Karnataka High Court

Hulagappa vs The State Of Karnataka on 13 April, 2023

Bench: Ramachandra D. Huddar

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           IN THE HIGH COURT OF KARNATAKA
                    AT KALABURAGI

        DATED THIS THE 13TH DAY OF APRIL, 2023

                         BEFORE

THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR

  CRIMINAL REVISION PETITION NO.200015/2018


BETWEEN:

Hulagappa S/o Yamanappa Rampur,
Age : 42 years, Occ: Driver,
R/o Muttur Village, Tq. Lingasugur,
Dist : Raichur - 585 401.
                                      ... Revision Petitioner

(By Sri Ishwaraj S.Chowdapur, Advocate)


AND:

The State of Karnataka,
Through Maski P.S.,
Represented by
Addl. State Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench - 585 103.
                                            ... Respondent

(By Sri Sharanabasappa M.Patil, HCGP)

      This Criminal Revision Petition is filed under
Sections 397 and 401 of Cr.P.C. praying to set-aside the
order of conviction of JMFC at Lingasugur in CC
No.126/2006, order dated 03.02.2015 and which is
confirmed by Prl. Sessions Judge at Raichur in
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Crl.A.No.8/2015 order dated 03.04.2018 and acquit the
petitioner by allowing the revision petition of charges
under Sections 304(A), 279, 337 and 338 of IPC and
Section 177 of M.V.Act in the interest of justice and equity.

      This criminal revision petition having been heard and
reserved on 31.03.2023 coming on for pronouncement of
orders, this day, the court made the following :

                           ORDER

The Revision Petitioner-accused has filed this

revision petition under Section 397 read with Section 401

of Code of Criminal Procedure (for short the 'Cr.P.C') being

aggrieved by the concurrent findings with regard to his

conviction and sentence passed in C.C.No.126/2006 dated

03.02.2015 by the learned Civil Judge and Judicial

Magistrate First Class, Lingasugur and affirmed in Criminal

Appeal No.8/2015 by the Principal Sessions Judge, Raichur

vide judgment dated 03.04.2018.

2. Parties to this revision are referred to as per

their rank before the trial Court for the purpose of

convenience.

3. The brief and relevant facts up to this revision

petition are as under:

That, accused has been charge-sheeted by CPI,

Maski Circle, for the offences punishable under

Sections 279, 337, 338 and 304(A) of Indian Penal Code

(for short 'IPC') and Sections 177 and 187 of Motor

Vehicles Act (for short M.V.Act).

That one Budda Sab S/o Nabi Sab Kadival resident of

the address so stated in the complaint submitted a

complaint on 19.11.2005 at 8.30 a.m., by giving his

statement before the police stating that he is a coolie by

profession. For the last two weeks prior to filing of a

complaint, himself and residents of his village by name

Rasoolbi W/o Mohammad Sab, Noorjan D/o Rasool Sab,

Ashabegum W/o Babusab, Ramjanbe W/o Hassan Sab and

Martuj S/o Rahimansab and others, in all 34 persons used

to attend the coolie work under one Mehaboob Sab Mestri

being the contractor and used to attend the said work at

Teertha Bhavi mountain of doing conker. They used to

travel in a tractor to attend their coolie work.

It is alleged that on 19.11.2005 at about 5.00 p.m.

their contractor brought a tractor-trailer bearing

Reg.No.KA-36/T-1528/29 to send the coolie workers to

their respective villages. All these persons boarded the

said tractor loaded with conker. Amongst the said laborers,

there were also four other laborers also boarded the said

tractor. The said tractor was being driven by one Hulgappa

S/o Yamunappa. One Amzad, the brother of the contractor

Mehaboob Sab sat behind the driver of the said tractor.

The said tractor departed from the place of coolie work at

5.30 p.m. and when the said tractor was moving at Adavi

Bhavi Thanda, the driver of the said tractor by driving his

tractor in high speed, in a rash and negligent manner,

after passing Advai Bhavi Thand lost control over the

driving of the tractor and made the said trailer of the

tractor to turtle down. Thus, the said tractor-trailer turtled

down on the left side of the road, due to which the

passengers travelling on the said tractor i.e., CWs.3 to 10

sustained grievous injuries on their person, CW.1 and

CW.11 to 31 sustained injuries One Amjad S/o

Bashumiya, aged 18 years, being resident of

Venkatarayanapete Mudgal, died on the spot. After the

said accident, driver/accused ran away from the spot

without informing any body. With these allegations, a

complaint came to be filed which was registered in Crime

No.110/2005 of Maski Police Station.

