Partly allowed

Sri Anil S/O Seetaram Lamani v. the State of Karnataka

Karnataka HC9 Aug 2017CRL.RP/2509/2012

Case brief

AI extract

What is this about?

High Court allowed criminal revision petition in partial. Court confirmed conviction for rash driving causing death under Section 304-A IPC but set aside the fine for the absorbed Section 279 IPC offence. Court modified the overall sentence, requiring the petitioner to pay Rs.2,000 fine or undergo one month simple imprisonment, denying probation.

What did the court decide?

Revision allowed part. Sentence for the absorbed Section 279 offence (Rs.1,000 fine) set aside; overall sentence modified to Rs.2,000 fine or one month simple imprisonment; probation denied.

Sri Anil S/O Seetaram Lamani Vs the State of Karnataka — Motor Accident Claims | 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.2509/2012

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Between:

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Anil S/o Seetaram Lamani Age: 30 years R/at Somadevarhatti Tanda No.1 Tq. & Dist. Bijapur

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... Petitioner

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(By Sri Sanjay Kulkarni, Advocate – Absent)

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And:

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The State of Karnataka Through Traffic Police Station Bijapur, Represented by High Court Public Prosecutor Circuit Bench, Gulbarga – 585 101

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… Respondent

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(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 call for records and allow this revision petition by acquitting the petitioner and set aside the order passed by III-Additional Sessions Judge, Bijapur, dated 31.10.2011 in Criminal Appeal No.125/2007 and the order passed by the JMFC-I Court, Bijapur, in C.C.No.472/2006 dated 29.11.2007 convicting the petitioner for imprisonment and fine under Sections 304A and 279 of IPC.

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This petition having been heard and reserved for orders on 25.07.2017, 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.125/2007 dated 31.10.2011 by the III-Additional Sessions Judge, Bijapur, whereunder the judgment and order of conviction and sentence passed by the JMFC-I Court Bijapur, in C.C.No.472/2006 dated 29.11.2007 has been confirmed for the offences punishable under Sections 279 and 304-A of IPC.

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The gist of the allegation as per the

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complaint are that, on 19.04.2006 at about 7.30 a.m., the deceased-Sarojini Gulagangi, her husband and son were proceeding on the left side of the road. At that time, petitioner/accused being the driver of the jeep bearing registration No.KA-28/M-2803 drove the same in a rash and negligent manner and dashed to the

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deceased and one of the wheel of the jeep run over the body of the deceased. In the same jeep, she was taken to the hospital and subsequently, she succumbed to the injuries and as such, a case was registered in Crime No.69/2006 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 judgment and order passed by the trial Court, the petitioner/accused filed the appeal before III-Additional Sessions Judge, Bijapur. 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

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remained absent. As such, the matter was reserved. Subsequently, the learned counsel for the petitioner has filed the written additional grounds by producing a citation and I have heard him.

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The main grounds urged by the learned counsel for the petitioner in his petition and in the subsequent additional grounds filed on 26.07.2017 are

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that the trial Court has not properly appreciated the evidence of the witnesses. He would contend that the Court below has failed to consider the material admissions, contradictions and omissions in the evidence of the witnesses. He would further contend that the petitioner/accused took the deceased to the hospital and got her admitted. Under the circumstances, the trial Court ought not to have believed the evidence of the eyewitnesses. He would also contend that the name of the petitioner/accused has not been mentioned in the complaint at the earliest point of time. This aspect has not been considered by

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the trial Court. He would further contend that the offence 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. He would further contend that there was no rash and negligent driving of the jeep by the petitioner, as such, the trial Court ought not to have convicted the accused/petitioner. He would also contend that the only evidence which is available before the Court below is that of P.Ws.1 to 4 and they are the interested witnesses and relatives of the deceased. Even they have not stated anything about the rash and negligent act of the petitioner and there is material contradiction in their evidence. On these grounds, he prayed to allow the petition.

