Karnataka High Court
Karisiddappa Basappa Palledu vs State By Hunsur Town Police on 14 October, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:41415
CRL.RP No. 571 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.571 OF 2017
BETWEEN:
Karisiddappa Basappa Palledu
S/o Basappa
Aged about 32 years,
Working as Driver Badge No.6224
KSRTC Puttur Depot,
Mangalore Division, Mangalore-575001.
R/at Mudola Village, Yallburga Taluk
Koppala District-583231.
...Petitioner
(By Miss Preetha M., Advocate,
Sri Sheelvant V.M., Advocate)
AND:
Digitally State by Hunsur Town Police
signed by Represented by Public Prosecutor
MALATESH
KC High Court Buildings
Location: Bangalore-560001.
HIGH ...Respondent
COURT OF (By Sri Vinay Mahadevaiah, HCGP)
KARNATAKA
This Criminal Revision Petition is filed under section 397
read with 401 Cr.P.C praying to set aside the judgment and
order dated 12.02.2014 passed by the Senior Civil Judge and
J.M.F.C., Hunsur in C.C.No.214/2011 and the judgment and
order dated 13.03.2017 passed by the VIII Additional District
and Sessions Judge, Mysuru, sitting at Hunsur in Crl.A.
No.69/2014 and etc.
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CRL.RP No. 571 of 2017
This Criminal Revision petition, coming on for hearing,
this day, order was made therein as under:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Miss Preetha M, for Sri V.M.Sheelvant, learned counsel for the revision petitioner and Sri Vinay Mahadevaiah, learned High Court Government Pleader.
2. Accused, who suffered an order of conviction dated 12.02.2014 in C.C.No.214/2011 on the file of the Senior Civil Judge and JMFC, Hunsur, for the offences punishable under Sections 279 and 304-A of the Indian Penal Code, ordering to pay fine of Rs.1,000/- for the offence punishable under Section 279 of IPC, in default, to undergo simple imprisonment for a period of three months and to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A of IPC, which was confirmed by the judgment dated 13.03.2017 passed in Crl.Appeal No.69/2014 by the VIII Addl. District and Sessions Judge, Mysuru, sitting at Hunsur, has preferred the present revision petition. -3-
NC: 2024:KHC:41415 CRL.RP No. 571 of 2017
3. Facts of the case in brief which are utmost necessary for disposal of the present revision petition are as under:
One Sri H.K.Panduranga Rao lodged a complaint with the jurisdictional police stating that on 15.11.2010 at 9.00 am, revision petitioner/ accused No.1 being the driver of the KSRTC bus bearing registration No.KA-19/F-2750 moved the bus in a rash and negligent manner while halting the bus in Hunsur bus stand and when the bus was moving in reverse direction, dashed against his wife Gayathridevi, as a result of which said Gayathridevi fell down and rear wheel of the bus ran over the body of Gayathridevi resulting in her death on the spot.
4. Based on the said complaint, Hunsur Town Police registered a case in Crime No.279/2010. After thorough investigation, driver and conductor of the offending bus were charge sheeted for the offence punishable under Sections 279 and 304-A of the Indian Penal Code.
5. Presence of the accused was secured by the learned Trial Magistrate and plea was recorded. Accused pleaded not guilty. Therefore, trial was held.
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6. In order to establish the case of the prosecution, four witnesses were examined viz., husband of the victim-Sri Panduranga Rao as P.W.1, Rangaswamy-eye witness to the incident as P.W.2, Investigating Officers viz., K.M.Madegowda and M.N.Shashidhar as P.Ws.3 and 4.
7. Among them, P.W.1 partly supported the case of the prosecution and did not identify the accused persons. However, he admits in the cross-examination by Assistant Public Prosecutor that he has given statement that accused No.2-conductor of the offending bus is also responsible for the incident. P.W.2 by name Rangaswmay who has been cited as eye witness to the incident did not support the case of the prosecution in entirety.
