Accused is hereby sentenced to undergo R/I for three
months and sentenced to pay the fine of Rs.1,000/-
for the offence punishable u/S 279 of IPC. In default
to pay fine he shall undergo simple imprisonment for
a period of one month.
3. Being aggrieved by the Order of conviction and sentence,
accused preferred an appeal on the file of the II Addl. District
and Sessions Judge, Bidar, sitting at Basavakalyan in Crl.A.No.
4. Learned Judge in the First Appellate Court, after securing
The judgment and sentence passed by the trial Court
in C.C.No.309/2019 dated 02.02.2022 is hereby set-
aside.
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Appellant/accused is hereby sentenced to undergo
rigorous imprisonment for 6 months and to pay fine
of Rs.10,000/- for the offence punishable under
Section 304(a) of IPC. in default, he shall undergo
simple imprisonment for 3 months.
It is hereby confirmed the sentence passed by the
trial Court for the offenses punishable under section
187, 210 of IMV Act, and section 279 of IPC and
section 357(1) of Cr.P.C."
5. Being further aggrieved by the same, accused is before
this Court.
6. Sri Kadloor Satyanarayanacharya, learned counsel for the
revision petitioner, reiterating the grounds urged in the revision
petition, would contend that there are serious lacunae in the
case of the prosecution which has been ignored by the learned
Trial Judge and not considered by the learned Judge in the First
Appellate Court, resulting in miscarriage of justice.
7. Buttressing his contentions, he would invite the attention
of the Court to the spot panchanama and the oral testimony of
P.Ws.2 and 3 and contended that contents of the spot
panchanama would depict that the incident has occurred right
in front of the office of the Circle Inspector of Police. But the
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spot panchanama has been drawn on the next day and by then,
the offending auto rickshaw and two wheeler had already been
shifted from the place of the accident and was parked in the
precinct of the police station.
8. He further contended that these are the serious aspects
of the matter especially while assessing the rashness and
negligence on the part of the revision petitioner, high handed
activity of the police in shifting the auto rickshaw from the
place on the accident to the precinct of the police station
without conducting the spot panchanama has seriously
prejudiced the rights of the petitioner and sought to allow the
revision petition.
9. He also contended that to assess the rash and negligence
on the part of the revision petitioner while driving the offending
auto rickshaw, learned Trial Judge has ignored the material
evidence placed on record, resulting in miscarriage of justice
and sought for allowing the petition.
10. Lastly, Sri Kadloor Satyanarayanacharya would contend
that the learned Trial Judge has committed grave error in not
properly recording the statement of the accused inasmuch as
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instead of naming the charge sheet witnesses, their number as
per charge sheet has been mentioned in the questions that
were framed by the learned Trial Judge resulting in serious
prejudice to understand the case of the prosecution, whereby,
accused could not furnish proper explanation and therefore, the
impugned Order of conviction and sentence needs to be set-
aside.
11. Per contra, Smt.Anita Reddy, learned High Court
Government Pleader supports the impugned judgment.
12. She would contend that the alleged lapses or lacunae in
conducting the trial before the Trial Court was not questioned
before the First Appellate Court by raising necessary grounds in
the appeal memorandum.
13. She would further contend that lapses or lacunae pointed
out by the revision petitioner would not ipso facto cause serious
dent to the over all case of the prosecution inasmuch as those
lapses are only to be termed as irregularity and not illegality
and thus sought for dismissal of the revision petition.
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14. She also contended that conduct of the accused assumes
importance soon after the incident. Revision Petitioner being
the driver of the auto rickshaw did not care to shift the injured
to the hospital, but ran away from the spot. Therefore, revision
petitioner cannot plead any mitigating circumstances before
this Court.
15. She also contended that the First Appellate Court has
modified the sentence by reducing the imprisonment by six
months and sought for dismissal of the revision petition in toto.
16. Having heard the arguments of learned counsel for the
parties, this Court perused the material on record,
meticulously.
