Karnataka High Court
Chandrashekar S/O Irappa Alur vs The State Of Karnataka on 25 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF MARCH, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO. 100023/2014
BETWEEN:
Chandrashekar
S/o Irappa Alur,
Aged about 29 years, Occ: Driver,
KSRTC, R/o Mantur, Tq. Hubli,
Dist: Dharwad. ... Petitioner
(By Smt. Nishanimath, Adv. for
Sri. G.I. Gachchinamath, Adv.)
AND:
The State of Karnataka,
By its PSI, North Traffic
Police Station, Hubli. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
THIS PETITION IS FILED UNDER SECTION 397
and 401 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO CALL FOR RECORDS IN RESPECT OF
CRL.A. NO.106/2013 DATED 03.12.2013 PASSED BY
THE I ADDL. DISTRICT AND SESSIONS JUDGE,
2
DHARWAD SITTING AT HUBLI AND IN RESPECT OF
THE JUDGMENT MADE IN C.C. NO.1624/2011 DATED
06.06.2013 PASSED BY THE JMFC IST COURT, HUBLI;
SET ASIDE THE IMPUGNED JUDGMENT AND
SENTENCE MADE IN CRL.A. NO.106/2013 DATED
03.12.2013 PASSED BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBLI AND
THE JUDGMENT MADE IN C.C. NO.1624/2011 DATED
06.06.2013 PASSED BY THE JMFC IST COURT, HUBLI
AND THE PETITIONER MAY KINDLY BE ACQUITTED
OF THE OFFENCES ALLEGED.
THIS PETITION COMING ON FOR ADMISSION,
THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER
The matter is posted for Admission. However, with the consent of the learned Counsel for the Revision Petitioner and the learned Additional State Public Prosecutor the matter is taken up for hearing and heard on merits and following order is passed.
2. The present revision petition is preferred against the judgment passed in C.C. No.1624/2011 by the J.M.F.C. I Court, Hubli on 6th June 2013 in convicting the petitioner/accused for the offences punishable 3 under Section 279 and 337 of I.P.C. and sentencing him to undergo simple imprisonment for 30 days and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for 30 days for the offence under Section 279 of I.P.C. and also sentencing him to undergo simple imprisonment for 15 days and to pay fine of Rs.500/-, with a default clause to undergo simple imprisonment for 30 days for the offence under Section 337 of I.P.C. and also against the orders passed in Criminal Appeal in No.106/2013 dated 3rd December 2013 passed by the I Additional District and Sessions Judge, Dharwad sitting at Hubli in confirming the judgment of conviction and sentence passed by the Trial Court.
3. The factual matrix that emanate from the records are that, the petitioner who was a driver of KSRTC Bus bearing its Registration No. KA-25/F-1685 on 14.06.2010 at about 10.50 A.M. drew the said bus in a rash and negligent manner so as to endanger human 4 life at a place in between Hubli Kusagal Railway Station Gate No.1 and thereby hit against a Tum Tum vehicle bearing its Registration No. KA-25/C-2952 and also hit against an Autorickshaw bearing its Registration No. KA-25/A-8171, caused simple injuries to the driver of the said Autorickshaw and thereby committed an offence under Section 279 and 337 of I.P.C.
4. The prosecution in all examined 12 witnesses PW-1 to PW-12 and got marked Ex.P1 to P6. The accused was also examined under Section 313 of Cr.P.C. after the prosecution evidence is completed. The Trial Court after appreciating the materials on record convicted the accused for the above said offences and sentenced to undergo punishment accordingly. The records discloses that PW-1 - Mr. Basavanneppa Gurav is the person who went to the spot on receiving the information from the Police Inspector and came to know that KSRTC bus hit against Tum Tum vehicle and as 5 well as an Autorickshaw. PW-3, PW-4, PW-6 and PW-7 are the eye witnesses to the incident. PW-3 is the person who was travelling in the Tum Tum vehicle, he sustained simple injuries during the course of the incident. PW-4 is an eye witness to the incident who was present at the time of incident. He identified the accused person and also said that the KSRTC bus driven by the accused was dashed against Tum Tum vehicle and then an Autorickshaw and also dashed against Railway Gate, caused damage to the Railway Gate also. PW-7 is also another eye witness to the incident. PW-6 is also an injured person. All these persons - PW-3, PW-4, PW-6 and PW-7 have categorically stated about the rash and negligent driving of the KSRTC bus by the accused and they categorically identified them. The injuries sustained by them were also fortified by the evidence of PW-9 - Dr. Sharanamma, Medical Officer, KIMS Hospital, Hubli, 6 who deposed that she treated PW-3 and PW-6 on 14.06.2010 and issued the injury certificates as per Ex.P6 and P7.
5. The other important material to be considered is the evidence of PW-12 - the Motor Vehicle Inspector who has examined the vehicles involved in the accident i.e. KSRTC Bus, Tum Tum vehicle and also Autorickshaw and he gave a report that there was no technical defect in the said Bus.
