Karnataka High Court
Sri Govindaraju vs Union Of India By Inspector on 18 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.RP No. 902 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION NO. 902 OF 2018 (397)
Between:
Sri. Govindaraju
S/o Sunki Venkatappa,
Aged About 48 Years
Driver,
R/At Madakaripura Village
Chitradurga Taluk
Pin Code No.577501.
...Petitioner
(By Sri. A. Vijay Kumar Bhat, Advocate)
And:
Union Of India by Inspector,
Digitally
signed by
R.P.F. South, Western Railway
VEENA
KUMARI B
Chitradurga
Location:
High Court
Rep By State Public Prosecutor
of Karnataka High Court Of Karnataka
Bangalore.560001.
...Respondent
(By Sri.P. Thejesh, High Court Govt. Pleader)
***
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
with the following prayer:
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CRL.RP No. 902 of 2018
"Wherefore, the petitioner in the above case most
humbly prays that this Hon'ble Court be pleased to call for the
records and set aside the judgment and conviction order in
C.C.No.2100/2010 passed by the I Additional Civil Judge and
J.M.F.C. at Chitradurga dated 22-04-2015 and also set aside
the judgment confirmed by the Principal District and Session
Judge at Chitradurga in Crl.Appl.No.20/2015 dated
17.04.2018 for the offences punishable under Sections 159,
160(ii) of Railways Act, and allow the Criminal Revision
Petition by acquitting the petitioner, in the ends 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 accused in
C.C.No.2100/2010, in the Court of the learned I Additional
Civil Judge and Judicial Magistrate First Class, Chitradurga,
(hereinafter for brevity referred to as "the Trial Court"),
who, by the judgment of conviction and order on sentence
dated 22-04-2015 of the Trial Court, was convicted for the
offences punishable under Sections 159 and 160(2) of the
Railways Act, 1989 (hereinafter for brevity referred to as
"the Railways Act").
Aggrieved by the same, the accused preferred an
appeal in Criminal Appeal No.20/2015, in the Court of the
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learned Principal District and Sessions Judge at
Chitradurga, (hereinafter for brevity referred to as the "the
Sessions Judge's Court"), which, after hearing both side,
by confirming the order of conviction, modified the order
on sentence passed by the Trial Court, ordering the
accused to undergo simple imprisonment for a period of
six months for the offence punishable under Section
160(2) of the Railways Act, and to pay a fine of `10,000/-
for the offence punishable under Section 159 of the
Railways Act. In default of payment of fine, the accused
was ordered to undergo simple imprisonment for a further
period of thirty days. It is challenging the judgments
passed by both the Trial Court as well the Sessions Judge's
Court, the accused/revision 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 21-03-2010, at about
4:00 a.m. in between Chitradurga and Amruthapura
Railway Stations, at K.M.No.31/9-32/0, at NTP side Level
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Crossing Gate No.20, when PW-3(CW-3) -Sri. Suresh Naik,
being a Gateman, was waiting for the arrival of a Goods
Train, by closing the said Railway Level Crossing Gate, the
accused, being the driver of a Motor vehicle Lorry bearing
Registration No.KA-16/A-5270, came from Holalkere side
on National Highway-13 (NH-13) bypass road and dashed
to the said NTP side Railway Level Crossing Gate, due to
which, the lifting barrier boom got completely damaged.
The driver of the Lorry, on the pretext that he would park
the Lorry on the side of the road, ran away from the place
along with the vehicle. Alleging the same, PW-3 lodged a
complaint as per Ex.P-12. The same was registered in
Crime No.37/2010. The investigation was held and a case
came to be registered against the accused (the present
petitioner) for the offences punishable under Sections 159
and 160(2) of the Railways Act.
3. Upon service of summons, the accused appeared
in the Trial Court and contested the matter through his
counsel. The accused pleaded not guilty and claimed to be
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tried. As such, in order to prove the alleged guilt against
the accused, the prosecution got examined in all ten (10)
witnesses from PW-1 to PW-10 and got marked
documents from Exs.P-1 to P-23(a). However, neither any
witness was examined nor any documents were got
marked on behalf of the accused.
4. The respondent - Union of India, by Inspector,
Western Railway, Chitradurga, is being represented by the
learned High Court Government Pleader.
5. The Trial Court and the learned Sessions Judge's
Court's records were called for and the same are placed
before this Court.
6. Learned counsel for the accused/revision
petitioner and learned High Court Government Pleader for
the respondent are physically appearing in the Court.
7. Heard the arguments from both side. Perused the
materials placed before this Court including the impugned
judgments passed by both the Courts and also the Trial
Court and learned Sessions Judge's Court's records.
