Karnataka High Court

Sri Anudeep vs The State Of Karnataka on 12 January, 2024

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                                                               NC: 2024:KHC:1971
                                                          CRL.RP No. 902 of 2016




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 12TH DAY OF JANUARY, 2024

                                             BEFORE
                           THE HON'BLE MR JUSTICE VENKATESH NAIK T
                          CRIMINAL REVISION PETITION NO.902 OF 2016
                   BETWEEN:

                       SRI ANUDEEP
                       S/O RAMAMURTHY
                       AGED ABOUT 25 YEARS
                       NO.53, BEHIND TOWN POLICE STATION
                       GANDHIPUR, MADANAPALLI TOWN
                       ANDHRA PRADESH - 517 319.
                                                                    ...PETITIONER
                      (BY SRI SRINIVAS S. R., ADVOCATE)

                   AND:

                       THE STATE OF KARNATAKA
                       BY ITS GOWNAPALLI POLICE
                       SRINIVASAPUR TALUK
                       KOLAR-563 161.
                                                                   ...RESPONDENT
                       (BY SRI VINAY MAHADEVAIAH, H.C.G.P.)

Digitally signed                               ***
by VINUTHA M
Location: HIGH          THIS CRIMINAL REVISION PETITION IS FILED UNDER
COURT OF
KARNATAKA          SECTION 397 READ WITH SECTION 401 OF THE CR.P.C PRAYING TO
                   SET ASIDE THE JUDGMENT DATED 29-4-2015 PASSED BY THE
                   PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR, IN CRL.A.
                   NO.55/2012 AND ALSO THE CONVICTION ORDER DATED 22-10-2012
                   PASSED BY THE CIVIL JUDGE AND J.M.F.C., SRINIVASAPUR, IN C.C.
                   NO.308/2009 AND ACQUIT THE ACCUSED/APPELLANT OF ALL THE
                   CHARGES FRAMED AGAINST HIM BY ALLOWING THIS APPEAL.

                       THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
                   AND RESERVED ON 15-12-2023, THIS DAY, THE COURT
                   PRONOUNCED THE FOLLOWING:
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                                          NC: 2024:KHC:1971
                                    CRL.RP No. 902 of 2016




                        ORDER

Heard Sri Srinivas S.R., learned counsel for the

petitioner-accused, and Sri Vinay Mahadevaiah, learned

High Court Government Pleader for the respondent-State.

2. The petitioner-accused has filed this revision

petition under Section 397 read with Section 401 of the

Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') to

set aside the judgment of conviction and order on

sentence dated 22-10-2012 passed by the Principal Civil

Judge and Judicial Magistrate First Class, Srinivaspur, in

Criminal Case No.308 of 2009 and confirmed by the

Principal District and Sessions Judge, Kolar, in Criminal

Appeal No.55 of 2012 dated 29-4-2015.

3. 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.

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4. The brief facts of the prosecution case are that,

on 5-7-2009 at about 1:45 p.m. near Kondamari Gate, the

accused, being the driver of Tata Sumo, bearing

Registration No.AP-04 B-6161, drove the same in a rash

and negligent manner from Thadigol Cross to Gownipalli

and dashed against a motorcycle, bearing Registration

No.KA-07 J-5904, which was coming from opposite

direction. Thus, he caused grievous injuries to PW2-

Venkatalakshmamma, who was a pillion rider and caused

death of Sri Ravi Kumar, who was a rider of the said

motorcycle. Hence, PW1 lodged a complaint. This led to

registration of F.I.R. and the Investigating Officer

investigated the matter and filed the charge-sheet against

the accused for the offences punishable under Sections

279, 338 and 304A of the Indian Penal Code, 1860 (for

short, 'IPC').

5. After receipt of the charge-sheet, the trial Court

took cognizance of the offences and recorded plea of the

accused. In order to prove its case, the prosecution in all

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examined nine witnesses as PW1 to PW9 and got marked

ten documents as per Exs.P1 to P10. Based on oral and

documentary evidence on record, the trial Court convicted

the accused for the offences punishable under Sections

279, 338 and 304A of the IPC. Aggrieved by the said

judgment, the accused preferred an appeal in Criminal

Appeal No.55 of 2012 before the First Appellate Court and

the First Appellate Court confirmed the judgment passed

by the trial Court. Hence, this revision petition.

