Karnataka High Court
S R Jagadeesh vs The State Of Karnataka on 22 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:22649
CRL.RP No. 577 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 577 OF 2016
BETWEEN:
S R JAGADEESH
S/O RANGEGOWDA
AGED ABOUT 32 YEARS
R/AT D NO.2410, 4TH CROSS
5TH MAIN, VINAYAKANAGAR
MYSORE-570 012.
...PETITIONER
(BY SRI. CHANDRASHEKARA K A.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
KOLLEGAL TOWN POLICE STATION
CHAMARAJANAGAR DISTRICT -571 440.
Digitally ...RESPONDENT
signed by
SUMA B N (BY SRI. CHANNAPPA ERAPPA, HCGP)
Location:
High Court of
Karnataka THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCES DATED 20.11.2014 PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC, KOLLEGAL IN
C.C.NO.539/2012 AND CONFIRMED BY THE PRINCIPAL
DISTRICT AND S.J., CHAMARAJANAGAR BY THE JUDGMENT
AND ORDER DATED 09.02.2016 IN CRL.A.NO.17/2014 FOR THE
OFFENCE P/U/S 279,337,338 AND 304(A) OF IPC AND ACQUIT
THE PETITIONER/ACCUSED.
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CRL.RP No. 577 of 2016
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Chandrashekara.K.A, learned counsel for the revision petitioner and Sri.Channappa Erappa, learned HGCP for the respondent-State
2. Revision petition is filed by the accused who suffered an order of conviction in C.C.No.539/2012 for the offence punishable under Sections 279, 337, 338 and 304(A) IPC.
3. Accused was sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 279 IPC with a default sentence of 15 days simple imprisonment and on the charge of Section 337 IPC he was sentenced to pay Rs.500/- with a default sentence of 10 days simple imprisonment and for the offence punishable under Section 338 IPC he was directed to pay fine of Rs.1,000/- with a default sentence of 15 days simple imprisonment and for the offence punishable under Section 304(A) IPC -3- NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 he was directed to pay fine of Rs.1,000/- with a default sentence of 10 days simple imprisonment, which are confirmed in Crl.A.No.17/2014 .
4. Brief facts of the case which are utmost necessary for the disposal of the present revision petition are as under:
The case was registered by the Kollegal Police Station based on the complaint where under, it has been contended that on 03.04.2012 at about 4.45 p.m., in Mudigunda Village near the bridge of Mysore to Kollegal main road, accused who is the bus driver of the bus bearing registration No. KL-05-U-9495 drove the same in the rash and negligent manner and in the curve road of the said bridge, he lost the control over the bus on account of the high speed and thereby bus fell into the ditch on the left side of the road. Because of the impact of the accident, Nanjamma wife of late Mahadevappa suffered a grievous injuries on the left side of the head and died on the spot. Other passengers of the bus also -4- NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 sustained injuries and some of them have sustained grievous injuries as well. Based on the complaint lodged by the CW.1, Police registered the case in Cr.No.44/2012 and conducted detailed investigation and filed charge sheet.
5. Learned Trial Magistrate took cognizance of the aforesaid offences and secured the presence of the accused.
6. Learned Trial Magistrate thereafter framed the charges for the aforesaid offences wherein accused pleaded not guilty and therefore trial was held.
7. In order to prove the case of the prosecution, prosecution has examined 45 witnesses including all injured witnesses and witnesses of the spot mahazar and seizure mahazar and the officers of the investigation.
8. Doctor who issued the postmortem report vide Ex.P6 in respect of deceased Nanjamma was also examined as a witness.
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016
9. Prosecution in all placed 64 documents on record, which were exhibited and marked as Ex.P1 to Ex.P64, among them Ex.P64 is a portion of the statement of the witness who did not support the case of the prosecution and majority of the prosecution witnesses supported the case of the prosecution and specifically deposed that accident has occurred only due to rash and negligent driving of the bus driver. Detail cross-examination of the prosecution witnesses did not yield any positive materials so as to disbelieve the case of the prosecution.
