1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 27 TH DAY OF JUNE, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA BETWEEN: CRIMINAL REVISION PETITION No. 100025/2014 ULAS S/O RATANAKAR AMADALLI AGE: MAJOR, OCC: DRIVER, R/O: AMADALLI, TQ & DIST: KARWAR (NORTH CANARA) (BY SRI. G A HOLEYANNAVAR, ADV.)... PETITIONER AND: STATE OF KARNATAKA R/BY SPP, HIGH COURT KARNATAKA, DHARWAD BENCH, CPI KALAGAHATAGI POLICE STATION, KALAGHATAGI. (BY SRI. VIJAYAKUMAR MAJAGE, HCGP) ----... RESPONDENT
2 THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND THE SENTENCE ORDER DATED 07.01.2014 PASSED BY THE PRL. DIST. & SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.41/2010 PARTLY ALLOWING AND ACQUITTING THE ACCUSED/PETITIONER FOR THE OFFENCE U/S 279 OF IPC AND CONFIRMING THE JUDGMENT AND ORDER FOR THE OFFENCE U/S 337 AND 304-A OF IPC DATED 26.03.2010 PASSED BY THE CIVIL JUDGE (JR.DN.) & JMFC COURT, KALAGHATAGI IN C.C.NO.71/2008 AND ACQUIT THE PETITIONER FOR THE CHARGES LEVELED AGAINST HIM. THIS REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The Revision Petitioner being aggrieved by the judgment of conviction and sentence passed by the Civil Judge (Jr.Dn.) & JMFC, Kalghatagi in C.C.No.71/2008 for the offences punishable under Sections 279, 337, 304A IPC, challenged the said judgment before the Sessions Judge, Dharwad, in Criminal Appeal No.41/2010 wherein, the first Appellate Court modified the sentence passed by the trial Court while upholding the conviction judgment, sentenced the petitioner to undergo simple imprisonment for one month and to pay a fine of Rs.300/-, in default to undergo simple imprisonment
3 for three days for the offence under Section 337 of IPC and imposing the sentence of simple imprisonment for six months and to pay a fine of Rs.900/- with default clause of 20 days simple imprisonment for the offence under Section 304A IPC. The said judgments of the trial Court and the first Appellate Court have been challenged before this Court. 2. Though at the initial stage the learned Counsel for the petitioner strenuously argued with regard to the merits of the case, but ultimately he confined his arguments to only the sentence passed by the trial Court as modified by the first Appellate Court. He contends that, the accused is a very poor villager and is a driver by profession. He is the sole bread earner in the family and he has to look after his wife, children, father and mother and others. If he is sentenced to undergo imprisonment, it would cause serious impact on his future life and virtually affect the entire family. Therefore, the learned Counsel pleads for lessening the sentence passed by the first Appellate Court and requested the Court to enhance the fine amount insofar as it relates to the sentence
4 passed under Section 304A is concerned and to remove the substantive sentence of imprisonment imposed by the first Appellate Court. 3. The learned High Court Government Pleader relied upon the decision of the Apex Court reported in 2012 (2) SCC 182 in the case of State of Punjab Vs. Balwinder Singh and submitted that, the Court should not take lenient view, when once it is held that the accused has committed offence under Sections 304A, 337 and 279 of IPC. Sentence of imprisonment has to be passed and he shall not be let out only by imposing fine. He also contends that the evidence recorded by the Trial Court, as appreciated by both the Courts clearly disclose that the accused is not a driver who drove the vehicle with all care and caution in order to protect the interest of citizens. Therefore, he contends that the sentence passed by the Appellate Court deserves to be affirmed. 4. Having heard the arguments of the learned Counsel for the petitioner and the learned High Court Government
5 Pleader, first let me go through the brief factual matrix of this case. 5. It is the allegation against the accused that on 25.01.2008, at about 4.00 pm in the afternoon, a Tempo Trax bearing Registration No. KA-27/4196 driven by the complainant in this case, was carrying passengers. When the complainant had parked the said vehicle on the left side of the road near Ramanal cross on Hubli-Kalaghatagi road, the accused drove a lorry bearing registration No.KA-30/B- 4258 in a rash and negligent manner and dashed the said tempo from its backside and caused the accident. Due to the impact, one Praveen @ Shivanand sustained severe injuries, succumbed to them. Other persons also sustained grievous injuries. The accused was secured before the Court, his plea was recorded and the Court proceeded to record the evidence of the prosecution witnesses. The prosecution in all, examined 11 witnesses (PWs 1 to 11) and got marked Exs. P1 to P19. Ex.P11 is the post-mortem report of the deceased Praveen, Ex.P12 is the IMV report and Ex.P13 to P18 are the
