Dismissed

Niyajbasha S/O. Abdul Rahaman v. the State of Karnataka

Karnataka HC19 Mar 2021CRL.RP/2242/2012

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court of Karnataka dismissed the plea seeking to set aside the conviction and sentence of the accused for rash and negligent driving causing death. The Court upheld the prosecution's evidence and rejected arguments for sentence leniency, confirming the Appellate Court's order.

What did the court decide?

Criminal Revision Petition dismissed as devoid of merits.

Niyajbasha S/O. Abdul Rahaman Vs the State of Karnataka — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL REVISION PETITION No.2242/2012

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BETWEEN:

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NIYAJBASHA S/O ABDUL RAHAMAN, AGE: 50 YEARS, OCC: MECHANICAL ENGINEER, R/O: NO.37, BAFNA LAYOUT, GUDIHAL CROSS ROAD, KARWAR ROAD, HUBLI-580026, DHARWAD DISTRICT.

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…..REVISION PETITIOINER

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(BY SRI: H.R.GUNDAPPA, ADV.)

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AND:

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THE STATE OF KARNATAKA, TRAFFIC POLICE STATION, DHARWAD, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD, THROUGH TRAFFIC POLICE 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 READ WITH 401 OF Cr.P.C. SEEKING TO CALL FOR THE RECORDS AND ALLOW THIS REVISION PETITION AND MAY EXERCISE INHERENT POWER BY SETTING ASIDE

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THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.120/2010, DATED 16.07.2012 BY CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE RECORDED BY THE PRINCIPAL SENIOR CIVIL JUDGE ND CJM COURT, DHARWAD IN CC NO.241 OF 2008 DATED 14.10.2010 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT PASSED THE FOLLOWING :

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ORDER

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The revision petitioner/accused is before this Court assailing the judgment dated 14.10.2010 passed in C.C.No.241/2008, on the file of learned Principal Senior Civil Judge and CJM, Dharwad (for short ‘the Trial Court’), convicting the accused for the offence punishable under Sections 279 and 304-A of the Indian Penal Code (hereinafter referred to as ‘the IPC’ for the sake of brevity) and sentencing him to pay a fine of Rs.800/-, in default to undergo simple imprisonment for a period of one month for the offence punishable under Section 279 of IPC and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default to pay fine, to undergo simple imprisonment for a period of one month for the offence punishable under Section 304-A of IPC. The judgment of

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conviction passed by the Trial Court is confirmed in Criminal Appeal No.120/2010 by the learned Principal District and Sessions Judge, Dharwad (for short ‘the Appellate Court’), vide judgment dated 16.07.2012.

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Brief facts of the case are that, the informantShiva Gangavva lodged the first information before the Traffic Police, Dharwad, against the accused stating that he being the rider of motorcycle bearing Registration No.KA-32/Q-5190, drove the same in a high speed and in rash and negligent manner, so as to endanger the human life and dashed to the deceased-Shankravva Ganiger, who was crossing the road at the scene of occurrence, which has resulted in her death. Therefore, she requested the police to register the case and to initiate legal action against the accused for the offences punishable under Sections 279 and 304-A of the IPC. After registering the case, the investigation was undertaken and charge sheet was filed by the Investigating Officer.

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Learned Magistrate took cognizance for the offences registered in C.C.No.241/2008 and summoned the accused to appear before the Trial Court to answer the

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charge. The accused appeared before the Trial Court and pleaded not guilty for the above said offences and claimed to be tried. The prosecution examined PWs.1 to 10 and got marked Exs.P1 to P12 in support of its contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence.

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The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict and sentence the accused for the offences as stated above. Assailing the said judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred Criminal Appeal No.120/2010 before the Appellate Court. The Appellate Court once again considered the materials on record and dismissed the appeal, as the same is devoid of merits.

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Being aggrieved by the impugned judgment of

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conviction and order of sentence passed by the Trial Court,

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which was confirmed by the Appellate Court, the accused is before this Court in revision, seeking to set aside both the judgments, in the interest of justice.

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Heard Sri.H.R. Gundappa, learned counsel for the revision petitioner and Sri.Ramesh B Chigari, learned High Court Government Pleader for the respondent-State. Perused the materials including the Trial Court records.

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Learned counsel for the revision petitioner submitted that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt. PWs.2, 3, 5 and 6 are cited as eye witnesses to the incident. None of these witnesses have supported the case of prosecution. The Trial Court proceeded to convict the accused only on the basis of interested testimony of PW1, who is the younger sister of the deceased. Admittedly, the incident had occurred during night hours on the National Highway. The accident had occurred in the middle of the road. Therefore, it is clear that there was no rash and negligent driving by the accused. On the other hand, the deceased herself was negligent and fallen on the road, sustained injuries and subsequently succumbed

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to the same. Therefore, he requested for setting aside the impugned judgment of conviction and order of sentence passed against the accused.

