Karnataka High Court
Chandrashekara vs State By K.R. Pet Town Police on 31 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1057/2012
BETWEEN:
CHANDRASHEKARA,
S/O BASAVALINGAIAH,
AGED ABOUT 44 YEARS,
DRIVER, R/OF UGINAHALLI VILLAGE,
KIKKERI HOBLI, K.R. PET TALUK,
MANDYA DISTRICT-571 423. ...PETITIONER
(BY SRI C.N. RAJU, ADVOCATE)
AND:
STATE BY K.R. PET TOWN POLICE,
K.R. PET TALUK,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
AT BANGALORE-560001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 29.09.2011
PASSED BY THE C.J. & J.M.F.C., K.R.PET. IN C.C.NO.395/2007
AND THE JUDGMENT DATED 07.09.2012 PASSED BY THE P.O.,
F.T.C., SRIRANGAPATNA IN CRL.A.NO.82/2011 AND ACQUIT
THE PETITIONER.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
2. The factual matrix of the case of the prosecution before the Trial Court is that on 19.04.2007 at about 3.45 p.m. on Santhebachanahalli - Hirisavi Road in front of the house of the complainant at Doddakyathanahalli Village, when the deceased Ramu was crossing the road to go to his house, the accused being the driver of TATA ACE Goods Auto bearing No.54/78 came in a rash and negligent manner as to endanger the human life from the side of Santhebachanalli and dashed to seven year old Ramu and as a result, the wheel of the auto ran over the abdomen of the said boy and immediately he was shifted to Chennarayapatna Hospital. After first aid treatment, when he was being shifted to K.R. Pet General Hospital for treatment, on the way to the hospital, he succumbed to the injures at 5.00 p.m. Hence, based on the complaint, the case has been registered for the offence punishable under Sections 279 and 304A of IPC and Section 134(a) and (b) of the Motor Vehicles Act ('MV Act' for short).
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3. The prosecution in order to prove the charges leveled against the petitioner, examined P.W.1 to P.W.9 and got marked the documents at Exs.P.1 to 11(a). The petitioner has not led any evidence before the Trial Court. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner for the offence punishable under Sections 279 and 304A of IPC and Section 134(a) and (b) of the MV Act and imposed substantive sentence of six months for Section 279 of IPC and fine of Rs.1,000/- and substantive sentence of one year for offence punishable under Section 304A of IPC and imposed fine of Rs.500/-. In respect of offence punishable under Sections 134(a) and (b) of MV Act, imposed fine of Rs.500/- and Rs.1,000/-. Being aggrieved by the judgment of conviction, an appeal is filed before the Appellate Court. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the conviction and sentence and hence the present revision petition is filed before this Court.
4. The learned counsel for the petitioner without arguing the matter on merits would vehemently contend that the petitioner has suffered the stroke. In support of his contention, 4 he placed the document before the Court, wherein out patient record discloses that he was clinically assessed on 10.08.2021 and noticed left side weakness from last six months and also the examination finding is that stroke on left side and he is under treatment. He needs rest and cannot walk and difficult to his routine work, bed ridden, needs exemption from attending the Court. The learned counsel also produced the OPD sheet regarding physical examination and cardiovascular examination and also produced the certificate issued by Sparsh Hospital, Department of Radiology and Imaging Sciences MRI of Whole Spine Screening, wherein the report is with regard to subtle retrolisthesis of L4 over L5 with partial wedging of L4 - degenerative changes and the impression is that features of cervical and lumbar spondylosis as described.
5. The learned counsel has also produced the document along with memo dated 25.03.2022 and the same is out patient record dated 22.03.2022, wherein also it is mentioned that there is weakness on the left hand and also left foot. MRI report dated 14.02.2022 corroborates grade I anterolisthesis of L3 over L4 vertebral body and grade I retrolisthesis of L4 over L5 vertebral body.
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6. This Court had directed the learned counsel for the petitioner to keep the petitioner present before the Court. Today, the petitioner is produced before the Court with wheel chair. Having taken note of the MRI scan dated 14.02.2022 as well as the earlier reports, the petitioner is in constant treatment. The Apex Court in its judgment dated 03.02.2020 passed in Crl.A.214/2020 in the case of ANNAPOORNA v. THE STATE OF KARNATAKA, while disposing of the matter made an observation that the occurrence is of 09.04.2006, about 14 years have elapsed. Taking note that it is an admitted fact that the appellant herself took the injured person to the hospital, but unfortunately she expired. Having taken note of the same while upholding the conviction of the appellant, modified the sentence by not upholding any substantive sentence upon her and directed the appellant to pay Rs.1.5 lakhs to the respondent as compensation under Section 357A of Cr.P.C. and also made it clear that the said amount is in addition to the award amount under the MV Act and the same shall be paid to P.W.1. The Apex Court was lenient in taking note of the incident was more than 14 years ago. In the case on hand also, the incident was taken place in 2007 and almost 1½ decade has been elapsed. 6 However, taking note of the pathetic condition of the petitioner as he is under treatment for his paralysis and MRI report confirms the same and having considered the peculiar facts and circumstances of the case and also it was an accident and not intentional act, this Court can show some lenience in view of the health condition of the petitioner and instead of ordering for sending him for jail to suffer substantive sentence, it is appropriate to modify the judgment of the Trial Court and the Appellate Court. Though the Apex Court directed to pay Rs.1.5 lakhs, taking note of the pathetic condition of the petitioner since he is also taking treatment for paralysis and he has been produced before the Court in wheel chair, it is appropriate to impose fine of Rs.75,000/- as exceptional case and the same has to be deposited within eight weeks. In default of payment of fine, the petitioner shall undergo imprisonment for a period of six months. On deposit of Rs.75,000/- before the Trial Court, the Trial Court is directed to pay the amount to the mother and if mother is not alive in favour of the father, on proper identification.
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7. Now coming to the aspect of conviction in respect of the offence under Section 279 of IPC is concerned, when the ingredients of Section 279 of IPC merges with the offence under Section 304A of IPC, the Trial Court ought not to have convicted and sentenced the petitioner for the offence punishable under Section 279 of IPC and hence it requires interference of this Court to set aside the conviction and sentence for the offence under Section 279 of IPC. If any amount is deposited, the same has to be refunded in favour of the petitioner, on proper identification. The conviction and sentence for the offence punishable under Sections 134(a) and (b) of MV Act is unaltered.
8. In view of the discussions made above, I pass the following:
ORDER
(i) The petition is partly allowed.
(ii) The conviction and sentence for the offence punishable under Section 279 of IPC is hereby set aside and the amount in deposit, if any, is ordered to be refunded in favour of the petitioner, on proper identification.8
(iii) The conviction and sentence in respect of the offence punishable under Section 304A of IPC is modified to pay fine of Rs.75,000/-
within eight weeks from today instead of substantive sentence as exceptional case. In default of payment of fine, the petitioner shall undergo imprisonment for a period of six months.
(iv) On deposit of Rs.75,000/- before the Trial Court, the Trial Court is directed to pay the amount to the mother and if mother is not alive in favour of the father, on proper identification.
(v) The conviction and sentence for the offence punishable under Sections 134(a) and (b) of MV Act is unaltered.
Sd/-
JUDGE MD