Karnataka High Court
Shri.R.Venkatesh vs State By on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24730
CRL.RP No. 751 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 751 OF 2021
BETWEEN:
SHRI.R.VENKATESH
S/O. K. V. RAMANACHARI,
AGED ABOUT 36 YEARS,
DRIVER OF TEMPO BEARING
REG. NO.KA-07-2635,
CHELUR, BAGEPALLI TALUK.
...PETITIONER
(BY SRI.J.C.PRABHAKAR., ADVOCATE FOR
SRI. RAJESH. A., ADVOCATE)
AND:
STATE BY
CHICKBALLAPURA RURAL POLICE,
CHICKBALLAPURA.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH., HCGP FOR RESPONDENT)
Digitally
signed by
YAMUNA K L
Location: High
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
Court of ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
Karnataka HONBLE COURT MAY BE PLEASED SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER DATED 04.07.2020
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, AT CHIKKABALLAPURA IN CRL.A NO.47/2015 AND
ALSO THAT OF THE JUDGMENT AND ORDER DATED
06.06.2015 PASSED IN C.C.NO.63/2010 BY THE PRL.SENIOR
CIVIL JUDGE AND CJM, CHIKKABALLAPURA, CONVICTING
AND SENTENCING THE PETITIONER AND ACQUIT THE
PETITIONER OF THE OFFENCE CONVICTED AND
SENTENCED UNDER SEC.279, 337, 338, 304A OF IPC AND SET
HIM AT LIBERTY.
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CRL.RP No. 751 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Prabhakar for revision petitioner and Sri. Vinay Mahadevaiah, learned High Court Government Pleader for the respondent.
2. Accused who is the driver of a tempo bearing No.KA-07-2635 was charge sheeted for the offence punishable under Sections 279, 337, 338 and 304(A) of IPC after due Trial who was convicted for the aforesaid offences in CC.No.63/2010 and sentenced as under:
"The accused is convicted under section 255(2) Cr.P.C., for the offences punishable under sections 279,337, 338 and 304(A)of IPC.
The accused is sentenced to undergo Simple Imprisonment for a period of six months for the offence punishable under Sec.304(A) of I.P.C.
The accused is hereby sentenced to pay a fine of Rs.500/- for the offence punishable under Sec.279 of I.P.C.-3-
NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 The accused is also sentenced to pay a fine of Rs.500/- for the offence punishable under Sec.337 of I.P.C.
Further the accused is hereby sentenced to pay a fine of Rs.500/- for the offence punishable under Sec.338 I.P.C.
In default, the accused shall undergo simple imprisonment for a period of one month".
3. Order of conviction and sentence has been confirmed in Crl.A.No.47/2015. Thereafter, accused has filed this revision petition before this Court.
4. Facts in brief which are utmost necessary for disposal of the revision petitioner are as under:
5. A complaint came to be lodged with the Chikkaballapura rural Police Station on 22.11.2007, contending that complainant along with 30-35 persons were proceeding in the tempo bearing No.KA-07-2635 to visit Nandeeshwara temple at Nandi hills. While returning from the said place, the group wanted to visit Nandi hills in the same vehicle. After visiting Nandi hills, on returning at about 05:15 pm near 31 st curve on the Nandi hills road, driver of the vehicle drove the -4- NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 vehicle in a rash and negligent manner and tempo got capsized and fell down to 3rd curve. The inmates of the tempo sustain simple and grievous injuries. Public and on lookers informed the police.
6. Police arrived on the scene and shifted the injured persons to Chikkaballapura Government hospital and some of the injured persons who have suffered grievous injuries to Victoria hospital, Bengaluru.
7. Among the injured persons one Komu Yerrappa S/o Pedda Byanna did not survive and he lost his life in Rajiv Gandhi T.B. Hospital on 04.12.2007 at about 06:30 a.m. Police after registering the case conducted a detailed investigation and filed charge sheet against the accused.
8. Presence of the accused was secured and charges were framed. Accused pleaded not guilty. Therefore, Trial was held.
9. In order to prove the case of the prosecution, 15 witnesses were examined as PWs.1 to 15 and as many as 23 documents were placed on record which were executed and marked as Exs.P1 to P23 comprising of Statement of -5- NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 Gangulappa, Mahazar witnesses, Inquest report, Postmortem report.
10. Despite of granting sufficient time, prosecution could not secure the presence of the investigation officer and therefore trial was concluded.
11. Thereafter accused statement as is contemplated under Section 313 Cr.P.C. was recorded. In the said statement, accused has denied all the incriminatory circumstances including the accident and the fact that he was the driver of the tempo as on the date of accident.
12. Thereafter, learned judge heard the parties and after considering the oral and documentary evidence placed on record on behalf of the persecution, convicted the accused and sentenced him as referred to supra.
13. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Trial Magistrate, accused preferred an appeal before the district Court, Chikkaballapura in Crl.A.No.47/2015.
14. The learned Judge in the First Appellate Court after securing the records and hearing the parties in the light of the -6- NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 grounds urged on behalf of the accused-appellant, not only re-appreciated the material evidence on record concurred with the finding of conviction passed by the Trial Magistrate but also supplemented additional reasons for maintaining the order of conviction and dismissed the appeal filed by the accused.