4. PW.30 by name Kashi Vishwanath the then

Police Sub Inspector, on 19.11.2005 when he was in the

police station received the telephonic message regarding

the said accident at 8.30 p.m. and admitting the injured to

the Maski Vijay Nursing Home. Immediately he went to the

hospital and there recorded the statement of the

complainant as per Ex.P.1, came to the police station

registered the crime in the aforesaid crime. Deputed his

staff to guard the scene of offence. On 20.11.2005 visited

the scene of offence, prepared the inquest panchanama on

the dead body of the deceased, sent the same for the

purpose of post mortem. Seized the offending tractor and

trailer. Recorded the statement of the witnesses and

thereafter handed over the investigation to PW.31-

Sri Sanganna Tumbagi the then CPI of Maski Circle Police

Station. This PW.31 on taking up of investigation recorded

the statement of the witnesses, obtained the relevant

records and after completion of the investigation, he filed

the charge-sheet against accused.

5. After filing charge-sheet, Judicial Magistrate

First Class, Lingasgur took cognizance of the offence,

secured the presence of the accused and he was enlarged

on bail. Copies of the police papers were furnished to the

accused as contemplated under Section 207 of Cr.P.C.

6. Thereafter, substance of accusation framed,

read over and explained to the accused in Kannada in the

language known to him. He pleaded not guilty and claimed

to be tried. To prove the guilt of the accused prosecution

examined witnesses from PWs.1 to 31 and got marked

Ex.P.1 to Ex.P.46 with respective signatures thereon and

MOs.1 to 4- stones (conker stones). Closed prosecution

evidence. After closure of the prosecution evidence,

accused was questioned under 313 of Cr.P.C so as to

enable him to answer incriminating circumstances

appearing in the evidence of the prosecution. He denied

his complicity in the crime and did not choose to lead any

defence evidence on his behalf.

7. The learned Judicial Magistrate First Class,

Lingasugur, heard the arguments and on perusal of the

evidence so placed by the prosecution found the accused

guilty of the offences punishable under Sections 279, 337,

338 and 304(A) of IPC and Section 177 of M.V.Act and

acquitted the accused for the offence under Section 187 of

the M.V.Act.

8. The sentence so passed by the learned trial

Court reads as under :

"In excise of power vested in me under Section 255(2) of Code of Criminal Procedure, the Accused is found guilty of the offence punishable U/s 279, 337, 338 and 304(A) of IPC along with Section 177 IMV Act.

Further in excise of power vested in me under Section 255(1) of Code of Criminal Procedure, the accused is found not guilty of the offence punishable under Section 187 of IMV Act, accordingly he is ordered to be acquitted from said charge.

Consequently,

        For     the   offence   punishable    under

Section 304A of IPC, the accused shall undergo SI for 6 months and to pay a fine of Rs.7,000/-, in default to undergo SI of 1 month.

For the offence punishable under Section 279 of IPC, the accused shall pay a fine ofRs.500/-, in default to undergo SI for 5 days.

For the offence punishable under Section 337 of IPC, the accused shall pay a fine of Rs.500/-, in default to undergo SI for 5 days.

For the offence punishable under Section 338 of IPC, the accused shall pay a fine of Rs.700/-, in default to undergo SI for 10 days.

For the offence punishable under Section 177 of IMV Act, the accused shall pay a fine of Rs.50/-, in default to undergo SI for 1 day."

9. Being aggrieved by the said judgment of

conviction and sentence passed by the trial Court, accused

preferred Criminal Appeal No.8/2015 before the Principal

Sessions Judge, Raichur.

10. The learned Principal Sessions Judge, Raichur

having secured the trial Court records and on hearing the

arguments and on re-appreciation of the evidence,

affirmed the judgment of conviction and sentence passed

in C.C.No.126/2006 dated 30.02.2015 by the Judicial

Magistrate First Class, Lingasugur. It is these judgments,

passed by the trial Court and the first Appellate Court are

challenged by the accused/revision petitioner by filing this

revision petition on the following grounds :-

• That the conviction and sentence passed by the

Judicial Magistrate First Class, Lingasugur is not

based on evidence on probability. There is no proper

appreciation of the evidence by the learned trial

Court. The accused was driving the said tractor and

trailer very slowly. There was no rash and negligent

driving of the tractor and trailer by the accused. The

entire investigation is done by the Assistant Sub

Inspector who was not competent to conduct

investigation.

