Karnataka High Court
Mr Somashekar vs The State Of Karnataka on 19 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:28293
CRL.RP No. 379 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 379 OF 2015
BETWEEN:
MR. SOMASHEKAR
S/O LATE LOKAYYA GOWDA,
AGED ABOUT 36 YEARS,
RESIDING AT PANGALA HOUSE,
DHARMASTHALA VILLAGE,
BELTHANGADY TALUK-574216.
...PETITIONER
(BY SMT. CHAITRA SRIHARI, ADV. FOR
SRI. SUYOG HERELE, ADV.)
AND:
THE STATE OF KARNATAKA
BY BELTHANGADY POLICE, D.K.,
REP. BY ITS STATE PUBLIC PROSECUTOR,
Digitally signed HIGH COURT BUILDINGS,
by NANDINI D HIGH COURT OF KARNATAKA,
Location: High
Court of BANGALORE - 560001.
Karnataka
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP.)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 26.11.2009 PASSED BY THE
C.J. (JR. DN.) AND J.M.F.C., BELTHANGADY, D.K. IN
C.C.NO.1031/2003 AND SET ASIDE THE ORDER DATED
2.3.2015 PASSED BY THE PRL. S.J., MANGALURU, D.K. IN
CRL.A.NO.299/2009 AND SET ASIDE THE ORDER DATED
2.3.2015 PASSED BY THE PRL. S.J., MANGALURU, D.K. IN
CRL.A.NO.2/2010.
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NC: 2024:KHC:28293
CRL.RP No. 379 of 2015
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The matter was heard and is listed for 'dictating orders'.
2. Memo filed by the learned counsel for revision petitioner is taken on record.
3. Memo reads as under:
"The petitioner craves leave of this Hon'ble Court to restrict the challenge to the order dated 02.03.2015 in Crl.A.No.02/2010 in the present criminal revision petition. Wherefore, this Hon'ble Court may kindly be pleased to take the memo on record, in the interest of the justice & equity."
4. Therefore, the present revision petition is restricted to only with regard to enhancement of sentence awarded by the First Appellate Court in Crl.A.No.2/2010.
5. Revision petitioner is the accused who suffered an order of conviction for the offence punishable under -3- NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 Sections 279,337 and 304A of Indian Penal Code (hereinafter referred to as 'IPC' for short) and sentenced as under:
ORDER ON SENTENCE "The accused contend that he is the first offender and he has got his family to be looked after. Hence, prays for leniency.
Considering the same the accused is hereby sentenced to pay fine of Rs.1,000/- for the offence punishable under Section 279 of IPC and also liable to pay fine of Rs.500/- for the offence punishable under Section 337 of IPC.
Further, the accused has to pay fine of Rs.1,000/- and he shall undergo S.I. for a period of three months for the offence punishable under Section 304A of IPC.
Further the accused shall pay fine of Rs.1,000/- for the offence punishable under Section 146 r/w 196 of IMV Act. In all the accused has to pay the fine of Rs.3,500/-. In default to pay fine amount, he shall undergo S.I. for one month."
which was modified by the First Appellate Court in Criminal Appeal No.299/2009 as under:
"The accused shall undergo simple imprisonment for three months, in addition to payment of fine of Rs.1,000/- imposed -4- NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 by the trial court, for offence punishable under section 279 of Indian Penal Code.
The accused shall undergo simple imprisonment for three months, in addition to payment of fine of Rs.500/- imposed by the trial court, for offence punishable under section 337 of Indian Penal Code.
The accused shall undergo simple imprisonment for two years, in addition to payment of fine of Rs.1,000/-imposed by the trial court, for offence punishable under section 304-A of Indian Penal Code.
The order of sentence so far it relates to imposition of fine of Rs.1,000/- for the offence punishable under section 146 read with section 196 of Motor Vehicles Act and also the default of sentence passed in the event of non-payment of fine imposed, remain unchanged.
The substantive sentences shall run concurrently.
The period of detention, if any, undergone by the accused shall be given set off as against the sentence of imprisonment now imposed.
The accused shall surrender before the trial court to undergo sentence and to pay the fine on or before 2-4-2015."-5-
NC: 2024:KHC:28293 CRL.RP No. 379 of 2015
6. Having regard to the scope of this revision petition, this Court perused the material on record in the light of the rival contentions of the parties.
7. Admittedly, the State has also filed appeal challenging the order of the Trial Magistrate granting three months imprisonment for the offence under Section 304A Indian Penal Code.
8. Learned Judge in the First Appellate Court after considering the rival contentions of the parties, enhanced the period of imprisonment from 3 months to two years.
9. While so enhancing the period of imprisonment, the learned Judge of the First Appellate Court took into consideration principles of law enunciated by this Court as well as the Hon'ble Apex Court.
10. Paragraphs Nos.34,35 and 36 of the judgment of First Appellate Court are culled out hereunder for ready reference.
-6-NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 "The Hon'ble Apex Court has given clear directions to the trial Courts and also to the appellate courts to the effect that the act of erring drivers, who cause death of innocent person due to their rash or negligent driving, should not be taken lightly and sentence passed should be deterrent in nature, so that such drivers must always keep in mind that if they dared to be negligent while on wheels, their liberty will not be spared by the court and they would be sentenced to undergo imprisonment. Today we have seen considerable increase in road traffic accidents and resulting in the sufferings to injured and legal representatives of deceased victims. The court of law cannot take a lenient view against an accused who cause death of innocent person due to his rash or negligent driving. Therefore, I am of the opinion that the trial court while imposing sentence on the accused has not taken into consideration the seriousness of the offence committed by him. The sympathy shown to the accused is a misplaced sympathy which will result in grave injustice and send a wrong signal to erring drivers.
