Karnataka High Court
Sri Veerappa V vs State By Magadi P.S on 17 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.302 OF 2019
BETWEEN:
SRI. VEERAPPA.V
S/O VEEREGOWDA
AGED ABOUT 57 YEARS
R/AT ANKANAHALLI VILLAGE
KUTAGAL HOBLI
RAMANAGARA TALUK & DISTRICT - 562 159
...PETITIONER
(BY SRI. RAVIKUMARA.B.R, ADVCOATE )
AND:
STATE BY MAGADI P.S
RAMANAGAR DISTRICT
REP. BY SPP
KARNATAKA HIGH COURT BUILDING
BANGALORE - 560 001
... RESPONDENT
(BY SRI. V.S. VINAYAKA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT DATED 09.12.2014 PASSED BY THE PRINCIPAL
CIVIL JUDGE AND J.M.F.C., MAGADI IN C.C.NO.511/2010 AND
ALSO SET ASIDE THE JUDGMENT DATED 24.11.2018 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN CRL.A.NO.52/2014 AND ACQUIT THE
PETITIONER FOR THE ALLEGED OFFENCES WHICH ARE
PUNISHABLE U/S 279,337 AND 304(A) OF IPC AGAINST HIM.
2
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Though this matter is listed for admission with the consent of the parties the matter is taken up for final disposal.
2. Heard Sri.Ravikumara B.R., the learned counsel for the revision petitioner and Sri.V.S.Vinayaka, learned HCGP for the respondent- State. Perused the records.
3. The present revision petition is filed by the accused who suffered an order of conviction for the offence punishable under Sections 279, 337 and 304A of IPC and sentenced as under:
Acting U/s 255(2) of Cr.P.C., accused is found guilty and convicted of the offence punishable U/s 279, 337 & 304(A) of IPC and sentenced as follows:
1. He shall undergo Simple Imprisonment for a period of one month and to pay a fine of Rs.1,000/-, in default of Payment of fine amount, he shall undergo Simple Imprisonment for a period of 15 days for the offence punishable U/S 279 of I.P.C.3
2. He shall undergo Simple Imprisonment for a period of one month and to pay a fine of Rs.500/-, in default of payment of fine amount, he shall undergo Simple Imprisonment for a period of 15 days for the offence punishable U/S 337 of I.P.C.
3. He shall undergo Simple Imprisonment for a period of five months and to pay a fine of Rs.1,000/-, in default of payment of fine amount, he shall undergo Simple Imprisonment for a period of one month for the offence punishable U/S 304(A) of I.P.C.
The aforesaid sentences shall run
consecutively".
4. The order of conviction was confirmed by the learned Judge in the first Appellate Court in Crl.Appeal No.52/2014 by judgment dated 24.11.2018.
5. Brief facts of the case are as under:-
Upon a complaint lodged by Sri.Nataraju,(PW-2), Magadi Police Station registered a case against the accused for the offences punishable under Sections 279, 337 and 304A of IPC. In the complaint, it is contended that on 11.06.2010 at about 8.50 a.m., 4 within the jurisdiction of Magadi Police Station, on Magadi-Huliyurdurga Road, near Vishwanathapura gate, accused being the driver of the Kisan Bus, bearing Registration No.KA-01-C-3222 drove the same from Magadi towards Huliyurdurga in a rash and negligent manner and dashed against the two wheeler TVS XL Super motor cycle which was proceeding towards Vishwanathapura Gate Balaram Farm, as a result of which, the rider of the two wheeler by name Narayana and pillion rider by name Nataraju fell down and bus ran over Narayana and he died on the spot and the pillion rider sustained simple injuries on his back and thereafter, bus also dashed against another person who was standing on the foot path viz., N.P.Kumara and he also succumbed to the injuries.
The police after registering the case, investigated the matter thoroughly and laid the charge sheet against the accused for the aforesaid offences. The plea was 5 recorded and the accused pleaded not guilty and as such, trial was held. In order to prove the case of the prosecution, prosecution in all examined 6 witnesses as PW-1 to PW-6 and relied on documentary evidence which were exhibited and marked as Exhibits P1 to P11. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 of Code of Criminal Procedure was recorded wherein the accused denied all the incriminating circumstances. However, the accused did not chose to file any written submissions as is contemplated under Section 313 (5) of Code of Criminal Procedure nor adduced any defence evidence on his behalf.