15. Subsequent there to, the accused has preferred this revision petition.
16. Sri. Prabhakar, learned counsel representing Sri. Rajesh. A., the learned counsel for petitioner reiterating the grounds urged in the revision petition, vehemently contended that in the case on hand, the prosecution for the reasons best known to it, did not chose to examine the Investigation Officer whereby contradictions elicited on behalf of the prosecution could not be proved by the accused and that benefit should have gone to the accused which has not been appreciated by both the Courts and sought for allowing the revision petition.
17. He also pointed out that there is a clear admission by the cleaner of the vehicle that there was a mechanical defect in the vehicle and even though IMV report is placed on record the same is not exhibited as evidence so as to find out the role of the accused in the alleged accident.
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18. He further pointed out that admittedly, the incident has occurred when the tempo was on the way back from the Nandi hills towards the village and at that juncture in curve No.35, because of the brake failure, the incident has occurred and the same has been spoken to by PW.15 who is the cleaner of the tempo. Therefore, Trial Magistrate erred in law in convicting the accused for the offence punishable under sections 279, 337, 338 and 304(A) of IPC and such benefit should be granted to the accused and hence sought for allowing the revision petitioner.
19. Alternatively, Sri Prabhakar contended that when the accident has occurred accused was aged 24 years and he is now middle aged and having a family to maintain and aged old parents to look after and therefore, he may be granted the benefit of probation or by enhancing the fine amount or some lenient view may be taken in reducing the period of sentence of to 6 months.
20. Per contra learned High Court Government Pleader Sri.Vinay Mahadevaiah., vehemently contended that in the case on hand, the accused has gone on taking inconsistent stand in the Trial which has been properly appreciated by the Trial -8- NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 Magistrate and the learned Judge in the First Appellate Court and therefore sought for dismissal of the revision.
21. He pointed out that accused has gone to the extent of denying that he was the driver of the tempo in question as on the date of accident. But there is an inconsistent stand that the accident has occurred on account of the slope in the road especially when the vehicle was descending from Nandi hills towards Village and thirdly on the ground of mechanical defect of the vehicle in question.
22. He also argued that the inconsistent stand taken by the accused while cross examining the prosecution witnesses has been rightly appreciated by the learned Trial Magistrate while passing the order of conviction and sought for dismissal of the appeal.
23. The further contention of the learned High Court Government Pleader is that since there is one death and 15 persons were injured, the awarding of punishment of 6 months in the incident for the offence punishable under Section 304A of IPC is just and proper and sought for dismissal of the revision petition.
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24. Having heard the parties in detail this Court perused the material on record meticulously.
25. On such perusal of the material on record, it is crystal clear that the accident is not in dispute and so also involvement of tempo bearing No.KA-07-2635. Material on record especially the indemnity bond executed by the owner of the vehicle at the time of obtaining the interim custody of the seized vehicle, would goes to show that it was the accused who was the driver of the vehicle in question.
26. PW.15 who is the cleaner of the said tempo, who has partly supported the case of the prosecution and later on he was treated as hostile witness, has also specifically spoken that it is the petitioner who was the driver of the offending vehicle in question as on the date of accident. Therefore, the contention taken by the accused that he was not the driver of the vehicle can not be countenanced in law.
27. Having said thus, admittedly the incident has occurred, when the vehicle was descending from Nandi hills towards the village at the curve No.35. It is the testimony of the inmates injured eye witnesses that the accused drove the vehicle in a rash and negligent manner and lost control over the
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NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 vehicle. Vehicle slipped outside the road and fell on curve No.3. The very accident itself therefore, shows the gravity with which the incident has taken place. If the petitioner has taken such necessary precautions, the accident would not have occurred in the way it has occurred.
28. It is expected and required of from the petitioner that while driving the vehicle with 30 to 35 persons inside the vehicle, that too while descending in a hilly road, such necessary precautions should have been taken so as to avoid the incident. More so, when accused in a professional driver.
29. If there was a mechanical defect as is contended by the accused, the vehicle should not have been moved from the top of the hill to the village. Thus, contention that there was brake failure is a ruse to escape the liability on the part of the accused.
30. No doubt the IMV report is not marked as an exhibit on behalf of the prosecution. The same is on account of non- examination of the Investigation Officer. Order sheet of the trial Court discloses that sufficient opportunity was granted by the Trial Magistrate to secure the presence of the Investigation Officer. However, prosecution failed to secure the presence of
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NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 the investigation Officer. Therefore, Trial Magistrate was justified in closing the prosecution case.
31. It is settled principles of law and requires no emphasis that mere non-examination of the Investigation Officer would not be fatal to prosecution in each and every case. The material evidence placed on record by the prosecution, if sufficient, the same can be the basis for recording an order of conviction. At the same time, the alleged prejudice caused to the rights of an accused cannot be lost sight of by non examination of the Investigation Officer in every case.
