Karnataka High Court
Ramesh vs The State Of Karnataka on 21 April, 2023
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IN THE HIGH COURT OF KARNATAKA
AT KALABURAGI
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL REVISION PETITION NO.200087/2018
BETWEEN:
Ramesh S/o Siddappa Donakar,
Age : 42 years, Occ: Driver,
R/o Sindageri, Tq. B.Bagewadi,
Dist : Vijayapur - 586 101.
... Petitioner
(By Sri Shivanand V.Pattansehtti, Advocate)
AND:
The State of Karnataka,
R/by Addl. SPP
High Court of Karnataka,
Kalaburagi Bench - 585 106
(Through Sindagi P.S
Dist : Vijayapura - 586 101)
... Respondent
(By Sri Sharanabasappa M.Patil, HCGP)
This Criminal Revision Petition is filed under
Sections 397 read with Section 401 of Cr.P.C. praying to
set-aside the judgment dated 11.10.2018 passed by the
Principal Sessions Judge, at Vijayapur in Crl.A.No.30/2018
and further be pleased to set-aside the judgment of
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conviction and order of sentence dated 02.05.2018 passed
by the Addl. Senior Civil Judge and JMFC Sindagi in
Criminal Case No.187/2014 for the offence punishable
under Sections 279 and 304(A) of IPC and offence
punishable under Section 187 of M.V.Act and acquit the
petitioner in the interest of justice and equity.
This criminal revision petition having been heard and
reserved on 31.03.2023 coming on for pronouncement of
orders, this day, the court made the following :
ORDER
Revision Petitioner-accused has filed this revision petition under Section 397 read with Section 401 of Cr.P.C being aggrieved by the concurrent findings with regard to his conviction and sentence passed in CC No.187/2014 dated 02.05.2018 by the Addl.Sr.Civil Judge and JMFC, Sindagi and confirmed in Criminal Appeal No.30/2018 dated 11.10.2018 by the Prl.Sessions Judge, Vijayapura.
2. Parties to this revision are referred to as per their rank before the trial Court for the purpose of convenience.
3. The brief and relevant facts upto this revision petition are as under:
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The accused has been charge sheeted by CPI, Sindagi Circle for the offences punishable under Section 279, 304A of IPC and Section 187 of Motor Vehicle Act. It is alleged that accused being the Driver of a lorry being registration No.MH-12/HC-8252 on 20.2.2014 at about 6.15 a.m. near Moratagi Bus Stand and primary School on National Highway no.218, Public Road, drove the same from Jewargi towards Moratgi in a rash and negligent manner endangering human life and drove the same in a zigzag way and dashed against one Manjula wife of Ramappa Mayur who was standing on the foot path to cross the road on the other side. Because of this accident, she fell down and wheels of the said lorry ran over on her and because of the same, she sustained grievous injuries and died on the spot itself. It is alleged that driver of the said lorry without informing the nearest police station ran away from the said place leaving the vehicle at the accident spot.4
4. To that effect PW.2 Arun Kumar submitted a complaint to the Sindagi Police on 20.3.2014 itself which is registered in crime no. 70 of 2014 and set the criminal law in motion. The investigation officer visited the scene of offence, conducted the inquest panchanama on the dead body of deceased Manjula as per Ex.P3, prepared the inquest panchanama in the presence of Panchas as per Ex.P1, took the photographs as per Ex.P4 and 5. He also seized the offending truck and took the photograph. Recorded the statements of the eye witnesses and other witnesses. Sent the dead body for post mortem. Requested the RTO to examine the offending truck. Obtained the IMV report and PM report as per Ex.P9 and
10. After completion of the investigation, he filed the charge sheet.
5. After filing charge sheet, cognizance of the offence was taken. Presence of the accused secured and he was enlarged on bail. Copies of the police papers were furnished to the accused as contemplated under Sec.207 5 of Cr.PC. Thereafter, the learned trial Magistrate prepared the substance of accusation against accused for the aforesaid offences read over the same to the accused for which accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, prosecution in all examined 13 witnesses and got marked Ex.P1 to P10 with respective signatures thereon and also offending truck MO No.1 and closed the prosecution evidence.
7. After closure of the evidence of the prosecution, accused was questioned under Section 313 of Cr.PC. so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.
