Karnataka High Court
Sahebgouda vs The State on 2 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 200083 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2 ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200083 OF 2018
(397)
BETWEEN:
SAHEBGOUDA
S/O BASSAPPA @ BASAWARAJ KALAL,
AGE: 17 YEARS, OCC: STUDENT,
R/O MALLALLI, TQ. SHAHAPUR, DISTRICT YADGIRI,
MINOR UNDERGUARDIAN NATURAL FATHER,
BASSAPPA @ BASAVARAJ
S/O BHEEMASHAPPA,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O MALLALLI, TQ. SHAHAPUR, DISTRICT YADGIRI.
Digitally signed ...PETITIONER
by SHILPA R
TENIHALLI (BY SRI. BHARAMAGOUDA K. PATIL, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
THE STATE THROUGH
WADAGERA POLICE STATION,
TQ. SHAHAPUR, DIST. YADGIR.
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI.
...RESPONDENT
(BY SRI. JAMADAR SHAHABUDDIN, HCGP)
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CRL.RP No. 200083 of 2018
THIS CRL.RP IS FILED UNDER SECTION 397 R/W
SECTION 401 OF CR.PC PRAYING TO SET ASIDE THE
JUDGMENT OF SESSION JUDGE AT YADGIRI IN CRIMINAL
APPEAL NO.10/2015 DATED 13.11.2018 AND THE JUDGMENT
OF JUVENILE JUSTICE BOARD, AT YADGIR IN J.C.NO.8/2014
DATED 04.12.2015 AND ACQUITTED THE REVISION
PETITIONER FOR THE ALLEGED OFFENCES.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the revision petitioner/accused challenging the judgment of conviction and order of sentence passed by Juvenile Justice Board, Yadagiri, in J.C.No.8/2014, dated 04.12.2015 and confirmed in Crl.A.No.10/2015 passed by Sessions Judge, Yadgiri, vide order dated 13.11.2018 by convicting the juvenile offender for the offences punishable under Sections 279 & 304A of the Indian Penal Code, 1860 (for short 'IPC') and under Section 181 of the Motor Vehicles Act, 1988 (for short 'MV Act').
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018
3. The brief factual aspects leading to the case are as under:
On 25.10.2013, at 3.00 p.m., the complainant was standing in front of Ayyappa's hotel in order to have tea in Mallalli village along with Nagappa & Shivaraya. It is further alleged that at that time, the deceased father of complainant was moving towards his house from the outskirts of the village. Meanwhile, the juvenile in conflict with law i.e. petitioner herein, rode a motor cycle bearing No.KA-33/L-8239 in a rash and negligent manner and knocked the deceased from the back side. As a result, the deceased fell down and sustained head injuries. Immediately, the complainant and others shifted him in a private vehicle to Yadgiri Government Hospital and later on, he was shifted to Raichur Government Hospital for higher treatment. But by evening 6.00 'o' clock he succumbed in the hospital. In this regard, the complainant lodged a complaint. On the basis of the complaint, the Investigating Officer registered the crime, visited the spot, -4- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 conducted the spot mahazar, seized the vehicle and then recorded the statements of witnesses. He has also got examined the motor bike from motor vehicle inspector and after obtaining the post mortem report, he found that there are sufficient grounds to proceed against the juvenile in conflict with law and submitted a charge sheet against him for the offences punishable under Sections 279 & 304A of IPC as well as under Section 181 of the MV Act.
4. Since the juvenile in conflict with law was a minor, the matter was taken up by Juvenile Justice Board. The juvenile was represented through his counsel by appearing before the Juvenile Justice Board and was enlarged on bail. He was also provided with prosecution papers. The plea was recorded and he denied the same. Thereafter, seven witnesses were examined on behalf of the prosecution and prosecution has also placed reliance on seven documents marked at Ex.P1 to Ex.P7. After conclusion of the evidence of the prosecution, the -5- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 statement of juvenile in conflict with law was recorded under Section 313 Cr.P.C. and he denied the same.
5. After hearing the arguments and after appreciating the oral and documentary evidence, the Juvenile Justice Board convicted the juvenile for the offences punishable under Sections 279, 304A of IPC and Section 181 of the MV Act. Juvenile Justice Board has imposed sentence of fine of Rs.700/- for the offence punishable under Section 279 of IPC and fine of Rs.100/- for the offence under Section 181 of the MV Act with a default clause. Juvenile Justice Board has also sentenced him for imprisonment for a period of one year for the offence punishable under Section 304A of IPC with a direction that he shall be sent to juvenile home for serving the sentence.
