Dismissed

Shankaragouda Ramanagouda Patil, v. the State of Karnataka

Karnataka HC23 Jun 2023CRL.RP/100038/2015

Case brief

AI extract

What is this about?

Curbing Rash Driving, the Karnataka High Court reviewed a Criminal Revision Petition challenging a conviction and sentence under IPC 279/304-A and MV Act 187 for a fatal road accident. Quashing Co-ordinate precedents due to factual variance, the Court affirmed the proportionate sentence, cancelled bail, and directed surrender.

What did the court decide?

Revision dismissed; bail cancelled; accused directed to surrender within 15 days to serve sentence.

Shankaragouda Ramanagouda Patil, Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF JUNE, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D.HUDDAR CRIMINAL REVISION PETITION No.100038/2015

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BETWEEN:

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SHANKARAGOWDA RAMANAGOWDA PATIL AGE 34 YEATS, OCC: AGRICULTURE R/O. BALBATTI, TQ. MUDDEBIHAL, DIST. BAGALKOT.

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… PETITIONER

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(BY SRI. MISS RANJITHA REDDY AND SRI. B.V.SOMAPPA., ADVOCATES)

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AND:

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THE SATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, DHARWAD BENCH, HIGH COURT OF KARNATAKA.

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Digitally YASHAVANT signed by NARAYANKAR YASHAVANT NARAYANKAR

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… RESPONDENT

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(BY SRI. RAMESH CHIGARI., HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, GADAG IN CRL APPEAL NO. 17/2014 DATED 01.01.2015 AND THE JUDGMENT AND ORDER PASSED BY LEARNED PRINCIPAL CIVIL JUDGE AND JMFC RON IN C.C.NO. 241/2013 DATED 09.05.2014 MAY PLEASE BE SET ASIDE AND THE PETITIONER MAY PLEASE BE ACQUITTED BY ALLOWING THIS REVISION PETITION, IN THE INTEREST OF JUSTICE.

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THIS CRL.RP COMING ON FOR HEARING AFTER HAVING HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The revision petitioner has filed this revision petition under Sec.397 of Cr.PC being aggrieved by the judgments passed by Court of Prl. District and Sessions Judge, Gadag, in Crl.Appeal No.17/2014 dated 01.01.2015 and the judgment and order of conviction and sentence passed by the learned Prl.Civil Judge, & JMFC in CC No. 241/2013 Dated 9.5.2014 convicting him and sentencing him under Sections 279 and 304 (A) of IPC and Sec.187 of MV Act.

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Parties to this revision petition are referred to as

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per their rank before the trial Court for the purpose of convenience.

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Facts leading up to this revision are as under:

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That, a complaint came to be filed by the

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complainant against the accused alleging that he being the driver of Tipper Lorry bearing Regn.No.KA-29-A-6085 on

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31.5.2013 drove the said lorry on Abbigere - Naregal Road in a rash and negligent manner endangering human life and near Kanti Basaveshwar Temple dashed against Basappa Barker when he was going on the side of the road on his cycle and because of his impact, he sustained grievous injuries and died on the way to Hospital. It is alleged that, the accused has failed to provide necessary medical assistance to the injured.

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With these allegations, a complaint came to be filed before Naregal Police Station in Crime No.47/2013. During the investigation, the investigation officer conducted the investigation and after completion of the investigation, filed charge sheet.

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After filing charge sheet, cognizance of the offence was taken. Presence of the accused secured. He was enlarged on bail. Copies of the police papers furnished to the accused as contemplated under Sec.207 of Cr.PC. The learned trial Magistrate recorded the substance of accusation for the offences under Sec.279, 304A of IPC

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and Sec.183 of IMV Act for which, accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution examined in all 12 witnesses from PWS. 1 to 12 got marked Ex.P1 to 11 and closed prosecution evidence. Thereafter, accused was questioned under Sec.313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defense evidence on his behalf.

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The learned trial Magistrate having heard the arguments found the accused guilty by passing the impugned judgment and sentenced him as under:

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"Acting U/s.255 (2) of Cr.P.C the accused is hereby convicted for the offences punishable U/sec.279 and 304(A) of IPC and 134 (a) and (b) r/w/s.187 of IMV Act.

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The accused is sentenced to pay a fine of Rs.1000/or in default to undergo simple imprisonment for period of 6 months for the offence punishable U/s.279 of IPC.

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The accused is further sentenced to undergo simple imprisonment for period of 6 months and also to pay fine of Rs.1000/- for the offence punishable U/s.304 (A) of IPC. In default of payment of fine, he shall under go simple imprisonment for period of 3 months.

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The accused is further sentenced to pay fine of Rs.1000/- to the offence punishable U/s. 134 (a) and (b) read with section 187 or in default to under go simple imprisonment for period of 3 months.

