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2005 DIGILAW 216 (KAR)

STATE OF KARNATAKA v. K. FARID ALIAS K. FARISAHEB

2005-03-21

N.S.VEERABHADRAIAH

body2005
( 1 ) THIS appeal is by the state insofar as the inadequacy of sentence for the offence under Section 304-A, IPC imposed on the respondent-accused by the learned II Addl. Sessions Judge, Dharwad in Cri. A. No. 49/93, dated 15-10-1998 reducing the sentence to S. I. for one day and to pay a fine of Rs. 5. 000/- in default to undergo S. I. for five months by modifying the sentence of S. I. for one year and to pay a fine of Rs. 500/- in default to undergo S. I. for two months passed by the learned Prl. J. M. F. C. , Ranebennur in CC No. 18/91, dated 22-6-1993. ( 2 ) THE brief facts of the case are as follows : the accused K. Farid alias K. Farisaheb was charge sheeted for the offence under sections 279 and 304-A, IPC by the ranebennur police, alleging that on 5-10- 1990 at about 10. 30 a. m. the accused being the driver of the truck bearing Registration No. ABC 6359 drove the said vehicle at a high speed in a rash and negligent manner from Ranebennur side towards Haveri on Poona-Bangalore Road and near hanumanamatti Petrol Bunk dashed against a boy viz. , Martandappa Guddappa baradura, aged about 12 years, who was standing on the left side of the road near the said Petrol Bunk as a result of which, the said boy succumbed to the injuries. ( 3 ) THE accused was secured, his plea was recorded for the offence under Sections 279 and 304-A, IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 8, produced Exts. P. 1 to P. 7 and marked M. Os. 1 and 2. The statement of the accused was recorded under Section 313, Cr. P. C. The defence of the accused is one of total denial. ( 4 ) THE learned Prl. J. M. F. C. , ranebennur, for the reasons recorded in his judgment convicted the accused for the offence under Section 304-A, IPC and sentenced him to undergo S. I. for one year and to pay a fine of Rs. 500/- and in default of payment of fine to undergo S. I. for two months. The judgment of conviction and sentence was questioned before the learned ii Addl. Sessions Judge, Dharwad, in Cri. A. No. 49/93. 500/- and in default of payment of fine to undergo S. I. for two months. The judgment of conviction and sentence was questioned before the learned ii Addl. Sessions Judge, Dharwad, in Cri. A. No. 49/93. The learned II Addl. Sessions judge, Dharwad, having confirmed the conviction of the accused for the offence under section 304-A, IPC interfered with the sentence passed by the trial Court by sentencing him to undergo S. I. for one day and to pay a fine of Rs. 5,000/-, in default S. I. for five months. ( 5 ) IN this appeal, the State has questioned the Inadequacy of the sentence passed by the learned II Addl. Sessions judge, Dharwad for the offence under Section 304-A, IPC sentencing the accused to undergo S. I. for one day. ( 6 ) SRI S. G. Rajendra Reddy, learned High court Government Pleader submitted that the learned II Addl. Sessions Judge, dharwad having confirmed the conviction of the accused for the offence under Section 304-A, IPC, ignoring the judicial pronouncements of the Apex Court, took a lenient view and sentenced the accused to undergo S. I. for one day which is not sustainable. He has further submitted that it is mandatory on the part of the learned II Addl. Sessions judge to impose a minimum sentence in the light of the judgment of the Supreme Court sentencing the accused to undergo S. I. for a period of six months. Accordingly, prayed to allow the appeal by sentencing the accused to undergo minimum sentence or to confirm the sentence passed by the learned prl. J. M. F. C. , Ranebennur. ( 7 ) LEARNED Counsel Sri R. Nataraj for the accused submitted that no minimum sentence is prescribed for the offence under section 304-A IPC. The Court may exercise its discretion and impose sentence or fine or both. Therefore, submitted that the sentence passed by the learned II Addl. Sessions Judge does not call for interference. The learned Counsel further submitted that the Court may invoke the provisions of Section 4 of the Probation of Offenders Act, 1958 and release the accused. Accordingly, prayed to dismiss the appeal. ( 8 ) IN the light of the submissions, the points for consideration that arise are :1. Whether the learned II Addl. The learned Counsel further submitted that the Court may invoke the provisions of Section 4 of the Probation of Offenders Act, 1958 and release the accused. Accordingly, prayed to dismiss the appeal. ( 8 ) IN the light of the submissions, the points for consideration that arise are :1. Whether the learned II Addl. Sessions judge Dharwad is justified in interfering with the sentence imposed by the trial Court by reducing it to S. I. for one day and to pay a fine of Rs. 5. 000/-, in default, to undergo S. I. for five months? 