Karnataka High Court

Bharathesh vs The State Of Karnataka on 11 November, 2021

Bench: V Srishananda

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 11TH DAY OF NOVEMBER, 2021

                       BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.101/2012


BETWEEN:

BHARATHESH
S/O SHRIKANTH,
KSRTC BUS DRIVER,
BUS NO.KA17F827,
SHIMOGA DEPO,
SHIMOGA DSITRICT.                    ... PETITIONER

(BY SRI. B.S. PRASAD, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY TRAFFIC POLICE,
SHIMOGA.
                                     ...RESPONDENT
(BY SRI. V. S. VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE ORDER DATED:25.1.11
PASSED BY THE PRL. S.J., SHIMOGA IN CRL.A.NO.97/08
AND ORDER DATED:8.8.08 PASSED BY THE II ADDL. C.J.
(JR.DN.) AND JMFC, SHIMOGA IN C.C.NO.9033/07.
                                2

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
                            ORDER

Heard Sri. B. S. Prasad, learned counsel appearing

for the revision petitioner and Sri. V. S. Vinayaka, learned

High Court Government Pleader appearing for respondent

and perused the records.

2. This revision petition is filed by the revision

petitioner challenging the order passed in C.C.

No.9033/2007 dated 08.08.2008 by the II Additional Civil

Judge (Jr. Dn.) and JMFC, Shimoga whereby the revision

petitioner/accused has been convicted for the offences

punishable under Sections 279 and 338 of the Indian Penal

Code, 1880 ('IPC' for short) and has ordered to undergo

two months and three months simple imprisonment with a

fine of Rs.650/- and Rs.800/- with default sentence, which

was confirmed in Crl.A. No.97/2008 by order dated

25.01.2011.

3. Brief facts of the case are as under:

Traffic police Shimoga laid a charge sheet for the

offences punishable under Sections 279 and 338 of IPC

against the revision petitioner. Upon the complaint lodged

by Banyanaika contending that on 11.08.2007 at about

10.10 a.m., when he was proceeding towards Davangere

Depot as a pedestrian, at that time on account of rash and

negligent driving of the driver of the bus bearing

No.KA17F827, which came in a rash and negligent manner

and dashed against him. Whereby, he fell down and

sustained grievous injuries and he was shifted to the

Subbaiah Hospital at Shimoga wherein, police visited and

enquired him and he has given a complaint. Based on the

said complaint, the jurisdictional traffic police have

registered a case against the accused herein and after

investigating the matter, filed the charge sheet.

4. The presence of the accused was secured and

plea was recorded. Since accused pleaded not guilty, the

trial was held. In order to prove the case of the

prosecution, the injured - Banyanaika and five other

witnesses were examined as PWs.1 to 6. The prosecution

relied on six documents, which were exhibited and marked

as Exs.P1 to P6 comprising of complaint, spot mahazar,

spot sketch, IMA report and the wound certificate.

Thereafter, the accused statement was recorded as

contemplated under Section 313 of Cr.P.C., wherein all the

incriminatory circumstances were denied by him. Accused

did not choose to lead any defence evidence on his behalf

nor placed his version in writing as contemplated under

Section 313(5) of Cr.P.C. Thereafter, learned trial

Magistrate heard the matter and by order dated

08.08.2008, convicted the accused for the offences

punishable under Sections 279 and 338 of IPC and

sentenced him as referred to supra.

5. Being aggrieved by the same, the accused

preferred an appeal before the District Court in Crl.A.

No.97/2008.

6. Learned judge in the First Appellate Court after

securing the records, heard the arguments of both sides

and by order dated 25.01.2011, dismissed the appeal and

confirmed the order of learned Magistrate. Being

aggrieved by the same, the accused has preferred this

revision petition.

7. Sri. B. S. Prasad, learned counsel appearing for

the revision petitioner vehemently contended that both the

Courts have ignored the material evidence on record and

failed to appreciate the case in a proper perspective and

wrongly recorded an order of conviction.

8. He further contended that both the Courts

have failed to note that the prosecution has failed to prove

the spot sketch and the spot mahazar in a proper manner

and the material evidence available on record would depict

that the incident has occurred on account of negligence

attributable by the revision petitioner. Therefore, there

was no ingredients available in the case of the prosecution

to attract the offences punishable under Sections 279 and

338 of IPC.

