Karnataka High Court

M S Aslam vs State By on 4 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                     NC: 2024:KHC:19167
                                                 CRL.RP No. 811 of 2015




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 04TH DAY OF JUNE, 2024

                                     BEFORE

                     THE HON'BLE MR JUSTICE V SRISHANANDA

                 CRIMINAL REVISION PETITION NO. 811 OF 2015
              BETWEEN:

              M S ASLAM
              S/O M S AAMEER JAN,
              AGED ABOUT 40 YEARS
              ALKAPURA
              THONDEBHAVI HOBLI
              GOWRIBIDNUR TALUK
              CHIKKABALLAPURA DISTRICT
              PIN CODE-561208
                                                       ...PETITIONER
              (BY SRI CHANDRASHEKAR REDDY K P, ADVOCATE)

              AND:

              STATE BY
              MADHUGIRI POLICE
              REPRESENTED BY SPP
Digitally
signed by R   HIGH COURT BUILDING,
MANJUNATHA    BANGALORE-560 001.
Location:                                                ...RESPONDENT
HIGH COURT
OF            (BY SRI VINAY MAHADEVAIAH, HCGP)
KARNATAKA
                   THIS CRL.RP IS FILED UNDER SECTION 397 AND 401
              CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.12.2013
              PASSED BY THE ADDL. C.J. AND J.M.F.C., MADHUGIRI IN
              C.C.NO.448/2003 AND SET ASIDE THE ORDER DATED 5.6.2015
              PASSED BY THE IV ADDL. DIST. AND S.J., MADHUGIRI IN
              CRL.A.NO.5001/2014 AND TO ACQUIT THE PETR./ACCUSED
              FOR THE ALLEGED OFFENCES P/U/S 279,304(B) OF IPC AND
              134(a) OF THE IMV ACT.
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                                           NC: 2024:KHC:19167
                                      CRL.RP No. 811 of 2015




     THIS CRL.RP COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

Heard Sri Chandrashekar Reddy K.P. learned counsel for

the petitioner and Sri Vinay Mahadevaiah, learned High Court

Government Pleader.

2. The Revision Petition is filed by the accused who is

convicted for the offence punishable under Sections 279 and

304A of the Indian Penal Code in C.C.No.448/2003 dated

31.12.2013 on the file of the Addl. Civil Judge and JMFC,

Madhugiri, which has been confirmed in Crl.A.No.5001/2014

dated 05.06.2015 by the IV Add. District and Sessions Judge,

Madhugiri.

3. Facts in brief which are utmost necessary of disposal of

the petition are as under:

In respect of the road traffic accident that occurred on

03.04.2003, a complaint came to be lodged in Madhugiri Police

Station wherein it is revealed that on 03.04.2013 at about

12.25 pm, the revision petitioner/accused was driver of Balaji

bus bearing registration No.KA-06/A-7693 drove the same in a

rash and negligent manner on Gouribidanur- Madhugiri road.

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While so driving the bus near Madaganahatti gate, the bus

dashed against one Thimmakka and her grand-daughter by

name Amrutha. Due to the impact of the accident,, both

Thimmakka and Amrutha died on the spot.

4. Accused left the bus on the spot and ran away without

even informing the incident to the police. He did not take any

steps in shifting the dead body. People who had gathered there

intimated the incident to the police and one Rangaiah lodged

the complaint in respect of the accident to the police and

thereafter, police registered the case and thoroughly

investigated the matter and filed the charge sheet against the

accused.

5. Presence of the accused was secured and charges were

framed. Accused pleaded not guilty and therefore, trial was

held.

6. In all, prosecution examined 18 witnesses to establish its

case as P.Ws.1 to 18 and placed on record 12 documentary

evidence in support of its case, exhibited and marked as

Exs.P.1 to 12.

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7. The oral evidence of the prosecution comprised of the

complainant's evidence by name Rangaiah, mahazar witnesses

and the post mortem report and the doctors who issued the

post mortem report. Documentary evidence on record

comprised of the complaint, inquest mahazars, IMV report,

indemnity bond and post mortem report.

8. As against the evidence placed on record, on behalf of the

accused, three witnesses were examined as D.Ws.1 to 3.

Among them, D.W.1 is accused himself. One Sri Althaf was

examined as D.W.2 and another Fayaz was examined as

D.W.3.

9. On conclusion of recording of evidence, accused's

statement as contemplated under Section 313 of the Code of

Criminal Procedure was recorded by the learned Trial Judge,

wherein, accused denied all the incriminating circumstances.

