Karnataka High Court
Shri.Vinayak vs The State Of Karnataka on 1 March, 2024
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NC: 2024:KHC-D:4754
CRL.RP No. 100073 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100073 OF 2016 (397)
BETWEEN:
SHRI VINAYAK S/O GIRIDHAR DHADAMODE,
AGE: 28 YEARS, OCC: COOLIE,
R/O: KUNTI NAGAR, TEACHERS COLONY,
KHASBAG, TQ & DIST: BELAGAVI.
...PETITIONER
(BY SRI SANTOSH B.RAWOOT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 AND
SAROJA 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
HANGARAKI
ORDER PASSED BY THE COURT IX ADDL. DIST. & SESSIONS JUDGE,
Digitally signed by SAROJA
HANGARAKI
Location: HIGH COURT OF BELAGAVI IN CRIMINAL APPEAL NO.153/2014 DATED 31ST
KARNATAKA,DHARWAD
BENCH
Date: 2024.03.07 10:38:14
+0530 DECEMBER 2015 IN REJECTING THE APPEAL AND CONFIRMING THE
ORDER OF CONVICTION AND SENTENCE, FOR THE OFFENCES
PUNISHABLE U/SEC.279, 304(A) OF I.P.C. AND SEC.3 R/W SEC.181
OF M.V. ACT PASSED BY THE LEARNED JMFC-III BELAGAVI IN C.C.
NO.1984/2010 DATED 3RD NOVEMBER 2014 BY ALLOWING THIS
REVISION PETITION.
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NC: 2024:KHC-D:4754
CRL.RP No. 100073 of 2016
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Appellant/accused feeling aggrieved by the judgment of First Appellate Court on the file IX Addl. District and Sessions Judge, Belagavi in Crl.A.No.153/2014, dated 31.12.2015 in confirming the judgment of conviction and order of sentence passed by Trial Court on the file of III JMFC, Belagavi in CC.No.1984/2010, dated 3.11.2014 preferred this revision petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of trial Court records, so also impugned judgment under appeal, the following points arise for consideration:
i)Whether the impugned judgment of First Appellate Court under revision in confirming the judgment of conviction and order of sentence passed by Trial -3- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 Court for the offences under Sections 279, 304-A of IPC and Section 185 and Section 3 R/w. Section 181 and 185 of M.V. Act is perverse, capricious and legally not sustainable?
ii) Whether the interference of this Court is required?
5. The factul matrix leading to the case of prosecution can be stated in nut shell to the effect that on 2.5.2010 at 10.30 p.m. in front of Sony Battery shop, Old P.B. road, Belagavi accused being the rider of motorcycle bearing No. KA-22-ED 6947 drove the same with high speed in rash and negligent manner and dashed against the father of the complainant Ningappa Siddappa Talukar, who was crossing the road. On account of such negligent in riding of the motorcycle bearing No. KA/22-ED 6947 by accused, Ningappa Siddappa Talukar succumbed to the injuries sustained in the accident on the spot itself. The prosecution further alleges that the accused was riding the motorcycle under the influence of alcohol and without there being any valid license to drive the motorcycle. Further, on account of actionable negligence on the part of the accused under the influence of alcohol dashed against Ningappa Siddappa Talukar, who was crossing the road leading to the -4- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 accident in question and he succumbed to the injuries sustained in the accident.
6. The prosecution to prove the allegations made against the accused, relied on the oral testimony of PW.1 to 8 and documents at Ex.P.1 to 9. On closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused has not led any defence evidence. The trial Court, after hearing the arguments of both sides and on appreciation of oral and documentary evidence placed before it, has convicted the accused for the aforementioned offences and imposed sentence as per the order of sentence.
7. Accused challenged the said judgment of conviction and order of sentence before First Appellate Court under Crl.A.No.153/2014. The First Appellate Court after re- appreciation of oral and documentary evidence has dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by trial Court.
8. Accused challenging the concurrent finding of both the Courts below in the present Revision Petition contended that -5- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 the courts below have not properly appreciated the evidence of PW.3-Bhimarao Kanade and PW.4-Prakash Shirolkar, who are said to be eye witness to the accident. The evidence of PW.1- Kallappa Talukar, who has filed the complaint Ex.P.1 cannot be of any much assistance to case of prosecution, since he is not eye witness to the accident. The prosecution has not proved the allegations against the accused that he was under the influence of alcohol and not possessing driving license to drive motorcycle and on account of such culpable negligence in driving motorcycle, the accident in question has occurred leading to the death of Ningappa Siddappa Talukar. The mere factum of accident and death of Ningappa Siddappa Talukar in the accident in question cannot by itself could be said as sufficient evidence to hold culpable rashness or negligence of accused leading to the accident in question. Therefore, sought for interference of this Court to acquit the accused.
