Karnataka High Court
M Gajendra vs State By Sho on 19 December, 2023
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CRL.RP No. 130 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.130 OF 2017
BETWEEN:
M. GAJENDRA
S/O MAHESH
AGE: 26 YEARS
OCC: BUS DRIVER
R/O NO.1192, S.S. LAYOUT
DAVANAGERE - 577 006.
...PETITIONER
(BY SRI S. G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE BY STATION HOUSE OFFICER
MALEBENNUR POLICE STATION
DAVANGERE DISTRICT
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
Digitally
signed by (BY SMT. N. ANITHA GIRISH, H.C.G.P.)
VINUTHA M ***
Location:
HIGH
COURT OF THIS CRIMINAL REVISION PETITION IS FILED UNDER
KARNATAKA SECTION 397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 9-4-2015 PASSED BY THE PRINCIPAL CIVIL
JUDGE AND J.M.F.C., HARIHAR, IN C.C. NO.436 OF 2012 AND
CONFIRMED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DAVANAGERE, IN CRL.A. NO.60 OF 2015 DATED
27-12-2016.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 10-11-2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CRL.RP No. 130 of 2017
ORDER
The petitioner has filed this revision petition under
Section 397 read with Section 401 of the Code of Criminal
Procedure, 1973 (for short, 'Cr.P.C.') praying to set aside
the judgment of conviction and order on sentence dated
9-4-2015 passed by the Principal Civil Judge and Judicial
Magistrate First Class, Harihar, in Criminal Case No.436 of
2012 and confirmed by the II Additional District and
Sessions Judge, Davanagere, in Criminal Appeal No.60 of
2015 dated 27-12-2016.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioner is the accused and the respondent is the
complainant-State.
3. Heard Sri S.G. Rajendra Reddy, learned counsel
for the petitioner/accused, and Smt. N. Anitha Girish,
learned High Court Government Pleader for the
respondent-State.
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4. The brief facts of the prosecution case are that,
on 9-12-2011 at about 5.00 p.m., the accused, being
driver of SHMS Bus bearing Registration No.KA-17/B 149,
drove the same in a rash and negligent manner from
Davanagere towards Honnali near Adapur cross on curvy
road, and as a result, he lost his control over the bus and
turtle the same to the left side, at that time, the cleaner of
the bus, by name Anjini @ Anjaneya, who was standing on
the footboard of the bus, fell down, caught under the bus
and died at the spot. Further, some of the passengers of
the said bus also sustained injuries. Hence, the
complainant lodged a complaint.
5. On the basis of the complaint, Malebennur Police
registered a case, investigated the matter and filed the
charge-sheet against the accused for the offences
punishable under Sections 279, 337, 338 and 304A of the
Indian Penal Code, 1860 (for short, 'IPC').
6. After receipt of the charge-sheet, the trial Court
took cognizance of the offences and recorded plea of the
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accused. In order to prove its case, the prosecution in all
examined thirteen witnesses as PW.1 to PW.13 and got
marked twenty-three documents as per Exs.P1 to P23.
Based on oral and documentary evidence on record, the
trial Court convicted the accused for the offences
punishable under Sections 279, 337, 338 and 304A of the
IPC. Aggrieved by the said judgment, the accused
preferred an appeal in Criminal Appeal No.60 of 2015
before the First Appellate Court and the First Appellate
Court confirmed the judgment passed by the trial Court.
Hence, this revision petition.
7. Learned counsel for the petitioner has contended
that the impugned judgment passed by the trial Court as
well as the First Appellate Court are contrary to law, facts
and evidence; there is delay in lodging the complaint and
delay has not been explained by the complainant; injured
witnesses, i.e. PWs.1, 2, 4, 8 and 12 and mahazar
witnesses, i.e. PWs.6, 7 and 8 have not supported the
case of the prosecution. The trial Court as well as the First
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Appellate Court ought to have properly appreciated the
evidence in a prospective manner and there are material
contradictions in the testimonies of the prosecution
witnesses; none of the witnesses have stated that the
driver of the bus drove the vehicle in a rash and negligent
manner, in fact, there was curve at the scene of
occurrence and the bus was moving very slowly.
Therefore, question of driving in a rash and negligent
manner would not arise; the Doctor who conducted post-
mortem examination on the dead body of the deceased
was not examined before the trial Court and the post-
mortem examination report-Ex.P.6 was marked with
consent. However, the contents of Ex.P.6 have not been
proved and mere marking of the post-mortem examination
report with consent would not dispense with the proof of
document. In fact, author of the document ought to have
been examined. He further contended that the provisions
of Section 304A of the IPC are not attracted and hence, he
prays either to impose fine or to apply provisions of the
Probation of Offenders Act, 1958.
