Karnataka High Court
Shrinivas vs The State Of Karnataka on 29 February, 2024
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CRL.RP No. 100141 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100141 OF 2016 (397)
BETWEEN:
SHRINIVAS S/O KASHINATH BENDRE,
AGE: 38 YEARS, OCC: DRIVER,
R/O: HIRELINGADAHALLI,
NOW RESIDING AT HAVERI,
TQ & DIST: HAVERI.
- PETITIONER
(BY SRI SHIVASAI M. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
CPI HAVERI RURAL POLICE STATION,
HAVERI.
- RESPONDENT
(BY SRI. PRAVEENA Y. DEVAREDDIYAVARA, HCGP)
THIS CRIMINAL REIVISION PETITION IS FILED U/S 397 AND
Digitally signed by
SAROJA HANGARAKI
401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND THE
Location: HIGH COURT
SAROJA OF
HANGARAKI KARNATAKA,DHARWAD
BENCH
Date: 2024.03.05
16:41:48 +0530
SENTENCE ORDER DATED 30.04.2016 PASSED BY THE I ADDL. DIST.
AND SESSIONS JUDGE, HAVERI IN CRIMINAL APPEAL NO.66/2011
AND CONFIRMING THE JUDGMENT AND ORDER FOR THE OFFENCE
UNDER SECTION 337 AND 304A OF IPC DATED 5.11.2011 PASSED
BY THE CIVIL JUDGE AND JMFC, HAVERI IN C.C. NO. 145/2009 &
ETC.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100141 of 2016
ORDER
Petitioner/ accused feeling aggrieved by the judgment of
first appellate court on the file of I Addl. Dist. & Sessions Judge,
Haveri, in Criminal Appeal No. 66/2011 dated 30.04.2016 in
confirming the judgment of the trial court on the file of Addl.
Civil Judge & JMFC, Haveri, in C.C. No. 145/2009, preferred this
revision petition.
2. Parties to the revision petition are referred with their rank
as assigned in the trial court, for the sake of convenience.
3. Heard arguments of both sides.
4. After hearing arguments of both sides and on perusal of
trial court records so also the impugned judgment of the first
appellate court under revision, the following points arise for
consideration.
i) Whether the impugned judgment of the first
appellate Court in confirming the judgment of trial
court for the offences punishable U/s 279, 337 and
304(A) of IPC, is perverse, capracious and legally
not sustainable?
ii) Whether interference of this Court is required?
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5. The factual matrix leading to the case of prosecution can
be stated in nutshell are to the effect that on 30.03.2008 at
2.15 p.m. while complainant Shashikantha Appasaheb Manasa
was proceeding near Guttal bus stand circle saw one
motorcycle bearing No. KA-27-K-7150 was proceeding from
Ranebennur towards Negalur. At that time one Katma (tempo)
bearing No. KA-27-A-1235 came from Havanur side towards
Haveri in rash and negligent manner and dashed against the
motorcycle bearing No. KA-27-K-7150 and fell on it. Due to
which rider of the motorcycle Fakkiragoud Sannasomanagoud
Bhagavanthagoudra succumbed to the injuries on the spot and
his son, the pillion rider Muralidhargouda sustained injuries.
The prosecution alleges that on account of actionable
negligence on the part of accused in driving Katma (tempo)
bearing No. KA-27-A-1235 the accident in question has
occurred leading to the death of the rider of the motorcycle and
causing injuries to the pillion rider and also injuries to CW5-
Suresh Shekhappa Kallimani (PW3).
6. The prosecution to prove the allegations made against
accused relied on the oral testimonies of PWs.1 to 10 and
Exs.P.1 to P.15. On closure of prosecution side, the statement
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of accused U/s 313 of Cr.P.C. came to be recorded. It is the
defence of the accused that accident in question had occurred
due to the rash and negligent driving of the rider of the
motorcycle. In support of such contention, got himself
examined as DW1 and one witness as DW2. The trial court
after hearing arguments of both sides and on appreciation of
oral and documentary evidence placed on record, convicted the
accused for the offences alleged against him and imposed
sentence as per order of sentence.
