Partly allowed

Gundappa S/O Kallappa v. the State of Karnataka

Karnataka HC9 Aug 2017CRL.RP/2502/2012

Case brief

AI extract

What is this about?

High Court allowed Criminal Revision in part, modifying sentence imposed for rash and negligent driving causing death. Court upheld conviction but set aside fine for Section 279 IPC as it merges with Section 304-A, reaffirming minimum six-month mandatory sentence for 304-A.

What did the court decide?

Sentence of fine imposed under Section 279 IPC set aside; fine for Section 304-A of IPC confirmed and enhanced to Rs.2,000 with one month simple imprisonment in default.

Gundappa S/O Kallappa Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 9^TH DAY OF AUGUST, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE B. A. PATIL

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CRIMINAL REVISION PETITION No.2502/2012

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Between:

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Gundappa S/o Kallappa Age: 28 years, Occ: Student R/o Yalamadagi village Tq. Chincholi, Dist. Gulbarga

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... Petitioner

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(By Sri Mahantesh Desai, Advocate-Absent)

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And:

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The State of Karnataka Through M.B. Nagar Police Station Gulbarga, Represented by its Special Public Prosecutor High Court of Karnataka Circuit Bench, Gulbarga

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... Respondent (By Sri Maqbool Ahmed, HCGP)

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This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside the impugned judgment and order passed by the Principal District and Sessions Judge at Gulbarga in Criminal Appeal No.36/2010 dated 02.02.2011 confirming the judgment and order of conviction and sentence passed by the learned IVAdditional Civil Judge (Jr. Dn.) and JMFC at Gulbarga in C.C.No.2644/2008 dated 29.04.2010 and acquit the revision petitioner of all the charges levelled against him.

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This petition having been heard and reserved for orders on 18.07.2017, coming on for pronouncement of orders this day, the Court made the following:-

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ORDER

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This revision petition has been filed by the petitioner/accused assailing the judgment and order of conviction and sentence passed in Criminal Appeal No.36/2010 dated 02.02.2011 by the Principal Sessions Judge, Gulbarga, whereunder the judgment and order of conviction and sentence passed by the IV-Additional Civil Judge (Jr., Dn.,) and JMFC, Gulbarga, in C.C.No.2644/2008 dated 29.04.2010 has been confirmed under Sections 279 and 304-A of IPC.

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The gist of the allegation as per the complaint are that, on 26.08.2008 at about 6.30 p.m., petitioner/accused drove his motorcycle bearing registration No.KA-39-H-2143 rashly and negligently so as to endanger human life and as a result of the same,

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caused the death of one Mohd. Rahemath by dashing to his bicycle on which he was proceeding. On the basis of

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the complaint, a case was registered in Crime No.1679/2008 and after investigation, the charge sheet was filed against the accused. After the trial, the trial Court having found the accused guilty has convicted the accused.

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Being aggrieved by the said order, petitioner/accused filed the appeal before the Principal Sessions Judge. The learned Sessions Judge has dismissed the appeal by confirming the judgment and order of sentence passed by the trial Court. Being aggrieved by the same, the petitioner/accused is before this Court.

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Heard Sri Maqbool Ahmed, learned High Court Government Pleader appearing for the respondent-State. The learned counsel for the petitioner remained absent. As the revision petition cannot be

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dismissed for default, the same has been disposed of by this order.

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The main grounds urged by the learned

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counsel for the petitioner when the matter was heard partly on 11.07.2017 and in his petition are that the trial Court has not properly appreciated the evidence of the witnesses. It is contended that the offence punishable under Section 279 of IPC is a technical offence and it merges with Section 304-A of IPC. The trial Court ought not to have imposed a separate sentence under Section 279 of IPC. It is further contended that there was no rash and negligent riding of the motorcycle by the petitioner, as such, the trial Court ought not to have convicted the petitioner/ accused. It is also contended that the only evidence which is available before the Court below is that of P.Ws.1 & 3 and even they have not stated anything about the rash and negligent act and there is material

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contradiction in their evidence. It is also contended that the witnesses have deposed that three persons were proceeding on the motorcycle and it was a busy road. Under such circumstances, there is no question of petitioner/accused riding the motorcycle in a high speed, rashly and negligently. It is further contended that PW.3 has not identified the petitioner/accused, under such circumstances, the trial Court ought not to have convicted the petitioner/accused. The said evidence is also not trustworthy and reliable and there is no corroboration in the evidence of the said witnesses. The witnesses have also not spoken with regard to the speed of the vehicle. On these grounds, he prayed for allowing the petition.

