Karnataka High Court

Rojin Abraham vs State Of Karnataka on 30 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:43968
                                               CRL.RP No. 250 of 2020




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 30TH DAY OF OCTOBER, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  CRIMINAL REVISION PETITION No.250 OF 2020
            BETWEEN:

            1.    ROJIN ABRAHAM
                  S/O M T ABRAHAM
                  AGED ABOUT 30 YEARS,
                  R/AT 144, NEPALGANJ,
                  KHARIKA, TELBAGH,
                  LUCKNOW, U.P.-226025
                  OLD ADDRESS
                  NO.T1, 3RD FLOOR, NANDA ENCLAVE APARTMENTS,
                  23RD MAIN, J P NAGAR, 5TH PHASE,
                  BENGALURU-560 078.

                PRESENT ADDRESS-NO.102, GRR RESIDENCY,
                3RD CROSS, KGF MUNIREDDY LAYOUT,
                MAHADEVAPURA,
                BENGALURU-560 048.
                                                      ...PETITIONER
            (BY SRI D.R.RAVISHANKAR, SR. ADVOCATE A/W
Digitally   SRI RAGHAVENDRA.K, ADVOCATE)
signed by
MALATESH
KC          AND:
Location:
HIGH
COURT OF    1.    STATE OF KARNATAKA
KARNATAKA         BY MICO LAYOUT TRAFFIC POLICE,
                  REPT. BY SPP, HIGH COURT BUILDINGS,
                  BENGALURU-560001.
                                                        ...RESPONDENT
            (BY SMT. WAHEEDA.M.M, HCGP)
                 THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
            CR.P.C. PRAYING TO SET ASIDE THE DICTUM OF JUDGMENT
            RENDERED ON 18.08.2018 PASSED BY THE M.M.T.C.-IV,
            BENGLAURU IN C.C.NO.6130/2016 AND CONFIRMED BY
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                                              NC: 2024:KHC:43968
                                         CRL.RP No. 250 of 2020




JUDGMENT DATED 05.02.2020 PASSED BY THE LXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
IN CRL.A.NO.1672/2018 FOR AN OFFENCE P/U/S 279 AND
304A OF IPC.

    THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM:       HON'BLE MR JUSTICE V SRISHANANDA

                          ORAL ORDER

Heard Sri D.R.Ravishankar, learned Senior Advocate

along with Sri Raghavendra K, learned counsel for the revision

petitioner and Smt. Waheeda M.M., learned High Court

Government Pleader.

2. Accused who suffered an order of conviction for the

offences punishable under Sections 279 and 304A of the Indian

Penal Code sentencing to undergo simple imprisonment for a

period of six months, in C.C.No.6130/2016 dated 18.08.2018

on the file of the Metropolitan Magistrate Traffic Court-IV,

Bengaluru, confirmed in Crl.A.No.1672/2018 dated 05.02.2020

on the file of the LXV Addl. City Civil and Sessions Judge,

Bengaluru, is the revision petitioner.

3. In the case on hand, even though the accused denied the

accident in the accused statement, suggestions made to the

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prosecution witnesses clearly shows that accident is not in

dispute; so also, the accused being the rider of the offending

motor cycle is also not in dispute.

4. P.W.2 who is an eye witness to the incident who was

standing near the place of accident to drink the tender coconut,

in the cross-examination, categorically admits that soon after

the accident, it is the accused who procured an auto rickshaw

and shifted the injured to the hospital. Enroute the hospital,

they spotted an ambulance which was also being procured by

the accused to the place of accident so as to shift the injured to

the hospital. Injured was shifted from auto rickshaw to the

ambulance and then took the injured to the hospital.

5. However, in the hospital, it was declared that the victim

has been brought dead having regard to the profuse internal

bleeding in the skull and blood being oozed out from the ears

and nose.

6. The dead body was then sent to postmortem examination

and post mortem report clearly shows that because of the

accidental injuries sustained in to the skull there was internal

bleeding resulting in the death of the injured.

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7. All these aspects have been considered by the learned

Trial Magistrate while convicting the accused and rightly re-

appreciated by the learned Judge in the First Appellate Court.

8. Therefore, conviction of the accused for the offences

punishable under Sections 279 and 304A of the Indian Penal

Code needs no interference in this revision petition.

9. However, learned Trial Magistrate failed to note the

answer obtained in the cross-examination of P.W.2 that as a

prudent citizen, accused has taken immediate steps in trying to

shift the injured to the hospital by procuring an auto rickshaw

even without waiting for the ambulance to come.

10. Enroute the hospital, ambulance was also spotted which

was procured near the place of incident and therefore, injured

was shifted from auto rickshaw to the ambulance.

11. The conduct of the accused in accompanying the injured

even in the ambulance and when initial examination has taken

place at the hospital till the injured was declared dead is

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spoken to by the wife of the deceased who was also crossing

the road along with the deceased.

12. P.W.2 has also categorically admitted the suggestion

made on behalf of the accused that the place of the incident did

not have any zebra crossing and victim and his wife were cross

the road running the risk of an accident.

13. The place of accident being a busy road (main road), the

vehicle riders are expected to move in a reasonable speed in

such road. If all of a sudden somebody crosses the road in

places where the pedestrians are not required to cross the

road, entire negligence cannot be attributed to the vehicle

owners or, rider or driver of the vehicle as the case may be.

Some amount of contributory negligence is also attributable to

the deceased while assessing rash and negligent driving of the

accused.

14. It is pertinent to note that the conduct of an accused post

accident assumes a significant importance while assessing the

appropriate punishment to be given in a criminal case after the

guilt has been established.

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15. It is settled principles of law and requires no emphasis

that the role of a Judge while recording an order of conviction is

altogether different from the role of a Judge while passing

appropriate sentence in a given case.

16. In the Indian scenario, since there is no specific

provisions which would guide the sentencing Judge to adopt, a

pragmatic approach is necessary in a given case to exercise the

discretion in awarding the punishment for an offence.

17. Admittedly, in the case on hand, such an exercise has not

been carried out by the learned Trial Judge.

18. At least, learned Judge in the First Appellate Court should

have bestowed his attention to the said aspect of the matter,

as appeal is right of an accused. Learned Judge in the First

Appellate Court not only could have re-appreciated the factual

aspects, but also the legal aspects while considering the appeal

of the accused.

19. Unfortunately, learned Judge in the First Appellate Court

also did not notice the attendant factual circumstances,

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especially, the accused being the person who has come to the

aid of the victim in shifting to the hospital in an auto rickshaw

at the first instance and then in to the ambulance and then

stood by the side of the victim till he was declared dead, as is

admitted by the wife of the deceased, as well as P.W.2.

20. Therefore, this Court is of the considered opinion that by

enhancing the fine amount in a sum of Rs.3,00,000/- over and

above the fine amount ordered by the learned Trial Judge,

which could be paid as compensation to wife of deceased and

directing the accused to undergo simple imprisonment for a day

till rising of the Court, would meet the ends of justice.

21. Hence, the following:

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) While maintaining the conviction of the accused for the offence punishable under Sections 279 and 304A of the Indian Penal Code, sentence ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court is modified directing the accused to undergo simple imprisonment

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for a day till the rising of the Court and ordered to pay additional fine amount of Rs.3,00,000/- in addition to the fine amount imposed by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court.

(iii) Enhanced fine amount shall be paid on or before 30th November 2024.

(iv) After receipt of fine amount, learned Trial Magistrate shall procure the presence of P.W.1-Smt. Shantha who is the wife of the deceased and pay the same as compensation.