2. What order? ( 9 ) THE conviction of the accused for the offence under Section 304-A IPC passed by the learned Prl. J. M. F. C. , Ranebennur and the learned II Addl. Sessions Judge, dharwad have become final. It is clear from the testimony of the prosecution witnesses that on account of the rash and negligent driving of the truck bearing Registration No, abc 6359 by the accused that it resulted in the accident causing death of a boy viz. , martandappa Guddappa Baradura, aged about 12 years that too, near the hanumanmatti Petrol Bunk on Poona-Bangalore road. ( 10 ) NOW the question that has to be considered in the present appeal is only insofar as the inadequacy of the sentence imposed by the learned II Addl. Sessions Judge, dharwad. ( 11 ) SECTION 304-A, IPC reads thus :"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. " ( 12 ) THE punishment prescribed for the offence under Section 304-A, IPC is imprisonment of either description for a term which may extend to two years, or with fine or with both. ( 13 ) IT is no doubt true that the Court can exercise its discretion in imposing the sentence. " ( 12 ) THE punishment prescribed for the offence under Section 304-A, IPC is imprisonment of either description for a term which may extend to two years, or with fine or with both. ( 13 ) IT is no doubt true that the Court can exercise its discretion in imposing the sentence. In the case of State of Karnataka v. Krishna alias Raju, reported in AIR 1987 sc 861 : (1987 Cri LJ 776), at the end of para 7, it is observed as under :"consideration of under-sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal judicial system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250/- on the driver of a Motor vehicle for an offence under S. 304-A, IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice. " ( 14 ) WITH the said observation, the sentence was enhanced to 6 months' RI and to pay a fine of Rs. 1,000/- in default, to undergo RI for 2 months. ( 15 ) IN the case of State of Karnataka v. Sharanappa Basnagouda Aregoudar, reported in AIR 2002 SC 1529 : (2002 Cri LJ 2020), at paras 7 and 8, the Court observed thus :"7. We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned single Judge should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to the subordinate Courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrongdoers and it should commensurate with the seriousness of the offence. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrongdoers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system. 8. In the facts and circumstances of this case, we are inclined to interfere with the judgment of the learned single Judge and hold that the respondent is liable to undergo the sentence imposed by the trial Magistrate and affirmed by the appellate Court. Consequently, we direct that for the offence punishable under Section 304-A, the respondent be taken into custody to undergo a simple imprisonment for six months. As regards offences under Sections 279, 337 and 338, IPC no separate sentence has been awarded by the trial Magistrate. The direction of the trial Magistrate is maintained. " ( 16 ) WITH the above observations, the court confirmed the sentence of 6 months' imprisonment passed by the learned JMFC for the offence under Section 304-A, IPC. ( 17 ) THE present case also stands on the same footing. When the accused has been found guilty and convicted for the offence under Section 304-A, IPC, there was no reason for the learned II Addl. Sessions Judge, dharwad to ignore the principles laid down by the Apex Court in the case of State of karnataka v. Krishna alias Raju, reported in AIR 1987 SC 861 : (1987 Cri LJ 776) rendered earlier to the judgment of the learned sessions Judge. On a careful scrutiny of the testimony of the prosecution witnesses and also in view of the findings of the learned sessions Judge, there was no reason for imposing a lesser sentence and the sentence passed by the learned Sessions Judge is totally disproportionate in the light of the principles enunciated by the Apex Court. On a careful scrutiny of the testimony of the prosecution witnesses and also in view of the findings of the learned sessions Judge, there was no reason for imposing a lesser sentence and the sentence passed by the learned Sessions Judge is totally disproportionate in the light of the principles enunciated by the Apex Court. ( 18 ) IN the case of Dalbir Singh v. State of Haryana, reported in ILR 2000 Kant 2327 : (2000 Cri LJ 2283 : AIR 2000 SC 1677 ), it is clearly held that Section 4 of the Probation of Offenders Act, 1958 cannot be made applicable for the offence under Section 304-A, ipc where the accused is found convicted. Therefore, the prayer of the learned Counsel to invoke the provisions of Section 4 of the Probation of Offenders Act, 1958 and to release the accused is also not tenable. ( 19 ) FOR the foregoing reasons, the sentence imposed by the learned II Addl. Sessions Judge, Dharwad is found to be inadequate and disproportionate. Accordingly the accused is sentenced to undergo SI for a period of 6 months. The fine imposed by the learned II Addl. Sessions Judge, dharwad does not call for interference. The learned Prl. J. M. F. C. , Ranebennur is directed to take the accused into custody and commit him to prison to undergo the remaining part of the sentence. Appeal is allowed accordingly. A copy of this judgment shall be kept in the C. R. of the learned Sessions Judge. Appeal allowed. --- *** --- .