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Karnataka High Court · body

2019 DIGILAW 2006 (KAR)

State Of Karnataka v. Bheemapa Jakkanna

2019-09-13

B.A.PATIL

body2019
JUDGMENT : B A Patil, J. Heard the learned counsel for the appellant-State and learned counsel for the respondent-accused. 2. The present appeal has been preferred by the State challenging the sentence imposed by the trial Court in C.C.No.470/2011, dated 29.12.2017 passed by the Civil Judge and JMFC, Aluru. Where under, the accused is convicted and sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 279 of IPC, in default 30 days simple imprisonment; fine of Rs.500/- for the offence punishable under Section 337 of IPC, in default 30 days simple imprisonment and fine of Rs. 10,000/- for the offence punishable under Section 304(A) and in default six months simple imprisonment. 3. The facts of the case as per the case of prosecution is that on 31.12.2010 at about 4.30 p.m., the accused being the driver of the Qualis Car bearing registration No.KA.02-P-577 drew the same in a rash and negligent manner on NH-48 and dashed against the Hero Honda motor cycle bearing registration No.KA-02-EH- 9288 and as a result of the same the accident occurred. The rider as well as the pillion rider sustained injuries and the rider died on the spot. On the basis of the complaint, a case has been registered in Crime No.497/2010. After the investigation, the charge-sheet was filed against the accused. 4. The learned Magistrate took cognizance and secured the presence of the accused and after following the formalities under Section 207 of Cr.P.C., plea was prepared. Accused pleaded not guilty and he claimed to be tried and as such trial was fixed. 5. In order to prove the case, prosecution got examined 11 witnesses, marked 10 documents and one Material Object and thereafter, statement of the accused was recorded by putting incriminating material as against him. He has denied the same. However, he has not led any defence evidence and did not mark any documents. After hearing both sides and after consideration of the material on record, the trial Court found the accused guilty and convicted him as stated above. Challenging the legality and correctness of the sentence, the State is before this Court. 6. It is the submission of learned HCGP that the trial Court though convicted the accused for the offences punishable under Sections 279,337 and 304(A) of IPC, but it has not punished the accused in accordance with law. Challenging the legality and correctness of the sentence, the State is before this Court. 6. It is the submission of learned HCGP that the trial Court though convicted the accused for the offences punishable under Sections 279,337 and 304(A) of IPC, but it has not punished the accused in accordance with law. It is his further submission that as per Section 304(A) of IPC, minimum sentence of imprisonment of six months ought to have been imposed, but only fine amount has been imposed to the extent of Rs.10,000/-. 7. Learned Magistrate without keeping in view the fact that in the said accident, the victim has succumbed to the injuries, has awarded only a fine amount and it ought to have awarded a minimum sentence as laid down by Hon'ble Apex Court. He further submitted that the sentence must befitting the offence and that it must be proportionate to the offences committed by the accused. The prosecution has clearly established the guilt of the accused, but the trial Court without properly considering the same, has taken a lenient view and has only imposed the fine. On these grounds, he prayed to allow the appeal and to impose proper sentence. 8. Per Contra, the learned counsel appearing on behalf of the respondent-accused vehemently argued and submitted that, the evidence which has been placed on record is not cogent and acceptable. Though PW.1 is the complainant and eye-witness to the alleged incident, his evidence is shaky and it is not trustworthy and reliable. It is his further submission that PW.2 is an eye witness. He has also not supported the case of prosecution and he has been treated as hostile. The other witnesses have not supported the case of prosecution. It is his further submission that the Motor Vehicle examination report shows that only mirror of the Qualis car has been damaged and the deceased who was riding the motorcycle himself was rash and negligent and due to the over speed, he came on the right side and he dashed against the tree, due to which, he sustained injuries on the head and other parts of the body and succumbed to the injuries on the spot. He further submitted that the accused is not liable for the conviction. On these grounds, he prayed to dismiss the appeal. 9. He further submitted that the accused is not liable for the conviction. On these grounds, he prayed to dismiss the appeal. 