8. After hearing the arguments and on perusal of the records, the learned trial Court found the accused guilty of the offences under Sec.279, 304A of IPC and Sec.187 of the MV Act and convicted the accused for the said offences and sentenced him as under: 6
"The accused shall pay fine of Rs.1000/- for the offence punishable U/sec.279 of IPC in default of payment of fine amount he shall undergo a simple imprisonment for 1 month.
The accused shall undergo simple imprisonment for period of 2 years for the offence punishable U/Sec.304(A) of IPC and he shall pay fine of Rs.2000/-in default to pay fine amount, he shall undergo a simple imprisonment for one month.
The accused shall pay fine of Rs.500/- for the offence punishable U/Sec.187 of MV Act in default of payment of fine amount he shall undergo a simple imprisonment for 10 days."
9. Being aggrieved by the said judgment of conviction and sentence passed against him, accused preferred criminal appeal no.30/2018 before the Prl.Sessions Judge, Vijayapura. The learned Prl.Sessions Judge,Vijayapura being the first appellate Court after securing the records and having heard the arguments of both the side upheld the judgment of conviction and sentence passed by the trial Magistrate by affirming the said Judgment.
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10. It is these judgments that have been challenged by the revision petitioner-accused by filing this revision petition on the following grounds:
The learned Courts below have manifestly passed the judgment illegally, against the facts and evidence. Offence under Section 279 of IPC is a technical offence and it merges with major offence under Sec.304A of IPC. Therefore, separate sentences could not have been awarded by the learned trial Court and the appellate Court has committed error in confirming the said judgment. The sentence so imposed by the trial Court is on higher side which is against the settled sentencing policy. No reasonable opportunity was provided before passing the sentence. The witnesses have stated in their evidence about the speed of the vehicle and there is no evidence with regard to culpable negligence on the part of the accused. This fact is not properly appreciated by the Courts below. Deceased Manjula has not taken any precaution and without taking note of approaching vehicle 8 she herself dashed to the said lorry. The witnesses so examined are all interested witnesses. There are number of contradictions and omissions in the evidence of prosecution witnesses which are not properly appreciated. The inconsistencies, discrepancies have not been looked into the Courts below. Thus, the judgment of the trial Court and Appellate Court are based upon assumptions, surmises and conjectures which require to be set aside. Amongst other grounds, it is prayed to allow this revision and set aside the impugned judgments by acquitting the accused.
11. After filing this appeal, same is admitted. Photocopies of records of trial Court and First Appellate Court are secured.
12. Heard the arguments and perused the records.
13. It is a case of accident. Before adverting to the other aspects of the case, let us ascertain regarding the proof of accident. Accused was the driver of lorry bearing registration no. MH-12/FC 8252 on 20.3.2014. He was 9 driving the said vehicle on that day at 6.15 a.m. near Moratgi Bus Stand at Primary School on National Highway No.218 being the public road. That means the said vehicle was moving from Jewargi towards Moratagi. There was an accident of the said lorry which alleged to have been dashed against one Manjula wife of Ramappa Mayur stated to have been standing on the foot path to cross the road to fetch water. In the said accident, the said Manjula died on the spot because of running over of the said lorry on her person. To that effect, a complaint was lodged by CW.1 Arun Kumar son of Muttappa shindge being the brother of the deceased before the Sindagi Police Station which is registered in Crime no.70/2014.
14. It is also the case of the prosecution that, the said accident has taken place not because of any mechanical defects in the lorry as per the IMV report. The scene of offence i.e. footpath so shown in the Panchanama is corroborated by the evidence of IO and eyewitnesses 10 show that where excactly the said accident has taken place.
15. Thus, from the inquest panchanama so prepared as per Ex.P1 in the presence of Panchas, the spot panchanama so prepared as per Ex.P3 shows that in the said accident Manjula died. The PM report so marked in this case as per Ex.P9 proves that because of the accidental injuries Manjula died. To prove that there were no mechanical defects in the said lorry Ex.P8 is the IMV report. Contents of the same are not denied.
16. Inquest Panchas, scene of offence panchas are examined as PW.1 and 2 by name Prakash Naduvintheri and Arunkumar Shindhe. There is seizure of lorry as per Ex.P5 which has caused the accident. To that effect, PW.3 Shrimatn Malagi is examined. These three witnesses have spoken about their presence at the time of preparation of inquest panchaanma, spot panchanama and seizure panchanama respectively. Though there is cross examination directed to these witnesses, they have 11 specifically stated about their presence. Denied all other suggestions. Thus, the aforesaid facts which are not specifically denied are construed to be admitted by the defence. These admitted facts need not be proved.