32. In the case on hand, few contradictions are elicited in the statements of PWs.5 and 15 who have partly supported the case of the prosecution and the learned Trial Magistrate has permitted the Additional Public Prosecutor to treat them as hostile and cross examine them. Those contradictions need to be proved either by the prosecution or by the accused in the evidence of Investigation Officer. To that extent, right of the accused has been impaired in the case on hand especially to the extent that the PW.15 did not support the case of the prosecution.
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33. But in the case on hand, PW.15 is none other than the cleaner of the vehicle in question. His testimony thus can be construed as an interested testimony in as much as a cleaner of the offending vehicle could not depose against the driver of the vehicle.
34. The testimony of the injured eye witnesses would over weigh the testimony of PW.15 in as much as none of the injured eye witnesses did not nurture any previous enmity or animosity against the accused to falsely implicate him and level false allegations so as to prove the case of the prosecution.
35. Further, in a matter of this nature, the version of the accused assumes an importance in finding out whether accused has taken all such necessary precautions and the incident has occurred beyond the capacity of a human being.
36. In this regard, while recording the accused statement, accused has not offered any explanation words about the incident. On the contrary he went to the extent of denying the very accident itself. This shows the conduct of accused in appreciating the case of the prosecution.
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37. In this regard gainfully this Court placed reliance of the judgment of Hon'ble Apex Court in the case of RAVI KAPUR V/s. STATE OF RAJASTHAN reported in (2012) 9 SCC 284. Paragraph No.39 of the said judgment is culled out here under for reference:
"It is true that the persecution is required to prove it's case beyond reasonable doubt but the provisions of Section 313 CrP.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which personal knowledge and have a bearing on the case".
38. Applying principles of law enunciated in the Ravi kapur supra to the case on hand, it is crystal clear that the accused has deliberately failed to utilize the opportunity granted
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NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 to him to explain about the incident or to place his version about the incident. Accordingly, the Trial Magistrate was justified in convicting the accused as natural consequence in law.
39. The prosecution evidence is sufficient enough to show that it is the negligent driving of the accused, the offending vehicle fell from curve No.35 to curve No.3 shows the ghostly nature in which the accident has occurred. Therefore, the conviction order recorded by the Trial Magistrate confirmed by the First Appellate Court is based on sound reasons and does not require any interference by this Court that too in the revisional jurisdiction.
40. Nextly, the argument that has been placed on record by Sri.Prabhakara, learned counsel for revision petitioner is that accused was aged 24 years as on the date of incident and he has now grown up and he is a family person having wife and children and age old parents to look after. Therefore, he sought for granting of benefit of probation of offenders Act to the accused.
41. He also pointed out that the instead of convicting him, fine amount may be enhanced and sentence of
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NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 imprisonment may be taken of for the offence punishable under Section 304-A of IPC.
42. What is an appropriate sentence in a matter of this nature is no longer les-intigra. Hon'ble Apex Court in the case of STATE OF PUNJANB V/S SURAJ BHAKSHI reported in (2015) 5 SCC 182 had an occasion to deal with the appropriated punishment for the offence punishable under Section 304-A of IPC. While so dealing with the principles of law that would govern the appropriate sentence to be imposed for the offence punishable under Section 304-A of IPC as held as under:
In this context, we may refer with profit to the decision in Balwinder Singh (supra) wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304A, 337, 279 of 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[6] and reproduced two paragraphs which we feel extremely necessary for reproduction:-
"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.
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13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, a 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 b almost throughout his working hours. He must constantly 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 c 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 [pic]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 d rate of motor accidents due to callous driving of automobiles." (Dalbir Singh case (supra), SCC pp. 84-85 & 87, paras 1 & 16)
15. In B. Nagabhushanam v. State of Karnataka[7] the appellant was directed to undergo simple imprisonment for six months for the offences punishable under Section 304A IPC. The two-Judge Bench referred to Dalbir Singh (supra) and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Ratan Singh v. State of Punjab[8] was quoted:- ( B. Nagabhushanam case (supra), 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, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional
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NC: 2024:KHC:24730 CRL.RP No. 751 of 2021 parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion." (Rattan Singh case (supra), SCC pp. 720-21, para 5)".
43. Applying principles of law enunciated in the aforesaid judgment to the case on hand since several persons are injured and some of them have -grievously injured and one person has lost his life while attending a function in the group, this Court is of the considered opinion that the sentence ordered by the Trial Magistrate confirmed by the First Appellate Court in convicting the accused for a period of six months imprisonment is just and proper and does not require any modification.
44. No special reasons or material evidence circumstances is either placed on record. So as to reduce the sentence.
45. Further denying the very incident and trying to deny that the accused is not the driver of the offending vehicle as on the date of accident would also the factor which would interfere by showing any mercy to the accused.
46. In view of the foregoing discussions, the following:
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CRL.RP No. 751 of 2021
ORDER
i) Revision petition is merit-less and
hereby dismissed.
ii) Accused is granted time till
25.07.2024 to surrender before
the Trial Court for serving the
sentence.
iii) The Office is directed to return
the TCR with copy of this order
forthwith.
Sd/-
JUDGE
LDC
List No.: 1 Sl No.: 39