7. Accused challenged the said judgment of conviction and
order of sentence before the first appellate court in Criminal
Appeal No. 66/2011. The first appellate court on re-
appreciation of the evidence placed on record, by judgment
dated 30.04.2016 has dismissed the appeal and confirmed the
judgment of the trial court in convicting the accused for the
aforementioned offences and also imposition of sentence.
8. Accused has challenged the concurrent findings of both
the Courts below contending that both the Courts below have
not properly appreciated the evidence on record and
conveniently ignored the defence evidence of DW1 and DW2,
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the place of accident, spot panchanama-Ex.P.2, so also the
evidence placed on record has not been properly appreciated
by both the Courts below and as a result recorded improper
finding against the evidence on record which cannot be legally
sustained.
9. Per contra, learned HCGP has argued that accused was
the driver of the Katma (tempo) bearing No. KA-27-A-1235 and
the factum of accident, so also the place of accident is not
disputed by the accused. The said fact is further strengthened
by the evidence of DWs.1 and 2. There is no material evidence
that has been brought on record in the cross examination of
PW4 to discredit his evidence regarding the manner in which
the accident has taken place. The courts below have rightly
appreciated the oral and documentary evidence placed on
record and justified in holding that the accident in question had
occurred due to culpable rashness in driving the Katma (tempo)
bearing No. KA-27-A-1235 leading to the accident in question
and as a result, rider of the motorcycle Fakkiragoud
Sannasomanagoud Bhagavanthagoudra succumbed to the
injuries on the spot and his son-PW4 sustained injuries. The
said finding recorded by the Courts below is based on the
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material on record and the same does not call for any
interference by this Court.
10. The accused was the driver of Katma (tempo) bearing
No.KA-27-A-1235. The fact that rider of the motorcycle
bearing No. KA-27-K-7150 succumbed to the injuries sustained
in the accident on the spot itself, so also the pillion rider
Muralidhar (PW4) who is the son of the rider and the inmate
(PW3) of the vehicle driven by the accused also sustained
injuries, are not disputed. The accused has disputed that
accident in question had occurred due to culpable rashness or
negligence on his part and claimed that place of accident is
wrongly shown by the investigating officer in the panchanama.
11. The evidence of PW1-Shashikanth would go to show that
on 30.03.2008 at about 1.00 to 1.15 p.m. while he was
proceeding for lunch to his home from the shop near Guttal
circle, he saw the accident in question. The accused came
driving Katma (tempo) bearing No. KA-27-A-1235 from
Havanur side towards Haveri and the motorcycle bearing
No.KA-27-K-7150 was coming from Ranebennur towards
Negalur side with the pillion rider. The vehicle driven by the
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accused came with high speed in rash and negligent manner
and dashed against the motorcycle due to which Katma
(tempo) bearing No. KA-27-A-1235 fell on the motorcycle
which resulted in the rider of the motorcycle succumbing to the
injuries on the spot itself. The pillion rider who was son of the
rider of motorcycle and another person (PW3), the inmate of
vehicle driven by the accused, also sustained injuries. He has
also identified the accused before the Court as the person
driving Katma (tempo) bearing No. KA-27-A-1235 at the time
of accident.
12. PW3-Suresh Shekappa Kallimani was also the inmate of
Katma (tempo) bearing No. KA-27-A-1235 driven by the
accused. He has deposed to the effect that they were
proceeding on the left side of the road while proceeding
towards Haveri. At that time, rider of the motorcycle dashed to
the left side portion door of the vehicle and fell to the ground
due to which the vehicle driven by the accused fell on the rider
of motorcycle who sustained grievous injuries over the head
and died on the spot.
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13. PW4-Muralidhar Fakkiragoud Bhagavanthagoud is the son
of rider of motorcycle who was moving with his father on the
motorcycle aged about 11 years. He deposed to the effect that
on 30.03.2008 his father was riding the motorcycle and he was
the pillion rider and they were proceeding to the left side of the
road with empty bags. At that time, Katma (tempo) bearing
No. KA-27-A-1235 driven by the accused came from Havanur
side while proceeding towards Haveri and dashed against the
motorcycle due to which his father sustained injuries over the
head and succumbed to the said injury on the spot itself. He
further deposed that he has sustained injuries in the accident
and was shifted to the hospital.
