Karnataka High Court
Hasansab S/O Shair Ali vs The State Of Karnataka on 21 July, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21st DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL REVISION PETITION No.2571/2012
Between:
Hasansab S/o Shair Ali,
Age: 29 Years,
Occ: Driver,
R/o Munkanpalli, Tq: Sedam,
Dist. Gulbarga
... Revision Petitioner
(By Sri. Mahantesh Desai, Advocate)
And:
The State of Karnataka,
Through Sedam P.S
Rept. By the S.P.P
High Court of Karnataka,
Circuit Bench at Gulbarga 585 101
... Respondent
(By Sri. Sheshadri Jaishankar, HCGP)
This Revision Petition is filed under Section 397
R/w 401 of Cr.P.C., praying that this Hon'ble Court to
set aside the Judgment and order of conviction dated:
30-08-2011 passed by the Hon'ble Court of JMFC at
Sedam in CC No.313/2009 and also set aside the order
of conviction and sentence passed by the Hon'ble Court
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of IV Addl. District & Sessions Judge at Gulbarga in
Criminal Appeal No.84/2011 dated: 14-05-2012
confirming the Judgement of the trial Court. The
revision petitioner be acquitted of the offence charges
against him.
This Crl. R.P. having been heard on 11-07-2017
reserved for Orders and coming on for pronouncement
of order this day, the Court made the following:-
ORDER
The present revision petition has been filed by the petitioner-accused by assailing the judgment of conviction and sentence in criminal appeal No.84/2011 dated 14.5.2012 passed by IV Addl. District and Sessions Judge, Gulbarga, whereunder the judgment of conviction and sentence passed by JMFC Court, Sedam, in CC No.313/2009 dated 30-08-2011 has been confirmed under sections 279, 337 & 304-A of IPC.
2. The gist of the allegation as per the complaint are that, on 01-02-2009 at about 8.00 a.m., Mogalamma and others in order to attend the funeral ceremony of her brother they arranged a Tom Tom 3 vehicle to go to the brother's village Alkood, they went to Alkood village in a Tom tom vehicle bearing Reg. No.KA- 32/A-9417. The petitioner/accused was the driver of the said Tom Tom vehicle. While returning the petitioner/accused driven the said vehicle rashly and negligently and when the said vehicle came near the land of Dr.Shivashankar Tallalli because of the excessive speed the said Tom Tom turtle on the side of the road and fell into the ditch and as a result of the same, inmates sustained injuries and one person died in the said accident and as such a case was registered in Crime No.21/2009 and after investigation the charge sheet was laid as against the accused. After the trial, the trial Court for having found the accused guilty convicted the accused. Being aggrieved by the said order, petitioner/accused filed the appeal before the learned District & Sessions Judge, the learned District & Sessions confirmed the order. Being aggrieved by the 4 impugned judgment, the petitioner-accused is before this Court.
3. Heard the learned counsel for the accused/petitioner and the High Court Government Pleader.
4. The main grounds urged by the learned counsel for the petitioner are that, the trial Court has not properly appreciated the evidence of the witnesses. He would contend that, offence under Sec. 279 of IPC is a technical offence and it merges with Sec. 304-A of IPC. The trial Court ought not to have imposed a separate sentence under Sec. 279 of IPC. He would further contend that, there was no rash and negligent driving of the Tom Tom by the petitioner, as such the trial Court ought not to have convicted the accused/petitioner. He would further contend that, the only evidence, which is available before the Court below is that of P.W.s 1 & 2 and even they have not stated anything about the rash 5 and negligent act and they have only stated about the speed of the vehicle and as such the Court below ought to have acquitted the accused. The said evidence is also not trust-worthy and reliable and there is no corroboration in the evidence of the said witnesses. The witnesses have also not spoken with regard to the speed of the vehicle. On these grounds, he prayed to allow the petition.
5. Per contra the learned High Court Government pleader, would contend by supporting the judgment and order passed by both the Courts. He would further contend that, the injured eyewitnesses have categorically deposed about the rash and negligent act of the petitioner/accused. The accident in question has happened due to the rash and negligent act of the accused. He further contend that, the Tom Tom vehicle because of the rash and negligent act of the petitioner/accused turtle and thereafter went out of the 6 road and fell into the roadside ditch, which itself indicates that, the petitioner/accused was rash and negligent at the time of alleged incident. On these grounds he prayed for dismissal of the petition.
6. On perusal of the records, PW 1 is the injured complainant. He has deposed that, about one year back herself and one Malamma had been to Alkood for the purpose of attending funeral in a Tom Tom and while returning at about 7.00 p.m., the said Tom Tom turtle. She has further deposed that, the driver of the vehicle in order to proceed early went fast and he put the wheel into a ditch and as a result of the same the said vehicle turtle and they sustained the injuries. She has further deposed that, the accident occurred because of the fault of driver of the Tom Tom. During the course of cross-examination of this witness all the suggestions have been denied. P.W.2 is also an injured eyewitness. He has also reiterated the evidence of PW.1. PW.3 is the 7 mahazar witness to spot, seizure of Tom Tom vehicle and inquest over the body over of the deceased as per Ex.P.2 to Ex.P.4.
