Karnataka High Court
M Anthoniswamy vs State Of Karnataka on 15 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:46702
CRL.RP No. 205 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.205 OF 2016
BETWEEN:
1. M ANTHONISWAMY
S/O ANTHONIMICAL SAVIRIMUTTU
AGED ABOUT 40 YEARS
R/AT ANGTAKATTU VILLAGE AND POST
THANIKASI TALUK-044126
TAMIL NADU
...PETITIONER
(BY SRI KASHINATH.J.D FOR SRI BHANU H M, ADVOCATES)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY PSI
MALUR POLICE STATION
MALUR -563 130
KOLAR DISTRICT-563 130
Digitally REPRESENTED BY SPP
signed by
MALATESH HIGH COURT
KC BANGALORE
Location: ...RESPONDENT
HIGH (BY SMT.WAHEEDA.M.M, ADVOCATE)
COURT OF
KARNATAKA THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE PASSED BY THE LEARNED II
ADDL. CIVIL JUDGE AND JMFC, MALUR IN C.C.NO.302/2010
VIDE JUDGMENT DATED 05.05.2012, FURTHER BE PLEASED TO
SET ASIDE THE JUDGMENT CONFIRMED BY THE LEARNED I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN
CRL.A.No.19/2012 VIDE JUDGMENT DATED 09.11.2015 AND
FURTHER BE PLEASED TO ACQUIT THE PETITIONER.
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NC: 2024:KHC:46702
CRL.RP No. 205 of 2016
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 Kashinath J.D., appearing on behalf of Sri Bhanu H.M., counsel for the petitioner and Smt. Waheeda M.M., learned High Court Government Pleader.
2. Accused who suffered an order of conviction in C.C. No.302/2010, dated 05th May, 2012, on the file of II Additional Civil Judge and JMFC., Malur, confirmed in Crl.A.No.19/2012, dated 09th November, 2015, on the file of I Additional Sessions Judge, Kolar, is the revision petitioner.
3. Facts in nutshell for disposal of the present revision petition are as under:
A complaint came to be lodged with the Malur Police contending that on 08.05.2010 at about 9.30 a.m., Doddamunishwamy was proceeding on bicycle on Malur -
Hosakote road, near Petrol Bank of Chandrareddy. At that Juncture, the accused/revision petitioner, being the driver of lorry bearing No.T.N.67-P-1631, came from Hosakote towards Malur in a rash and negligent manner and dashed against the -3- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 Bicycle, whereby he fell down and sustained bleeding injuries and succumbed to the injuries on the way to the General Hospital, Malur.
4. After receipt of the complaint, police have further investigated the matter and filed the charge sheet for the offence under Section 279 and 304-A IPC against the accused.
5. Presence of the accused was secured by the learned Trial Magistrate and a plea was recorded. Accused pleaded not guilty. Therefore, trial was held.
6. In order to prove the case of the prosecution, in all seven witnesses were examined by the prosecution as P.Ws.1 to 7. Viz., the complainant, eye witness, mahazar witnesses and Investigating Agency. Prosecution also placed on record seven documents which were exhibited and marked as Exs.P.1 to P.7, comprising of complaint, spot mahazar, inquest, sketch of the place of the accident, Post Morterm report, IMV report and relevant portion of evidence of prosecution witness namely; C.W.4 who has turned totally hostile to the case of the prosecution.
7. Detailed cross-examination of P.Ws.1 and 2 who are the material witnesses, did not yield any positive material so as -4- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 to disbelieve the case of the prosecution except for minor contradictions in their evidence.
8. The cross-examination would also tend to gauge speed with which the lorry was moving and therefore, there was no rashness or negligence that would be attributed to the accused. Those suggestions were denied by the witnesses.
9. On conclusion of recording of the prosecution witnesses, accused statement as is contemplated under Section 313 Cr.P.C., was recorded, wherein the accused has denied all the incriminatory materials. Accused did not place the written statement as is contemplated under Section 313 (4) Cr PC., nor placed any defence evidence.
10. Thereafter trial Magistrate heard the parties in detail and after considering the rival contentions of the parties, applying of the principles of law enunciated in the judgment of this Court and Hon'ble Apex Court, concluded that accused is guilty of the offence punishable under Sections 279 and 304-A IPC and convicted the accused for the aforesaid offences and ordered for imprisonment of one month for the offence punishable under Section 279 IPC and six months -5- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 imprisonment for the offence punishable under Section 304-A IPC without imposing any fine.
11. State did not challenge the non imposition of the fine on the accused nor seeking enhancement of the sentence. But, accused has preferred an appeal against the said judgment in Crl.A.No.19/2012.
12. Learned judge in the First Appellate Court after securing the records, heard the parties in detail and on re- appreciation of the material evidence on record, did not find any legal infirmity or patent factual error in recording the finding of guilt on the part of the accused, dismissed the appeal of the accused.
13. Being further aggrieved by the same, accused is before this Court in this revision.
14. Sri Kashinath J.D., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that there is a contradiction in the evidence of P.W.2 and P.W.3 which has been totally ignored by the learned Trial Magistrate while passing the impugned order, terming it as minor contradiction without affecting the main -6- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 case of the prosecution, resulting in miscarriage of justice and sought for allowing the revision petition.
