Partly allowed

Ibrahimsab Mabusab Karnachi v. the State of Karnataka

Karnataka HC18 Jan 2023CRL.RP/100078/2015

Case brief

AI extract

What is this about?

In a criminal revision petition, the Karnataka High Court upheld the conviction and sentence of a KSRTC driver for offences under Ss. 279 and 304-A IPC, causing death by rash and negligent driving, after unexpectedly awarding Rs. 10 lakh compensation to victims' legal heirs.

What did the court decide?

Petitioner ordered to pay Rs. 10,00,000 as compensation to the legal heirs of the deceased and a witness.

Ibrahimsab Mabusab Karnachi Vs the State of Karnataka — Motor Accident Claims | Karnataka HC (2023)

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CRL.RP No.100078/2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JANUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL REVISION PETITION NO.100078/2015

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BETWEEN

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IBRAHIMSAB MABUSAB KARNACHI AGE:58 YEARS, OCC: DRIVER IN KSRTC (RON DEPOT) R/O KURABAGALLI RON, TQ. RON DIST.GADAG

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… PETITIONER

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(BY SRI.B.V.SOMAPUR, ADVOCATE)

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AND

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THE STATE OF KARNATAKA REPRESENTED BY S.P.P. HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD

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… RESPONDENT

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(BY SRI.RAMESH CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE LEARNED PRL. DIST. & SESSIONS JUDGE, GADAG IN CRL.A.NO.33/2014 DATED 03.02.2015 AFFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE TRIAL COURT i.e. THE COURT OF LEARNED SENIOR CIVIL JUDGE & JMFC, RON IN C.C.NO.7/2013 DATED 08.09.2014 AND ACQUIT THE REVISION PETITIONER HEREIN FOR THE OFFENCES PUNISHABLE U/S 279 & 304(A) OF IPC.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD THROUGH PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND RESERVED ON 01.12.2022 AT DHARWAD BENCH, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.RP No.100078/2015

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ORDER

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This criminal revision petition is filed by the petitioner / accused No.1 being aggrieved by the judgment of conviction and order of sentence dated 08.09.2014 in C.C.No.7/2013 passed by learned Senior Civil Judge and JMFC at Ron (for short, ‘Trial Court’) and its confirmation order dated 03.02.2015 in Crl.A.No.33/2014 passed by learned Principal District & Sessions Judge, Gadag (for short, ‘Appellate Court’).

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For the sake of convenience, the rankings of

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the parties would be henceforth referred to as per their rankings before the Trial Court.

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Brief facts of the case are as under:

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It is the case of the prosecution that, on 11.07.2012, the complainant Smt.Anasuya Hiremath and Smt.Shanthavva Hiremath, r/o. Belavanaki village had been to Ron to attend naming ceremony. After attending the function, all the persons were returning to their village in a TATA Goods vehicle bearing No.KA-26-9760 which was being driven by accused No.2 and the said vehicle

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CRL.RP No.100078/2015

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belongs to accused No.3. According to the complainant,

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all the persons, after completing the naming ceremony started their journey and at about 4.30 p.m., when the vehicle reached Belavanaki village, a KSRTC Bus bearing No.KA.26.F.772 which was driven by the accused No.1 and he was trying to overtake the car and in order to overtake the said car, the accused No.1 had driven his vehicle in high speed and in a rash and negligent manner, hit against TATA Goods vehicle and caused death of seven persons and also caused injuries to some other persons who were in the TATA Goods vehicle. The said accident occurred at about 5.30 p.m. The injured were shifted to Government Hospital, Ron. A complaint came to be lodged by the complainant at about 9.00 p.m. and the same was registered as Cr.No.58/2012 for the offences under sections 279, 337, 338 and 304-A of IPC and also sections 3 and 5 read with sections 180, 181, 192-A of the Motor Vehicles Act, against accused Nos.2 and 3.

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To prove the case of the prosecution, the

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prosecution has examined PW.1 to PW.18 and got marked Ex.P1 to Ex.P31. The Trial Court after appreciating the oral and documentary evidence and convicted the accused

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CRL.RP No.100078/2015

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No.1 for the offences under sections 279, 304-A of IPC. Similarly, accused No.2 was convicted for the offences under sections 192-A and section 3 read with section 181 of Motor Vehicle Act. Hence this revision petition.

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Heard Sri.B.V.Somapur, learned counsel for petitioner and Sri.Ramesh Chigari, learned HCGP for respondent.

