D Siddaramappa vs State By Hosadurga Police
2023 Latest Caselaw 7357 Kant

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                                                      NC: 2023:KHC:38535
                                                  CRL.RP No. 468 of 2017




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 30TH DAY OF OCTOBER, 2023

                                     BEFORE

                   THE HON'BLE MR JUSTICE VENKATESH NAIK T

                  CRIMINAL REVISION PETITION NO. 468 OF 2017

             BETWEEN:
             1.    D SIDDARAMAPPA
                   S/O DEVARASIDDAPPA,
                   44 YEARS, DRIVER,
                   MADURE VILLAGE,
                   HOSADURGA TALUK,
                   CHITRADURGA DISTRICT-577501.
                                                           ...PETITIONER
             (BY SRI.K.P.BHUVAN, ADVOCATE)

             AND:

             1.    STATE BY HOSADURGA POLICE
                   REP. BY STATE PUBLIC PROSECUTOR
Digitally          HIGH COURT OF KARNATAKA BUILDING,
signed by          BANGALORE-560001.
VINUTHA M
                                                      ...RESPONDENT
Location:
HIGH      (BY SRI.VINAY MAHADEVAIAH, HCGP)
COURT OF
KARNATAKA       THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
          TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
          17.03.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
          SESSIONS JUDGE, CHITRADURGA IN CRL.A.NO.2/2016 AND
          CONSEQUENTLY THE JUDGMENT OF CONVICTION DATED
          9.12.2015 PASSED BY THE PRINCIPAL CIVIL JUDGE AND
          J.M.F.C., HOSADURGA IN C.C.NO.481/2012 FOR THE
          OFFENCES P/U/S 279,338,304A OF IPC BY ALLOWING THIS
          CRL.R.P.
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                                             NC: 2023:KHC:38535
                                     CRL.RP No. 468 of 2017




     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

Heard learned counsel for the petitioner and learned

HCGP for the respondent/State.

2. The petitioner has filed this petition under

Section 397 r/w 401 of Cr.P.C. praying to set aside the

judgment of conviction and sentence dated 09.12.2015

passed by the Principal Civil Judge and JMFC, Hosadurga,

in C.C.No.481/2012 and judgment dated 17.03.2017

passed by the I Addl. District and Sessions Judge,

Chitradurga in Crl.A.No.2/2016 for the offences punishable

under Section 279, 338 and 304 of IPC and prays to acquit

the petitioner for the aforesaid offences.

3. The case of the prosecution is as under:

On 14.07.2012 at about 1.30 p.m. on Hosadurga-

Holalkere Road near Madhure Dibba, one Sri.D.K.Shivanna

was riding his motorcycle bearing registration No.KA-04-

HE-3395 and PW2 was pillion rider. Deceased Ajjaiah was

NC: 2023:KHC:38535 CRL.RP No. 468 of 2017

riding the motorcycle bearing registration No.KA-02-HK-

618 from Kondpura towards Hosadurga. Accused being

the driver of car bearing registration No.KA-13-A-4532,

came from Hosadurga towards Kondapura in a rash and

negligent manner, he overtook the tractor and proceeded

towards the wrong portion of the road and dashed the

motorcycle bearing No.KA-02-HK-618. Hence, Ajjaiah

sustained injuries and he succumbed to the injuries in

Davanagere Government Hospital. Hence, case has been

registered and the Investigating Officer investigated the

matter and filed the charge sheet for the offences

punishable under Sections 279, 338 and 304A of IPC.

4. Learned JMFC took cognizance, recorded plea

and ultimately convicted the petitioner for the offences

under Sections 279, 338 and 304A of IPC. Aggrieved by

the judgment of conviction and sentence passed by the

trial court, the accused filed Crl.A.No.2/2016 and the first

appellate court confirmed the judgment passed by the trial

court. Aggrieved by the concurrent findings passed by the

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trial court as well as first appellate court, the accused

preferred this revision petition contending that the trial

court as well as first appellate court have not considered

the evidence of prosecution in right prospectus and there

are omissions, contradictions in the prosecution case.

5. Learned counsel submits that none of the

prosecution witnesses have identified the accused,

however, both the Courts have convicted the accused. It

is contended that deceased Ajjaiah was alcoholic at the

time of incident and he himself caused the accident, but

the Investigating Officer in order to help the family

members of deceased, falsely implicated the present

accused. Hence, there is error on the face of records and

prays for allowing the petition.

6. Learned HCGP, Sri.Vinay Mahadevaiah

appearing on behalf of respondent/State submits that

since the trial court as well as appellate court have given

concurrent findings, interference of this Court is not

necessary to set aside the judgment of conviction and

NC: 2023:KHC:38535 CRL.RP No. 468 of 2017

order of sentence passed against the accused. Hence, he

justified the judgment of trial court as well as first

appellate court and prays for dismissal of the revision

petition.

