Partly allowed

Santosh S/O Vittal Badiger v. State of Karnataka

Karnataka HC9 Feb 2021CRL.RP/2174/2012

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition in part. The court confirmed the finding of guilt and conviction for offenses of rash driving and causing grievous hurt but set aside the concurrent sentences of imprisonment and fine, imposing a fine only as appropriate for traffic offenses.

What did the court decide?

Imposition of simple imprisonment of three months and six months was set aside and replaced with a fine of Rs. 1,000 for each of the offenses under Sections 279 and 338 of IPC. Petitioner released on

Santosh S/O Vittal Badiger Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^th DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2174/2012

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BETWEEN:

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SANTOSH S/O VITTAL BADIGER AGE 22 YEARS, OCC:DRIVER R/O TEACHER’S COLOY, MUDHOL, DIST. BAGALKOT.

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.. PETITIONER

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(BY SRI. R.M. JAVEED, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY SPP HIGH COURT CIRCUIT BENCH, DHARWAD.

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.. RESPONDENT

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(BY SRI.RAMESH B. CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.06.2012 PASSED BY THE FAST TRACK COURT, JAMKHANDI IN CRL.A.75/2011 REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC, JAMKHANDI IN CC NO.300/2010 DATED 29.10.2011 AND CONSEQUENTLY ACQUIT THE APPELLANT OF THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 338 OF IPC AND SEC. 187 OF MV ACT, 1988 IN THE INTEREST OF JUSTICE.

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THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This criminal revision petition is filed by the

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petitioner/accused under Section 397 of the Code of Criminal Procedure, 1973, being aggrieved by the judgment of conviction and sentence dated 29.10.2011 passed by the learned Principal Civil Judge and JMFC, Jamkhandi, in CC No.300/2010 (hereinafter referred to as the ‘trial Court’, for brevity) and confirmed by the Fast Track Court, Jamkhandi, in Crl.A. No.75/2011 dated 30.06.2012 (hereinafter referred to as the ‘first appellate Court’, for brevity) whereby the trial Court has convicted the accused for the offence punishable under Sections 279 and 338 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’, for brevity) and under Section 187 of Motor Vehicles Act, 1988 (hereinafter referred to as the ‘MV Act,’ for brevity) and sentenced to undergo simple imprisonment for 3 months with fine of Rs.1,000/- for the offence under Section 279 of IPC in default of payment of fine to undergo further simple imprisonment for 10 days and further sentenced to

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undergo simple imprisonment for 6 months with fine of Rs.1,000/for the offence under Section 338 of IPC in default of payment of fine, to undergo further simple imprisonment for 10 days and the accused was sentenced to pay a fine of Rs.500/- for the offence under Section 187 of MV Act in default of payment of fine, to undergo simple imprisonment for 5 days.

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Heard the arguments of the learned counsel for the

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petitioner and the learned High Court Government Pleader for the respondent-State.

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The rank of the parties before the trial Court is retained

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for convenience.

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The case of the prosecution is that the Town Police, Jamkhandi, filed charge-sheet against the accused for the offence punishable under Sections 279 and 338 of IPC and under Section 187 of MV Act. It is alleged in the charge sheet that on 17.08.2010 at about 10.30 am, the accused being the driver of Indica Vista car bearing registration No.KA-48-M2405 drove the same from Desai circle towards Ashok circle in a rash and negligent manner so as to endanger human life and dashed to Hero Honda motorcycle

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bearing registration No.KA-29K-2061 moving in front of him while overtaking it due to which PW-3-Basavaraj Shivaji Mane sustained grievous injuries. The accused without intimating the police and also not providing any treatment to the injured, fled away from the place of occurrence. Hence, committed the aforesaid offences. The accused faced trial after denying the charges. The prosecution examined 11 witnesses and 11 documents were got marked. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused is one of total denial. The accused did not lead any defence evidence. The trial Court, after hearing the arguments, found the accused guilty and accordingly convicted and sentenced the accused as stated supra. Being aggrieved by the same, the accused preferred an appeal before the first appellate Court which also came to be dismissed confirming the judgment of conviction and sentence passed by the trial Court. Hence, the petitioner is before this Court.