8. The prosecution placed reliance on eight documents which were exhibited and marked as Exs.P.1 to P.8 comprising of complaint, inquest, post mortem report, IMV report, duty certificate, statement of P.W.2, FIR and sketch.
9. Photographs produced along with the charge sheet papers depict the nature of the accident.
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10. On conclusion of recording of evidence, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded, wherein, accused No.1 has denied all the incriminatory circumstances including the accident and death of Gayathridevi.
11. Accused No.2 filed written statement as is contemplated under Section 313(4) of the Code of Criminal Procedure, wherein, he has stated that he has got nothing to do with the incident and the accident has not occurred on account of his negligence.
12. Thereafter, learned Trial Magistrate heard the parties and recorded an order of conviction for the offence punishable under Sections 279 and 304-A of the Indian Penal Code and sentenced the accused No.1 as above and acquitted accused No.2, who is the conductor of the offending bus.
13. The State did not challenge the Order of acquittal of accused No.2.
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14. Accused No.1, filed an appeal before the District Court, Mysuru in Crl.A.No.69/2014.
15. Learned Judge in the First Appellate Court, secured the records and after hearing the arguments, dismissed the appeal filed by the accused No.1 and confirmed the Order of conviction and sentence.
16. Being further aggrieved by the same, accused No.1 has preferred the present revision petition before this Court.
17. Miss Preetha M, advocate for Sri V.M.Sheelvant, learned counsel for the petitioner, reiterating the grounds urged in the revision petition vehemently contended that P.W.1 had not been acquainted with accused Nos.1 and 2 and he has not supported the case of the prosecution in entirety, and P.W.2 who is cited as an eye witness, did not support the case of the prosecution and despite the same, learned Trial Magistrate as well as the learned Judge in the First Appellate Court have wrongly convicted the petitioner resulting in miscarriage of justice and sought for allowing the revision petition. -7-
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18. Per contra, Sri Vinay Mahadevaiah, learned High Court Government Pleader supports the impugned judgment.
19. In the light of the rival contentions of the parties, this Court perused the material on record, meticulously.
20. On such perusal of the material on record, the following points would arise for consideration:
(i) Whether prosecution has successfully established that accused No.1 is guilty of offence punishable under Sections 279 and 304-A of the Indian Penal Code?
(ii) Whether the impugned judgment is suffering from patent factual error, error of jurisdiction or legal infirmity, perversity and thus calls for interference by this Court?
(iii) Whether the sentence imposed by the learned Trial Magistrate is excessive?
(iv) What Order?
21. REGARDING POINT Nos.1 TO 3: No doubt, in the case on hand, P.W.1 is the complainant and P.W.2 is the eye witness.
P.W.1 has not supported the case of the prosecution in his examination-in-chief to the extent that he was not acquainted with accused person and there was no negligence on the part of accused No.2. Therefore, to that extent, he was treated as -8- NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 hostile witness in part and with the permission of the Court, he has been cross-examined.
22. In the cross-examination, on behalf of the State he admits the suggestions given by the learned Assistant Public Prosecutor that conductor was also responsible for the accident.
23. In the detailed cross-examination of P.W.1 on behalf of accused, there is no positive material which is elicited so as to disbelieve the case of the prosecution. In the cross- examination, P.W.1 has answered that after getting down from the bus, he was moving little forward and his wife was following him. Both were holding luggages in their hands and deceased was following him at a distance of about 05 feet.
24. P.W.1 has also answered that he has filed a petition for compensation before the Motor Accident Claims Tribunal. He denied the suggestion that driver of the bus has blown the horn before taking the bus in the reverse direction.
25. P.W.1 further admits that he was not in a position to see what actually happened behind him. He admits that he had ill health and therefore his wife used to catch the seat in the bus. -9-
NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 However he denied the suggestion that there was no negligence on the part of the driver of the bus bearing No.KA- 19/F-2750. Further, he denied the suggestion that based on someone else's instructions he filed a false complaint.