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8. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
Trial Court.
9. After hearing the learned counsels for the parties,
the points that arise for my consideration in this revision
petition are:
[i] Whether the prosecution has proved
beyond reasonable doubt that, on the date
21-03-2010 at 04:00 hours, at NTP side Railway
Level Crossing Gate No.20, K.M.No.31/9-32/0,
when the said Railway Level Crossing Gate was
closed, to enable the Goods Train bearing No.EBCN
from Chitradurga to Amruthapura to pass through,
the accused, despite instruction given by the
Gateman to stop the vehicle and not to proceed, on
the pretext of parking the Lorry bearing Registration
No.KA-16/A-5270, which he was driving by the side
of the road, did not heed to the direction of the
Gateman and drove away from the place along with
the vehicle and thereby has committed an offence
punishable under Section 159 of the Railways Act,
1989?
[ii] Whether the prosecution has proved
beyond reasonable doubt that, on the date, time
and place mentioned above, the accused drove the
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Lorry bearing Registration No. KA-16/A-5270 from
Holalkere side on NH-13 bypass road and dashed to
the NTP side Level Crossing Gate No.20, resulting in
causing damage to the said Gate and also the
Lifting Barrier Boom and thereby has committed an
offence punishable under Section 160 (2) of the
Railways Act, 1989?
[iii] Whether the finding recorded by the Trial
Court as well as the Sessions Judge's Court that,
the accused has committed the alleged offences
punishable under Sections 159 and 160(2) of the
Railways Act, 1989, warrants any interference at
the hands of this Court?
10. In order to prove the alleged guilt against the
accused, the prosecution got examined ten witnesses from
PW-1 to PW-10.
Among them, PW-3 (CW-3) - Suresh Naik, the
Railway Gateman is the material and important witness.
The said witness, in his examination-in-chief, has stated
that, he was on duty as a Railway Gateman at Level
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Crossing (LC) Gate No.20 on the date 20-03-2010 from
7:00 p.m. till 7:00 a.m. on the date 21-03-2010. In the
early morning at about 04:00 hours, upon the instruction
given by the Station Master that the Level Crossing Gate
is to be closed, since a Goods Train is passing through the
said Level Crossing, he, after closing the Level Crossing
Gate and holding a Green lamp with him, was waiting for
the passing of the Goods Train. At that time, a Lorry
coming in a speed came and dashed to the Lifting Barrier
Boom of the Gate. He asked the driver to park the Lorry
on the side and to come. On the pretext that he would
park the Lorry on the side of the road, the driver
(accused) of the Lorry took the Lorry in reverse direction
for some time and drove away from the place along with
the Lorry. The Registration number of the said Lorry was
No.KA-16/A-5270.
The witness (PW-3) has further stated that,
immediately thereafter, he informed the same to the
Station Master and thereafter the Railway Police came to
the spot and enquired, with whom, he lodged a complaint,
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which the witness identified as Ex.P-12 and his signature
therein at Ex.P-12(a). He also stated that the Police drew
a panchanama of the spot as per Ex.P-1, which he has
identified. The witness stated that he could identify the
Lorry which caused the accident, damaging the NTP side
Gate and also the lifting barrier boom. He has identified
the alleged Lorry said to have caused the damage by
dashing to the Gate and the damaged Level Crossing Gate
at Exs.P-4 to P-9. Stating that he would identify the driver
of the offending Lorry, the witness identified him in the
Court. The witness stated that, the Police had recorded
his statement which he has identified at Ex.P-13.
The witness (PW-3) was subjected to a detailed
cross-examination from the accused' side, wherein he
gave some more details about the incident. Though it was
suggested to him that there would be darkness at the time
of the accident, i.e. at 4:00 a.m., the witness stated that,
there were two lights affixed on both the sides of the
railway Gate. He admitted a suggestion that, since the
said Gate was in the National Highway No.13, there will be
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heavy traffic of the vehicles on the road. He admitted that
on the said day, when the Gate was closed, there were
several other Lorries in the spot. He denied a suggestion
that, he could not notice the Registration number of the
Lorry and stated that he had a Torch in his hand. He did
not admit a suggestion that, due to improper handling of
the lever of the Gate, it got damaged. He also denied a
suggestion that the Lorry has not caused any accident and
the cause of accident was not the driver of the Lorry or the
accused.