9. Per contra, learned HCGP for respondent has argued that the evidence of two eye witnesses PW.3-Bhimarao Kanade and PW.4-Prakash Shirolkar is consistent enough in proving the culpable rashness or negligence of accused in driving the motorcycle at the time of incident. The accused was under the -6- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 influence of alcohol is supported by evidence of PW.5-Praveen Sanganmath Scientific FSL officer, who has issued FSL report Ex.P.7 and medical evidence of PW.7-Dr.Kirankumar, who issued the certificate Ex.P.8. The recital of spot panchanama under Ex.P.2 and sketch Ex.P.9 is supported by the evidence of PW.2-Yellappa Dhavale and that of Investigating Officer PW.8- M.Shivashankar. There are absolutely no any reasons to disbelieve the aforementioned evidence on record. The findings recorded by both the courts below are based on legal evidence on record and the same does not call for any interference by this Court. The evidence of PW.1-Kallapa Talukar would go to show that he came to the spot after hearing about the accident while he was in house. On coming to the spot, after noticing the death of his father having injury over his head, filed complaint Ex.P.1. The material witnesses, who speak on the rash and negligent riding of motorcycle by accused are PW.3- Bhimarao Kanade and PW.4-Prakash Shirolkar.
10. PW.3-Bhimarao Kanade has deposed to the effect that on 2.5.2010 at 10.00 p.m. he was sitting in front of Standard Electrical Engineers with deceased Ningappa. While the said Ningappa was crossing the road, at that time the rider of -7- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 motorcycle under the influence of alcohol came from Hosur- Aralikatti side towards Roopali theater in rash and negligent and dashed against Ningappa, due to which he fell to the ground and rider of the motorcycle also fell to the ground. He further deposed to the effect that he offered water to Ningappa, but he was found dead due to the injury sustained in the accident. Thereafter, the deceased Ningappa was taken to District Government Hospital and has shown the place of incident to the police. Further, he deposed to the effect that the accident in question has occurred due to the negligent riding of the motorcycle by accused. The evidence of PW.4-Prakash Shirolkar, who was with PW.3-Bhimarao Kanade and deceased Ningappa is also more or less on the same line as deposed by PW.3-Bhimarao Kanade. The evidence of PW.3-Bhimarao Kanade and PW.4-Prakash Shirolkar is consistent with regard to the manner in which the accident took place.
11. Learned counsel for accused has argued that there is no identification of accused being the rider of the motorcycle and he has been planted in this case. On going through the evidence of PW.3-Bhimarao Kanade and PW.4-Prakash Shirolkar, it would go to show that they have consistently -8- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 deposed about the fact that after the accident the deceased Ningappa fell to the ground, so also the accused fell to the ground with motorcycle. They had sufficient time and opportunities to see the rider of motorcycle. There is nothing worth material that has been brought during their cross examination that they have any rivalry against accused to falsely implicate in this case. Therefore, in the absence of any such evidence on record, their evidence to the effect that accused was riding the motorcycle at the time of accident and in identifying him during the course of evidence has to be accepted.