6. Being aggrieved by this judgment of conviction and order of sentence passed by Juvenile Justice Board, the revision petitioner herein approached Sessions Judge, Yadgiri in Crl.A.No.10/2015. The learned Sessions Judge -6- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 after re-appreciating the oral and documentary evidence, allowed the appeal in part so far as it relates to imposition of sentence of one year for the offence under Section 304A of IPC. But confirmed the conviction in respect of other offences and for the offence under Section 304A of IPC, he reduced the sentence from one year to six months.
7. Being aggrieved by these concurrent findings, the petitioner is before this Court by way of revision.
8. Heard the arguments advanced by the learned counsel for revision petitioner as well as learned HCGP for the respondent-State. Perused the records.
9. The learned counsel appearing for revision petitioner would contend that the witnesses are unable to quote the vehicle number and none of the witnesses have stated regarding rash and negligent act. Hence, he would contend that the rash and negligent act was not at all established, which has resulted in miscarriage of justice and hence, he would seek for acquittal by allowing the revision and by setting aside the impugned judgment of -7- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 conviction and order of sentence passed by Juvenile Justice Board and the lower appellate Court.
10. Alternatively he would contend that the offence is said to have been committed while the petitioner was a juvenile aged about 14 years and more than 10 years have been lapsed and considering the age, now it is not proper to sentence him to imprisonment for an act committed while he was in juvenile and prayed that sentence of imprisonment may by set aside by restricting the conviction to the fine alone.
11. Per contra, the learned HCGP would submit that the evidence of PW1 to PW4 clearly establish that the accident is because of actionable negligence on the part of the petitioner and he was not possessing driving licence. He would also assert that the accused himself has taken inconsistent stands regarding he not being present at the accident spot by raising plea of alibi, but failed to prove the said plea and his statement under Section 313 Cr.P.C. is completely silent in this regard. Hence, he would -8- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 contend that the defence raised is not acceptable one. He would also contend that both the Courts below have imposed reasonable sentence which does not call for any interference and sought for dismissal of the revision petition.
12. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by both the Courts below is perverse, arbitrary and erroneous so as to call for any interference by this Court?"
13. It is the specific assertion of the prosecution that on 25.10.2013, at 3.00 p.m. in Mallalli village, in front of the road situated in front of Muttyan Gudi, the juvenile delinquent being a rider of motor cycle bearing registration No.KA-33/L-8239 without driving licence drove it in a rash and negligent manner and knocked the deceased Bheemaraya son of Thippanna from the back side causing -9- NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 severe injuries to him, who subsequently succumbed in the hospital on the same day evening at 6.00 p.m. and thereby it is alleged that he has committed the offences punishable under Sections 279, 304A of IPC as well as under Section 3 r/w Section 181 of the MV Act.
14. At the first instance, since the petitioner is a minor, question of he obtaining driving licence does not arise at all and as such, the offence under Section 3 r/w Section 181 of the MV Act is proved in view of the age of the petitioner itself.
15. PW1 is the complainant and in his evidence, he deposed that about one year five months back, he was standing near the hotel of Sahib and at that time, accused rode his motorcycle in a rash and negligent manner and knocked his father who was proceeding by the side of the road, causing head injury to him, who subsequently succumbed in the hospital. He further deposed that in this regard he lodged a complaint as per Ex.P1. This witness was cross-examined and cross-examination reveals
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 regarding personal disputes regarding communities. Interestingly, a suggestion was made that when the accident has occurred only four persons were present and this suggestion itself discloses that accused has admitted the accident. A contrary suggestion was again made that the deceased fell from katta and suffered injuries. But this suggestion is not forthcoming to all the witnesses and on the contrary, the postmortem report is marked by consent.
16. Further, during the course of the arguments, a new defence was set up that the vehicle was never involved in the accident. But admittedly, the vehicle was seized and father of delinquent juvenile got it released by executing an indemnity bond. A third inconsistent and contrary defence was raised during cross-examination of PW1 is regarding plea of alibi. It is suggested that when the accident has occurred, the delinquent juvenile was in Yadgiri and not at the spot. This defence is required to be proved by the petitioner himself, but his 313 statement
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 discloses that it is completely silent. He has not led any evidence to prove that he was in Yadgiri when the alleged accident has taken place so as to probablize that his presence at the spot is virtually impossible. But no such evidence is lead.