• The trial Court and the appellate Court have failed to

take note of infirmities in the case of the

prosecution. The Investigating Officer has failed to

take note of the scene of offence which was

consisting of kachha road, as the road was not in

good condition; this fact is not properly appreciated

by the trial Court.

• The witnesses so deposed before the trial Court have

stated that the tractor was moving in a normal

speed.

• It is the case of prosecution that it is a murum road,

consisting of ditches and depression which is not

taken note by the Courts below. Amongst other

grounds, it is prayed to set aside both the judgments

and prayed to acquit the accused.

11. After filing this revision same is admitted and

the accused was granted bail during pendency of this

revision as per the order dated 25.04.2018.

12. The records the trial Court as well as first

appellate Court are secured.

13. Heard the arguments of both sides and

perused the records.

14. It is submitted by the counsel for accused/

revision petitioner that, there is no proper appreciation of

evidence by the trial Court and also the first appellate

Court. According to his submission, the condition of the

road was the main cause for the said accident. Without any

fault of the accused the said accident has taken place. As it

was a kachha road, consisting of ditches, it was not at all

possible for any driver to drive the vehicle in high speed

muchless the accused being a driver of the tractor-trailer.

He submits that as the ingredients of offence under

Sections 279, 337, 328 and 304(A) of IPC and

Sections 177 and 187 of M.V.Act are missing. Therefore,

he prays to acquit the accused.

15. As against this submission, the learned counsel

Sri Sharanabasappa M.Patil, High Court Government

Pleader for respondent/State supports the reasons being

assigned by the trial Court and the appellate Court. He

submits that the very carrying of more than 34 persons

on a loaded stone by the accused without any permit itself

is a rashness on the part of the accused. When he knew

that the road was a kachha road consisting of ditches, he

must have been more cautious and would not have driven

the said tractor-trailer in high speed. The very driving of

the offending vehicle amounts to negligence on the part of

the accused. Though some witnesses have spoken about

normal sped of the said vehicle, but most of the witnesses

have categorically stated about driving of the offending

tractor-trailer by the accused. Because of the same the

said accident has taken place. Therefore, he justifies the

order of conviction and order of sentence passed by the

trial Court and affirmed by the first appellate Court. He

prays to dismiss this revision.

16. Having heard the arguments of both the sides,

we have to ascertain, whether the learned trial Magistrate

is right in convicting the accused for the offence under

Sections 279, 337, 328 and 304(A) of IPC and

Sections 177 and 187 of M.V.Act and whether the learned

Appellate Court is justified in concurring with said

conviction and sentence.

17. To ascertain the same, we have to read both

oral and documentary evidence of both the parties.

18. Before adverting to the other aspects of the

case, let us know the admitted facts between both sides.

Accused was a driver of tractor-trailer bearing Reg.No.KA-

36-T/1528/29 at the time of accident. There was an

accident on 19.11.2005 at about 6.30 p.m. In the said

accident, 27 persons who were travelling in the said

tractor-trailer were injured and one person died. Injured

were shifted the Maski Hospital. On receipt of the

information the police came to the hospital and recorded

the statement of PW.1-Budda Sab as per Ex.P.1. Scene of

offence is also not disputed. In the said accident, one

Amzad S/o Bashumiya, aged 18 years died. To that effect

the police prepared the inquest panchanama as per Ex.P.8

and collected the post mortem report as per Ex.P.13. So it

is very much clear that the deceased died because of

accidental injuries. In the said accident, number of persons

were injured and wound certificates are marked at Ex.P.14

to Ex.P.46. Some of the persons traveling in the said

tractor sustained simple injuries and some persons

sustained grievous injuries. The IMV report Ex.P.9 shows

that the said accident has taken place not because of any

mechanical defects. There is no denial of all these factual

features by the defence. That means, defence clearly

admits all the aforesaid facts which need not be proved.

19. Now the question is, whether accused was

driving the said offending vehicle in a rash and negligent

manner endangering the human life and because of the

same, the said accident has taken place. To ascertain the

same, we have to read the evidence spoken to by the

witnesses so examined in this case. No doubt to some

extent some of the witnesses have been turned hostile,

but that does not mean that, such a hostility of the

witnesses would help the accused in proving his defence. It

is for the accused to prove his innocence too once the

prosecution is able to establish its case.

