Kariyappalada Maddanappa S/O Halappa Vs the State of Karnataka

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF FEBRUARY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100207 OF 2018 (397(CR.PC)/438(BNSS))

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BETWEEN:

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KARIYAPPALADA MADDANAPPA S/O. HALAPPA, AGE: ABOUT 29 YEARS, OCC: DRIVER OF AUTO BEARING REG. NO. KA-35/A-7744, , R/O. K. AYYANAHALLI VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT,

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…PETITIONER

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(BY SRI. PRASHANT. S. KADADEVAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, IN HADAGALI POLICE STATION, HADAGALI, HADAGALI TALUK, BALLARI DISTRICT.

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Digitally signed by SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench

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…RESPONDENT

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(BY SMT. MALA. BHUTE, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) AND 401 OF CODE OF CRMINAL PROCEDURE 1973. PRAYING TO SET ASIDE THE JUDGEMENT DATED 29.08.2018 PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE AT BALLARI IN CRIMINAL APPEAL NO. 5033/2016 AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 03.02.2025. COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, RAMACHANDRA D. HUDDAR, J., MADE THE ORDER THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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CAV ORDER

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(PER: THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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This Revision Petition is directed against the judgment of conviction and order of sentence dated 24^th March 2016 passed in CC No.162/2012 by the Civil Judge and JMFC, Hadagali and confirmed in Criminal Appeal No.5033/2016 dated 29^th August 2018 by the III Additional District and Sessions Judge, Ballari sitting at Hosapete.

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The parties to this revision petition are referred as per their rank before the trial Court.

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That the accused/present petitioner was charge sheeted by CPI, Hadagali Circle, Hadagali for the offences punishable under Sections 279, 337, 338, 304A of IPC and Sections 183, 187 and 192A of Indian Motor Vehicle Act alleging that on 13.7.2011 when CWs. 1 to 8 and

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deceased Kumari Shantha Uppar were traveling in his APE Auto bearing Regn.No.KA-35/A-7744 on hire basis and

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when they were returning from Bettadamalleshwara temple after performing Pooja at about 5.10 a.m. because of rash and negligent driving of said auto, it was capsized. The said accident has taken place because of rash and negligent driving of the said vehicle by the accused. In the said accident, CWs 1 to 8 sustained simple and grievous injuries and Kumari Shantha Uppar died because of accidental injuries on the way to the Hospital. With these allegations, a complaint came to be filed by PW.1 which was registered in Crime No.29/2011 of Ittigi Police Station and criminal law was set in motion.

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On completion of the investigation, the CPI filed the charge sheet against the accused for the aforesaid offences. On filing the charge sheet, cognizance of the offence was taken, presence of the accused was secured and he was enlarged on bail. Copies of the police papers were furnished to him as contemplated under Section 207 of Cr.PC. After recording the plea of the accused, he pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution in

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all examined 16 witnesses and got marked Ex.P1 to P18 so also MOs Nos.1 and 2 and thereafter closed prosecution evidence. On closure of prosecution evidence, accused was questioned under Section 313 of the 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 defence evidence.

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On hearing the arguments and after evaluation and assessment of the evidence, the learned trial Court found the accused guilty of committing offences punishable under Sections 279, 337, 338 304A of IPC and Sec.183, 187 and 192A of Motor Vehicle Act and sentenced him as under:

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“The accused is sentenced undergo S.I. for one year for the offence p/u/s. 304(A) of IPC and pay fine of Rs.5.000/- and in default of payment of fine, he shall undergo S.I. for one month.

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The accused is sentenced to undergo S.I. for one month for the offence p/u/s. 279 of IPC and

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pay fine of Rs.800/-, in default of payment of fine, he shall undergo S.I. for 10 days.

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The accused is sentenced to undergo S.I. for one month for the offence p/u/s. 337 of IPC and pay fine of Rs.500/-, in default of payment of fine, he shall undergo S.I. for 10 days.

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The accused is sentenced to undergo S.I. for one month for the offence p/u/s. 338 of IPC and pay fine of Rs.900/-, in default of payment of fine, he shall undergo S.I. for 10 days.

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The accused is sentenced to pay fine of Rs.100/- for the offence p/u/s.183 of IMV Act, in default of payment of fine, he shall undergo S.I. for 10 days.

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The accused is sentenced to pay line of Rs.800/- for the offence p/u/s.187 of IMV Act, in default of payment of fine, he shall undergo S.I. for 10 days.

