gj' 16 endanger the human life as required under Sections 279, 338 and 304-A of IPC'?
18. The expressions 'Rash and Neg1iger1c'ef'..._haȤe not been defined in the Penal Code. Howe'.-ref,".in=catena"
of decisions, the Apex Court of these expressions. Negligence isgelieraiiy' '.define_d to be, "a breach of a duty to do something which a rnavn:>"gnided by those considerations the conduct of the human oi: which a prudent andvreaso.nab1e._rn--ari would not do". In Btiiach'ahdra diiiiifaman Pathe Vs. The State of reported in 1968 ACJ 38, the Apex Court oexfjiaiI1é§i.*:"the distinction between' rash act} and _ negiigeint act in para 11 as under:
V _ "M. An offence under Section 304--A " Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a |%/.
18 with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises frornfrzg acting despite the consciousness cu1pa_'ov]Ve"'fit'-.\"'~.
negligence is acting without ll" consciousness that them,' __i1legal" if mischievous effect will £o1;1r§w. circumstances which_.showW.that gem:-t= has not exercised the.:cautior1».. upon him and 'he had.uh'e_wo'u1d'have the consciousnessti _'l7he;_ arises from the neglecgtj olmltlfige ._'-V-'duty of circumsvpc.ction.i?_ 1;
In Jacob-"E/Ecdheu-tV»_Vs,_ State of Punjab and Another reported (20051 1. the Apex Court while considering thefllcyasen 03)" medical negligence has stated ._ '3 ;._ .. .....
to _vvhatvf:'constitutes negligence as a tort and as a c--1fime in fi)_aras"s12 to 14 as under:
a "#12. The term "negligence" is used for g the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal laws It is contended on behalf of the respondents that in both the 19 jurisdictions, negligence is negligence, and__._ jurisprudentially no distinction can drawn between negligence under civil;"'iaw. and negligence under criminal law'. d submission so made-' "can:jot_.. be V " countenanced inasmuch as"-it basledA'tI.j3(g=1 a total departure from the established terrain of thought _ever*..si'1l--ce the beginning of the"'e.t1iergenCe:'otjthe concept of negligence up lalto" times.
Generally A ' --speaki1'r1'g,-- ifit " _ iigdaitiount of damages i._s"'xdet--erminative of the "but in criminal laW"iit- fijth el" amount' ' of "damages but the aI.n0--uritV of negligence that is deterini.nati,ve' lot lia,bility. To fasten liability 5 'i-nAcriminal'law',* the degree of negligence has idktc;-rbev~-- higher"'ti1an that of negligence enough liability for damages in civil law.
" --._Vr'The'."_e_ssgentia1 ingredient of mens rea cannot be 'ex«:cluded from consideration when the charge in a criminal court consists of criminal negligence. in R. 1). Lawrence H [(1981) 1 ALL ER 9741 Lord Diplock spoke in a Bench of five and the other Law Lords %/ 20 agreed with him. He reiterated his opinion in R. U. Caldwell [(1981) 1 ALL ER 961] and H dealt with the concept of recklessness constituting mans red in criminal law. Lordship Warned against adoptingf simplistic approach of treatingail of criminal liability as soluble:1-bgficlassilfyingif-..__ --l the test of liability as being".'fs'ubjectiire.":: or "objective", and said: p.98'2_é3--fll V "Reckiessness ~ * _ ' V of the doer of an act"--_t_hat there is something that wouidllihave Vdrawn "the':."att.ention of an " " 'prudent A " individual to the possibiiityglthlatdhis' act was capable of causing kind of serious harmful _ consequences that the section which creates "t"rie offence was intended to and that the risk of those consequences occurring was not slight that an ordinary prudent ll vpwindividual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'reckiessly' if, before doing the act, he 'lfi/"
22
such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run thefr'»o risk of doing such an act with reek1ess_nessV"':u:'~i..V"'A and indifference to the consequences. - Again in the case of Ratfina:;'hcaivdn_ Kamataka reported in (20i_)_v*'i~).._3 SCC A'7I_"h.e,e.!'{pex Court has consideredzas togpgxzuliat "e-o_nstit"ute_S Hrtiashness and negligence mitgiai Section 304--A IPC ) in paras 7 to the """ applies to cases xivhere ._n'oa.:_:ii2tention to cause death no the act done in all jg .probaloi1.ity'niilllcaiise death. The provision is V-ildirected at"'oi'fences outside the range of 2299 and 300 we. The provision to such acts which are rash and and are directly cause of death of g another person. Negligence and rashness are essentiai elements under Section 304.~--A. H Culpable negligence lies in the failure to exercise reasonable and proper care and the W 23 extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with thefyty consciousness of a risk that Me'%.*i1"--4:} consequences will follow but with theftiopfe' ii"
that it will not. Negligencewyisg a breachof '4 duty imposed by law. In cifgiminéazlfjv amount and degree, of inegligenceyeug' are " '' determining factors. Ariuestion accused's conduct arnoulitedygi to "cu1pa,b1e rashness or negiigencte cierJe"nC1s'*direct1y on the question as -"'the'~:'._'-aitiount of care and"cifrcu19nspectio«n"wheichf' a prudent arnd'i'rea"sonéifb1e "man wouid" consider it to be sufficient 'considering ' all the circumstances of the case": _ C-riininal rashness means 5 'hazarding' dangerous or wanton act with H'"t11-e k:r1owIe'dge' that it is dangerous or the further knowledge that it injury but done without any in'ter2tion to cause injury or knowledge that it would probably be caused. .
