Karnataka High Court
Sri Anudeep vs The State Of Karnataka on 12 January, 2024
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NC: 2024:KHC:1971
CRL.RP No. 902 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.902 OF 2016
BETWEEN:
SRI ANUDEEP
S/O RAMAMURTHY
AGED ABOUT 25 YEARS
NO.53, BEHIND TOWN POLICE STATION
GANDHIPUR, MADANAPALLI TOWN
ANDHRA PRADESH - 517 319.
...PETITIONER
(BY SRI SRINIVAS S. R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS GOWNAPALLI POLICE
SRINIVASAPUR TALUK
KOLAR-563 161.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
Digitally signed ***
by VINUTHA M
Location: HIGH THIS CRIMINAL REVISION PETITION IS FILED UNDER
COURT OF
KARNATAKA SECTION 397 READ WITH SECTION 401 OF THE CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 29-4-2015 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR, IN CRL.A.
NO.55/2012 AND ALSO THE CONVICTION ORDER DATED 22-10-2012
PASSED BY THE CIVIL JUDGE AND J.M.F.C., SRINIVASAPUR, IN C.C.
NO.308/2009 AND ACQUIT THE ACCUSED/APPELLANT OF ALL THE
CHARGES FRAMED AGAINST HIM BY ALLOWING THIS APPEAL.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 15-12-2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CRL.RP No. 902 of 2016
ORDER
Heard Sri Srinivas S.R., learned counsel for the petitioner-accused, and Sri Vinay Mahadevaiah, learned High Court Government Pleader for the respondent-State.
2. The petitioner-accused has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') to set aside the judgment of conviction and order on sentence dated 22-10-2012 passed by the Principal Civil Judge and Judicial Magistrate First Class, Srinivaspur, in Criminal Case No.308 of 2009 and confirmed by the Principal District and Sessions Judge, Kolar, in Criminal Appeal No.55 of 2012 dated 29-4-2015.
3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioner is the accused and the respondent is the complainant-State.
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4. The brief facts of the prosecution case are that, on 5-7-2009 at about 1:45 p.m. near Kondamari Gate, the accused, being the driver of Tata Sumo, bearing Registration No.AP-04 B-6161, drove the same in a rash and negligent manner from Thadigol Cross to Gownipalli and dashed against a motorcycle, bearing Registration No.KA-07 J-5904, which was coming from opposite direction. Thus, he caused grievous injuries to PW2- Venkatalakshmamma, who was a pillion rider and caused death of Sri Ravi Kumar, who was a rider of the said motorcycle. Hence, PW1 lodged a complaint. This led to registration of F.I.R. and the Investigating Officer investigated the matter and filed the charge-sheet against the accused for the offences punishable under Sections 279, 338 and 304A of the Indian Penal Code, 1860 (for short, 'IPC').
5. After receipt of the charge-sheet, the trial Court took cognizance of the offences and recorded plea of the accused. In order to prove its case, the prosecution in all -4- NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 examined nine witnesses as PW1 to PW9 and got marked ten documents as per Exs.P1 to P10. Based on oral and documentary evidence on record, the trial Court convicted the accused for the offences punishable under Sections 279, 338 and 304A of the IPC. Aggrieved by the said judgment, the accused preferred an appeal in Criminal Appeal No.55 of 2012 before the First Appellate Court and the First Appellate Court confirmed the judgment passed by the trial Court. Hence, this revision petition.
6. Learned counsel for the petitioner-accused has contended that the impugned judgment passed by the trial Court as well as the First Appellate Court are contrary to law, facts and evidence; none of the witnesses has stated that the accused committed an offence, however, the trial Court has come to a wrong conclusion and convicted the accused; the trial Court convicted the accused on surmises and conjunctures without appreciating the true and material facts that have been placed before it; some of the witnesses examined on behalf of the prosecution are not -5- NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 eyewitnesses to the alleged incident and they have turned hostile to the case of the prosecution, however, the Courts below have failed to take note of this fact. Hence, he prays for extending the benefit of doubt in favour of the accused; there is no direct evidence produced by the prosecution and it has failed to prove that the accused committed the alleged offence; there are many contradictions, inconsistencies and variations in the evidence of one witness to another, there is no corroboration in the evidence of the prosecution witnesses, however, the trial Court and the First Appellate Court have not taken note of these contradictions in the evidence; the prosecution has failed to produce the report regarding the vehicle tyre marks on the road, where the accident took place and the concerned photographs of the accident spot; the accused is a poor man doing coolie work for his living. Hence, on all these grounds, he prays to allow the revision petition.
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7. Learned High Court Government Pleader for the respondent-State has contended that since the trial Court as well as the First Appellate Court have given concurrent findings, interference by this Court to set aside the judgment of conviction and order on sentence passed against the accused would not arise. He contended that the accident and the death of the deceased in the accident are not disputed, the manner of accident and identity of the accused are also not disputed. Hence, he prays to dismiss the revision petition.
