Karnataka High Court
M Venugopal vs Chikkaramaiah on 6 December, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:50520
CRL.RP No. 1247 of 2016
C/W CRL.RP No. 1248 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1247 OF 2016
C/W CRIMINAL REVISION PETITION NO. 1248 OF 2016
IN CRL.RP No.1247/2016
BETWEEN:
1. VENUGOPAL.M
S/O D M KRISHNA REDDY,
AGED ABOUT 30 YEARS,
DRIVER, TOKEN NO.27870
M/C.193 BUS, KSRTC, PAVAGADA DEPOT
TUMAKURU DISTRICT-570 140
PRESENT ADDRESS:
M.VENUGOPAL
SON OF D M KRISHNA REDDY
30 YEARS
HANUMANTHAHALLI, YN HOSKOTE HOBLI
PAVAGADA TALUK
Digitally TUMAKURU DISTRICT - 560 202.
signed by ...PETITIONER
MALATESH
KC
(BY SRI N.S.SRIRAJ FOR SRI BYREGOWDA, ADVOCATES)
Location:
HIGH AND:
COURT OF
KARNATAKA
1. STATE BY KORTAGERE POLICE
TUMKUR DISTRICT
REPRESENTED BY SPP
HIGH COURT
BENGALURU - 560 001
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, HCGP)
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CRL.RP No. 1247 of 2016
C/W CRL.RP No. 1248 of 2016
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 22.08.2016
PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE, MADHUGIRI IN CRL.A.No.5001/2016 AND ALSO THE
ORDER DATED 11.12.2015 PASSED BY THE CIVIL JUDGE AND
J.M.F.C., KORATAGERE IN C.C.NO.347/2014 ACQUIT THE
ACCUSED.
IN CRL.RP NO. 1248/2016
BETWEEN:
1. VENUGOPAL M
S/O D M KRISHNA REDDY,
AGED ABOUT 30 YEARS,
DRIVER, TOKEN NO.27870,
M/C 193 BUS, KSRTC,
PAVAGADA DEPOT,
TUMAKURU-570 140,
PRESENT ADDRESS
VENUGOPAL M
S/O D M KRISHNA REDDY,
AGED ABOUT 30 YEARS,
HANUMANTHAHALLI, Y N HOSKOTE HOBLI,
PAVAGADA TALUK,
TUMKURU DISTRICT-561202
...PETITIONER
(BY SRI N.S.SRIRAJ FOR SRI BYREGOWDA, ADVOCATES)
AND:
1. CHIKKARAMAIAH
S/O LATE RAMANNA,
61 YEARS,
JADAGONDANAHALLI,
KASABA HOBLI,
MADHUGIRI TALUK-572132
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CRL.RP No. 1247 of 2016
C/W CRL.RP No. 1248 of 2016
2. STATE BY KORATAGERE POLICE
TUMKURU DISTRICT
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BANGALORE-560001
...RESPONDENTS
(BY SRI VINAY MAHADEVAIAH, HCGP FOR R2;
R1- SERVED)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
22.08.2016 PASSED BY THE IV ADDITIONAL DISTTRICT
AND SESSIONS JUDGE, MADHUGIRI IN
CRL.A.NO.5005/2016 AND ALSO THE ORDER DATED
11.12.2015 PASSED BY THE CIVIL JUDGE AND J.M.F.C.,
KORATAGERE IN C.C.No.347/2014 ACQUIT THE ACCUSED.
THESE PETITIONS, COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri N.S. Sriraj, learned counsel for the revision petitioner and Sri Vinay Mahadevaiah, learned High Court Government Pleader for the State.
2. Accused who suffered an order of conviction for the offence punishable under Section 279 and 304-A IPC, which was confirmed in Crl.A.No.5001/2016 has preferred these revision petitions.
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3. Facts in nutshell for disposal of the revision petitions are as under:
In respect of a road traffic accident that occurred on 13.04.2015 at about 4.20 p.m., within the limits of Koratagere police Station at Pemmadevanahalli, on Madhugiri - Koratagere road, accused being the driver of KSRTC bus bearing registration No.KA06/F-954 drove the same in rash and negligent manner resulting in death of rider of motorcycle, has been charge sheeted for the offence punishable under Section 279 and 304-A IPC.
4. Accused was summoned before the Trial Magistrate after completing the necessary formalities.
5. Accused appeared before the Trial Court and engaged services of an Advocate. Plea was recorded. Accused pleaded not guilty. Therefore, trial was held.
6. In order to prove case of the prosecution, prosecution has examined eleven witnesses as P.Ws.1 to 11. Twelve documents were got marked as Exs.P.1 to P.12, comprising of complaint, photographs, attendance certificate, -5- NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 authorization letter, indemnity bond, spot mahazar, inquest report, P.M. Report, IMV report.
7. After due trial accused was convicted for the offence punishable under Section 279 and 304-A IPC and sentenced as under by the learned Trial Magistrate:
"Acting U/S 255 (2) of the Cr.P.C., the accused is convicted for the offence punishable U/Sec.279 and 304(A) of IPC.
Obviously the accused is not entitled for the benefit for the provisions of P.O. Act.
The accused is sentence to undergo R.I for six months and also pay fine of Rs.6000/- and in default to undergo S.I for six months for the offence U/S 304-A IPC.
No separate sentence for the offence U/S 279 IPC, as the said offence merged with higher offence Under 304 (A) of IPC.
