Raghu @ Raghavendra vs State Of Karnataka
2022 Latest Caselaw 9189 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JUNE, 2022

                              BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.494 OF 2012

BETWEEN:

Raghu @ Raghavendra,
S/o. Siddappa,
Aged about 30 years,
Driver of Tanker Lorry,
bearing Regn.No.KA-06/A-7695
R/at Kalidasanagar, Sira Town,
Tumkur District.
                                                        ..Petitioner

(By Smt. Nalina K., Advocate)

AND:

State of Karnataka
By Sira Police, Sira,
Tumkur District.
                                                       .. Respondent

(By Sri.K. Nageshwarappa, High Court Govt. Pleader )

                                ****
      This Criminal Revision Petition is filed under Section 397
read with 401 of the Code of Criminal Procedure, 1973, with the
following prayer:

         "Wherefore, it is prayed that this Hon'ble Court be pleased
  to set aside the impugned judgment of conviction and order on
  sentence dated 05.11.2008, passed in C.C.No.183/2008 by the
  Civil Judge (Jr.Dn.) & JMFC, Sira and judgment, dated
                                                  Crl.R.P.No.494/2012
                                  2


  05.04.2012, passed in Crl.A. No.172/2008, by the PO of Fast
  Track Court-III, Tumkur, by allowing this revision petition and
  consequently acquit the accused/petitioner of the charges leveled
  against him, in C.C.No.183/2008, on the file of the Civil Judge
  (Jr.Dn.) & JMFC, Sira, for the offences punishable under Sections
  279, 338, 304(A) IPC read with Sec.134(a)(b) r/w.187 of IMV
  Act, in the interest of justice."

      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day,
the Court made the following:

                            ORDER

The present petitioner was tried by the Court of the

Civil Judge (Jr.Dvn.) and Judicial Magistrate First Class, at

Sira, (hereinafter for brevity referred to as "the Trial Court")

in C.C.No.183/2008, for the offences punishable under

Sections 279, 338 304A of the Indian Penal Code 1860

(hereinafter for brevity referred to as "the IPC") read with

Section 134 (a) and (b) punishable under Section 187 of the

Motor Vehicles Act, 1988 (hereinafter for brevity referred to as

"the M.V. Act") and was convicted for all the aforesaid

offences and sentenced accordingly by its judgment of

conviction and order on sentence dated 05-11-2008.

Challenging the same, the accused preferred an

appeal in Criminal Appeal No.172/2008, before the Court of

the Fast Track Court-III, at Tumkur (hereinafter for brevity Crl.R.P.No.494/2012

referred to as "the Sessions Judge's Court") which also,

after hearing both side, by its judgment dated 05-03-2012,

dismissed the appeal, confirming the judgment of

conviction and order on sentence passed by the Trial Court

in C.C.No.183/2008, for the alleged offences.

It is challenging the said judgments of conviction and

order on sentence, the accused (petitioner) has preferred

the present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 04-12-2007, on

Bukkapatna Road in Sira Town, within the limits of

complainant Police Station, the accused, being the driver of

a Tanker Lorry bearing Registration No.KA-06/A-7695,

drove the same in a rash and negligent manner and dashed

to a Bajaj Motor Cycle bearing Registration No.KA-32/

K-5652, which was coming by the side of his vehicle. Due

to the said road traffic accident, the rider of the Motor Cycle

by name Sri. Eshwarappa sustained grievous head injury

and died at the spot. The pillion rider in the said Motor Crl.R.P.No.494/2012

Cycle i.e. CW-2 - Hanumantharayappa sustained grievous

injuries to his head and right shoulder. After the accident,

the accused left the spot, without providing any medical aid

or assistance to the injured and without even giving

information to the nearest Police Station and thereby has

committed the offences punishable under Sections 279,

238, 304A of the IPC read with Section 134 (a) and (b)

punishable under Section 187 of the M.V. Act.

3. Based upon a complaint registered with them, the

respondent Police registered a Criminal Case against the

accused and after investigation, filed charge sheet against

the accused for the offences punishable under Sections 279,

338 and 304A of the IPC and under Sections 134 (a) and

(b) punishable under Section 187 of the M.V. Act.

4. Since the accused pleaded not guilty and claimed

to be tried in the Trial Court, the prosecution, in order to

prove the alleged guilt against the accused, examined in all

nine witnesses from PW-1 to PW-9 and got marked

documents from Exs.P-1 to P-10(b) and closed its side. On Crl.R.P.No.494/2012

behalf of the accused, neither any witness was examined

nor any documents were marked as exhibits.

