Karnataka High Court
Rathish vs State By Officer on 14 October, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:41486
CRL.RP No. 686 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.686 OF 2014
BETWEEN:
1. RATHISH
S/O KRISHNANKUTTI,
AGED ABOUT 24 YEARS,
R/AT No.18, PARTHASARATHI ROAD,
CHINNASA KAD MANALI,
CHENNAI -600 068,
TAMILNADU STATE
...PETITIONER
(BY SRI BHARATH GOWDA B.R, ADVOCATE)
AND:
1. STATE BY OFFICER
INCHARGE OF POLICE STATION,
MYSORE SOUTH POLICE,
MYSORE
Digitally RPTD BY S.P.P
signed by HIGH COURT OF KARNATAKA
MALATESH BENGALURU-560 001
KC ...RESPONDENT
Location: (BY SRI VINAY MAHADEVAIAH, HCGP)
HIGH
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 AND ORDER DATED
18.01.2013, PASSED BY THE II Civil Judge AND JMFC, MYSORE
IN C.C.No.330/2007 AND ALSO JUDGMENT AND ORDER
DATED:16.08.2014 PASSED BY THE V ADDITIONAL SESSIONS
JUDGE, MYSORE IN CRL.A.NO.26/2013.
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NC: 2024:KHC:41486
CRL.RP No. 686 of 2014
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 Bharathgowda B.R., learned counsel for the revision petitioner and Sri Vinay Mahadevaiah, learned High Court Government Pleader for the respondent/State.
2. Revision petition is filed by the accused who was convicted for the offence punishable under Section 279, 337, 338 and 304-A IPC in C.C.No.330/2007, on the file of II Civil Judge and JMFC., Mysore, which was confirmed and only with regard to the sentence got modified in Crl.A.No.26/2013, on the file of V Additional Sessions Judge, Mysore.
3. Facts in brief which are utmost necessary for disposal of the revision petition are as under:
A charge sheet came to be filed by the Mysore South Police, against the accused who was the driver of the container lorry bearing registration No.T.N.20-AY-3313, which dashed against the Tata Sumo bearing registration No.KA09-9774, resulting in death of inmate of Tata Sumo and other inmates were injured.-3-
NC: 2024:KHC:41486 CRL.RP No. 686 of 2014
4. Presence of the accused was secured and charges were framed. He pleaded not guilty. Therefore, trial was held.
5. In order to establish the case of the prosecution, thirteen witnesses in all were examined as P.Ws.1 to 13 and sixteen documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.16, comprising of complaint, statement of P.W.7, spot mahazar, inquest report, PM report, wound certificates, injury certificates, IMV report, FIR and rough sketch.
6. On conclusion of recording of prosecution evidence, accused statement as is contemplated under Section 313 of Cr.P.C., was recorded, wherein the accused has denied the incriminating circumstances and offered the explanation that the driver of the Tata Sumo by over taking a KSRTC bus, has dashed against the lorry, driven by the accused and therefore, he is not responsible for the accident.
7. Later on, the learned Trial Judge heard the parties and convicted the accused and sentenced as under:
"Acting under Section 255(2) of the Cr.P.C., the Accused is hereby convicted for the offences punishable under Sec. 279, 337, 338 and 304A of the IPC.-4-
NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 Accused is convicted of the offence punishable u/Sec.279 of the IPC and sentenced to undergo a simple imprisonment for a term of three months and shall also be liable to pay a fine of Rs.500/- and in default, he shall undergo simple imprisonment for one month.
Accused is convicted of the offence punishable u/Sec.337 of the IPC and sentenced to undergo a simple imprisonment for a term of three months and shall also be liable to pay a fine of Rs.300/- and in default, he shall undergo simple imprisonment for one month.
Accused is convicted of the offence punishable u/Sec.338 of the IPC and sentenced to undergo a simple imprisonment for a term of one year and shall also be liable to pay a fine of Rs.500/- and in default, he shall undergo simple imprisonment for one month.
Accused is convicted of the offence punishable u/Sec.304A of the IPC and sentenced to undergo a simple imprisonment for a term of one year and shall also be liable to pay a fine of Rs.1,000/- and in default, he shall undergo simple imprisonment for three months."
8. Being aggrieved by the same, accused preferred an appeal before the District Court, Mysore in Crl.A.No.26/2013.
9. Learned Trial Judge in the First Appellate Court after securing the records, heard the parties in detail and confirmed the order of conviction, but reduced the sentence of -5- NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 imprisonment for the offence punishable under Section 304-A from one year to six months.
10. Operative portion of the order of the First Appellate Court reads as under:
"The Criminal Appeal No.26/2013 filed by the appellant is hereby allowed in part.
The judgment of conviction passed by II Civil Judge and J.M.F.C. at Mysore dated 18.01.2013 in C.C.No.330/2007 convicting the appellant for the offences punishable under Section 279, 337, 338 and 304-A of I.P.C. is hereby set aside, subject to following modification:
The accused/appellant is convicted of the offences punishable under Section 279, 337 and 338 of I.P.C. and sentenced to pay a fine of Rs.500/- each of the offence and in default, he shall undergo simple imprisonment for a period of one month each.