11. After the evidence of PW-3, the next witness
whom the prosecution has examined, in order to prove the
alleged incident is, PW-6 (CW-7) - Sri. Mohandas, the
Station Manager of Chitradurga Railway Station. The said
witness has stated that, while he was working as a Station
Manager of Chitradurga Railway Station, his duty was from
7:00 p.m. on the date 20-03-2010 till 7:00 a.m. on the
date 21-03-2010. In the morning at about 3:55 a.m. to
4:00 a.m., he instructed CW-3 (PW-3) - Suresh Naik, the
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Gateman, who was on duty at Amruthapura-Chitradurga
LC Gate No.20, to close the said Gate to enable the
passing of a Goods Train No.EBCN. The witness stated
that, at about 4:10 a.m., the said CW-3 telephoned to him
and stated that the Lorry bearing Registration No.KA-
16/A-5270 dashed to the LC Gate No.20 and the said
Gate got damaged.
The witness stated that in that regard, he sent
messages to CW-1, CW-9 and other officers of his
Department. Thereafter CW-1 and CW-9 proceeded to the
spot as stated to them by him over the phone. Stating
that in that regard, he has given a statement before the
Police, the witness has identified the same at Ex.P-21.
In his cross-examination, though some details were
elicited from this witness about the arrival and departure
timings of the Goods Train on the said day, however, the
witness stated that, he could not remember the time at
which the Goods Train had arrived on that day.
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12. The third witness in the series whom the
prosecution examined about the visiting of the spot is,
PW-1 (CW-2) - N. Kotrappa, a Constable at the Railway
Protection Force (R.P.F.). The said witness in his evidence
has stated that, while he was in the Railway Protection
Force, as a Police Constable, based upon the information
received that on the date 21-03-2010, a Lorry bearing
Registration No.KA-16/A-5270 being driven by its driver
on NH-13, has dashed to a closed Gate at Level Crossing
Gate No.20, he, at about 5:00 a.m., accompanied by
CW-1 (PW-5) - Ashok Kumar - the Assistant Sub-
Inspector, visited the spot. They saw that the Railway
Level Crossing Gate and the Lifting Barrier Boom were
damaged. PW-5 received a complaint from CW-3 (PW-3)
in that regard. Accordingly, scene of offence panchanama
was also drawn in the same morning between 5:15 am
and 6:15 a.m., as per Ex.P-1, for which he has subscribed
his signature.
PW-1 (CW-2) has further stated that, on the date
26-07-2010, based upon a credible information that the
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offending Lorry was coming from Davanagere side towards
Chitradurga, he, joined by CW-1 (PW-5) traced the said
Lorry at about 12:00 in the afternoon at Level Crossing
Gate No.21 between Chitradurga and Balenahalli Railway
Stations on NH-4 and drew a seizure panchanama of the
said vehicle. Immediately thereafter, in the presence of
CW-5 and CW-6, they seized the said Lorry. Stating so,
the witness has identified the said Mahazar at Ex.P-2 and
his signature therein at Ex.P-2(a).
The witness also stated that the accused was also
arrested on the spot and his statement was recorded
which he has identified at Ex.P-3. Thereafter the accused
was brought to the Police Station. The witness has
identified the accused in the Court and has identified the
seized Lorry through its photographs from Exs.P-4 to P-6.
He has also identified the photographs from Exs.P-7 to P-9
stating that they are the photographs of the damaged
railway Gate and Lifting Barrier Boom. He also stated that
he has given his statement before CW-1 as per Ex.P-10
and his signature therein at Ex.P-10(a).
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In his cross-examination from the accused' side, he
stated that, no other articles were seized from the spot,
when the scene of offence panchanama as per Ex.P-1 was
drawn. He admitted a suggestion that there will be traffic
of large number of vehicles on National Highway No.4. He
denied that the panchas to Ex.P-2 were not the localites.
He also denied that CW-5 has leased his Lorry to the
Railway Department. He denied the denial suggestions
made to him in his cross-examination.
13. PW-2 (CW-5) - Sri. Syed Jaffer and PW-7(CW-6)
- Babu have spoken that, they were the panchas for the
seizure of the Lorry said to be involved in the present case
under a seizure panchanama, as per Ex.P-2. They have
stated that, it was in their presence, the Lorry which they
have identified in the photographs from Exs.P-4 to P-6 was
seized. After seizing the Lorry, the driver was also taken
by the Police with them to their Station. Stating so, both
the witnesses have identified their signatures under the
panchanama at Ex.P-2, the Lorry in the photographs at
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Exs.P-4 to P-6 and the accused in the Court. They have
further stated that, they have given their statements to
the Police.