10. Thereafter, the learned Trial Judge heard the matter and

by appreciating the material evidence placed on record,

convicted the accused for the offence punishable under

Sections 279, 304A of IPC r/w 134A of IMV Act and sentenced

the accused to undergo imprisonment for a period of six

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months for the offence punishable under Section 304A of the

IPC, apart from imposing fine for the offence punishable under

Sections 279 and 304 A of IPC.

11. Being aggrieved by the said judgment, accused filed an

appeal before the District Court in Criminal Appeal No.5001/

2014.

12. The learned District Judge secured the records and after

hearing the parties in detail, on re-appreciating the material

evidence on record, dismissed the appeal of the accused and

confirmed the Order of conviction and sentence passed by the

learned Trial Magistrate.

13. Thereafter, petitioner is before this Court, in this Revision

petition on the following grounds:

 The order of conviction and the sentence passed by the Hon'ble Magistrate and Session Judge is contrary to the law and the probabilities of the case.

 The Hon'ble Magistrate and the Session Judge has committed an error in believing the case of the Complainant and did not go deeply to find out the real truth.

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 The Hon'ble Magistrate and the Session Judge has not at all properly appreciated the evidence on record and grossly erred in relying upon the evidence of the prosecution side.

 The courts below erred in not coming to the conclusion that the Eye witness examined by the prosecution are all planted / set up witnesses as there is not cogent and corroborative evidence with respect to the accident. Identification of the spot at which the accident occurred and where the bus stopped after the accident.

 The real fact is that when the bus moved from the bus stop and was moving forward, on the road, the deceased came suddenly on the left side of the bus assuming that the drive could see her and stop the bus, but unfortunately, the accident has occurred to the negligence of the deceased and not by the rash and negligence driving of the accused / petitioner. On this ground alone the courts below could have acquitted the accused, rather than convicting the accused.

 The court below has not all considered the vital Cross- Examination of the prosecution witness. Had it carefully considered, the case was that of acquitting the accused.

 The Court below has completely failed and erred in not looking upon the argument of he accused / defense side and coming to the wrong conclusion that the accused has committed the offence.

 The court below further erred in not whispering any thing about the spot Mahazar, Sketch. If the Court below has

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considered the same, the case was that of acquitting the accused.

 The Judgement is based on one side evidence. Hence the Judgement of conviction is liable to be set aside by this Hon'ble court.

 The Session Court after the securing the J.M.F.C. records has not at all modified the orders and just simply confirmed the orders of the Civil Judge and J.M.F.C. Thus the interference of the Hon'ble court is very much necessary.

 The Accused/Petitioner is innocent of the offence. If this Hon'ble court do not allow the Revision Petition, the Petitioner/accused shall be put to great hardship apart from irreparable loss and mental agony. On the other hand if the Application is allowed, no prejudice shall be caused to the Complaint / Respondent side.

 Viewed from any angle, the Judgement of Conviction and sentence passed by the Hon'ble Additional Civil Judge and J.M.F.C. Madhugiri and the Hon'ble IV Additional District and Session Judge, Mudhugiri, confirming the same is Highly illegal, Opposite to the principle of Natural Justice and against to law laid downed and thus the said Order of Conviction is liable to be set aside.

 The Judgements of both the Courts below is based on only presumptions, surmises and conjectures which are not relevant to the circumstances of the case.

 The Petitioner submits that the Order of Conviction is Untenable, which is liable to be interfered by this Hon'ble court.

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 Both the Courts below has committed an error apparent on the face of alleged Sections. The Order is wholly unreasonable, perverse and not based on law laid down under with respect to the alleged Section and thus suffers from serious illegality, including Ignorance of Provision of Law.

 The Petitioner submits that the judgement and the sentence have resulted in miscarriage of justice.

 The Petitioner is the only bread earner to this family having a wife, two children's, Sick mother who is suffering from old age deceases and if he sentenced to Judicial Custody for Six month, the entire family shall be in a desert state and the family may be ruined because of finance status.

 The Petitioner submit that against the said Orders passed by the Hon'ble Court of the Additional Civil Judge & J.M.F.C. Madhugiri, in C.C. No. 448/2003, vide orders dated 31-12- 2013, and by the orders passed by the Hon'ble Court of IV Additional District and Session Judge, at Madhugiri, in Criminal Appeal No.5001 of 2014, Vide order dated 05-06- 2015, the Petitioner has not filed any Appeal nor Revision either before the Session Judge nor before this Hon'ble High Court and no Other such petition / Revision / Application is pending nor filed on the same cause of action by the petitioner, well within the knowledge of the Petitioner."

