Karnataka High Court
Sri Kantha vs State Of Karnataka on 28 October, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:43364
CRL.RP No. 1086 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1086 OF 2016
BETWEEN:
SRI. KANTHA,
S/O SIDDAIAH @ KOTI SIDDAIAH,
AGED ABOUT 49 YEARS,
RESIDING AT HONAGONDALLI
VILLAGE, KADIME KOPPALU,
CHINUKURAL HOBLI, PANDUPURA TALUK,
MANDYA DISTRICT - 571 429.
...PETITIONER
(BY SRI. V. KODANDARAME GOWDA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY SRIRANGAPATNA POLICE,
Digitally REPRESENTED BY STATE PUBLIC
signed by
MALATESH PROSECUTOR, HIGH COURT BUILDING,
KC BANGALORE - 560 001.
Location: ...RESPONDENT
HIGH
COURT OF (BY SRI. VINAY MAHADEVAIAH, HCGP)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENTS AND SENTENCE
DATED 20.06.2015 PASSED BY THE PRL. SR. C.J. AND J.M.F.C.,
SRIRANGAPATNA IN C.C.NO.13/2014 AND ALSO SET ASIDE
THE JUDGMENT AND SENTENCE DATED 23.06.2016 PASSED BY
THE III ADDL. DIST. AND S.J., MANDYA SITTING AT
-2-
NC: 2024:KHC:43364
CRL.RP No. 1086 of 2016
SRIRANGAPATNA IN CRL.A.NO.5014/2015 AND DIRECT THE
ACQUITTAL OF THE PETR. FOR THE OFFENCES PU/S 279, 338,
304(a) OF IPC AND U/S 187 OF IMV ACT.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri V.Kodandarame Gowda, learned counsel for the revision petitioner and Sri Vinay Mahadevaiah, learned High Court Government Pleader for the respondent.
2. The present revision petition is filed by the accused/revision petitioner challenging the order of conviction and sentence passed in CC No.13/2014 dated 20.06.2015 on the file of Prl. Senior Civil Judge & JMFC, Srirangapatna for the offence punishable under Sections 279, 338 and 304(A) of the IPC read with Section 187 of the I.M.V. Act and imposed fine of Rs.10,000/- and imposed two years imprisonment for the offence punishable under Section 304(A) of the IPC, which was -3- NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 confirmed in Crl.A.No.5014/2015 dated 23.06.2016 on the file of III Addl. District and Sessions Judge, Mandya Sitting at Srirangapattana.
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
3.1 A charge sheet came to be filed against the accused for the offences punishable under Section 279, 338 and 304(A) of the IPC read with Section 187 of the IMV Act by the Srirangapattana police based on the detailed investigation conducted by the said police in respect of complaint alleging the road traffic accident that occurred on 03.07.2013 at about 5.20 p.m., on S.R.Patna-
Pandavapura public road, near Kudala Kuppe gate. Accused was the driver of the lorry bearing Reg. No.KA- 20-1677 which was proceeding from Srirangapatna towards Pandavapura in a rash and negligent manner, dashed against the back portion of the motor bike bearing Reg.No.KA-11-K-5343 which had been slowed down near -4- NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 the road hump and the rider and pillion rider of the motor bike fell down from the motor bike. Both of them sustained injuries on account of the accident and there was bleeding from the nose and mouth. By the time the medical help could be secured, on account of heavy bleeding, pillion rider died on the spot and accident was reported to the police. Rider of the motor bike, N.K.Venkategowda sustained fracture of right radius, fracture of T12 vertebra and also fracture of right temporal bone. Sandeshraj, being the eyewitness of the accident, lodged the complaint, gave a statement about the incident to the investigation agency and police, after thorough investigation, filed a charge sheet against the accused for the aforesaid offences
4. Presence of the accused was secured. He engaged a, advocate to defend him and thereafter, after completing necessary formalities, charges were framed. Accused pleaded not guilty. Therefore, trial was held. -5-
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016
5. In order to prove the case of the prosecution, in all 10 witnesses were examined on behalf of the prosecution as P.W.1 to 10 and 20 documentary evidence was placed on record, which are exhibited and marked as Ex.P.1 to 20, comprising of complaints, spot mahazar, spot sketch, postmortem report, would certificate, photographs, IMV report etc. In postmortem report marked at Ex.P.4, the injuries sustained by pillion rider M.Nagaraja were detailed out and in the would certificate marked at Ex.P.6, the injuries sustained by the rider of the motor cycle who was examined as P.W.2 is detailed out. Detailed cross-examination of P.Ws.1 and 2 did not yield any positive material so as to disbelieve the case of the prosecution or any material elicited in the cross- examination of other witnesses.