20. On reading of the evidence of the witnesses so

recorded by the trial Court in the shape of PW.1 the

complainant and other witnesses, though some witnesses

have been turned hostile but, the other persons being

injured who were travelling in the said tractor-trailer, go to

establish about nature of driving of the said offending

vehicle by the accused.

21. PW.1 the complainant reiterates the contents

of the complaint in brief in his evidence about the driving

of the said offending by the accused. According to him,

tractor was at medium speed. He says 27 persons were

injured in the said accident.

22. PW.2 - Mehaboob was an eyewitness and

states in his evidence that about 30-35 laborers were

traveling in the said offending vehicle from Teertha Bhavi

to Mudgal. The said accident has taken place near Dinni

Bhavi village. He saw the said accident from at a distance

of half kilometer. One person died in the accident. Thus

the from the evidence of PWs.1 and 2 it is proved that

there was an accident of the said offending vehicle,

wherein trailer turtle down.

23. PW.3 - Hussain Sab states that due to jump

the said accident taken place, PW.4- Shabana Begum

states that at the time of accident the tractor took jerk at

the hump and therefore it was capsized, PW.5 - Noorja

states that she cannot say the cause of accident, PW.6 -

Devamma states that near Mathur Village the tractor

suddenly got jumped and she sustained grievous injuries.

She further states that she cannot say the cause of

accident. All these witnesses have been declared as hostile

witnesses by the prosecution, but nothing worth is elicited

so as to disbelieve their version given in the examination-

in-chief. Therefore, to some extent their evidence would

help the case of the prosecution to prove the nature of

driving of offending vehicle by accused.

24. PW.7 - Rasoolbee another coolie was traveling

in the said tractor states in her evidence that because of

tractor got jumped and capsized towards left side due to

which she sustained injuries. She states that the said

tractor was being driven in high speed at the time of

accident and the said accident has taken place due to fault

of the accused. Likewise PW.8 - Rehamanbee corroborates

the evidence of PW.7 in material particulars. Though these

two witnesses have been cross-examined by the defense

at length but nothing worth is elicited in the cross-

examination.

25. PW.9 - Halasab S/o Dastagir Sab being another

laborer who was travelling in the said tractor states that

because of the jerk due to the kachha road the said trailer

turtle down on the left side of the road. He has been

declared as a hostile witness but nothing worth is elicited.

He says that tractor was moving slowly.

26. PW.10 - Smt.Pulabee states that the accident

has taken place due to the fault of the driver of the tractor

as it was driven in high speed. PW.11 - Rasool Sab states

that more than 50 persons in a loaded jelly tractor were

traveling at the time of accident and the tractor was

jumping on the road, suddenly turned turtle towards left

side of the road. Because of fault of accused the said

accident has taken place.

27. Though these two witnesses too have been

cross-examined but nothing worth is elicited.

28. PW.12- Irfan and PW.13- Guddamma have

been turned hostile, but PW.12 states that, the tractor was

moving at speed and over turned. He denied the

suggestion so directed to him. As PW.13 turned hostile, his

evidence would not help the case of the prosecution.

29. PW.14 - Jubed, PW.15 - Hussain Sab, PW.16-

Ramzan Bee, PW.17 - Rehano, PW.18 - Soniya, PW.19 -

Imambee, PW.20 - Murtuza, PW.21 Munni Begum, PW.22-

Dadibee, PW.23- Ganayamma, PW.24 - Hanumawwa,

PW.25 - Aasiyabegum and PW.26 - Mohammed Sab

consistently have spoken before the court on oath that,

because of fault of accused in driving the said tractor the

said accident has taken place. They were all travelling in

the said tractor.

30. PW.27- Sharanappa, though sustained injuries

in the said accident has been turned hostile. Nothing worth

is elicited from his mouth.

31. PW.28 - Hazarat Sab is pancha to scene of

occurrence. So also PW.29 - Hussain Sab. But both these

witnesses have been turned hostile. Contents of Ex.P.7 are

denied by them. They deposed ignorance. But in the cross-

examination they admit that police have conducted the

spot panchanama in their presence and seized the

offending tractor-trailer and took their signatures.

32. In the cross-examination so directed to PW.29

it is elicited by the defence that, the place of accident is a

kachha road and it was full of ditches. So far as the kachha

road is concerned he admits, but denies the suggestion

that the said road was having ditches.