17. On such perusal of the material on record, as could be
seen from the charge sheet material, the case of the
prosecution would reveal that in respect of a road traffic
accident that occurred on 31.01.2019 involving an auto
rickshaw bearing registration No.KA-39/9778 and a motor cycle
bearing registration No.KA-39/L-8082 on Chitaguppa-Belakera
main road in front of the office of the Circle Inspector of Police,
a complaint came to be lodged with Chitaguppa police station.
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18. Based on the complaint averments, initially offence under
Section 279, 338 of the Indian Penal Code and Section 187 of
the Indian Motor Vehicles Act was registered.
19. Thereafter, taking note of death of the injured in the
hospital on the next day, offence under Section 304A of the
Indian penal Code came to be invoked with the permission of
the jurisdictional Magistrate.
20. There is no dispute with regard to the fact that the
revision petitioner was the driver of the auto rickshaw. The
deceased was riding the motor cycle. After the accident, the
injured rider of the motor cycle was shifted to the hospital and
during the course of treatment, he succumbed to the injuries.
Admittedly, the revision petitioner did not take any steps to
shift the injured to the hospital.
21. After thorough investigation, charge sheet came to be
filed against the revision petitioner herein. Admittedly, charge
sheet was not challenged by the revision petitioner, if the police
have committed any error in investigating the matter properly.
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22. Thereafter, the Trial Court took cognizance of the offence
punishable under Section 279, 304A of the Indian Penal Code
and Section 187 of the Indian Motor Vehicles Act secured the
presence of the accused and recorded the plea.
23. The Trial Court Records depict that the accused pleaded
not guilty and therefore, trial was held.
24. In order to bring home the guilt of accused, prosecution
examined six witnesses as P.Ws.1 to 6 and placed on record
ten documents which were exhibited and marked as Ex.P.1-10.
25. No doubt, in the cross-examination of P.W.2 who is one
of the witnesses to spot mahazar, it is elicited that the auto
rickshaw and the motor cycle were shifted from the place of the
incident and were parked within the precincts of the police
station.
26. It is also elicited in the cross-examination that the
panchanama has been drawn next day of the accident.
Further, it is elicited that Office of the Circle Inspector of Police
is around ½ km and there is a compound and a burial ground
about 500 metres away.
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27. It is further elicited that there is a road hump in front of
the Office of the Circle Inspector of Police. He denied that he
has falsely deposed before the Court that he has not
participated in the panchanama proceeding.
28. The Assistant Sub Inspector of Police who conducted the
spot mahazar is examined as P.W.3. In his cross-examination
the deficiencies or lacunae ought to have been elicited which
are pointed out by the learned counsel for revision petitioner.
But surprisingly not even a suggestion is put to P.W.3 with
regard to the shifting of auto rickshaw or motor cycle from the
spot before the spot mahazar was conducted.
29. Having regard to the death being caused on account of
injuries sustained in the road traffic accident and taking note of
the fact that there is no challenge to the charge sheet, in the
revisional jurisdiction, this Court does not find any patent
factual error or error of jurisdiction in recording an order of
conviction as is held in the case of Amit Kapoor vs Ramesh
Chander reported in (2012)9 SCC 460.
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30. Two Courts have consistently appreciated the material
evidence placed on record and thereafter, recorded an order of
conviction.
31. While so recording an order of conviction it is noticed by
the Trial Court that there is no explanation offered by the
accused at the time of recording accused statement as is
contemplated under Section 313 of Code of Criminal Procedure.
32. In this regard, the argument put forth on behalf of the
petitioner assumes importance.
33. While it is mandatory duty of the learned Trial Judge to
record the accused statement as is contemplated under Section
313 of the Code of Criminal Procedure, the same is not
purposeless. Recording of accused statement is an important
stage of the Trial where the accused would be given an
opportunity to explain the incriminatory circumstances and
allows the accused to place his/her version with regard to the
incident.
34. If the recording of the accused statement itself is
improper or confusing or comprises of compound sentences, it
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will be difficult for the accused to place his explanation to the
incriminatory materials.