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Sri B.V.Somapur, learned counsel for

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petitioner submits that, the judgment and order of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court are contrary to the facts and law. Hence, the concurrent findings of the sub-ordinate Courts are liable to be set aside.

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It is further submitted that, the rashness and negligence of the driver of the offending vehicle, has not been proved properly by the prosecution. No independent witnesses have been examined in this case to prove on whose fault the accident has occurred. The sketch has not disclosed the place of occurrence. Therefore, the Trial Court and the Appellate Court committed error in considering the evidence of interested witnesses. It is

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further submitted that the Trial Court and the Appellate Court failed to appreciate the evidence of PWs.7 and 8 and also spot panchanama – Ex.P2 and also hand sketch which is marked as Ex.P31 properly which led the sub-ordinate Courts to pass impugned judgments which are liable to be set aside.

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8. Per contra , Sri Ramesh Chigari, learned HCGP for respondent justifying the concurrent findings of both sub-ordinate Courts, submitted that the prosecution has examined 18 witnesses, out of which, PWs.1, 7 to 12 and 16 are the eyewitnesses to the incident and all these witnesses have sustained injuries. PWs.2 and 6 are the panch witnesses to the scene of occurrence and they have supported the case. It is further submitted that, seven people died in the accident and several persons sustained injuries. The impact or gravity of the accident discloses the death of the persons. If the driver of the KSRTC bus drove the bus in a proper manner, the death of seven persons would not have occurred.

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It is further submitted that the evidence of PWs.13, 14, 17 and 18 who are the Investigating Officers clearly supported their case. Therefore, the Trial Court

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CRL.RP No.100078/2015

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and the Appellate Court have rightly appreciated the oral

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and documentary evidence and passed appropriate orders which are not required to be disturbed by this Court. Therefore, learned HCGP prays to dismiss the petition filed by the petitioner.

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After having heard the learned counsel for the

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parties, the questions which arise for my consideration are,

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(i) Whether the concurrent findings of conviction passed by the Trial Court and Appellate Court are sustainable?

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(ii) Whether the revision petitioner has made out grounds to interfere with the concurrent findings?

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REASONS

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This Court being a revisional Court for the concurrent findings of conviction recorded by both subordinate Courts, having considered the scope of revisional jurisdiction, it is necessary to ascertain as to whether any illegality or perversity has crept into the findings of conviction recorded by both the Courts.

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CRL.RP No.100078/2015

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In order to avoid the repetition of the facts,

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the evidence of all the relevant witnesses are directly analyzed to arrive at a conclusion. PW.1 is the complainant. She has lodged a complaint before PW.13. PWs.7 to 12 are the co-passengers of TATA goods vehicle and they are the eyewitnesses to the incident. PW.5 is the Conductor of the bus and PW.16 is the passenger of the bus and also eyewitnesses to the accident. PW.3 is the Scribe of the complaint which is marked as Ex.P1. PW.4 is the person who showed the spot of accident. PWs.2 and 6 are the panch witnesses to Ex.P2 – panchanama. PW.18 is the person who drew panchanama as per Ex.P2 and also the sketch which is marked as Ex.P31. Now it is relevant to refer the evidence of PW.16, who is the passenger of the KSRTC Bus. According to PW.16, the bus in which he was traveling had dashed against the TATA goods vehicle which was coming from the opposite direction. In the accident he has also sustained injuries. According to him, the accident had occurred due to the fault of the accused No.1 who was driving KSRTC Bus. Though he subjected to the crossexamination, nothing has been elicited to disprove that he was not a passenger in the KSRTC Bus and also not aware

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CRL.RP No.100078/2015

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about the accident. Therefore, the evidence of PW.16 is appropriate and relevant to conclude on whose fault the accident had occurred.

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In addition to the evidence of PW.16, it is also relevant to refer the evidence of other witnesses namely, PWs.1, 7 to 12 who are the inmates of TATA Goods vehicle. They are all consistent in their evidence with regard to the fault of the accused No.1. Therefore, the prosecution has proved the case beyond all reasonable doubt that the accused has committed offences under sections 279 and 304-A of IPC.

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The evidence of PW.10 who was traveling in TATA goods vehicle of accused No.2 also sustained injuries. Similarly, PW.11 and PW.12 who were inmates of KSRTC Bus, have not supported the case of the prosecution. Nevertheless, the evidence of PWs.1, 9 and 12 are relevant regarding accused No.1 was overtaking the car which was going in front of the his bus. Their evidence is clear that, in the process of overtaking, the accused No.1 took his vehicle towards right side and hit against the goods vehicle which was coming opposite to the said bus in its right path.