5. After hearing the arguments from both side, the

Trial Court convicted the accused for all the alleged

offences, i.e. for the offences punishable under Sections

279, 338 and 304A of the IPC read with Section 134(a) and

(b) punishable under Section 187 of the M.V. Act and

sentenced him for all the said offences.

6. As observed above, the accused preferred an

appeal before the learned Sessions Judge's Court, which

after hearing both side, dismissed the appeal, confirming

the judgment of conviction and order on sentence passed

by the Trial Court. Challenging the judgments of both the

Trial Court as well the Sessions Judge's Court, the accused

is before this Court, in the present revision petition.

7. The respondent - State is represented by the

learned High Court Government Pleader.

8. The Trial Court records are placed before this Court.

Crl.R.P.No.494/2012

9. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court

records.

10. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

11. Learned counsel for the revision petitioner

(accused) in her single sentence argument submitted that

though she has taken few grounds in her memorandum of

revision petition, however, she would confine in requesting

this Court only to reconsider the sentence ordered and seek

for reduction of the sentence of imprisonment.

12. Learned High Court Government Pleader for the

respondent - State in his argument submitted that the

sentence ordered by the Trial Court which was confirmed by

the Sessions Judge's Court, since is reasonable, does not

warrant any interference at the hands of this Court.

13. In the light of the above, the only point that arise

for my consideration in this revision petition is:

Crl.R.P.No.494/2012

Whether the concurrent finding recorded by the Trial Court as well the Sessions Judge's Court warrants any interference at the hands of this Court?

14. The petitioner who was accused in the Trial Court

has raised few grounds in his memorandum of revision

petition, however, as observed above, the learned counsel

for the petitioner submitted that she would not press on any

of those grounds and also would not dispute the judgment

of conviction, but, she would only pray for

reconsideration of the quantum of sentence, particularly,

sentence of imprisonment. With this, she prays for

reduction of sentence of imprisonment, ordered by the Trial

Court which was confirmed by the Sessions Judge's Court

against the accused petitioner herein. She also explains the

reasons for seeking reduction of the sentence of

imprisonment.

15. Among the nine witnesses examined by the

prosecution, PW-1 (CW-1) - Narayanappa, PW-2 (CW-2) -

Crl.R.P.No.494/2012

Hanumantharayappa and PW-5 (CW-3) - Ramakrishna are

stated to be the eye witnesses to the alleged accident.

Among these three witnesses, PW-1 - Narayanappa is

the complainant who has stated that he has witnessed the

occurrence of the accident and has stated that the accident

in question has occurred solely due to the rash and

negligent driving of the offending vehicle, which is a Tanker

Lorry, by its driver. He has also explained the manner how

the accident occurred and how he witnessed the same. He

has also stated that in connection with the accident, it is

him who has lodged the complaint. It was further stated by

him that the Police had visited the spot after registering his

complaint, prepared a Mahazar and seized the vehicles.

Though he was subjected to a detailed cross-examination

from the accused's side, however, he adhered to his original

version, as such, nothing favourable to the accused could

be elicited from his cross-examination.

16. PW-2 - Hanumantharayappa, in his evidence has

stated that he was travelling as a pillion rider in the very Crl.R.P.No.494/2012

same Motor Cycle which was being ridden by the deceased.

He too has narrated as to how the accident in question has

taken place. He has specifically stated that the Tanker Lorry

being driven by the accused was at a high speed and in a

rash and negligent manner. The driver, all of a sudden took

the Lorry towards his left side and dashed to the two

wheeler of which he was a pillion rider. He has stated that

due to the said accident, the rider Sri. Eshwarappa

sustained severe injuries and died at the spot. Though he

too did sustain severe injuries, but he was shifted to the

Hospital. He has identified the accused before the Court as

the driver of the offending Tanker Lorry.

17. PW-5 - Ramakrishna has stated that he too was

an eye witness to the incident and attributed rash and

negligent driving on the part of the accused being the driver

of the Tanker Lorry, which, according to this witness, in a

high speed and rash and negligent manner dashed to the

Motor Cycle which was going by its side. He too has Crl.R.P.No.494/2012

attributed the alleged rash and negligent driving on the part

of the driver of the offending Tanker Lorry.

18. The evidence of PW-1, PW-2 and PW-5 that the

accident did occur on the date, time and place mentioned in

the charge has been further corroborated by the evidence of

PW-3 (CW-4) -Manjunath, who has stated that the scene of

offence panchanama was drawn in his presence as per

Ex.P-2 and the vehicles involved in the accident i.e. the

Tanker Lorry and the Scooter were seized by the Police in

his presence.