PW-2 in his cross-examination admitted a suggestion
as true that, by the time they went to the place, the Police
had already stopped the Lorry and that he does not know
who else have signed to the said panchanama. By making
the said suggestion to the witness, the accused has
admitted about the Police seizing a Lorry and PW-2 being
a pancha to the said seizure panchanama.
The denial suggestions made to PW-2 and PW-7
from the accused' side in their cross-examinations were
not admitted as true by them.
14. PW-8 (CW-7) - Aravind Kumar is the Senior
Section Engineer, who, in his evidence, has stated that, on
the date 21-03-2010, at about 4:20 a.m., CW-7 - the
Station Manager informed him over phone about a Lorry
dashing against the Level Crossing Gate No.20. On
receiving the said information, he, joined by his staff,
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proceeded to the said place at about 4:40 a.m. They
noticed the damage caused to the NTP side lifting barrier
boom Gate. He prepared a sketch in the spot and
submitted the same to the R.P.F., along with his report.
He also identified the report at Ex.P-15 and his signature
therein at Ex.P-15(b). He has also identified the sketch at
Ex.P-16 and his signature therein at Ex.P-16(b).
In his cross-examination from the accused' side, he
clarified stating that the two lines shown on either side of
the Level Crossing Gate in the sketch were the road
humps, however, he could not give the exact distance
between the railway Gate and the humps. He admitted
that because of the humps on either side of the road near
the railway Gate, the vehicles move slowly. He denied a
suggestion that, in case the wire of the railway lifting
Gate is cut while lifting the gate, the boom barrier may get
damaged. He denied the denial suggestions made to him.
15. PW-9 (CW-8) - Suresh, though has stated that
the Lorry bearing Registration No.KA-16/A-5270 belongs
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to him, however, he expressed his ignorance about the
accused being involved in the accident in question. He
stated that he got the said Lorry released from the R.P.F
Station on the date 05-08-2010 as per the order of the
Court in his favour. He also stated that the photographs
of the said Lorry were taken. He has identified the
document at Ex.P-23 and his signature therein at
Ex.P-23(a). Since he did not speak about the role of the
accused in the alleged incident, he was permitted to be
treated as hostile and the prosecution was permitted to
cross-examine him.
In his cross-examination from the prosecution side,
he denied a suggestion that he has stated in his
statement that the accused being the driver of the Lorry
has dashed the said Lorry to the Level Crossing Gate
No.20 and that he has given a statement to that effect as
per Ex.P-23. This witness was not cross-examined from
the accused' side.
16. PW-10 (CW-10) - Mahammad - the Office
Superintendent of the Regional Transport Office at
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Chitradurga has stated that, at the request of the
complainant Police, he has given the 'B' extract of the
Motor vehicle Lorry bearing Registration No.KA-16/A-5270
as per Ex.P-18. He stated that one Sri. H.R. Suresh
(PW-9) is the owner of the said Lorry.
17. In the light of the above evidence, the main
argument of the learned counsel for the revision petitioner
was that, though the incident of Lorry dashing to the
Railway Level Crossing Gate No.20 and causing damage to
it is not denied and not in dispute, however, the petitioner
was not the driver of the said Lorry bearing Registration
No.KA-16/A-5270, at the time of the alleged accident.
Learned counsel further submitted that, PW-3 - the
sole eye witness has not stated that, he has seen the
accused and has identified him. As such, there is no
evidence to prove that, it was the accused and accused
alone who was driving the Lorry at the time of the
accident.
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Learned counsel also submitted that when there were
road humps on both side of the Railway Level Crossing
Gate, it was highly impossible for any vehicle to go in a
high speed and dash to the railway Gate. As such also,
the prosecution case that the accused dashed the Lorry to
the railway Gate is suspicious one and cannot be believed.
Learned counsel further submitted that if at all this
Court comes to a conclusion that the alleged guilt against
the accused stands established, still, the quantum of
sentence ordered against him is on the higher side. As
such, the accused be enlarged by giving him the benefit
under the provisions of the Probation of Offender's Act,
1958, (hereinafter for brevity referred to as "the Probation
of Offenders Act"), and if at all the sentence of
imprisonment ordered by the learned Sessions Judge's
Court is to be modified or reduced by this Court, the same
be equated to the duration of imprisonment already
undergone by the accused.
In his support, he relied upon three judgment/
orders passed by the Hon'ble Apex Court/co-ordinate
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Bench of this Court, which would be referred at the
appropriate stages.
