Karnataka High Court
Mr Lanceton D Souza vs The State Of Karnataka By on 26 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:48482
CRL.RP No. 801 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 801 OF 2016
BETWEEN:
MR. LANCETON D'SOUZA,
S/O KASHMIR D'SOUZA,
AGED 51 YEARS,
R/O KAMBLAPADAVU HOUSE,
KURNAD POST, PAJEER VILLAGE,
BANTWAL TALUK, D.K. - 574 153.
...PETITIONER
(BY SRI. KASHINATH J.D, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
TRAFFIC EAST POLICE STATION,
KADRI, MANGALORE, D.K. - 575 003.
Digitally (REPRESENTED BY STATE PUBLIC PROSECUTOR,
signed by
MALATESH HIGH COURT BUILDINGS,
KC BENGALURU - 560 001.)
Location: ...RESPONDENT
HIGH
COURT OF (BY SMT. WAHEEDA M.M, HCGP)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 05.02.2014 PASSED BY
THE J.M.F.C.(III COURT), MANGALORE, D.K. IN
C.C.NO.345/2012 AND THE JUDGMENT ORDER DATED
12.04.2016 PASSED BY THE III ADDL. DIST. AND S.J., D.K.,
MANGALORE IN CRL.A.NO.49/2014 AND ACQUIT THE
PETITIONER OF THE CHARGES LEVELED AGAINST HIM.
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NC: 2024:KHC:48482
CRL.RP No. 801 of 2016
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Kashinath J.D., learned counsel for the revision petitioner and Smt.Waheeda M.M., learned High Court Government Pleader for the respondent/State.
2. Accused No.1 who suffered an order of conviction in CC No.345/2012 dated 05.02.2014 on the file of JMFC (III Court) Mangalore, Dakshina Kannada District for the offence punishable 0under Section 279, 338 and 304A of IPC and Section 134(a) and (b) read with Section 187 of the Indian Motor Vehicles Act (IMV Act for short) which was confirmed in Crl.A.No.49/2014 dated 12.04.2016 on the file of III Additional District and Sessions Judge, Mangalore, Dakshina Kannada District has preferred this present revision petition.
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
3.1. A complaint came to be lodged with Traffic East Police Station, Kadri, Mangaluru on 07.11.2011 alleging that on 06.11.2011 at about 6.00 p.m., Sri.Sanjeeva Shetty (deceased) -3- NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 who was going proceeding to provision store by walk in front of post office at Ramashakti Mission at Padavu village, Mangaluru.
At that juncture, accused No.2 being the driver of a mini bus, came in a rash and negligent manner from Muttappa Gudi towards Naalya Padavu on public road.
3.2. At that juncture, accused No.1 being the driver of a jeep, which was moving behind mini bus over took the said mini bus and in the process of over taking the said mini bus, dashed against Sri.Sanjeeva Shetty. As a result, Sri.Sanjeeva Shetty fell down and sustained grievous injuries and succumbed on the way to Wenlock hospital. 3.3. Accused No.1 also dashed his vehicle against C.W.2. As a result, C.W.2 also sustained fracture injury. Mini bus driver also dashed his vehicle to the compound wall of Ramashakti Mission and there was a damage caused to the compound wall.
3.4. Police after registering the case in Crime No.294/2011 conducted a detailed investigation and filed charge sheet against accused No.1 for the offence punishable under Section 279, 338 and 304A IPC and Section 134(a) and -4- NC: 2024:KHC:48482 CRL.RP No. 801 of 2016
(b) read with Section 187 of MV act and only Section 279 IPC against accused No.2 who is the driver of mini bus.
4. Presence of the accused persons were secured before the learned Trial Magistrate after taking cognizance of the aforesaid offences and plea was recorded. Accused persons pleaded not guilty and therefore, trial was held.
5. In order to prove the case of the prosecution, as many as eight witnesses were examined as P.W.1 to 8 and placed on record fifteen documents which were exhibited and marked as Exs.P.1 to 15 comprising of complaint, spot mahazar, sketch, notice under IMV Act, surety, Post-partum report of the deceased, wound certificate of the injured, inquest, FIR and IMV report.
6. Detailed cross-examination of majority of the prosecution witnesses contained only suggestions on the part of accused persons that they are deposing falsely and they are not eye witnesses to the incident. Such suggestions being denied by the prosecution witnesses, did not advance the defence of the accused persons to any extent.
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7. On conclusion of recording of prosecution evidence, learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein accused persons have denied all the incriminatory materials.
8. Accused persons did not chose to place on record any written submissions detailing out their version to the incident as is contemplated under Section 313(4) of Cr.P.C. Accused persons also did not choose to lead any evidence on their behalf.