33. PW.30 was the PSI at the relevant time who

registered the crime and conducted part of the

investigation. He seized MOs-1 to 4 under panchanama. He

admits that the said road was the mud kachha road and

from at a distance there was a small bridge. He states that

both tractor engine and trailer were found together at the

place of accident. He denies the suggestion that as the

road was having ditches because of snapping of the lock in

between tractor and trailer the said accident has taken

place. For the first time this suggestion is made by the

defence to this witness. There is no such suggestion to any

of the inmates of the said offending vehicle who were

travelling in the trailer. PW.31 - Sanganna Tumbagi was

the Investigating Officer and he has filed the charge sheet

against the accused. Though these two witnesses have

been directed with sever and searching cross-examination

but they have withstood the cross-examination.

34. As stated supra as per Ex.P.9 the IMV report,

the said accident has taken place not because of any

mechanical defect in the said offending vehicle. The break

system was in order when the said vehicle was examined

the IMV Inspector.

35. Ex.P.11 - the scene of offence of sketch so

drawn by the IO shows no ditches in the said road but it is

mentioned as murum road. The said vehicle having turtle

on the left side of the road. The snapping of the lock in

between tractor and trailer is not noticed in the sketch so

drawn by the Investigating Officer. Contents of the said

sketch are not denied.

36. So far as wound certificates concerned, in all

there are 33 wound certificates and one post mortem

report is marked as per Ex.P.13 to Ex.P.46. Contents of

these document are also not denied by the defence.

37. According to the learned counsel for the

accused/petitioner the evidence so lead by the prosecution

is not properly appreciated and simply the accused has

been convicted. As against this submission the learned

HCGP Sri Sharanabasappa M.Patil, submits that, on

securitizing the evidence placed on record by the

prosecution, rashness and negligence on the part of the

accused is duly proved by the prosecution.

38. Section 304-A of IPC by its own definition

excludes the ingredients of Section 299 or 300 of IPC. An

offence under Section 304-A of IPC is committed either by

committing a rash act or a negligent act. There is marked

distinction between rash act and a negligent act. In the

case of rash act, the criminality lies in running the risk of

doing such an act with recklessness or indifference as to

the consequences. A culpable rashness is acting with the

consciousness that the mischievous and illegal

consequences may fallow but with hope that they will not

and sometimes with the optimism that they will not, and

often with the belief that the author has taken sufficient

precaution to prove their happening.

39. In this case, accused being the driver of the

said tractor though it is not permitted for carrying the

passengers was found carrying more 50 labourers in a

trailer. Though was having conscious that, if anything

happens, it may lead to bad consequences which has

happened in this case. That means, the evidence placed on

record do not prove that the author of the crime i.e.,

accused has not taken any sufficient precaution to prevent

the happening of the in consequences.

40. Criminal negligence is the gross and culpable

neglect or failure to exercise that reasonable and proper

care and precaution to guard against the injury either to

the public generally or to an individual in particular which

having regard to all the circumstances out of which the

charge has arisen, it was the imperative duty of the

accused to have adopted. Negligence implies to do

something which a reasonable man guided upon those

considerations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a

prudent and a reasonable man would not do. Thus,

culpable negligence is acting without the consciousness

that the illegal and mischievous act will follow, but in

circumstances which saw that actor or the author has not

exercised the caution incumbent upon him and if he had he

would have had the consciousness.

41. If this analogy is applied to the facts of this

case, though accused knew that it was a kachha mud road

consisting of ditches etc., he would have been more

conscious about life and limb of the labourers who were

travelling in the trailer. It has come in the evidence of the

witnesses that, because of the fault of the accused being

the author of the crime the said accident has taken place.

In accident cases the inmates of the vehicle are the best

witnesses to speak about the nature of the driving of the

offending vehicle by the driver. No doubt the expression

"high speed' is vague - the term being relative one varying

in concept from man to man. It is true that mere

statements of the witnesses that the offending vehicle was

moving in "high speed" do not indicate rashness on the

part of driver. The way in which the accused carried more

than 50 persons in the trailer though had no capacity or

permit itself amounts to rashness on the part of the

accused with a conscious that if anything happens like

accident, it is the said persons who were travelling in the

said trailer would be put to consequences. Further though

he knew the nature of the road but has not taken any

available precautions.