6. On conclusion of recording of evidence, learned Trial Judge recorded the accused statement in detail by putting across incriminatory materials, which have been denied by the accused. No explanation whatsoever is -6- NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 forthcoming on record either by placing defence evidence or by furnishing the statement in writing as is contemplated under Section 313(4) of the Cr.P.C.
7. Thereafter learned Trial Judge heard the parties and convicted the accused and sentenced as under:
"Acting U/s 255(2) of Cr.P.C. the accused is hereby convicted for the offences punishable under sections 279, 338 and 304(A) of IPC and under section 187 of I.M.V. Act.
The accused is sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.10,000/- for the offence punishable U/s 304(A) of IPC. In default of payment of fine, the accused is ordered to undergo Rigorous Imprisonment for a period of two months.
The accused is further sentenced to undergo Rigorous Imprisonment for a period of three months and to pay a fine of Rs.500/- for the offence punishable U/s 187 of I.M.V. Act. In default of payment of fine, the accused is ordered to undergo Rigorous Imprisonment for a period of 15 days.
All the sentences are ordered to be run concurrently.-7-
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 Bail bond and surety bond of the accused stands cancelled."
8. Being aggrieved by the same, the accused preferred an appeal before the District Court in Crl.A.No.5014/2015.
9. Learned Judge in the First Appellate Court after securing the record, heard the parties in detail and by judgment dated 23.06.2016, dismissed the appeal of the accused and confirmed the order of sentence.
10. Being further aggrieved by the same, accused is before this Court, in this revision.
11. Sri V.Kodandarame Gowda., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, contended that the place of incident, as could be seen from the spot sketch contains a road hump wherein the rider of the motor bike without giving any specific hand signal stopped the motor bike at once and the accused being the driver of the lorry did his best to avoid the accident but because of the sudden stoppage of -8- NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 the motor bike, the accident has occurred which is beyond the control of the normal human being and therefore, the Trial Court ought not to have convicted the accused for the aforesaid offences and thus, sought for allowing the revision petition.
12. However, he also contended that in the event that this Court affords the conviction, taking note of the fact that the accused has two daughters and family to maintain, the sentence of imprisonment may be set aside by enhancing the fine amount.
13. Per contra, Sri Vinay Mahadevaiah, learned High Court Government Pleader supports the impugned judgment.
14. He further contended that when there is a road hump on the road, it is the bounden duty of the driver to slowdown the vehicle and road humps are constructed on the road only to avoid the possible accident and therefore, the accused, being the professional lorry driver, should -9- NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 have taken note of the same and slowdown his lorry also so that the accident could have been avoided.
15. Moreover, the accused has not furnished this information while recording the accused statement and therefore, it is an afterthought that too for the first time before this Court, as in the cross examination of P.Ws.1, 2 and 4, altogether different version have been taken by the accused. Therefore, the impugned judgments are just and proper and sought for dismissal of the revision petition.
16. He further contended that one valuable human life has been lost and another person has been grievously injured because of the negligent driving of the lorry by the accused/revision petitioner, which has been taken note of by the learned Magistrate, while imposing maximum punishment of two years imprisonment for the offence punishable under Section 304(A) of the IPC same has been rightly re-appreciated by the learned Judge in the First Appellate Court. In absence of any specific mitigating circumstances made out by the accused, the conviction
- 10 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 and imposition of sentence is just and proper beyond the circumstances of the case and thus, sought for dismissal of the revision petition in total.
17. Having heard the parties in detail, this Court perused the material on record meticulously and following points would arise for consideration:
1. Whether the accused/revision petitioner has made a case that the impugned judgment is suffering from patent factual error, error of jurisdiction or legal infirmity resulting in the impugned judgment being termed as perverse in nature so as to call for interference from this Court in this revisional jurisdiction?
2. Whether sentence is excessive?
3. What order?
REG.POINT NO.1:
18. In the case on hand, the case of the prosecution rests on the oral testimony of the P.Ws.1, 2 and 4.
- 11 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016
19. P.W.1 is the eyewitness and complainant, P.W.2 is the injured eyewitness in the very same incident who was the rider of the motor bike, P.W.4 is the independent witness, who has seen the incident and supported the prosecution before the Court.
20. It is pertinent to note that among the prosecution witnesses, none of them have said any previous enmity or animosity so as to falsely implicate the accused in the incident. The accused being the driver of the lorry is not in dispute. Soon after accident the accused ran away from the spot is established by the prosecution. The accused did not take any steps to shift the injured to the hospital and it was the P.Ws.1 and 4, who secured medical help. By the time the medical help was secured, the pillion rider of the motor bike had already lost his life and the rider of the motor bike having been shifted to the hospital, suffered three fracture injuries.
