Sri Mahadevanna D M vs State Of Karnataka By
2022 Latest Caselaw 3576 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.272/2013

BETWEEN:

SRI MAHADEVANNA D.M.,
S/O LATE MALLAYYA
AGED ABOUT 35 YEARS
DRIVER TOKEN NO.11518
BMTC 31 DEPOT, SUMANA HALLI
BENGALURU-560009.                             ... PETITIONER

             (BY SRI NATARAJ D., ADVOCATE FOR
             SRI PRUTHVI WODEYAR, ADVOCATE)
AND:

STATE OF KARNATAKA
BY UPPARPETE TRAFFIC POLICE
BENGALURU.                                    ... RESPONDENT

                (BY SRI K.S.ABHIJITH, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE PASSED BY THE ADDL. S.J., FTC-
XIV, BENGALURU IN CRL.A.NO.708/2012, CONFIRMING THE
ORDER OF CONVICTION AND SENTENCE PASSED BY THE MMTC-
II, BENGALURU IN C.C.NO.525/2012 DATED 31.10.2012 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304-A
OF IPC AND SECTION 134(b) R/W. SECTION 187 OF IMV ACT,
BY ALLOWING THIS CRL.RP.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This petition is filed under Section 397 of Cr.P.C., praying

to set aside the judgment of conviction and order on sentence

passed by the Additional Sessions Judge, Fast Track Court-XIV,

Bengaluru City in Crl.A.No.708/2012, confirming the order of

conviction and sentence passed by the MMTC-II, Bengaluru, in

C.C.No.525/2012 dated 31.10.2012 for the offences punishable

under Sections 279 and 304-A of IPC and Section 134(b) read

with Section 187 of IMV Act, by allowing this petition.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent.

3. The factual matrix of the case of the prosecution is

that on 27.12.2011 at about 7:15 p.m, this petitioner was

driving the BMTC bus from east to west direction and drove the

same in a rash and negligent manner and while entering into the

BMTC bus stand near second ring road entrance dashed against

the pedestrian-Rangamma who was crossing the said entrance

from east to west direction and caused severe injuries and

succumbed to the same in the hospital. The police have

registered a case, investigated the matter and filed the charge-

sheet.

4. The prosecution in order to prove the charges

leveled against the petitioner relied upon the evidence of PWs.1

to 8 and also the documentary evidence - Exs.P1 to 11. On

appreciation of both oral and documentary evidence, convicted

the accused for the offences punishable under Sections 279 and

304-A of IPC and Section 134(b) read with Section 187 of IMV

Act. The maximum sentence awarded is six months. Hence, an

appeal was filed before the Appellate Court in

Crl.A.No.708/2012. The Appellate Court on re-appreciation of the

evidence available on record, confirmed the judgment of

conviction and order on sentence and dismissed the appeal.

Hence, the present revision petition is filed before this Court.

5. The main contention of the revision petitioner before

this Court is that the trial Court mainly relied upon the evidence

of PWs.1 to 8 and there are discrepancies in the evidence. The

deceased was moving in the prohibited area for the pedestrians

and as a result of which the accident was occurred. PW.1, the

son of the deceased Rangamma, only supported the case of the

prosecution and the prosecution witnesses, PWs.2 to 8 have not

supported the case of the prosecution.

6. PW.1 in the cross-examination, categorically

admitted that the accident has occurred in front of Nandini

Parlour and on the other hand in his evidence has stated that the

accident has occurred at the time when the deceased and PW.1

were moving from Nandini Parlour towards public Toilet at about

20 to 25 feet from the Nandini Parlour. These discrepancies have

not been considered by the Trial Court and also failed to take

note of the defence of the petitioner and not assigned any

reason for discarding the 313 statement and the defence of the

petitioner.

7. Learned counsel appearing for the petitioner would

submit that the trial Court has convicted the accused under

Section 279 of IPC when the same merges with the offence

under Section 304A of IPC. The Learned Counsel in support of

his arguments would contend that the incident was taken place

in the year 2011 and no purpose would be served that he has to

undergo sentence and compensation may be awarded and by

awarding compensation he may be set at liberty.

8. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that

both the Courts have appreciated both oral and documentary

evidence, particularly, the evidence of PWs.1 to 4. PW.1 is the

son of the deceased and was along with the complainant at the

time of the accident. Apart from that, PW.2 is the witness, who

witnessed the incident of accident and he is the Proprietor of the

dairy. PW.3 was also standing near the spot of the accident and

the prosecution mainly relies upon the evidence of PWs.1 to 3.

PW.4, is the Doctor, who treated the injured immediately after

the accident. The other witnesses are formal witnesses.

9. Learned High Court Government Pleader appearing

for the State in support of his arguments he relied upon the

judgment of the Apex Court in the case of State of Punjab v.