9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records. Prosecution in order to establish its case got examined PWs.1 to 11. PW.2 is the eye-witness to the alleged accident. In his evidence, he has deposed that on 31.12.2010 at about 4.30 p.m., when he was standing near gate of his house, Praveen Kumar and another person came on two wheeler and at that time the Qualis car came and dashed to the two wheeler and as a result of the same, he went and dashed against the right side of the tree and when he went and saw, the said rider of the motorcycle has already died due to the injuries. Immediately, he sent injured CW.2 in the ambulance to the hospital. He has also been treated as hostile. During the course of cross-examination, he has admitted the fact that the said Qualis vehicle was driving with a great speed in a rash and negligent manner. PW.1 is the complainant and he deposed that on 31.12.2010 at about 4.30 p.m., when he was proceeding on his motor cycle, at that time, Praveen Kumar along with CW.2 were proceeding infront of him towards Alur side, when they came near the poultry farm, the Qualis vehicle came in a great speed and dashed to the motorcycle and as a result of the same, the said rider of the motor cycle went towards right side and dashed to the right side tree. He called 108 ambulance and shifted him to the hospital. He has deposed that he has filed a complaint as per Ex.P1. During the course of cross-examination, he has admitted that because of the rider of motor cycle went and hit to the tree, he sustained injuries to his head and other parts of the body and died on the spot. The said suggestion has been admitted by this witness. He has also admitted that when he went near the spot, he noticed that bark of the tree has come out. He has also further admitted that right side mirror of the Qualis vehicle has been damaged and the pieces were lying on the spot. The said suggestion has been admitted by this witness. He has also admitted that when he went near the spot, he noticed that bark of the tree has come out. He has also further admitted that right side mirror of the Qualis vehicle has been damaged and the pieces were lying on the spot. Apart from that no other damages have been caused to the Qualis vehicle. Except that nothing has been elicited from the mouth of this witness. PW.3 is the mahazar witness to the panchanama Ex.P3. PWs.4 and 5 are the owners of the vehicle. PW.6 is the Head Constable who recorded the statement of the complainant and produced before PW.7. On the basis of the said complaint, PW.7 registered the case and issued the FIR. PW.8 is the person who registered the complaint recorded by PW.6 and produced by PW.7. PW.9 is the Motor Vehicle Inspector who inspected the vehicle. In his evidence, he has deposed that he has checked the Qualis vehicle. The right side front mud guard and backside trim and back mirror have been damaged and the said vehicle is in good condition. He has also examined Hero Honda and deposed that the front fork headlight, dome, instrument planner, indicator, crush guard front wheel and mud guard, petrol tank, break light assembly have been fully damaged and accordingly he has given the report as per Ex.P10. PW.10 is the spot mahazar pancha to Ex.P2. PW.11 is the Investigating Officer who investigated the case and filed the charge-sheet. 10. The trial Court after considering the evidence of PWs.1 and 2 has come to the conclusion that the accused-respondent has committed the alleged offence and convicted him. 11. The main contention which has been raised by the learned HCGP is that the sentence imposed by the trial Court is not adequate. The sentence has to be awarded befitting the crime. As could be seen from Section 279 of IPC, a discretion has been given to the Court to sentence the accused with imprisonment for a term which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both. So also, under Section 337 of IPC, the Court has to impose sentence of imprisonment for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both. So also, under Section 337 of IPC, the Court has to impose sentence of imprisonment for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both. As could be seen from the judgment of the trial Court, for the offence punishable under Section 279 of IPC, the trial Court has imposed sentence to pay a fine of Rs.1,000/-, in default, to undergo SI for a period of 30 days; for the offence punishable under Section 337 of IPC, the trial Court has imposed a fine of Rs.500/-, in default, to undergo SI for a period of 30 days. In this behalf, the trial Court has not committed any error and the said sentence does not appear to be inadequate or it cannot be said to be disproportionate. 12. It is well established principle of law laid down by the Hon'ble Apex Court that the Court has to strike a balance between the reformative as well as punitive theories. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime. This proposition of law has been laid down in the case of Akram Khan Vs. State of West Bengal, (2012) 1 Crimes(SC) 5. As could be seen from the impugned order of sentence, the trial Court has convicted the accused for the offence punishable under Section 304A of IPC and imposed fine of Rs.10,000/-, in default, to undergo SI for a period of six months. Though the said Section does not prescribe any minimum sentence, in the case of State of Karnataka Vs. Krishna @ Raju, (1987) AIR SC 861; and in the case of State of Karnataka Vs. Sharanappa Basanagouda Aregoudar, (2002) AIR SC 1529 the Hon'ble Apex Court has held that having regard to the serious nature of the accident, the sentence imposed may create and set an unhealthy precedent and send wrong signals to the subordinate Courts and as such the minimum sentence of six months for the offence punishable under Section 304A has to be awarded and after the said decision of the Hon'ble Apex Court, it is binding on the subordinate Courts and it is the precedent which is being followed in all the cases. 