7. P.W.s 4 to 6 are the injured eyewitnesses. They have not supported the case of the prosecution and they have been treated as hostile.
8. PW.7 is the Doctor, who examined injured witnesses and issued the injury certificates as per Ex.P.9 and Ex.P.10
9. P.W.8 is the P.S.I who recorded the statement of the complainant and registered the case and issued the F.I.R. PW.9 is the Circle Police Inspector who investigated the case and filed the charge sheet against the accused person.
10. On careful consideration of the evidence which has been led before the trial Court, PWs.1 and 2 are the main eyewitness to the alleged incident. They 8 have deposed, the accused brought the vehicle with high speed in order to reach the village early and at that time he put one of the wheel into the ditch and as a result of the same the said vehicle turtled and went out of the road and fell into the road side ditch. They have also deposed that, the said accident has occurred because of the fault of the accused. Though the said witnesses have not categorically stated in a technical word rash and negligent, but they have categorically stated that, the said accident has occurred due to the fault of the petitioner/accused as he is intending to reach the village early and went fast and as a result of the same the said vehicle toppled. That itself is sufficient to show that, the petitioner/accused was driving the said vehicle in rash and negligent manner, so as to endanger the human beings. When admittedly the driver was carrying the passengers in the said vehicle, then under such circumstances, he could have taken much care and caution, if because of the fault 9 and negligence of the accused the said accident has happened and the persons have sustained injuries, which itself indicates that, the driver was rash and negligent. Even the evidence indicates that, though the inmates of the vehicle requested the driver to drive it carefully, he did not heed to the said request and because of excessive speed, he did not notice the ditch and as a result of the same the vehicle toppled by the side of the road into a ditch. Though speed is not a criteria to say that the driver was rash and negligent, but the circumstances under which the accident took place by loosing the control over the vehicle and non observation of the ditch and turtling of the vehicle, it indicates that, the accused/petitioner was rash and negligent at the time of driving the said vehicle. Even during the course of cross-examination nothing has been elicited so as to discard the evidence of PW.s 1 and
2. Except suggesting that, the road was containing the pot holes, nothing has been elicited in the evidence of 10 P.Ws 1 & 2. When the road was having pot holes then under such circumstances, he should have driven the said vehicle with utter cautiousness and carefulness, non doing so, also indicates the rash and negligent act of the accused. The evidence of PW.7 also indicates that he has treated the injured in the accident and he has issued the said certificate as per Exs.P.9 and 10. It is well established principle of law that, the evidence of eyewitnesses, if it reposes the confidence of the Court and if it is consistent and corroborative and there is no material to discard the evidence of such witnesses, then under such circumstances it can be relied upon for the purpose of conviction of the accused for the alleged offences.
11. Be that as it may, further, when petitioner/accused came to be examined u/s 313 of Cr.P.C. he has not explained his stand how the accident took place. It is the accused who will be having a greater 11 opportunity to explain his stand about the manner in which the accident has taken place. When he has not made out any case, under such circumstances the evidence of eyewitness appears to be acceptable and trustworthy and it has to be taken into consideration. The overall evidence placed on record it reveals that, there is sufficient material to show that, the accident in question has occurred due to the rash and negligent act of the petitioner/accused and there is no any mechanical defect or other cause for the accident. The Trial Court and the 1st Appellate Court were justified in convicting the accused for the offences punishable under sections 279, 337 and 304-A of IPC. In this behalf the findings of both the Courts below deserves to be confirmed.
12. Second contention of the accused/petitioner is that, a separate sentence ought not to have been passed u/s 279 of IPC. By going through the records, it 12 indicates that, the trial Court has convicted the petitioner/accused on both the counts. So far as the imprisonment of sentence for the offence punishable u/s 279 of IPC is concerned, the approach adopted by the trial Court as well as the 1st Appellate Court is incorrect. The offence punishable u/s 279 of IPC though it is independent when accused is charge-sheeted u/s 304-A of IPC, then in that event an offence u/s 279 of IPC virtually merges with the main offence punishable u/s 304-A of IPC. In that light it is not advisable to sentence the accused on both these counts. The said proposition of law has been laid down in the case of Gurubasavaraj @ Bennishettappa .vs. State of Karnataka, reported in (2012) 8 Supreme Court Cases Page 734. The Hon'ble Apex Court has held as under;
"14. The next limb of submission of the learned counsel for the appellant is that when he has been acquitted under Section 279 IPC, he cannot be punished in respect of the 13 other offences as the allegation of rash and negligent act cannot be treated to have been proven. The aforesaid submission, on a first blush, may look quite attractive, but on a deeper scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The learned Appellate Judge, after due appreciation of the evidence on record as expected of an appellate Court, has come to the conclusion that the accused was driving the vehicle in a rash and negligent manner. After ascribing some reason, he has thought it apposite that a separate sentence should not be imposed under Section 279 IPC, and accordingly, he has set aside the sentence awarded by the trial Court.