9. Thereafter, learned Trial Magistrate heard the parties in detail and on cumulative consideration of oral and documentary evidence placed on record, convicted accused persons and passed following sentence:
"Exercising, the power under section 255(2) of Cr.P.C., the Accused No.1 is convicted for the offences punishable under sections 279, 338, 304(A) I.P.C., and Section 134
(a) and (b) of I.M.V. Act and Accused No. 2 is hereby convicted for the offence punishable under section 279 of
1.P.C. Accused Nos.1 and 2 are sentenced to undergo simple imprisonment for a period of six months and fine of Rs.2000/- each in default of payment of fine, they shall further undergo simple imprisonment for a period of one month for the offence punishable under sec. 279 IPC Further accused No.1 shall undergo simple imprisonment for a period of six months and fine of Rs.500/-, in default of payment of fine, he shall further undergo simple -6- NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 imprisonment for a period of one month for the offence punishable under sec 338 IPC.
Further accused No.1 shall undergo simple imprisonment for a period of six months and fine of Rs.2000/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of one month for the offence punishable under sec 304A IPC.
Further accused No.1 shall undergo simple imprisonment for a period of one month and fine of Rs. 300/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of one month for the offence punishable under sec 134(a) and (b) of J.M.V. Act. Exercising the power under section 428 of Cr.P.C., the sentences imposed for accused No.1 shall run concurrently.
Exercising power under section 357 Cr.P.C., out of fine amount above imposed Rs.5,000/- shall be paid to the wife (C.W.3) of deceased Sanjeeva Shetty as compensation. Remaining fine amount shall be treated as fine to State.
Free copy of judgment shall be furnished to the Accused Persons.
The interim order passed in respect of release of vehicle is hereby made absolute."
10. Being aggrieved by the same, an appeal came to be filed before the First Appellate Court by accused No.1. Said appeal was numbered as Crl.A.No.49/2012. Learned Judge in the First Appellate Court secured the records from the Trial Court and on hearing the parties, reappreciated the material evidence on record and upheld the order of conviction and sentence passed by the learned Trial Magistrate. -7-
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11. Being further aggrieved by the same, accused No.1 is before this Court, in this revision.
12. Sri.Kashinath D., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that because of the improper driving of the mini bus by accused No.2, accused No.1 could not anticipate that Sri.Sanjeeva Shetty would appear on the road all of a sudden. Therefore, no negligence could be attributed to the revision petitioner who was entitled to move his jeep in a proper manner having regard to the place of incident. As such, charge sheet filed against accused No.1 is thus incorrect especially when there was no material to charge accused No.1 for the offence punishable under Section 279 of IPC which is a sine-qua-non for attributing the offence under Section 304A of IPC and sought for allowing the revision petition.
13. Alternatively, Sri.Kashinath J.D., learned counsel for the revision petitioner also contended that since the revision petitioner is a sole bread earner of the family, this Court may enhance the fine amount and reduce the sentence of imprisonment.
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14. Per contra, Smt.Waheeda M.M., learned High Court Government Pleader for the State/respondent supports the impugned orders.
15. She contended that accused No.1 failed to exercise necessary caution while driving the jeep especially, when accused No.2 drove the mini bus in a haphazard manner. Accused No.1 being the professional driver was expected to drive the jeep by expecting an unaccepted more so, when another vehicle was moving ahead of his vehicle.
16. She further pointed out that no explanation whatsoever is offered by accused persons in respect of the incident. On the contrary, accused persons have gone to the extent of denying the very incident itself. Such persons cannot be shown any mercy or leniency by this Court as it would encourage the road traffic accidents which is in galloping trend and the Courts are not required to show any lenience as is held in the case of State of Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182 and sought for dismissal of the revision petition in toto.
17. Having heard the parties in detail, this Court perused the material on record meticulously. -9-
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18. On such perusal of the material on record, following points would arise for consideration:
1. Whether the prosecution has successfully established all the ingredients to attract the offence punishable under Section 279, 338, 304A of IPC and Section 134(a) and (b) read with Section 187 of IMV Act?
2. Whether the impugned judgment is suffering from legal infirmity or perversity or error of jurisdiction so as to interfere with the judgments in the revisional jurisdiction?
3. Whether the sentence is excessive?
4. What order?
REG.POINT Nos.1 AND 2:
19. In the case on hand, death of Sri.Sanjeeva Shetty and injury caused to P.W.4 - Sri.Yathish is not in dispute. Among them, Sri.Yathish is a chance witness, who was also moving on the road like Sri.Sanjeeva Shetty. He has described that with graphic details of the incident.
20. He has stated that at about 6.00p.m. on 06.11.2011, he was proceeding towards a grocery shop from Ramashakti Mission side. At that juncture, he noticed that a jeep came and hit another person who was also a pedestrian by name Sri.Sanjeeva Shetty. As a result, Sri.Sanjeeva Shetty
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NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 sustained grievous injuries. He also sustained grievous injuries. He had a fracture on his right leg apart from injuries on his back, abdomen and on the legs.
21. He has also stated that negligence on the part of accused No.1 in committing the accident, who not only hit Sri.Sanjeeva Shetty but also dashed against him. Accused No.2 being the driver of a mini bus, dashed the mini bus against the compound wall of Ramashakti Mission and as a result, compound wall got damaged.
