Karnataka High Court
Rajkumar vs The State Of Karnataka on 21 April, 2023
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IN THE HIGH COURT OF KARNATAKA
AT KALABURAGI
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL REVISION PETITION NO.200035/2019
BETWEEN:
Rajkumar S/o Karisiddayya Kallimath,
Age : 32 years, Occ: Jeep Driver,
R/o Bhag Hipparaga, Tq. Basavakalyan,
Dist : Bidar.
... Petitioner
(By Sri Sharanabasappa K. Babshetty, Advocate)
AND:
The State of Karnataka,
Through Kamalapur Police Station,
Tq. & Dist : Kalaburagi,
Represented by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
... Respondent
(By Sri Sharanabasappa M.Patil, HCGP)
This Criminal Revision Petition is filed under
Section 397 of Cr.P.C. praying to set-aside the order dated
15.03.2019 passed by the III Addl. District and Sessions
Judge at Kalaburagi in Criminal Appeal No.7/2017 and the
judgment and sentence dated 05.01.2017 passed by the I
Addl. Civil Judge and JMFC at Kalaburagi in
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C.C.No.1523/2013 and acquit the petitioner/accused for
the offence punishable under Sections 279, 337 and 338 of
IPC in the interest of justice and acquit.
This criminal revision petition having been heard and
reserved on 31.03.2023 coming on for pronouncement of
orders, this day, the court made the following :
ORDER
The Revision Petitioner-accused has filed this revision petition under Section 397 of Code of Criminal Procedure (for short 'Cr.P.C') being aggrieved by the judgment dated 15.03.2019 passed by the III Additional District and Session Judge, Kalaburagi in Criminal Appeal No.7/2017 confirming the judgment and sentence dated 05.01.2017 passed by the I Additional Civil Judge and Judicial Magistrate First Class, Kalaburagi in CC No.1523/2013 in convicting the petitioner/accused for the offences punishable under Sections 279, 337 and 338 of Indian Penal Code (for short 'IPC') and sentencing him to undergo simple imprisonment for a period of three months and to pay a fine on all counts to the extent of `1,500/-. 3
2. Parties to this revision are referred to as per their rank before the trial Court for the purpose of convenience.
3. The brief and relevant facts up to this revision petition are as under :-
That on 09.04.2012 accused being the driver of a Jeep bearing Reg.No.KA-21/M-1438 at 5.00 p.m. on Okali road near agricultural land of Mahadevi Ramgola Okali within the limits of Kamalapur Police Station, Kalaburagi drove the same in a rash and negligent manner endangering human life made the said vehicle to topple down by the side of the road resulting in causing injury to the inmates of the said vehicle i.e., CW.4, 6, 10 to 13 and 15 who sustained simple injuries and caused grievous injuries to CWs.5, 7 to 9 and 14. To that effect a complaint was lodged by CW.1 - Veeranna S/o Sharanappa before the respondent police which is registered in Crime No.39/2012 for the offences punishable under Sections 279 and 337 of IPC. Investigating Officer after 4 completion of the investigation has filed the charge-sheet against accused person for the offences punishable under Sections 279 and 337 and 338 of IPC.
4. After filing charge-sheet, cognizance of the offence was taken by I Additional Judicial Magistrate First Class, Kalaburagi. Presence of the accused secured and he was enlarged on bail.
5. The learned Trial Court framed substance of accusation against accused for the aforesaid offences, read over the same, accused pleaded not guilty and claimed to be tried.
6. To prove the case of the prosecution, in all it examined PWs.1 to 11 and got marked Ex.P.1 to Ex.P.18, closed prosecution evidence. Thereafter, accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.
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7. Learned trial Court after hearing the arguments and on perusal of the records found the accused guilty of the offences punishable under Sections 279, 337 and 338 of IPC and sentenced him as stated above.
8. Accused being aggrieved by the said judgment of conviction and sentence, preferred an appeal in Criminal Appeal No.7/2017 before the III Additional District and Sessions Judge, Kalaburagi, being the first appellate Court.
