Karnataka High Court
Hallappa vs State Of Karnataka on 18 November, 2023
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NC: 2023:KHC:41413
CRL.RP No. 842 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 842 OF 2016
BETWEEN:
HALLAPPA
S/O NINGAPPA
35 YEARS,
RESIDING AT YALAGI VILLAGE
SURAPURA TALUK
GULBARGA DISTRICT
YADAGIRI - 585 216
...PETITIONER
(BY SRI.SANKETH K.K., ADVOCATE FOR
SRI.KESHAVA K.V., ADVOCATE)
AND:
STATE OF KARNATAKA
BY PONNAMPET POLICE, GONIKOPPA CIRCLE,
VIRAJEPT TALUK, KODAGU - MADAKERI
Digitally
signed by DISTRICT PONNAMPET - 571 216
SUMITHRA R ...RESPONDENT
(BY SMT.N.ANITHA GIRISH, HCGP)
Location:
HIGH
COURT OF THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
KARNATAKA TO SET ASIDE THE JUDGMENT AND ORDER DATED 8.1.2014
PASSED BY THE C.J. AND J.M.F.C., PONNAMPET IN
C.C.NO.1002/2011 AND JUDGMENT AND ORDER DATED
29.4.2016 PASSED BY THE II ADDL. DIST. AND S.J., KODAGU,
MADIKERI SITTING AT VIRAJPET IN CRL.A.NO.11/2014 BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND ORDERS AND
THEREBY DIRECT THE PETITIONER. BE ACQUITTED OF THE
OFFENCES ALLEGED AND CHARGED AGAINST HIM.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:41413
CRL.RP No. 842 of 2016
ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of II Addl.District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet in Crl.A.No.11/2014, dated 29.04.2016, confirming the judgment of Trial Court on the file of Civil Judge and JMFC, Ponnampet in C.C.No.1002/2011, dated 08.01.2014 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 with the judgment of both the Courts below the following points arise for consideration:
1) Whether the impugned judgment of First Appellate Court in confirming the judgment of Trial Court for the offence punishable -3- NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 under Sections 279, 338, 304-A of IPC is perverse capricious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of the oral and documentary evidence placed on record by the prosecution, it would go to show that on 03.07.2011 at 4.15 p.m. at Mugutageri village near coffee estate of Kallichanda Poonacha, on Ponnampet - Kanoor public road, one Mr.Sirajuddin was driving his Maruthi Omni Van bearing registration No.KA-12-P-557 from Ponnampet to Kanoor. At that time accused being the driver of KSRTC bus bearing registration No.KA-09-F-4151 came from the opposite side in rash and negligent manner and dashed against Maruthi Omni Van. On account of negligence of accused in driving KSRTC bus bearing registration No.KA-09-F-4151, the inmates of the Maruthi Omni Van i.e., Harris, Ummer, Aisamma and the -4- NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 driver of Maruthi Omni Van Sirajuddin died on the spot and Smt.Saffia who was seriously injured was shifted to B.M.Hospital, Mysuru and she succumbed to injuries sustained in accident. The other inmates of Maruthi Omni Van Ibrahim, Ansar, Tasmia and Mahamed Pharis sustained grievous injuries. On these allegations made in the complaint Ex.P.2 the case was registered against accused being the driver of KSRTC bus bearing registration No.KA-09-F-4151. The Investigating Officer after completing investigation filed charge sheet.
6. The Trial Court after appreciation of oral and documentary evidence placed on record has convicted the accused for the offences alleged against him and imposed sentence as per the order of sentence. The First Appellate Court after re-appreciation of evidence on record dismissed the appeal and confirmed the judgment of Trial Court.
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016
7. Learned counsel for the accused has vehemently argued that the Maruthi Omni Van bearing registration No.KA-12-P-557 driven by one Sirajuddin was over loaded with nine persons and he was unable to control the vehicle while negotiating the curve at the place of incident, as a result dashed against the KSRTC bus driven by the accused, due to which accident in question has occurred. The evidence of PWs.1 to 4 is insufficient to prove the culpable rashness or negligence on the part of accused in driving the KSRTC bus bearing registration No.KA-09-F-4151. The Trial Court has not properly appreciated the evidence of PWs.1 to 4 and the spot features recorded in the spot panchanama Ex.P.3 and the sketch map Ex.P.13. The Courts below swayed away by the death of five inmates of the car and injury of four persons and proceeded to hold that the accused is guilty and the said findings recorded by both Courts below is contrary to the evidence on record.
