Partly allowed

Babu v. the State of Karnataka

Karnataka HC22 Jul 2021CRL.RP/431/2012

Case brief

AI extract

What is this about?

In a criminal revision petition challenging conviction and sentence for vehicular accident causing death, the High Court upheld the conviction but modified the sentence. Finding the sentence for Section 304A too high despite available evidence of a tyre burst, the court reduced the term to six months, directing surrender within six weeks.

What did the court decide?

Sentence for offence under Section 304(A) IPC modified to six months simple imprisonment; accused to surrender within six weeks.

Babu Vs the State of Karnataka — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.431 OF 2012

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BETWEEN :

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BABU S/O GAFOOR SAB, NOW AGED ABOUT 37 YEARS, R/O AT SRINIVASANAGARA, NEAR R.M.C. YEAR, ARASIKERE, HASSAN DISTRICT.

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…PETITIONER

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(BY SMT. S. NIRAMMALA, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA, KADUR P.S., KADUR, CHIKKAMAGALURU DISTRICT.

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…RESPONDENT

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(BY SRI SHOWRI. H.R., 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 ORDER DATED 06.11.2007 PASSED BY THE PRL. CIVIL JUDGE (JR. DN.) AND JMFC, KADUR IN C.C.NO.113/2000 AND ORDER DATED 01.09.2010 PASSED BY THE P.O., FTC, CHIMAGALUR IN CRL.A.NO.95/2007.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY THROUGH VIDEO CONFERENCING, THE COURT MADE THE FOLLOWING:-

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ORDER

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This revision petition is filed by the accused, who has been convicted in Criminal Case No.113/2000 for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC which was confirmed in Crl.A.No.95/2007 on the file of the Fast Track Court, Chikmagalur by judgment dated 01.09.2010.

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Brief facts which are necessary for the disposal of the revision petition are as under:

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A complaint came to be lodged stating that on 07.09.1999 at 03.30 P.M. near Shivagange farm on B.H.Road, accused being the driver of a Van bearing Reg.No.KA-13/2833, drove the same in a rash and negligent manner, endangering to the human life and dashed against a tree wherein CWs.2 to 12, who are the inmates of the van sustained simple injuries and CWs.13 to 20 sustained grievous injuries and loss of life of

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Krishnappa, Bairanaika, Nataraja and Jayanna. Police investigated the matter and filed the charge sheet against the accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC.

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Trial Magistrate took cognizance of the

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aforesaid offences and recorded plea wherein, the accused pleaded not guilty and trial was held.

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In order to bring home guilt of the accused, prosecution examined 18 witnesses as PW.1 to PW.18 and relied on 36 documentary evidences which are exhibited and marked as Exs.P.1 to P.36. On behalf of defense, Sri Khaleem was examined as DW.1.

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On conclusion of prosecution of evidence, learned Magistrate recorded the statement of the accused under Section 313 of Cr.P.C. wherein, the accused has denied all incriminating circumstances that were put to him found in the case of the prosecution

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Learned trial Magistrate on hearing the parties

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in detail on merits, recorded a finding that accused is guilty of offences punishable under Sections 279, 337, 338 and 304(A) of IPC and ordered following sentences;

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Offence	Punishment	Fine (in Rs.)
279	--	1,000/- In default, si imprisonment 30 days.	mple for
337	--	500/- In default, si imprisonment 30 days.	mple for
338	--	1000/- In default, si imprisonment 30 days.	mple for
304(A)	Simple imprisonment for one year	2,000/- In default, si imprisonment 6 months.	mple for

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Being aggrieved by the said judgment, the accused preferred an appeal before the Fast Track Court, Chikmagalur which was numbered as Crl.A.No.95/2007.

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Learned Judge in the First Appellate Court

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secured the records and after hearing the arguments in

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detail, confirmed the judgment passed by the learned trial Magistrate and dismissed the appeal.

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Being aggrieved by the same, accused is before this Court in this revision petition.

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Learned counsel for the revision petitioner Smt. S. Nirmala vehemently contended that both the Courts have wrongly convicted the accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC.

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She specifically contended that PW.4, who is the complainant and alleged eyewitness to the accident and PWs.1 to 15 are also eyewitnesses to the accident and PW.16 is the ARTO. She further contended that the IMV report marked at Ex.P.35 clearly shows that the front tyre on the left side of the Van got burst and the same was caused to the accident and therefore, the action attributed to the accused cannot be countenanced in law and the accident has occurred on account of the mechanical

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defects and beyond the control of the accused and therefore, sought for allowing the revision petition.

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Alternatively, she contended that the tyre burst being the reason for the accident, the Court may consider the period spent by the revision petitioner of 9 days in custody be treated as period of imprisonment and impose reasonable fine and allow the revision petition to that extent.

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She further contended that both the Courts have failed to note that it is the act of god and therefore lenience may be shown to the accused.