15. He also pointed out that mere speed is not the criteria to assess the rashness. Therefore the trial Court grossly erred in applying the principles of law enunciated in the case of Rathnashalvan v. State of Karnataka, reported in (2007) 3 Supreme Court Cases 474. Therefore, sought for allowing the revision petition.
16. Alternatively, learned counsel for the revision petitioner, also pointed out that in the event this Court upholding the conviction by imposing the fine, sentence of imprisonment may be set aside by granting the probation to the accused as there is no criminal antecedent to the revision petitioner.
17. Per contra, Smt. Waheeda M.M., learned High Court Government Pleader supports the impugned order. She also pointed out that absolutely there was no explanation offered by the accused with regard to the incident as is held in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284 and sought for dismissal of the revision petition in toto.
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18. Having heard the parties in detail this Court perused the material on record meticulously.
19. On such perusal of the material on record, following points would arise for consideration:
1) Whether the revision petitioner has made out a case that the impugned judgments are suffering from legal infirmity and perversity or patent factual errors and thus calls for interference in this revision petition?
2) Whether the sentence is excessive?
3) What order?
20. In the case on hand, accidental death of Doddamuniswamy who was a cyclist at 9.30 am., on 08.05.2010, near the petrol bunk of Chandrareddy on Malur - Hosakote road, involving the lorry bearing registration No. T.N.67-P-1631 is not in dispute, so also there is no dispute so as to the fact that the accused being the driver of the lorry, in view of the indemnity bond executed by the owner of the lorry at the time of interim custody of the lorry.
21. P.Ws.2 and 3 are the prime witnesses for establishing the case of the prosecution. No doubt there are -8- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 few contradictions in the oral testimony of P.Ws.2 and 3 which are elicited in their cross-examination.
22. Admittedly, a matter of this nature takes place when witnesses are examined and after passage of sufficient time, the witnesses cannot be expected to depose with graphic details of the incident unless they have made a note thereof or recorded the same in the digital form.
23. In the case on hand, the contradictions that have been elicited in the cross-examination of P.Ws.2 and 3 was argued before the learned Trial Magistrate.
24. Learned Trial Magistrate in paragraph No.18 of its judgment, discussed the same and has pointed out that the contradictions are minor in nature and did not affect substratum of the prosecution case in toto.
25. Admittedly, P.Ws.2 and 3 are the relatives of the deceased. Only on the ground of interestedness their testimony cannot be thrown out in toto. They did not possess any previous enmity or animosity against accused, inasmuch as they have seen the accused only at the time of incident and not earlier to that. Why would they falsely depose against a -9- NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 stranger, is a question that remains unanswered on behalf of the revision petitioner.
26. Therefore, appreciation of the material evidence on record by trial Magistrate in holding that the accused is guilty of the offence under Section 279 and 304-A IPC is thus justified.
27. Further, there was no explanation offered by the accused with regard to the incident. Accused being the lorry driver who was participated in the incident, was expected to speak about how the incident had happed, if P.Ws.2 and 3 have deposed falsely. Such requirement on the part of the accused is expected of as it is in his special knowledge.
28. The Hon'ble Apex Court in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284, at paragraph 39, has held us under.
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C., are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the
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NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
29. In the case on hand, the learned Trial Magistrate specifically put the questions raising the incriminatory materials available in the case of the prosecution.
30. Accused emphatically denied all the incriminating circumstances including the accident.
31. However, he did not place any explanation whatsoever with regard to his version as is contemplated under Section 313(4) Cr.P.C., nor explained the incident by examining himself or cleaner of the lorry.
32. Under Such circumstances, learned Trial Magistrate was justified in following the consequences with regard to the non explanation about the incident of the incident by the accused and rightly convicted the accused.
33. Said aspect of the matter has been rightly re- appreciated by the learned judge in the First Appellate Court while upholding the conviction.
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34. This Court that too in the revisional jurisdiction, cannot upset the findings recorded by the learned Trial Magistrate and confirmed by the First Appellate Court in sound and cogent reasons. Accordingly, point No.1 is answered in the negative.
35. Regarding point No.2: In the case on hand, no mitigating circumstances are raised before the learned Trial Magistrate. Further, Hon'ble apex Court in the case State of Punjab vs. Saurabh Bakshi reported in (2015) 5 SCC 182 at paragraph 14 and 15 has 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)
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NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 "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 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
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NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 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 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)
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NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 "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 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)"
36. Taking note of the above, this Court is of the considered opinion that the minimum punishment awarded by the learned Trial Magistrate, confirmed by the First Appellate Court which are in consonance with the principles of law enunciated in Saurabh Bakshi's case supra. Accordingly, point No.2 is also answered in negative.
37. Regarding point No.3: In view of findings on point Nos.1 and 2, following order is passed:
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NC: 2024:KHC:46702 CRL.RP No. 205 of 2016 ORDER
(i) Revision petition is meritless and hereby dismissed.
(ii) Time is granted for the accused/revision petitioner to surrender before the learned Trial Magistrate for serving remaining part of the sentence, till 20th December 2024.
(iii) Office is directed to return the Trial Court Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 2 Sl No.: 5