15. It is apposite to state here that there is a distinction between conviction and sentence. A conviction is the proof of the offence committed by an accused. It is the proof of guilt of the offence. The punishment component is the sentence. In rama Narang v. Ramesh Narang reported in (1995) 2 SCC 513 a three-Judge Bench of this Court, after referring to Section 354 of the Code of Criminal Procedure, has stated that every judgment referred to in Section 353 of the Code, shall, inter alia, specify the offence of which the accused is convicted and the punishment to which he is 14 sentenced. This Court, while dealing with the power of the High Court under Sentence 398(1) of the Code, has observed that ordinarily an order of conviction by itself is not capable of execution under the Code, but it is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. It has been further stated that in certain situations, the order of conviction can be executable, in the sense, that it may incur a disqualification. We have referred to the aforesaid authority only to highlight that there is a distinction between a conviction and a sentence.
16. In the instant case, as the judgment of the appellate Court would show, the view has been expressed that a separate sentence under Section 279 IPC is not necessary and, accordingly, the said sentence has been set aside. The reading of the entire judgment makes it graphically clear that the conviction under Section 279 IPC has not been annulled. It is noticeable that the rash and negligent driving by the accused that resulted in the causation of injuries to the persons travelling in the trailer has been proved. There is no cavil that some have been seriously injured and one person who was grievously injured 15 breathed his last. Thus, the submission of the learned counsel for the appellant that he has been acquitted of the offence under Section 279 of IPC does not deserve acceptance, and accordingly we unhesitatingly repel the same."
13. Keeping in view the above aspect the sentence of imprisonment for the offence punishable u/s 279 of IPC is liable to be set aside.
14. Though the learned counsel for the petitioner would contend that, the witnesses have not specifically stated the speed of the vehicle but while considering the rash and negligent act, the speed is not a criteria, it is the act of the accused which has to be taken into consideration. When the witnesses have categorically stated that, the alleged accident has taken place because of the fault/rash and negligent act of the accused, then under such circumstances the contention 16 of the learned counsel for the petitioner does not hold any water and the same is liable to be rejected.
15. The learned counsel for the petitioner/accused would submit that, accused is the sole earning member and he has got a family to be nourished by him. The accident in question has taken place during 2009. If he is convicted and detained in jail, it is going to cause untold inconvenience and hardship, as such he requested to take a lenient view.
16. As per the principle enunciated by the Hon'ble Apex Court in a case of State of Karnataka .Vs. Krishnappa @ Madhugiri reported in AIR 1987 SC 867, no fly bite sentence for the offence punishable u/s 304-A of IPC should be awarded and a minimum sentence of six months to be imposed. The ratio in the above decision enumerates about minimum sentence, but it is the duty of the Court to impose proper punishment depending upon the degree of criminality 17 and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime as held in the decision reported in case of Akram Khan V/s State of West Bengal, reported in 2012(1) CRIMES 5 (SC), as under;
"In Mulla and another v/s State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decisions, this Court held as under:-
67. It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime."
17. Keeping in view the above proposition of law, on perusal of the entire records, the petitioner/accused 18 is aged about 35 years and has got dependents and already he has suffered a lot, under the circumstances the sentence of imprisonment for a period of one year for the offence punishable U/Sec.304-A of Indian Penal Code appears to be on the higher side. By imposing the punishment the petitioner/accused must be taught a lesson that he should be careful and cautious while driving the vehicle and it must also send a single in the society to the other drivers who drive the vehicle rashly and negligently. Our criminal law is a reformative as well as penative in nature and a balance has to be struck between the two things and in that light, the punishment proportionate to the offence has to be imposed. In that light, if the petitioner/accused is ordered to be sentenced for an imprisonment for a period of six months, which is the minimum and to pay a fine of Rs.5,000/- then under such circumstances, it is going to meet the ends of justice. In so far as other offences are concerned the punishment imposed by the 19 trial Court is confirmed. Keeping in view the above said facts and circumstances I pass the following:
ORDER.
Accordingly the Criminal Revision Petition is allowed in part.
The judgment and sentence passed by the trial Court and confirmed by the 1st appellate Court is modified. The sentence of imprisonment passed against the petitioner/accused for the offences punishable u/s 279 of IPC is set aside and the judgment of sentence passed by the trial Court u/sec. 337 of IPC is confirmed and in so far as the sentence of the offence U/Sec. 304-A of IPC is confirmed and sentence is modified. Accused is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-, in default he has to undergo further simple imprisonment for a period of one 20 month. However, it is made clear that, the sentences for above said offences should run concurrently.
Petitioner/accused is entitled for set off as per section 428 of Cr.P.C. The Trial Court is directed to issue modified conviction warrant to the jail authorities forthwith.
Registry is directed to send the copy of this order to trial Court forthwith and free copy of the order be furnished to the petitioner or to his counsel.
Sd/-
JUDGE MWS