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8. Learned High Court Government Pleader for the
respondent - State has contended that since the trial Court
as well as the First Appellate Court have given concurrent
findings, interference by this Court to set aside the
judgment of conviction and order on sentence passed
against the accused would not arise. She contended that
the accident and the death of the deceased in the accident
are not disputed, the manner of accident and identity of
the accused are also not disputed. She further contended
that in respect of the offences under Sections 279 and
304A of IPC, the provisions of the Probation of Offenders
Act, 1958, are not applicable. Hence, she prays to dismiss
the revision petition.
9. On perusal of the material available on record,
the trial Court relying upon the evidence of injured
eyewitnesses, i.e. PWs.2, 3, 5 and 13 and based on the
contents of inquest mahazar-Ex.P.5 as well as the post-
mortem examination report-Ex.P.6, convicted the accused.
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10. As rightly pointed out by the learned High Court
Government Pleader that this being a revision petition
against the concurrent findings of the trial Court and the
First Appellate Court, the scope of interference on the
factual aspects is very limited.
11. The evidence on record shows that the accused
did not dispute the occurrence of accident, he did not
dispute the death of the deceased and his identity before
the trial Court. It was his defence that the deceased was
standing on the footboard of the bus and when the bus
turtle to the left side, he fell down and the back wheel of
the bus ran over him. Hence, he is not responsible for
cause of the death of the deceased.
12. The trial Court as well as the First Appellate
Court have rightly held that, Ex.P1-IMV report and Ex.P21-
rough sketch do not support the defence theory. The
cumulative effect of entire evidence on record leads to the
conclusion that the accident was the outcome of the rash
and negligent driving on the part of the accused. PWs.2,
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3, 4 and 13 clearly stated about rashness. Both the Courts
below held that if the accused drove his vehicle cautiously,
there could not have been any accident. Further, at the
time of accident, the accused deviated his bus, which
leads to turtle, but reasons for such deviation and turtle
also not explained by the accused in his statement under
Section 313 of the Cr.P.C. Therefore, both the Courts
below held that the accused was guilty of offences.
13. Now, the only question that arises for
consideration before this Court is whether the sentence
imposed was tenable.
14. Learned counsel for the petitioner submits that
the accused has no criminal antecedents or had any
intention to cause the accident. He is the sole bread
earner in the family and hence, prays to apply the
provisions of the Probation of Offenders Act, 1958.
15. On perusal of the judgment passed by the trial
Court as well as the First Appellate Court, the maximum
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sentence imposed is six months for the offence punishable
under Sections 304A of the IPC. While dealing with the
question whether it is desirable to impose minimal or
negligible sentence in a case of offence punishable under
Section 304A of the IPC, the Hon'ble Supreme Court in the
case of GURU BASAVARAJ @ BENNE SETTAPPA v.
STATE OF KARNATAKA reported in 2012 (8) SCC 734
at paragraph Nos.22, 23, 28, 30 and 33, held as under:
"22. In Dalbir Singh v. State of Haryana, this Court
expressed thus:
"Bearing in mind the galloping trend in road
accidents in India and the devastating
consequences visiting the victims and their
families, criminal courts cannot treat the nature
of the offence under Section 304A IPC as
attracting the benevolent provisions of
Section 4 of the PO Act. While considering the
quantum of sentence, to be imposed for the
offence of causing death by rash or negligent
driving of automobiles, one of the prime
considerations should be deterrence."
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23. Thereafter, the Court proceeded to
highlight what is expected of a professional
driver:
"13. ... A professional driver pedals the
accelerator of the automobile almost
throughout his working hours. He must
constantly inform himself that he cannot
afford to have a single moment of laxity
or inattentiveness when his leg is on the
pedal of a vehicle in locomotion. He
cannot and should not take a chance
thinking that a rash driving need not
necessarily cause any accident; or even if
any accident occurs it need not
necessarily result in the death of any
human being; or even if such death
ensues he might not be convicted of the
offence; and lastly, that even if he is
convicted he would be dealt with leniently
by the court. He must always keep in his
mind the fear psyche that if he is
convicted of the offence for causing death
of a human being due to his callous
driving of vehicle he cannot escape from
jail sentence. This is the role which the
courts can play, particularly at the level
of trial courts, for lessening the high rate
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of motor accidents due to callous driving
of automobiles."
xxx xxx xxx
28. In Alister Anthony Pareira v. State of
Maharashtra, it has been laid down that sentencing
is an important task in relation to criminal justice
dispensation system.