14. The trial court has recorded finding that the evidence of
PW1 in view of the contradictions and omissions in the cross
examination held that the witness in his cross examination has
given a go-bye to the case of the prosecution. The evidence of
PW4-Muralidhar, son of the deceased rider of the motorcycle,
was found to be trustworthy with reference to the other
material placed on record and proceeded to record finding in
holding that the accident in question had occurred due to the
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culpable rashness or negligence in driving the Katma (tempo)
bearing reg. no. KA-27-A-1235, by the accused.
15. The evidence of PW2-Channaveergoud Channappagoud
Goudappannavar would go to show that the investigating officer
has prepared spot panchanama in his presence Ex.P.2 and he
identified his signature as Ex.P.2(b). The place of accident was
shown by the complainant-Shashikanth. The evidence of PW7-
V.B.Mattikoppa would go to show that after registering the case
he has visited the place of accident and drawn panchanama-
Ex.P.2 and also hand sketch map at Ex.P.3. The evidence of
PW2-Channaveergoud and that of the investigating officer,
PW7-V.B. Mattikoppa, it would go to show that spot
panchanama was drawn on 30.03.2008 from 5.15 p.m. to 6.15
p.m. on the day of the accident. The hand sketch map of the
place of accident is prepared as per Ex.P.3.
16. On going through the recitals of the spot panchanama-
Ex.P.2 and sketch map-Ex.P.3, it would go to show that the
road at the place of accident runs from East to West, i.e., from
Havanur to Haveri road. There is also a circle at the place of
accident. The accused was driving Katma (tempo) bearing
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No.KA-27-A-1235 from Havanur to Haveri at Guttal Circle
where four roads join. The rider of the motorcycle was
proceeding from Ranebennur towards Negalur which runs from
South to North. The rider of the motorcycle bearing No. KA-27-
K-7150 had almost crossed the circle leading towards Negalur
road. Accused who was driving Katma (tempo) bearing No.
KA-27-A-1235 while proceeding from Havanur to Haveri on the
road leading to East-West, was supposed to keep left side of
the road on the Southern side. The evidence of PW4-
Muralidhar and the recitals of the spot panchanama-Ex.P.2 so
also the hand sketch-Ex.P.3 would go to show that driver of
Katma (tempo) bearing No. KA-27-A-1235 travelled to the
extreme right side and dashed against the motorcycle bearing
No. KA-27-K-7150 which had almost crossed the circle and in
the process of entering Negalur road towards Northern side.
17. The aforementioned evidence on record would go to show
that the accused being the driver of the Katma (tempo) bearing
No. KA-27-A-1235 has exceeded his way of limit towards left
side and came to the extreme right side of the road and dashed
to the motorcycle, due to which the accident had occurred.
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18. It is the defence of the accused that rider of the
motorcycle dashed to the left side door of Katma (tempo)
bearing No. KA-27-A-1235, due to which, the vehicle was
toppled and fell on the rider of motorcycle. The accident had
occurred solely on the rash and negligent riding of the
motorcycle bearing No. KA-27-K-7150 by it's rider. In support
of such defence, he got himself examined as DW1 and
examined one witness on his behalf as DW2. If the evidence of
these witnesses, DW1 and DW2 is read together then it would
go to show that spot of the accident is to the left side of the
road. It means that accused wants to claim that while he was
proceeding from Havanur to Haveri from East to West, he was
moving with the vehicle by keeping left side of the road. If that
is the case, then the place of accident should have been
towards the Southern side. Whereas recitals of the spot
panchanama at Ex.P.2 and hand sketch map at Ex.P.3 would go
to show that accident in question had occurred to the extreme
right side of the Katma (tempo) bearing No. KA-27-A-1235
driven by the accused. The accused claims that this place of
accident is wrongly shown. However, he admits in the cross-
examination looking to the photograph at Ex.P.12 that the
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same was taken from the front side of the vehicle at the place
of accident. It means that the photo was taken from Haveri
side which is to the Western side. The said evidence clearly
goes to show that while proceeding from Haveri towards
Havanur, the tempo was on the left side of the road. This
necessarily means that while coming from Havanur to Haveri,
the vehicle was on the right side and not on the left side of the
road. Therefore, the defence of the accused that rider of the
motorcycle came and dashed to the left side of the Katma
(tempo) bearing No. KA-27-A-1235, is unsustainable in view of
the aforementioned evidence on record.