18. Learned High Court Government Pleader for the
respondent in his argument submitted that, the incident
has occurred at about 04:00 hours near a Railway Level
Crossing Gate, as such, no independent witness can be
expected to be present at that time, except the railway
Gateman, who is PW-3(CW-3). The evidence of PW-3 is
clear and cogent. PW-3, apart from stating that he had a
Torch in his hand, has also identified the accused in the
Court as the driver of the offending vehicle Lorry, as such,
it is established that, it was the petitioner and petitioner
alone who was driving the Lorry at the time of the
accident.
Learned High Court Government Pleader further
submitted that, the Trial Court, by itself had awarded very
lesser punishment than what is normally expected to be
ordered in the matter. Further, in the appeal before the
Sessions Judge's Court also, the order on sentence was
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further modified and reduced by the learned Sessions
Judge's Court in Criminal Appeal No.20/2015. As such,
the sentence already ordered being very much on the
lower side, the question of reducing it further or enlarging
the accused under the provisions of the Probation of
Offender's Act, does not arise.
19. PW-3 (CW-3) is the only eye witness to the
alleged incident. Though the incident is said to have taken
place at the Railway Level Crossing Gate No.20, but it was
after midnight at about 04:00 hours. As such, any third
party independent witness cannot be expected to witness
the incident and to give his statement to the complainant
Police. Therefore, the evidence led by the prosecution
cannot be brushed aside only on the point that there was
no independent witness other than PW-3, whose evidence
has come in a normal and trustworthy manner. It is
not denied that he was a Gateman on duty at the place of
incident and also on the date and time of the incident. It
is not denied that the Railway Level Crossing Gate No.20
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was closed at the time of the accident said to have taken
place.
Suggestion made in the cross-examination of PW-3
that, there were already few other Lorries stopped in that
place would go to show that, the Gate was closed and the
other vehicles were waiting for their turn to move further
after the Gate was opened.
The evidence of PW-3 and PW-6 that the Goods Train
No.EBCN was due to pass through the said Level Crossing
Gate No.20 is not denied in their respective cross-
examinations.
PW-3 has clearly and categorically stated that the
Lorry bearing Registration No.KA-16/A-5270 being driven
by its driver from Holalkere side on NH-13 bypass road,
dashed to the closed Gate causing damage to the lifting
boom barrier. The witness has stated that he asked the
driver of the Lorry to park the Lorry on the side of the
road. At his asking, the driver of the Lorry, stating that he
would park the Lorry on the side of the road, however,
taking the Lorry in the reverse direction, drove away the
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Lorry from the place. The said evidence has not been
specifically denied in his cross-examination.
The complaint given by PW-3 as a complainant which
is at Ex.P-12 goes to show that, the complainant has
stated that, the driver of the Lorry told him that he would
park the Lorry on the side, however, he along with the
Lorry, taking the Lorry in the reverse direction, drove
away from the place along with the vehicle. The said
statement made at the earliest point of time in the
complaint at Ex.P-12 by none else than the sole eye
witness (PW-3) shows that, the complainant as PW-3, has
not only seen the driver who was driving the Lorry, but
also spoken to him and the driver also replied to the Gate
man (PW-3) that he would park the Lorry on the side.
Thus, it is not only the Lorry that the witness (PW-3) has
seen but also its driver and had sufficient time and light to
see him and talk to him. It is thereafter the very same
Gateman (PW-3) has identified the accused in the Court as
the driver of the said offending Lorry. In his evidence, he
has also stated that there were two lights affixed on both
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sides of the Gate and at the time of the accident, he had a
Torch in his hand and in the light of the same, he has even
seen the Registration number of the offending Lorry.
Thus, the Lorry, after dashing to the railway Level
Crossing Gate, did not continue in the same direction
immediately, because, though the Gate got damaged, but
it was closed. As such, the Lorry had to be there for some
time till its driver took it in the reverse direction and drove
away from the place. Since it is during the said
interregnum period, the Gateman (PW-3) has not only
seen the Lorry but also its driver and talked to him and
PW-3 was also holding a Torch in his hand, it is clearly
evident that he has seen the driver, as such, he could
identify him. Accordingly, he has identified the accused as
the driver of the offending Lorry in the Court.
Therefore, the argument of the learned counsel for
the petitioner that the petitioner was not the driver of the
Lorry and that PW-3 has not identified the driver of the
Lorry, is not acceptable.
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20. The evidence of PW-3 would clearly go to show
that, the driver of the Lorry without even heeding to his
request to stop, did not stop there but dashed to the Level
Crossing Gate and even after dashing also, the driver did
not stop the Lorry as told by the witness, but on the
pretext of parking the Lorry on the side, drove away the
said Lorry.