35. Catena of judicial pronouncements have time and again
cautioned the Trial Court as to how accused statement is to be
recorded. Usage of non-comprehendible words like C.W.1,
C.W.6 or P.W.8 or complicated medical terms should be
avoided while recording the accused statement.
36. Wherever it is permissible, if technical terms are spoken
to by witnesses, it is the duty of the Court to translate them to
ordinary language which is understandable by a common man
and such incriminatory materials are to be put in the accused
statement and seek necessary explanation.
37. Often, the accused statement is nothing but 'copy paste'
of the examination-in-chief of a witness which serves no
purpose nor it can be construed as proper compliance of the
mandatory requirement of recording the accused statement.
38. Time and again judicial pronouncements have clearly
ruled that such practice must be deprecated. Despite such
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authoritative pronouncements, the improper framing of the
questions in the accused statement is continued.
39. Therefore, it is necessary for this Court to once again
reiterate all these cardinal principles as to how accused
statement is to be recorded.
40. It is needless to emphasize that it is the duty of the Judge
to cull out the incriminatory materials from the testimony of the
prosecution witnesses and then put it across to the accused and
seek explanation.
41. If the questions are non comprehendible or in the nature
of 'copy paste' of the examination-in-chief of the prosecution
witnesses, such statements are to be considered as improper
compliance and in a given case, it may also result in reversing
the judgment, if it is held against the accused.
42. In the case on hand, no doubt, as is rightly pointed out
by learned counsel for the revision petitioner, that while
recording the incriminatory circumstances from the deposition
of P.W.3, the Trial Judge has used the words 'CWs' not only at
one instance, but in couple of instances.
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43. However, taking note of the material on record in a
cumulative manner, this Court is of the considered opinion that
not putting across the testimony of P.W.3 who is the Assistant
Sub Inspector of Police who registered the case and conducted
the spot mahazar alone would not be sufficient enough to upset
the find of conviction recorded by the Trial Judge confirmed by
the First Appellate Judge.
44. Unfortunately, the learned Judge in the First Appellate
Court did not bestow his attention to these aspects of the
matter even in the absence of any grounds being raised on
behalf of the appellant in the appeal memo, as the learned
Judge in the First Appellate Court was required to consider the
case of the appellant both on law and on facts.
45. This Court being the Court of revision, having regard to
the limited scope in re-visiting into the factual aspects, do not
find that the grounds urged on behalf of the revision petitioner
would affect the case of the revision petitioner such seriously so
as to upset the finding of the conviction.
46. In view of the foregoing discussion, conviction of the
revision petitioner needs to be maintained.
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47. Having held thus, it is noticed that the learned Trial Judge
has awarded one year rigorous imprisonment for the offence
punishable under Section 304A of the Indian Penal Code and
three months rigorous imprisonment for the offence punishable
under Section 279 of the Indian Penal Code, apart from
imposing the fine amount of Rs.10,000/- and Rs.1,000/-
respectively.
48. With regard to the offence punishable under Section 187
of the Indian Motor Vehicles Act, Trial Court has imposed fine of
Rs.500/- with default sentence.
49. In Indian jurisprudence, there is no proper sentencing
policy. On bare reading of Sections 279 and 304A of the Indian
Penal Code, the framers of the legislation did not envisage
imposing of rigorous imprisonment for those offences.
50. It is also noticeable that in both offences there was no
compulsory punishment of imprisonment at all.
51. However, taking note of the galloping trend of deaths of
human being in road traffic accidents, after surveying the case
law on the issue, Hon'ble Apex Court, in the case of State of
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Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182
has held as under:
"14. xxx xxx xxx
12. Xxx xxx xxx xxx
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
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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 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 v. State of Haryana, (2000) 5 SCC
82)"
52. Therefore, this Court is of the considered opinion that
there should be at least minimum imprisonment of six months
where the human life has been lost on account of negligent act
of an accused punishable under Section 304A of the Indian
Penal Code.
