Karnataka High Court
Sri Govindaraju vs Union Of India By Inspector on 18 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2023:KHC:46143
CRL.RP No. 902 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION NO. 902 OF 2018 (397)
Between:
Sri. Govindaraju
S/o Sunki Venkatappa,
Aged About 48 Years
Driver,
R/At Madakaripura Village
Chitradurga Taluk
Pin Code No.577501.
...Petitioner
(By Sri. A. Vijay Kumar Bhat, Advocate)
And:
Union Of India by Inspector,
Digitally
signed by
R.P.F. South, Western Railway
VEENA
KUMARI B
Chitradurga
Location:
High Court
Rep By State Public Prosecutor
of Karnataka High Court Of Karnataka
Bangalore.560001.
...Respondent
(By Sri.P. Thejesh, High Court Govt. Pleader)
***
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
with the following prayer:
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CRL.RP No. 902 of 2018
"Wherefore, the petitioner in the above case most
humbly prays that this Hon'ble Court be pleased to call for the
records and set aside the judgment and conviction order in
C.C.No.2100/2010 passed by the I Additional Civil Judge and
J.M.F.C. at Chitradurga dated 22-04-2015 and also set aside
the judgment confirmed by the Principal District and Session
Judge at Chitradurga in Crl.Appl.No.20/2015 dated
17.04.2018 for the offences punishable under Sections 159,
160(ii) of Railways Act, and allow the Criminal Revision
Petition by acquitting the petitioner, in the ends of justice."
This Criminal Revision Petition coming on for Final
Hearing, through Physical Hearing/Video Conferencing Hearing
this day, the Court made the following:
ORDER
The present petitioner was accused in C.C.No.2100/2010, in the Court of the learned I Additional Civil Judge and Judicial Magistrate First Class, Chitradurga, (hereinafter for brevity referred to as "the Trial Court"), who, by the judgment of conviction and order on sentence dated 22-04-2015 of the Trial Court, was convicted for the offences punishable under Sections 159 and 160(2) of the Railways Act, 1989 (hereinafter for brevity referred to as "the Railways Act").
Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.20/2015, in the Court of the -3- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 learned Principal District and Sessions Judge at Chitradurga, (hereinafter for brevity referred to as the "the Sessions Judge's Court"), which, after hearing both side, by confirming the order of conviction, modified the order on sentence passed by the Trial Court, ordering the accused to undergo simple imprisonment for a period of six months for the offence punishable under Section 160(2) of the Railways Act, and to pay a fine of `10,000/- for the offence punishable under Section 159 of the Railways Act. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of thirty days. It is challenging the judgments passed by both the Trial Court as well the Sessions Judge's Court, the accused/revision petitioner has preferred the present revision petition.
2. The summary of the case of the prosecution in the Trial Court was that, on the date 21-03-2010, at about 4:00 a.m. in between Chitradurga and Amruthapura Railway Stations, at K.M.No.31/9-32/0, at NTP side Level -4- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Crossing Gate No.20, when PW-3(CW-3) -Sri. Suresh Naik, being a Gateman, was waiting for the arrival of a Goods Train, by closing the said Railway Level Crossing Gate, the accused, being the driver of a Motor vehicle Lorry bearing Registration No.KA-16/A-5270, came from Holalkere side on National Highway-13 (NH-13) bypass road and dashed to the said NTP side Railway Level Crossing Gate, due to which, the lifting barrier boom got completely damaged. The driver of the Lorry, on the pretext that he would park the Lorry on the side of the road, ran away from the place along with the vehicle. Alleging the same, PW-3 lodged a complaint as per Ex.P-12. The same was registered in Crime No.37/2010. The investigation was held and a case came to be registered against the accused (the present petitioner) for the offences punishable under Sections 159 and 160(2) of the Railways Act.
3. Upon service of summons, the accused appeared in the Trial Court and contested the matter through his counsel. The accused pleaded not guilty and claimed to be -5- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 tried. As such, in order to prove the alleged guilt against the accused, the prosecution got examined in all ten (10) witnesses from PW-1 to PW-10 and got marked documents from Exs.P-1 to P-23(a). However, neither any witness was examined nor any documents were got marked on behalf of the accused.
4. The respondent - Union of India, by Inspector, Western Railway, Chitradurga, is being represented by the learned High Court Government Pleader.
5. The Trial Court and the learned Sessions Judge's Court's records were called for and the same are placed before this Court.