"84. ... One of the prime objectives of the
criminal law is imposition of appropriate,
adequate, just and proportionate sentence
commensurate with the nature and gravity
of crime and the manner in which the
crime is done. There is no straitjacket
formula for sentencing an accused on proof
of crime. The courts have evolved certain
principles: The twin objective of the
sentencing policy is deterrence and
correction. What sentence would meet the
ends of justice depends on the facts and
circumstances of each case and the court
must keep in mind the gravity of the crime,
motive for the crime, nature of the offence
and all other attendant circumstances."
It has been further opined that
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"85. The principle of proportionality in
sentencing a crime-doer is well entrenched
in criminal jurisprudence. As a matter of
law, the proportion between crime and
punishment bears the most relevant
influence in the determination of
sentencing the crime-doer. The court has
to take into consideration all aspects
including the social interest and
[conscience] of the society for award of
appropriate sentence."
xxx xxx xxx
30. From the aforesaid authorities, it is luminous
that this Court has expressed its concern on
imposition of adequate sentence in respect of
commission of offences regard being had to the
nature of the offence and demand of the conscience
of the society. That apart, the concern has been to
impose adequate sentence for the offence
punishable under Section 304-A of IPC. It is worthy
to note that in certain circumstances, the mitigating
factors have been taken into consideration but the
said aspect is dependent on the facts of each case.
As the trend of authorities would show, the
proficiency in professional driving is emphasized
upon and deviation therefrom that results in rash
and negligent driving and causes accident has been
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condemned. In a motor accident, when a number of
people sustain injuries and a death occurs, it creates
a stir in the society; sense of fear prevails all
around. The negligence of one shatters the
tranquility of the collective. When such an accident
occurs, it has the effect potentiality of making
victims in many a layer and creating a concavity in
the social fabric. The agony and anguish of the
affected persons, both direct and vicarious, can
have nightmarish effect. It has its impact on the
society and the impact is felt more when accidents
take place quite often because of rash driving by
drunken, negligent or, for that matter, adventurous
drivers who have, in a way, no concern for others.
Be it noted, grant of compensation under the
provisions of the Motor Vehicles Act, 1988 is in a
different sphere altogether. Grant of compensation
under Section 357(3) with a direction that the same
should be paid to the person who has suffered any
loss or injury by reason of the act for which the
accused has been sentenced has a different contour
and the same is not to be regarded as a substitute
in all circumstances for adequate sentence.
xxx xxx xxx
33. There can hardly be any cavil that there has to
be a proportion between the crime and the
punishment. It is the duty of the court to see that
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appropriate sentence is imposed regard being had to
the commission of the crime and its impact on the
social order. The cry of the collective for justice
which includes adequate punishment cannot be
lightly ignored. In Siriya alias Shri Lal v. State of
M.P., it has been held as follows:-
"13.`7. ... Protection of society and stamping
out criminal proclivity must be the object of
law which must be achieved by imposing
appropriate sentence. Therefore, law as a
corner-stone of the edifice of "order" should
meet the challenges confronting the society.
Friedman in his "Law in Changing Society"
stated that, "State of criminal law continues
to be - as it should be - a decisive reflection
of social consciousness of society".
Therefore, in operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual matrix. By deft modulation
sentencing process be stern where it should
be, and tempered with mercy where it
warrants to be."
16. On perusal of the material available on record,
in the instant case, the factum of rash and negligent
driving has been established.
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17. The Hon'ble Supreme Court in the case of
STATE OF PUNJAB v. SAURABH BAKSHI reported in
2015 (5) SCC 182 has imposed maximum imprisonment
of six months for the offence punishable under Section
304A of the IPC.
18. In view of the ratio laid down in the cases of
GURU BASAVARAJ @ BENNE SETTAPPA and SAURABH
BAKSHI, referred to supra, at least, the minimum
imprisonment of six months is required to be imposed for
the offence punishable under Section 304A of the IPC.
19. Having regard to the fact that the accused was
aged about 26 years at the time of accident and he has
faced the proceedings since 2011 and also the fact that,
he has no criminal antecedents, considering the factual
and legal facts placed on record, the trial Court as well as
the First Appellate Court have concurrently held that the
petitioner/accused is guilty of the offences alleged against
him and convicted him with maximum imprisonment for a
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period of six months. There is no merit in this revision
petition. Hence, I proceed to pass the following:
ORDER
(i) The revision petition is dismissed.
(ii) The judgment of conviction and order on
sentence dated 9-4-2015 passed by the
Principal Civil Judge and Judicial
Magistrate First Class, Harihar, in Criminal
Case No.436 of 2012 and the II Additional
District and Sessions Judge, Davanagere,
in Criminal Appeal No.60 of 2015 dated
27-12-2016, are hereby confirmed.
Registry is directed to send back the trial Court
record along with a copy of this order, forthwith.
Sd/-
JUDGE
KVK