14. Sri Chandrashekar Reddy K.P., learned counsel for the

petitioner reiterating the grounds urged in the revision petition

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contended that the material evidence on record would be

sufficient enough to maintain the conviction; but this Court may

consider the question of reduction of sentence as accused is

suffering from serious medical ailments including enlargement

of prostate gland and he has got five children to look after

apart from looking after his nephews.

15. Per contra, learned High Court Government Pleader

supports the impugned judgment and submits that, since the

imprisonment ordered by the learned Trial Judge for the

offence punishable under Sections 304A of IPC is only six

months, no reduction is permissible in the facts and

circumstances of the case, especially, when two lives have been

lost in the road traffic accident that occurred due to negligent

driving of the revision petitioner and therefore, revision petition

is to be dismissed.

16. Having heard the parties in detail and perused the

material on record and also appreciating the rival contentions of

the parties in the light of the judgment of the Hon'ble Apex

Court in the case of Amit Kapoor vs. Ramesh Chander

reported in (2012)9 SCC 460.

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17. No doubt, in the revisional jurisdiction, this Court can

exercise the power, in a given case for modification of the

sentence, if the facts and circumstances of such case do

warrant for reduction of sentence.

18. In the light of the principles of law enunciated therein,

this Court bestowed its attention to the relevant facts of the

case.

19. In the case on hand, accused being the driver of Balaji

bus bearing registration No.KA-06/A-7693 is not in dispute.

Because of rash and negligent driving of the bus by the

accused, pedestrians by name Thimmakka and her grand-

daughter Amrutha lost their lives on the spot. Accused without

even informing the incident to the police, without taking any

steps to remove the dead bodies from the spot, left the bus on

the spot and ran away.

20. The material evidence on record would go to show that

the complainant by name Rangaiah informed the police about

the accident and also lodged the complaint. Eye witnesses to

the incident have supported the case of the prosecution and

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postmortem report marked at Exs.P.9 and 10 pertaining to

Thimmakka and Amrutha shows the ghastly way in which the

victims suffered injuries resulting in their death.

21. While Amrutha has suffered head injury resulting in her

death, Thimmakka lost her life in the accident on account of the

injuries to the vital parts of the brain and on account of shock

and haemorrhage. In other words, as the material evidence

establish that bus ran over the heads of Thimmakka and

Amrutha resulting in total crushing of the heads.

22. More over, Madaganahatti gate- which is the place of the

accident is a junction. Naturally in such junctions there will be

crowd and number of people will be moving here and there.

Accused being a professional driver was expected to exercise

such diligence in driving the heavy vehicle like bus in such

places expecting the unexpected.

23. In the case on hand, accused failed to do so. In this

regard, principles of law enunciated by the Hon'ble Apex Court

in the case of State of Punjab vs. Saurabh Bakshi reported

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in (2015)5 SCC 182 is relied upon by this Court, wherein,

Their Lordships in paragraph 14 and 15 have held as under:

14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction :

(Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp.

186-87, para 12) "12. ... '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 the sentencing sphere. Any latitude shown to them in

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that sphere would tempt them to make driving frivolous and a frolic.

***

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 Probation of Offenders 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 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 the vehicle he cannot escape from a jail sentence. This

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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.' (Dalbir Singh case [Dalbir Singh v. State of Haryana,(2000) 5 SCC 82:2004 SCC (Cri) 1208],SCC pp. 84-85 & 87, paras 1 & 13)"

15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] the appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719 :

1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] , SCC p. 735, para 16) "16. ... '5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences.

Maybe, the State may consider, in case of men with poor families, occasional parole and

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reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.' (Rattan Singh case [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] , SCC pp. 720-21, para 5)"

24. In the backdrop of above legal principles, when facts of

present case is analysed, accused has not been successful in

establishing any such mitigating factor whereby this Court can

reduce the sentence of six months imprisonment for the

offence punishable under Section 304A of IPC.

25. Having five children and medical ailment of the accused

viz., enlargement of prostate gland or looking after the

nephews are not the mitigating factors so as to reduce the

sentence imposed by the learned Trial Judge and the First

Appellate Judge, more so, when two lives have been lost on

account of negligence of the accused.

26. Under such circumstances, no case is made out by the

revision petitioner to reduce the sentence of imprisonment of

six months imposed by the learned Trial Magistrate.