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This judgment of conviction and sentence was challenged by the accused before the Prl.District and Sessions Judge, Gadag in Crl.Appeal No.17/2014 being the first appellate Court.

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The first appellate Court, after securing the records and on hearing the arguments confirmed the sentence so passed by the Principle Civil Judge and JMFC, Ron dated 09.05.2014 in CC No.241/13. These two judgments have been challenged by accused/revision petitioner by filing this revision under following grounds:

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That, the impugned judgments and orders of trial

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court and first appellate court are contrary to law and evidence. They have failed to appreciate oral and

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documentary evidence. The photographs so produced to show the deceased himself came and fell down in front of lorry. The driver of tipper lorry applied the brake. It was completely a kachha road where no vehicle can be driven in speed. Both the courts ought to have taken into consideration the material contradictions and omissions in the evidence of the prosecution witnesses. The defense of the accused had not been properly appreciated. Accused is an agriculturist and a driver, he has no criminal antecedents. The said conviction and sentence so passed by the trial Court confirmed by the first appellate Court is not proper. Hence, it is prayed to allow this revision and acquit the accused.

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After filing this revision, the same is admitted and the records of the trial Court are secured.

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Heard the arguments of both side, meticulously perused the record.

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It is argued by the counsel for the accusedrevision petitioner that in view of the grounds narrated in the revision petition and also facts and circumstances of the case, the accused is entitled for acquittal. At the most the fine can be imposed on the accused by showing leniency. If at all wants to confirm the said sentence, she further submits that, a lenient view may be taken while passing the sentence.

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The learned HCGP submits that, both the Courts have given the concurrent finding the accused guilty. The conviction and sentence is based upon the proper appreciation of the evidence. Therefore, he submits that, no interference is required into the judgment so passed by both the courts.

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I have given my anxious consideration to the arguments of both the side.

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The point that would arise for my consideration is, whether the conviction and sentence passed by the trial

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Court and confirmed by the appellate court are just and proper?

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Before adverting to the other aspects of the case, let me examine the admitted facts between both the sides. The admitted facts are that, there was an accident on 31.5.2013 at 1.30 p.m. on Abbigere-Naregal Road within the jurisdiction of Naregal Police Station in between a lorry bearing Rgn.KA-29-M6085 and one Basappa Gundappa Baker being the father of the complaint. In the said accident the said Basappa sustained grievous injuries and died on the way to hospital. Accused was the driver of said Tipper Lorry. The said accident has taken place not because of any mechanical defects as per MV Report Ex.P3. The said Tipper Lorry was owned by PW.10 Ashok Mallappa Rolli who got released the said tipper lorry by executing a bond. It is also not in dispute with regard to the scene of occurrence i.e. place of accident as shown in Ex.P4. These are the admitted facts which need not be proved.

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PW.1 being the complainant evidently is not an eye witness to the said accident. According to him, on receipt of the information, with regard to accident to his father through telephone he went to the said place and was shifting his father to Gadag District hospital. But, on the way to the hospital his father breathed last. With regard to the said accident, he has filed compliant as Ex.P1 and shown the place of accident to the Police. As he is not an eye witness to the said incident of accident, his evidence can be accepted to the extent of filing complaint as per Ex.P1.

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It is elicited that, the Abbigeri-Naregal road is having distance of 5 km. and there the vehicles have to move slowly. According to him, on that day, his father went to Kanti Basaveshwar Temple for the purpose of cooking. He denied the suggestion that his father was in an intoxication mood and he himself dashed to the tipper lorry and sustained injuries.

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PW.2 Ramappa Basavareddar is pancha to Ex.P2 the scene of offence panchanama. According to him, the

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police conducted panchanama as per Ex.P2, but, in the cross-examination, he deposes ignorance about the contents of the panchanama. He narrates that where exactly the said accident has taken place. Like wise PW.3 Sharana also speaks about his presence at the time of conducting panchanama of scene of offence. He too was a pancha to Ex.P2. Except the denial nothing is elicited from the mouth of this witness. PW.5 M.S.Niakar, the then Circle Inspector of Ron conducted the Panchanama as per Ex.P2 in the presence of PW.2 and 3 there is no denial of suspect in the cross-examination directed to this PW.5.

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Thus, the evidence of these witnesses, contents of Ex.P2 and preparation of sketch as per Ex.P4 are proved by the prosecution.

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PW.4 I.S.Ramannavar is seizure pancha to Ex.P3. In his presence, the said offending tipper lorry bearing Regn.No. KA 29A 6085 was seized by the Police. No cross-examination is directed to PW.4 by the defense. Thus, the defense admits, seizure of offending tipper lorry.