6. Learned counsel for the petitioner-accused 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; none of the witnesses has stated

that the accused committed an offence, however, the trial

Court has come to a wrong conclusion and convicted the

accused; the trial Court convicted the accused on surmises

and conjunctures without appreciating the true and

material facts that have been placed before it; some of the

witnesses examined on behalf of the prosecution are not

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eyewitnesses to the alleged incident and they have turned

hostile to the case of the prosecution, however, the Courts

below have failed to take note of this fact. Hence, he

prays for extending the benefit of doubt in favour of the

accused; there is no direct evidence produced by the

prosecution and it has failed to prove that the accused

committed the alleged offence; there are many

contradictions, inconsistencies and variations in the

evidence of one witness to another, there is no

corroboration in the evidence of the prosecution witnesses,

however, the trial Court and the First Appellate Court have

not taken note of these contradictions in the evidence; the

prosecution has failed to produce the report regarding the

vehicle tyre marks on the road, where the accident took

place and the concerned photographs of the accident spot;

the accused is a poor man doing coolie work for his living.

Hence, on all these grounds, he prays to allow the revision

petition.

NC: 2024:KHC:1971

7. 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. He 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. Hence, he prays to

dismiss the revision petition.

8. From perusal of the material on record, the trial

Court mainly relied upon the evidence of PW1-Appireddy,

complainant. He has deposed that on 5-7-2009 at about

2:00 p.m., while he was working in mango garden, he

heard the sound of accident and when he came to the

spot, he saw the motorcycle fallen on the right side of the

road on the fence and the Tata Sumo fallen on the right

side of the road in the agricultural land, the rider of the

motorcycle died on the spot and the pillion rider sustained

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injuries and hence, the injured was shifted to the hospital

for treatment. Further, PW2-Venkatalakshamma, injured

and wife of the deceased, has stated that on the date of

the incident, her husband and herself were proceeding

towards Bengaluru in TVS Victor, when they reached

Kondamari Cross, the driver of the Tata Sumo came from

opposite direction in a rash and negligent manner and

dashed against the motorcycle. Thus, her husband died

on the spot, she was grievously injured and she was taken

to SNR hospital, Kolar, for treatment. She identified the

accused before the trial Court. PWs.3 and 4, witnesses to

panchanama, have stated that the Police recovered the

motorcycle and Tata Sumo from the spot as per Ex.P2.

PWs.5 to 7 are the Investigating Officers. They have

deposed about registration of F.I.R., conducting mahazar,

drawing sketch, recording the statement of witnesses, etc.

9. On perusal of the oral and documentary evidence

on record, it appears that PW1 is the owner of the land,

where the alleged accident occurred. He has stated that

NC: 2024:KHC:1971

the deceased was fallen on the right side of the road on

the fence and the Tata Sumo was fallen on the right side

of the road in the agricultural land. The deceased died on

the spot and his wife sustained grievous injuries which

show that the driver of Tata Sumo came in a rash and

negligent manner from opposite direction and dashed

against the motorcycle. As per Ex.P2-spot mahazar and

Ex.P8-sketch, the driver of Tata Sumo took the vehicle to

the extreme right side of the road, which itself shows that

the driver of Tata Sumo came in a wrong direction, in a

rash and negligent manner and dashed against the

motorcycle. The oral testimony of PWs.1 and 2 corroborate

with the contents of Ex.P2-spot mahazar and Ex.P8-

sketch. From perusal of Ex.P5-IMV report, the accident

was not due to any mechanical defect of the Tata Sumo.

It shows that the accident in question was due to rash and

negligent act of the driver of the Tata Sumo. However, in

the statement of the accused recorded under Section 313

of the Cr.P.C., the accused has not explained as to why he

came in a wrong direction, i.e. extreme right side of the

NC: 2024:KHC:1971

road. Hence, the prosecution proved the ingredients of

Section 279 of the IPC.