26. It is also suggested to P.W.1 that in order to fetch the seat in the offending bus, deceased tried to board the bus when it was still in moving and fell down and lost her life. The said suggestion was emphatically denied by P.W.1.
27. P.Ws.3 and 4 are the investigating officers and photographs produced along with the complaint would depict the nature of the accident. No doubt, P.W.2 cited as eye witness to the incident has turned hostile to the case of the prosecution in toto.
28. The material evidence has thus been rightly appreciated by the learned Trial Magistrate while recording an order of conviction taking note of the fact that hardly there was any explanation offered by the accused No.1 who was admittedly the driver of the offending bus.
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29. A feeble attempt is no doubt made in the cross- examination to depict that contributory negligence was attributable to the deceased herself. Having taken such a plea, it was the bounden duty of the accused No.1 to probablize the said defence that has been put forward. In that direction, accused No.1 did not examine any of the witnesses nor examined himself before the Court.
30. Thus, suggestion of the accused No.1 to P.W.1 remains as suggestion on record without there being a plausible truth at the least.
31. Re-appreciating these aspects of the matter, learned Judge in the First Appellate Court has confirmed the order passed by the learned Trial Magistrate while upholding the Order of conviction and sentence.
32. Admittedly, the offending bus was being parked at the platform and was thus moving in reverse direction.
33. Taking note of the fact that the bus was being parked in the bus stand, it was the bounden duty of the accused No.1 to take all such necessary precautions to expect the unexpected
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NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 movements of the passengers. In order to establish that accused No.1 has taken necessary precautions in this regard, no material is forthcoming on record.
34. Further, the Motor Vehicles Accident Report which is marked by consent depict that there was no mechanical defect in the bus. Nature of the accident seen from the photographs produced in the case file, negligence on the part of the accused No.1 is very much visible resulting in the loss of a valuable human life.
35. Therefore, this court is of the considered opinion that prosecution is successful in establishing all the ingredients to attract the offence alleged against accused No.1.
36. Insofar as sentence is concerned, since accused No.1/revision petitioner is a professional driver and was handling the KSRTC bus for a considerable length of time, went to the extent of denying the very accident itself which is very unfortunate. No mitigating circumstance was pleaded before the Trial Court except seeking for grant of probation which was rightly rejected by the learned Trial Magistrate.
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37. In a matter of this nature, applicability of the Probation of Offenders Act is not permissible in view of the authoritative pronouncement of the Hon'ble Apex Court in the case of of State of Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182 wherein, Their Lordships in paragraph 14 and 15 have held as under:
14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction :
(Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp.
186-87, para 12) "12. ... '1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept
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NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
***
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 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the 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. 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
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NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 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 of a human being due to his callous driving of the vehicle he cannot escape from a 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.' (Dalbir Singh case [Dalbir Singh v. State of Haryana,(2000) 5 SCC 82:2004 SCC (Cri) 1208],SCC pp. 84-85 & 87, paras 1 & 13)"
15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] the appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719 :
1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] , SCC p. 735, para 16) "16. ... '5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be
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NC: 2024:KHC:41415 CRL.RP No. 571 of 2017 accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.' (Rattan Singh case [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] , SCC pp. 720-21, para 5)"
38. Taking note of these aspects of the matter, this Court is of the considered opinion that a professional driver denying the very accident itself does not deserve any sympathy or lenience especially in the absence of any mitigating circumstances pleaded before the Trial Court or before this Court.
39. Under such circumstances, sentence of imprisonment of one year is just and proper.
40. In view of the foregoing discussion, point No.1 is answered in the affirmative and point Nos.2 and 3 are answered in the negative.
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41. REGARDING POINT NO.4: In view of the finding of this Court on point Nos.1 to 4 as above, the following:
ORDER
(i) Revision Petition is dismissed.
(ii) Time is granted for the accused Nod.1 to surrender before the Trial Court, till 31st October 2024.
(iii) Office is directed to return the Trial Court Records with copy of this Order, forthwith.
Sd/-
(V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 65