6. Learned counsel for the accused/revision petitioner and learned High Court Government Pleader for the respondent are physically appearing in the Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and learned Sessions Judge's Court's records. -6-
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8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
9. After hearing the learned counsels for the parties, the points that arise for my consideration in this revision petition are:
[i] Whether the prosecution has proved beyond reasonable doubt that, on the date 21-03-2010 at 04:00 hours, at NTP side Railway Level Crossing Gate No.20, K.M.No.31/9-32/0, when the said Railway Level Crossing Gate was closed, to enable the Goods Train bearing No.EBCN from Chitradurga to Amruthapura to pass through, the accused, despite instruction given by the Gateman to stop the vehicle and not to proceed, on the pretext of parking the Lorry bearing Registration No.KA-16/A-5270, which he was driving by the side of the road, did not heed to the direction of the Gateman and drove away from the place along with the vehicle and thereby has committed an offence punishable under Section 159 of the Railways Act, 1989?
[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused drove the -7- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Lorry bearing Registration No. KA-16/A-5270 from Holalkere side on NH-13 bypass road and dashed to the NTP side Level Crossing Gate No.20, resulting in causing damage to the said Gate and also the Lifting Barrier Boom and thereby has committed an offence punishable under Section 160 (2) of the Railways Act, 1989?
[iii] Whether the finding recorded by the Trial Court as well as the Sessions Judge's Court that, the accused has committed the alleged offences punishable under Sections 159 and 160(2) of the Railways Act, 1989, warrants any interference at the hands of this Court?
10. In order to prove the alleged guilt against the accused, the prosecution got examined ten witnesses from PW-1 to PW-10.
Among them, PW-3 (CW-3) - Suresh Naik, the Railway Gateman is the material and important witness. The said witness, in his examination-in-chief, has stated that, he was on duty as a Railway Gateman at Level -8- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Crossing (LC) Gate No.20 on the date 20-03-2010 from 7:00 p.m. till 7:00 a.m. on the date 21-03-2010. In the early morning at about 04:00 hours, upon the instruction given by the Station Master that the Level Crossing Gate is to be closed, since a Goods Train is passing through the said Level Crossing, he, after closing the Level Crossing Gate and holding a Green lamp with him, was waiting for the passing of the Goods Train. At that time, a Lorry coming in a speed came and dashed to the Lifting Barrier Boom of the Gate. He asked the driver to park the Lorry on the side and to come. On the pretext that he would park the Lorry on the side of the road, the driver (accused) of the Lorry took the Lorry in reverse direction for some time and drove away from the place along with the Lorry. The Registration number of the said Lorry was No.KA-16/A-5270.
The witness (PW-3) has further stated that, immediately thereafter, he informed the same to the Station Master and thereafter the Railway Police came to the spot and enquired, with whom, he lodged a complaint, -9- NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 which the witness identified as Ex.P-12 and his signature therein at Ex.P-12(a). He also stated that the Police drew a panchanama of the spot as per Ex.P-1, which he has identified. The witness stated that he could identify the Lorry which caused the accident, damaging the NTP side Gate and also the lifting barrier boom. He has identified the alleged Lorry said to have caused the damage by dashing to the Gate and the damaged Level Crossing Gate at Exs.P-4 to P-9. Stating that he would identify the driver of the offending Lorry, the witness identified him in the Court. The witness stated that, the Police had recorded his statement which he has identified at Ex.P-13.
The witness (PW-3) was subjected to a detailed cross-examination from the accused' side, wherein he gave some more details about the incident. Though it was suggested to him that there would be darkness at the time of the accident, i.e. at 4:00 a.m., the witness stated that, there were two lights affixed on both the sides of the railway Gate. He admitted a suggestion that, since the said Gate was in the National Highway No.13, there will be
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 heavy traffic of the vehicles on the road. He admitted that on the said day, when the Gate was closed, there were several other Lorries in the spot. He denied a suggestion that, he could not notice the Registration number of the Lorry and stated that he had a Torch in his hand. He did not admit a suggestion that, due to improper handling of the lever of the Gate, it got damaged. He also denied a suggestion that the Lorry has not caused any accident and the cause of accident was not the driver of the Lorry or the accused.