Saurabh Bakshi reported in (2015) 5 SCC 182, in this

Judgment, the Apex Court discussed in different paragraphs

regarding awarding of compensation. In paragraph No.24, the

Apex Court came to the conclusion that the principle of

sentencing recognizes the corrective measures but there are

occasions when the deterrence is an imperative necessity

depending upon the facts of the case. Hence, the Apex Court set

aside the awarding of payment of compensation is a factor for

reduction of sentence. Further observed that, it is, in a way

mockery of justice. Because justice is "the crowning glory", "the

sovereign mistress" and "queen of virtue" as Cicero had said.

Such a crime blights not only the lives of the victims but of many

others around them. It ultimately shatters the faith of the public

in judicial system. Hence, setting aside the order of the High

Court sentenced the appellant to undergo sentence for a period

of six months for an offence punishable under Section 304A of

IPC.

10. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State, the points that would arise for

consideration of this Court are:

(i) Whether the judgment of conviction and order on sentence passed by the Trial Court, affirming the same by the Appellate Court suffers from any legality, correctness and propriety by invoking the jurisdiction of the revision?

(ii) What order?

Point No.(i):

11. Having heard the respective counsel and also on

perusal of the material available on record, P.W.1, who is the

son of the victim was along with the victim-mother. Apart from

that, the other witness, who is having the dairy in front of the

place of the accident also came and given evidence before the

Court that the accident was occurred due to negligence on the

part of the driver of this petitioner, who has been examined as

P.W.2.

12. The witness - P.W.3, is an eyewitness. His evidence

corroborates that he was standing near the place of accident and

he witnessed the incident. The evidence of these three witnesses

are consistent and nothing is found that the material

contradictions as contended by the learned counsel for the

petitioner. No doubt, P.W.2, speaks with regard to the distance

of 20 to 25 feet from his dairy. But the fact is that he witnessed

the incident is not disturbed in the cross-examination and he

withstood the cross-examination of the defense counsel. Hence,

PWs.1 to 3 are the eyewitnesses to the incident and their

evidence is consistent and corroborates with each other. The

other witness is P.W.4, who is the Doctor, conducted the post-

mortem report. The cause of death is on account of the

accidental injuries and the victim succumbed to the accidental

injuries. When such being the material available on record, I do

not find any error committed by the Trial Court as well as the

Appellate Court on re-appreciation of the evidence available on

record. The Appellate Court also in paragraph Nos.13 and 14,

taken note of the evidence of PWs.2 and 3 and even though

P.W.1 is the son of the victim, he is an interested witness and

nothing is elicited that PWs.1 to 3 have not witnessed the

incident. The Appellate Court on re-appreciation, particularly, in

paragraph Nos.20 and 21, carefully perused the spot sketch

marked as Ex.P5, wherein, existence of Nandini Parlour is also

shown. Hence, believed the evidence of P.W.2. P.W.2 also

clearly deposed that at the time of the accident he was in the

milk parlour and the evidence of P.W.2 is very clear that the

accused has driven the bus in an over speed and dashed against

the deceased. Hence, I do not find any error and also any

perversity in the order of either the Trial Court as well as the

Appellate Court. Hence, I do not find any merit to invoke the

revisional jurisdiction.

13. Regarding sentence is concerned and also the

submission of the learned counsel for the petitioner is that by

ordering the compensation, this petitioner may be set at liberty

and the said submission cannot be accepted in view of the Apex

Court judgment relied upon by the learned High Court

Government Pleader in Saurabh Bakshi's case (supra). The

Apex Court in paragraph No.24, heavily come down with regard

to exercising of discretion by the High Court ordering to pay the

compensation. In the said case, sentence of one year was

imposed and the same was reduced to six months, but not

ordered for any compensation. Hence, in view of the principles

laid down in the judgment, this Court also cannot ordered for

any compensation as contended by the learned counsel for the

petitioner. The judgment of the Apex Court in Saurabh Bakshi's

case (supra), is applicable to the facts of the case, in which also

six months sentence was imposed by the Apex Court in an

offence punishable under Section 304-A of IPC.

14. The Trial Court also convicted for the offences

punishable under Sections 279 and 304-A of IPC., and the

ingredients of an offence punishable under Sections 279 of IPC

and also the ingredients of the offence punishable under Section

304-A of IPC. The said ingredients merge with an offence

punishable under Section 304-A of IPC. Hence, the conviction

order passed by the Trial Court and sentence imposed in respect

of the offence under Section 279 of IPC, requires to be set aside.

Point No.(ii):

15. In view of the discussions made above, I pass the

following:

ORDER

The Revision Petition is allowed in part.

The judgment of conviction and order on sentence for an

offence punishable under Section 279 of IPC is hereby set aside

and judgment of conviction and order on sentence on other

offences, are confirmed.

Sd/-

JUDGE

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