Thereafter, the learned Magistrate after hearing the parties in detail passed the order of conviction and sentenced the accused as referred to supra. Being aggrieved by the same, the accused preferred an appeal before the District Court in Crl.A.No.52/2014. 6 The learned judge in the first Appellate Court secured the records and after hearing the parties in detail by judgment dated 24.11.2018 dismissed the appeal filed by the accused and confirmed the order of conviction and sentence passed by the learned Magistrate. Being aggrieved by the same, the accused is in revision.
6. The learned counsel for the revision petitioner Sri.Ravikumara, vehemently contended that both the Courts have wrongly convicted the accused by placing reliance on oral testimony of PW-2. He also contended that the material on record clearly indicates that the accused is not at all negligent in the incident and it is the rider of the two wheeler who was negligent in riding the two wheeler and as such, the trial Court and the first Appellate Court ought not to have convicted the accused for the aforesaid offences. He also pointed out that both the Courts failed to note that PW-1 has turned hostile and in his cross- 7 examination, he has only stated that he has signed mahazar in the hospital and he did not know the contents of Ex.P1 and nothing is elicited in his cross- examination by the prosecution. He also contended that both the Courts failed to consider that PW-2 has clearly admitted that Vishwanathapura Gate was just at a distance of 20 feet from the place of accident and every bus which comes from Magadi halts at Vishwanathapura gate and therefore, within 20 feet if the accident has occurred, the bus could not have been moved in a high speed and therefore, there is no rash and negligent driving of the bus as is admitted by PW-2 and hence, sought for allowing the revision petition. He also contended that there are material contradiction from the oral testimony of PW-2 and the contents of Ex.P2 and the same is not properly appreciated by the trial Magistrate and ignored by the first Appellate Court and sought for allowing the 8 revision petition. He further contended that both the Courts failed to consider that PW-5, who is the owner of the vehicle has clearly stated in his evidence that the revision petitioner was not the driver of the bus and therefore, there is a dispute as to the identity of the accused in the case and therefore, sought for allowing the revision petition. He also pointed out that the doctor, who is examined as PW-4 has clearly admitted in her cross-examination that injury sustained by PW-2 may happen even on a fall on the hard object and therefore, he is not injured in the incident and the same is ignored by the trial Magistrate and the learned Judge of the first Appellate Court and sought for allowing the revision petition by granting the benefit under the probation of offenders act.
7. Per contra, learned High Court Government Pleader opposed the Revision Petition by contending 9 that the defense taken by the accused is that the deceased himself was negligent and that is caused for the accident as could be seen from the suggestion made to PW.2. He further contended that such a theory was not proved by placing at least plausible evidence on record and as such, the suggestion remained on a suggestion on record without there being any plausible view. Under such circumstances, the finding recorded by the learned Magistrate and upheld by the First Appellate Court is based on sound and logical reasons and therefore, needs no interference. He argued that the lenient view cannot be taken in this case by granting probation to the accused inasmuch as there are two deaths and one injured in the case and the accused has not offered any explanation as to the accident nor any mitigating circumstance was pleaded before the learned Magistrate or before the First Appellate Court and as 10 such, the alternate submission needs to be brushed aside.
8. He further contended that in a matter of this nature, jail must be a rule as is propounded by the Hon'ble Apex Court in the case of State of Punjab v. Saurabh Bakshi, reported in (2015) 5 SCC 182 and prayed for dismissal of the Revision Petition.
9. In view of the rival contentions and having regard to the scope of the Revision Petition, the following points that would arise for consideration are:
"1. Whether the finding recorded by the learned Magistrate that the accused is guilty of the offences punishable under Sections 279, 337 and 304(A) IPC and confirmed by the First Appellate Court is suffering legal infirmity, perversity and thus, calls for interference?