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PW.6, Andappa Hanumappa, PW.7 Ravi

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Doddabasappa Yatnatti are the eye witnesses to the said accident. These two witnesses speak that, on the ill fated day, at about 1.30 p.m. Basappa was moving towards Abbigeri with his cycle. At that time, from the opposite direction, the tipper lorry came in high speed and dashed against him. The said lorry rolled on the left leg of Basappa. They called ambulance. They specifically say that because of mistake of tipper lorry driver the said accident has taken place. Even PW.7 has stated that after causing the accident, the driver ran away from the spot.

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Presence of these two witnesses and witnessing the said accident is not disputed by the defense. PW.6 states that, he saw the said accident from a distance of 30 to 40 ft. So also PW.7 has seen the said accident. No effective cross examination is directed to these witnesses so as to disbelieve their version given in the examination.

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Thus PW.6 and 7 being the eye witnesses have spoken consistent evidence about witnessing the said accident that, because of rash and negligent driving of the tipper lorry according to them, the said accident has taken place. To disbelieve their version, except the bald suggestions of denial, no concrete defense has been set up by the defense.

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PW.8 is the scribe of Ex.P1. According to him, as per the information furnished by CW/PW1 he wrote the contents of Ex.P1. Except the denial nothing is elicited from his mouth.

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When very filing of complaint is not denied, through the evidence of PW.7 and 8, it can be stated that Ex.P1 was written by this PW.8 and thereafter, a complaint came to be filed by PW.1. PW.9 is a Doctor who conducted the post mortem on the dead body of Basappa in between 9 p.m. and 10.30 p.m on 31.5.2013. According to him, the said Basappa died because of profuse bleeding and grievous injuries caused to his kidney. He has given a report as per

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Ex.P9. Except the denial, nothing is elicited in the cross examination. From the evidence of PW.9 it is proved by the prosecution that deceased Basappa died because of accidental injuries.

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PW.11, is ASI who prepared the inquest panchanama. PW.12 is the person who has received the complaint and registered the complaint and set the criminal law in motion. There is no effective cross examination directed to these witnesses.

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PW.5 M.S.Naikar was IO and took up the investigation, continued the investigation and filed the charge sheet. Except the denial in the cross examination, nothing is elicited from the mouth of this witness.

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So far as documentary evidence are concerned, contents of Ex.P1 are written by PW.8 as per the information furnished by PW.1. These contents are not denied by the defense. Ex.P2 panchanama shows where exactly the said accident has taken place. P3, the IMV report shows that the

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said accident has taken place not because of any mechanical defects.

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In all accident cases, the scene of occurrence sketch plays an important role. Sketch shows that, said accident has taken place at a distance of 2 ft. from the edge of tar road and moved to a distance of 10 ft. We find that, the vehicle was moving on Abbigere Naregal road towards Naregal. We find a curve towards Abbigere. After crossing the said curve, though the driver had sufficient space on the tar road to the extent of 12 ft. and kacha road to the extent of 5 ft., on the left side, drove the vehicle towards the extreme right side of the tar road towards southern side and dashed against the deceased. This sketch clearly depicts that how far the said lorry driver was rash and negligent in driving his lorry.

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When he was crossing the curve and moving on the straight road, all available precautions ought to have been taken by the driver to avoid any accident. If the road is vacant, it is expected from the drivers to drive the vehicle

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as rash as they can. When they cross a curve and a straight road, it is expected to take precaution to avoid any casualty. Driver is the best person to say how the said accident has taken place. Either in the cross examination or during Section 313 Cr.P.C statement, nothing is stated or explained by the accused that what made him drive the tipper lorry to the extreme right side of the road, though he has about 17 ft. width road including kacha road on the left side of the road towards northern side.

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In the absence of such explanation, it cannot be

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stated that Basappa - victim cyclist was at fault. The learned Magistrate as well the first appellate Court have properly appreciated the evidence and have rightly come to the conclusion that because of the rash and negligent driving of the tipper lorry by its driver the said accident has taken place. Under the provisions of IPC, law is very much settled with regard to the rash and negligent driving of the vehicle and how said offence is to be proved. So far as sentence is concerned, the learned trial Court has convicted the accused as stated above. The Hon’ble Supreme Court of India in a

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case between, The State Of Arunachal Pradesh v. Ramchandra Rabidas @ Ratan and another with other connected cases reported in (2019) 10 Supreme Court Cases 75 have held with regard to the maintainability of the prosecution both under the Motor Vehicles Act and Indian Penal Code.