10. Thereafter, learned Judge recorded the accused statement as contemplated under Section 313 of Cr.P.C. Accused has admitted the accident and also admitted the fact that he was the driver of the bus in question as on the date and took up a contention that there was breakage of Neck Alarm Bolt, which has been noticed by the Inspector of Motor Vehicles and therefore, the accident has occurred not on account of human error but beyond the control of a human being.
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016
11. To substantiate the said defence, except making few suggestions to the prosecution witnesses, material witnesses namely Investigation Officer and Inspector of Motor Vehicles, no other material evidence is placed on record by the accused nor any statements as it is contemplated under Section 313 (4) of the Cr.P.C placed on record.
12. Accused for the reasons best known to him did not step into witness box and deposed before the Court that the breakage of neck alarm bolt ultimately resulted in loss of control over the bus and having regard to the allowable speed on the Mysore to Kollegala main road, the driver has to lose control over the bus and resulting in accident.
13. Under such circumstances, learned Judge after hearing the parties, came to the conclusion that the breakage of neck alarm bolt has got nothing to do with the accident and there is no positive evidence placed on record that the breakage is earlier to the accident or it is as a -7- NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 result of the accident and convicted the accused for the aforesaid offences and sentenced as referred to the supra.
14. Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.17/2014.
15. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail in the light of grounds urged in the appeal memorandum and re- appreciated the material evidence placed on record came to the conclusion that the judgment of the learned Trial Magistrate is just and proper with a proper and sound reasons and dismissed the appeal of the accused. Thereafter, the accused is before this Court in this Revision Petition.
16. Sri.Chandrashekara.K.A, learned counsel for the revision petitioner vehemently contended that taking note of the fact that the accused has admitted the accident and also taken note of the fact that he has specifically taken up a contention that the mechanical defect available in the -8- NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 bus noted by the Inspector of Motor Vehicles and giving the certificate that there was a breakage of neck alarm bolt the accident has occurred which has not been properly appreciated by both the Courts and therefore for sought for relying on the revision petition as it is fate and factual error.
17. He also pointed out that in the event of this Court upholding the conviction, the period of one year sentence of simple imprisonment may be reduced reasonably.
18. Per contra, Sri.Channappa Erappa, learned HGCP for the respondent-State supported the impugned judgment and contended that because of the impact of the accident, Nanjamma lost her life on the spot and several others passengers have suffered a simple and grievous injuries which shows the rashness of the incident that has occurred.
19. He also pointed out that the theory put forward by accused that the accident has occurred on account of -9- NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 mechanical defect and not on an account of rash and negligent driving of the accused driver, accused has been dealt by the learned Trial Magistrate extensively also by the learned Judge in the First Appellate Court in the impugned judgments and therefore same cannot be treated as patent factual errors so as to interfere with an order of conviction that too in the revisional jurisdiction and sought for dismissal of the revision petition.
20. He also pointed out that, having regard to the fact that one person has lost her life and several others have been injured, the imprisonment period of one year is just and proper for the offences punishable under Section 304(A) IPC and sought for dismissal of the revision petition in total.
21. Having heard the parties in detail, this Court perused the material on record. On such perusal of the material on record, following points arise for my consideration:
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CRL.RP No. 577 of 2016
(i). Whether the prosecution has
successfully established all ingredients to
attract the offences punishable under Sections 279, 337, 338 and 304(A) IPC?
(ii) Whether the impugned judgments are suffering from legal infirmity and perversity and thus caused interference?
(iii) Whether the sentence is excessive?
22. Regarding point Nos.1 and 2:-
In the case on hand, the accident is not in dispute so also the accused being the driver of the offending bus is not in dispute. The incident has been reported to the police by one of the injured eye witnesses. Number of the injured eye witnesses have supported the case of the prosecution. It is also not in dispute that because of the impact of the accident, one of the inmates of the bus namely Nanjamma had severe head injury on the left side of her head and lost her life on the spot. These aspects of the matter have been proved by the prosecution by
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 placing cogent and convincing material evidence on record.
23. The defence of the accused in the case on hand is that the accident has occurred not on account of the human error or by the rash and negligent driving of the accused. But it has happened on account of the mechanical defect noted by the Inspector of Motor Vehicles in the report, wherein it has been noted that there was a breakage of neck alarm bolt.