9. The learned first Appellate Court after securing the records and on hearing the arguments affirmed the judgment of conviction and sentence passed in CC No.1523/2013 by the I Additional Judicial Magistrate First Class, Kalaburagi. It is this judgment of conviction of sentence passed by the trial court and affirmed by the first appellate Court, accused has preferred this revision on the following grounds :-
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• That the impugned judgment of conviction and sentence is against the materials on record, based on presumption, assumptions and surmises.
• The principles of reasonable doubt have not been taken into consideration by the trial Court. Panchas have been turned hostile and based upon the evidence of PWs.1 to 7 the learned trial Court passed the impugned judgment. There are more contradictions, omissions in the evidence of the prosecution. Their evidence cannot be accepted. As there is no proper appreciation of the evidence, but the trial Court has convicted the accused and such a impugned judgment has been affirmed by the first appellate Court.
Amongst other grounds, it is prayed to allow the petition and to set aside the impugned judgments.
10. After filing this revision, records of the trial court and first appellate Court are secured. 7
11. As short point is involved in this revision, with the consent of both sides, I have heard the arguments at the admission stage itself. Perused the records.
12. Before adverting to the other aspect of the case let me analyze certain admitted facts.
13. On 09.04.2012 accused was the driver of a commando jeep bearing Reg.No.KA-21/M-1438. He was driving the said jeep towards Okali village and there was an accident one kilometer prior to Okali village. The said jeep turtle down. In the said jeep, at the time of accident the witnesses by name Sharanakumar, Gurupadaiah, Sridevi, Shantabai, Revanaiah, Sharanamma, Ambabai, Nagamma, Shamlabai, Gurubasamma, Veerabhadraiah, Basaiah and Rajkumar were travelling as inmates of the said vehicle. This Rajkumar is none-else than the accused driver of the said jeep. The aforesaid persons sustained accidental injuries i.e., some have sustained grievous injuries and some have sustained simple injures. To prove the said fact of sustaining accidental injuries by the 8 aforesaid inmates of the jeep, prosecution relied upon wound certificates as per Ex.P.4 to Ex.P.16 which are marked through Doctor. He is of the opinion that all the aforesaid witnesses and the accused have sustained accidental injuries. There is no denial of these facts by the defence.
14. It is the case of the prosecution that, the said accident has taken place not because of any mechanical defects. To that effect prosecution relied upon Ex.P.18 the motor vehicle examination report. It is opined by the Motor Vehicles Inspector that, the said accident was not due to any mechanical defect of the jeep. The contents of this Ex.P.18 are not denied by the defence.
15. Ex.P.2 is the spot panchanama wherein the scene of offence has been stated which is running from Kamalapur side to towards western side towards Okali Village and it is a road having boundaries so mentioned in the panchanama. Ex.P.2 is appended with sketch. The contents of this sketch is also not denied by the defence. 9 The said accident has taken place towards right side of the road towards Okali road. No break marks are seen in the sketch. No evidence has been placed by the defence that before the accident to avoid the same accused applied break. These are all the admitted facts which need not be proved.
16. In this case PW.1 is examined being the complainant by name Veeranna S/o Sharanappa. According to Ex.P.1 complaint, on private work he had been to Kamalapur on that day on his motorcycle and after finishing his work he was returning on Okali-Kamalapur road towards his village. At that time towards Okali village the driver of the aforesaid jeep by driving his in high speed, in a rash and negligent in a zigzag manner came near a landed property of Mahadevi Ramgola, lost control over the vehicle and the said vehicle fell in a ditch and turtled down. The inmates of the said jeep started shouting. He went to the said place. So also one 10 Sharanakumar and others came there. Injured were shifted to hospital.
17. But in the examination-in-chief he denies about the said accident alleged to have taken place in his presence. He simply says, when he was moving towards his village there was an accident, but do not know who was the driver of the said jeep. When he reached the said place already the accident has occurred. According to him, he has not lodged any complaint as per Ex.P.1. Thus this PW.1 complainant has been turned hostile. Though he has been cross-examined by the prosecution, but no favourable evidence is elicited from his mouth to prove the contents of Ex.P.1. Thus, the evidence of PW.1 cannot help the case of the prosecution.