21. Though the learned counsel for the petitioner
submitted that, due to the presence of humps on both
sides of the road near the Level Crossing Gate, it was not
possible for any vehicle to come in high speed, but neither
Section 159 nor Section 160(2) of the Railways Act
mandates or requires as an essential ingredient that the
vehicle must be in a high speed to cause the offence
punishable under those two Sections. Suffice, if it is
established that the driver of the offending Lorry did not
obey the direction given by a Railway official (PW-3-
Gateman) who was taking care of the railway Level
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Crossing Gate No.20 and that the act of the accused has
caused damage to the railway property.
22. In the instant case, the evidence of PW-3, which
is trustworthy and believable, would clearly go to show
that, the accused, being the driver of the Lorry bearing
Registration No.KA-16/A-5270 has not only dashed to the
Railway Level Crossing Gate No.20, but even thereafter
did not heed to the instruction of the Gateman (PW-3) to
stop the Lorry, but on the pretext of parking the Lorry on
the side of the road, drove away from the place along with
the vehicle.
23. The said evidence of PW-3 stands corroborated
by the evidence of PW-6 - the Station Manager, who, in
his evidence, has stated that, by 4:10 a.m., i.e.
immediately after the incident, he was informed over
phone by none else than the very same Gateman (PW-3)
about the incident. In turn, the said PW-6 has informed
PW-8 - Senior Section Engineer about the incident, who
along with his team rushed to the spot. Simultaneously,
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the Railway Police i.e. PW-1 and PW-2 also rushed to the
spot. All these team were there in the spot between 4:40
a.m. and 5:00 a.m., which is within an hour of the
occurrence of the accident. Thus, had PW-3 not seen the
accident, the manner of occurrence of the accident and
also the accused, he would not have given the details
about the accident to PW-6 - the Station Master
immediately and the said Station Master would not have
retransmitted the said message or information to PW-8
and the railway Police without wasting any time.
Thus, all these links of the chain of circumstance
would only go to show that, PW-3, who was on duty as a
Gateman at the time of the accident was present at the
place of accident and has seen the occurrence of the
accident and the manner of occurrence of the accident
including the accused being the driver of the offending
Lorry bearing Registration No.KA-16/A-5270.
Thus, even though PW-3 is an official witness and a
lone eye witness to the incident, still, for the analysis
made above, he was the only one expected to be there
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and his presence there also can be believed as a Gateman
near the Railway Level Crossing where the accident took
place. As such, the presence of any independent witness
is not required in the case on hand to believe the evidence
of PW-3, followed by the evidence of PW-6, and PW-8 and
thereafter by the evidence of PW-1 and PW-5.
Thus, the evidence of these witnesses would go to
show only one point, that it was the accused and accused
alone who drove the Lorry bearing Registration No.KA-
16/A-5270 at the railway Level Crossing Gate No.20, on
the date 21-03-2010 at 4:00 a.m. and did not stop his
Lorry though instructed by PW-3, rather after causing
damage to the railway Gate and lifting barrier boom, drove
away from the place along with the Lorry, on the pretext
of parking the Lorry on the side of the road.
24. The involvement of the said Lorry is further
fortified by the evidence of PW-9 - Suresh, who is the
owner of the Lorry. He has not stated that his Lorry was
not involved in the alleged accident. He has only stated
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that he got the said Lorry released by the order of the
Court from the Railway Police.
Further, the evidence of PW-10 shows that the said
Lorry stands in the name of PW-9. Thus, each of the link
of the chain has been fully and clearly established and
proved by the prosecution. Thus, the accused, by not
heeding to the instruction of PW-3 the Gateman to stop
the Lorry, did not stop the Lorry after dashing to the Level
Crossing Gate but later drove away from the place along
with the vehicle. Thus, the accused has committed the
offence punishable under Section 159 of the Railways Act.
25. Simultaneously, by dashing to the Railway Gate,
he has caused damage to the Lifting Barrier Boom of the
Level Crossing Gate. The evidence of PW-8 - the Senior
Section Engineer shows that immediately after hearing
about the incident, he rushed to the place with his team
and reached there at 4:40 a.m. and inspected the spot.
He inspected the Gate and noticed that it was damaged.
He has prepared a sketch as per Ex.P-16. He has also
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given a report assessing the quantum of the damage
caused to the railway property in terms of money, which,
according to him, is a sum of `29,621/-. He has marked
the said report at Ex.P-15. The correctness of the
assessment of the damage has not been specifically
denied in his cross-examination.
Further, the act of the accused in dashing to the
Railway Level Crossing Gate has caused damage to the
lifting barrier set up in that Level Crossing. Thus, it is also
established that the accused has committed the offence
punishable under Section 160(2) of the Railways Act.