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with W consciousness that the illegal and mischievous effect will follow, but in circumstances which ShOW that the actor'?-.? has not exercised the caution incumh.e'nt"-K".
upon him, and that if he had he W0uid"hav:(§. had the consciousness. The imp'utaiji}ity:
arises from the neglect of circumspection." _{See4V..A ' Nagabhushanam, In p Mad HCR pp. 119-20.]
17. In the case"*cn:'V"the oral and documentarfi. 4' ,'e'sta'biished that the accused as bus while proceeding from North, road having width of 40 feet utoadds' «me_a,suri1'1g 10 feet on either sides, for over taking the bui1ock~cart going ahead of him in_"tif:e:' same direction, moved on to the extreme 'W__VV€St€}'IijSid€ of the road that is to his wrong side and in "_the'dprocess dashed against the motor cycle which came from the opposite direction on its correct side of the a/ 26 road. Before doing so, it was necessary on his part to see as to Whether his act of over taking would cause any danger to any other person or vehicle coming opposite direction or from any direction. "
no other vehicle was coming from the. and he could safely pass ahead of him by overtaking Vflrolceeded it further.
18. The _C-entraft"Goi>:er11rIierit'_ iefixercise of its power under of the] Vehicles Act has framed», the V ' "called "Rules of Road Regulatiounsghh l9VS5i3';'eand_"..'i'the same has come into force f1"o;'vi'1§'«:.1E.__g7AV.]_'98S_."'l." ""Reg11lation No.6 deals with over taking 'pro11.il:)ited;'<»i.i%1 certain cases. According to this reigiilationfieithée driver of a motor vehicle shall not pass a 'x__vehic1~~e travelling in the same direction as himself if his is likely to cause danger to other traffic oroceeding in any direction. In the light of this, the fig"
27
accused as driver of the KSRTC bus before overtaking the bu11ock--cart going ahead of him should have seen as to whether his Act would cause danger or inconVenie_n'ee to the vehicle/ s coming from opposite ~ direction. Without taking such. care' nu respondent -- accused proceeded cart and unmindful of theVfa_ct~~._that"a.__ motor "Was " V coming from the opposite di1jec'ti.o1"J on the flcovrrecgt side of the road, the accused and dashed against the rnot.cr'_'cycle. the above, there is no of Sri.S.Ba1an that the rider of' "ought to have stopped the vehi'?le' 9v°feking."'the. bus and avoided the collision. '"As.theE"rid.er~.was rnoving on the correct side of the road, ffn.ot overtaking any vehicle, there was no duty castiton him to stop the vehicle. Thus the it yespondent -- accused did not take such care and "caution which a prudent and reasonable man was "required to take in the circumstance of the case and in 28 spite of the fact that two wheeler was coming from opposite direction, by keeping to its correct side,-.'__the respondent instead of stopping the bus overtaking the bullock-cart going ahead of likely to cause danger to the two"vvhee_1e.r corn"ir_i_g:
the opposite direction. proceededhftiirther ultimately caused injury to the'*riderf'.=andVMpillion rider of the two v§r"h.e_eler';'"'"" * thevvtfacts and circumstances of this casle:_c'Ie'arly that there is culpable rash'ness" neg1igetn'ce"w0n.ftthe part of the accused. He as a prudent and reasonable driver would phave"d:one'~in"st'1ch circumstance. the sketch prepared by the '=inves$tig'atir1~g officefdtlring the investigation and EX.P.2 is" the If the contents of EXs.P.2 and R4 are-_read- together, it is clear that the actual collision at a distance of about 5 feet from the western A the tar road. The correctness of the contents of W, 29 EXs.P.2 and PA is not disputed by the accused. Thus from the contents of Exs. P.2 and R4, it is clear accident occurred almost at the western edged' * road, which was wrong side to Vth"e*--dire(j:tion"iin it the bus was proceeding. Thegedvidence __o-no indicates that the right front' '-portion'. of the j'b1Vis4''ciashed '' ' against the motor cyclggnd cycle 'canto under the right front wheel oi the bus after dragging thefmotor fa. of about 20 feet stopped situated on the western side. clear that the bus driver .~/rash and negligent manner and ;the_ vehiclewas not under his control. He was not 'din poisitiorrto the bus to halt and in the absence on the road, it appears the accused also did 'not dmake any effort to apply break to stop the bus. No doubt there is no clear evidence as to whether thedriver of the bus drove the Vehicle at a great speed.