2. Whether the sentence is excessive?"
10. In the case on hand, the accidental death of Kumara and Narayana and accidental injury 11 sustained by Nataraj (PW.2) involving a TVS XL Moped and bus bearing No.KA-01-C-3222 on 11.06.2010 at about 8.50 a.m. near Vishwanathapura Gate within the limits of Magadi town police Station stands established by placing oral and documentary evidence on record. At the time of release of the bus, the owner of the bus has given a statement before the Police that it is accused who was the driver of the offending bus. Therefore, there is no dispute as to the identity of the accused. While cross examining PW.2, a suggestion is made to PW.2 that Narayana and Nataraj were traveling in the TVS XL Moped and due to their negligence, the accident had occurred and Kumara and Narayana lost their life and Nataraj sustained accidental injuries. In other words, by putting such a suggestion to PW.2, the defense has admitted the accident and therefore, there is no iota doubt in the mind of this Court that finding recorded 12 by the trial Magistrate and upheld by the First Appellate Court that the bus bearing No.KA-01-C- 3222 is responsible for the accidental death of Narayana and Kumara and accidental injuries sustained by Nataraj. It is a specific case of the prosecution that the bus hit the TVS XL from the hind side and whereby the rider Narayana fell down on the Road and injured Nataraj fell down on the left side of the vehicle i.e. on the foot path and hind wheel of the bus ran over the head of the Narayana and Narayana lost his life on the spot and after dashing against the TVS XL motorcycle, bus also dashed against the Kumar, who was standing on the foot path few yards away from the place of accident resulting in fatal injuries to Kumar and he also lost his life on the spot.
11. Learned counsel for the Revision Petitioner however, contended that the mahazer marked at Ex.P1, the trial marks are found with pieces of meat 13 and brain pieces and skin only on the hind wheel of the bus and therefore, the theory put for by the prosecution that bus hit the XL TVS from the hind side cannot be believed. He also drew the attention of this Court about contents of the panchanama showing that the bus was facing towards south and therefore, the accident as is propounded by the prosecution did not occur.
12. It is pertinent to note that the testimony of PW.2 is to be kept on a higher pedestral inasmuch as he is the injured eye witness. It is also pertinent to note that PW.2 is a total stranger to the accused, who did not possess any previous animosity or enmity against the accused to depose falsely and allow the real culprit to escape away from the rigors of law. Under such circumstances, trial Magistrate taking note of the fact that the testimony of PW.2 was sufficient enough to prove the negligent act of the accused in 14 driving the offending bus bearing No.KA-01-C-3222 and rightly convicted the accused for the offences punishable under Sections 279, 339 and 304(A) of IPC. Furthermore, in a case of this nature, accused is bound to have his say or his version about the incident by placing sufficient oral and documentary evidence on record. In this regard, this Court gainfully places reliance on the judgment of the Hon'ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284, it has been held as 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 15 this opportunity to the accused is the mandatory duty of the Court. If the 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."
13. Applying the legal principles of law enunciated in the above case to the case on hand, it is seen that the accused has failed to offer his version as to the incident before the trial Court. Accused did not chose to place written submission as contemplated under Section 313(5) Cr.P.C. or at least examined himself as a defence witness to place his version in the case. In other words, he deliberately failed to utilize opportunity granted by the trial Court at the time of recording the accused statement or by leading defence evidence. Under such circumstances, consequences in law should automatically follow and 16 the same has been done by the learned Magistrate and re-appreciated by the learned Judge in the First Appellate Court. No doubt, a feeble attempt is made by the learned counsel for the Revision Petitioner to distinguish the facts and circumstances of the case by relying on the judgment of the Hon'ble Apex Court in the case of Mahadeo Hari Lokre vs. The State of Maharashtra reported in 1972 CriLJ journal 49 wherein it has been held as under:
"4. It must be said that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. All that PW 2 Vijay Kumar, the friend of the deceased, was able to say was that the deceased left him at point B. Since the deceased came under the left front wheel, it can be only inferred that he must have crossed the road to the Western Side. That seems to be borne out by the FIR of PW 1 Dayanand who says that when he was standing near point C he saw Ravikant going by the C.P. Tank Road towards tin batti, that is, towards the North and at that 17 time he saw bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14′ away from the Western Kerb of the road. Secondly in his evidence before the Court Dayanand, PW 1 did not stick to this case in the FIR. He stated that Ravikant was actually crossing from the Western Side of the road to the Eastern Side of the Road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the driver of the bus would see him in front and if he dashed against 18 Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the driver. It may have been, perhaps, fool- hardy on the part of Ravikant to walk in the middle of the road about 14′ away from the Kerb. But that would not justify the bus driver knocking him down after taking due note that he was walking straight in front of the bus. But the case assumes a different complexion if we agree with the sole eyewitness in the case Dayanand PW 1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the road from West to East without taking note of the approaching bus there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road the bus driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent."19
14. As could be seen from the above decision, it is crystal clear that in that case the deceased was a pedestrian, who suddenly came on the road whereby the driver of the bus could not stopped the vehicle and therefore, no negligence was attributed to the driver of the bus. But, fact of this case is all together different inasmuch as the deceased Narayana was the rider of the two wheeler and the bus has hit the two wheeler from hind side. Insofar as the another victim namely Kumara, who was standing on the footpath and the bus after hitting the two wheeler also dashed against the Kumara whereby both Narayana and Kumara lost their lives and Nataraj sustained grievous injuries. Under such circumstance, the judgment relied on by the learned counsel for the Revision Petitioner in the case of Mahadeo Hari Lokre stated supra is of no avail in recording altogether different 20 finding from that of the learned Magistrate and confirmed by the First Appellate Court.