6 injury certificates. In fact Ex.P11, P13 to P18 were marked before the Court with the consent of the learned Counsel for the accused as he categorically stated before the trial Court that he does not deny the contents of these documents. 6. On appreciation of the evidence, the trial Court has convicted the accused person and sentenced him to undergo imprisonment as noted above. The evidence recorded by the trial Court discloses that, PW1 - Goudappagouda has categorically stated about the accident, identified the accused and other witnesses PW2 Parawwa, PW3 Sharapunnisha, PW4 Maboobi, PW5 - Dawood and PW6 Neelawwa. They all in fact turned hostile to the prosecution to the extent of negligence on the part of the driver of the lorry and identification of the lorry driver i.e., the petitioner herein. However, invariably each and every witness has stated in their examination-in-chief about the occurrence of the accident on that day, and also categorically stated that on that particular day, tempo driver had actually stopped the vehicle at Ramanal cross and parked the vehicle on the left
7 side of the road; when the passengers were alighting from the vehicle, a lorry came from the backside of the said tempo, dashed the said tempo and caused the accident. Due to accident one death occurred and others sustained grievous and simple injuries. In fact, the witnesses have not been cross-examined by the accused. However, the learned Assistant Public Prosecutor has cross-examined the witnesses and suggested that the accident was due to the rash and negligent driving of the lorry driver. Though the said suggestions have been denied, nevertheless, the other portion of the evidence in the examination-in-chief of these witnesses have not been controverted by the accused. 7. Therefore, the factual matrix remains undisturbed can he taken proved before the trial Court that, on that particular day, the tempo was parked in left side of the road and the lorry came and dashed the said tempo causing the accident due to which one death occurred and some persons suffered injuries. Looking to the above said circumstances, the factual appreciation by the trial Court as well as the
8 appellate Court with regard to the happening of the accident, holding that the petitioner/accused was driving the lorry on that particular day, is not liable to be interfered by this Court. 8. Apart from that, the cross-examination of PW1 also discloses that, the accused has suggested to this witness that the tempo driver was driving the vehicle slowly and therefore, he did not properly apply the break and no parking lights were there to the said vehicle. This suggestion to this witness clearly goes to show that the accused petitioner had knowledge of the accident, which occurred on that particular day. He tried to fasten the responsibility on the driver of the tempo. However it is only a suggestion made to the PW1 but no substantive evidence has been adduced before the trial Court to show that there was negligence on the part of tempo driver. Therefore, it also fortifies the evidence of PW1 that the petitioner/accused was the person who was driving the lorry on that particular day. Therefore, looking to the above said evidence of the witnesses, I do not
9 find any strong reasons to interfere with the judgment of conviction recorded by the trial Court as affirmed by the first appellate Court. 9. Now coming to the sentence part of the Appellate Court, as I have already stated, the first appellate Court has set aside the sentence passed by the trial Court insofar as it relates to offence under Section 279 of IPC. However, the sentence has been confirmed insofar as the offence under Section 337 and 304A of IPC. The learned Counsel for the petitioner strenuously contends that, looking at the facts and circumstances of the case, though a death was occurred and some persons suffered injuries, the sentence imposed by the first Appellate Court is harsh. If the accused is sentenced to undergo imprisonment, it would definitely impair his future life. Therefore, the same may be reduced by imposing more fine amount than the one imposed by the trial Court to substitute the sentence of imprisonment. 10. Though the learned Counsel for the petitioner has cited several rulings of this Court, wherein this Court had
10 occasion to discuss and deal with similar cases and under distant circumstances this Court has imposed fine instead of imposing substantive sentence of imprisonment for the offence under Section 304A of IPC. In some of the cases, this Court has reduced the imprisonment to a lesser sentence. Therefore, it goes without saying that there is discretion vested with the Court either to impose substantive sentence of imprisonment or to impose fine or with both under Section 304A of IPC. 11. In this regard, the decision cited by the learned High Court Government Pleader in my opinion should be borne in mind because in this case, the Hon ble Apex Court has virtually issued guidelines under what circumstances the Courts have to deal with the accident matters in imposing the sentence on the accused person. The above cited ruling reported in 2012 (2) SCC 182 in which the Apex Court has held that; Motor accident Death caused by rash and negligent driving Quantum of sentence