11. After the evidence of PW-3, the next witness whom the prosecution has examined, in order to prove the alleged incident is, PW-6 (CW-7) - Sri. Mohandas, the Station Manager of Chitradurga Railway Station. The said witness has stated that, while he was working as a Station Manager of Chitradurga Railway Station, his duty was from 7:00 p.m. on the date 20-03-2010 till 7:00 a.m. on the date 21-03-2010. In the morning at about 3:55 a.m. to 4:00 a.m., he instructed CW-3 (PW-3) - Suresh Naik, the
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Gateman, who was on duty at Amruthapura-Chitradurga LC Gate No.20, to close the said Gate to enable the passing of a Goods Train No.EBCN. The witness stated that, at about 4:10 a.m., the said CW-3 telephoned to him and stated that the Lorry bearing Registration No.KA- 16/A-5270 dashed to the LC Gate No.20 and the said Gate got damaged.
The witness stated that in that regard, he sent messages to CW-1, CW-9 and other officers of his Department. Thereafter CW-1 and CW-9 proceeded to the spot as stated to them by him over the phone. Stating that in that regard, he has given a statement before the Police, the witness has identified the same at Ex.P-21.
In his cross-examination, though some details were elicited from this witness about the arrival and departure timings of the Goods Train on the said day, however, the witness stated that, he could not remember the time at which the Goods Train had arrived on that day.
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12. The third witness in the series whom the prosecution examined about the visiting of the spot is, PW-1 (CW-2) - N. Kotrappa, a Constable at the Railway Protection Force (R.P.F.). The said witness in his evidence has stated that, while he was in the Railway Protection Force, as a Police Constable, based upon the information received that on the date 21-03-2010, a Lorry bearing Registration No.KA-16/A-5270 being driven by its driver on NH-13, has dashed to a closed Gate at Level Crossing Gate No.20, he, at about 5:00 a.m., accompanied by CW-1 (PW-5) - Ashok Kumar - the Assistant Sub- Inspector, visited the spot. They saw that the Railway Level Crossing Gate and the Lifting Barrier Boom were damaged. PW-5 received a complaint from CW-3 (PW-3) in that regard. Accordingly, scene of offence panchanama was also drawn in the same morning between 5:15 am and 6:15 a.m., as per Ex.P-1, for which he has subscribed his signature.
PW-1 (CW-2) has further stated that, on the date 26-07-2010, based upon a credible information that the
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 offending Lorry was coming from Davanagere side towards Chitradurga, he, joined by CW-1 (PW-5) traced the said Lorry at about 12:00 in the afternoon at Level Crossing Gate No.21 between Chitradurga and Balenahalli Railway Stations on NH-4 and drew a seizure panchanama of the said vehicle. Immediately thereafter, in the presence of CW-5 and CW-6, they seized the said Lorry. Stating so, the witness has identified the said Mahazar at Ex.P-2 and his signature therein at Ex.P-2(a).
The witness also stated that the accused was also arrested on the spot and his statement was recorded which he has identified at Ex.P-3. Thereafter the accused was brought to the Police Station. The witness has identified the accused in the Court and has identified the seized Lorry through its photographs from Exs.P-4 to P-6. He has also identified the photographs from Exs.P-7 to P-9 stating that they are the photographs of the damaged railway Gate and Lifting Barrier Boom. He also stated that he has given his statement before CW-1 as per Ex.P-10 and his signature therein at Ex.P-10(a).
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 In his cross-examination from the accused' side, he stated that, no other articles were seized from the spot, when the scene of offence panchanama as per Ex.P-1 was drawn. He admitted a suggestion that there will be traffic of large number of vehicles on National Highway No.4. He denied that the panchas to Ex.P-2 were not the localites. He also denied that CW-5 has leased his Lorry to the Railway Department. He denied the denial suggestions made to him in his cross-examination.
13. PW-2 (CW-5) - Sri. Syed Jaffer and PW-7(CW-6)
- Babu have spoken that, they were the panchas for the seizure of the Lorry said to be involved in the present case under a seizure panchanama, as per Ex.P-2. They have stated that, it was in their presence, the Lorry which they have identified in the photographs from Exs.P-4 to P-6 was seized. After seizing the Lorry, the driver was also taken by the Police with them to their Station. Stating so, both the witnesses have identified their signatures under the panchanama at Ex.P-2, the Lorry in the photographs at
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Exs.P-4 to P-6 and the accused in the Court. They have further stated that, they have given their statements to the Police.
