Chandrashekharaiah vs State Of Karnataka
2022 Latest Caselaw 5353 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.346/2013

BETWEEN:

CHANDRASHEKHARAIAH
S/O CHENNAVEERAIAH
AGED ABOUT 26 YEARS
KA-16 A-8383, S.R.E. BUS DRIVER
RESIDING AT 2ND CROSS
MALAVAGOPPA
SHIVAMOGGA-577 201.                           ... PETITIONER

               (BY SRI D.NATARAJ, ADVOCATE)
AND:

STATE OF KARNATAKA
BY HOLEHONNURU POLICE STATION
BHADRAVATHI-577 301.                      ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED 26.02.2013,
PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT,
BHADRAVATHI IN CRIMINAL APPEAL NO.198/2012 AND ORDER
OF CONVICTION AND SENTENCE DATED 14.09.2012 PASSED BY
THE I ADDITIONAL CIVIL JUDGE & J.M.F.C, BHADRAVATHI IN
C.C.NO.2834/2008 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 279 AND 304(A) OF IPC.
                                2



     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 order of judgment of conviction and order on

sentence passed by the Fast Track Court, Bhadravathi, in

Crl.A.No.198/2012 dated 26.02.2013, confirming and modifying

the order of conviction and sentence passed by the I Additional

Civil Judge and JMFC., Bhadravathi, in C.C.No.2834/2008 dated

14.09.2012 for the offences punishable under Sections 279 and

304-A of IPC.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The case of the prosecution is that this petitioner

drove the bus in a rash and negligent manner and dashed

against the boy, who was crossing the road and driven the

vehicle in a rash and negligent manner, as a result, the boy

came under the wheel and succumbed to the injuries.

4. The prosecution in order to prove the case relied

upon the evidence of PWs.1 to 10 and also the documentary

evidence - Exs.P1 to 8. The accused/petitioner has not led any

defense evidence before the Trial Court.

5. The Trial Court after considering the evidence of

PWs.3 and 4, convicted the petitioner herein for the offences

punishable under Sections 279 and 304-A of IPC. The

substantive sentence awarded in respect of an offence

punishable Section 304-A of IPC is two years and a fine of

Rs.5,000/-. Being aggrieved by the judgment of conviction and

the order on sentence, an appeal was filed before the Appellate

Court in Crl.A.No.198/2012. The Appellate Court on re-

appreciation of the evidence available on record, particularly,

considered the evidence of P.W.4 and not accepted the evidence

of P.W.3 and confirmed the judgment of conviction and order on

sentence and reduces the sentence to one year for an offence

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

revision petition is filed before this Court.

6. The main contention of the learned counsel for the

revision petitioner before this Court is that both the Courts have

relied upon the evidence of P.W.4. He is an eyewitness according

to the prosecution and he is only the sole witness. Though the

prosecution witnesses claim that other witnesses have witnessed

the incident. But in the cross-examination categorically elicited

from the mouth of P.W.2 that both PWs.1 and 2 have not

witnessed the accident. P.W.3, in the cross-examination

categorically admitted that he has not witnessed the accident.

The Appellate Court committed an error in relying upon the

evidence of P.W.4, who is the sole witness. The learned counsel

also would submit that in the cross-examination he categorically

admits that he saw the driver of the bus at the instance of 50

feet and the accident was taken place at 7 p.m. and there was

darkness and he also not properly identified him. The Appellate

Court ought to have given the benefit in favour of the petitioner.

Hence, it requires an interference of this Court.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that

though the Appellate Court not believed the evidence of P.W.3,

P.W.4 evidence is consistent and nothing is elicited in the cross-

examination to discredit the evidence of P.W.4. The other

witnesses are formal witnesses regarding the Mahazar and the

Appellate Court also on re-appreciation of the evidence rightly

comes to the conclusion that an accident was taken place on the

negligence of this petitioner only.

8. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record, the points that would arise for consideration of this

Court are:

(i) Whether the Trial Court has committed an error in convicting the petitioner for the offences punishable under Sections 279 and 304-A of IPC?

(ii) Whether the Appellate Court has committed an error in believing the evidence of P.W.4 and committed an error in confirming the judgment of conviction?

(iii) Whether the petitioner has made out the ground to invoke the revisional jurisdiction?

     (iv)    What order?