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Per contra, the learned High Court Government Pleader by supporting the judgment and order passed by both the Courts below would contend that the eyewitnesses have categorically deposed about

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the rash and negligent act of the petitioner/accused. The accident in question has happened due to the rash and negligent act of the accused. He further contends that because of the rash and negligent act of the petitioner/accused the jeep went and hit the deceased and thereafter, the left side front wheel run over the deceased and as a result of the same, she 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 complainant and eyewitness. He is the

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son of the deceased. He has deposed that he was going for walk and at that time, his father and mother as usual were also proceeding for walk. On 19.04.2006 at about 7.30 a.m., when they were proceeding near Jain Temple cross and when they were in front of Korishatti cloth shop, a jeep bearing registration No.KA-28/M2803 came from back side and hit to his mother and as a result of the same, she fell down on the road and left

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side wheel of the jeep ran over the body of the deceased. Thereafter, when they shouted, the driver of the jeep took the jeep reverse. Thereafter, the injured was taken to BLDE Hospital and she died in the afternoon at about 12.20 p.m., and he has filed the complaint as per EX.P6. He has also identified the accused before the Court by saying that he was driving the jeep. During the course of cross-examination, it has been elicited that in front of Jain temple two wheelers will be parked and fruit vending pulling carts will also be there but the witness has voluntarily stated that at that time they were not there. It has been elicited that, in the complaint, he has not stated the name of the accused and he came to know only after the police told his name. He has also admitted that in the complaint at Ex.P6, he has not written that the left wheel of the jeep ran over the body of his mother.

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PW.2 is the father of the complainant and husband of the deceased.

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PWs.3 and 4 are the eyewitnesses to the alleged incident. They have all reiterated the evidence of PW.1 and further they have deposed that the accident has taken place due to the rash and negligent act of the driver of the jeep and they have identified the driver of the jeep who was present before the Court.

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PW.5 is the owner of the jeep. He has not supported the case of the prosecution.

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PW.6 is the PSI who registered the case and after investigation, filed the charge sheet against the accused.

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On careful consideration of the evidence which has been led before the trial Court, it would indicate that PWs.1 to 4 are the main eyewitness to the alleged accident. They have deposed that the driver of the jeep was driving the same rashly and negligently when he was proceeding in front of Jain Temple and as a result of the same, he dashed from the back side and

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due to the said impact, the deceased fell down and sustained injuries. Thereafter, she was taken to the hospital in the same jeep by the accused and due to the injuries sustained, she died. Though during the course of cross-examination of these witnesses they have tried to elicit that the name of the driver was not mentioned in the complaint, but it is an admitted fact that the accused has taken the deceased in his own jeep to the hospital and to that effect, the suggestion has also been made. When he himself has made suggestion during the course of cross-examination, that itself indicates that at the time of the alleged accident he was the driver of the jeep and the accident in question has occurred because of his rash and negligent act. In this behalf, the contention taken up by the learned counsel for the petitioner/accused is not acceptable. Though several inconsistencies were pointed out by the learned counsel for the petitioner/accused, those inconsistencies are not going to falsify the case of the prosecution and they are

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not material contradiction and inconsistencies. It is the duty of the Court to separate the grain from chaff. If the said principle is applied in this case and perused the evidence of PWs.1 to 4, it clearly indicate that the deceased and her husband were proceeding for walk in front of Jain Temple and at that time, the petitioner/accused being the driver of the jeep came in a high speed, rashly and negligently and caused the accident. They have also identified the accused before the Court. There is no material to discard the evidence of these witnesses. Under such circumstances, the petitioner/accused is liable to be convicted.

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On going through the evidence of PWs.1 to 4, it clearly indicates that the alleged accident has taken place due to the rash and negligent act of the petitioner/accused. Even there is consistency and corroboration in the evidence of all these witnesses. By relying upon such evidence, the trial Court has

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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

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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 eyewitnesses appears to be acceptable and trustworthy and it has to be taken 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

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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 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

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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 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

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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 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

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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 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

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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 acceptance, and accordingly we unhesitatingly repel the same.”

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Keeping in view the above aspects, the 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 petitioner/accused has contended that the petitioner/accused immediately after the accident has taken the injured to the hospital. He is aged about 36 years and has got dependents and he is the sole earning member in the family and as such, he prays for showing leniency and he also contends that the petitioner/accused is entitled for probation under the provisions of the Probation of Offenders Act.

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As per the principle enunciated by the

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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 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

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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 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 36 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 forty five days. As per the decision quoted supra, for the offence punishable under Section 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. Even when the petitioner/accused has caused the death of the deceased because of his rash and negligent act, he cannot be released under the provisions of Probation of Offenders Act. In that light, the decision quoted by the

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learned counsel for the petitioner/accused is not applicable to the present facts of the case. Hence, the contention of the learned counsel for the petitioner dose not require 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

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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 forty five 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

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offence under Section 304-A of IPC is confirmed and sentence is modified and the 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

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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

Sri Anil S/O Seetaram Lamani v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Anil S/O Seetaram Lamani v. the State of Karnataka

Case brief

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What did the court decide?

What the court decided

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