""1-iiowever, the speed by itself is not the sole factor to fix/..
30 decide the culpability of the driver of the vehicle, and it is the rash and negligent act which is very.j'*rn'u_chV necessary to be considered. The question asto ~ a person drove the vehicle in V~a""ra.sh .'_'anVdn'egV1ig_ent'._V it manner depends upon the facts '''and_ circun_iistances"«.o'f-.. each case. The totality of be t' V taken to find out as 'ftoa whett1e:r4'the_re vvase rash and negligent act on the part accuvs.ezdz'person. In the case on on record as a whole of the accused, it is «.V.t_he'r.esV1VjVondent - accused drove the bus' manner and that was responsible accident which resulted in the death lvloféyioiée to another. Accused who was bus which involved in the accident had thespecizalknowledge as to how the accident occurred and as" "to whether or not he was responsible for the accident. Unfortunately, during the examination under it 'Section 313 Cr.P.C., the accused has not come out with 31 any explanation. He has merely denied all _the incriminating circumstances put to him. He come out with any explanation as to how . occurred.
20. Under these circumstances.
opinion that the judgment Magistrate acquitting the anlducontrary to the evidenceen reeord--.::':: ll/[agistrate for irrelevant disbelieved the evidencemofi which has resulted in an "i Therefore, the judgment under apneal cannot_be:_s'ustained and is liable to be set asi_de.. 'From A'ti1e......evidence on record, this Court is ;i:lq:at_ the prosecution has proved the guilt of the offences for which he has been chargeVdt.name1y Sections 279, 338 and 304--A of IPC. "_"oe>y'o3.'1d reasonable doubt. 32
21. I have heard Sri.S.BalaI1. learned counsel appearing for the respondent regarding sentence._...__The learned counsel submits that the incident about 5 years back and at that time the aged about 51 years and by nowhe' is aged years as such he is at the faggend of seriIic~eV,"~. therefore, lenient View may "-vh:e~i,ta}teIi ._W'hil;e sentence.
22. The Hon'b1eW -tin catena of decisions 'sentencing policy.
W}'ieneVer=a11 guilty of an offence he has to belll'con1rnlens'u.rat:eiy sentenced. so that it should V. g_ haveideterrentl effectyon potential wrong doers, and with ayiew 'to"pr'eyen_t the recurrence of such incident. 23;' 'lathe case of State of Karnataka Vs. Krishna .4 Rqju "reported in 1987 Supreme Court Cases (Cri) 198, s."lthe"Ai3eX Court while dealing with a case in which the I?
W 33 accused had been sentenced to pay only fine for offence under Section 304--A IPC, has observed in para--s':'6.f"ito"'8 as under:
"6. The utter disrega1'd"'shov§jn Magistrate to the nature 7-.of particularly the one under Section and the sentences provid'cd'for the'in_ Indian Penal Cod-eppand_tl'ie-.§(iotor_'Vehicles Act, by imposing what j as 'flea--bite' sentences __on the .. .r_espo.ndent;. ' have spurred; 'theh only pass appropriVa--te"~ the Magistrate 1'igli.t:Vinatters:'by enhancing the sentence-vvat_V':'i.eas,t"".for_ the conviction under conscionable level in exercise ofgits under Section 377 , IPC. "" "High Court has failed to that the respondent has been let total fine of Rs.345 for his convictions under all the five charges relating "tow the death of one person and the A 'asustainrnent of injuries by another clue to his
-- rash and negligent driving besides his failure to secure medical assistance to the ig;/ 34 victirns as well as his failure to make a report. to the authorities about the accident. The reasons given by the High Court arefr'»c really non-existent as well as irrelevant. on_es§g"- It is not as if t.he respondent. had.-'4"been':r:"' ll"
charged or convicted for ya,' ggrave""offe_n,cei. punishable With death or life and his fate had re_main*e.d"--in siispense " A' for a long time and'-v..c4g:as_ a it coris.eqnence'" it thereof, he had nndergoneginental agony and torment. for a longV:lperi_od;Vj_ Here was a case where the"respondents.vhalctilnot only driven ¥in1;a...l.'re«cl'{le_ssV_nfianner and cai;1s'ed.:'theaEi.;5ath..of one"person and injuries to anothe1":f'b_nt._he:""had also attempted to escapeprosecntion..c,"hy failing to report the 5 'accident-. _ "to " the police authorities. C.::'Consi-derations'of undue sympathy in such not only lead to miscarriage of will also undermine the confidence of t.he public in the efficacy of the ciiirriinal judicial system. It need be hardly V lllfpointed out that t.he imposition of a sentence 'A of fine of Rs.25O on the driver of a motor vehicle for an offence under Section 304:-A, » 35 IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of anyone and unmistakably leave the impression trial was a mockery of justice.