PW-2 in his cross-examination admitted a suggestion as true that, by the time they went to the place, the Police had already stopped the Lorry and that he does not know who else have signed to the said panchanama. By making the said suggestion to the witness, the accused has admitted about the Police seizing a Lorry and PW-2 being a pancha to the said seizure panchanama.
The denial suggestions made to PW-2 and PW-7 from the accused' side in their cross-examinations were not admitted as true by them.
14. PW-8 (CW-7) - Aravind Kumar is the Senior Section Engineer, who, in his evidence, has stated that, on the date 21-03-2010, at about 4:20 a.m., CW-7 - the Station Manager informed him over phone about a Lorry dashing against the Level Crossing Gate No.20. On receiving the said information, he, joined by his staff,
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 proceeded to the said place at about 4:40 a.m. They noticed the damage caused to the NTP side lifting barrier boom Gate. He prepared a sketch in the spot and submitted the same to the R.P.F., along with his report. He also identified the report at Ex.P-15 and his signature therein at Ex.P-15(b). He has also identified the sketch at Ex.P-16 and his signature therein at Ex.P-16(b).
In his cross-examination from the accused' side, he clarified stating that the two lines shown on either side of the Level Crossing Gate in the sketch were the road humps, however, he could not give the exact distance between the railway Gate and the humps. He admitted that because of the humps on either side of the road near the railway Gate, the vehicles move slowly. He denied a suggestion that, in case the wire of the railway lifting Gate is cut while lifting the gate, the boom barrier may get damaged. He denied the denial suggestions made to him.
15. PW-9 (CW-8) - Suresh, though has stated that the Lorry bearing Registration No.KA-16/A-5270 belongs
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 to him, however, he expressed his ignorance about the accused being involved in the accident in question. He stated that he got the said Lorry released from the R.P.F Station on the date 05-08-2010 as per the order of the Court in his favour. He also stated that the photographs of the said Lorry were taken. He has identified the document at Ex.P-23 and his signature therein at Ex.P-23(a). Since he did not speak about the role of the accused in the alleged incident, he was permitted to be treated as hostile and the prosecution was permitted to cross-examine him.
In his cross-examination from the prosecution side, he denied a suggestion that he has stated in his statement that the accused being the driver of the Lorry has dashed the said Lorry to the Level Crossing Gate No.20 and that he has given a statement to that effect as per Ex.P-23. This witness was not cross-examined from the accused' side.
16. PW-10 (CW-10) - Mahammad - the Office Superintendent of the Regional Transport Office at
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Chitradurga has stated that, at the request of the complainant Police, he has given the 'B' extract of the Motor vehicle Lorry bearing Registration No.KA-16/A-5270 as per Ex.P-18. He stated that one Sri. H.R. Suresh (PW-9) is the owner of the said Lorry.
17. In the light of the above evidence, the main argument of the learned counsel for the revision petitioner was that, though the incident of Lorry dashing to the Railway Level Crossing Gate No.20 and causing damage to it is not denied and not in dispute, however, the petitioner was not the driver of the said Lorry bearing Registration No.KA-16/A-5270, at the time of the alleged accident.
Learned counsel further submitted that, PW-3 - the sole eye witness has not stated that, he has seen the accused and has identified him. As such, there is no evidence to prove that, it was the accused and accused alone who was driving the Lorry at the time of the accident.
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Learned counsel also submitted that when there were road humps on both side of the Railway Level Crossing Gate, it was highly impossible for any vehicle to go in a high speed and dash to the railway Gate. As such also, the prosecution case that the accused dashed the Lorry to the railway Gate is suspicious one and cannot be believed.
Learned counsel further submitted that if at all this Court comes to a conclusion that the alleged guilt against the accused stands established, still, the quantum of sentence ordered against him is on the higher side. As such, the accused be enlarged by giving him the benefit under the provisions of the Probation of Offender's Act, 1958, (hereinafter for brevity referred to as "the Probation of Offenders Act"), and if at all the sentence of imprisonment ordered by the learned Sessions Judge's Court is to be modified or reduced by this Court, the same be equated to the duration of imprisonment already undergone by the accused.
In his support, he relied upon three judgment/ orders passed by the Hon'ble Apex Court/co-ordinate
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Bench of this Court, which would be referred at the appropriate stages.