6. Looking to the above said evidence and also considering the cross-examination of these witnesses, the Trial Court came to the conclusion that the evidence of these witnesses have not been disturbed during the course of cross-examination. The Appellate Court also re-appreciated the above said evidence and confirmed the orders of the Trial Court. When both the Courts on facts appreciated the evidence of the witnesses in a 7 proper manner and when there is no perversity or illegality in appreciating the evidence of these witnesses, in my opinion, while exercising the powers under Section 397 of Cr.P.C., this Court cannot substitute its findings to that of the findings of the Trial Court and the First Appellate Court which were also based on the facts available on record.
7. The learned Counsel while arguing also not brought to the notice of this Court about any illegality committed by the Trial Court as well as the Appellate Court in appreciating the evidence on record. When there is strong evidence of injured eye witnesses and also supported by other independent eye witnesses and also the evidence of the Motor Vehicle Inspector, which shows that there was absolutely no technical defect in the bus. In my opinion, the appreciation of such evidence by the Trial Court and the Appellate Court does not call for any interference by this Court. Hence, 8 I don't find any strong reason to interfere with the judgment of conviction and sentence passed by the Trial Court as confirmed by the Appellate Court.
8. Lastly but not least, coming to the sentence passed by the Trial Court, in my opinion, the Trial Court has not looked into the provision under Section 71 of I.P.C. Section 71 of I.P.C. reads as follows :
"71. Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or Where several acts, of which one or more than one would by itself or themselves 9 constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences".
On plain reading of the above said provision, it clearly discloses that if two offences are alleged to have been committed by the accused if one of the offence is made up of parts of another offence, then offender shall not be punished with punishment of more than one of such offences, unless it be so expressly provided. In the light of the above said principle, the provision under Section 279 and 337 have to be read, and understood, which reads thus:
"279. Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment 10 of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337. Causing hurt by act endangering life or personal safety of others.-- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
On plain reading of the above said two provisions, Section 279 of I.P.C. - rash and negligent driving of a vehicle was made punishable i.e. to say, whoever drives any vehicle or rides in a public place in a manner so rash or negligent as to endanger human life caused hurt or any injury to other person. Similar definition is also available so far as Section 337 is concerned. Section 11 337 also takes into its compass the same definition, that is :
"Whoever causes hurt to any person by doing any act so rashly, negligently so as to endanger human life or personal safety of others".
Therefore, driving the vehicle rashly or negligently and causing hurt is there in both the provisions.
9. Therefore, in my opinion, in view of Section 71 the Trial Court ought not to have sentenced the accused for both the provisions but which carry higher punishment ought to have been select for the purpose of imposition of the punishment. Therefore, the sentence passed by the learned Trial Judge for the offence under Section 337 of I.P.C. is in proper. However, the sentence passed under Section 279 of I.P.C. is taken into consideration, Court can impose fine upto Rs.1,000/- and also sentencing the accused upto a period of six months. 12 But the Court has to say why Court has sentenced the accused with imprisonment and as well as with fine, the Court has to give its reason as to why the sentence of imprisonment and fine has been imposed. The Trial Court has to consider whether the imprisonment is absolutely necessary under the facts and circumstances of the case. Considering the injuries sustained by PW-3 and PW-6 which are mere simple in nature and the accused person is also a KSRTC Driver and he is young and energetic person aged about 28 years, there is no allegations as such any where made before the Trial Court and as well as before the Appellate Court that the accused has committed any such offences earlier and any case has been registered against him for driving the vehicle in rash and negligent manner, no previous bad antecedents alleged against the accused person. It appears, this is the first instance in his life. It is submitted on behalf of the learned Counsel that 13 accused has got old parents and also he is the only earning member of the family. Therefore, leniency has to be shown by imposing maximum fine amount by removing the imprisonment imposed by the Trial Court.
10. Under the above said circumstances, considering the above said mitigating circumstances, I am of the opinion, particularly on the basis of the facts of this case, sentence of imprisonment of 30 days is unwarranted. Imposition of fine of Rs.1,000/- is appropriate punishment under the facts and circumstances of this case.
11. Hence, with these observations, I proceed to pass the following Order :
The Revision Petition is partly allowed. The judgment of conviction passed by the Trial Court as confirmed by the Appellate Court convicting the accused person for the offences punishable under Section 279 14 and 337 of I.P.C. are hereby confirmed. Sentence passed by the Trial Court for the offence under Section 337 of I.P.C. is set aside. The sentence passed by the Trial Court for the offence under Section 279 of I.P.C. so far it relates to sentencing the accused to undergo simple imprisonment for 30 days is also hereby set aside. The imposition of fine of Rs.1,000/- by the Trial Court and the default sentence for the offence under Section 279 is maintained. Accordingly, the revision petition is disposed of.
SD/-
JUDGE Rbv