19. The evidence of accused-DW2 also substantiate the spot
features of the accident during the course of his evidence. The
said evidence rules out the possibility of rider of the motorcycle
dashing against the left side of the tempo driven by the
accused due to which the tempo had fallen on the rider of the
motorcycle which resulted in sustaining injuries and succumbed
to the said injuries at the spot itself.
20. If the oral testimony of PW4-Muralidhar, evidence of
panch witness-PW1-Channaveeranagoud, PW2- Shashikanth
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and that of the investigating officer PW7-V.B. Mattikoppa, are
perused and appreciated with the recitals of spot panchanama-
Ex.P.2 and the hand sketch map-Ex.P.3, then it would go to
show that accused while proceeding from Havanur to Haveri,
i.e., road leading from Eastern to Western side, came to the
extreme right side of the road and dashed against the rider of
the motorcycle who had almost traveled Guttal Circle and about
to enter Negalur road to the Northern side due to which the
accident in question had occurred leading to the death of rider
of the motorcycle.
21. The claim of accused that rider of the motorcycle dashed
against the left side of the road while he was proceeding from
Havanur to Haveri by keeping left side, is totally ruled out in
view of the aforementioned evidence on record. The accused
who was expected to drive the vehicle by keeping left side of
the road, i.e., towards Southern side while proceeding from
Havanur to Haveri road, has exceeded his way of limit to the
extreme right side and dashed against the motorcycle. The
accused has failed to exercise due diligence while driving the
vehicle and allowed his vehicle to travel to the extreme right
side of the road and dashed against the motorcycle. The
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accused has offered no any explanation as to the reason or
compelling circumstances to take his vehicle to the extreme
right side towards Northern side which was beyond his control
to dash against the rider of the motorcycle.
22. The photographs of the vehicle driven by the accused
would go to show that it was loaded with submersible pipes and
other materials and it is a three wheeler vehicle. The road at
the place of accident in view of the recitals of the panchanama-
Ex.P.2 and hand sketch map-Ex.P.3, is a straight road runs
from East to West. The evidence of inmate of the tempo (PW3-
Suresh) driven by the accused, though turned hostile has
spoken about the factum of accident and the vehicle driven by
the accused fell on the rider of the motorcycle. The hand
sketch map-Ex.P.3 would go to show that the rider of the
motorcycle while proceeding from Ranebennur towards Negalur
in Guttal circle had almost covered the circle and about to enter
Negalur road which is the right side for the accused which was
proceeding from Havanur to Haveri and dashed against the
motorcycle leading to the death of the rider of the motorcycle.
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23. The courts below have rightly appreciated the evidence
and have arrived at just and proper conclusion in holding that
the accident in question had occurred due to culpable rashness
or negligence in driving the tempo by the accused and on
account of impact of such negligence, the Katma (tempo)
bearing No. KA-27-A-1235 fell on the rider of the motorcycle
due to which the rider of the motorcycle died on the spot. The
said evidence would only suggest that accused was out of
control of the vehicle driven by him and did not exercise due
care and caution while driving the tempo at the place of
accident. The findings of Courts below in holding accused guilty
for the offences alleged against him are based on material
evidence on record and the same does not call for any
interference by this court.
24. The question now remains regarding imposition of
sentence. The trial court has sentenced the accused to
undergo simple imprisonment for a period of six months and a
fine of Rs.1,000/- for the offence punishable U/s 304(A) of IPC.
The accused is also further sentenced to pay a fine of Rs.500/-
and in default to undergo simple imprisonment for seven days
for the offence punishable U/s 337 of IPC.
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25. Learned counsel for the accused has argued that if the
Court comes to the conclusion that the accident in question had
occurred due to the negligent driving of the Katma (tempo)
bearing No. KA-27-A-1235 by the accused, then prayed for
taking a lenient view while imposing sentence. In support of
his contention reliance is placed on the judgment rendered by
the Co-ordinate Bench of this Court in Crl. R.P. No.
100099/2015 dated 31.10.2023 (Raju s/o Siddappa
Soraganvi Vs. The State of Karnataka). In the said case,
this Court looking to the facts and circumstances set out in the
said case and the accident having taken place about 19 years
back, modified sentence for the offence U/s 304(A) of IPC and
sentenced to pay a fine of Rs.50,000/-. In default of payment
of fine, the accused was sentenced to undergo simple
imprisonment for six months.