22. Argument that is put forward and defence that is sought to be placed on record on behalf of the accused is that because of the negligence of accused No.2, accused No.1 could not envisage who was moving ahead of the mini bus and therefore, incident has occurred beyond human control.
23. It is also sought to be established that since the entire negligence and rashness is attributable to accused No.2, no rashness or negligence could have been attributed to the driver of the jeep, who is accused No.1. Therefore, ingredients to attract the offence under Section 279, 338 and 304A of IPC is not established by the prosecution insofar as accused No.1 is concerned.
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24. Detailed cross-examination of P.W.4 did not yield any positive material in establishing such a defence. Further, accused Nos.1 and 2 have denied all the incriminatory circumstances and did not choose to place their version on record.
25. In a matter of this nature, like any other criminal case, the prosecution is bound to establish the guilt of the accused by placing positive evidence on record. Exaplanation is to be obtained for those incriminatory circumstances which are to be put to the accused while recording the accused statement under Section 313 of Cr.P.C.; which is a mandatory duty on the part of the learned Trial Magistrate.
26. In the case on hand, such a mandatory duty has been duly discharged by the learned Trial Magistrate.
27. Recording of accused statement under Section 313 of Cr.P.C. is not a empty formality and it serves dual purpose. Firstly, the learned Trial Magistrate is required to bring it to the notice of the accused all the incriminatory circumstances and seek his explanation about the incident.
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28. Secondly, recording of the accused statement allows an accused to open up his mouth and place his version on record about the incident. If the accused deliberately fails to utilize such an opportunity, then consequences in the law has to necessarily follow.
29. In the case on hand, accused Nos.1 and 2 did not place any explanation on record explaining how the accident has occurred and it is beyond human control.
30. Under such circumstances, learned Trial Magistrate believing the testimony of injured eye witness which is always kept on a higher pedestal especially who did not nurture enmity or animosity against the accused persons and recording the order of conviction by appreciating the material evidence on record is just and proper.
31. Learned Judge in the First Appellate Court has rightly reappreciated these aspects of the matter while dismissing the appeal of accused No.1.
32. This Court also revisited into the evidentiary aspects even though it was not required under the revisional jurisdiction only with an intention to find out whether any
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NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 material is available on record which should be slightly in favour of accused No.1/revision petitioner so as to interfere with the orders of the learned Trial Magistrate. But no such material is forthcoming on record.
33. On the contrary, there is overwhelming evidence placed on record by the prosecution to establish the guilt of accused No.1/revision petitioner.
34. View of the learned Trial Magistrate and view of this Court in this regard, is supported by the principles of law enunciated by the Hon'ble Apex Court in the case of Ravi Kapur v. State of Rajasthan reported in (2012) 9 SCC 284. Accordingly, point Nos.1 and 2 is answered in affirmative and negative respectively.
REG.POINT No.3:
35. Learned Trial Magistrate in his discretion, has awarded six months imprisonment for the offence punishable under Section 304A of IPC as referred to supra. Since another injured person is there in the incident namely P.W.4, awarding separate sentence for the offence punishable under Section 279 and 338 of IPC, needs to be modified as offence under Section
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NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 279 of IPC merges with the offence under Section 338 and 304A of IPC insofar as accused No.1 is concerned. Therefore, separate sentence ordered by the learned Trial Magistrate for the offence punishable under Section 279 of IPC to the extent of six months needs to be set aside.
36. However the facts and circumstances of the case would reveal that P.W.4 suffered a fracture injury and Sri.Sanjeeva Shetty lost his life, therefore, awarding six months imprisonment which is ordered to run concurrently needs no interference in view of the principles of law enunciated by the Hon'ble Apex Court in the case of State of Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182 relied on by the learned High Court Government Pleader as referred to supra. Accordingly, sentence of imprisonment ordered by the learned Trial Magistrate except to the extent of a separate sentence under Section 279 of IPC insofar as accused No.1, needs interference. Accordingly, point No.3 is answered partly in the affirmative.
REG.POINT No.4:
37. In view of the foregoing discussions on point Nos.1 to 3 as above, following:
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NC: 2024:KHC:48482 CRL.RP No. 801 of 2016 ORDER i. Revision petition is allowed in part.
ii. While maintain the conviction of accused No.1/revision petitioner for the offences punishable under Section 279, 338 and 304A of IPC and Section 134(a) and (b) read with Section 187 of the Indian Motor Vehicles Act, separate sentence ordered by the learned Trial Magistrate, confirmed by the First Appellate Court for the offence punishable under Section 279 of IPC is hereby set aside.
iii. Rest of the sentence stands unaltered.
iv. Time is granted for the revision
petitioner/accused No.1 till 20.12.2024 to
surrender before the learned Trial Magistrate. v. Office is directed to return the Trial Court Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 75 CT: BHK