9. He further contended that PWs.1 and 2 have

suppressed the real facts and turned the facts in their

favour so as to some how convict the accused which will

affect his carrier in future and therefore, sought for

allowing the revision petition.

10. He also contended that the prosecution has not

examined the Inspector, who issued the IMA report and

therefore, the prosecution case has suffered with serious

dent and sought for allowing the revision.

11. Alternatively, he submitted that in the event of

this Court maintaining the conviction order, the Court may

consider the grant of probation. In this regard, he cited

the judgment of the Hon'ble Apex Court in the case of

AITHA CHANDER RAO Vs. STATE OF ANDHRA

PRADESH reported in 1981 (Supp) SCC 17 wherein, the

Hon'ble Apex Court held as under:

"1. This appeal by special leave is directed against the judgment of the High Court of Andhra Pradesh affirming the conviction of the appellant under Section 304- A IPC for 2 years' RI and a fine of Rs 500. After

having gone through the judgment of the courts below, we do not find any reason to interfere with the merits of the appeal. The only question that may be considered is if it is a proper case in which the appellant may be released on probation. The Sessions Judge had found that there was some amount of contributory negligence on the part of the appellant and having regard to the peculiar circumstances of this case we think it is eminently a fit case in which the appellant may be released on probation. We therefore suspend the sentence of imprisonment only maintaining the fine imposed on the appellant and. instead release him on probation of good conduct under Section 4 of the Probation of Offenders Act and Section 361 CrPC. The appellant shall execute a bond of Rs 1000 for maintaining peace and good behaviour for a period of one year and if he violates any condition of the bond, he may be called upon to surrender and serve the remaining part of the sentence. Out of the fine of Rs 500, the entire amount shall be paid as compensation to the widow and legal heirs of the deceased.

2. As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of Offenders Act. The appeal is disposed of with the aforesaid observations."

12. Per contra, learned High Court Government

Pleader supported the impugned judgments and prayed for

dismissal of the revision petition. He further contended

that the material evidence on record clearly indicates that

the accused was a driver of the bus. In his

cross-examination, it shows that the injured himself is

negligent but the said aspect of the matter has not been

proved by the accused by placing at least plausible

evidence on record and sought for dismissal of the revision

petition.

13. Insofar as grant of probation is concerned, he

has contended that if this Court intends to grant probation,

the report from the Probation Officer is necessary and

therefore, sought for rejection of the said contention of the

revision petitioner and prayed for dismissal of the revision

petition.

14. In view of the rival contentions and having

regard to the scope of the Revision Petition, the following

points would arise for consideration:

1. Whether the findings recorded by the learned Magistrate that the accused is guilty of the offences punishable under

Sections 279 and 338 of IPC, which is confirmed by the First Appellate Court in Crl.A. No.97/2008 is suffering from legal infirmity or error of jurisdiction and thus calls for interference?

2. Whether the sentence is excessive?

15. In the case on hand, the accident is said to

have been occurred on 11.08.2007 at about 10.10 a.m.,

within the precincts of KSRTC Bus stand, Shimoga stands

established by placing necessary oral and documentary

evidence on record. Admittedly, the accused was the

driver of the bus bearing No.KA17F827. The trend of

cross-examination of PW.1 indicate that there was repair

work going-on in the bus stand and there were number of

ditches in the bus stand. However, it is suggested to PW.1

that the accident has occurred when PW.1 tried to board

the bus without noticing the ditches in the bus stand. To

prove the said aspect of the matter, except suggesting to

PW.1, there is no other material on record. For the

reasons best known to the accused, he did not step into

the witness box nor offered his version about the case in

writing as contemplated under Section 313(5) of Cr.P.C.

Further, the suggestions made to PW.1 that the incident

has occurred in platform No.1 is also not proved by the

accused whereas the material evidence available on record

specially the spot mahazar and spot sketch clearly

indicates that the accident has occurred about 75 meters

away from the Platform No.1 wherein the space is made

available for the passengers to rest. Therefore, the trend

of cross-examination that accident has occurred on

account of negligence attributable on the part of the PW.1,

becomes insignificant.

16. In a matter of this nature, the accused is

expected to place his version or his explanation on record

as is held in the case of RAVI KAPUR Vs. STATE OF

RAJASTHAN REPORTED IN (2012) 9 SCC 284, wherein

at Paragraph No.39 it has been held as under:

"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."