8. From perusal of the material on record, the trial Court mainly relied upon the evidence of PW1-Appireddy, complainant. He has deposed that on 5-7-2009 at about 2:00 p.m., while he was working in mango garden, he heard the sound of accident and when he came to the spot, he saw the motorcycle fallen on the right side of the road on the fence and the Tata Sumo fallen on the right side of the road in the agricultural land, the rider of the motorcycle died on the spot and the pillion rider sustained -7- NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 injuries and hence, the injured was shifted to the hospital for treatment. Further, PW2-Venkatalakshamma, injured and wife of the deceased, has stated that on the date of the incident, her husband and herself were proceeding towards Bengaluru in TVS Victor, when they reached Kondamari Cross, the driver of the Tata Sumo came from opposite direction in a rash and negligent manner and dashed against the motorcycle. Thus, her husband died on the spot, she was grievously injured and she was taken to SNR hospital, Kolar, for treatment. She identified the accused before the trial Court. PWs.3 and 4, witnesses to panchanama, have stated that the Police recovered the motorcycle and Tata Sumo from the spot as per Ex.P2. PWs.5 to 7 are the Investigating Officers. They have deposed about registration of F.I.R., conducting mahazar, drawing sketch, recording the statement of witnesses, etc.
9. On perusal of the oral and documentary evidence on record, it appears that PW1 is the owner of the land, where the alleged accident occurred. He has stated that -8- NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 the deceased was fallen on the right side of the road on the fence and the Tata Sumo was fallen on the right side of the road in the agricultural land. The deceased died on the spot and his wife sustained grievous injuries which show that the driver of Tata Sumo came in a rash and negligent manner from opposite direction and dashed against the motorcycle. As per Ex.P2-spot mahazar and Ex.P8-sketch, the driver of Tata Sumo took the vehicle to the extreme right side of the road, which itself shows that the driver of Tata Sumo came in a wrong direction, in a rash and negligent manner and dashed against the motorcycle. The oral testimony of PWs.1 and 2 corroborate with the contents of Ex.P2-spot mahazar and Ex.P8- sketch. From perusal of Ex.P5-IMV report, the accident was not due to any mechanical defect of the Tata Sumo. It shows that the accident in question was due to rash and negligent act of the driver of the Tata Sumo. However, in the statement of the accused recorded under Section 313 of the Cr.P.C., the accused has not explained as to why he came in a wrong direction, i.e. extreme right side of the -9- NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 road. Hence, the prosecution proved the ingredients of Section 279 of the IPC.
10. So far as Section 338 of the IPC is concerned, PWs.1 and 2 have stated that in the accident, PW2 sustained grievous injuries. On perusal of Ex.P6-Wound Certificate, the following injuries were found:
"1. Closed displaced fracture mid 3rd left clavicle
2. Closed monteggia fracture right side
3. Pelvis fracture a. fracture of right iliac wing comminuted B. fracture B/L superior and inferior pubic rami c. fracture B/L iliac crest."
As per the opinion of the Doctor, injury Nos.1 to 3 are grievous in nature. Contrary to this evidence, the accused has not placed any material. Hence, the prosecution proved the fact that PW2 sustained grievous injuries in the accident.
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11. So far as the cause of death of the deceased is concerned, PW1-eyewitness and PW2-injured witness have categorically stated that in the accident, the deceased died on the spot. As per Ex.P2-spot mahazar, bloodstains were found on the spot. As per Ex.P3-inquest mahazar, there were visible injuries on the person of the deceased and as per Ex.P4-Post-Mortem Examination Report, the cause of death was due to shock and haemorrhage as a result of injury to the vital organs, lungs (right and left), fracture of bones (right lower end of radius) (right middle 1/3rd of femur), right patella (fracture of both bones of right leg) and rupture of small and large intestines. Thus, it clearly establishes that the deceased died to accidental injuries. Hence, the prosecution is able to prove the ingredients of Section 304A of the IPC.
12. On perusal of the material available on record, the trial Court relying upon the evidence of PW1- eyewitness, PW2-injured witness and based on the contents of Ex.P3-inquest mahazar, Ex.P4-Post-Mortem
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 Examination Report, Ex.P5-IMV report, Ex.P8-sketch and Ex.P6-Wound Certificate of PW2, convicted the accused for the offences punishable under Sections 279, 338 and 304A of the IPC.
13. As rightly pointed out by the learned High Court Government Pleader that this being a revision petition against the concurrent findings of the trial Court and the First Appellate Court, the scope of interference on the factual aspects is very limited.
14. The evidence on record shows that the accused did not dispute the occurrence of accident, he did not dispute the death of the deceased and his identity before the trial Court. It was his defence that the deceased himself rode the motorcycle in a rash and negligent manner and dashed against the Tata Sumo. Hence, he is not responsible for cause of the death of the deceased.
