2. The revision petitioner is the accused, who suffered an
The accused person is sentenced to undergo simple
imprisonment for a period of two months with fine of
Rs.1,000/- (Rupees one thousand only) and in default of
payment of fine, he shall undergo one month simple
imprisonment for the offence punishable under Section
279 of IPC.
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The accused person is sentenced to undergo simple
imprisonment for a period of One year with fine of
Rs.2,000/- (Rupees two thousand only) and in default of
payment of fine, he shall undergo three months simple
imprisonment for the offence punishable under Section
304(A) of IPC."
3. The order of conviction and sentence was subject matter
of appeal filed by the accused in Criminal Appeal No.25/2018
which came to be dismissed on merits by a considered
judgment dated 26.07.2018 on the file of the Principal Sessions
Judge, Dakshina Kannada, Mangaluru.
4. Thereafter, accused is before this Court in this revision
petition.
5. Facts which are utmost necessary for disposal of the
present petition are as under:
In respect of a road traffic accident that occurred on
24.10.2014, at about 11.15 a.m. within the jurisdiction of
Bajpe Police Station, involving a car bearing registration No.KA-
19/MC-3502, a complaint came to be lodged by contending that
car was moving from Bajpe towards Kateelu in a rash and
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negligent manner and hit a pedestrian by name Anil Nazarath,
due to which pedestrian fell down and sustained injuries and
succumbed to the injuries on the way to the hospital.
6. PW-1/Sri Ignatius D'Souza having seen the accident, set
the criminal law into motion, who is no way related to the
deceased nor nurtured any enmity against the revision
petitioner.
7. Police, after registering the case, thoroughly investigated
the matter and filed the charge sheet.
8. Learned Trial Magistrate secured the presence of the
accused after taking cognizance of the aforesaid offences and
recorded the plea. Accused pleaded not guilty. Therefore, trial
was held.
9. In order to bring home the guilt of the accused,
prosecution proceeded to examine fifteen witnesses as PWs-1
to 15. Sixteen documentary evidence were placed on record
which were exhibited and marked as Exhibits P-1 to P-16.
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10. On conclusion of recording of evidence, learned Trial
Magistrate culled out the incriminatory circumstances from the
prosecution evidence and put it across to the accused and
recorded the accused's statement as is contemplated under
Section 313 of the Code of Criminal Procedure.
11. Accused has denied all the incriminatory circumstances
including the accident and did not place his version about the
incident.
12. Thereafter, learned Trial Magistrate heard the arguments
of the parties and convicted the accused and sentenced as
referred to supra.
13. Accused challenged the order of conviction and sentence
before the First Appellate Court in Criminal Appeal No.25/2018.
14. Learned Judge in the First Appellate Court, after securing
the records heard the arguments of the parties in detail and on
re-appreciation of the material evidence on record, dismissed
the appeal of the accused by considered judgment dated
26.07.2018.
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15. Being further aggrieved by the same, accused is before
this Court in this revision.
16. Sri Vinod Prasad, learned counsel for the revision
petitioner, reiterating the grounds urged in the revision petition
would contend that according to the version of the prosecution,
the deceased was a pedestrian and it is the rash and negligent
driving of the accused resulted in the accidental death of the
pedestrian.
17. But, PW-1 has specifically stated that the victim-Anil
Nazarath with another person was crossing the road and at that
juncture, the car hit the said Anil Nazarath. Therefore, he
sustained injuries and succumbed to the injuries which is a
major contradiction which has been ignored by the learned Trial
Magistrate and the learned Judge in the First Appellate Court.
Thus sought for allowing the revision petition.
18. Alternatively, Sri Vinod Prasad, learned counsel would
contend that in the event this Court upholding the order of
conviction, having regard to the limited revisional jurisdiction,
sentence of imprisonment of one year for the offence under
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Section 304A IPC may be set aside by enhancing the fine
amount reasonably which can be paid as compensation to the
dependants of deceased Anil Nazarath and thus sought for
allowing the revision petition in part.
19. Per contra, Sri K.Nageshwarappa, learned High Court
Government Pleader while opposing the revision grounds
supports the impugned judgments.
20. He would further contend that PW-1 did not nurture any
previous enmity or animosity to falsely implicate the accused in
the incident.
21. He would further contend that no explanation whatsoever
is forthcoming on behalf of the accused and minor
contradictions elicited in the cross-examination of PW-1 did not
cause any serious dent to the case of the prosecution and thus
sought for dismissal of the revision petition.
22. Insofar as alternate submission is concerned, the concept
of "blood money" is alien to the Indian Criminal Jurisprudence
and therefore, submission of the revision petitioner that
enhancing the fine amount reasonably the imprisonment need
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to be set aside cannot be countenanced in law and sought for
dismissal of the revision petition in toto.