Further, the accused is convicted of the offence punishable under Section 304-A of I.P.C. and sentenced to undergo simple imprisonment for a period of six months and he shall be liable to pay a fine of Rs.1,000/- and in default, he shall further undergo simple imprisonment for one month."
11. Being further aggrieved by the same, accused has preferred the present revision petition on the following grounds:
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 That the impugned judgments passed by the Courts below are contrary to law, facts and material on record. Hence, they are liable to be set aside.
CW1 -Suresh Babu has been examined as PW1 categorically stated that the accident has taken place in a curve road and it was a sand laden lorry. But other prosecution witnesses admit that it was carrying empty gas cylinders. He also admits that both the vehicles were travelling in a zigzag manner because the road has humps. He also admits that he doesn't know the speed of the canter lorry and no vehicles were coming in the opposite direction. He admits that one KSRTC bus was running behind the Tat Sumo. He also admits that at the time of accident he can see the canter lorry within a distance of 10 feet. The said witness has also not identified the petitioner.
CW2 is one Shivakumar, also admit the presence of humps at the spot of accident and it was a curve road. During cross examination, he has categorically stated that he did not inform the police about the other inmates in the said vehicle travelling along with him. Being the humps on the road and curve, the chances of high speed of the canter lorry driven by the petitioner is not possible. Hence the section 304-A of IPC is not attracted. He also admits that one KSRTC Bus was running behind the Tata Sumo.
CW3 is Sharada, in her cross examination admitted that no vehicle was running in front of the lorry. She also admits that she was fainted soon after the incident. She admits that the Tata Sumo has fully crushed and one -7- NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 KSRTC bus was running infront of the Tata Sumo. She also admits that she doen't know where the canter lorry has hit the sumo.
CW4 is one Sowmya, she admits that Mysore- Nanjangud road is a traffic road. She also admits that the Tata Sumo was over loaded with 12 members.
CW5 is one Arjun, admits that the Tata Sumo is an eight Seater, but on the fateful day it was filled with 12 persons. He also admits that he cannot say about the speed of the lorry and also can not say whether the lorry was moving in a zig zag position, that means the canter lorry driven by the petitioner was following the straight path. He also admits that PW8 is not a regular driver and he doesn't know the nature of traffic in the Mysore- Nanjangud Road.
PW6 is one Savithramma, has admitted that she has not given any statement to the police. She also admits that she has informed the driver of the Tata Sumo to drive the vehicle fast to reach Bangalore at the earliest.
PW7 is one Ashraf who was the cleaner of the canter lorry turned hostile.
PW8 is one Basavalingappa Poojari, admits that the canter lorry was loden with goods and the Tata Sumo was also over loaded with 10 persons. He also admits that he is as agriculturist and not a regular driver. He also admits that he is not an expert is driving. He also admits that after the accident, he can see the canter lorry at a distance of 2 feet. He also admits that he had not seen the petitioner on the day of the incident. The police has -8- NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 come at about 5 p.m. to 6 p.m. on the day of the accident and prepared the Mahazar. He also added that the Mysore-Nanjangud was a busy road.
PW9 is Bojaraju, R.T.O. Mysore, has admitted when one vehicle overtakes another vehicle and the vehicle coming form the opposite direction do not stop these are every chances of causing dent to the vehicle.
PW10 is Munikrishnappa, who is the Mahazar witness to the spot. He has categorically stated that he could not say the schedule of the place of incident and also does not know as to when he has contributed the signature to the Mahazar.
PW11 is one Thimmesh Prabhu, who is the formal witness to the said incident.
PW12 is one S.Nagesh, PSI, K.R. Traffic police station, Mysore. In his cross-examination he has categorically stated that Ex.P1 has been written by police constable Prakash. He also admits that he has not taken the photographs of the vehicle on the day of the incident. He also admits that Ex.P.16 has been prepared by the subordinates of the witness. He also admits that there is curve in the spot of the accident and with humps.
PW13 is one Dharmappa, Police Inspector, White Field, Traffic Police Tane, Bangalore. In his cross examination he has stated that he did not secure the driving licence of the driver of Tata Sumo.
Based upon the above grounds mentioned the offences U/Sec. 279, 337, 338 and 304A of I.P.C. are not attracted at all and hence to be set aside.-9-
NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 That the sentence passed by the courts below is harsh and disproportionate to the nature of the offence.
Thus, viewed from any angle the impugned judgments passed by the Courts below are illegal, erroneous and contrary to the facts and circumstances of the case, hence they are liable to be set aside."
12. Sri Bharathagowda B.R., learned counsel representing the revision petitioner, reiterating the grounds urged in the petition contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused, even though it is the mistake of the driver of the Tata Sumo, resulting in the accident. Therefore, the impugned orders have resulted in miscarriage of justice and sought for allowing the revision petition.