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The accused is sentenced to pay fine of Rs.2,000/- for the offence p/u/s.192-A of IMV Act, in default of payment of fine, he shall undergo S.I. for 10 days.

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All the sentences are run concurrently.”

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7. Being aggrieved by the said judgment of

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conviction and order of sentence passed by the trial Court, the accused preferred Criminal Appeal no.5033/2016

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before the III Additional District and Sessions Judge, Ballari sitting at Hosapete. The First Appellate Court on

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hearing the arguments of both side confirmed the judgment of the trial Court vide judgment dated 29.8.2018. This is how now the petitioner is before this Court seeking setting aside of impugned judgments of the Courts below.

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The learned counsel for the petitioner Sri Prashanth S.Kadadevar would submit that, the said accident has not taken place because of rash and negligent driving of offending vehicle by the accused in the manner alleged by the prosecution. He would submit that, when the accused was driving his vehicle along with CWs 1 to 8 and deceased Shantha, it was a hilly area and he had taken all available precautions. When the said vehicle came at the curve area, because of coming across of the cattle from the forest area situated by the side of the scene of offence, he applied brake and the said cattle dashed to the auto and thereby it was capsized. He would submit that, this factual situation though elicited in the cross examination from the mouth of witnesses examined

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by the prosecution is not appreciated by the trial Court as well as the first appellate Court. He would submit that, because of the intervention of the said cattle, the said accident has taken place. Therefore, he would submit that, no rashness and negligence can be attributed against the accused. He would further submit that, if the court comes to the conclusion that, the said accident has taken place because of rash and negligent driving of the offending auto, the punishment so imposed by the trial Court and confirmed by the first appellate Court have to be set aside

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and it has to be modified by setting aside the sentence of imprisonment for the offence under Section 304A of IPC and fine may be imposed.

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In support of his submission, he relied upon the judgment of the Hon’ble Apex Court in a case between Prakash Chandra Agnihotri v. State of Madhya Pradesh reported in 1990 (Supp) SCC 764 and also judgment in Surendran v. Sub-Inspector of police in Criminal Appeal No.536/2021 decided on 30.6.2021 .

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Placing reliance upon these two judgments, he would submit that, so far as offence under Section 304A of IPC is concerned, accused is sentenced to undergo imprisonment for one year and also pay a fine of Rs.5,000/- with default sentence. In view of the judgment cited supra, as the offence has taken place in the year 2011 and after 14 years of such occurrence sending the accused to undergo the imprisonment would be rather harsh, therefore, in the ends of promoting justice, he would submit to impose fine only. He prays to allow the revision petition.

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As against this submission, the learned

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Smt.Mala Bhuti, AGA for State supported the reasons assigned by the trial Court as well as first appellate Court and would submit that, the very carrying of eight passengers along with him in the offending vehicle having a minimum capacity to carry the passengers itself amounts to rashness and negligence. Learned AGA submits that, when the accused knew that he was driving the said vehicle in a hilly area, surrounded by the forest

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that too getting down from the hilly area he would have been more cautious. The said accident has taken place in a steep curve area and because of his rashness and negligence only, the said offending vehicle capsized and inmates of the said auto sustained simple and grievous injuries and deceased Shantha having sustained grievous injuries on the vital part of her body died on the way to the Hospital. It was a sheer negligence and rashness on the part of the accused. Therefore, Smt.Mala Bhuti, AGA supports the reasons assigned by the trial Court and the first appellate Court. She would submit that the citations so relied upon by the counsel for the accused have no relevance to the facts of the case and each case has to be decided based upon the facts of each case. Therefore, she submits to dismiss the petition.

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I have given my anxious consideration to the arguments of both the side, perused the records. In view of rival submissions of both the side, the point that is to be decided in this revision is:

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“ Whether the learned trial Court as well as First Appellate Court have committed any factual or legal error in finding the accused guilty of committing the offences and sentencing him as aforesaid?”