18. Learned High Court Government Pleader for the respondent in his argument submitted that, the incident has occurred at about 04:00 hours near a Railway Level Crossing Gate, as such, no independent witness can be expected to be present at that time, except the railway Gateman, who is PW-3(CW-3). The evidence of PW-3 is clear and cogent. PW-3, apart from stating that he had a Torch in his hand, has also identified the accused in the Court as the driver of the offending vehicle Lorry, as such, it is established that, it was the petitioner and petitioner alone who was driving the Lorry at the time of the accident.
Learned High Court Government Pleader further submitted that, the Trial Court, by itself had awarded very lesser punishment than what is normally expected to be ordered in the matter. Further, in the appeal before the Sessions Judge's Court also, the order on sentence was
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 further modified and reduced by the learned Sessions Judge's Court in Criminal Appeal No.20/2015. As such, the sentence already ordered being very much on the lower side, the question of reducing it further or enlarging the accused under the provisions of the Probation of Offender's Act, does not arise.
19. PW-3 (CW-3) is the only eye witness to the alleged incident. Though the incident is said to have taken place at the Railway Level Crossing Gate No.20, but it was after midnight at about 04:00 hours. As such, any third party independent witness cannot be expected to witness the incident and to give his statement to the complainant Police. Therefore, the evidence led by the prosecution cannot be brushed aside only on the point that there was no independent witness other than PW-3, whose evidence has come in a normal and trustworthy manner. It is not denied that he was a Gateman on duty at the place of incident and also on the date and time of the incident. It is not denied that the Railway Level Crossing Gate No.20
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 was closed at the time of the accident said to have taken place.
Suggestion made in the cross-examination of PW-3 that, there were already few other Lorries stopped in that place would go to show that, the Gate was closed and the other vehicles were waiting for their turn to move further after the Gate was opened.
The evidence of PW-3 and PW-6 that the Goods Train No.EBCN was due to pass through the said Level Crossing Gate No.20 is not denied in their respective cross- examinations.
PW-3 has clearly and categorically stated that the Lorry bearing Registration No.KA-16/A-5270 being driven by its driver from Holalkere side on NH-13 bypass road, dashed to the closed Gate causing damage to the lifting boom barrier. The witness has stated that he asked the driver of the Lorry to park the Lorry on the side of the road. At his asking, the driver of the Lorry, stating that he would park the Lorry on the side of the road, however, taking the Lorry in the reverse direction, drove away the
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Lorry from the place. The said evidence has not been specifically denied in his cross-examination.
The complaint given by PW-3 as a complainant which is at Ex.P-12 goes to show that, the complainant has stated that, the driver of the Lorry told him that he would park the Lorry on the side, however, he along with the Lorry, taking the Lorry in the reverse direction, drove away from the place along with the vehicle. The said statement made at the earliest point of time in the complaint at Ex.P-12 by none else than the sole eye witness (PW-3) shows that, the complainant as PW-3, has not only seen the driver who was driving the Lorry, but also spoken to him and the driver also replied to the Gate man (PW-3) that he would park the Lorry on the side. Thus, it is not only the Lorry that the witness (PW-3) has seen but also its driver and had sufficient time and light to see him and talk to him. It is thereafter the very same Gateman (PW-3) has identified the accused in the Court as the driver of the said offending Lorry. In his evidence, he has also stated that there were two lights affixed on both
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 sides of the Gate and at the time of the accident, he had a Torch in his hand and in the light of the same, he has even seen the Registration number of the offending Lorry.
Thus, the Lorry, after dashing to the railway Level Crossing Gate, did not continue in the same direction immediately, because, though the Gate got damaged, but it was closed. As such, the Lorry had to be there for some time till its driver took it in the reverse direction and drove away from the place. Since it is during the said interregnum period, the Gateman (PW-3) has not only seen the Lorry but also its driver and talked to him and PW-3 was also holding a Torch in his hand, it is clearly evident that he has seen the driver, as such, he could identify him. Accordingly, he has identified the accused as the driver of the offending Lorry in the Court.
Therefore, the argument of the learned counsel for the petitioner that the petitioner was not the driver of the Lorry and that PW-3 has not identified the driver of the Lorry, is not acceptable.
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20. The evidence of PW-3 would clearly go to show that, the driver of the Lorry without even heeding to his request to stop, did not stop there but dashed to the Level Crossing Gate and even after dashing also, the driver did not stop the Lorry as told by the witness, but on the pretext of parking the Lorry on the side, drove away the said Lorry.