17. When the prosecution is able to prove the aforesaid accident and death of Manjula because of the accidental injuries, it is for the prosecution to prove that because of the rash and negligent driving of the lorry by the accused being the driver of the offending lorry, she died. To ascertain about the same, we have to read the evidence both oral and documentary adduced by the prosecution.
18. PW.1 speaks in his evidence that there was running over of lorry on the person of Manjula Mayur and because of the same, she died. He identifies photographs Ex.P2 and 6 and this fact is not denied in the cross examiantion. PW.2 Arun Kumar Shindge also states that when Manjula was crossing the road at that time a lorry 12 came from Jewargi side in a zig zag manner and dashed against Manjula. She died.
19. So far as eye witnesses are concerned, PW.4 Muttappa Singe states in his evidence that deceased Manjula was his brother's daughter. On 20.3.2014, when he was going for morning walk near the Moratgi Maharashtra Bank, one lorry from Gulbarga side came in high speed driven by its driver in a zig zag manner and dashed against Manjula who was standing on the Katcha road. It ran over her person. She died. He further states that the said accident has taken place in between 6.15 a.m. and 6.20 a.m. The driver of the said lorry stopped the lorry at a distance of 15 -20 mtrs. ahead and ran away. In his presence, photograph was taken as per Ex.P2, panchanama as per Ex.P3 and he identifies the photograph of the lorry. He says that because of the mistake on the part of the lorry driver, the said accident has taken place.
20. It is elicited in the cross-examination that, there are speed breakers inside the Moratgi Bus Stand and 13 near the said bus stand, the vehicles move slowly. The said lorry was loaded with cement. He admits that a loaded lorry moves slowly but, further clarifies that, it depends upon the driver. He denied other suggestions.
21. Taking advantage of this evidence, the learned counsel for the accused submits that, when there were speed breakers near the bus stand, the vehicles move slowly, there was no occasion for the driver i.e. accused to drive the vehicle in high speed. But, on perusal of the sketch drawn in panchanama, there is a distance of about one furlong from the scene of occurrence i.e. the accident place and the bus stop. So also, the said accident has taken place on the kachha road.
22. It is true that from the bus stand when the buses come out, they move slowly. But, this lorry was coming on the public road from Gulbarga side. Tar road is having a width of 24 ft. and on either side of the road, there exists a kachha road having width of 7 ft. each. The vehicle was moving from western side to eastern side. 14 These kachha roads are situated on northern and southern side of tar road. Even there is school zone so situated as per the sketch. The boundaries have been stated in the panchanama. Therefore, the submission that the lorry driver was driving the lorry slowly near the scene of occurrence is ruled out in view of the contents of the panchanama. Therefore, the submission of the counsel for the accused have to be rejected.
23. PW.5 Bhimashankar Naduvinkeri, PW.6 Yellappa Mayur, PW.7 Babu Kerutagi, PW.8 Bhimanna Holi, PW.9 Dhavalsab Gulbarga, are the eye witnesses. There is no cross-examination directed to PW.9 by the defence. It is recorded in the deposition of PW.9 that, on the day of evidence of this PW.9, i.e. on 14.7.2016, the Advocates of Sindagi did not attend the Court proceedings. But, though it is within the knowledge of defence, no attempt was made to recall PW.9 for the purpose of cross-examination.
24. So far as evidence of PWs. 5 to 8 are concerned, they have consistently spoken about driving of 15 the said lorry by the accused in high speed in a zigzag manner and dashing of the said lorry against said Manjula who was standing on the footpath to cross the road to fetch water. Though they have been cross examined, they are consistent that because of the rash and negligent driving of the offending lorry by its driver, the said accident has taken place. No doubt, there are some contradictions in their evidence which would not shake the basic evidence of the witnesses about rash and negligent driving of the lorry by its driver.
25. Evidence is complete as per the Indian Evidence act that there must be examination-in-chief, cross-examination and re-examination if any. In this case PW.9 is not cross examined and no attempt was made to recall PW.9 by the defence. As we have the evidence of PW.5 to 8, in the absence of cross examination of PW.9 his evidence would not help the prosecution.
26. PW.10 Ramappa Mayur is a hearsay witness and no value can be attached to the evidence of this 16 witness. His evidence can be accepted to the extent that Manjula died because of accidental injuries. PW.11 Ashok Uppin is the owner of the said Lorry who states that accused was the driver of the said lorry at the time of accident. He further states that the accused telephoned him and stated that one lady tried to come across the lorry and accident has taken place. There is no evidence of crossing the road by the said deceased at the time of accident. No such suggestions have been directed to any of the witnesses. Partly this PW.11 has been declared as hostile witness. To the extent that the PW.11 is the owner of the said lorry at the time of accident, his evidence is to be believed.