13. Alternatively, it is contended that in the event this Court upholding the order of conviction passed by both the Courts, sentence for the offence punishable under Section 304- A IPC and impose fine alone for the aforesaid offence by enhancing the fine amount and sought for allowing the revision in part.
14. Per contra, Sri Vinay Mahadevaiah, learned High Court Government Pleader, supports the impugned order and
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 contends that admittedly charge sheet came to be filed against the driver of the lorry and if the defence put forward by the accused is to be accepted, the police would have filed charge sheet against the driver of the Tata Sumo as well.
15. He also pointed out that the material on record especially the IMV report belies the defence taken by the accused and sought for dismissal of the revision petition.
16. He also contended that at the time of releasing the container vehicle, the owner of the vehicle has executed an indemnity bond, whereunder, it has been specifically mentioned that the container lorry has met with an accident and it is the revision petitioner who was the driver of the said vehicle at the time of accident.
17. Therefore, the prosecution is successful in establishing all ingredients to bring home the guilt of the accused in proper manner which has been rightly appreciated by both the Courts and sought for dismissal of the revision petition.
18. He invited the attention of the Court to the IMV report marked at Ex.P.14, whereunder, it has been noted that the driver door is thrashed and front bumper there was a dent
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 on the right side. Insofar as the Tata Sumo is concerned, the IMV report shows that front wind screen glass , right side all window glasses, right side rear view mirror were all damaged. Entire right side body of the Tata Sumo vehicle was damaged and dash board panel was also totally damaged.
19. It is also pertinent to note that there was no burst of the tyre in IMV report which would go to show that the defence that has been taken by the accused while furnishing the answer in the accused statement is incorrect and sought for dismissal of the revision petition.
20. In view of light of rival contentions of the parties, this Court perused the material on record meticulously.
21. On such perusal of the material on record, following points would arise for consideration:
(i) Whether the prosecution has successfully established all the ingredients to attract the offences punishable under Section 279, 337, 338 and 304-A IPC against the revision petitioner?
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014
(ii) Whether the revision petitioner is able to point out patent factual defects or jurisdiction error in passing the impugned judgment?
(iii) Whether the impugned judgment is suffering from legal infirmity or perversity?
(iv) Whether the Sentence is excessive?
(v) What order?
22. In the case on hand, accident is not in dispute so also the revision petitioner being the driver of the offending lorry is also not in dispute.
23. Taking note of the factual aspects and the complaint averments, police have thoroughly investigated the matter and filed the charge sheet against the revision petitioner. Charge sheet is not challenged by the revision petitioner.
24. However, while answering the question No.19, the accused has answered that he was moving from Mysore towards Nanjangud on the left side of the road and since it was a loaded vehicle, he was moving with a speed of 20 kilometers per hour and at that juncture, there was a KSRTC bus that was
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 moving from Nanjandagudu to Myusore in the opposite direction. The driver of the Tata Sumo over took the said bus and accused has switched on the head light and stopped his vehicle. At that juncture, the tyre of the Tata Sumo got burst and the vehicle came and hit the lorry. Therefore, the accident has occurred on account of the negligent driving of the driver of the Tata Sumo.
25. In order to substantiate the said defence, no material evidence is placed on record, nor accused stepped into the witness box to prove the said aspect of the matter.
26. The cleaner of the lorry is not examined to establish the said aspect of the matter.
27. Eyewitnesses who are also injured in the very same incident, who did not nurture any previous enmity or animosity against the revision petitioner. They have specifically stated that it is because of the negligent driving of the driver of the lorry, the accident occurred.
28. Therefore, the prosecution was successful in establishing the accident by placing cogent and convincing evidence on record which requires no interference by this Court as it is concurrent finding of fact by both the Courts.
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29. Insofar as the alternate submission made on behalf of the revision petitioner that the sentence is excessive, same cannot be countenanced in law in view of the fact that the First Appellate Court itself has reduced the period of imprisonment from one year to six months in the judgment of the First Appellate Court.
30. No mitigating circumstances are found to reduce the punishment from six months as is contended on behalf of the revision petitioner in view of the authoritative principles of law enunciated by the Hon'ble Apex Court in the case of State of Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182 wherein, Their Lordships in paragraph 14 and 15 have 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
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 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) "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
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 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 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
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NC: 2024:KHC:41486 CRL.RP No. 686 of 2014 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 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)"
31. Accordingly, this Court is of the considered opinion that no case is made out by the revision petition to interfere with the orders of trial Court or the First Appellate Court.
32. In view of the foregoing discussion point No.1 is answered in affirmative and point Nos.2 to 4 in the Negative.
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33. Regarding point No.5: In view of the finding of this Court on point Nos.1 to 4, following order is passed;
ORDER
(i) Revision petition is meritless and hereby dismissed.
(ii) Time is granted for the revision petitioner to surrender before the Trial Court till 31st October 2024 to serve the remaining part of the sentence.
(iii) Office is directed to return the Trial Court Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE MR, List No.: 1 Sl No.: 50