Karnataka High Court
Chandsab S/O Makabulsab Mahant vs State Of Karnataka, on 28 September, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.R.P.NO.2318/2011
BETWEEN
CHANDSAB S/O.MAKABULSAB MAHANT
AGE: 51 YEARS, OCC: DRIVER,
R/O BARPETGALLI, JAMAKHANDI,
DIST. BAGALKOT.
... PETITIONER
(BY SRI. P. N. HOSAMANE, ADV.,)
AND
STATE OF KARNATAKA,
THROUGH PSI TOWN POLICE STATION,
JAMAKHANDI,
REP. BY SPP HIGH COURT,
DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K UPPAR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGEMENT & ORDER OF CONVICTION & SENTENCE
PASSED BY THE FAST TRACK COURT, JAMAKHANDI IN
CRL.A.NO.108/2010 DATED 21.09.2011 AND BY THE ADDL.
CIVIL JUDGE & JMFC COURT, JAMAKHANDI IN
C.C.NO.84/2009, DATED 27.11.2010 FOR THE OFFENCES
P/U/S 279, 337 & 338 OF IPC AND ACQUIT THE PETITIONER
FOR THE ALLEGED OFFENCE.
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THIS CRIMINAL REVISION PETITION IS COMING ON
FOR HEARING, THIS DAY, COURT PASSED THE FOLLOWING:
ORDER
This revision petition is filed by the accused/petitioner being aggrieved by the order of
conviction passed by the Additional Civil Judge & JMFC, Jamakhandi, dated 27.11.2010 in Criminal Case No.84/2009, which is confirmed by the First Appellate Court passed by Fast Track Court, Jamkhandi, dated 21.09.2011 in Criminal Appeal No.108/2010.
2. The brief facts, which are necessary for disposal of the petition are as under:
A first information was lodged with the Jamakhandi Town P.S. stating that on 15.08.2008, at about 9.15 a.m. near Basaveshwara pre university college of Jamkhandi town on public road leading from Ramtheertha towards Taluka stadium, the accused being the driver of the Tata ACE vehicle bearing No.KA-29/8396 along with the complainant and others who are the teachers and -3- students of Sri. Gurukumareshwar Primary Kannada Medium school were traveling in the vehicle to attend independent function held at Polo ground/taluka stadium. It is further contended that the driver of the TATA ACE (hereinafter referred to as accused) drove the vehicle in a rash and negligent manner and dashed against two students who are waking on the road and further dashed against the bridge situated at gate of Kadapatti Basaveshwar Junior college, resulting in sustaining injuries. Vehicle also toppled down and fell on the road and inmates of the vehicle also sustained injuries and were shifted to Government hospital for treatment.
3. Based on the said first information, Jamkhandi police registered a case in crime No.108/200 and after due investigation, police have filed charge sheet against the accused for the offence under Section 279, 337 and 338 of the IPC.
4. Learned Magistrate at Jamakhandi took cognizance of the offences and secured the presence of the -4- accused and plea was recorded. Accused claimed for trial. As such, trial was held.
5. In the trial court, prosecution examined 22 witnesses which includes the complainant and injured persons, panch witnesses and investigation officers. Prosecution also relied on 34 documents, which were exhibited and marked as Ex.P1 to P34. On behalf of the defence, portion of the statement of CW19 was marked as Ex.D1.
6. Learned Magistrate thereafter recorded accused statement and after hearing the parties, convicted the accused for the offences punishable under sections 279, 337 and 338 of IPC and passed an order of simple imprisonment for three months for the offence under section 279 and 337 of IPC, and imprisonment for six months for the offence under section 338 of IPC with fine of Rs.1,000/-, 500/-and Rs.1,000 respectively with default sentence.
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7. Being aggrieved by the judgment of the learned Magistrate, accused preferred a criminal appeal to the District Court in Cril.A.No.108/2010.
8. The First Appellate Court secured trial court records and after hearing the parties and considering the material on record, dismissed the appeal of the accused confirming the conviction order. Being aggrieved by the judgment of the trial court as well as the First Appellate Court, accused has preferred this criminal revision petition.
9. Learned counsel for the revision petitioner vehemently contended that both the courts have erred in law in convicting the accused. He further contended that there was no negligence on the part of the accused and order passed by the learned Magistrate is erroneous. He further contended that accused tried his level best to avoid the accident, but, the incident has occurred beyond the control of the accused.