The bail bonds in the case stands cancelled.
The free copy of this judgment shall be given to the accused forthwith."
8. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.5001/2016, -6- NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 challenging the order of conviction and sentence passed by the learned Trial Magistrate.
9. Sri Chikkaramaiah - defacto complainant filed an appeal against the accused in Crl.A.No.50005/2016, challenging the inadequacy of the sentence passed by the learned Trial Magistrate.
10. Learned judge in the First Appellate Court heard the parties in detail by securing the records and dismissed the appeal of the accused and confirmed the order of sentence insofar as offence under Section 304-A IPC and allowed the appeal of the defacto complainant and imposed fine of Rs.1,000/- and imprisonment for a period of six months for the offence under Section 279 IPC with default sentence.
11. Being aggrieved by the dismissal of the appeal of the accused and allowing the appeal of the defacto complainant, accused has filed these two revision petitions.
12. Before this Court defacto complainant is served and remained absent.
13. Sri Sriraj, learned counsel for the revision petitioner, reiterating the grounds urged in both the revision petitions contended that conviction of the accused for the -7- NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 offences under Section 279 and 304-A IPC is incorrect having regard to the attendant facts and circumstances of the case and prosecution evidence available on record and sought for allowing both the revision petitions.
14. Alternatively, he contended that in the event of this Court upholding the conviction, this Court may enhance the fine amount in respect of the offence under Section 279 and 304-A IPC by setting aside the imprisonment as the accused is a KSRTC driver and sole bread earner of his family and imprisonment of six months would act harsh on him as his family would be left in lurge, if the sentence is confirmed.
15. Insofar offence under Section 279 IPC is concerned, the appellate Court allowed the appeal of the defacto complainant, Sri Sriraj, learned counsel for the revision petitioner contended that such a course ought not to have been adopted by the First Appellate Court having regard to the fact that there is only one death and when the sentence is ordered for the higher offence under Section 304-A IPC, separate imprisonment for the offence under Section 279 IPC needs to be set aside.
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16. Per contra, Sri Vinay Mahadevaiah, learned High Court Government Pleader for the State supports the impugned order.
17. Having heard the parties, it is noticed that the accident as is complained in the complaint that has been established by the prosecution by placing necessary evidence on record.
18. Accused being the driver of the offending bus is not in dispute. Charge sheet is not challenged by the accused. Spot sktch, IMV report, PM report would sufficiently establish that it is the deceased - Ravi Kumar who lost his life on account of the accidental injuries.
19. Complainant has specifically stated that his son was working as a lecturer in Bengaluru and used to visit Tumakuru for the purpose of home tuition. He has specifically answered that he used to travel up and down from Bengaluru to Tumakuru everyday.
20. Detailed cross-examination of the prosecution witnesses did not yield any positive materials so as to disbelieve the case of the prosecution. Photographs and spot -9- NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 sketch would make it clear that Ravi Kumar lost his life on the spot itself.
21. Crowing all these factors, accused failed to offer any explanation while recording the accused statement under Section 313 Cr.P.C.
22. In a given case, if prosecution establishes its case and incriminatory materials put to the accused while recording the accused statement, the accused is bound to place his version about the incident on record.
23. Failure to offer any explanation in that regard would result in consequences in law to follow. The same has been done by the learned Trial Magistrate when accused failed to offer any explanation.
24. The stand taken by the learned Trial Magistrate which was rightly re-appreciated by the learned judge in the First Appellate Court.
25. In this regard, this Court places reliance on the judgment of the Hon'ble Apex Court in the case of Ravi Kapur v State of Rajasthan reported in 2012 (9) SCC 284, paragraph 39 of the said judgment reads as under:
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NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 "39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C., are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case.
To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
26. Thus, order of conviction needs no interference by this Court that too in the revisional jurisdiction. Having said so, it is pertinent to note that the offence under Section 279 IPC merges with the offence under Section 304-A IPC.
27. However, the First Appellate Court allowing the appeal of the defacto complainant and granting six months imprisonment separately for the offence punishable under Section 279 IPC cannot be countenanced in law by applying doctrine of merger. To that extent, interference is called for by this Court by allowing the revision petition in Crl.RP.1248/2016.
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28. The alternative argument that is put forward by the counsel for the revision petitioner that the accused is the sole bread earner and therefore, enhanced fine amount be imposed by setting aside the imprisonment cannot be countenanced in law in view of authoritative pronouncement of the Hon'ble Apex Court in the case of State of Punjab vs. Saurabh Bakshi reported in (2015) 5 SCC 182 wherein, Their Lordships at paragraphs 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 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
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NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 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 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
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NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 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 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
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NC: 2024:KHC:50520 CRL.RP No. 1247 of 2016 C/W CRL.RP No. 1248 of 2016 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)"
29. Based on the above principles of law, the alternate submission needs to be rejected.
30. In view of the foregoing discussion, the following:
ORDER
(i) Criminal Revision Petition No.1247/2016 is dismissed.
(ii) Criminal Revision Petition No.1248/2016 is allowed.
(iii) Separate sentence ordered by the learned Trial Magistrate for the offence punishable under Section 279 IPC is set aside.
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(iv) Revision petitioner is granted time till 31st December 2024 to surrender before the Trial Court for serving the remaining part of the sentence.
(v) Office is directed to return the Trial Court Records along with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 52