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My answer to the above point is in the negative for the following reasons :

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Before adverting to the other aspects of the case, it is just and proper to narrate the admitted facts between both the sides. Accused was the driver of APE Auto bearing Regn.No.KA-35/A-7744 when the accident took place on 13.7.2011 at 5.10 p.m. At the time of the said accident, CWs 1 to 8 and Kum.Shantha Uppara were travelling as inmates of the said auto. In the said accident, CWs 1 to 5 and 7 and 8 sustained simple injuries and grievous injuries and CW.6 suffered grievous injuries. In the said accident, Kum.Shantha Uppara having sustained grievous accidental injuries died on the way to the Hospital. The said accident has taken place not because of any mechanical defects in the auto. With regard to the

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said accident, a crime was registered in Crime No.29/2011 of Ittigi Police Station for the aforesaid offences. These are the admitted facts which need not be proved. However, to prove about the death of Shantha Uppara in the said accident, the prosecution relied upon the inquest panchanama marked as Ex.P5 and PM report as per Ex.P10. Ex.P11 to P18 are the wound certificates of CWs 1 to 8 which prove the simple and grievous injuries sustained by the inmates of the said auto vehicle. It is not in dispute that, these CW.1 to 8 were traveling as inmates

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along with Shantha Uppara in the said vehicle. The photographs so produced show where exactly the accident has taken place and also show the dead body of deceased Shantha, they are marked at Ex.P2 to P4. Ex.P6 is the spot panchanama and P7 is the rough sketch. Contents of these two documents are not disputed by the defence. Ex.P8 is the IMV report which is also not disputed by the defence. Ex.P1 is the complaint and P9 is the FIR. While marking the aforesaid documents and MOs nos.1 and 2, no little finger was raised by the defence.

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Now let me analyze as to whether the

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prosecution is able to establish the guilt of the accused beyond all reasonable doubt. To prove the said fact, prosecution is under obligation to prove the essential ingredients of Section 279 of IPC, that a person drives any vehicle, such driving is on any public way, in a rash and negligent manner endangering human life which is likely to cause hurt or injury to any other person. That means, specific evidence is required to be adduced by the prosecution to prove the rash and negligent driving if any on the part of the accused. Accused was a driver of the said offending vehicle and he was driving the said vehicle on a public way is not in dispute. Categorically accused admits the same. So also, at the time of accident, PW.1 Y. Mallikarjuna complainant the physical education teacher, PW.2 Girija, PW.3 Geetha, PW.4 Manjula PW.5 Anjali, PW.6 M.Sunil Kumar were the inmates of the said vehicle

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along with deceased Shantha is not in dispute.

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On scrupulous reading of PWs 1 to 6 stated supra, consistently these inmates of the offending vehicle driven by accused have stated that, as the accused was driving the vehicle in high speed, in a rash and negligent manner, because of the same, it capsized. This evidence spoken to by these PWs.1 to 6 is not properly denied in the cross-examination. The fact that was tried to bring on record was, because of movement of the cattle on the road which came from the forest side and they were fighting with each other, at that time, they came and

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dashed to the offending vehicle and because of the same, the said accident took place. The said accident has taken place at 5.10 p.m. on 13.7.2011. It is elicited that, during evening hours after grazing, the cattle move towards their respective houses. That means, the fact of movement of the cattle was very much within the knowledge of accused. Further, he was driving his vehicle in a hilly area and he

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was getting down from the hilly area on the public way. These inmates have given graphic account of the accident that, how far the accused was rash and negligent in

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driving his vehicle. When the capacity of the said vehicle was just at the most 3+1, he was carrying eight passengers on hire basis and PW.1 states that, all of them hired the said vehicle to go to the aforesaid temple. Beyond the capacity and permit, the accused carried the passengers and this act of the accused itself amounts to rashness and negligence. Therefore, police have filed charge sheet against the accused for violation of the permit conditions. This fact is not denied by the accused.

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As stated supra, as per the FIR and evidence collected by the IO, so also the evidence of PWs 1 to 6 stated supra, have consistently spoken about the rash and negligent driving of the auto by the accused. Because of the said rash and negligent act being the proximate cause for the accident, he is found guilty by the Courts below. That means, the accident was caused by the accused/petitioner was the direct and proximate cause which lead to the death of Shantha Uppar. Therefore, we do not find any error committed by the trial Court and

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appellate Court in giving such findings. The said vehicle itself was capsized and PWs 1 to 6 categorically have spoken about the accident and both the courts have given concurrent findings. The prosecution has taken pain to examine 16 witnesses and got marked substantial documents which are marked without any objections. The very act of the accused can be gathered to determine the speed of the vehicle that whether the accused was driving rashly and negligently. Even the law says, if the driver is driving the vehicle in slow speed but recklessly and negligently, it would amount to _rash and negligent driving’_ within the meaning of Section 279 of IPC. By the words rash driving’, it cannot be automatically imagined that, the offending vehicle alleged to be rash in its driving, should also necessarily be coupled with high speed – a rash act is primarily an over hasty act – opposed to a deliberate act. Taking into consideration of the topographical features of the road in a curve area, the said offending vehicle capsized, then, it can be inferred that, this accused was very much rash though knew that eight

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passengers were traveling as inmates of his vehicle and this rash act can be termed as deliberate act i.e. done by the accused without due care and caution. That means, it was imperative duty of the accused to drive his vehicle when he was carrying eight passengers with him to adopt such reasonable and proper care and precaution so as to save the consequential injuries, as well as life of inmates. But, PWs. 1 to 6 are categorical about the rash and negligent act with the deliberate driving of vehicle in that manner.

