Krishnamurthy K N Vs State by

KRISHNAMURTHY K N S/O LATE NARAYANAPPA AGED ABOUT 41 YEARS C/O ANAND NO. 56/1, JAKKASANDRA NEAR VENUGOPALASWAMY TEMPLE 1^ST BLOCK, KORAMANGALA BANGALORE – 560034

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…PETITIONER

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(BY SRI GOPAL SINGH, ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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STATE BY POLICE INSPECTOR ASHOK NAGAR POLICE STATION BANGALORE – 560 025 REPRESENTED BY ITS STATE PUBLIC PROSECUTOR OFFICE OF THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001

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…RESPONDENT (BY SRI K.NAGESHWARAPPA, HCGP) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 22.02.2018 IN C.C.No.29173/2015 PASSED BY THE M.M.T.C.-I, MAYO HALL UNIT, BENGALURU AND ETC.

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NC: 2026:KHC:12740 CRL.RP No. 1159 of 2021

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HC-KAR

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Gopal Singh, learned counsel for the revision petitioner and Sri K. Nageshwarappa, learned High Court Government Pleader for the respondent/State.

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Revision petitioner is the accused who suffered an order of conviction dated 22.02.2018 in C.C.No.29173/2015 on the file of Metropolitan Magistrate Traffic Court – I, Mayohall Unit, Bengaluru, for the offences punishable under Section 279 and 304A of Indian Penal Code and has been sentenced as under:

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“Acting U/Sec.255(2) of Cr.P.C., the accused is convicted and sentenced him to undergo simple imprisonment for a period of 3 months with a fine of Rs.1000/- for the offences punishable u/s 279 of I.P.C. In default of payment of fine amount, he shall undergo for further S.I. for a period of 30 days.

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The accused is convicted and sentenced to undergo S.I. for a period of one year with a fine of Rs. 10,000/- for the offences punishable u/s.304(A)

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of I.P.C. In default of payment of fine amount, he

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shall undergo S.I. for a period of 6 months.

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Both sentences shall run concurrently.

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The bail bond of the accused shall stands cancelled.

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Supply free copy of this judgment to the accused forthwith.”

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Order of conviction and sentence was challenged before the First Appellate Court in Criminal Appeal No.25044/2018, which came to be dismissed by considered judgment dated 19.11.2020, on the file of XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru.

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Being aggrieved by the same, accused has filed the present revision petition on following grounds:

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That the findings of the trial court and the appellate are without the application of the judicial mind and it has been passed arbitrarily and unjustly.

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 That, the prosecution had examined six witnesses before the trial court among whom four of witnesses were treated hostile. The PW1 was not on the spot when the incident alleged to have happened. PW6 is the Police Officer, who says that, he conducted het investigation after the incident was reported. Thus, it does make clear that, four witnesses turned hostile and two of the witnesses

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deposing aftermath the incident, the conviction which is based on the loose piece of evidence is not only wrong, but, judicially unacceptable.

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

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That, the case of the prosecution is that, the driver of the vehicle, a canter, had rode in a rash and a negligent manner, endangering human life and therefore caused accident of a pedestrian. The factum that required to be proved in a case of such nature is the negligence on the part of the driver of the vehicle. That, the driver had been driving the vehicle on a road which is specifically meant and used for the motor vehicles. The deceased victim, is said to have been a pedestrian. Pedestrian has to move on a footpath or a pavement, which is reserved for foot users. It is not the case of the prosecution that, the vehicle crossed the road and entered the pedestrian area, or the footpath or the pavement and caused the death of such person. It is the pedestrian, which can be made out from the charge sheet materials, that he was on road and he had transgressed the area of walking and therefore he was at negligence. That, there is no evidence to show that, the driver of the vehicle was at fault. That, if at all, there was negligence or a rash driving of the vehicle, there would have been chances that he would have hit many other vehicles or persons. It is a case of a solitary victim and incident, therefore, labelling the driver of the canter vehicle to have driven the motor vehicle in a rash and negligent manner is a wrong finding.

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HC-KAR

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 That, PW2 Inathi is said to be an eye witness. She was treated partially hostile. She is said to be a road side street vendor. She has not spoken of any negligence in driving. That, the timing of the accident is in the morning at about 8.30am. That, the accident alleged is said to have been taken place in a broad day light. That, the driver of the vehicle who would be in the situation of driving would have a good visibility, so as the persons who were on the street. Here in such situation, the negligence is easy to be fixed. Thus, on balancing, it does make out that, the pedestrian was at wrong as he had all the opportunity of knowing the vehicle on the road. Therefore, there was no fault of the driver of the vehicle. A driver of a vehicle has to manoeuvre the vehicle, the traffic, the signals, etc., but, for a pedestrian he has only to be vigilant walker, therefore, the fixation of amount of negligence can be easily made out that, the pedestrian was at fault.