18. PW.2-Moinoddin and PW.3 - Nagesh Hanumath are the scene of offence pancha to Ex.P.2. But, they have deposed complete ignorance about contents of Ex.P.2. They simply deposed that as per the say of the police they put their signatures. They too have been turned hostile, 11 but nothing worth is elicited to disbelieve their evidence. Therefore, the evidence of PWs.2 and 3 would not help the case of the prosecution.
19. PW.4-Gurupadappa being the inmate of the jeep states about the accident, but he has deposed that he do not know how the said accident has taken place. Therefore, he has been declared as hostile by the prosecution. He is unable to identify the driver. He says that he has not given any statement before the police as per Ex.P.3. Thus, the evidence of PW.4 would not help the case of the prosecution.
20. PW.5- Revanayya was also the inmate of the jeep. He identifies the accused as a driver of the said jeep and according to him, because of driving of jeep in high speed in a zigzag manner it turtled town on the left side of the road and he sustained injuries. There is no effective cross-examination directed to him by the defence except the denial. Though he has been partly declared as a hostile witness, but identification of the accused as the driver of 12 the offending jeep and driver driving the said jeep in high speed and in zigzag manner is not denied in the cross- examination.
21. PW.6-Veerbhadrayya and PW.7-Bassayya Swamy are also inmates of the said jeep who sustained injuries in the said accident. They corroborated the evidence of PW.5 in material particulars with regard to the rash and negligent driving of the offending jeep by the accused. Though there was confusion with regard to the name of the accused, but it is elicited in the cross- examination and this PW.7 identifies the accused as a driver of the said jeep. A suggestion is directed to PW.7 that the said accident has taken place at 3.30 p.m. PW.7 admits it. This suggestion goes to establish that the accused also admits the said accident. All the other suggestions have been denied by him.
22. PW.8-Sidramappa being the then Assistant Sub-Inspector of Kamalapur Police Station received the complaint on 09.04.2012 at 6.00 p.m., registered the 13 crime and set the criminal law in motion. He visited the scene of offence, conducted the panchanama of the scene of offence, seized the offending jeep and thereafter handed over the investigation to CW.19. Whatever the evidence spoken to by PW.8 is not denied by the defence.
23. PW.9 - Dr.Md.Faimoddin has examined the injured witnesses and issued the wound certificates. Contents of the said documents are not denied by the defence.
24. PW.10-Shanthnath was the Police Inspector and he took-up the investigation and recorded the statement of the witnesses and handover further investigation to PW.11-Ningappa. This PW.11 after collecting the wound certificates and after completion of the investigation has filed the charge-sheet. No effective cross-examination is directed to any of the aforesaid witnesses by the defence.
25. From the evidence of PWs.5 to 7 being the inmates of the jeep who are the best persons to speak 14 about rash and negligent driving of the jeep by the accused is duly proved in accordance with law.
26. Roads are meant to drive the vehicle in high speed. If the road is open, drivers can drive the vehicle as rash as he can. But, if the road is not in good condition, it is the duty of the drivers to take all available precautions to avoid any casualties. So to say in a case of present nature when rash and negligent driving is attributed against the accused, the general presumption of innocence of accused is also available even to an accused charge- sheeted for rashness and negligence in driving a motor vehicle which resulted in injury or loss of life to the inmates of the vehicle. The scene of occurrence panchanama shows the place of accident and the said commando jeep turtled down and fell in a ditch causing injuries to the inmates of the jeep.
27. From the evidence of PW.5 to PW.7, it is proved that before the accident the accused was driving the said jeep in high speed and in a zigzag manner. 15 Section 279 of IPC is attracted only if the manner of driving is so rash or negligent as to endanger human life etc. The act of driving must be such that can be branded grossly rash and or negligent to such an extent that a reasonable inference could be drawn about the likely consequence of endangering human life or causing hurt or injury to another person.