26. It is after appreciating the evidence placed
before them in their proper perspective, since both the
Trial Court as well as the Sessions Judge's Court have
rightly held the accused guilty of the offences punishable
under Sections 159 and 160(2) of the Railways Act, I do
not find any reason to interfere in the impugned judgment
of conviction passed by both the Courts.
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27. Learned counsel for the revision petitioner
submitted that, the accused ought to have been given the
benefit under the provisions of the Probation of Offenders
Act.
In his support, he relied upon an order of the co-
ordinate Bench of this Court passed on the date
26-08-2019 in CRIMINAL REVISION PETITION NO. 452
OF 2015 in the case of Rafeek Vs. Railway Protection
Force, Mysuru, wherein, for a similar offence of dashing to
a level crossing Gate by a Tempo Trax Cruiser vehicle and
causing damage to an extent of `31,447/-, this Court in
the revision, though had confirmed the conviction of the
accused, but was pleased to grant the benefit to the
accused, under Section 4 of the Probation of Offenders
Act.
28. Admittedly, no such submission was ever made
from the accused' side, either in the Trial Court or before
the learned Sessions Judge's Court. However, still,
considering the facts and circumstances of the case, the
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act of the accused has caused loss to the national property,
though incidentally no harm or injury is caused to the life of
any individual, however, loss to the national property cannot be
ignored.
When even as suggested to PW-3 in his cross-
examination that, there were other Lorries standing at the
Level Crossing Gate waiting for opening of the Gate, however,
the accused did not stop his Lorry, rather, he dashed to the
Gate. Further, even after dashing to the level crossing gate,
the accused, though was asked to park the lorry by the side,
stating to PW-3 that he would park the Lorry on the side, drove
away from the place along with the vehicle.
Under the said circumstance, I am of the view that the
accused does not deserve to be enlarged by giving the benefit
under the provisions of the Probation of Offenders Act.
29. Learned counsel for the revision petitioner also
submitted that for the nature of guilt proved against the
accused, the quantum of sentence ordered is on the higher
side.
30. For the offence punishable under Section 159
of the Railways Act, the punishment prescribed is
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imprisonment for a term which may extend to one month,
or with fine which may extend upto `500/- or with both.
For the offence punishable under Section 160(2) of
same Act, the punishment prescribed is imprisonment for
a term which may extend to five years.
The Trial Court in the impugned judgment has
ordered the accused to pay a fine of a sum of Rs.500/- for
the offence punishable under Section 159 of the Railways
Act and to undergo simple imprisonment for a period of
one year for the offence punishable under Section 160(2)
of the Railways Act.
31. Learned counsel for the revision petitioner
(accused), in his support, relied upon a judgment of the
Hon'ble Apex Court in the case of Nagaraj Vs. Union of
India reported in 2019(2) KCCR 1593 (SC) wherein a
similar offence involving the breaking of a Level Crossing
Gate by the accused while driving the Bus and dashing the
same against the Railway Crossing Gate and wherein also
the Trial Court, the learned Sessions Judge's Court as well
the High Court had upheld the order of conviction, the
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Hon'ble Apex Court, considering the circumstances of the
case that the offence in question was not against the
society nor involving a moral turpitude nor causing injury
or hurt to any human being and also that the incident had
taken place thirteen (13) years back, though the order of
conviction was upheld, but the sentence was reduced to
the period already undergone by the accused.
32. Learned counsel also relied upon a decision of
the Co-ordinate bench of this Court in the case of
Kallayani Vs. The State of Karnataka in Criminal Revision
Petition No.200029/ 2014, wherein the Court, in its order
dated 04-03-2015 though had confirmed the conviction of
the accused for the offence punishable under Section
160(2) of the Railways Act, but was pleased to modify the
sentence of imprisonment and confining it to the period for
which the accused had already undergone in Judicial
Custody, during the course of investigation. However, it
awarded the compensation of a sum of `15,000/- in favour
of the Railway Department, payable by the accused and in
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case of default, to undergo simple imprisonment for a
period of three months.
33. In the instant case, on an appeal by the
accused, the sentence of one year imprisonment ordered
by the Trial Court for the proven guilt under Section
160(2) of the Railways Act, and a fine of `500/- imposed
for the proven guilt under Section 159 of the same Act
was modified by the Sessions Judge's Court in Criminal
Appeal No.20/2015 by reducing the sentence of
imprisonment from one year to six months simple
imprisonment for the offence punishable under Section
160(2) of the Railways Act and ordered for fine of a sum of
`10,000/- for the offence punishable under Section 159 of
the Railways Act and in default of payment of fine, to
undergo simple imprisonment for a further period of thirty
days.