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Alternatively, learned counsel relied on the decision of the Co-ordinate Bench of this Court passed in Criminal Revision Petition No.1022/2011 vide judgment dated 21.12.2018, wherein, the quantum of sentence imposed for the offence punishable under Section 304-A of the IPC was modified and the accused in the said case was sentenced to pay a fine of Rs.25,000/- after setting aside the order of sentence of undergoing imprisonment for six months and paying fine of Rs.1,000/-.

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Learned counsel also relied on the decision of the

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Co-ordinate Bench of this Court dated 11.03.2019 in Criminal Revision Petition No.2075/2011, wherein, this Court modified the order of sentence for the offence punishable under Section 304-A of the IPC and instead of undergoing sentence of imprisonment, accused therein was sentenced to pay a fine of Rs.75,000/-. Relying on these decisions of the Co-ordinate Benches of this Court, learned counsel for the revision

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petitioner submitted that leniency may be shown in favour of the present revision petitioner, as he is now aged 60 years and he is in the fag end of his service. He is not involved in any criminal antecedents. Therefore, it is a fit case for showing leniency in sentencing the accused.

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Per contra , learned High Court Government Pleader opposing the contention taken by the revision petitioner submitted that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The accident in question had occurred on Bengaluru-Pune Highway in front of SDM Medical College in between Dharwad-Hubli road. PW1 is the eye witness, who was proceeding along with the deceased at the time of incident. Immediately, after the accident, she has given first information as per Ex.P1 mentioning the name of accused and also stating that he was riding the motorcycle in question in a rash and negligent manner and dashed to the deceased. As a result of which, she sustained fatal injuries. Subsequently, she succumbed to the injuries. PWs.6 and 7 are the independent eye witnesses, who have also supported the case of prosecution. Even though, these eye witnesses are cross examined, nothing has been

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elicited from them to disbelieve their version. Considering these materials on record, the Trial Court and the Appellate Court found that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. There are no reasons to interfere with the same and prays for dismissal of the petition.

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Learned High Court Government Pleader also relying on the decisions of Hon’ble Apex Court in the cases of State of Karnataka Vs. Krishna alias Raju¹ and State of Punjab Vs. Balwindar Singh and other s² and the order of Co-ordinate Bench of this Court dated 30.03.2017 passed in Criminal Revision Petition No.2600/2011 contended that, when the offence under Section 304-A of IPC is proved, minimum sentence of six months imprisonment is required to be imposed on the accused. He submits that the Trial Court after properly appreciating the materials on record found the accused guilty and imposed proportionate imprisonment on the accused, which do not call any interference by this Court. Hence, he prays for dismissal of the revision petition.

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1 AIR 1987 SC 861

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2 (2012) 2 SCC 182

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that arises for my consideration is:

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“Whether the revision petitioner has made out any grounds for interference in the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the Appellate Court?”

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My answer to the above point is in the

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‘Negative’ for the following:

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REASONS

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It is the contention of prosecution that the

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accused being the rider of motorcycle bearing Registration No.KA-32/Q-5190, was riding the same from Dharwad towards Hubli on 21.04.2008 at 7.45 p.m. and dashed to the deceased, while she was crossing the road along with PW1, which has resulted in the death of injured-Shankravva. Thereby, the accused committed the offences punishable under Sections 279 and 304-A of the IPC.

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To prove its contention, the prosecution examined PW1- the informant eyewitness. The witness specifically

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stated that the accused was riding the motorcycle in question on the date of incident and was riding the same from Dharwad to Hubli. He dashed his motorcycle to Smt.Shankravva, which has resulted in grievous hurt. Thereafter, the injured succumbed to the injuries, while she was taking treatment. Accused being the rider of motorcycle is responsible for the death of the deceased.

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PW6 is the independent witness to the incident. This witness even though has not fully supported the case of prosecution, stated that the motorcycle in question was being ridden in high speed and rash and negligent manner and dashed to the lady, who was crossing the highway. However, the witness has not identified the accused nor stated the Registration Number of the vehicle in question. PW7 is also an independent eyewitness who fully supported the case of prosecution and also identified the accused as the author of crime. PWs.6 and 7 were cross examined by the learned counsel for the accused at length, but nothing has been elicited from them to disbelieve their version. It is specifically stated to this witness that the deceased herself fell down on

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the highway and sustained injuries. These suggestions were specifically denied by these witnesses.

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The tenor of cross examination of these witnesses go to show that the accused is not disputing the factum of accident, death of deceased and also the fact that he was the rider of motorcycle in question at the time of incident.

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The prosecution is relying on the inquest mahazar Ex.P3, which relates to the injuries sustained by the deceased. Ex.P6 is the post mortem report, where simple injuries sustained by the deceased are noted and the Doctor, who issued the post mortem report has opined that the death was due to head injury sustained by the deceased. Ex.P8 is the spot mahazar. Ex.P9 is the spot sketch. As per these documents, the accident had occurred in the middle of the highway, leading from Dharwad to Hubli. The width of the highway at the scene of occurrence is 23 feet, having kaccha road, measuring 6 feet on either side. The accident had occurred about 6 feet away from the northern edge of the highway. Taking into consideration all these materials on record and also the evidence led by PWs1, 6 and 7, I am of

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the opinion that the prosecution is successful in proving the guilt of the accused for the above said offences.