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Per contra, the learned High Court

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Government Pleader appearing for the respondent-State by supporting the judgment and order passed by both the Courts below would contend that the eyewitnesses

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have categorically deposed about the rash and negligent act of the petitioner/accused. The accident in question has happened due to the rash and negligent riding of motorcycle by the accused. He would further contend that because of the rash and negligent act of the petitioner/accused the motorcycle went and hit the cyclist and as a result of the same, he sustained injuries and thereafter, succumbed to the injuries. On these grounds, he prayed for dismissal of the petition.

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On perusal of the records, it would indicate

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that P.W.1 is the Police Constable who is an eyewitness to the said accident and has also filed the complaint. In his evidence, he has deposed that, on the date of the incident he was on beat duty and at about 6.30 p.m., he was proceeding from Adarsh Nagar ring road to Bhakar Function Hall, at that time, a boy was coming on a cycle from Basaveshwar New Colony, at the same time, one person came on a motorcycle from Sedam ring road side

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rashly and negligently to go towards Humanabd Road and dashed to the rider of the bicycle and as a result of the same, the person on the bicycle fell down and sustained injuries to his head and other parts of the body and lost his consciousness. Thereafter, he enquired the name of the accused and he told his name as Gundappa S/o Basappa Chincholli. He has also identified the accused before the Court. He has further deposed that thereafter he went to the Police Station and filed the complaint. During the course of crossexamination it has been elicited that accused alone was riding the motorcycle and no documents have been produced to show that PW.1 was on beat duty. Except that nothing has been elicited so as to discard his evidence about the rash and negligent act of the accused.

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PW.2 is the panch witness to inquest mahazar Ex.P2 and spot mahazar Ex.P3.

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PW.3 is also an eyewitness. He has also deposed that on 26.08.2008 at about 6.30 p.m., he was drinking tea by standing near Bhakar function hall and at that time, a victor black coloured vehicle came from ring road in a high speed rashly and negligently and dashed to a person who was proceeding on the bicycle. As a result of the same, he fell down and thereafter, he was taken to the hospital. He has deposed that he is not in a position to identify the accused. During the course of cross-examination, he has admitted that three persons were there on the motorcycle which was ridden by the accused. It has also been elicited that so many vehicles were proceeding on State Highway. Except that, nothing has been elicited from the mouth of this witness.

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PW.4 is the Head Constable. He has also

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reiterated the evidence of PW.1.

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PW.5 is a panch witness to spot mahazar Ex.P3.

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PW.6 is an eyewitness but he has deposed that on 27.08.2008 he heard about the accident that a motorcycle has hit and caused the accident to cyclist and thereafter, he went to the District Hospital and saw the dead body of Rehamat.

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P.W.7 is the PSI who registered the case on the basis of the complaint given by PW.1 and he has also partly investigated the case and thereafter, handed over further investigation to PW.8.

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PW.8 is the CPI who investigated the case and

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filed charge sheet against the accused person.

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On careful consideration of the evidence which has been led before the trial Court, it would indicate that PWs.1, 3 and 4 are the main eyewitness to the alleged incident. They have deposed that the accused was riding the said motorbike in a high speed

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rashly and negligently and while riding so, he dashed to the cyclist. As a result of the same, the cyclist fell down and sustained injuries. The evidence of PWs.1 and 4 appears to be consistent. They have specifically stated that they were on beat duty near the said circle and they have witnessed the alleged accident and thereafter, they have sent the injured in the ambulance to the hospital and immediately, PW.1 went to the Police Station and filed the complaint as per Ex.P1. The evidence of PW.3 who is an eyewitness to the alleged accident appears to be natural and probable. On the date of accident, he was standing near the circle and was drinking tea and at that time, the alleged accident has taken place. All these three witnesses have also identified that the accused was riding the said motorcycle and because of rash and negligent act of the petitioner/accused, the alleged accident has taken place. In order to discard the evidence of these witnesses nothing has been elicited. Though in the