10. So far as Section 338 of the IPC is concerned,

PWs.1 and 2 have stated that in the accident, PW2

sustained grievous injuries. On perusal of Ex.P6-Wound

Certificate, the following injuries were found:

"1. Closed displaced fracture mid 3rd left clavicle

2. Closed monteggia fracture right side

3. Pelvis fracture

a. fracture of right iliac wing comminuted

B. fracture B/L superior and inferior pubic rami

c. fracture B/L iliac crest."

As per the opinion of the Doctor, injury Nos.1 to 3

are grievous in nature. Contrary to this evidence, the

accused has not placed any material. Hence, the

prosecution proved the fact that PW2 sustained grievous

injuries in the accident.

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11. So far as the cause of death of the deceased is

concerned, PW1-eyewitness and PW2-injured witness have

categorically stated that in the accident, the deceased died

on the spot. As per Ex.P2-spot mahazar, bloodstains were

found on the spot. As per Ex.P3-inquest mahazar, there

were visible injuries on the person of the deceased and as

per Ex.P4-Post-Mortem Examination Report, the cause of

death was due to shock and haemorrhage as a result of

injury to the vital organs, lungs (right and left), fracture of

bones (right lower end of radius) (right middle 1/3rd of

femur), right patella (fracture of both bones of right leg)

and rupture of small and large intestines. Thus, it clearly

establishes that the deceased died to accidental injuries.

Hence, the prosecution is able to prove the ingredients of

Section 304A of the IPC.

12. On perusal of the material available on record,

the trial Court relying upon the evidence of PW1-

eyewitness, PW2-injured witness and based on the

contents of Ex.P3-inquest mahazar, Ex.P4-Post-Mortem

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NC: 2024:KHC:1971

Examination Report, Ex.P5-IMV report, Ex.P8-sketch and

Ex.P6-Wound Certificate of PW2, convicted the accused for

the offences punishable under Sections 279, 338 and 304A

of the IPC.

13. 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.

14. 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

himself rode the motorcycle in a rash and negligent

manner and dashed against the Tata Sumo. Hence, he is

not responsible for cause of the death of the deceased.

15. The trial Court as well as the First Appellate

Court have rightly held that Ex.P5-IMV report, Ex.P2-spot

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NC: 2024:KHC:1971

mahazar and Ex.P8-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.1 and 2 clearly stated about rashness on

the part of the accused. 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 Tata Sumo, but reasons for such

deviation is 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 the

offences.

16. Now, the only question that arises for

consideration before this Court is whether the sentence

imposed was tenable.

17. 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

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earner in the family and hence, he prays to apply the

provisions of the Probation of Offenders Act, 1958.

18. On perusal of the judgment passed by the trial

Court as well as the First Appellate Court, the maximum

sentence imposed is one year 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:

"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 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the

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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."

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

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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 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,

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motive for the crime, nature of the offence and all other attendant circumstances."

It has been further opined that

"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.

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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 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.

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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 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."

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19. On perusal of the material available on record,

in the instant case, the factum of rash and negligent

driving has been established.

20. 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.

21. 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.

22. Having regard to the fact that the accused was

aged about 19 years at the time of accident and he has

faced the proceedings since 2009 and also the fact that,

he has no criminal antecedents, considering the factual

and legal aspect of the matter, the trial Court as well as

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the First Appellate Court have concurrently held that the

petitioner-accused is guilty of the offences alleged against

him and convicted him for a period of one year for the

offence punishable under Section 304A of the IPC.

Considering the facts, circumstances and the ratio laid

down in the decisions cited supra, it is just and necessary

to modify the sentence of imprisonment from one year to

six months for the offence punishable under Section 304A

of the IPC. To that extent, the appeal stands modified.

Hence, I proceed to pass the following:

ORDER

(i) The revision petition is partly allowed.

(ii) The judgment of conviction dated

22-10-2012 passed by the Principal Civil

Judge and Judicial Magistrate First Class,

Srinivaspur, in Criminal Case No.308 of

2009 and confirmed by the Principal

District and Sessions Judge, Kolar, in

Criminal Appeal No.55 of 2012 dated