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 That, the sketch which has been produced at Exhibit P11 clearly displays the location and the points of reference. On careful observation of Exhibit P11, clearly displays that, the driver of the vehicle was not at wrong and it was the pedestrian.

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 The petitioner submits that, the victim is said to have died, coming into the rear wheels of the vehicle. Thus, the case of the prosecution that, the vehicle hit the pedestrian proves to be false. That a pedestrian cannot come in the rear wheels of the

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vehicle unless and until he comes to that point from the frontal of the vehicle. That, there is no evidence either in the charge sheet or from the mouth of the witnesses or from the medical records, or from the IMV report that, the vehicle hit the deceased pedestrian, on the front and then the rear tyre of the vehicle crushed the victim. Thus, the entire prosecution case is untenable.

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 That, the trial court has given undue advantage to the materials that are of no worthy consideration. That, the factum of the case required the proof, which was absent. In the absence of the required elements to prove the guilt of the accused, the adjudication should have been otherwise than conviction.

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 That, the trial court has failed to see that, the alleged accident is said to have happened on a busy stretch of Vivek Nagar Main Road. That, rash and negligent driving is almost impossible on such stretch of roads. That, the entire case does not make out the negligence of the accused displayed anywhere.

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 That, the trial court has failed to consider the abundant experience of the petitioner in driving the cargo vehicles. The petitioner, who has a long experience of driving of such vehicles and having caused no accident in his life time, his dedication to the driving and his professionalism has not been considered by the trial court.

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That, the trial court has failed to fix the responsibility of a pedestrian on a motor road. Having not focused on such issue, the guilt determined by the trial court of the accused is unjust and wrong.

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That, there are no materials in the entire prosecution papers to make out the petitioner's negligence in driving, therefore, deserve reversal of the impugned orders.”

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Sri Gopal Singh, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contented that both the Courts have not properly considered the material evidence and placed reliance on the oral testimony of P.W.2 and P.W.4 which are contradictory to each other and wrongly convicted the accused for the aforesaid offences and thus, sought for admitting the revision for further consideration.

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Per contra learned High Court Government Pleader supports the impugned judgment.

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In the light of the rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is noticed that in respect of a road traffic accident occurred on

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24.07.2014, involving a Canter lorry bearing registration No.K.A.01/AA-482, a complaint came to be lodged by P.W.1, who is the elder brother of the deceased in the incident.

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According to the complaint averments, complainant got the information over his mobile telephone that near Ejipura Burial ground, his younger brother has met with an accident and immediately he rushed to the spot, he noticed that body of his younger brother was found in the autorikshaw.

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Based on the information collected from the persons who had assembled near the place of incident, complaint came to be lodged with the Ashok Nagar Police Station.

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Police after registering the case thoroughly investigated the matter and filed charge sheet against the revision petitioner for the offences punishable under Section 279 and 304A of IPC.

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Plea was recorded by the Trial Magistrate and accused pleaded not guilty therefore trial was held.

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In order to bring home the guilt of the accused, prosecution in all examined six witnesses as P.W.1 to P.W.6. Among them, P.W.2 and P.W.4 are the eyewitnesses to the

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incident. P.W.2 has partly supported the case of the prosecution. She is a vegetable fruit vendor standing near the place of incident with a hand pulled cart.

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P.W.2 has deposed before the Court about the incident, wherein the accused being the driver of the Canter lorry bearing registration No.K.A.01/AA-482 dashed against the deceased who fell down and the right side hind tyre of the Canter lorry ran over the deceased.

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P.W.4 - Imthiyaz is yet another eyewitness who was

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travelling in an autorikshaw deposed before the Court that he has seen the incident wherein he deposed that the left side hind tyre of the Canter lorry ran over the deceased.

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In the cross examination of P.W.2 it has been suggested by the accused on behalf of the accused that deceased all of a sudden came on road and due to his negligence, accident has occurred and accused is not responsible for the same.

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Likewise, in the cross examination of P.W.4, similar suggestion was made which was also denied by the said witness.

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P.W.5 is yet another eyewitness who turned partly

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hostile to the case of the prosecution. He has deposed in his examination-in-chief that the deceased was walking on the left side of the road and Canter lorry hit him and left side hind tyre ran over him.