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evidence of PW.3, it has been elicited that so many vehicles were moving on the road and it was a busy road, merely because, so many vehicles were moving on the said road, it cannot be inferred that the petitioner/accused was not rash and negligent. When PWs.1 and 4 being the Police Constables have categorically deposed that the alleged accident has taken place due to the rash and negligent act of the petitioner/accused and nothing has been elicited to discard their evidence, the contentions raised by the learned counsel for the petitioner that there was no rash and negligent act on the part of the petitioner/accused do not deserve consideration. Though during the course of cross-examination PW.3 has admitted that three persons were there on the said motorcycle, that is not going to prove that the petitioner/accused was not rash and negligent. Per contra, if three persons were there on the motorcycle, rider of the motorcycle was not only rash and negligent but was also riding the same by

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violating the rules. On going through the evidence of PWs.1, 3 and 4, it clearly indicates that the alleged accident has taken place due to the rash and negligent act of the petitioner/accused. There is consistency and corroboration in the evidence of all these witnesses. By relying upon such evidence, the trial Court has convicted the accused and the first appellate Court has confirmed the same and as such, the contention of the learned counsel for the petitioner/accused does not deserve any consideration and the same is rejected.

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Be that as it may, when the petitioner/accused came to be examined under Section 313 of Cr.P.C., he has not explained his stand as to how the accident took place. It is the accused who will be having a greater opportunity to explain his stand about the manner in which the accident has taken place. When he has not made out any case, the evidence of eyewitness appears to be acceptable and trustworthy and it has to be taken

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into consideration. The overall evidence placed on record reveals that there is sufficient material to show that the accident in question has occurred due to the rash and negligent act of the petitioner/accused and there is no mechanical defect or other cause for the accident. The trial Court and the first appellate Court were justified in convicting the accused for the offences punishable under Sections 279 and 304-A of IPC. In this behalf, the findings of both the Courts below deserve to be confirmed.

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The second contention of the petitioner/ accused is that, a separate sentence ought not to have been passed under Section 279 of IPC. On going through the records, it would indicate that the trial Court has convicted the petitioner/accused on both the counts. So far as sentence of imposing a fine by the trial Court as well as the first appellate Court is incorrect. Though the offence punishable under Section 279 of IPC

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is independent, when the accused is charge-sheeted under Section 304-A of IPC, an offence under Section 279 of IPC virtually merges with the main offence punishable under Section 304-A of IPC. In that light, it is not advisable to sentence the accused on both these counts. The said proposition of law has been laid down by the Hon'ble Apex Court in the case of Guru Basavaraj Alias Benne Settappa vs State of Karnataka, reported in (2012) 8 Supreme Court Cases 734 wherein at paragraphs-14 to 16 it has been held as under:

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“14. The next limb of submission of the learned counsel for the appellant is that when he has been acquitted under Section 279 IPC, he cannot be punished in respect of the other offences as the allegation of rash and negligent act cannot be treated to have been proven. The aforesaid submission, on a first blush, may look quite attractive, but on a deeper

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scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The learned Appellate Judge, after due appreciation of the evidence on record as expected of an appellate Court, has come to the conclusion that the accused was driving the vehicle in a rash and negligent manner. After ascribing some reason, he has thought it apposite that a separate sentence should not be imposed under Section 279 IPC, and accordingly, he has set aside the sentence awarded by the trial Court.