34. It can be seen that, under Section 159 of the
Railways Act, the maximum fine amount that can be
imposed is, a sum of `500/-, whereas the Sessions Judge's
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Court has ordered the fine of a sum of `10,000/- for the
offence punishable under Section 159 of the Railways Act
and in default of payment of the said fine amount, to
undergo simple imprisonment for a period of thirty days.
35. No doubt, in Kallayani's case (supra), a Co-
ordinate Bench of this Court has modified the sentence
confining it to only the period of Judicial Custody already
undergone by the accused, however, it ordered
compensation of a sum of `15,000/- payable by the
accused to the Railway Department.
The sentence permissible for the proven guilt under
Section 160(2) of the Railways Act is, with imprisonment
for a term which may extend to five years. There is no
provision to order for fine or fine alone for the proven guilt
under Section 160(2) of the Railways Act. When the
quantum of sentence can go upto five years, reducing the
sentence to only few days of Judicial Custody which the
accused is said to have already undergone would be in the
facts and circumstances of the case, a mockery of justice.
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When the legislature has prescribed certain quantum of
punishment, we cannot relax it beyond a reasonable limit.
Thus, when the sentence of imprisonment can run upto a
period of five years, confining it to the length of the period
which the accused has undergone in Judicial Custody, in
the instant case, and also about which length, the learned
counsel for the petitioner is also not quite sure, is not fair
and proper, in the facts and circumstances of the case.
36. Our Hon'ble Apex Court, in its prerogative and
extraordinary power and taking into consideration the
stock of the facts and circumstances of the said case and
confining it to the said case since has modified the
sentence in Nagaraj's case (supra), this Court, having no
proper reason to modify the said sentence or reduce the
same in the instant case cannot confine the length of
imprisonment for the period which is undergone by the
accused in the Judicial Custody. It is not a strange fact
that, criminal matters can take years or decades to
complete and reach its finality for various reasons.
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37. In the instant case, the incident has taken place
more than thirteen years and eight months. However, it
cannot be forgotten of the fact that, this is the third Court
the accused is approaching for the relief. Under the said
circumstance, taking time for the disposal of the matter
cannot be the sole criteria to reduce the sentence. As
such, I do not find any reason to modify and reduce the
sentence of imprisonment which was already reduced by
the learned Sessions Judge's Court by confining it to six
months from the original order of one year passed by the
Trial Court, and further reduce it to the period of
imprisonment already undergone by the accused in
Judicial Custody.
However, the quantum of fine which was imposed at
a sum of `10,000/- for the offence punishable under
Section 159 of the Railways Act being exorbitant and not
permissible under the said provision, the same requires
modification.
Accordingly, I proceed to pass the following:
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ORDER
[i] The Criminal Revision Petition stands
allowed in-part;
[ii] The impugned judgment of
confirmation of conviction dated 17-04-2018,
passed by the learned Principal District and
Sessions Judge, at Chitradurga in Criminal
Appeal No.20/2015, convicting the present
petitioner (accused) for the offences punishable
under Sections 159 and 160(2) of the Railways
Act, 1989, stands confirmed.
[iii] The modified sentence of
imprisonment dated 17-04-2018, passed by
the learned Principal District and Sessions
Judge at Chitradurga, in Criminal Appeal
No.20/2015, reducing the sentence of
imprisonment from one year to six months
simple imprisonment for the offence punishable
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under Section 160(2) of the Railways Act,
1989, stands confirmed;
However, imposing of fine of a sum of
`10,000/- for the offence punishable under
Section 159 of the Railways Act, 1989 stands
modified and reduced to a sum of `500/-. In
default of payment of the said fine amount of
`500/-, the accused shall undergo simple
imprisonment for a further period of seven (7)
days;
[iv] Rest of the terms of the impugned
judgment dated 17-04-2018, passed by the
learned Principal District and Sessions Judge at
Chitradurga, in Criminal Appeal No.20/2015
stands confirmed;
[v] The revision petitioner (accused) -
Sri. Govindaraju, S/o. Sunku Venkatappa, Aged
about 48 years, Driver, R/at Madakaripura
village, Chitradurga Taluk, Pin Code 577 501,
to surrender before the Trial Court, within
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thirty (30) days from today and to serve the
sentence, ordered above.
Registry to transmit a copy of this order to both the
Trial Court and also to the learned Sessions Judge's Court
along with their respective records immediately, for doing
needful in the matter.
Sd/-
JUDGE
BMV*