15. Learned counsel for the Revision Petitioner also relied upon the judgment of the Kerala High Court in the case of P.Rajappan v. State of Kerala reported in 1986 CRI.L.J. 511, wherein the Hon'ble High Court of Kerala held that rash or negligence cannot be inferred from the fact that the incident resulted in injury or death of a pedestrian. Again the facts of the case in the said case is altogether different from the facts of the present case. Moreover, the order of the learned Single Judge of the Kerala High Court is not binding on this Court. Accordingly, the same is also not much use in reversing the finding recorded by the trial Magistrate and confirmed by the First Appellate Court. Materials available on record do clearly and categorically established the rash and negligent driving of the driver of the bus bearing 21 No.KA-01-C-3222, which has ultimately resulted in the accidental death of Narayana and Kumara and resulted in the accident injuries sustained by PW.2-Nataraju. Therefore, this Court is of the considered opinion that finding recorded by the trial Magistrate and confirmed by the First Appellate Court is based on sound, logical reasons and materials available on record. Therefore, having regard to the limited Revisional Jurisdiction, this Court is of the considered opinion that the finding recorded by the trial Magistrate and confirmed by the First Appellate Court does not required any interference and accordingly, point No.1 is answered in negative.
16. Insofar as the sentence is concerned, the trial Magistrate has awarded the sentence as referred to supra and has granted imprisonment for five months for the offence punishable under Sections 304(A) IPC.
22
17. In the case on hand, the State ought to have filed a Revision Petition seeking enhancement of sentence having regard to the fact that because of rash and negligent driving of the driver of the bus bearing No.KA-01-C-3222, two precious lives have been lost. But for the reasons best known to the State, the State did not file any revision seeking enhancement of the sentence. In a matter of this nature what is the appropriate sentence is no longer res integra. In this regard, this Court gainfully places reliance on the judgment of the Hon'ble Apex Court in the case of State of Punjab v. Saurabh Bakshi, reported in (2015) 5 SCC 182, it has been 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 23 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 "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.
*** 24
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 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 25 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 26 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)"
18. Applying the legal principles of law enunciated in the aforesaid case, this Court is of the considered opinion that the contentions urged on behalf of the Revision Petitioner that accused be granted probation cannot be countenanced in law and the punishment awarded by the learned Magistrate and confirmed by the First Appellate Court is just and proper in the absence of any Revision Petition filed by the State seeking enhancement of the sentence. However, on seeing the sentences imposed by the trial Magistrate, it is seen that 27 the punishment ordered under Sections 279 and 304(A) of IPC, it has been made as a consecutive. Such a power is not vested with the learned Magistrate. In all fairness, the sentences should have been ordered to be run concurrently. Accordingly, to that extent sentence needs to be interfered and as such, sentence needs to be modified.
Accordingly, point No. 2 is answered partly in affirmative and pass the following:
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
Sections 279, 337 and 304(A) IPC, the
sentence ordered by the trial Magistrate is modified to the extent that all the sentences should run concurrently and not consecutively.28
(iii) With the above modification, rest of the sentences stands unaltered.
(iv) Time is granted for the accused to surrender before the trial Court for serving the remaining part of the sentence till 31.12.2021.
Office is directed to return the Trial Court Record with copy of this order forthwith.
Sd/-
JUDGE Prs/KA*