8. We are, therefore, jconstrair:_ed'Ato_:
what the High Court shoulahaye don_e"bu.tn failed to do vi:7.., enhancethe senter1ce'~.in"..theww interests of justice. howxever,' that the ends of it by enhancingthe the.' serious of the charges has beenycciriyiietejgi tthe ~chfar'gVe:'under Section i~'}Q4¢AA, we enhance the sent_ence' 'for?thve--ficonviction under Section __304~»IX; VIPCV'y-.to'*»_sVix;V months RI and fine of "i1'1»..d.efau1t to undergo R1 for two A __ We leave undisturbed the other .Ac'orivi_ctioris and sentences." .l'i1_.':the case of State of Karnataka Vs. Sharanappa zfiastinagouda Aregaudar reported in (2002) 3 Supreme a 36 Court Cases 738 once again the Supreme Court has observed thus in para 6 as under:
"6. We are of the View that hayiiijg' regard to the serious nature of the acci'd--entf,"-- which resulted in the deathiof gfour.persi:ons';~.: '- the learned Single Judge ishoiuldj; interfered with the sentenceéirnposed the V courts below. It may-v.,r:'gcreateV' and, unhealthy precedent saigngails to the subordinate.V:cou'rts;3ahichA'hare to deal with several If the accused. fe=Aun€d':j'rash and negfigerit._«.drivir1g,-courts'-7have__t»obe on guard do not escape the clutches "lightly. The sentence Vilfnposerlgbygthe'=courts should have deterrent 'i<.ef2f__ge:ct__oni fioten_tival Wrongdoers and it should jggcornrnensaurate with the seriousness of the course, the courts are given in the matter of sentence to take of the wide and varying range of facts it '*-.__that might be relevant for f.ixi'ng the it "squanturn of sentence, but the discretion shall be exercised with due regard to larger 73 EV 37 interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the;'"-._ criminal justice system."
In B.Nagabhushanam Vs.__,.St__ate " ll" 2 reported in (2008) 5 Supreme Cotiszjt Cases 'F30', ijkpexi Court has observed thus indpafas 14"a1_1d "14. We are of Vpthefopinion "that months' simple. ini_pri_sonr1§ent and a direction to theAA.ap:pel1a.nt,» fine of Rs.1000 co1n_n':--i»ssi0n' ~i_"of_____the offence V3044'-\ and simple in;pfi.sorimen't.Vlo1f_°o,ne month and to pay a finedddiof Rsl.5'O0._ the offence punishable ppjptiiider Sec.tion 279 of the Penal Code cannot T1 We may, in this connection, notice Dalbir Singh 12. State of Haryana A. '((2600) 5 sec 82] this court opined: (soc V 13.87, para 13) "13. Bearing in mind the galloping trend in road accidents in India and the {l 5% 40 View of this, it may not be necessary to sentence the respondent. separately for the other two offences.
25. Accordingly, the appeal is a11owed;f"'-l.'_Th:eA' judgment and order dated 28.2.2007 passed' Additional C.J.M., Mysore 00 acquitting the respondent -- accused thereby set. The respondent - accused is-Va-3i;_viCtved .for.the":,offences V punishable under Section 304?'A 'IFC. The bail and surety bonds accused are ordered to be;_cancelled_. =:
_Acpcor.din..0g1y,' respondent -- accused is sentenced to i_1ndergo- sirnple imprisonment for a period pay fine of Rs.5,000/-- for the A under Section 304~A IPC.
The respondent -- accused shall surrender A ":0.d_b.efoife the learned Magistrate on or before 17.4.2010 and upon his surrender, the learned Magistrate shall fife 4] commit him to the prison to serve out the sentence. If the respondent «« accused fails to surrender hixpseif before the learned Magistrate within the afdresaidg period, the learned Magistrate shall take ' to secure the presence of the accused. can.-d him to prison.
28. A free copy of this"'j.ii'dgmet1it to it the accused through. his 1e_aft1ed'j4 e6L1.1f1se1;'V"'"i'<e'gistry is directed to send the copy of this judgment to the ibelexati forth A sd/4 IUDGE RS f._*