27. PW.12 Yellavva Chincholi is inquest pancha to Ex.P11 and there is no cross-examination directed to this witness. Thus, her evidence is to be accepted to the extent of her presence at the time of accident. 17
28. PW.13 is the IO who conducted investigation and filed the charge sheet. Except the denial, nothing is elicited from the mouth of IO.
29. The contents of the complaint are corroborated by the witnesses in material particulars. The scene of offence pachanama shows where exactly the said accident has taken place i.e.. extreme side of the road towards southern side i..e on kachha road. Though the driver had about 24 ft. road available towards northern side of the road but, why the driver drove the lorry on the kachha road is not explained by him. No such evidence is brought on record. So also there is no explanation offered in the statement of accused so recorded under Sec.313 of Cr.PC.
30. In accident cases, drivers are the best persons who can state what made them to drive the vehicle in such a manner. That means it was within his knowledge as to what made the accused to drive the vehicle on kachha road towards southern side though he had 24 ft.width road towards northern side. When there is no such evidence 18 and when PWs.5 to 8 consistently speak that, the driver was found driving the said offending lorry in high speed in zigzag manner proves the rash and negligent driving of the said lorry by the accused.
31. No doubt it is the duty of the prosecution to bring home the guilt of the accused beyond all reasonable doubt but when there is a direct evidence of the eye witnesses in the shape of PWs.5 to 8 about the nature of the driving of rash and negligent, it proves the ingredients of Sec.279, 304A of IPC.
32. Section 304-A of IPC by its own definition excludes the ingredients of Section 299 or 300 of IPC. An offence under Section 304-A of IPC is committed either by committing a rash act or a negligent act. There is marked distinction between rash act and a negligent act. In the case of rash act, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal 19 consequences may fallow but with hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precaution to prove their happening.
33. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against the injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. Negligence implies to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. Thus, culpable negligence is acting without the consciousness that the illegal and mischievous act will follow, but in circumstances which saw that actor or the author has not 20 exercised the caution incumbent upon him and if he had he would have had the consciousness.
34. If this analogy is applied to the facts of this case, it has come in the evidence of the witnesses that, because of the fault of the accused being the author of the crime the said accident has taken place. No doubt the expression "high speed' is vague - the term being relative one varying in concept from man to man. It is true that mere statements of the witnesses that the offending vehicle was moving in "high speed" do not indicate rashness on the part of driver. Further though he knew the nature of the road but has not taken any available precautions.
35. The general presumption of innocence of accused is also available to an accused charge sheeted for rashness and negligence in driving a motor vehicle which resulted in injury or loss of life to the inmates of the vehicle. On seeing the scene of offence as well as the nature of the accident, however there is an exception of 21 application of rule of "res ipsa loquitur". In this case, it is proved from the facts and circumstances about rashness and negligence on the part of the accused in causing the accident. The result was "cause causans". That means in this case prosecution is able to prove the death of Smt.Manjula being the proximate and immediate result of the rashness and negligence without the intervention of another's negligence.
36. Section 304-A of IPC is co-relative with Sections 279, 337 and 338 of IPC which applies to the driving of any vehicle or riding any public way in a manner so rash and negligent so as to endanger human life, or to be likely to cause hurt or injury to any person where no hurt has actually been caused. Section 304-A of IPC while being as a general as Section 338 is restricted to cases where death has been caused.
37. If this analogy is applied to the facts of this case, though accused had 24 ft. towards the northern side of the road, but, found driven the said lorry on the katcha 22 road having width of just 7 ft. where deceased Manjula was standing. When he was so driving the lorry on a public road, he must have been more conscious about life and limb of the road users. It has come in the evidence of witnesses as discussed supra that because of the fault of the accused being the author of the crime the said accident has taken place. Eye witnesses stated supra have spoken to that effect. It is true that mere statements of the witnesses that the offending lorry moving in "high speed"
do not indicate rashness on the part of the driver. The way in which the accused drove the lorry in a zigzag manner in high speed and drove the same on the kachha road leaving the main road where deceased Manjula was standing amounts to rashness on the part of the accused. That is what is happened in this case. He knew the nature of the road but, has not taken any available precaution to escape from the accident.