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CRL.RP No.100078/2015

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It is relevant to refer the judgment of the Hon’ble Supreme Court in the case of ALISTER ANTHONY PAREIRA v. STATE OF MAHARASHTRA¹ , in para Nos.33, 38, 39, 41, 82, 83, 84, 85, 87, 88, it is held as under:

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“33. Causing death by negligence is an offence under Section 304-A. It reads :

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‘ S.304-A. - Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.’

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38. Insofar as Section 304-A IPC is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of S ection 304-A IPC is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304-A I PC is death caused due to rash or negligent act. The three things which are

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1 (2012) 2 SCC 648

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CRL.RP No.100078/2015

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required to be proved for an offence under Section 304-A are:

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(1) death of human being;

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(2) the accused caused the death; and

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(3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.

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39. Like Section 304-A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. The scheme of Sections 279, 304-A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life.

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41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law – in view of the provisions of IPC _ the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of

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CRL.RP No.100078/2015

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Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.

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82. The question now is whether the maximum sentence of three years awarded to the appellant by the High Court for the offence under Section 304 Part II IPC requires any modification?

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83. It was argued on behalf of the appellant that having regard to the facts : (i) the appellant has already undergone sentence of two months and has paid Rs.8,50,000/- by way of fine and compensation; (ii) the appellant is further willing to pay reasonable amount as compensation/fine as may be awarded by this Court; (iii) the appellant was about 20 years of age at the time of incident; and (iv) the appellant lost his father during the pendency of the appeal and presently being the only member to suppsort his family which comprises of mother and unmarried sister, he may be released on probation of good conduct and behaviour or the sentence awarded to him be reduced to the period already undergone.

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84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate,

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CRL.RP No.100078/2015

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adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

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85. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

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88. In Dalbir Singh v. State of Haryana reported in (2000) 5 SCC 82 , this Court was concerned with a case where the accused was held guilty of the offence under Section 304A IPC. The Court made the following observations:

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"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

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CRL.RP No.100078/2015

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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 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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16. On careful perusal of the dictum of the Hon’ble

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Supreme Court, it appears that, the object of punishment given to the accused is to protect the society and to deter the criminal in achieving avowed object of law by imposing appropriate sentence. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact

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CRL.RP No.100078/2015

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on social order and public interest, cannot be lost sight of

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and per se require exemplary treatment.

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The Court will be failing its duty if appropriate

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punishment is not awarded for a crime which has been committed not only against the individual victim, but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant, but it should be conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society’s cry for justice against the criminal.

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Admittedly, in this case, the accused No.1 has committed a grave error and he is the reason for loss of seven precious human lives. The sentence awarded against the accused is too meager and not adequate, but no appeal has been filed by the State. Therefore, this Court refrained from considering the matter for enhancement of the sentence. However, it is necessary to award a sum of Rs.10,00,000/- as compensation to be paid to the LRs., of the deceased. It is to be noted here that, no amount of compensation could relieve the

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CRL.RP No.100078/2015

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families of the victims from the constant agony. As a

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matter of fact, this Court by considering the facts and circumstances of the case, is awarding the compensation

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in addition to the order of sentence.

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In light of the observations made above, the

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points which arose for my consideration is answered as,

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Point No.(i) in the “affirmative”

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Point No.(ii) in the “negative”

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Hence, I proceed to pass the following;

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ORDER

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i) The criminal revision petition is dismissed.

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ii) The judgment of conviction and order of sentence dated 08.09.2014 in C.C.No.7/2013 passed by learned Senior Civil Judge and JMFC at Ron and its confirmation order dated 03.02.2015 in Crl.A.No.33/2014 passed by learned Principal District & Sessions Judge, Gadag, are hereby confirmed.

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iii) The petitioner shall pay compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to the LRs.,

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of the deceased by way of depositing the amount

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before the Trial Court within three months from the

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date of receipt of this order.

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iv) The Trial Court, after depositing the amount of Rs.10,00,000/- by the petitioner, shall release Rs.1,00,000/- each in favour of the LRs., of the deceased and the remaining balance of Rs.3,00,000/shall be paid to PW.1 as compensation.

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Sd/JUDGE

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BSS

Ibrahimsab Mabusab Karnachi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Ibrahimsab Mabusab Karnachi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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