12. The evidence of PW.2-Yellappa Dhavale would go to show that he was called to the place of accident on 3.5.2010 at 11 a.m. in front of Sony Battery Shop and spot panchanama Ex.p.2 and sketch map Ex.P.9 was prepared in his presence and identified his signature as Ex.P.2(a). The said evidence is further corroborated by the evidence of PW.8-M.Shivashankar, who has deposed to the effect that on 3.5.2010, he has visited the spot and prepared the spot panchanama Ex.P.2 in the presence of PW.2-Yellappa Dhavale and CW.3, so also prepared the sketch map Ex.P.9. Looking to the recitals of spot -9- NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 panchanam under Ex.P.2, it would go to show that the road at the place of accident runs from south to north from Hosur- Aralikatti towards Roopali Talkies. The evidence of PW.3- Bhimarao Kanade and PW.4-Prakash Shirolkar would go to show that they were sitting with deceased in front of Standard Electrical Engineers to the eastern side. Accused being the rider of motorcycle bearing No. KA.22-ED-6947 was proceeding from Hosur-Aralikatti towards Roopali theater, which runs from south to north to the western side, which will be in front of Sony Battery shop. The width of road is shown at a distance of 23 feet. The road at the place of accident is straight. It was the duty of rider of the motorcycle to look for pedestrian passing on the road and to exercise due care while riding the motorcycle to avoid coming in contact with any pedestrian. However, accused has not exercised such diligence while riding motorcycle at the time of accident. It is because of such culpable negligence, accused being the rider of the motorcycle KA-22-ED-6947 dashed against the pedestrian Ningappa, who was crossing road and he succumbed to the injuries sustained in the accident on the spot itself. The courts below have rightly appreciated oral testimony of PW.3-Bhimarao Kanade and PW.4-Prakash
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 Shirolkar with reference to the spot features recorded under panchanama Ex.P.2 and Sketch Map under Ex.P.9 in holding that accused being the rider of motorcycle was rash and negligent in driving the motorcycle and in not exercising due care in coming into contact with the pedestrian and dashed against pedestrian Ningappa, who was crossing the road, due to such culpable negligent in driving motorcycle, he succumbed to the injuries sustained in the accident.
13. The prosecution also alleges that accused was riding the motorcycle under the influence of alcohol and was not possessing valid driving license to drive the motorcycle as on the date of the accident. The prosecution in proof of the said allegation mainly relies on the evidence of PW.5-Praveen Sanganamath, Scientific officer, who examined the sample blood sent for examination and found the percentage of alcohol at 52.23 m.g./100 m.l. The prosecution also examined PW.7- Dr.Kirankumar, who has deposed to the effect that accused was brought to hospital on 3.5.2010 at 1.05 a.m. and on examining the accused found that he was smelling alcohol and accused on enquiry discloses that he has consumed 1 bottle of beer at 8.30 p.m. near Kapeel talkies. The blood sample on consent of
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 accused was taken and after receiving of RFSL report Ex.P.7 given the wound certificate Ex.P.8 that accused has consumed alcohol and RFSL report discloses 50.23 m.g./100 m.g at the stage of excitation. The defence though has subjected PW.5- Praveen Sanganmath and PW.7-Dr.Kirankumar to the cross examination, nothing worth material has been brought on record, so as to discredit their evidence. Therefore, their evidence will have to accepted in holding that accused was under the influence of alcohol and was riding motorcycle at the time of accident. Learned counsel for the accused has argued that accused have alleged to have consumed alcohol at 8.30 p.m. and he was examined at about 1.05 a.m. and there is sufficient time gap. Therefore, the possibility of accused being under the influence of alcohol cannot be accepted. However, evidence of PW.5-Praveen Sanganmath and PW.7- Dr.Kirankumar and FSL report Ex.P.7 and wound certificate Ex.P.8 issued by PW.7-Dr.Kirnakumar is consistent and in consonance with oral testimony and there are no reasons to disbelieve their evidence.
14. The prosecution also alleges that the accused was riding the motorcycle without there being any valid license. PW.8-
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 M.Shivashankar has deposed to the effect that during the enquiry, it was reveled that accused was not possessing valid driving license. There was specific question put to accused during the course of 313 of Cr.P.C. regarding riding of motorcycle without there being any driving license. Accused except denying the said question, has not produced any driving license to show that he was in possession of valid driving license as on the date of the accident. Therefore, in view of the aforementioned evidence on record, it will have to be held that accused was riding motorcycle under the influence of alcohol and also not possessing driving license to drive motorcycle on public road. The courts below have rightly appreciated oral and documentary evidence placed on record and arrived to the just and proper conclusion in holding that the prosecution has proved the offences alleged against the accused. The said findings recorded by the Courts below are based on the material evidence on record and the same does not call for any interference.
15. Now the question that remains is regarding imposing of sentence passed by Trial Court which is affirmed by First Appellate Court. The Trial Court has convicted the accused for
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 the offences under Sections 279, 304-A of IPC and Section 185 and Section 3 R/w. Section 181 and 185 of M.V. Act and imposed sentence as per the order of sentence. The substantial sentences are ordered to run concurrently.
16. Learned counsel for accused submits that if the court comes to conclusion that the offences alleged against the accused are proved and findings of both the courts below are required to be upheld then sought for leniency while imposing the sentence. Learned counsel for the accused also submits that looking to the evidence on record, only fine amount may be imposed instead of sending accused to jail term as ordered by the trial Court.