19. The evidence of PW-4 (CW-14) - Dr. Anitha B.

Gowda, the Doctor who has stated that she treated the

injured Haumatharayappa (PW-2) who was brought to her

with the history of road traffic accident and issued the

Wound Certificate as per Ex.P-4, supports the evidence of

PW-1, PW-2 and PW-5 that PW-2 - Hanumantharayappa

was injured in the road traffic accident. The injuries

described in the Wound Certificate mentions that

Hanumantharayappa sustained facture of skull bone and Crl.R.P.No.494/2012

frontal bone and cut injury above right eye. The Doctor has

opined that the fracture was a grievous injury and cut injury

was simple in nature.

20. Though the owner of the vehicle examined as

PW-6 (CW-11) - Harisha did not make any averment

against the accused herein, however, his evidence in any

manner could not shake the evidence of PW-1, PW-2 and

PW-5.

21. Added to the above, the evidence of PW-9

(CW-12) - Nizamuddin Sharief, the Inspector of the Motor

Vehicles Department shows that, the witness, after

examining both the vehicles involved in the accident and

assessing the damages caused to them has also confirmed

that the accident in question has occurred not due to any

mechanical defect with the vehicles. In that regard, he has

issued a Motor Vehicle Inspection report as per Ex.P-9.

22. The evidence of PW-7 - Ashwathnarayanaswamy

and PW-8 V. Mariyappa, though are of Police Officers, Crl.R.P.No.494/2012

however, their evidence regarding the death of the

deceased Eshwarappa in the road traffic accident and they

getting his post-mortem examination of his body done and

obtaining the post-mortem report as per Ex.P-10 has not

been specifically denied from the other side. The

Investigating Officer has also spoken about he conducting

the scene of offence-cum-seizure panchanama as also

drawing the inquest panchanama as per

Exs.P-2 and P-3. The opinion of the panchas in the inquest

panchanama that the deceased Eshwarappa died due to the

road traffic accident is corroborated by the post-mortem

examination report at Ex.P-10, which shows that the

Doctor has noticed multiple injuries on the deceased

including a compression fracture of the skull on the frontal

region, a lacerated wound and abrasion on both lower legs

on anterior aspect. After conducting a detailed autopsy,

the Doctor has opined that the cause of death was due to

injuries to the vital organ - brain, as a consequence of road

traffic accident. Thus, the death of the deceased

Eshwarappa is also established as due to the injuries Crl.R.P.No.494/2012

sustained by him in the road traffic accident. It is

analysing the evidence of these witnesses in their proper

perspective, since both the Trial Court and the Sessions

Judge's Court have held that the prosecution has proved

that the accused has committed the offences punishable

under Sections 279, 338, 304A of IPC read with Section 134

(a) and (b) punishable under Section 187 of the M.V. Act, I

do not find any perversity or error in the said finding of the

Trial Court, which was confirmed by the Sessions Judge's

Court.

23. The Trial Court, in its order on sentence has

sentenced the accused (petitioner) to pay a fine of `1,000/-

each for the offence punishable under Section 279 and

Section 338 of the IPC, in default of payment of fine, to

undergo simple imprisonment for each of the offences for

45 days. The accused is also sentenced to pay a fine of

`500/- for the offence under Section 134 (a) and (b)

punishable under Section 187 of the M.V. Act and in default Crl.R.P.No.494/2012

of payment of fine, to undergo simple imprisonment for

thirty days.

24. The accused was also sentenced to undergo

simple imprisonment for a period of one year for the offence

punishable under Section 304A of the IPC. It is this

sentence of imprisonment ordered upon the accused to

undergo simple imprisonment for one year for the offence

punishable under Section 304A of the IPC, the learned

counsel for the petitioner is requesting for its

reconsideration.

25. It is the sentencing policy that, the sentence

ordered must be proportionate to the gravity of the proven

guilt of the accused. It must not be either exorbitant or for

namesake, which becomes disproportionate to the gravity of

the proven guilt against the accused.

26. In the instant case, for the offences punishable

under Sections 279, 338 of IPC and for the offences under

Section 134 (a) and (b) punishable under Section 187 of the Crl.R.P.No.494/2012

M.V. Act, the accused has been sentenced only to pay the

fine. However reasonable default sentence is ordered. But

for the offence punishable under Section 304A of the IPC,

the accused (petitioner) is sentenced to undergo a simple

imprisonment for a period of one year.