26. Learned counsel would also submit that in the present
case, the accident in question took place on 30.03.2008, nearly
about 16 years back and the accused is required to look after
his family who are dependent on his income.
27. On the other hand, learned HCGP relied on the latest
judgment of the Hon'ble Apex Court in Razia Khan Vs. The
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State of M.P. (Criminal Appeal No. 2259/2023 dated
03.08.2023) wherein it has been observed and held at
paragraph No. 8 has observed as under:
"Considering the seriousness of the offence
punishable under Section 333 of the IPC and since the
punishment prescribed is both of imprisonment of either
description and a fine, obviously, the appellant cannot be
let off only on a fine. However, considering the
circumstances set out in paragraph 5 above, we are of
the view that the appellant deserves to be shown leniency
when it comes to the substantive sentence. The distinct
factors set out in paragraph no. 5, taken individually, do
not constitute a ground by itself to show leniency. For
example, only because an accused is on bail for a long
time, it is no ground by itself to show leniency. It is only
one of the several factors to be considered. But we have
considered these factors cumulatively. Hence, we
propose to bring down the sentence of the appellant for
the offence punishable under Section 333 to simple
imprisonment for one month. We propose to impose a
fine of Rs.30,000/- for the said offence."
(emphasis supplied)
In view of the principles enunciated in the latest judgment of
the Hon'ble Apex Court, it is evident that accused is on bail for
a long time itself cannot be a ground to impose only fine
amount instead of imprisonment. The courts below considering
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imposition of sentence must take into consideration the facts
and circumstances of the case and nature of evidence on
record.
28. Learned HCGP also placed reliance on another judgment
of Hon'ble Apex Court in Thangasamy Vs. State of Tamil
Nadu (2019) 16 SCC 235 wherein it has been observed and
held at paragraph no. 16 as under:
"16. On the question of sentencing, this Court re-
emphasised as follows: (Alister Anthony Case reported in
SCC 674) - reiterated paragraph Nos.84 and 85.
84. Sentencing is an important task in the
matters of Crime. 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.
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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, proportion between crime and
punishment bears most relevant influence in
determination of sentencing the crime-doer. The court
has to take into consideration all aspects including social
interest and consciousness of the society for award of
appropriate sentence."
(emphasis supplied)
29. The Hon'ble Apex Court having so observed on the
extraction of Alister Anthony case recorded it's finding at
paragraph No. 17 with reference to it's earlier judgment in
Dalbir Singh V. State of Haryana (2000) 5 SCC 82 wherein
it has been observed and held as under:
"1. When automobiles have become death traps any
leniency shown to drivers who are found guilty of rash
driving would be at the risk of further escalation of road
accidents. All those who are manning the steering of
automobiles, particularly professional drivers, must be
kept under constant reminders of their duty to adopt
utmost care and also of the consequences befalling them
in cases of dereliction. One of the most effective ways of
keeping such drivers under mental vigil is to maintain a
deterrent element in sentencing sphere. Any latitude
shown to them in that sphere would tempt them to make
driving frivolous and frolic.
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13. 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 304-
A 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. 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 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.''
(emphasis supplied)
In view of the principles enunciated in both the aforementioned
judgments of the Hon'ble Apex Court, it is evident that while
considering the quantum of sentence to be imposed for the
offence of causing death by rash and negligent driving of
automobiles, one of the prime consideration should be
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deterrence. Therefore, the contention of the learned counsel
for the accused for imposing only the fine amount instead of
sentencing the accused to imprisonment, in the facts and
circumstances of the case cannot be legally sustained.
30. The trial court has rightly exercised its judicial discretion
in imposing sentence of imprisonment for six months for the
offence punishable U/s 304(A) of IPC. The first appellate court
on reappreciation of evidence on quantum of sentence also
confirmed the sentence imposed by the trial court. The
imposition of sentence is proportionate to the proved guilt of
the accused and the same does not warrant for any
interference by this court and consequently proceed to pass the
following order.
ORDER
Revision petition filed by the revision petitioner/ accused
is hereby dismissed as devoid of merits.
Registry is directed to transmit the records with copy of
this judgment for necessary compliance.
Sd/-
JUDGE