15. The trial Court as well as the First Appellate Court have rightly held that Ex.P5-IMV report, Ex.P2-spot
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 mahazar and Ex.P8-sketch do not support the defence theory. The cumulative effect of entire evidence on record leads to the conclusion that the accident was the outcome of the rash and negligent driving on the part of the accused. PWs.1 and 2 clearly stated about rashness on the part of the accused. Both the Courts below held that if the accused drove his vehicle cautiously, there could not have been any accident. Further, at the time of accident, the accused deviated his Tata Sumo, but reasons for such deviation is not explained by the accused in his statement under Section 313 of the Cr.P.C. Therefore, both the Courts below held that the accused was guilty of the offences.
16. Now, the only question that arises for consideration before this Court is whether the sentence imposed was tenable.
17. Learned counsel for the petitioner submits that the accused has no criminal antecedents or had any intention to cause the accident. He is the sole bread
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 earner in the family and hence, he prays to apply the provisions of the Probation of Offenders Act, 1958.
18. On perusal of the judgment passed by the trial Court as well as the First Appellate Court, the maximum sentence imposed is one year for the offence punishable under Sections 304A of the IPC. While dealing with the question whether it is desirable to impose minimal or negligible sentence in a case of offence punishable under Section 304A of the IPC, the Hon'ble Supreme Court in the case of GURU BASAVARAJ @ BENNE SETTAPPA v. STATE OF KARNATAKA reported in 2012 (8) SCC 734 at paragraph Nos.22, 23, 28, 30 and 33, held as under:
"22. In Dalbir Singh v. State of Haryana, this Court expressed thus:
"13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 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."
23. Thereafter, the Court proceeded to highlight what is expected of a professional driver:
"13. ... A professional driver pedals the accelerator of the automobile 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 might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
xxx xxx xxx
28. In Alister Anthony Pareira v. State of Maharashtra, it has been laid down that sentencing is an important task in relation to criminal justice dispensation system.
"84. ... One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: The twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime,
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 motive for the crime, nature of the offence and all other attendant circumstances."
It has been further opined that "85. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, the proportion between crime and punishment bears the most relevant influence in the determination of sentencing the crime-doer. The court has to take into consideration all aspects including the social interest and [conscience] of the society for award of appropriate sentence."
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30. From the aforesaid authorities, it is luminous that this Court has expressed its concern on imposition of adequate sentence in respect of commission of offences regard being had to the nature of the offence and demand of the conscience of the society. That apart, the concern has been to impose adequate sentence for the offence punishable under Section 304-A of IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case.
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 As the trend of authorities would show, the proficiency in professional driving is emphasized upon and deviation therefrom that results in rash and negligent driving and causes accident has been condemned. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquility of the collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence.
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33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored. In Siriya alias Shri Lal v. State of M.P., it has been held as follows:-
"13.`7. ... Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society"
stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be."
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19. On perusal of the material available on record, in the instant case, the factum of rash and negligent driving has been established.
20. The Hon'ble Supreme Court in the case of STATE OF PUNJAB v. SAURABH BAKSHI reported in 2015 (5) SCC 182 has imposed maximum imprisonment of six months for the offence punishable under Section 304A of the IPC.
21. In view of the ratio laid down in the cases of GURU BASAVARAJ @ BENNE SETTAPPA and SAURABH BAKSHI, referred to supra, at least, the minimum imprisonment of six months is required to be imposed for the offence punishable under Section 304A of the IPC.
22. Having regard to the fact that the accused was aged about 19 years at the time of accident and he has faced the proceedings since 2009 and also the fact that, he has no criminal antecedents, considering the factual and legal aspect of the matter, the trial Court as well as
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 the First Appellate Court have concurrently held that the petitioner-accused is guilty of the offences alleged against him and convicted him for a period of one year for the offence punishable under Section 304A of the IPC. Considering the facts, circumstances and the ratio laid down in the decisions cited supra, it is just and necessary to modify the sentence of imprisonment from one year to six months for the offence punishable under Section 304A of the IPC. To that extent, the appeal stands modified. Hence, I proceed to pass the following:
ORDER
(i) The revision petition is partly allowed.
(ii) The judgment of conviction dated 22-10-2012 passed by the Principal Civil Judge and Judicial Magistrate First Class, Srinivaspur, in Criminal Case No.308 of 2009 and confirmed by the Principal District and Sessions Judge, Kolar, in Criminal Appeal No.55 of 2012 dated
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NC: 2024:KHC:1971 CRL.RP No. 902 of 2016 29-4-2015, are hereby confirmed.
However, the order on sentence dated 22-10-2012 is modified.
(iii) The petitioner-accused is sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 304A of the IPC. The sentences imposed by the trial Court for the offences punishable under Sections 279 and 338 of the IPC are maintained.
All sentences shall run concurrently. Registry is directed to send back the trial Court record along with a copy of this order, forthwith.
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JUDGE KVK List No.: 1 Sl No.: 2