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016
8. Per contra learned High Court Government Pleader has argued that, looking to the spot features recorded in the spot panchanama Ex.P.3, the curve is much ahead to the driver of the KSRTC bus from the place of accident as shown in the sketch map Ex.P.13 and the recitals of the spot panchanama Ex.P.3 substantiate the said facts. Accused has failed to exercise due diligence while driving the bus and dashed against Maruthi Omni Van bearing registration No.KA-12-P-557 coming from the opposite side leading to the accident in question. The Courts below have rightly appreciated the evidence on record and findings recorded are based on material evidence on record, as such, the same does not warrant any interference by this Court.
9. PW.1 Ibrahim and PW.2 V.K.Anwar were travelling in the Maruthi Omni van bearing No. KA-12-P-557 driven by Siraj. PW.3 P.A.Bhaseer was travelling in Indica car and PW.4 A.M.Abdulla was driving the said Indica car which was following the Maruthi Omni van driven by Sirajuddin. -7-
NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 The prosecution mainly relied on the evidence of these four witnesses to prove the culpable rashness or negligence on the part of accused in driving the KSRTC bus bearing registration No. KA-09-F-4151 and as a result the accident in question has occurred.
10. Accused has not denied the place of accident and he was the driver of KSRTC bus bearing registration No.KA-09-F-4151. The employer of accused issued certificate Ex.P.18 that accused was driving the KSRTC bus bearing registration No. KA-09-F-4151 as on the date of accident. The M.V report Ex.P.20 speaks about damages found on both the vehicles involved in the accident and it would further reveals that accident was not due to any mechanical defect of both the vehicles. The accused has disputed that he was rash and negligent in driving the KSRTC but bearing registration No.KA-09-F-4151 at the time of accident due to which accident in question has occurred. The defence of the accused is that the accident in question has occurred due to over loading of the -8- NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 persons in Maruthi Omni van driven by Sirajuddin and having lost the control of Maruthi Omni van dashed against the bus coming from the opposite side, which was also evident from his statement during the recording of his 313 Cr.P.C. statement. The said defence of the accused and the evidence of PWs.1 to 4 will have to be appreciated while deciding the question of culpable rashness or negligence in driving the KSRTC bus bearing registration No.KA-09-F-4151 driven by the accused.
11. The oral testimony of PW.1 Ibrahim and PW.2 V.K.Anwar who were travelling in the Maruthi Omni Van bearing registration No.KA-12-P-557 driven by deceased Sirajuddin. PW.1 Ibrahim has deposed to the effect that driver of KSRTC bus came to the wrong side and dashed against Maruthi Omni Van bearing registration No.KA-12- P-557 which was coming from the opposite side. On account of such negligence of accused in driving the bus in question four inmates of the car including the driver has succumbed to the injuries sustained on the spot itself and -9- NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 the one Smt.Saffia who was seriously injured was shifted to B.M. hospital, Mysuru and she succumbed to the injuries sustained in the accident. The other four inmates of Maruthi Omni van Ibrahim, Ansar, Tasmia and Mahamed Pharis sustained grievous injuries. PW.2 V.K.Anwar another inmate of the Maruthi Omni van driven by deceased Sirajuddin has also spoken about the manner in which the accident took place and five death of the inmates of the car, further injuries to four persons travelling in the Maruthi Omni van.
12. PW.3 P.A.Bhaseer was travelling in Indica car driven by PW.4 A.M.Abdulla which was following the Maruthi Omni van driven by Sirajuddin. They have deposed to the effect that, there was a distance about 25 to 30 ft. between Maruthi Omni van and their car. The driver of KSRTC bus bearing registration No.KA-09-F-4151 came from the opposite side and dashed against the Maruthi Omni van driven by deceased Sirajuddin leading
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 to the accident in question and five inmates died and four inmates were injured.
13. PW.6 A.M.Mohammed and PW.7 K.A.Yusuf are the panch witnesses to the spot panchanama Ex.P.3. PW.7 K.A.Yusuf has not supported the case of prosecution, but he admits his signature on the spot panchanama Ex.P.3(c). The another panch witness PW.6 A.M.Mohammed has supported the case of prosecution. The evidence of PW.10 P.V.Venkatesh, the first Investigating Officer would go to show that, on the same day of accident he has visited to the spot and drawn spot panchanama Ex.P.3 and seized both the vehicles involved in the accident. Above all the accused has not disputed the place of accident. Therefore, the contents of the spot features recorded in the spot panchanama Ex.P.3 and sketch map Ex.P.13 can be looked into while deciding the negligence of KSRTC bus bearing registration No.KA-09-F- 4151 driven by the accused.