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10. He further argued that the trial court instead of convicting the accused should have taken into consideration the provisions of probation of Offenders Act and sought for grant of probation before this court.
11. Per contra, learned High Court Government Pleader representing the State supported the impugned judgment. He pointed out that accused did not lead any defence evidence to show that he had exercised all possible caution to avoid the accident and as such, the impugned judgment is perfectly valid and sought for dismissal of the appeal.
12. In view of the rival contentions of the parties, the following points would arise for consideration:
1. Whether the finding recorded by the learned Magistrate confirmed by the First Appellate Court that revision petitioner is guilty of the offences under Sections 279, 337, 338 of IPC is suffering from legal infirmities?-7-
2. Whether the sentence passed by the learned Magistrate, confirmed by the First Appellate Court is excessive?
13. This courts answers point No.1 in negative and 2 in the partly affirmative for the following :
REASONS
14. The material available on record especially the evidence of the injured witnesses clearly establish that the driver of the TATA ACE (accused) drove the vehicle in a rash and negligent manner resulting in the accident. Admittedly, the injured witnesses did not possess any previous enmity or animosity against the accused. Therefore, their testimony is believed by the learned Magistrate while passing the impugned judgment wherein accused has been convicted for the offences under Sections 279, 337 and 338 of IPC.
15. Learned Judge in the First Appellate Court also concurred with the finding recorded by the learned Magistrate after considering the entire material on record. -8-
16. Thus, this court finds that finding recorded by the both the courts that accused is guilty of offences under Sections 279, 337 and 338 of IPC is based on well founded reasons and does not require any interference that too in the revisional jurisdiction. Accordingly, point No.1 is answered.
17. This takes us to the next question as to awarding adequate sentence for the established guilt of the accused.
18. Sri. P.N. Hosamane, learned counsel for the revision petitioner argued that after the trial court recorded a finding of culpability of the revision petitioner for the charges 279, 337 and 338 of IPC, while passing the sentence should have taken into account of provisions of Probation of Offenders Act.
19. On perusal of the impugned judgment of the learned Magistrate, this court finds sufficient force in the said submission on behalf of revision petitioner. -9-
20. Learned High Court Government Pleader also is unable to point out anything from the records that learned Magistrate exercised his discretion while passing appropriate sentence having regard to the nature of offences.
21. The First Appellate Court also did not take into consideration this aspect of the matter except making a stray remark in its judgment to the effect that sentence awarded by the trial court is reasonable sentence. What exactly was the reasonable sentence in the given set of facts and circumstances is not bestowed by the First Appellate Court.
22. In fact grant of probation is a duty cast on the sentencing in court before passing the sentence of imprisonment, especially when the offences are minor in nature and the offender is a first time offender. Such a course have not been adopted in the case on hand by both the courts.
23. On perusal of material on record, even though accused did not lead any defence evidence, it was the duty -10- of the sentencing court to find out the feasibility of granting probation to the accused. No discussion is forthcoming in this regard in the judgment of the trial court. The First Appellate Court also did not bestow proper attention in this regard though argued on behalf of the accused.
24. The incident is of the year 2008 and confirmed the appeal in the year 2011 and this revision petition itself is pending from the year 2011 for disposal. As such, this court finds that passing an order of remand of the matter for consideration as to grant of probation at this distance of time is futile exercise. Moreover, for the offences under Sections 279, 337 and 338 of IPC, the discretion is granted to the sentencing court to order imprisonment or fine, which suggests that there is no compulsion for the sentencing court that in every case the accused must be sentenced to imprisonment.
25. Learned Magistrate has ordered a fine of Rs.1,000/- under Section 279 of IPC, Rs.500/- under Section 337 of IPC, Rs.1,000/- under Section 338 of IPC, -11- enhanced the fine amount from the above Sections and set aside the sentence of imprisonment for six months as ordered by the learned Magistrate would meet the ends of justice in the case on hand. Accordingly, I pass the following:
ORDER Revision petition is allowed in part. Conviction of accused under Sections 279, 337, 338 of IPC is maintained. However, the order of imprisonment as is ordered by the learned Magistrate confirmed by the learned First Appellate Court is set aside by enhancing the fine amount to Rs.5,000/- for the offence under Section 279 of IPC, Rs.5,000/- for the offence under Section 337 of IPC and Rs.5,000/- for the offence under Section 338 of IPC. Enhanced fine amount to be paid on or before 10.11.2020.
Ordered accordingly.
Sd/-
JUDGE MNS/-