Karnataka High Court

Chandrashekara vs State By K.R. Pet Town Police on 31 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MARCH, 2022

                         BEFORE

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

         CRIMINAL REVISION PETITION NO.1057/2012

BETWEEN:

CHANDRASHEKARA,
S/O BASAVALINGAIAH,
AGED ABOUT 44 YEARS,
DRIVER, R/OF UGINAHALLI VILLAGE,
KIKKERI HOBLI, K.R. PET TALUK,
MANDYA DISTRICT-571 423.                       ...PETITIONER

               (BY SRI C.N. RAJU, ADVOCATE)

AND:

STATE BY K.R. PET TOWN POLICE,
K.R. PET TALUK,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
AT BANGALORE-560001.                          ...RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 29.09.2011
PASSED BY THE C.J. & J.M.F.C., K.R.PET. IN C.C.NO.395/2007
AND THE JUDGMENT DATED 07.09.2012 PASSED BY THE P.O.,
F.T.C., SRIRANGAPATNA IN CRL.A.NO.82/2011 AND ACQUIT
THE PETITIONER.

    THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

2. The factual matrix of the case of the prosecution

before the Trial Court is that on 19.04.2007 at about 3.45 p.m.

on Santhebachanahalli - Hirisavi Road in front of the house of

the complainant at Doddakyathanahalli Village, when the

deceased Ramu was crossing the road to go to his house, the

accused being the driver of TATA ACE Goods Auto bearing

No.54/78 came in a rash and negligent manner as to endanger

the human life from the side of Santhebachanalli and dashed to

seven year old Ramu and as a result, the wheel of the auto ran

over the abdomen of the said boy and immediately he was

shifted to Chennarayapatna Hospital. After first aid treatment,

when he was being shifted to K.R. Pet General Hospital for

treatment, on the way to the hospital, he succumbed to the

injures at 5.00 p.m. Hence, based on the complaint, the case

has been registered for the offence punishable under Sections

279 and 304A of IPC and Section 134(a) and (b) of the Motor

Vehicles Act ('MV Act' for short).

3. The prosecution in order to prove the charges

leveled against the petitioner, examined P.W.1 to P.W.9 and got

marked the documents at Exs.P.1 to 11(a). The petitioner has

not led any evidence before the Trial Court. The Trial Court after

considering both oral and documentary evidence placed on

record, convicted the petitioner for the offence punishable under

Sections 279 and 304A of IPC and Section 134(a) and (b) of the

MV Act and imposed substantive sentence of six months for

Section 279 of IPC and fine of Rs.1,000/- and substantive

sentence of one year for offence punishable under Section 304A

of IPC and imposed fine of Rs.500/-. In respect of offence

punishable under Sections 134(a) and (b) of MV Act, imposed

fine of Rs.500/- and Rs.1,000/-. Being aggrieved by the

judgment of conviction, an appeal is filed before the Appellate

Court. The Appellate Court on re-appreciation of both oral and

documentary evidence placed on record, confirmed the

conviction and sentence and hence the present revision petition

is filed before this Court.

4. The learned counsel for the petitioner without

arguing the matter on merits would vehemently contend that the

petitioner has suffered the stroke. In support of his contention,

he placed the document before the Court, wherein out patient

record discloses that he was clinically assessed on 10.08.2021

and noticed left side weakness from last six months and also the

examination finding is that stroke on left side and he is under

treatment. He needs rest and cannot walk and difficult to his

routine work, bed ridden, needs exemption from attending the

Court. The learned counsel also produced the OPD sheet

regarding physical examination and cardiovascular examination

and also produced the certificate issued by Sparsh Hospital,

Department of Radiology and Imaging Sciences MRI of Whole

Spine Screening, wherein the report is with regard to subtle

retrolisthesis of L4 over L5 with partial wedging of L4 -

degenerative changes and the impression is that features of

cervical and lumbar spondylosis as described.

5. The learned counsel has also produced the document

along with memo dated 25.03.2022 and the same is out patient

record dated 22.03.2022, wherein also it is mentioned that there

is weakness on the left hand and also left foot. MRI report dated

14.02.2022 corroborates grade I anterolisthesis of L3 over L4

vertebral body and grade I retrolisthesis of L4 over L5 vertebral

body.

6. This Court had directed the learned counsel for the

petitioner to keep the petitioner present before the Court.

Today, the petitioner is produced before the Court with wheel

chair. Having taken note of the MRI scan dated 14.02.2022 as

well as the earlier reports, the petitioner is in constant

treatment. The Apex Court in its judgment dated 03.02.2020

passed in Crl.A.214/2020 in the case of ANNAPOORNA v.

THE STATE OF KARNATAKA, while disposing of the matter

made an observation that the occurrence is of 09.04.2006, about

14 years have elapsed. Taking note that it is an admitted fact

that the appellant herself took the injured person to the hospital,

but unfortunately she expired. Having taken note of the same

while upholding the conviction of the appellant, modified the

sentence by not upholding any substantive sentence upon her

and directed the appellant to pay Rs.1.5 lakhs to the respondent

as compensation under Section 357A of Cr.P.C. and also made it

clear that the said amount is in addition to the award amount

under the MV Act and the same shall be paid to P.W.1. The

Apex Court was lenient in taking note of the incident was more

than 14 years ago. In the case on hand also, the incident was

taken place in 2007 and almost 1½ decade has been elapsed.

However, taking note of the pathetic condition of the petitioner

as he is under treatment for his paralysis and MRI report

confirms the same and having considered the peculiar facts and

circumstances of the case and also it was an accident and not

intentional act, this Court can show some lenience in view of the

health condition of the petitioner and instead of ordering for

sending him for jail to suffer substantive sentence, it is

appropriate to modify the judgment of the Trial Court and the

Appellate Court. Though the Apex Court directed to pay Rs.1.5

lakhs, taking note of the pathetic condition of the petitioner since

he is also taking treatment for paralysis and he has been

produced before the Court in wheel chair, it is appropriate to

impose fine of Rs.75,000/- as exceptional case and the same has

to be deposited within eight weeks. In default of payment of

fine, the petitioner shall undergo imprisonment for a period of

six months. On deposit of Rs.75,000/- before the Trial Court,

the Trial Court is directed to pay the amount to the mother and

if mother is not alive in favour of the father, on proper

identification.

7. Now coming to the aspect of conviction in respect of

the offence under Section 279 of IPC is concerned, when the

ingredients of Section 279 of IPC merges with the offence under

Section 304A of IPC, the Trial Court ought not to have convicted

and sentenced the petitioner for the offence punishable under

Section 279 of IPC and hence it requires interference of this

Court to set aside the conviction and sentence for the offence

under Section 279 of IPC. If any amount is deposited, the same

has to be refunded in favour of the petitioner, on proper

identification. The conviction and sentence for the offence

punishable under Sections 134(a) and (b) of MV Act is unaltered.

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

following:

ORDER

(i) The petition is partly allowed.

(ii) The conviction and sentence for the offence punishable under Section 279 of IPC is hereby set aside and the amount in deposit, if any, is ordered to be refunded in favour of the petitioner, on proper identification.

(iii) The conviction and sentence in respect of the offence punishable under Section 304A of IPC is modified to pay fine of Rs.75,000/- within eight weeks from today instead of substantive sentence as exceptional case. In default of payment of fine, the petitioner shall undergo imprisonment for a period of six months.

(iv) On deposit of Rs.75,000/- before the Trial Court, the Trial Court is directed to pay the amount to the mother and if mother is not alive in favour of the father, on proper identification.