53. In the statute when there is no rigorous imprisonment
prescribed, learned Trial Judge imposing rigorous imprisonment
for three months for the offence punishable under Section 279
of the Indian Penal Code and one year rigorous imprisonment
for the offence punishable under Section 304A of the Indian
Penal Code, needs reconsideration.
54. However, learned Judge in the First Appellate Court
modified the sentence and reduced the imprisonment for the
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offence punishable under Section 304A of the Indian Penal
Code from one year to six months, and did not modify the
imprisonment for the offence punishable under Section 279 of
the Indian Penal Code and Section 187 of the Indian Motor
Vehicle Act.
55. It is also noticed from the Order of the learned Judge in
the First Appellate Court that even though there is no sentence
of imprisonment or fine for the offence punishable under
Section 210 of the Indian Motor Vehicle Act, as there was no
charge at all and conviction for the offence, the operative
portion of the Order of the learned First Appellate Judge
incorporates the sentence is confirmed for the offence
punishable under Section 210 of the Indian Motor Vehicle Act
and for the offence punishable under Sections 279 and 351 of
the Indian Penal Code.
56. Learned Judge in the First Appellate Court got confused
while modifying the sentence as to the scope and ambit of
Section 210 of the Indian Motor Vehicle Act wherein learned
Trial Judge has only directed the office to supply order of
conviction to the Road Traffic Officials to take necessary action.
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So also, Section 357(1) of the Code of Criminal Procedure
contemplates about payment of compensation amount.
57. Therefore, operative portion of the judgment of the First
Appellate Court is not properly worded and it does not convey
proper meaning.
58. Be that what it may. Since there is only one death and
the injured lost his life on the next day of the accident in the
hospital, offence under Section 279 merges with offence under
Section 304A of the Indian Penal Code.
59. Therefore, since only one person is injured who lost his
life, when there is sentence that has been awarded for the
offence punishable under Section 304A of the Indian Penal
Code, no separate sentence of imprisonment is per se
permissible for the offence punishable under Section 279 of the
Indian Penal Code, in view of doctrine of merger.
60. Further, since the offence under Section 304A of the
Indian Penal Code is considered as not a heinous offence, but
where a human life is lost, legislators in their wisdom thought
that two years is the maximum punishment. Since the First
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Appellate Judge using his discretion has reduced the
imprisonment from one year to six months, it should have been
simple imprisonment and not rigorous imprisonment.
61. Likewise, whenever the Court is required to impose
rigorous imprisonment, there must be proper reasons assigned
as to why Court is of the opinion that rigorous imprisonment
must be awarded.
62. No such reasoning is forthcoming in the Order on
sentence before the Trial Court nor any special reasons are
assigned by the learned Judge in the First Appellate Court while
modifying the sentence of imprisonment from one year to six
months.
63. Since State has not preferred any revision regarding
inadequacy of the sentence when the learned Judge in the First
Appellate Court has reduced the sentence of imprisonment
from one year to six months, this Court in the revision filed by
the accused cannot modify the sentence further by enhancing
the same, following the dictum of the Hon'ble Apex Court in the
case of Govind Ramji Jadhav vs. State of Maharashtra
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reported in (1990)4 SCC 718 and Sachin vs. State of
Maharashtra reported in 2025 SCC OnLine SC 834.
64. In view of the foregoing discussion, the following:
ORDER
(i) The 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 of
imprisonment ordered by the Trial Court modified
by the First Appellate Court is further modified by
directing the revision petitioner/accused to undergo
simple imprisonment for a period of six months for
the offence punishable under Section 304A of the
Indian Penal Code.
(iii) Rest of the sentence with regard to the fine in
respect of the offence punishable under Sections
279 and 304A of the Indian Penal Code and Section
187 of the Indian Motor Vehicles Act stands
unaltered.
(iv) So also, the order of compensation awarded
by the Trial Court stands unaltered.
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(v) Time is granted for the Revision petitioner to
surrender before the Trial Court for serving
remaining portion of the sentence, till 10th August
2025.
(vi) Registry is directed to return the Trial Court
Records along with copy of this Order for issuing
the modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
CT:PK