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In another judgment of the Hon’ble Supreme Court of India, reported in (2015) 5 Supreme Court Cases 182 in between State of Punjab v. Saurabh Bakshi it is held, with regard to the principles of sentencing with regard of the offence as under :-

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“C. Criminal Trial - Sentence - Principles for sentencing - Deterrence - Laws can never be enforced unless fear supports them - It can never be forgotten that purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect collective interest and save every individual that forms a constituent of the collective from unwarranted hazards - Certain crimes assume more accent and gravity depending on nature and impact of crime on society - No court should ignore that being swayed by passion of mercy - it is obligation of court to constantly remind itself that rights of victim, and, on certain occasions person aggrieved as well as society at large, never be marginalised - Therefore, requisite norm therefore has to be the established principles laid down in precedents - it is neither to be guided by a sense of sentimentality nor to be governed by

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prejudices - penal Code, 1860 - S.304-A - Penology - Deterrence (Para 1)

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On behalf of the respondent it was argued that the respondent was quite young at the time the accident took place and it may be an act of negligence, but the contributory facet by the Maruti car driver, the victim herein 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 the corrective machinery which also reflects the concept of proportionality that the High Court has exercised the discretion which is permissible under Section 304-A IPC, and the Supreme Court should be slow to interfere therewith. It is urged 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.

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Partly allowing the appeal, the Supreme Court

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Held :

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The eminent thinker and author, Sophocles, said centuries back: “Laws can never be enforced unless fear supports them.” The statement has its pertinence, in a way, with the enormous vigour, in today’s society. It is the duty of every rightthinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognises. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective

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from unwarranted hazards. It is sometimes said in an egocentric and uncivilsed manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N.Cardozo “Justice, though due to the accused, is due to the accuser too.” And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. (Para 1)

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In the instant case the factum of rash and negligent driving has been established. The Supreme Court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems that driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the entire stage. The protagonists have lost all respect for law. A man with means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, is worse than death. Such developing of notions is a dangerous

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phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental. (Para 23)

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Needless to say, the principle of sentencing recognises the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. The High court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence of 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is “the crowning glory”, “the sovereign mistress” and “queen of virtue” as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. The sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. (Para 24)

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India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving the where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, the law-makers should scrutinize, re-look and revisit the sentencing policy in Section 304-A IPC, so with immense anguish. The respondent is directed to be taken into custody forthwith to suffer the remaining period of sentence. (Paras 25 and 26)”

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Yet in another judgment of the Hon’ble Apex Court reported in (2015) 1 Supreme Court Cases 222 in between State of Madhya Pradesh v. Surendra

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Singh, it is held as under :-

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“Penal Code, 1860 - Ss. 304-A, 279 and 337 - Death caused by rash and negligent driving - Sentencing - Proportionate punishment - Sentence of two yrs’ RI and six months’ RI, respectively, restored

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-V died in an accident due to rash and negligent driving by respondent - accused - High Court while maintaining conviction, reduced the sentence awarded by trial court, from two years; RI respectively with fine of Rs.2500 to the period already undergone, and granted further compensation of Rs 2000 payable to widow/mother of deceased - An innocent man lost his life due to negligence of respondent - However, without proper appreciation of evidence and consideration of gravity of offence, High Court has shown undue sympathy by modifying the sentence

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- Held, one of the prime objectives of criminal law is imposition of adequate, just, proportionate punishment, commensurate with gravity, nature of crime and the manner in which offence is committed - Punishment should not be so lenient that it shocks the conscience of society - Awarding lesser sentence encourages any criminal and, as a result of the same, society suffers - Under sympathy by means of imposing inadequate sentence would do more harm to justice system to undermine the public confidence in the efficacy of law - Order reducing sentence to period already undergone set aside - Appeal allowed, sentence imposed by trial court restored - Criminal Trial -

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Sentence - Principles for sentencing - Sympathy/Misplaced sympathy.

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A three Judge Bench of the Hon’ble Supreme

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Court of India in Ahmed Hussein Vali Mohammed Saiyed and another v. State of Gujarat reported in (2009) 7 Supreme Court Cases 254 , in para 99 and 100 held as under :-

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“ 99. Finally, one more argument was advanced about the award of sentence to Liyakat Hussein alias Master Khudabax Shaikh (A-1). The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to(sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

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100 . Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime

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which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.”

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In the instant case the factum of rash and negligent driving has been established. There is consistent increase in the number of accidents and vehicles drivers have been totally rash and negligent. Therefore, a principle of sentencing recognizes the corrective measures.

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In this case, from the evidence of witnesses, the prosecution is able to establish the rash and negligent driving of tipper lorry by its driver and causing accident so also, the evidence brought on record, after causing accident, without providing medical assistance to the injured accused ran away from the said place. Thereby, he has committed offence under the provisions of MV Act.

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Thus, guilt of the accused is properly proved by legal or factual evidence. I do not find any legal or factual error being committed by the trial court and first appellate court finding him of guilty.

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