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PW.7 B.Vaamadev is pancha to Ex.P6 and he has signed the said document at the scene of offence and also speaks about taking of photographs. Though he has been cross-examined by the defence, but he is consistent about his presence when the said panchanama was prepared by the Police. PW.8 Bhavikatti Beeresh is another pancha to Ex.P6 and he corroborates the evidence of PW.7 in material particulars. He too has withstood the test of cross-examination. PW.9 Kotresh is the owner of the said

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Auto vehicle bearing Regn.KA-35/A-7744 he is specific that, accused at the time of accident was driver of the said vehicle and he came to know about the accident and injuries suffered by the inmates of the vehicle so also the death of Shantha. Evidence of this PW.9 is not disputed by the defence.

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PW.10 P.Chaman Sab, the then HC of Hadagali

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PS carried the FIR to the Magistrate and this fact is not disputed by the defence. No cross-examination is directed to PW.10. PW.11 N.Shekhar the MV Inspector had mechanically examined the vehicle and opined that said accident has taken place not because of any mechanical defects though he found four damages to the said vehicle which are post accident. The fact of opinion expressed by this PW.11 the MV Inspector is not disputed by the defence.

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PW.12 K.G.Govindaraj, the then PSI on getting information about the accident went to the Hospital and recorded the statement of PW.1, registered the crime and

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set the criminal law in motion. Though lengthy cross examination is directed to this PW.12 but, nothing worth is elicited to disbelieve his version stated in his chief examination.

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PW.13 Dr.Shivakumar is the doctor who

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conducted the Post mortem on the dead body of deceased Shantha as per Ex.P10 and opines that because of the accidental injuries, Shantha died. He also examined the inmates of the said vehicle and issued the wound certificate stated supra and the said inmates have sustained accidental injuries. The fact of conducting post mortem and the clinically examining the injured is not disputed by the defence. Therefore, the evidence of this doctor has to be accepted that, he has conducted the post mortem on the dead body of deceased Shantha Uppara and clinically examined the inmates of the said vehicle and issued the wound certificate stated supra.

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PW.14 Prakash Rathod was CPI at the relevant time who took up the investigation, went to scene of

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offence, conducted panchanama on completion of investigation he filed the charge sheet. In all criminal cases, panchas are authors of panchanama and IOs are the supervisors of investigation therefore, evidence of PW.13 AND 14 has to be accepted about registering the crime and conducting investigation and filing of charge sheet.

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PW.15 Chandrappa B., is inquest pancha to Ex.P5 and he speaks about conducting of inquest panchanama on the dead body of deceased so also Kotresh. Death of Shantha Uppara is not denied therefore, evidence of PW.15 AND 16 has to be accepted that they were present when the said panchanama was prepared.

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In a case of present nature, the scene of pancahnama as well as sketch plays an important role which depicts the exact scene of offence. On scrupulous reading of these two documents, they do suggest that, the said accident has taken place in a downal area coming from Bettadamalleshwara Temple road that too in a curve

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area in the middle of the road. The accused had sufficient space towards his left side and right side of the road. None of the witnesses have spoken that, cattle came across the vehicle fighting with each other and dashed to the offending vehicle. The suggestions so directed to PW. 1 to 6 in this regard is categorically denied by these witnesses being the inmates of the said offending vehicle. So therefore, the evidence placed on record by the prosecution categorically proves that, because of rash and negligent driving of offending vehicle only which was the direct and proximate cause which lead to the death of Shantha and injuries to PW.1 to 6 itself, proves the act of rash and negligent driving of offending vehicle by the accused. So to say, there was no other intervening negligent act which became the cause for the accident. In a case of present nature, the evidence spoken to by the witnesses especially that of PWs.1 to 6 remain unchallenged which supports the case of the prosecution. In this case, undue sympathy cannot be shown which may result in miscarriage of justice and might undermine the

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confidence of public in criminal justice dispensation system. When the most of the factual evidence is admitted by the defence, now the defence cannot contend that, accused was innocent and very much cautious and has taken all precautions to avoid any accident. No such evidence is brought on record. In a case of present nature, driver of the offending vehicle would have been the best witness to speak regarding what made him to drive the vehicle in such manner. There is no explanation offered by the accused in his statement recorded under Section 313

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of Cr.PC. He has submitted that, he has nothing to say before the Court while recording the said statement. This itself goes to establish that, silence on the part of the accused in not giving explanation gives room to draw adverse inference against accused. Accordingly, it is drawn.