24. The said aspect of the matter has been considered by the learned Trial Magistrate and learned Judge in the First Appellate Court in the impugned judgments in extenso.
25. The fact of breakage of neck alarm bolt is not in dispute. Two things which are to be appreciated is whether the breakage of neck alarm bolt is on account of the accident or breakage of neck alarm bolt has resulted in the accident.
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26. In this account, there is no positive evidence on record. Further, having taken such a defence by the accused, mere saying that the accident has occurred due to breakage of neck alarm bolt would not be sufficient enough for the Court to hold that there no negligence at all nor there was human error. In that regard, accused was required to place some more evidence on record. No such efforts has been made by the accused. Atleast, a statement could have been made by the accused under Section 313 (4) Cr.P.C. explaining the result of breakage of neck alarm bolt resulting in accident. No such material is placed on record, in fact it is Inspector of Motor Vehicles who is the expert who could throw light on the said aspect of the matter. In the cross-examination of the Inspector of Motor Vehicles, no doubt suggestion is made but the same is denied.
27. Under such circumstances, it is hard to believe that because of the breakage of the neck alarm bolt is the cause for the accident. As such, the order of conviction
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 recorded by the learned Trial Magistrate confirmed by the First Appellate Court needs to be maintained and there is no scope for upsetting the findings of both the Courts in the revisional jurisdiction.
28. In view of the foregoing discussion, point Nos.1 and 2 are answered in affirmative and negative respectively.
29. Regarding point No.3:-
Sri.Chandrashekara.K.A, learned counsel for the revision petitioner vehemently submitted that in the event this Court maintains the order of conviction, taking note of the fact there was a loss of life of Nanjamma alone in the incident, awarding simple imprisonment for a period of 1 year is on the higher side and sought for reasonable reduction.
Sri.Channappa Erappa, learned HGCP for the respondent-State opposed the said submission on the ground that maximum period of punishment prescribed
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 under the statute is 2 years and learned Trial Judge has taken into consideration of the explanation offered and therefore granted 1 year of simple imprisonment which is just and proper in the given circumstances.
30. What is the proper and appropriate punishment for the offences under Section 304(A) IPC is always a debatable question. Various judgments of the Hon'ble Apex Court and this Court has thrown light on said aspect of the matter. The conduct of the accused also plays a role in awarding appropriate punishment in given case.
31. In the case on hand, accused did not deny the accident and also did not deny the fact that he was the driver in question as on the date of accident.
32. Further, the place of accident as could be seen from the sketch is near the bridge and there is a curve road. In a matter of this nature, the speed alone cannot be regarded as rashness. Nevertheless, Nanjamma had sustained the head injury and lost her life on the spot and
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NC: 2024:KHC:22649 CRL.RP No. 577 of 2016 few others in the bus have suffered simple and grievous injuries and the State has not filed any revision seeking any enhancement of the punishment insofar as 337 and 338 of IPC, this Court is of the considered opinion that reducing the period of punishment for the offences punishable under Section 304(A) IPC from 1 year to 9 months would meet the ends of the justice.
33. Moreover, the accused is a professional driver and was driving said bus on the same road practically everyday and therefore must have expected the unexpected on the road. Being the professional driver, while driving the said bus on the same road, he was very well aware of curve road near the bridge and therefore should have taken such necessary precaution as a normal prudent person would take. Therefore, reduction from 1 year simple imprisonment to 9 months simple imprisonment would meet the ends of justice.
34. Accordingly, point No.3 is answered partly in the affirmative.
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35. In view of the foregoing discussion, following:
ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the accused for the offence punishable under Sections 279, 337, 338 and 304(A) IPC the period of simple imprisonment awarded by the learned Trial Magistrate for the offence punishable under Section 304(A) IPC is reduced from 1 year to 9 months.
iii. The fine amount and default sentence are maintained.
iv. Rest of the sentence stands unaltered. v. Accused shall surrender before the Trial Court for serving the sentence on or before 10.07.2024.
vi. Office is directed to return the Trial Court records along with the copy of this Order forthwith.
Sd/-
JUDGE RL List No.: 1 Sl No.: 10