Point Nos.(i) to (iii):

9. Having heard the respective counsel and also on

perusal of the material available on record, the prosecution

mainly relies upon the evidence of PWs.1 to 10 and the

documents Exs.P1 to P8. The main contention of the learned

counsel for the petitioner is that both the Courts ought not to

have relied upon the evidence of P.W.4. P.W.4 has categorically

admitted that at some distance from the place of accident, there

was a ditch and question of driving the vehicle in a rash and

negligent manner does not arise. Apart from that, the learned

counsel for the petitioner submits that P.W.4 categorically

admitted that it is a public road and other vehicles are also

moving and also contend that the petitioner has not been

identified by P.W.4 since he has deposed that he saw the

petitioner at a distance of 50 feet. On the other hand, it is the

contention of learned High Court Government Pleader appearing

for the State that P.W.4 evidence is consistent and nothing is

elicited to discredit his evidence.

10. Having considered the material available on record,

no doubt, the Appellate Court not accepted the evidence of

P.W.3, though the Trial Court has accepted the evidence of

P.W.3. P.W.3 in the cross-examination categorically admits that

he did not witness the accident and also he cannot tell at whose

negligence, an accident was taken place. The evidence remains

only P.W.4. He categorically deposed that the bus came in a rash

and negligent manner and when the boy was crossing the road,

a driver of the bus dashed against him. As a result, he came

under the wheel. In the cross-examination, no doubt, it is

elicited that he was visiting the Canteen of CW.1, who is the

father of the boy, runs the Canteen and also he admits that the

bus stand was located at the little distance. Except these two

answers elicited from the mouth of P.W.4, nothing is elicited to

discredit the evidence of P.W.4. It is suggested that normally

the driver of the bus used to come slowly when they comes near

the bus stop and the said suggestion was denied. The witness

categorically says that at that time, the accused/petitioner drove

the vehicle in a rash and negligent manner.

11. Having considered the evidence of P.W.4, who is also

a sole witness though P.W.1 claims that he also witnessed the

incident, P.W.2, his wife admitted that both PWs.1 and 2 have

not witnessed the incident. The other witness is only a

circumstantial witness, who came to spot i.e., P.W.5. Having

considered this material as an oral evidence of P.W.4, P.W.4's

evidence is consistent and nothing is elicited to discredit the

evidence of P.W.4 and he categorically deposed before the Court

that an accident was witnessed by him. On perusal of Ex.P3-

rough sketch, it is clear that the width of the road is 24 feet and

the bus was almost came in the right portion of the bus and the

remaining area is 14 feet on the side of the bus and towards the

right side of the bus remaining area was 10 feet. The document -

Ex.P3 also supports the case of the prosecution. Hence, I do not

find any reasons to interfere with the findings of the Trial Court

and this Court can exercise the revisional jurisdiction only if any

error is committed by the Trial Court and the Appellate Court in

appreciation of the evidence. Both the Courts have relied upon

the evidence of P.W.4, whose evidence is consistent and not

discredited his evidence and question of invoking the revisional

jurisdiction does not arise.

12. However, the Trial Court has convicted the petitioner

for an offence punishable under Sections 279 of IPC. When the

ingredients of an offence punishable under Sections 279 of IPC

merges with the serious offence punishable under Section 304-A

of IPC, the Trial Court ought not to have convicted for the

offence under Section 279 of IPC and the Appellate Court also

not considered this aspect and blindly accepted the case of the

Trial Court. Hence, it requires an interference of this Court and

the same has to be set aside. If any fine amount is deposited in

respect of an offence under Section 279 of IPC is ordered to be

refunded.

13. The sentence with regard to an offence under

Section 304-A of IPC is concerned; the Court has to take note of

the gravity of the offence, when there is a death of a boy.

14. This Court would like to rely upon the judgment of

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

Bakshi reported in (2015) 5 SCC 182, wherein, 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. Hence, it is

appropriate to reduce the sentence to six months for an offence

punishable under Section 304A of IPC.

Point No.(iv):

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

following:

ORDER

(i) The revision petition is allowed in part.

(ii) The impugned judgment of conviction and order on sentence for an offence punishable under Section 279 of IPC, is hereby set aside.

(iii) If any fine amount is deposited by the petitioner is ordered to be refunded to him on proper identification in respect of an offence punishable under Section 279 of IPC.

(iv) The conviction for an offence punishable under Section 304-A of IPC is confirmed and the sentence is reduced to six months from one year. The fine amount is unaltered.

Sd/-

JUDGE

cp*