35. The Hon'ble Apex Court and also our Hon'ble High Court, time and again have laid down the principles that sentence which the courts should impose on the accused should be proportionate to the offence which he has committed. We cannot forget the principles of sentencing policy, while sentencing the accused. In the present case we have to bear in mind that the rash or negligent driving of the accused has resulted in death of an innocent person and it has cause -7- NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 injury to a young boy aged thirteen years. Therefore, I am of the opinion that the accused should be dealt with strong hands by imposing deterrent sentence by imposing imprisonment for the offences committed.
36. When once the prosecution has proved its onerous task of proving the guilt of accused beyond reasonable doubt, the accused is not entitled for any sympathy while awarding sentence. We have to consider the case from another angle i.e. from the angle of injured and legal representatives of deceased victim. We have to consider the safety of public who pass through the public road. Considering all these aspects, I am of the opinion that the appeal preferred by the State through learned Public Prosecutor deserves to be allowed and at the same time, the appeal preferred by the accused, challenging the impugned judgment of conviction and order of sentence, holds no water and the same is liable to be dismissed. Accordingly I answer the point No.(1) in the negative and point No.(2) in the affirmative."
11. In the case on hand, one A M Hiriyanna Das succumbed to the injuries and Rohan M Dikshith sustained grievous injuries. In other words, the offending auto rickshaw dashed against the pedestrian Hiriyanna and his associate Rohan resulting in the death of Hiriyanna and injury caused to Rohan.
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12. Therefore, conviction of the accused for the offence under Section 279, 227, 304A of IPC and Section 146 r/w 196 of IMV Act are also justified.
13. The learned Judge in the First Appellate Court as referred to supra, is of the opinion that imposition of the imprisonment of three months for the offence under Section 304A of IPC is on the lower side. It is also taken into consideration that there was an injury caused to 13 year old boy. But while considering the appropriate sentence for the offence under Section 304A IPC, the injury caused to the young boy lost its significance as there is a conviction for the offence under Section 337 & 338 of IPC as well.
14. Therefore, in the facts and circumstances of the case, when there was no proper explanation offered by the accused while recording the statement under Section 313 of Cr.P.C., the maximum punishment of two years awarded by the learned Judge in the First Appellate Court -9- NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 cannot be countenanced in law as there was no specific and special reasons are forthcoming on record in the judgment of the learned Judge in the First Appellate Court especially for the death of Hiriyanna Das whereby offence under Section 304A has been committed.
15. What is an appropriate sentence in a given case is always a moot question for the Court to answer especially in the absence of specific guidelines carved out in the statue itself.
16. In this regard, Section 304A of IPC is culled out hereunder for ready reference:
"304A. Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
17. On careful reading of Section 304A IPC, it is seen that the Court has got discretion to impose the
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NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 imprisonment for a period of two years maximum or fine or both. In other words, there is no minimum punishment prescribed in statute for the offence under Section 304A Indian Penal Code.
18. Intention of legislature is clear in carving out such a discretionary power in the aforesaid provision inasmuch as even though there is a death of human being in an unfortunate incidents like road traffic accident, absolutely there is no intention for offender to take away the life of a person.
19. In this regard, gainfully this Court places reliance on the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab vs. Saurabh Bakshi reported in (2015) 5 SCC 182.
20. Relevant paragraphs of the said judgment are culled out herein for ready reference.
14. In this context, we may refer with profit to the decision in Balwinder Singh wherein the High Court had allowed the revision and reduced the
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NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 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 and reproduced two paragraphs which we feel extremely necessary for reproduction : (Balwinder Singh case, 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 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
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NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 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, SCC pp. 84-85 & 87, paras 1 & 13)"
15. In B. Nagabhushanam v. State of Karnataka the 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 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, 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,
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NC: 2024:KHC:28293 CRL.RP No. 379 of 2015 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, SCC pp. 720-21, para 5)"
21. Applying the principles of law enunciated in the aforesaid judgment to the case on hand, this Court is of the considered opinion that awarding the imprisonment to two years to amend by allowing the appeal of the State from three months by the First Appellate Court needs interference by this Court in this revision in the absence of valid and acceptable reasons.
22. As such, by enhancing the fine amount in a sum of Rs.1,00,000/- (Rupees One lakh only) and reducing the imprisonment to six months would meet the ends of justice.
23. Accordingly, the following:
ORDER
1. Revision petition allowed in part.
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NC: 2024:KHC:28293 CRL.RP No. 379 of 2015
2. The period of imprisonment awarded by the Trial Magistrate enhanced by the First Appellate Court for the offence under Section 304A IPC is reduced from two years to six months by enhancing the fine amount to Rs.1,00,000/- (Rupees One lakh only) inclusive of the fine amount ordered by the Trial Magistrate confirmed by the First Appellate Court.
3. Office is directed to return the Trial Court records with a copy of this order to the Trial Court forthwith.
4. Revision petitioner is granted time to surrender before the Trial Court till 15.08.2024.
5. Office of the Trial Court to issue modified conviction warrant accordingly.
Sd/-
JUDGE SSD List No.: 1 Sl No.: 62