11 Considerations Bus and truck, being driven in a rash and negligent manner by both drivers, collided with each other Five persons travelling in bus died Trial Court convicted both respondent accused (drivers of bus and truck) and directed them to undergo Rigorous imprisonment for 2 years each - Sentence upheld by Sessions Judge High Court considering that respondent accused had suffered a protracted trial for about 17 years and had already undergone custody for 15 days, reduced quantum of sentence to period already undergone but enhancing the amount to Rs.25,000 each The Apex Court has in fact disapproved the observations made by the High Court, holding that the Probation of Offenders Act, 1958 is not applicable to the offence under Sections 304-A of IPC, the Court held that; Criminal courts cannot treat nature of offence under S.304-A IPC as attracting benevolent provisions of Probation of Offenders Act One of the
12 prime considerations in determining quantum of sentence for offence of causing death or injury by rash and negligent driving of automobiles should be deterrence For lessening high rate of motor accidents due to careless and callous driving of vehicles, courts are expected to consider all relevant facts and circumstances bearing on question of sentence and proceed to impose a sentence commensurate with gravity of offence Sentence of six months RI and fine of Rs.5000 each imposed 12. In view of the above said guidelines, this Court has to strike a balance as to what would be the proper and correct sentence that could be passed against the petitioner herein. 13. There is no denial by the other side with regard to the status of the petitioner herein. Even the trial Court while sentencing the accused has also considered the aspect of status of the accused and has sentenced him to undergo imprisonment for six months for the above said offences.
13 The factual matrix of the case as I have already discussed also shows that on that particular day, the tempo was parked on the left side of the road. None of the witnesses have stated as to the rash and negligent driving of the vehicle by the driver, except PW1 who has deposed to that effect. As rightly contended by the learned Counsel for the petitioner, sketch has not been prepared by the Investigating Officer to show as to how the accident actually happened. On overall appreciation of the evidence of the witnesses, the Court has to come to the conclusion that the accused has committed such an offence. Under the circumstances, when the Court cannot graphically come to a definite conclusion as to the severity of the culpability of the accused, in my opinion, that also play an important role and act as a mitigating circumstance in favour of the accused. 14. In Crl.RP No.2027/2012 in the case of Mukthumsab Vs. The State of Karnataka, this Court has considered the occurrence of accident where the manner in which the accident has occurred cannot be recounted with
14 any graphic detail or with all certainty, though the conviction is to be continued but, the sentence has to be modified. In my opinion, the said observation made by this Court is applicable to this particular case because of the non crossexamination of the witnesses and suggestions made to PW1. The trial Court as well as the first appellate Court have recorded the conviction on accepting the said evidence. Actually what exactly happened is not known to anybody. Therefore, the said observation of this Court is aptly and squarely applicable to the case on hand in order to reduce the sentence. However, keeping in mind the observation made by the Hon ble Apex Court (supra), the sentence that is going to be passed by this Court should neither be a boon nor a burden. 15. Therefore, under the above said circumstances, in order to teach a lesson to the driver of the offending vehicle and to create deterrence to the other like minded people and in order to caution the drivers to drive the vehicle carefully to safeguard the interest of the public at large sentence of
15 imprisonment cannot be totally removed. Hence, considering the surrounding circumstances and the age of the accused, his occupation, his family background and status in the society etc., and also to the fact that he has to continue the work as a driver to eke his livelihood, I am of the opinion, imposing punishment of two months imprisonment instead of six months as imposed by the first Appellate Court would meet the ends of justice, keeping the rest of the sentence passed by the appellate Court intact. 16. With these observations, the revision petition deserves to be partly allowed. Accordingly, the following order is passed: ORDER Revision Petition is hereby partly allowed. The order of sentence passed by the first Appellate Court is hereby modified to the following effect: The petitioner is sentenced to undergo Simple imprisonment for two months instead of six months as
16 ordered by the first appellate Court and to pay a fine of Rs.900/-. Rest of the sentence passed by the first appellate Court is not disturbed. Sd/- JUDGE gab/-