42. The general presumption of innocence of

accused is also available to an accused charge sheeted for

rashness and negligence in driving a motor vehicle which

resulted in injury or loss of life to the inmates of the

vehicle. On seeing the scene of offence as well as the

nature of the accident, however there is an exception of

application of rule of "res ipsa loquitur". In this case, it is

proved from the facts and circumstances about rashness

and negligence on the part of the accused in causing the

accident. The result was "cause causans". That means in

this case prosecution is able to prove the death of one

person being the proximate and immediate result of the

rashness and negligence without the intervention of

another's negligence.

43. Section 304-A of IPC is co-relative with

Sections 279, 337 and 338 of IPC which applies to the

driving of any vehicle or riding any public way in a manner

so rash and negligent so as to endanger human life, or to

be likely to cause hurt or injury to any person where no

hurt has actually been caused. Section 338 of IPC applies

to a case where grievous hurt has been caused to any

person by an act being done so rashly and negligent as to

endanger human life or the personal safety. Section 304-A

of IPC while being as a general as Section 338 is restricted

to cases where death has been caused.

44. Thus in this case, the learned trial Court has

appreciated the oral and documentary evidence and found

the accsued guilty of the offences charged against him.

The first appellate Court discussed the evidence so placed

on record and re appreciated the evidence. In the course

of judgment the learned Appellate Court has observed as

under :-

"............Here, one thing we have to bear in mind that tractor was attached to the trailer by means of hook. Therefore, driving such vehicle that too in a village road driver should be very careful. But question, is he has carried the tractor in a ditch, that is a reason it jerk and jumped and the hook was detached was the cause for the accident that is suggested also shows his negligence. When it is the defence of the accused that it is a village road consisting of Murram ditches and dispersions he should not have allowed the passengers/labourers to

sit on the trolley on a conker load and to travel in the dangerous condition that also shows the negligence of the accused driver. He would have denied the request made by the contractor to carry them. Why he has allowed 32-35 labourers to travel sitting on the load of conker in a trolley that is violative of provisions of the IMV Act as rightly observed by the trial court.

xxxx

xxxx

....Allowing them to travel sitting in a dangerous condition in a load of conker that too in a village uneven surface road, obviously even if the driver had driven in a moderate speed then also because of carrying heavy load trolley was attached to the main engine portion only by means of hook obviously little negligence was also sufficient to turtle it which has resulted in an accident and faulty driver alone will be held responsible......"

45. The said observation is based upon the

appreciation of evidence by the appellate Court. One

cannot differ with such a finding. Thus, as rightly observed

without taking reasonable care and caution the accused in

a heavy loaded jelly in the trailer carried the passengers to

sit on the same in a dangerous condition and this itself is

sufficient to draw inference against him that it is a mistake

being did by the accused which resulted in the aforesaid

accident. I do not find any factual or legal error in such a

finding recorded by the trial Court and affirmed by the

Appellate Court.

46. So far as sentence is concerned, the learned

trial Court has convicted the accused as stated above. The

Hon'ble Supreme Court of India in a case between, The

State Of Arunachal Pradesh v. Ramchandra Rabidas

@ Ratan and another with other connected cases

reported in (2019) 10 Supreme Court Cases 75 have

held with regard to the maintainability of the prosecution

both under the Motor Vehicles Act and Indian Penal Code.

47. In another judgment of the Hon'ble Supreme

Court of India, reported in (2015) 5 Supreme Court

Cases 182 in between State of Punjab v. Saurabh

Bakshi it is held that with regard to the principles of

sentencing with regard of the offence as under :-

"C. Criminal Trial - Sentence -

Principles for sentencing - Deterrence - Laws can never be enforced unless fear supports them - It can never be forgotten that purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect collective interest and save every individual that forms a constituent of the collective from unwarranted hazards - Certain crimes assume more accent and gravity depending on nature and impact of crime on society - No court should ignore that being swayed by passion of mercy - it is obligation of court to constantly remind itself that rights of victim, and, on certain occasions person aggrieved as well as society at large, never be marginalised - Therefore, requisite norm therefore has to be the established principles laid down in precedents - it is neither to be guided by a

sense of sentimentality nor to be governed by prejudices - penal Code, 1860 - S.304-A - Penology - Deterrence (Para 1)

On behalf of the respondent it was argued that the respondent was quite young at the time the accident took place and it may be an act of negligence, but the contributory facet by the Maruti car driver, the victim herein cannot be ruled out. That apart, there are mitigating circumstances for reduction of the sentence and in the obtaining factual matrix the High Court has appositely adopted the corrective machinery which also reflects the concept of proportionality that the High Court has exercised the discretion which is permissible under Section 304-A IPC, and the Supreme Court should be slow to interfere therewith. It is urged that when the compensation had been paid, the High Court has kept in view the aspect of rehabilitation of the victim and when that purpose have been subserved the reduction of sentence should not be interfered with.