23. Having heard the arguments of both sides this Court
perused the material law on record meticulously.
24. On such perusal of the material on record, there is no
dispute about the road traffic accident occurred on 24.10.2014
near the Permude town involving the car bearing registration
No.KA-19/MC-3502 which was driven by the accused.
25. In the accident, Anil Nazarath sustained injuries and
because of the impact of the injuries, on the way to the
hospital, he died.
26. Police, after registering the case in Crime No.270/2014
based on the complaint lodged by PW-1, who did not nurture
any previous enmity as against the revision petitioner nor extra
affinity towards the deceased, investigated the matter
thoroughly and filed the charge sheet.
27. During the course of investigation, the offending car was
seized and the spot mahazar has been drafted.
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28. The contradiction that is highlighted in the cross-
examination of PW-1 on behalf of the revision petitioner is that
PW-1 has stated that along with Anil Nazareth, there was yet
another person and police has not cited him as a witness and if
the revision petitioner was negligent in driving, the other
person should have also sustained injuries. Therefore, genesis
of the crime as propounded by the prosecution is not properly
proved and therefore, the revision petitioner is entitled for an
order of acquittal cannot be countenanced in law for more than
one reason.
29. Firstly, the accused failed to offer any explanation
whatsoever to the incriminatory circumstances that has been
found in the prosecution evidence. The contradiction that has
been highlighted by the counsel for the revision petitioner is
minor in nature which will fortify the fact that the PW-1 is a
natural witness.
30. It is settled principles of law and requires no emphasis
that criminal law can be set into motion by any person.
Therefore, the evidence of PW-1 is natural and minor
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contradiction in such evidence is to be ignored while
appreciating the material evidence on record in a cumulative
manner.
31. Secondly, revision petitioner/accused was required to
place his version on record about the incident as he has taken
part in the incident. But the accused in the case on hand,
denied every one of the incriminatory circumstances including
the accident.
32. If it is so, why his car was seized and why he did not
challenge the charge sheet is a question that remains
unanswered.
33. Therefore, following the dictum of the Hon'ble Apex Court
in the case of Ravi Kapur vs. State of Rajasthan reported in
(2012)9 SCC 284, the learned Trial Magistrate was justified in
convicting the accused, noting the fact that prosecution is
successful in proving the charges levelled against the accused
beyond reasonable doubt and in the absence of any plausible
explanation by the accused nor placing his version about the
incident.
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34. Having said so, learned Judge in the First Appellate Court,
while re-appreciating the material evidence on record, did take
into consideration the contradictions pointed out on behalf of
the revision petitioner and has satisfactorily answered that the
contradictions are minor in nature which did not cause any
serious dent to the case of the prosecution as a whole. This
Court having regard to the limited revisional jurisdiction, did
not find any grounds whatsoever to annul the finding of guilt
recorded by both the Courts, convicting the accused for the
offence punishable under Section 279 and 304A of the Indian
Penal Code.
35. Having said so, insofar as the alternate submission is
concerned, what is the appropriate punishment for a vehicle
driver resulting in the death of a human being is no longer res
integra.
36. The Hon'ble Apex Court in the case of State of Punjab
vs. Saurabh Bakshi reported in (2015)5 SCC 182 at
paragraphs 14 and 15, has held as under:
"14. In this context, we may refer with profit to the
decision in Balwinder Singh [State of
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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 that
sphere would tempt them to make driving
frivolous and a 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 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 is the role which the courts can
play, particularly at the level of trial courts, for
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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
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with poor families, occasional parole and
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)""
37. Keeping in the background above legal principles, when
the material on record is appreciated, accused did not come to
the rescue of the injured in shifting him to the hospital though
his car was the one which was the offending vehicle.
38. Further, in a matter of this nature the benevolent
provisions of the Probation of Offenders Act cannot be applied
is the ruling of the Hon'ble Apex Court in the case of Dalbir
Singh vs. State of Haryana reported in (2000)5 SCC 82.
which has been reiterated in the case of Saurabh Bakshi
supra.
39. Therefore, minimum of six months imprisonment is to be
ordered to curb the menace of road traffic accidents resulting in
the death of a human being.
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40. Therefore, the sentence of imprisonment ordered by the
learned Trial Magistrate of one year confirmed by the First
Appellate Court need to be reduced to six months.
41. Accordingly, the following:
ORDER
(i) Revision Petition allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under Section
304A of the Indian Penal Code, the sentence ordered
by learned Trial Magistrate confirmed by the First
Appellate Court is reduced to six months.
(iii) Revision Petitioner shall surrender before the
Trial Court for serving remaining part of the sentence
on or before 30th April 2026.
Office is directed to return the Trial Court Records with
copy of this Order forthwith for issue of modified conviction
warrant.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
List No.: 1 Sl No.: 71