17. The Court while imposing the sentence for the proved offences against the accused will have to be taken into consideration the offences alleged against the accused, nature of evidence on record and other attending circumstance. In the present case, accused was said to be 24 years aged as on the date of the accident on 2.5.2010. The mere fact that already 14 years have been lapsed by itself cannot be a ground to show leniency.
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016
18. In this context of the matter, it is useful to refer the latest judgment of the Hon'ble Apex Court in Razia Khan Vs. The State of M.P. (Criminal Appeal No. 2259/2023 dated 03.08.2023) wherein it has been observed and held at paragraph No. 8 as under:
"Considering the seriousness of the offence punishable under Section 333 of the IPC and since the punishment prescribed is both of imprisonment of either description and a fine, obviously, the appellant cannot be let off only on a fine. However, considering the circumstances set out in paragraph 5 above, we are of the view that the appellant deserves to be shown leniency when it comes to the substantive sentence. The distinct factors set out in paragraph no. 5, taken individually, do not constitute a ground by itself to show leniency. For example, only because an accused is on bail for a long time, it is no ground by itself to show leniency. It is only one of the several factors to be considered. But we have considered these factors cumulatively. Hence, we propose to bring down the sentence of the appellant for the offence punishable under Section 333 to simple imprisonment for one month. We propose to impose a fine of Rs.30,000/- for the said offence."
(emphasis supplied) In view of the principles enunciated in the latest judgment of the Hon'ble Apex Court, it is evident that accused is on bail for
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 a long time itself cannot be a ground to impose only fine amount instead of imprisonment. The courts below considering imposition of sentence must take into consideration the facts and circumstances of the case and nature of evidence on record.
19. It is profitable to take note of another judgment of Hon'ble Apex Court in Thangasamy Vs. State of Tamil Nadu (2019) 16 SCC 235 wherein it has been observed and held at paragraph no. 16 as under:
"16. On the question of sentencing, this Court re-emphasised as follows: (Alister Anthony Case reported in SCC 674) - reiterated paragraph Nos.84 and 85.
84. Sentencing is an important task in the matters of Crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
85. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence."
(emphasis supplied)
20. The Hon'ble Apex Court having so observed on the extraction of Alister Anthony case recorded it's finding at paragraph No. 17 with reference to it's earlier judgment in Dalbir Singh V. State of Haryana (2000) 5 SCC 82 wherein it has been observed and held as under:
"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 sentencing sphere. Any latitude shown to
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 them in that sphere would tempt them to make driving frivolous and 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 PO 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 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 vehicle he cannot escape from 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.'' (emphasis supplied) In view of the principles enunciated in both the aforementioned judgments of the Hon'ble Apex Court, it is evident that while considering the quantum of sentence to be imposed for the
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 offence of causing death by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. Therefore, the contention of the learned counsel for the accused for imposing only the fine amount instead of sentencing the accused to imprisonment, in the facts and circumstances of the case cannot be legally sustained.
21. The trial Court has convicted the accused for the offence punishable under Section 304-A of IPC and sentenced to undergo simple imprisonment for a period of one year and shall pay a fine of Rs.5,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of three months. Looking to the facts and circumstances of the case, the imposition of sentence for a period of one year, the offence under Section 304-A of IPC is little on higher side and the same needs to be interfered by this Court. If accused is sentenced to undergo simple imprisonment for six months for the offence under Section 304-A of IPC is modified by maintaining the sentence imposed for other offence is ordered will meet the ends of justice. Consequently, proceed to pass the following:
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NC: 2024:KHC-D:4754 CRL.RP No. 100073 of 2016 ORDER Revision petition filed by revision petitioner/accused is hereby allowed in part.
The judgment of the First Appellate Court on the file IX Addl. District and Sessions Judge, Belagavi in Crl.A.No.153/2014, dated 31.12.2015 in confirming the judgment of conviction and order of sentence passed by Trial Court on the file of III JMFC, Belagavi in CC.No.1984/2010, dated 3.11.2014, is ordered to be modified as under:
The accused is sentenced to undergo simple imprisonment for a period of six months for the offence punishable U/s 304(A) of IPC. The sentence of imprisonment and the fine amount as awarded by the Trial Court for remaining offences with default sentence is ordered to be maintained.
The registry is directed to transmit the records of the Trial Court with the copy of this judgment.
Sd/-
JUDGE VB CT:GSM List No.: 1 Sl No.: 45