Partly allowing the appeal, the Supreme Court

Held :

The eminent thinker and author, Sophocles, said centuries back : "Laws can never be enforced unless fear supports them." The statement has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every right-thinking citizen to show veneration to law so that an orderly, civilised and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognises. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilsed manner that law cannot bind the individual

actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N.Cardozo "Justice, though due to the accused, is due to the accuser too." And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. (Para 1)

It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of

sentence. The respondent stood convicted by the trial court as well by the appellate court. The findings recorded by the said two courts are neither perverse nor did they call for interference in exercise of the revisional jurisdiction. The High Court as noticed has been persuaded by the factum of payment of compensation by the respondent herein, amounting to Rs.85,000/- to the legal representatives of deceased J and his nephew and the said compensation had been directed to be paid by virtue of the order dated 19.9.2013 passed by the High Court and the compensation awarded by MACT of about Rs.12 lakhs and Rs.7.3 lakhs. (Paras 5 and 10 to 12)

In the instant case the factum of rash and negligent driving has been established. The Supreme Court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems that driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has

come to the entire stage. The protagonists have lost all respect for law. A man with means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, is worse than death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental.

(Para 23)

       Needless     to     say,    the   principle   of

sentencing recognises the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. The High court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence of 24 days. It is absolutely in the

realm of misplaced sympathy. 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. The sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. (Para 24)

India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving the where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, the law-makers should scrutinize, re-look and revisit the sentencing policy in Section 304-A IPC, so with immense anguish. The respondent is directed

to be taken into custody forthwith to suffer the remaining period of sentence. (Paras 25 and

26)"

48. Yet in another judgment of the Hon'ble Apex

Court reported in (2015) 1 Supreme Court Cases 222

in between State of Madhya Pradesh v. Surendra

Singh, it is held as under :-

"Penal Code, 1860 - Ss. 304-A, 279 and 337 - Death caused by rash and negligent driving - Sentencing -

Proportionate punishment - Sentence of two yrs' RI and six months' RI, respectively, restored

-V died in an accident due to rash and negligent driving by respondent - accused - High Court while maintaining conviction, reduced the sentence awarded by trial court, from two years; RI respectively with fine of Rs.2500 to the period already undergone, and granted further compensation of Rs 2000 payable to widow/mother of deceased - An innocent man lost his life due to negligence of respondent - However, without proper

appreciation of evidence and consideration of gravity of offence, High Court has shown undue sympathy by modifying the sentence

- Held, one of the prime objectives of criminal law is imposition of adequate, just, proportionate punishment, commensurate with gravity, nature of crime and the manner in which offence is committed - Punishment should not be so lenient that it shocks the conscience of society - Awarding lesser sentence encourages any criminal and, as a result of the same, society suffers - Under sympathy by means of imposing inadequate sentence would do more harm to justice system to undermine the public confidence in the efficacy of law - Order reducing sentence to period already undergone set aside - Appeal allowed, sentence imposed by trial court restored - Criminal Trial - Sentence - Principles for sentencing - Sympathy/Misplaced sympathy.

49. A three Judge Bench of the Hon'ble Supreme

Court of India in Ahmed Hussein Vali Mohammed

Saiyed and another v. State of Gujarat reported in

(2009) 7 Supreme Court Cases 254, in para 99 and

100 held as under :-

"99. Finally, one more argument was advanced about the award of sentence to Liyakat Hussein alias Master Khudabax Shaikh (A-1). The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to(sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the

crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

50. In the instant case the factum of rash and

negligent driving has been established. There is consistent

increase in the number of accidents and vehicles drivers

have been totally rash and negligent. Therefore, a principle

of sentencing recognizes the corrective measures.

51. The State has not preferred any appeal on the

quantum of sentence. It is the duty of the Court to

consider all attending circumstances. Undue leniency

cannot be shown to such offences which will adversely

affect the public confidence in the efficacy of the legal

system. After considering all the circumstances, I am of

the opinion that the trial Court is justified in convicting the