38. Thus in this case, the learned trial Court has appreciated the oral and documentary evidence and found 23 the accused guilty of the offences charged against him. The first appellate Court discussed the evidence so placed on record and re-appreciated the evidence.
39. The learned trial Court as well as first appellate court have observed in their respective judgments about the rash and negligent driving of the lorry by the driver. The said observations are based on the appreciation of evidence. One cannot differ from the said finding. As rightly observed by the courts below without taking proper care and caution, the accused found driving the loaded lorry in the dangerous condition. This itself is sufficient to draw inference against him that it is because of his mistake, the accident has in the said accident. I do not find any factual or legal error in such a finding recorded by the trial court and affirmed by the first appellate court. Both the courts are right in their findings in finding the accused guilty of committing offence under Sec.279 and 304A of PC.
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40. In a judgment of the Hon'ble Supreme Court of India, reported in (2015) 5 Supreme Court Cases 182 in between State of Punjab v. Saurabh Bakshi it is held that with regard to the principles of sentencing with regard of the offence as under :-
"C. Criminal Trial - Sentence -
Principles for sentencing - Deterrence - Laws can never be enforced unless fear supports them - It can never be forgotten that purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect collective interest and save every individual that forms a constituent of the collective from unwarranted hazards - Certain crimes assume more accent and gravity depending on nature and impact of crime on society - No court should ignore that being swayed by passion of mercy - it is obligation of court to constantly remind itself that rights of victim, and, on certain occasions person aggrieved as well as society at large, 25 never be marginalised - Therefore, requisite norm therefore has to be the established principles laid down in precedents - it is neither to be guided by a sense of sentimentality nor to be governed by prejudices - penal Code, 1860 - S.304-A - Penology - Deterrence (Para 1) On behalf of the respondent it was argued that the respondent was quite young at the time the accident took place and it may be an act of negligence, but the contributory facet by the Maruti car driver, the victim herein cannot be ruled out. That apart, there are mitigating circumstances for reduction of the sentence and in the obtaining factual matrix the High Court has appositely adopted the corrective machinery which also reflects the concept of proportionality that the High Court has exercised the discretion which is permissible under Section 304-A IPC, and the Supreme Court should be slow to interfere therewith. It is urged that when the compensation had been paid, the High Court has kept in view the aspect of rehabilitation of the victim and when that purpose have been 26 subserved the reduction of sentence should not be interfered with.
Partly allowing the appeal, the Supreme Court Held :
The eminent thinker and author, Sophocles, said centuries back : "Laws can never be enforced unless fear supports them." The statement has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every right-thinking citizen to show veneration to law so that an orderly, civilised and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognises. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is 27 sometimes said in an egocentric and uncivilsed manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N.Cardozo "Justice, though due to the accused, is due to the accuser too." And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. (Para 1) It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, 28 regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of sentence. The respondent stood convicted by the trial court as well by the appellate court. The findings recorded by the said two courts are neither perverse nor did they call for interference in exercise of the revisional jurisdiction. The High Court as noticed has been persuaded by the factum of payment of compensation by the respondent herein, amounting to Rs.85,000/- to the legal representatives of deceased J and his nephew and the said compensation had been directed to be paid by virtue of the order dated 19.9.2013 passed by the High Court and the compensation awarded by MACT of about Rs.12 lakhs and Rs.7.3 lakhs. (Paras 5 and 10 to 12) In the instant case the factum of rash and negligent driving has been established.
The Supreme Court has been constantly noticing the increase in number of road
accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems that driving in a drunken state, in a rash and negligent manner or driving with 29 youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the entire stage. The protagonists have lost all respect for law. A man with means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, is worse than death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental.