17. PW.2 is the witness to the spot mahazar and he has deposed regarding drawing of mahazar in his presence and seizure of the motorcycle from the spot and though this witness was cross-examined, nothing elicited so as to impeach his evidence.
18. PW.3 - Ningappa and PW.4 - Shivaraya are the eyewitnesses and they have also deposed as per the case of the prosecution. During the cross examination of PW3, again the plea of alibi was raised suggesting that the juvenile delinquent was in Yadgir during the accident period but the same suggestion was not at all made to PW.4. Further, to PW.4 a suggestion was made that the deceased fell from Katta and sustained injuries resulting in his death, but no details were pleaded as to where this
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 accident has occurred. Interestingly, the same suggestion was not made to PW.3. Hence, it is evident that the juvenile delinquent is taking inconsistent and contrary stands. PW.5 is another son of deceased, but, he was not an eyewitness.
19. PWs.6 and 7 are the Investigating Officers and during their cross examination, the accident was never disputed and involvement of the petitioner or plea of alibi was not put forward to these witnesses. Considering the evidence on record and considering the inconsistent stand taken by the accused and especially the defence of plea of alibi raised by him, which he has failed to establish, an adverse inference is required to be drawn as against him.
20. The evidence of PWs.1, 3 and 4 is inconsistent and it establishes that the accident was because of actionable negligence on the part of the juvenile delinquent, which has resulted in the death of Bheemaraya. Hence, the ingredients of the offences under
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 Sections 279 and 304-A of IPC are directly applicable to the case in hand.
21. The Juvenile Justice Board as well as the learned Sessions Judge have appreciated all these aspects in a proper perspective and have rightly convicted the juvenile delinquent for the offences punishable under Sections 279 and 304-A of IPC and Section 181 of the MV Act. Hence, the judgment of conviction does not suffer from any infirmity so as to call for any interference. However, while convicting the accused, the Juvenile Justice Board has imposed imprisonment for a period of one year to the juvenile delinquent with a direction that he shall be sent to special home for serving the sentence. But, the learned Sessions Judge has reduced it to six months instead of one year.
22. The learned counsel for the petitioner would contend that the offences are committed during the minority of the juvenile delinquent and now nearly 10 years have been lapsed from the date of the accident. He
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 would also submit that the juvenile delinquent was required to send to special home and since now he has attained the age of majority, he cannot be sent to special home and it is not fair to send him to prison. Hence, he submits that in the place of sentence, fine may be imposed by awarding of compensation, which would serve the purpose.
23. Considering these facts and circumstances and considering the fact that the offences were committed by the juvenile delinquent during his minority that too when he was aged about 14 years, I am of the considered opinion that it is not just and proper now to sentence him for imprisonment as it is likely to affect his life. However, at the same time, he cannot be let free in a casual way and considering these facts and circumstances, he is required to pay fine of Rs.15,000/- for the offence under Section 304-A of IPC. Further, since has caused the death of Bheemaraya, some compensation needs to be awarded to the family of deceased and in my considered opinion,
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 Rs.50,000/- can be awarded as compensation under Section 357 of Cr.P.C.
24. Considering these facts and circumstances, the revision petition needs to be allowed in part so far as sentence of imprisonment is concerned. Accordingly, the point under consideration is required to be answered partly in the affirmative. Hence, I proceed to pass the following:
ORDER A. The revision petition is allowed in part. B. The judgment of conviction passed by the Juvenile Justice Board, Yadgiri in J.C.No.8/2014 and confirmed by the learned Sessions Judge, Yadgiri in Criminal Appeal No.10/2015 stands confirmed.
C. The sentence imposed in the form of fine for the offence under Sections 279 of IPC and under Section 181 of the MV Act stands confirmed.
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NC: 2024:KHC-K:1234 CRL.RP No. 200083 of 2018 D. However, the sentence of imprisonment for the offence under Section 304-A of IPC is set aside and stands modified by imposing a fine of Rs.15,000/- and in default, accused is required to undergo simple imprisonment for a period of six months.
E. The petitioner/juvenile delinquent, who has now attained the age of majority is also directed to pay compensation of Rs.50,000/- to the legal heirs of deceased Bheemaraya under Section 357 of Cr.P.C. and the same shall be deposited before the Trial court within eight weeks.
F. The Trial Court is directed to secure the presence of the petitioner - accused/juvenile delinquent for collection of fine and compensation amount. G. Registry is directed to send the copy of this order to the Trial Court along with the records.
Sd/-
JUDGE DS/ SRT List No.: 1 Sl No.: 13