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Therefore, I do not find any factual or legal

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error in finding the accused guilty of the aforesaid offences.

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As narrated in the foregoing paragraphs, accused relied upon two judgments i.e., Prakash

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Chandra Agnihotri and Surendran supra . In the first judgment cited supra, it is observed by the Hon’ble Apex Court the occurrence took place in the year 1972 and appellant through on bail, he was sentenced to six months rigorous imprisonment and a fine of Rs.250/-. It is observed that, in view of the date of occurrence of the accident, it would be rather harsh to send the accused to send to jail after 18 years of occurrence. With regard to the ratio so laid down, there is no dispute as such. With great respect to the said ratio, the facts of this case are quite different and this accused was carrying eight passengers who were all students along with PE Teacher of the School. They had been to the temple, this accused was carrying students and PE Teacher by hiring his vehicle and when he was returning with the said students and PW.1 the Physical Education Teacher in a curve area which was having a downal road, the said vehicle capsized. The facts

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of this case are different. No doubt the accident has taken

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place in the year 2011 and now we are in the year 2025. Almost 14 years have been lapsed. But, in an offence of present nature, a minimum sentence has to be imposed.

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So far as second judgment is concerned, it was

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a case registered under the provisions of Sections 279, 337 and 338 of IPC and the punishment prescribed for the said offences is imprisonment or fine. Therefore, the Court has exercised discretion and imposed fine only. Here the wording used in Section 304A of IPC is imprisonment and fine. Therefore, the judgment in Surendran supra relied upon by the counsel for the accused is not relevant to the facts of this case.

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With regard to the imposition of sentence for the offence under Section 304A of IPC is concerned, the Hon’ble Apex Court in State of Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182 has held as under:

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“23. In the instant case the factum of rash

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and negligent driving has been established. This 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 to us 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 centre stage. The protagonists, as we perceive, 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 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.

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Needless to say, the principle of sentencing recognises the corrective measures but there are occasions when the deterrence is

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an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that 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 to 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. In our view, 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.

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Before parting with the case we are compelled to observe that 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 where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the

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people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish.”

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As stated supra , with regard to offence under Section 304A of IPC accused is directed to undergo sentence of one year and also he is sentenced to pay the fine. So far as other offences are concerned, he is directed to pay the fine amount and in default, he is directed to undergo sentence. It is submitted by the counsel for the accused-petitioner, the accident is of the year 2011. As per the cause-title, accused was aged 23 years at the time

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of accident and he was quite young. This is the only mitigating circumstances to show any leniency. In view of the judgment in Saurabh Bhakshi supra, minimum sentence has to be imposed in an offence of present nature, instead of one year, looking to the date of accident, till this date, if some leniency is shown in modifying the sentence, it would meet the ends of justice.

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From 2011 till this day, the accused petitioner must have suffered mentally, physically and financially. Therefore, if the accused is sentenced to undergo minimum sentence of six months for the offence under Section 304A of IPC, it would meet the ends of justice. So far as imposition of sentence for other offences is concerned, it remains unaltered.

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Accordingly, the aforesaid point is answered in the negative.

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Resultantly, I pass the following:

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ORDER

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i. Revision petition is allowed in-part .

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ii. Impugned judgment of Conviction and

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order of sentence passed by the III Addl. District and Sessions Judge, Ballari sitting

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at Hosapete in Criminal Appeal No.5033/2016 dated 29.08.2018 punishable for the offences under

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Sections 279, 337, 338 of IPC and Section 183, 187 and 192A of MV Act is

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confirmed so also, conviction under Section 304A of IPC. However, there shall be modification of the sentence for the said offences under Section 304A of IPC and sentenced to undergo SI for six months for the said offence.

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iii. Sentence so imposed for other offences

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remain unaltered.

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iv. The accused shall surrender before the

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trial Court within fifteen days from today and shall undergo sentence.

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v. Send the operative portion of the judgment to the trial Court forthwith for compliance through mail.

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