7. On perusal of the material available on record,

the trial court relying on the evidence of PW1 to PW7 and

Exs.P-1 to P-13 convicted the petitioner. Further, PW1 -

D.K.Shivanna has categorically stated that on the date of

accident, at about 2.30 p.m. when he was riding the

motorcycle by keeping PW2 as pillion, the accused being

the driver of the Indica Car, came behind the motorcycle

in a rash and negligent manner and dashed the motorcycle

of the deceased Ajjaiah. Hence, he sustained the injuries

on his face, chest, leg and 2 severe fractures on right leg

and the accused also suffered simple injuries. As per the

evidence of PW2 - Manjappa, he reiterated the evidence of

PW1 and corroborated the oral testimony of PW1.

8. Further, the trial court relied upon the evidence

of PW4 - Thippesh, who is also a pillion of motorcycle of

NC: 2023:KHC:38535 CRL.RP No. 468 of 2017

Ajjaiah. He also corroborated the oral testimony of PW1.

Therefore, PW1, PW2 and PW4 have categorically stated

that due to rash and negligent driving of the driver of the

car, the accident in question has occurred.

9. On perusal of oral testimony of PW1 and PW4, it

corroborates the medical evidence at Ex.P-10 - post

mortem examination. Therefore, on perusal of evidence of

PW1 and PW4 and police witness, they have clearly stated

about the rash and negligent driving of the accused, which

resulted in death of deceased Ajjaiah.

10. As rightly pointed out by the learned HCGP, this

petition is being filed against the concurrent findings of the

trial court as well as first appellate court, as such the

scope of interference on the factual aspect is very limited.

The evidence on record shows that petitioner was not

disputing the occurrence of the accident. He also not

disputed the death of Ajjaiah and his identity before the

trial court. It was his defence that nobody has identified

him before the trial court and owner of the car has not

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been examined. Therefore, he is not responsible for the

accident.

11. The trial court as well as first appellate court

have rightly held that Ex.P-8 - IMV report and Ex.P-5 -

rough sketch do not support the defence therein. Further,

at the time of accident, accused deviated his car towards

right side of the road and reasons for the deviation also

not stated in his 313 statement. The cumulative reading

of entire evidence on record reveals that the accident was

the outcome of rash and negligent driving on the part of

petitioner. Therefore, PW1 and PW4 clearly stated about

the rashness. The trial court as well as first appellate

court rightly appreciated that if the vehicle of the

petitioner had not overtaken the tractor, the accident

would not have occurred.

12. Now, the only question that arose for

consideration is whether the imposition of sentence is

tenable.

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13. The learned counsel for petitioner submits that

the petitioner has no criminal antecedents nor had any

intention to cause the accident and he is the sole bread

earner in the family and therefore, a lenient view may be

taken.

14. The maximum sentence imposed for the offence

under Section 304A IPC is 6 months. While dealing with

the question; Whether it is a desirable to impose the

minimal or negligible sentence?, in the case of offence

under Section 304A IPC, the Hon'ble Supreme Court in the

case of GURU BASAVARAJ @ BENNE SETTAPPA vs

STATE OF KARNATAKA reported in 2012(8) SCC 734

at Paras-19, 24, 26 and 29, it is held as under:

"19. 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

NC: 2023:KHC:38535 CRL.RP No. 468 of 2017

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."

Thereafter, the Court proceeded to highlight what is expected of a professional driver:

"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

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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 of motor accidents due to callous driving of automobiles."

XXX XXX

24. 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. 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: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice

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NC: 2023:KHC:38535 CRL.RP No. 468 of 2017

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 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

26. 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 the IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is

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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 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

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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

29. 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 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:-

"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

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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."

15. On perusal of the material available on record,

in the instant case, the factum of rash or negligent driving

has been established. Further in view of ratio laid in the

case of BENNE SETTAPPA's (supra) case the minimum

imprisonment of 6 months atleast is required to be

imposed for the offence under Section 304A of IPC.

16. Having regard to the fact that the accused was

aged about 33 years at the time of accident and he has

faced the proceedings since 2012 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

first appellate court have conclusively held that the

petitioner/accused is guilty of the offences alleged against

him and accordingly, convicted him with the minimum

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imprisonment for a period of 6 months and therefore,

there is no merits in this petition. Hence, I proceed to

pass the following:

ORDER

(i) Criminal revision petition is dismissed.

(ii) The impugned judgment dated 09.12.2015 passed by the learned Principal Civil Judge and JMFC, Hosadurga in C.C.No.481/2012 and confirmed by the judgment dated 17.03.2017 by the learned I Addl. District and Sessions Judge, Chitradurga, in Crl.A.No.2/2016, are hereby confirmed.

(iii) Registry is directed to send back the trial court records forthwith along with the copy of this order.

Sd/-

JUDGE

DR