28. Here in this case the person named in the wound certificates including the driver who too has sustained injures reflect that, they all have sustained accidental injuries. The driver has not explained that how he sustained injures as per the contents of wound certificate Ex.P.16. Therefore, the only inference that can be drawn is that he too had sustained the aforesaid accidental injures as stated in the wound certificate because of his rash and negligent driving of jeep. Therefore, if all these factual features are put together, the trial court and the first appellate court have rightly appreciated the evidence placed on record and have 16 conclusively held that accused has committed the offences punishable under Sections 279, 337 and 338 of IPC. I do not find any legal or factual error being committed by the trial court and the first appellate court in coming to such conclusion. Hence, the findings of the trial court and the first appellate court do not require any interference by this Court. More so, this court cannot sit as an appellate court and re-appreciate the evidence. So far as revisional courts are concerned, one must be slow in interfering into the concurrent findings of the trial court and the first appellate court.
29. So far as sentence is concerned, the learned trial court has convicted the accused person for the aforesaid offences both for imprisonment and fine. The law says that conviction under Sections 279, 337 and 338 of IPC independently is permissible. So to say a person convicted under Sections 337 and 338 of IPC can also be convicted for the offence under Section 279 of IPC. Section 71 of IPC will govern the assessment of 17 punishment for two offences committed in the same transaction. It is held by this Court in the case of State of Karnataka v. Mohammad Jafar1 that the offence under Section 279 and under Sections 337 and 338 of IPC, separate sentence should be passed. In view of this, the learned trial court is right in passing the separate sentences for all the aforesaid offences.
30. It is submitted by the learned counsel for the petitioner that it is the usual practice that in such offences accused pleads guilty the court imposes fine only. But in this case, after full fledged trial the court has convicted the accused both imprisonment and fine. He submits that the case is of the year 2013 and almost one decade old. Accused-driver was aged 25 years, when the accident took place and is a poor person eking his livelihood on the profession as a driver. It is the only source of income to him and if he is now committed to prison, his family would be put to hardship. He is a married person have to 1 1991 Crl.L.J 77 18 maintain his entire family including his parents. This fact is not denied by the prosecution also.
The punishment prescribed for the offences punishable under Sections 279, 337 and 338 of IPC are as under :-
Section 279 - Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 337 : Causing hurt by act endangering life or personal safety of others.-- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.19
Section 338 : Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
31. I have given my thought to the matter with regard to sentence. In this case, some material aspects which were required to be taken note of while imposing the sentence. Accused being the driver of the offending vehicle carrying passengers must be conscious and aware that he is carrying the passengers and he is not supposed to drive the vehicle in high speed in a rash and negligent manner so as to cause any casualty to the inmates of the offending vehicle. The learned trial Court has imposed both sentence of imprisonment and fine.
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32. It is argued by the learned counsel for the accused that, in view of the usual practice by all the criminal courts in the offence of present nature, by showing leniency if fine only is imposed by setting aside the sentence of imprisonment, it would meet the ends of justice. On the other hand, learned SPP submits that the way in which the accident has taken place because of the sheer negligence and rash driving of the vehicle by the accused, the trial Court is right in imposing the sentence.
33. The law is very much settled with regard to the imposition of a sentence.
34. In the judgment of Hon'ble Apex Court in review petition (Criminal) No.477 of 2018 in Criminal Appeal No.60/2007 in a case between Jaswinder Singh dead through LRs. Vs. Navjoth Singh Siddhu and others. At paras 25 to 31, the Hon'ble Supreme Court of India has held as under:
"25. We would like to deliberate a little more in detail on the necessity of maintaining 21 a reasonable proportion between the seriousness of the crime and the punishment. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. (Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1).
26. An important aspect to be kept in mind is that any undue sympathy to impose inadequate sentence would do more harm to justice system and undermine the public confidence in the efficacy of law. The society can not long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, it is the duty of every court to 22 award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed [Sumer Singh v. Surajbhan Sing (2014) 7 SCC 323]. It has, thus, been observed that the punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated [Rajiv v. State of Rajasthan (1996) 2 SCC 175)]
27. A three Judges Bench of this Court in State of Karnataka v.Krishnappa [(2000) 4 SCC 75] while discussing the purpose of imposition of adequate sentence opined in para 18 that ".....Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."
28. The sentencing philosophy for an offence has a social goal that the sentence has to be based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric [Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77].
23While opportunity to reform has to be kept in mind, the principle of proportionality also has to be equally kept in mind.
29. Criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context and, thus, victim's rights have to be equally protected [Rattiram v. State of M.P. (2012) 4 SCC 516]. It would be useful to rely on the observations of this Court in Gopal Singh v. State of Uttarakhand [(2013) 7 SCC 545] that just punishment is the collective cry of the society and while collective cry has to be kept uppermost in mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. Thus, the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. No doubt there cannot be a straitjacket formula nor a solvable theory in mathematical exactitude. An offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. 24 Similarly, in Alister Anthony Pareira v. State of Maharashtra [AIR 2012 SC 3802], the twin objective of the sentencing policy to be kept in mind was emphasised as deterrence and correction and, thus, principle of proportionality in sentencing a convict were held to be well entrenched in the criminal jurisprudence.
30. We may also take note of the recent judgment of this Court decided by a three Judges bench on 18.04.2022 in Jagjeet Singh & Ors. v. Ashish Mishra @ Monu & Anr.
[2022 SCC OnLine SC 453] albeit, on the issue of bail. It emphasised the victim's right to be heard. What is relevant for us to note is that the victim being the de facto sufferer of a crime had no participation in the adjudicatory process. The current ethos of criminal justice dispensation to prevent and punish crime had surreptitiously turned its back on the victim. No doubt in the present case at every stage the victim has been heard and the present application is also by the victim. The near and dear ones whether as guardians or legal heirs are required to be treated as victims. It was, thus, observed in para 23 as under:
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"23. It cannot be gainsaid that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the Cr.P.C. The presence of 'State' in the proceedings, therefore, does not tantamount to according a hearing to a 'victim' of the crime."
31. In the similar vein in Criminal Appeal No.579/2022 titled State of Rajasthan v. Banwari Lal & Anr. [Decided on 08.04.2022], this Court has again frowned upon the tendency of courts to reduce the sentence to the period already undergone. An earlier judgment of this Court in Soman v. State of Kerala [(2013) 11 SCC 382] was referred to, more specifically para 27, which reads as under:
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"27.1. Courts ought to base sentencing decisions on various different rationales
-- most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be
commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even 27 though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
35. In view of the aforesaid dictum of law with regard to sentencing as per our criminal jurisprudence with a passage of time emphasis has to be laid on victimology, which fundamentally is a perception of a trial from the view point of the criminal as well as victim. The protection of Society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing sentence. Punishments are awarded not because of the fact that it has to be an eye for eye or a tooth for a tooth rather having its due impact on the Society. There are no mitigating circumstances except the age of the accused as well as age of this case being filed against the accused. There is a aggravated culpability attributed against the accused and because of the same, the inmates of the offending vehicle suffered both grievous and simple 28 injuries. No doubt long period having been lapsed by the time this revision is being decided but it cannot be a ground to award the punishment which was disproportionate and inadequate. The words of justice Benjamin Cardazo in Snyder v. Massachuttes2 bring out that "Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."
36. The germane facts for sentencing warrants to impose a sentence as prescribed under IPC. But, however the State has not preferred any appeal for enhancement of sentence. In view of the same, whatever the sentence that was imposed by the learned trial Court is to be affirmed and the said sentence is being confirmed by the first Appellate Court. Therefore, the revision petition so filed by the petitioner lacks merit and is liable to be dismissed by confirming the judgment of conviction and sentence 2 [291 US 97 (1934)] 29 passed by the trial Court and affirmed by the first Appellate Court.
37. Resultantly, the following order is passed:
ORDER The Criminal Revision Petition filed by the petitioner under Section 397 of Cr.PC is dismissed.
The judgment of conviction and sentence passed in CC No.1523/2013 dated 5.1.2017 by I Addl.Civil Judge and JMFC, Kalaburagi confirmed by the III Additional District and Sessions Judge, Kalaburagi in Criminal Appeal No.7/2017 are confirmed.
Bail Bond executed by accused stands cancelled.
Accused to surrender before the trial Court forthwith to undergo sentence and shall deposit the fine, if not deposited.
Trial Court shall take steps to secure his presence and commit him to custody.30
Intimate the 1st Appellate Court and Trial Court regarding dismissal of the Revision Petition forthwith by mail.
Send back the trial court records and the first appellate court records forthwith with a copy of the order passed in this revision.
SD/-
JUDGE sn/Sk