27. Section 304A of the IPC prescribes a punishment

of imprisonment of either description for term which may

extend to a maximum of two years, or fine, or with both.

Thus, depending upon the circumstance of the case, gravity

of the offence, mitigating factors, if any, to reduce the

sentence of imprisonment, the Court can confine the

sentence only for fine or only for imprisonment or for both.

In the instant case, the accused (petitioner) was

shown to be a person aged about 26 years, at the time of

accident, as such, not only the deceased, even the accused

was also young in his age. The accused is younger than

the deceased. Further, according to the learned counsel for

the petitioner, the accused is married with small children

having responsibility of the entire family upon him and he is Crl.R.P.No.494/2012

the sole bread winner in the family. She further submits

that the accused being a Lorry Driver having skill of

pursuing only the avocation of driving of vehicles, he has no

other option to search for any other livelihood. As such, if

he is sentenced to serve the imprisonment for a long period

of one year, his entire family would starve.

I find some force in the said submission of the learned

counsel for the petitioner (accused). The records placed

before me, particularly the charge and the impugned

judgment of the Trial Court also would go to show that the

accused was shown to be 26 years of age as on the date of

the complaint. Interestingly, neither the Trial Court nor the

Sessions Judge's Court have discussed the reasons for

imposing the sentence of imprisonment for the offence

punishable under Section 304A of the IPC, for a period of

one year. The impugned judgment passed by the Trial

Court is totally silent about any reasoning for prescribing

the sentence of one year, either in the form of fine or in the

form of imprisonment. In such a circumstance, I am of the Crl.R.P.No.494/2012

view that, since the petitioner could able to demonstrate the

mitigating factors and the compelling circumstances, the

sentence of imprisonment, which the accused is directed to

undergo for a period of one year be reduced by three

months, however, at the same time, a reasonable fine be

imposed upon the accused (petitioner). It is only to that

extent, the impugned judgment of both the Trial Court and

the Sessions Judge's Court warrants interference at the

hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition is

allowed in part;

[ii] While confirming the judgment of

conviction passed by the Court of the Civil Judge

(Jr.Dvn.) and Judicial Magistrate First Class at

Sira, in C.C.No.183/2008 dated 05-11-2008,

holding the accused (petitioner herein) guilty for

the offences punishable under Sections 279, 338 Crl.R.P.No.494/2012

of the Indian Penal Code, 1860, and Section 134

(a) and (b) punishable under Section 187 of the

Motor Vehicles Act, 1988, and also the sentence

of fine and default sentence ordered for the

offences punishable under Sections 279, 338 of

the IPC and Section 134 (a) and (b) punishable

under Section 187 of the M.V.Act, by the Trial

Court, which was further confirmed by the Court

of Fast Track Court-III, at Tumkur, in Criminal

Appeal No.172/2008, dated 05-03-2012, the

order on sentence passed by the Trial Court and

confirmed by the Sessions Judge's Court for the

offence punishable under Section 304A of the

Indian Penal Code, 1860 alone stands modified as

below:

Accordingly, the sentence of simple

imprisonment for a period of one year ordered

against the petitioner (accused) for the offence

punishable under Section 304A of the Indian Penal Crl.R.P.No.494/2012

Code, 1860, is reduced and fixed at nine months'

simple imprisonment, however, at the same time,

a fine of `10,000/- is imposed upon the accused

petitioner, to be deposited before the Trial Court.

In default of payment of fine, three months'

additional simple imprisonment is ordered.

In case of deposit of the said fine amount,

the entire amount be released in favour of the

family of the deceased as compensation, without

any further orders by this Court.

[iii] The revision petitioner(accused) - Raghu

@ Raghavendra, S/o. Siddappa, Aged about 30

years, Driver of Tanker Lorry, bearing

Regn.No.KA-06-A-7695, R/at Kalidasanagar, Sira

Town, Tumkur District, to surrender before the

Court of the Civil Judge (Jr.Dvn.) and Judicial

Magistrate First Class at Sira, within thirty (30)

days from today and serve the sentence imposed

upon him.

Crl.R.P.No.494/2012

[iv] Barring the above, there are no other

modifications ordered in the impugned

judgments passed by the Trial Court as well the

Sessions Judge's Court.

Registry to transmit a copy of this order to both the

Trial Court and also to the Sessions Judge's Court and send

back the Trial Court records, immediately.

Sd/-

JUDGE

BMV*