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I do not find any merits in the contention taken by the learned counsel for the revision petitioner. When the accused has not denied that he was riding the motorcycle in question, nor he has denied the factum of accident, merely suggested that the deceased herself came and fell beneath the motorcycle, could not be believed. The accused has not given any explanation in the statement recorded under Section 313 of Cr.P.C., nor stepped into the witness box deposing regarding his defence. Under such circumstances, I do not find any merit in the contention taken by the learned counsel for the revision petitioner.

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Referring to the alternative contentions raised by the learned counsel for the revision petitioner, for modifying of the sentence imposed for the offence punishable under Section 304-A of IPC, I have gone through the decisions rendered by the Co-ordinate Benches of this Court in the case of Shivakumar @ Nataraj S/o Siddalingaiah and Sri. Sunil S/o Manik Kadapatti . The Co-ordinate Bench of this

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Court showed leniency towards the accused by modifying the sentence and imprisonment for the offence punishable under Section 304-A of IPC and imposed only fine amount. But the Hon’ble Apex Court in State of Karnataka Vs.Krishna alias

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Raju (supra), considered the lenient view that is being shown to the accused, convicting for the offence punishable under Section 304-A of IPC held as under:

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“6. The utter disregard shown by the Magistrate to the nature of the offences, particularly the one under S.304-A I.P.C., and the sentences provided for them under the Penal Code and the Motor Vehicles Act, by imposing what may be termed as ‘flea-bite’ sentences on the respondent, should have spurred the High Court to not only pass appropriate strictures against the Magistrate but also to set right matters by enhancing the sentence at least for the conviction under S.304-A I.P.C. to a conscionable level in exercise of its power under S.377 I.P.C.

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8. We are, therefore, constrained to do what the High Court should have done but, failed to do viz. enhance the

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sentence in the interests of justice. We, however, feel that the ends of justice would be met by enhancing the sentence for the most serious of the charges for which the respondent has been convicted viz. the charge under S.304-A I.P.C. According, we enhance the sentence for the conviction under S.304-A I.P.C. to six months R.I. and fine of Rs.1,000/- in default to undergo R.I. for two months. We leave undisturbed the other convictions and sentences”

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The Hon’ble Apex Court in State of Punjab Vs. Balwindar Singh and others (supra), reiterated the position of law and held as under:

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“13.It is settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have a better training in traffic laws and moral responsibility with specific reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC

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as attracting the benevolent provisions of Sections 4 of the Probation of Offenders Act, 1958. we fully endorse the view expressed by this Court in Dalbir Singh³ .

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14. While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the court.

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15. For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt.

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16. In the light of the above principles, we express our inability to accept the reasoning of the High Court in reducing the

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3 (2008) 5 SCC 730

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sentence of imprisonment to the period already undergone, that is, 15 days. Merely because the fine amount has been enhanced to Rs.25,000/- each, is also not a sufficient ground to drastically reduce the sentence, particularly, in a case where five persons died due to negligent act of both the drivers, of the bus and the truck. Accordingly, we set aside the impugned order of the High Court and impose a sentence of rigorous imprisonment for six months with a fine of Rs.5000/- each. The trial court is directed to taken appropriate steps for surrender of the accused in both the appeals to serve the remaining period of sentence. The appeals are allowed to the extent mentioned above.”

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(Emphasis supplied)

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The Co-ordinate Bench of this Court in Shivaraj

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S/o Arjungonda (supra) followed the dictum laid down by the Hon’ble Apex Court and confirmed the quantum of sentence imposed by the Trial Court, refusing to modify the sentence of imprisonment for payment of fine only.

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In view of the above, now it is settled proposition

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of law that the sentence that is to be imposed on the accused

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should be proportionate to the offence in question in the present case. On account of rash and negligent driving, the accused caused the death of deceased-Shankravva. Once the guilt is proved for the above said offences, the accused is convicted by the Trial Court and the same is confirmed by the Appellate Court. The Trial Court has shown leniency in sentencing the accused for the offence punishable under Section 304-A of IPC, and sentenced to undergo imprisonment only for a period of six months. Under such circumstances, I do not find any reason to further modify the order of sentence. Hence, I am of the opinion that there are no merits in the contention taken by the revision petitioner. Accordingly, I answer the above point in the ‘Negative’.

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The Criminal Revision Petition is dismissed as devoid of

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merits.

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Sd/JUDGE

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KGK

Niyajbasha S/O. Abdul Rahaman v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Niyajbasha S/O. Abdul Rahaman v. the State of Karnataka

Case brief

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