(Para 23)
Needless to say, the principle of
sentencing recognises the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. The High court has been swayed away by the passion of mercy in applying the principle that payment of 30 compensation is a factor for reduction of sentence of 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. The sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. (Para 24) India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving the where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, the law-makers should scrutinize, re-look and revisit the 31 sentencing policy in Section 304-A IPC, so with immense anguish. The respondent is directed to be taken into custody forthwith to suffer the remaining period of sentence. (Paras 25 and
26)"
41. Yet in another judgment of the Hon'ble Apex Court reported in (2015) 1 Supreme Court Cases 222 in between State of Madhya Pradesh v. Surendra Singh, it is held as under :-
"Penal Code, 1860 - Ss. 304-A, 279 and 337 - Death caused by rash and negligent driving - Sentencing - Proportionate punishment - Sentence of two yrs' RI and six months' RI, respectively, restored
-V died in an accident due to rash and negligent driving by respondent - accused - High Court while maintaining conviction, reduced the sentence awarded by trial court, from two years; RI respectively with fine of Rs.2500 to the period already undergone, and granted further compensation of Rs 2000 payable to widow/mother of deceased - An 32 innocent man lost his life due to negligence of respondent - However, without proper appreciation of evidence and consideration of gravity of offence, High Court has shown undue sympathy by modifying the sentence
- Held, one of the prime objectives of criminal law is imposition of adequate, just, proportionate punishment, commensurate with gravity, nature of crime and the manner in which offence is committed - Punishment should not be so lenient that it shocks the conscience of society - Awarding lesser sentence encourages any criminal and, as a result of the same, society suffers - Under sympathy by means of imposing inadequate sentence would do more harm to justice system to undermine the public confidence in the efficacy of law - Order reducing sentence to period already undergone set aside - Appeal allowed, sentence imposed by trial court restored - Criminal Trial - Sentence - Principles for sentencing - Sympathy/Misplaced sympathy.33
42. A three Judge Bench of the Hon'ble Supreme Court of India in Ahmed Hussein Vali Mohammed Saiyed and another v. State of Gujarat reported in (2009) 7 Supreme Court Cases 254, in para 99 and 100 held as under :-
"99. Finally, one more argument was advanced about the award of sentence to Liyakat Hussein alias Master Khudabax Shaikh (A-1). The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to(sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared 34 for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."
43. In the instant case, the factum of rash and negligent driving has been established. There is consistent increase in the number of accidents and vehicles drivers have been totally rash and negligent. Therefore, a principle of sentencing recognizes the corrective measures.
44. It is submitted by the learned counsel for the accused that lenient view may be taken in imposing the 35 sentence as the sentence was imposed by the trial court is exorbitant. It is the duty of the Court to consider all attending circumstances. Undue leniency cannot be shown to such offences which will adversely affect the public confidence in the efficacy of legal system. There are no mitigating circumstances brought on record by the accused to show any leniency in imposing the sentence. It is submitted that accused is a poor person and eking out his livelihood on the driver's profession and he has to maintain his family. In view of the sentencing policy, these may not be mitigating circumstance so as to show any leniency in imposing the sentence.
45. In a judgment of Hon'ble Supreme Court of India in Criminal Appeal No.844/2023 arising out of SLP Crl.2984/2018 in the case of State of Punjab vs. Dil Bahadur decided on 28.3.2023, the Hon'ble Apex Court have categorically held with regard to sentencing and have specifically observed by applying the law laid in Surendra Singh case stating that showing undue sympathy to the 36 accused is unsustainable. In the said case, the trial Court has imposed the sentence of two years RI and the Hon'ble High Court has reduced it to 8 months Simple Imprisonment. It is observed by the Hon'ble Apex Court in Para.6 of the judgment that the sentence imposed by the learned trial Court confirmed by the first appellate court (learned Sessions Court) is hereby restored. The principles so laid down in the said judgment are aptly applicable to the present facts of this case.
46. In view of law laid down by the Hon'ble Apex Court in the aforesaid judgments and after considering all the circumstances, I am of the opinion that, the trial Court is justified in convicting the accused as stated above. No interference is required into the judgment of conviction and sentence passed by both the courts.
47. Thus, the revision petition lacks merit and is liable to be dismissed.
Resultantly, the following order is passed: 37
ORDER Revision Petition filed by the revision petitioner under Sec.397 and 401 of Cr.PC is herby dismissed.
Judgment of conviction passed by the Civil Judge and JMFC, Sindagi in CC No.187/2014 dated 2.5.2018 affirmed by the Prl.Sessions Judge, Vijayapura in Criminal Appeal No.30/2018 dated 11.10.2018 are confirmed.
Bail Bond executed by accused stands cancelled. Accused is directed to surrender before the trial Court i.e. before the JMFC, Sindagi forthwith to undergo sentence. Trial court to take steps to secure the presence of the accused and commit him to custody. Intimate the Prl. Sessions Judge, Vijayapura and JMFC, Sindagi regarding dismissal of revision petition through mail.
Send back the trial Court and first appellate court records forthwith with a copy of the order to both the Courts passed in this revision petition.
SD/-
JUDGE Sk/-