21. Though the learned counsel for the petitioner submitted that, due to the presence of humps on both sides of the road near the Level Crossing Gate, it was not possible for any vehicle to come in high speed, but neither Section 159 nor Section 160(2) of the Railways Act mandates or requires as an essential ingredient that the vehicle must be in a high speed to cause the offence punishable under those two Sections. Suffice, if it is established that the driver of the offending Lorry did not obey the direction given by a Railway official (PW-3- Gateman) who was taking care of the railway Level
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Crossing Gate No.20 and that the act of the accused has caused damage to the railway property.
22. In the instant case, the evidence of PW-3, which is trustworthy and believable, would clearly go to show that, the accused, being the driver of the Lorry bearing Registration No.KA-16/A-5270 has not only dashed to the Railway Level Crossing Gate No.20, but even thereafter did not heed to the instruction of the Gateman (PW-3) to stop the Lorry, but on the pretext of parking the Lorry on the side of the road, drove away from the place along with the vehicle.
23. The said evidence of PW-3 stands corroborated by the evidence of PW-6 - the Station Manager, who, in his evidence, has stated that, by 4:10 a.m., i.e. immediately after the incident, he was informed over phone by none else than the very same Gateman (PW-3) about the incident. In turn, the said PW-6 has informed PW-8 - Senior Section Engineer about the incident, who along with his team rushed to the spot. Simultaneously,
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 the Railway Police i.e. PW-1 and PW-2 also rushed to the spot. All these team were there in the spot between 4:40 a.m. and 5:00 a.m., which is within an hour of the occurrence of the accident. Thus, had PW-3 not seen the accident, the manner of occurrence of the accident and also the accused, he would not have given the details about the accident to PW-6 - the Station Master immediately and the said Station Master would not have retransmitted the said message or information to PW-8 and the railway Police without wasting any time.
Thus, all these links of the chain of circumstance would only go to show that, PW-3, who was on duty as a Gateman at the time of the accident was present at the place of accident and has seen the occurrence of the accident and the manner of occurrence of the accident including the accused being the driver of the offending Lorry bearing Registration No.KA-16/A-5270.
Thus, even though PW-3 is an official witness and a lone eye witness to the incident, still, for the analysis made above, he was the only one expected to be there
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 and his presence there also can be believed as a Gateman near the Railway Level Crossing where the accident took place. As such, the presence of any independent witness is not required in the case on hand to believe the evidence of PW-3, followed by the evidence of PW-6, and PW-8 and thereafter by the evidence of PW-1 and PW-5.
Thus, the evidence of these witnesses would go to show only one point, that it was the accused and accused alone who drove the Lorry bearing Registration No.KA- 16/A-5270 at the railway Level Crossing Gate No.20, on the date 21-03-2010 at 4:00 a.m. and did not stop his Lorry though instructed by PW-3, rather after causing damage to the railway Gate and lifting barrier boom, drove away from the place along with the Lorry, on the pretext of parking the Lorry on the side of the road.
24. The involvement of the said Lorry is further fortified by the evidence of PW-9 - Suresh, who is the owner of the Lorry. He has not stated that his Lorry was not involved in the alleged accident. He has only stated
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 that he got the said Lorry released by the order of the Court from the Railway Police.
Further, the evidence of PW-10 shows that the said Lorry stands in the name of PW-9. Thus, each of the link of the chain has been fully and clearly established and proved by the prosecution. Thus, the accused, by not heeding to the instruction of PW-3 the Gateman to stop the Lorry, did not stop the Lorry after dashing to the Level Crossing Gate but later drove away from the place along with the vehicle. Thus, the accused has committed the offence punishable under Section 159 of the Railways Act.
25. Simultaneously, by dashing to the Railway Gate, he has caused damage to the Lifting Barrier Boom of the Level Crossing Gate. The evidence of PW-8 - the Senior Section Engineer shows that immediately after hearing about the incident, he rushed to the place with his team and reached there at 4:40 a.m. and inspected the spot. He inspected the Gate and noticed that it was damaged. He has prepared a sketch as per Ex.P-16. He has also
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 given a report assessing the quantum of the damage caused to the railway property in terms of money, which, according to him, is a sum of `29,621/-. He has marked the said report at Ex.P-15. The correctness of the assessment of the damage has not been specifically denied in his cross-examination.
Further, the act of the accused in dashing to the Railway Level Crossing Gate has caused damage to the lifting barrier set up in that Level Crossing. Thus, it is also established that the accused has committed the offence punishable under Section 160(2) of the Railways Act.