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Learned counsel for the petitioner contended that the judgment of conviction and sentence passed both the Courts below

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is not sustainable in law. There is lot of contradictions in the evidence of the witnesses. All the witnesses are interested witnesses. No independent witnesses have been examined. Both the Courts below have not appreciated the evidence of the prosecution in proper perspective. Further the learned counsel alternatively contended that the alleged offence is under 279 and 338 of IPC causing grievous injury to a person but the trial Court has passed sentence of both imprisonment as well as fine which is disproportionate to the offence committed by the accused. Even the trial Court could have passed sentence of fine by imposing maximum fine but it is not a case of imposing sentence of both the imprisonment and fine. Learned counsel further submitted that the accused has undergone fifteen days imprisonment after dismissal of the appeal by the first appellate Court. Therefore, prayed for setting aside the impuged judgment of conviction and sentence passed by the Courts below.

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Learned High Court Government Pleader for the respondent-State supports the impugned judgment of conviction and sentence passed by the Courts below and fairly admits that this

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is not a case of awarding harsh punishment of both the imprisonment as well as fine.

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I have considered the arguments of the learned counsel for the petitioner and learned Government Pleader and perused the records.

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The prosecution to prove its case, examined 11

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witnesses and marked 11 documents. The complainant/injured is examined as PW-1. Ex.P-9 is the wound certificate of the complainant and the prosecution also examined PW-3-pillion rider, who had accompanied the complainant and also an eyewitness to the incident who has categorically given evidence before the Court. PW-2 is a pancha to spot mahazar, PW-4 is another eyewitness and scribe of the complaint. PW-5 is an eyewitness, who supported the case of the prosecution. PW-6 is the father of the accused and owner of the vehicle, who got released the vehicle. PWs.7 and 8 are the witnesses for the vehicle seizure panchanama, PW-10 is the Medical Officer who examined PW-3 and issued certificate as per Ex.P-9 corroborates the evidence of PW-3 and PW-1 regarding cause of accident and based on the evidence of the prosecution

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witnesses, the trial Court found the accused guilty and convicted him and the first appellant Court on re-appreciating the evidence also found the accused guilty of the offence charged and the same does not call for interference.

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However, as regards the punishment of sentence both imprisonment and fine passed by the trial Court is simple imprisonment for three months for the offence punishable under Section 279 of IPC and fine of Rs.1,000/- and simple imprisonment for six months with fine of Rs.1,000/- for the offence under Section 338 of IPC. As noted above itself, the sentence imposed by the trial Court is not proportionate to the offence committed. As per Section 279 and 338 of IPC, the provision itself prescribes imprisonment or fine or with both. The maximum fine amount is Rs.1,000/- for each of the offence under Section 279 and 338 of IPC and Rs.500/- for offence under Section 187 of MV Act. Such being the case, imposition of fine as well as imprisonment for three months/six months is not proportionate to the offence committed by the accused. That apart, the trial Court ought to have exercised the power under Section 265A of Cr.P.C. and persuaded the

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accused for pleading guilty on the ground of plea bargaining instead of conducting the trial and that the trial court ought to have imposed fine, if the accused had pleaded guilty for the said offence as if it is a traffic offence. Therefore, instead of wasting the time for recording the evidence of eleven witnesses and conducting trial for more than two years, it ought to have imposed only fine and pleaded guilty of the accused. The first appellate Court has also not considered the same and mechanically passed the judgment upholding the sentence passed by the trial Court, which is not correct. Therefore, this Court finds that the finding of guilt of the accused cannot be set aside. However, the sentence of imprisonment passed by the trial Court and upheld by the first appellate Court can be modified by imposing only fine by setting aside the imprisonment of three months and six months for the offence under Sections 279 and 338 of IPC.

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Accordingly, I pass the following order.

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The Criminal Revision Petition is allowed in part. The

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finding of guilt and conviction of the accused for the offence punishable under Sections 279 and 338 of IPC and under Section

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187 of MV Act passed by the trial Court and upheld by the first appellate Court is confirmed. However, the imposition of sentence is modified. The imposition of sentence of three months and six months for the offence under Sections 279 and 338 of IPC is set aside by imposing fine of Rs.1,000/- only for each of the offence. The imposition of fine of Rs.500/- for the offence under Section 187 of MV Act passed by the trial Court is confirmed.

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It is submitted that the fine amount is already paid by the accused before the trial Court on 29.10.2011. Therefore, petitioner is set at liberty. His bail bond stands cancelled.

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Sd/JUDGE

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kmv

Santosh S/O Vittal Badiger v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Santosh S/O Vittal Badiger v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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