13. 13. As held above, the sentence must be befitting the crime committed by the accused as well as it must send a proper signal to the society and the accused has to be sentenced for a minimum period of six months. However, on going through the evidence and the material placed on record, though PWs.1 and 2 have deposed with regard to the alleged accident, as could be seen from the evidence of PW.1, he has deposed that the said vehicle came with great speed, but he has not deposed that the said vehicle was being driven by its driver in a rash and negligent manner. Even in his cross-examination PW.1 has admitted that the rider of the two wheeler went and dashed to the tree on the right side of the road and as a result of the same, he sustained injury to his head and died. When he dashed to the tree, bark of the tree also came out. He has further admitted that only the rare mirror of Qualis vehicle was damaged and no other damage was caused to the said Qualis vehicle. 14. PW.2 has not supported the case of the prosecution and he has been treated as hostile. During the course of his cross-examination, the suggestion made by the learned APP that the said vehicle came with great speed and in negligent manner, has been admitted. He has also not deposed that the alleged accident has taken place due to rash and negligent driving of the said vehicle. Even during the course of cross-examination, PW.2 has admitted that by the time he went to the spot, already rider of the motorcycle hit the tree and fallen down. If the evidence of PWs.1 and 2 is perused along with the evidence of PW.9, the MV Inspector, who has deposed that right side of front portion of mudguard, backside of trip and plop and rare mirror of Qualis vehicle have been damaged. He has also examined Hero Honda motorcycle bearing Regn.No.KA-02-EH-9288 and found that front fork, headlight and dum, instrument planner, indicator, crashguard, front wheel, front mudguard, petrol tank, brakelight assembly were damaged. He has also examined Hero Honda motorcycle bearing Regn.No.KA-02-EH-9288 and found that front fork, headlight and dum, instrument planner, indicator, crashguard, front wheel, front mudguard, petrol tank, brakelight assembly were damaged. It is the case of the prosecution that the said Qualis vehicle came and hit to two wheeler and as a result of the same, the rider of the motorcycle was thrown and he dashed to the tree and as a result of the same, the alleged accident has taken place. As could be seen from the sketch at Ex.P7 it indicates that the rider of the motorcycle went on the wrong side of the road and thereafter hit to the rare mirror of Qualis vehicle and thereafter hit to the tree, that itself clearly goes to show that it is not the respondent-accused who was rash and negligent at the time of the alleged accident. The Qualis vehicle was coming on the left side of the road and the width of the road was more than 40 feet that itself clearly goes to show that because of the negligence on the part of the rider of the motorcycle, the alleged accident has taken place and even more damages have caused to the motorcycle. If the Qualis vehicle only dashed and pushed the victim, then under such circumstances, so much of damage ought not to have been caused to the motorcycle. Looking from any angle, I am of the considered opinion that though the accused-respondent has been convicted for the offence punishable under Section 304A of IPC only on that point, actually the material on record has not been properly appreciated by the trial Court and has come to a wrong conclusion and wrongly convicted the accused. 15. However, during the course of arguments, it is submitted that the accused has already paid the fine amount and he has not preferred any appeal as against the judgment and order of conviction and sentence. Under such circumstances, I feel that if the impugned judgment and order of conviction and sentence is confirmed without interference of this Court, then under such circumstances, it would meet the ends of justice. Under such circumstances, I feel that if the impugned judgment and order of conviction and sentence is confirmed without interference of this Court, then under such circumstances, it would meet the ends of justice. Though this Court is inclined to set aside the impugned judgment and order, for the reasons discussed above, unfortunately as the accused has not preferred any appeal against the impugned judgment and order of conviction and sentence and he has complied with the same by paying the fine amount, the impugned judgment and order of conviction and sentence is liable to confirmed and accordingly, the same is confirmed. With the aforesaid observations, the appeal is disposed of.