21. A case is no doubt sought to be made out on behalf of the accused to the effect that it is the negligent
- 12 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 slowing down of the motor bike near the place of incident by the rider of the motor bike. But the suggestion made to the prosecution witnesses and the grounds that are urged before this Court run contrary to each other.
22. Further, no explanation whatsoever is forthcoming on behalf of the accused in this regard. Had the theory of the accused is to be accepted, at least accused should have stated so while recording the accused statement and examined him and the theory to establish that it is because of the improper stoppage of the motor bike near the place of the accident, the accident has occurred and it is beyond human error.
23. In the absence of such any material evidence on record, the learned Magistrate believing the old testimony of P.Ws.1, 2 and 4 and convicting the accused for the aforesaid offences, which have been re-appreciated by the learned Judge in the First Appellate Court, needs no interference by this Court that too in the revisional jurisdiction.
- 13 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016
24. In view of the forgoing discussion point No.1 is answered in the negative.
REG.POINT No.2:
25. Sri V.Kodandarame Gowda, learned counsel for the petitioner, contended that accused, being a driver of the lorry, has got family to maintain and two daughters who have to be marry and if the accused is sentenced to two years of imprisonment and the sentence of two years imprisonment ordered by the Trial Magistrate confirmed by the First Appellate Court is to be confirmed in this revision, accused will be put to untold hardship and therefore, by enhancing the fine amount, this Court may consider the reduction of the sentence period.
26. Per contra, learned High Court Government Pleader opposes the said submission on the ground that in the case on hand, the accused having not been in a position to place any mitigating circumstances, this Court cannot interfere with the discretionary order passed by the
- 14 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 Trial Magistrate, which is confirmed by the First Appellate Court and sought for dismissal of the revision petition in total.
27. Having noticed that the place of incident being the road hump is situated, even though the rash and negligence in driving the lorry has been made out by the prosecution, both rider and pillion rider not wearing the helmet is a fact that has not been considered by both the Courts.
28. Further, whenever a case of this nature is made out, the Trial Court is expected to take a pragmatic view of the entire incident. No doubt by imposing the imprisonment of two years, the learned Trial Judge has taken into consideration the principles of law as stated in Dalbir Singh v. State of Haryana reported in 2000 (5) SCC 82 and has stated that a professional driver pedals the vehicle in a locomotion almost through his business hours and therefore, he is expected to have complete attentiveness and he cannot show a single
- 15 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 movement of laxity. However, it is also to be noted that while imposing the maximum sentence, the Trial Judge is expected to assign special reasons.
29. In the case on hand, so such reasons are assigned in the order of the Trial Court with regard to sentence. Learned Judge in the First Appellate Court has the full power to reassess the material evidence and so also consider the question of an appropriate sentence being passed in respect of the offences alleged.
30. Learned Judge in the First Appellate Court in the impugned order did not discussed anything about the appropriate sentence being passed in the case. In other words, there is not re-appreciation by the learned Judge in the First Appellate Court with regard to the appropriate sentence.
31. Therefore, this Court is of the considered opinion that if the fine amount is enhanced by Rs.30,000/- i.e., Rs.10,000/- imposed by the Trial Magistrate and
- 16 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 Rs.30,000/- imposed by this Court (in all Rs.40,000/-) for the offence punishable under Section 304(A) of the IPC and out of the enhanced fine amount, if a sum of Rs.35,000/- is ordered to be paid to the defendants of the pillion rider, who lost his life and Rs.5,000/- to the injured as compensation and reduced the imprisonment period from two years to six months would meet the ends of justice.
32. Accordingly, point No.2 is answered partly in affirmative.
REG.POINT No.3:
33. In view of the findings of this Court on point Nos.1 and 2 as above, following:
ORDER i. Criminal Revision Petition is allowed in part.
ii. While maintaining the conviction of the accused for the offence punishable under
- 17 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 Sections 279, 338 and 304(A) of the IPC, the order of sentence passed by the learned Trial Magistrate confirmed by the First Appellate Court is modified as under:
iii. The sentence in respect of the offence under Section 304(A) of the IPC is reduced from two years to six months by paying the enhanced fine amount of Rs.30,000/- (in all Rs.40,000/-) on or before 30.11.2024.
Failing which the order of the Trial Magistrate with regard to the sentence stands automatically restored. iv. Rest of the sentences in respect of the other offences stands unaltered. v. The revision petitioner shall surrender before the Court on or before 30.11.2024 for serving the remaining part of the sentence.
- 18 -
NC: 2024:KHC:43364 CRL.RP No. 1086 of 2016 vi. Office is directed to return the Trial Court records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE HDK CT: BHK