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Per contra, Sri Showri H. R., learned HCGP supported the impugned judgment and contended that in the case on hand, about ten persons have sustained simple injuries and eight persons have sustained grievous injuries and four deaths have taken place in the accident and therefore, absolutely there cannot be any mercy to be

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shown to the accused and prayed for dismissal of the revision petition.

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In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for consideration are as follows:

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1. Whether the finding recorded by the learned Magistrate and confirmed by the First Appellate Court that the accused is guilty of offences punishable under Sections 279, 337, 338 and 304A of IPC, is suffering from legal infirmity, perversity or patent error so as to call for interference by this Court?

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2. Whether the sentence is excessive?

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In the case on hand, the accident is not in dispute and the same is established by placing necessary evidence on record though accused has denied the accident while recording the statement of the accused under Section 313 of Cr.P.C.

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The testimony of the eyewitnesses who are the

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inmates of the vehicle involved in the accident has been believed by the learned Magistrate in reaching a finding that it is the negligent driving of the accused resulting in the accident. However, on record, there is oral testimony of PWs.11 and 13 which discloses that front tyre on the left side of the vehicle got burst. Whether the accident occurred on account of burst of the tyre or in the accident, tyre got burst is not established by placing necessary evidence by the accused. In fact, accused did not offer any explanation whatsoever to the accident.

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In a matter of this nature, the accused is bound to place his version on record so as to appreciate the incident.

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Such an opportunity was there in the case when the trial Court recorded the statement of the accused as contemplated under Section 313 of Cr.P.C., For the reasons best known to the revision petitioner, he did not offer any explanation whatsoever to the incident. In fact,

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he is the best person to say whether the tyre got burst which resulted in losing of control of the vehicle and ultimately hitting the tree in order to avoid further damage to the inmates of the vehicle or after the vehicle dashed against the tree, the tyre got burst. In the absence of any such evidence on record, mere oral testimony of PWs.11 and 13 stating that there was a burst of front tyre on the left side of the vehicle involved in the accident, cannot be given much credence.

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In this regard, view of this Court is fortified by the judgment of the Hon’ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284 at paragraph 39, it has been held as under:

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"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide

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an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

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All these factors when viewed cumulatively, the material available on record, clearly establishes that it is the rash and negligent driving of the accused which resulted in the accident and may be the fact of burst of the front tyre on the left side of the vehicle has also contributed to the accident.

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In the absence of any evidence on record to the effect that the accident has occurred beyond human control and the accident has occurred on account of loss of control over the vehicle and tyre burst, the finding recorded by the trial Magistrate confirmed by the First

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Appellate Court that accused is responsible for the accident, needs interference.

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Insofar as sentence is concerned, the trial Magistrate has passed sentence as referred to supra. The same is confirmed by the First Appellate Court without much discussion.

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There is some force in the argument put forth on behalf of the revision petitioner Smt. Nirmala that the material available on record namely the burst of the front tyre on the left side of the vehicle cannot be lost sight of while passing appropriate sentence.

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What are the principles that govern for passing an order of appropriate sentence in a matter of this nature is no longer res integra . In this regard this court gainfully places reliance on the judgment of the Hon’ble Apex Court in the case of State of Punjab Vs. Saurabh Bakshi, reported in (2015) 5 SCC 182, wherein it has been held as under:

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" 8. It is submitted by Mr.Madhukar that when the prosecution had been able to establish the charges levelled against the respondent and both the trial court and the appellate court had maintained the sentence there was no justification on the part of the High Court to reduce the sentence to the period already undergone solely on the basis that the respondent had paid some compensation. It is his further submission that keeping in view the gravity of the offence that two deaths had occurred the High Court should have kept itself alive to the nature of the crime and should have been well advised not to interfere with the quantum of sentence. He has commended us to the decisions in State of Punjab v. Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] and Guru Basavaraj v. State of Karnataka [Guru Basavaraj Vs. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri)972] .

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9. Ms Meenakshi, learned Senior Counsel, per contra, has contended that the respondent was quite young at the time the accident took place and it may be an act of negligence, but the

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contributory facet by the Maruti car driver cannot be ruled out. That apart, there are mitigating circumstances for reduction of the sentence and in the obtaining factual matrix the High Court has appositely adopted corrective machinery which also reflects the concept of proportionality. The learned Senior Counsel would also submit that when the High Court has exercised the discretion which is permissible under Section 304-A IPC this Court should be slow to interfere. It is urged by her that when the compensation had been paid, the High Court has kept in view the aspect of rehabilitation of the victim and when that purpose have been subserved the reduction of sentence should not be interfered with. The learned Senior Counsel has drawn inspiration from Gopal Singh v. State of Uttarakhand [Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] and a recent judgment in Criminal Appeal No. 290 of 2015 titled State of M.P. v. Mehtaab [State of M.P. v. Mehtaab, (2015) 5 SCC 197 : (2015) 2 Scale 386].