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It is apposite to state here that there is a distinction between conviction and sentence. A conviction is the proof of the offence committed by an accused. It is the proof of guilt of the offence. The punishment component is the sentence. In Rama Narang v. Ramesh Narang reported in (1995) 2 SCC 513 a three-Judge Bench

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of this Court, after referring to Section 354 of the Code of Criminal Procedure, has stated that every judgment referred to in Section 353 of the Code, shall, inter alia, specify the offence of which the accused is convicted and the punishment to which he is sentenced. This Court, while dealing with the power of the High Court under Section 389 (1) of the Code, has observed that ordinarily an order of conviction by itself is not capable of execution under the Code, but it is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. It has been further stated that in certain situations, the order of conviction can be executable, in the sense, that it may incur a disqualification. We have referred to the aforesaid authority only

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to highlight that there is a distinction between a conviction and a sentence.

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In the instant case, as the judgment of the appellate Court would show, the view has been expressed that a separate sentence under Section 279 IPC is not necessary and, accordingly, the said sentence has been set aside. The reading of the entire judgment makes it graphically clear that the conviction under Section 279 IPC has not been annulled. It is noticeable that the rash and negligent driving by the accused that resulted in the causation of injuries to the persons travelling in the trailer has been proved. There is no cavil that some have been seriously injured and one person who was grievously injured breathed his last. Thus, the submission of the learned counsel for the appellant that he has been acquitted of the offence under Section 279 of IPC does not deserve

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acceptance, and accordingly we unhesitatingly repel the same.”

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Keeping in view the above aspect, the

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sentence of imposing fine for the offence punishable under Section 279 of IPC is liable to be set aside.

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The learned counsel for the

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petitioner/accused has contended that the accused is the student and if he is convicted, his future career would be affected. He further contends that the accident in question has taken place during the year 2008. If he is convicted and detained in jail, it is going to cause untold inconvenience and hardship and as such, he requested to take a lenient view.

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As per the principle enunciated by the Hon’ble Apex Court in the case of State of Karnataka vs Krishnappa @ Madhugiri reported in AIR 1987 SC 867, no fly bite sentence for the offence punishable under Section 304-A of IPC should be imposed and a

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minimum sentence of six months has to be imposed. The ratio in the above decision enumerates about minimum sentence, but it is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime as held in the case of Akram Khan vs State of West Bengal, reported in 2012(1) CRIMES 5 (SC), wherein it has been observed as under:

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“21. In Mulla and another vs State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decisions, this Court held as under:-

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It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose

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such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime.”

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Keeping in view the above proposition of law

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and on perusal of the entire records, though the petitioner/accused is aged about 34 years, the trial Court has imposed a sentence of six months for the offence punishable under Section 304-A of IPC and a fine of Rs.1,000/- in default to pay the fine amount, he has to undergo simple imprisonment for ten days. As per the decision quoted supra, for the offence punishable under Sections 304-A of IPC, a minimum sentence of six months has to be imposed and accordingly, the trial Court has imposed the minimum sentence of six months and a fine of Rs.1,000/-. Under such circumstances, showing further leniency does not arise at all and even no such special circumstances have also been notified by the petitioner/accused. In

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that light, the contention of the learned counsel for the petitioner/accused does not deserve any consideration.

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Keeping in view the above said facts and circumstances, I pass the following:

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ORDER.

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Accordingly the Criminal Revision Petition is allowed in part.

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The judgment and order of sentence passed by the trial Court and confirmed by the first appellate Court is modified. The sentence of imposing fine of Rs.1,000/- and in default to undergo simple imprisonment for ten days passed against the petitioner/accused for the offence punishable under Section 279 of IPC is set aside and the judgment and order of sentence passed by the trial Court for the offence under Section 304-A of IPC is confirmed and sentence is modified and the

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petitioner/accused has to pay fine amount of Rs.2,000/- and in default, he has to undergo simple imprisonment for a period of one month.

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Petitioner/accused is entitled for set off as per section 428 of Cr.P.C. The trial Court is directed to issue modified conviction warrant to the jail authorities forthwith.

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Registry is directed to send the copy of this order to trial Court forthwith and free copy of the order be furnished to the petitioner/accused or to his counsel.

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Sd/JUDGE

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NB* Ct: vk

Gundappa S/O Kallappa v. the State of Karnataka

Case brief

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Gundappa S/O Kallappa v. the State of Karnataka

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