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In his cross examination also, suggestion was made that the deceased himself was negligent which was denied by him.

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After conclusion of the recording of evidence, accused statement as is contemplated under Section 313 of Code of Criminal Procedure was recorded, wherein accused has denied all the incriminatory circumstances including the accident and did not offer any explanation to the incident.

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Thereafter, learned Trial Magistrate heard the arguments of the parties and convicted the accused and sentenced as referred to supra, which was continued before appellate Court.

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On close scrutiny of the material on record, prosecution is successful in establishing that there was a road traffic accident on 24.07.2014 at about 08.30 p.m. near burial

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ground of Ejipura. Accused being the driver of the Canter lorry bearing registration No.K.A.01/AA-482 is not in dispute.

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P.W.2 has specifically stated that after the accident, accused left the lorry and was running away and public had caught hold of him and he identified the accused before the Court. No doubt in the oral evidence of P.W.2, P.W.4 and P.W.5 there is a variation with regard to which portion of the lorry ran over the deceased.

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P.W.4 and P.W.5 consistently stated that it is the left side of the hind tyre ran over the deceased, whereas P.W.2 stated that it is hind wheel of the right side of the lorry which has ran over the deceased.

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Suggestions made to P.W.2, P.W.4 and P.W.5 that on account of the negligent movement of the deceased, incident has occurred which has been denied by them.

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Pertinently, accused himself did not explain this aspect of the matter before the Court when his statement was recorded under Section 313 of Code of Criminal Procedure, instead, he has denied the very accident itself.

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HC-KAR

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In a case like this, recording of the accused statement under Section 313 of Code of Criminal Procedure is not an empty formality. It serves dual purpose.

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Firstly, it would afford an opportunity for the accused to answer the incriminatory circumstances put against him found in the prosecution evidence.

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Secondly, it affords a reasonable opportunity for the accused to put forth his version of the incident. It is at that juncture, accused was expected to state before the Court that the accident has occurred not because of his rash and negligent driving, but because of the negligence attributable to the deceased himself as he came on road all of a sudden. No such explanation is forthcoming by the accused instead he denied the very accident.

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If no such explanation is forthcoming in the accused statement, the consequences in law has to follow as is held by the Hon'ble Apex Court in the case of Ravi Kapur Vs State Of Rajasthan, reported in (2012) 9 SCC 284 .

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Therefore, after the prosecution has established his case that it is because of the negligent driving of the accused

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the accident has occurred and younger brother of the complainant died in the road traffic accident, the accused having failed to offer any suitable explanation, recording of an order of conviction by the Trial Magistrate, confirmed by the First Appellate Court needs no interference, that too in the revisional jurisdiction.

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Having said thus, it is noticed that learned Trial Magistrate has granted one year imprisonment for the offence punishable under Section 304A of Indian Penal Code and the same is confirmed by the learned judge in the First Appellate Court. Learned counsel for the revision petitioner has sought for setting aside imprisonment by enhancing fine amount which can be paid as compensation to the dependents of deceased.

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In a matter of this nature, minimum six months imprisonment has to be granted following the dictum of the Hon'ble Apex Court in the case of STATE OF PUNJAB vs SAURABH BAKSHI, reported in (2015) 5 SCC 182 wherein Their Lordships in paragraph 14 and 15 have held as under:

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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]

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wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial 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 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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***

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13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families,

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criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.’ (Dalbir Singh case [Dalbir Singh v. State of Haryana,(2000) 5 SCC 82:2004 SCC (Cri) 1208],SCC pp. 84-85 & 87, paras 1 & 13)”

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15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] the appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] , SCC p. 735, para 16)

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“16. … ‘5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.’ (Rattan Singh case [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] , SCC pp. 720-21, para 5)”

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HC-KAR

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Therefore, Sentence of one year imprisonment

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needs to be reduced to six months.

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Accordingly, the following:

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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 revision petitioner for the offences punishable under Section 279 and 304A of Indian Penal Code sentence ordered by the Trial Magistrate, confirmed by the First Appellate Court is reduced from one year to six months.

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(iii) Petitioner shall surrender before the Trial Court for serving the sentence on or before 20.03.2026.

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(iv) Office is directed to return the Trial Court records with copy of this order forthwith for issue of modified conviction order.

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Sd/(V SRISHANANDA) JUDGE

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MR

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List No.: 1 Sl No.: 44

Krishnamurthy K N v. State by

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Krishnamurthy K N v. State by

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