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10. At the outset, it is essential to note that the respondent stood convicted by the trial court as well as by the appellate court. The findings recorded by the said two courts are neither

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perverse nor did they call for interference in exercise of the revisional jurisdiction. The High Court as we notice has been persuaded by the factum of payment of compensation by the respondent herein, amounting to Rs 85,000 to the legal representatives of deceased Jagdish Ram and his nephew and the said compensation had been directed to be paid by virtue of the order dated 19-9-2013 [Saurabh Bakshi v. State of Punjab, Criminal Revision No. 2955 of 2013, order dated 19-9-2013 (P&H)] passed by the High Court. It is submitted by Ms Arora that apart from the young age of the respondent at the time of occurrence the aforesaid aspect would constitute the mitigating factor.

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11. In Mehtaab case [State of M.P. VS. Mehtaab, (2015) 5 SCC 197 : (2015) 2 Scale 386] a two-Judge Bench was dealing with the case under Section 304-A IPC wherein the respondent was convicted under Sections 304-A and 337 IPC and sentenced to undergo one year's and three months' rigorous imprisonment, respectively. The High Court had reduced the sentence to 10 days. It is apt to note here that in that case the deceased had received injuries due to shock of electric current. The Court took

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note of the submission of the learned counsel for the State and proceeded to opine as follows: (SCC p. 199, paras 6-7)

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“6. The learned counsel for the State submitted that the respondent-accused had installed a transformer in his field and left the electric wires naked which was a negligent act. The deceased Sushila Bai died on account of the said naked wire which had high voltage and was not visible in the dark. The offence having been fully proved by the evidence on record, the High Court was not justified in reducing the sentence to 10 days which was not just and fair. Even if liberal view on sentence of imprisonment was to be taken, the High Court ought to have enhanced the sentence of fine and awarded a reasonable compensation as a condition for reduction of sentence.

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7. We find force in the submission. It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given

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due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim. Unfortunately, these factors are missing in the impugned order. No cogent reason has been assigned for imposing only 10 days' sentence when an innocent life has been lost.”

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12. After so stating the Court referred to the decision in Suresh v. State of Haryana [(2015) 2 SCC 227 : (2015) 2 SCC (Cri) 45] and enhanced the compensation taking note of the financial capacity of the accusedrespondent therein, and directed as follows: (Mehtaab case [State of M.P. v. Mehtaab, (2015) 5 SCC 197 : (2015) 2 Scale 386] SCC p. 200, paras 10-11).

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“10. As already observed, the respondent having been found guilty of causing death by his negligence, the High Court was not justified in reducing the

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sentence of imprisonment to 10 days without awarding any compensation to the heirs of the deceased. We are of the view that in the facts and circumstances of the case, the order of the High Court can be upheld only with the modification that the accused will pay compensation of Rs 2 lakhs to the heirs of the deceased within six months. In default, he will undergo RI for six months. The compensation of Rs 2 lakhs is being fixed having regard to the limited financial resources of the accused but the said compensation may not be adequate for the heirs of the deceased. In such a situation, in addition to the compensation to be paid by the accused, the State can be required to pay compensation under Section 357-A CrPC.

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11. As per the judgment of this Court in Suresh [(2015) 2 SCC 227 : (2015) 2 SCC (Cri) 45] , the scheme adopted by the State of Kerala is applicable to all the States and the said scheme provides for compensation up to Rs 5 lakhs in the case of death. In the present case, it will be appropriate, in the interests of justice, to

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award interim compensation of Rs 3 lakhs under Section 357-A CrPC payable out of the funds available/to be made available by the State of Madhya Pradesh with the District Legal Services Authority, Guna. In case the accused does not pay the compensation awarded as above, the State of Madhya Pradesh will pay the entire amount of compensation of Rs 5 lakhs within three months after expiry of the time granted to the accused.”

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13. In our considered view the decision in the said case has to be confined to the facts of that case. It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of sentence.

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14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial

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Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction: (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12)

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“12. … ‘1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil

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is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."

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Applying the principles of law enunciated in the aforesaid decision to the case on hand, in view of the fact that there is a material available on record that there was a burst of the tyre, to that extent, benefit needs to be given to the accused. Therefore, this Court is of the considered opinion that awarding one year imprisonment to the accused is on the higher side for the offence punishable under Section 304(A) of IPC and the same needs to scaled down to six months. Rest of the sentence and imposition of fine needs no interference.

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Accordingly point No.2 is answered partly in the affirmative and following order is passed:

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ORDER

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(i) Revision petition is allowed in-part.

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(ii) While maintaining the conviction of the accused for the offence punishable under Sections 279, 337, 338 and 304(A) of IPC, the sentence of imprisonment ordered by the trial Magistrate and confirmed by the First Appellate Court insofar as the offence under Section 304(A) of IPC, is modified and accused is directed to undergo Simple Imprisonment for a period of six months for the said offence.

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(iii) Accused is on bail and he is directed to surrender before the trial Court for serving the remaining part of sentence within six weeks from the date of this order.

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Office is directed to return the trial Court records

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with copy of this order forthwith.

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Sd/JUDGE

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HA/PL*

Babu v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Babu v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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