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016
14. On careful perusal of the spot features recorded in spot panchanama Ex.P.3, it would go to show that road at the place of accident runs East to West. The KSRTC bus bearing registration No.KA-09-F-4151 driven by the accused was proceeding from Eastern side to Western side i.e., Kanoor to Ponnampet. Whereas, the Maruthi Omni van bearing registration No.KA-12-P-557 driven by deceased Sirajuddin was proceeding from West to East i.e., from Ponnampet to Kanoor road. It means that prior to the accident both the vehicles were moving in an opposite direction. The place of accident is shown at the distance of 7 1/2 ft. from Western side edge of the road. The road from West to East is down gradient and thereafter there is a curve, there is a mud road on either side of the road. It is further recited in the spot panchanama Ex.P.3 that, from the place of accident towards Southern side 9 ft. tar road remained and thereafter there is 12 ft. mud road, there is 8 ft. mud road towards Northern side. The same position of the
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 place of accident is also reflected in the sketch map Ex.P.13. If the spot features recorded in the spot panchanama Ex.P.3 and sketch map Ex.P.13 as referred above are appreciated, then it would go to show that the curve is ahead from the place of accident to the driver of the KSRTC bus. At the place of accident the road is straight. Therefore, from the said material evidence placed on record it will have to be inferred that accused being driver of KSRTC bus bearing registration No.KA-09-F-4151 did not keep sufficient distance in between the two vehicles while moving in an opposite direction, so as to avoid any probable coming into contact with the vehicle moving on the other side of the road. Looking to the placement of Maruthi Omni van bearing registration No.KA-12-P-557 towards the Northern side and the space that was available to the accused being the driver of the KSRTC bus bearing registration No.KA-09-F- 4151, it is evident that accused has acceded his way of limit and dashed against Maruthi Omni van bearing registration No.KA-12-P-557 coming from the
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 opposite side. Accused was not diligent in keeping sufficient distance to avoid coming in contact with the vehicles coming from the opposite and as a result accident in question occurred, leading to the death of five persons and causing injuries to four persons who were travelling in the Maruthi Omni van driven by deceased Sirajuddin.
15. Learned counsel for Revision Petitioner has argued that Maruthi Omni van bearing registration No.KA-12-P-557 driven by deceased Siraj was over loaded and there were two persons sitting on the seat and as a result the driver of Maruthi Omni van lost control and dashed against the KSRTC bus coming from the opposite side. It is not in dispute that in all nine persons were travelling in the Maruthi Omni van driven by deceased Sirajuddin. However, that itself does not mean that the driver of the Maruthi Omni van lost control over the vehicle and dashed against the KSRTC bus coming from the opposite side. None of the prosecution witnesses have spoken about the driver of Maruthi Omni van lost the
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 control over the vehicle and dashed against the KSRTC bus coming from the opposite side driven by the accused. The mere opinion of the witness PW.4 A.M.Abdulla that due to over loading of the vehicle there is possibility of losing the control over the vehicle and three persons were sitting in the front side of the seat of the Maruthi Omni van, without there being any other corroborative evidence cannot be accepted to hold that the driver of the Maruthi Omni van Sirajuddin lost the control over the vehicle and dashed against the KSRTC bus driven by the accused coming from the opposite side. The above referred contentions of learned counsel for the revision petitioner is negated in view of the recitals recorded in the spot panchanama Ex.P.3 and sketch map Ex.P.13, since the place of accident is not disputed by the accused.
16. Accused during the course of his recording 313 Cr.P.C. statement has claimed that there were three persons in the front seat of Maruthi Omni van driven by deceased Sirajuddin and he came to the right side and
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 dashed against the KSRTC bus driven by him. The said defence cannot find any support from the recitals of the spot panchanama Ex.P.3 and sketch map Ex.P.13.
17. The Courts below have rightly appreciated the oral and documentary evidence placed on record and justified in holding that accident in question has occurred due to culpable rashness or negligence on the part of accused in driving the KSRTC bus bearing registration No.KA-09-F-4151 leading to the accident in question and as a result of the accident Harris, Ummer, Aisamma including the driver of the Maruthi Omni van and died on the spot itself and one Smt.Saffia succumbed to the injuries while she was under treatment in B.M.Hospital, Mysuru, further other four inmates Ibrahim, Ansar, Tasmia and Mahamed Pharis sustained grievous injuries. The said findings recorded by both the Courts below are based on material evidence on record and same does not call for any interference of this Court.