26. It is after appreciating the evidence placed before them in their proper perspective, since both the Trial Court as well as the Sessions Judge's Court have rightly held the accused guilty of the offences punishable under Sections 159 and 160(2) of the Railways Act, I do not find any reason to interfere in the impugned judgment of conviction passed by both the Courts.
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018
27. Learned counsel for the revision petitioner submitted that, the accused ought to have been given the benefit under the provisions of the Probation of Offenders Act.
In his support, he relied upon an order of the co- ordinate Bench of this Court passed on the date 26-08-2019 in CRIMINAL REVISION PETITION NO. 452 OF 2015 in the case of Rafeek Vs. Railway Protection Force, Mysuru, wherein, for a similar offence of dashing to a level crossing Gate by a Tempo Trax Cruiser vehicle and causing damage to an extent of `31,447/-, this Court in the revision, though had confirmed the conviction of the accused, but was pleased to grant the benefit to the accused, under Section 4 of the Probation of Offenders Act.
28. Admittedly, no such submission was ever made from the accused' side, either in the Trial Court or before the learned Sessions Judge's Court. However, still, considering the facts and circumstances of the case, the
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 act of the accused has caused loss to the national property, though incidentally no harm or injury is caused to the life of any individual, however, loss to the national property cannot be ignored.
When even as suggested to PW-3 in his cross- examination that, there were other Lorries standing at the Level Crossing Gate waiting for opening of the Gate, however, the accused did not stop his Lorry, rather, he dashed to the Gate. Further, even after dashing to the level crossing gate, the accused, though was asked to park the lorry by the side, stating to PW-3 that he would park the Lorry on the side, drove away from the place along with the vehicle.
Under the said circumstance, I am of the view that the accused does not deserve to be enlarged by giving the benefit under the provisions of the Probation of Offenders Act.
29. Learned counsel for the revision petitioner also submitted that for the nature of guilt proved against the accused, the quantum of sentence ordered is on the higher side.
30. For the offence punishable under Section 159 of the Railways Act, the punishment prescribed is
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 imprisonment for a term which may extend to one month, or with fine which may extend upto `500/- or with both.
For the offence punishable under Section 160(2) of same Act, the punishment prescribed is imprisonment for a term which may extend to five years.
The Trial Court in the impugned judgment has ordered the accused to pay a fine of a sum of Rs.500/- for the offence punishable under Section 159 of the Railways Act and to undergo simple imprisonment for a period of one year for the offence punishable under Section 160(2) of the Railways Act.
31. Learned counsel for the revision petitioner (accused), in his support, relied upon a judgment of the Hon'ble Apex Court in the case of Nagaraj Vs. Union of India reported in 2019(2) KCCR 1593 (SC) wherein a similar offence involving the breaking of a Level Crossing Gate by the accused while driving the Bus and dashing the same against the Railway Crossing Gate and wherein also the Trial Court, the learned Sessions Judge's Court as well the High Court had upheld the order of conviction, the
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Hon'ble Apex Court, considering the circumstances of the case that the offence in question was not against the society nor involving a moral turpitude nor causing injury or hurt to any human being and also that the incident had taken place thirteen (13) years back, though the order of conviction was upheld, but the sentence was reduced to the period already undergone by the accused.
32. Learned counsel also relied upon a decision of the Co-ordinate bench of this Court in the case of Kallayani Vs. The State of Karnataka in Criminal Revision Petition No.200029/ 2014, wherein the Court, in its order dated 04-03-2015 though had confirmed the conviction of the accused for the offence punishable under Section 160(2) of the Railways Act, but was pleased to modify the sentence of imprisonment and confining it to the period for which the accused had already undergone in Judicial Custody, during the course of investigation. However, it awarded the compensation of a sum of `15,000/- in favour of the Railway Department, payable by the accused and in
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 case of default, to undergo simple imprisonment for a period of three months.
33. In the instant case, on an appeal by the accused, the sentence of one year imprisonment ordered by the Trial Court for the proven guilt under Section 160(2) of the Railways Act, and a fine of `500/- imposed for the proven guilt under Section 159 of the same Act was modified by the Sessions Judge's Court in Criminal Appeal No.20/2015 by reducing the sentence of imprisonment from one year to six months simple imprisonment for the offence punishable under Section 160(2) of the Railways Act and ordered for fine of a sum of `10,000/- for the offence punishable under Section 159 of the Railways Act and in default of payment of fine, to undergo simple imprisonment for a further period of thirty days.