17. Applying the principles enunciated in the

aforesaid decision to the case on hand, for the reasons

best known to the accused, he did not get examined

himself as defence witness nor examined the conductor of

the bus or placed any other material on record so as to

prove that it is the PW.1, who was negligent whereby the

accident has occurred and there was no negligence that

would be attributable to the accused. Under such

circumstances, the findings recorded by the learned

Magistrate that the accused is responsible for the

accidental injuries sustained by the PW.1 as is mentioned

in the wound certificate marked at Ex.P6 is based on sound

and logical reasons.

18. Learned judge in the First Appellate Court has

rightly re-appreciated the material evidence on record and

has rightly came to the conclusion that there was no legal

infirmity in reaching out such a finding by the trial

Magistrate. Accordingly, point No.1 is answered in

Negative.

19. Insofar as sentence is concerned, admittedly,

the accused is a first time offender. The prosecution is

unable to place on record that the bus driver had the

criminal antecedents. More over, for the offences

punishable under Sections 279 and 338 of IPC, there is a

discretion always available for the learned Magistrate to

pass an order of sentence of imprisonment or fine. While

passing the order of imprisonment of two months and

three moths for the offences punishable under Sections

279 and 338 of IPC, no reason whatsoever is assigned by

the learned Magistrate in the judgment. However, learned

Magistrate has noted in paragraph No.19 of the judgment

that there was a fracture injury sustained by the PW.1.

Therefore, he intends to impose imprisonment for the

offences punishable under Sections 279 and 338 of IPC.

20. It is needless to emphasise that it is the

mandatory duty of the learned trial Magistrate to convict a

person to pass an appropriate sentence in a given case.

While doing so, it is expected that the learned trial

Magistrate is to bestow his attention on to the Provisions of

the Probation of Offenders Act, 1958 as is held in the case

of CHANDRESHWAR SHARMA Vs. STATE OF BIHAR

reported in (2000) 9 SCC 245 and in the case of

GULZAR Vs. STATE OF M.P. reported in (2007)1 SCC

619. The relevant paragraph of the said judgments is

extracted as under:

" Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or

any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision. While Section 12 of the P.O. Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the P.O. Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results."

21. Learned counsel appearing for the revision

petitioner has also relied on the judgment of the Hon'ble

Apex Court in the case of AITHA CHANDER RAO referred

to supra.

22. Applying the above legal principles to the case

on hand, the reasons required for recording an order of

conviction is altogether different for imposing the

imprisonment for the accused in a given case. Learned

trial Magistrate failed to appreciate the said aspect of the

matter in proper manner so also unfortunately the First

Appellate Court. Therefore, this Court in this revision to

that extent need to interfere with the orders passed by the

learned Magistrate, which is confirmed by the First

Appellate Court.

23. Accordingly, this Court is of the considered

opinion that enhancing the fine in respect of the offence

punishable under Section 279 of IPC is from Rs.650/- to

Rs.5,000/- and enhancing the fine in respect of the offence

punishable under Section 338 of IPC is from Rs.800/- to

Rs.10,000/- with a default sentence of one month and two

months would meet the ends of justice and also further, if

the accused is granted probation to execute a bond in a

sum of Rs.25,000/- with a surety for the likesum to the

satisfaction of the trial Magistrate for a period of two years

for his good behaviour, the same would meet the ends of

justice.

24. Out of the fine amount, if a sum of Rs.14,000/-

is ordered to be paid as compensation to PW.1, the

requirements of Section 357 of Cr.P.C. would also be met.

Accordingly, point No.2 is answered and the following

order is passed:

ORDER

i. Criminal revision petition is allowed-in-part.

ii. While maintaining the conviction of the revision petitioner - accused for the offences punishable under Sections 279 and 338 of IPC, the accused is ordered to pay fine of Rs.5,000/- and Rs.10,000/- for the offences punishable under Sections 279 and 338 of IPC with a default sentence of one month and two months simple imprisonment respectively. Out of fine amount recovered, a sum of Rs.14,000/- is ordered to be paid as compensation to the PW.1 under due identification.

iii. Further, the accused is also directed to execute a bond in a sum of Rs.25,000/- with a surety for the likesum for this good behaviour and

conduct, which shall be in force for a period of two years from the date of execution.