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18. Learned counsel for the accused relies on the judgment of Hon'ble Punjab and Haryana High Court in Jagan Nath vs. State of Haryana reported in 2001 (4) Crimes 307. In the said case before the Hon'ble Punjab and Haryana High Court, out of the two eye witnesses one belongs to the community of deceased and his presence at the site appears to be doubtful and the presence of any other eye witness was not any better. Therefore, the evidence of eye witnesses was disbelieved, since their presence at the place of incident was found to be doubtful as such the judgment of conviction for the offence under section 279 and 304A came to be set aside.
19. In the present case, PWs. 1 and 2 were inmates of Maruthi Omni van bearing registration No.KA-12-557 driven by deceased Sirajuddin and PWs. 2 and 4 were the inmates of the Tata Indica car which was following the above referred Maruthi Omni van and PW.4 was driving the said vehicle. Their presence at the place of incident is not in dispute. The oral testimony of PWs 1 to 4 regarding
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 the place of accident and culpable negligence of accused in driving the KSRTC bus leading to the accident in question have been substantiated by their evidence. Therefore, the aforementioned judgment has no application to the facts of the present case.
20. Learned counsel for the accused relied on the judgment of the Hon'ble Apex Court in Jagdish Chander vs. State of Delhi reported in (1973) 2 Supreme Court Cases 203 wherein the Hon'ble Apex Court having observed that the matter is pending for the last 8 years and it is unlikely to have any reformatory effect on him and other attending circumstances, by confirming the judgment of conviction, imposed the sentence only for a period of three weeks imprisonment, the period which he has spent in custody during trial.
21. The Hon'ble Apex Court in the latest judgment in State of Rajasthan vs. Banwari Lal And Another reported in (2022) 12 Supreme Court Cases 166, wherein it has been observed and held that "merely
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 because a long period has lapsed by the time appeal is decided cannot be a ground to award punishment which is disproportionate and inadequate". The Hon'ble Apex Court by referring to it's earlier judgments on sentencing policy to award appropriate sentence for the proved offence has held that imposition of sentence must be proportionate to the proven guilt. In the present case also, the accident in question has occurred on 3.7.2011. The mere delay in disposal of criminal case before the Trial Court and the First Appellate Court cannot by itself be a ground to impose disproportionate sentence to the proved offence against accused.
22. Now coming to the question of imposition of sentence, the Trial Court has imposed sentence of simple imprisonment for a period of six months for the offence punishable under Section 279 of IPC, further sentenced one year simple imprisonment for the offence under Section 338 of IPC and also sentenced two years simple imprisonment for the offence under Section 304-A of IPC. The said sentence are ordered to run consecutively. The
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 Trial Court as well as the First Appellate Court have not assigned any reasons for ordering the sentence to run consecutively. The different offences alleged against accused are arising out of same transaction. In terms of Section 31 of Cr.P.C. it is a discretion of the Court to impose appropriate punishment. Looking to the evidence on record, the facts and circumstances of the case and other attending circumstances, the sentence imposed by the Trial Court which is confirmed by the First Appellate Court is disproportionate to proved offences alleged against accused and also in ordering to run the sentences consecutively is unsustainable in law. Hence, the imposition of sentence which is disproportionate to the proved offences alleged against accused needs interference by this Court. If the accused is sentenced to undergo simple imprisonment for 3 months for the offence punishable under Section 279 and simple imprisonment for 6 months for the offence punishable under Section 338 of IPC, further the accused is sentenced to simple imprisonment for 1 year for the offence punishable under
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 Section 304-A of IPC is ordered will meet the ends of justice. Consequently proceed to pass the following:
ORDER The Revision Petitioner filed by the Revision Petitioner/accused is hereby partly allowed.
The judgment of the First Appellate Court on the file of II Addl.District and Sessions Judge, Kodagu-Madikeri, sitting at Virajapet in Crl.A.No.11/2014, dated 29.04.2016 confirming the judgment of Trial Court on the file of Civil Court and JMFC, Ponnampet in CC.No.1002/2011, dated 08.01.2014 is hereby ordered to be modified as under:
Accused is sentenced to undergo simple imprisonment of 3 months for the offence punishable under Section 279 of IPC.
Accused is sentenced to undergo simple imprisonment of 6 months for the offence punishable under Section 338 of IPC.
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NC: 2023:KHC:41413 CRL.RP No. 842 of 2016 Accused is further sentenced to under go simple imprisonment of 1 year for the offence punishable under Section 304-A of IPC.
The sentence of imprisonment are ordered to run concurrently.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR,RS List No.: 1 Sl No.: 5