34. It can be seen that, under Section 159 of the Railways Act, the maximum fine amount that can be imposed is, a sum of `500/-, whereas the Sessions Judge's
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 Court has ordered the fine of a sum of `10,000/- for the offence punishable under Section 159 of the Railways Act and in default of payment of the said fine amount, to undergo simple imprisonment for a period of thirty days.
35. No doubt, in Kallayani's case (supra), a Co- ordinate Bench of this Court has modified the sentence confining it to only the period of Judicial Custody already undergone by the accused, however, it ordered compensation of a sum of `15,000/- payable by the accused to the Railway Department.
The sentence permissible for the proven guilt under Section 160(2) of the Railways Act is, with imprisonment for a term which may extend to five years. There is no provision to order for fine or fine alone for the proven guilt under Section 160(2) of the Railways Act. When the quantum of sentence can go upto five years, reducing the sentence to only few days of Judicial Custody which the accused is said to have already undergone would be in the facts and circumstances of the case, a mockery of justice.
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 When the legislature has prescribed certain quantum of punishment, we cannot relax it beyond a reasonable limit. Thus, when the sentence of imprisonment can run upto a period of five years, confining it to the length of the period which the accused has undergone in Judicial Custody, in the instant case, and also about which length, the learned counsel for the petitioner is also not quite sure, is not fair and proper, in the facts and circumstances of the case.
36. Our Hon'ble Apex Court, in its prerogative and extraordinary power and taking into consideration the stock of the facts and circumstances of the said case and confining it to the said case since has modified the sentence in Nagaraj's case (supra), this Court, having no proper reason to modify the said sentence or reduce the same in the instant case cannot confine the length of imprisonment for the period which is undergone by the accused in the Judicial Custody. It is not a strange fact that, criminal matters can take years or decades to complete and reach its finality for various reasons.
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37. In the instant case, the incident has taken place more than thirteen years and eight months. However, it cannot be forgotten of the fact that, this is the third Court the accused is approaching for the relief. Under the said circumstance, taking time for the disposal of the matter cannot be the sole criteria to reduce the sentence. As such, I do not find any reason to modify and reduce the sentence of imprisonment which was already reduced by the learned Sessions Judge's Court by confining it to six months from the original order of one year passed by the Trial Court, and further reduce it to the period of imprisonment already undergone by the accused in Judicial Custody.
However, the quantum of fine which was imposed at a sum of `10,000/- for the offence punishable under Section 159 of the Railways Act being exorbitant and not permissible under the said provision, the same requires modification.
Accordingly, I proceed to pass the following:
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 ORDER [i] The Criminal Revision Petition stands allowed in-part;
[ii] The impugned judgment of confirmation of conviction dated 17-04-2018, passed by the learned Principal District and Sessions Judge, at Chitradurga in Criminal Appeal No.20/2015, convicting the present petitioner (accused) for the offences punishable under Sections 159 and 160(2) of the Railways Act, 1989, stands confirmed.
[iii] The modified sentence of imprisonment dated 17-04-2018, passed by the learned Principal District and Sessions Judge at Chitradurga, in Criminal Appeal No.20/2015, reducing the sentence of imprisonment from one year to six months simple imprisonment for the offence punishable
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 under Section 160(2) of the Railways Act, 1989, stands confirmed;
However, imposing of fine of a sum of `10,000/- for the offence punishable under
Section 159 of the Railways Act, 1989 stands modified and reduced to a sum of `500/-. In default of payment of the said fine amount of `500/-, the accused shall undergo simple imprisonment for a further period of seven (7) days;
[iv] Rest of the terms of the impugned judgment dated 17-04-2018, passed by the learned Principal District and Sessions Judge at Chitradurga, in Criminal Appeal No.20/2015 stands confirmed;
[v] The revision petitioner (accused) - Sri. Govindaraju, S/o. Sunku Venkatappa, Aged about 48 years, Driver, R/at Madakaripura village, Chitradurga Taluk, Pin Code 577 501, to surrender before the Trial Court, within
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NC: 2023:KHC:46143 CRL.RP No. 902 of 2018 thirty (30) days from today and to serve the sentence, ordered above.
Registry to transmit a copy of this order to both the Trial Court and also to the learned Sessions Judge's Court along with their respective records immediately, for doing needful in the matter.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 9