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2021 DIGILAW 568 (KAR)

Vijaya Kumar v. State Of Karnataka

2021-04-17

V.SRISHANANDA

body2021
JUDGMENT : 1. Accused in CC No.436/2008 on the file of the JMFC, Lingasugur, has challenged the judgment dtd. 30/3/2012 whereby he was convicted for the offence punishable under Sec. 279 and 304A IPC and sentenced to undergo simple imprisonment for six months and fine of Rs.800.00 with default sentence of simple imprisonment for one month; and simple imprisonment for one year and fine of Rs.3,000.00 with default sentence of simple imprisonment for three months for the offence 279 and 304A IPC respectively, which was confirmed by the judgment dtd. 17/9/2012 of the learned Sessions Judge in CRL.A. No.33/2012. 2. Brief facts which are necessary for disposal of the Revision Petition are as under: Upon a complaint lodged by Veerabhadraiah, s/o. Veeraiah contending that on 17/6/2008 at about 6.20 a.m., near graveyard of Hatti lingasugur Road, Rudrappa @ Palaiah was proceeding on bicycle towards Medinapur from Hutti camp carrying water pots by bicycle, at that time, a cruiser vehicle bearing No.KA-36/B-8979 came from Lingsugur side in a rash and negligent manner and dashed against Rudrappa resulting in his death on the spot. Police registered a case against the accused and after conducting the detailed investigation filed charge sheet for the offence punishable under Ss. 279 and 304A IPC. 3. Learned Magistrate took cognizance of the said offences and secured the presence of the accused and charge was framed. Since accused denied the charges, trial was held. 4. Prosecution in order to prove the guilt of the accused, examined 11 witnesses as PWs.1 to 11 and relied on documentary evidence which were exhibited and marked as Exs. P1 to P8 and a material object MO.1 - bicycle. The accused statement as contemplated under Sec. 313 of Cr.PC. was recorded after conclusion of the evidence wherein the accused denied all the incriminatory circumstances and did not lead any defence evidence or filed his version in writing. 5. Thereafter, learned Magistrate heard both sides and convicted the accused and sentenced him as referred supra. Being aggrieved by the order of conviction and sentence passed, accused preferred an appeal in CRL.A. No.33/2012. Learned Sessions Judge, after securing the records and hearing the arguments, dismissed the appeal by confirming the judgment of the learned Magistrate. 6. 5. Thereafter, learned Magistrate heard both sides and convicted the accused and sentenced him as referred supra. Being aggrieved by the order of conviction and sentence passed, accused preferred an appeal in CRL.A. No.33/2012. Learned Sessions Judge, after securing the records and hearing the arguments, dismissed the appeal by confirming the judgment of the learned Magistrate. 6. Learned counsel for the Revision Petitioner Sri R.V. Nadagouda, vehemently contended that the order of the learned Magistrate and confirmed by the first appellate court are suffering from serious discrepancies inasmuch as the evidence placed by the prosecution was hardly sufficient to convict the accused for the offences punishable under Ss. 279 and 304A of IPC. He also contended that the Trial Court have not properly appreciated the case of the prosecution besides being not following the principles of natural justice and prayed for allowing the petition. 7. Further, the learned counsel for the Revision Petitioner submits that both the courts have ignored the salient principles of law enunciated in catena of judgments of various High Courts while appreciating the case of the prosecution and thus, the orders impugned needs to be set aside. He also argued that the Trial Court has lost sight of the doctrine of merger while passing separate sentence to the accused for the offence punishable under Ss. 279 and 304A IPC and thus sought for allowing the Revision Petition. 8. The learned counsel for the petitioner places reliance on the judgment rendered in the case of Thangasamy Vs. State of Tamilnadu reported in (2019) 16 SCC 235 and prayed for allowing the Revision Petition. 9. Per contra, learned High Court Government Pleader supported the impugned judgments and argued that both the courts have rightly appreciated the case of the prosecution and when once the finding of fact was recorded, this court in the revisional jurisdiction cannot upset the findings recorded by both the courts and thus sought for dismissal of the Revision Petition. 10. In view of the rival contentions, following points would arise for consideration: "(i) Whether the finding recorded by both the courts that accused is guilty of the offences punishable under Sec. 279 and 304A of IPC is suffering from patent defect or error of jurisdiction or illegality, and thus calls for interference? (ii) Whether the sentence passed is excessive? 11. In view of the rival contentions, following points would arise for consideration: "(i) Whether the finding recorded by both the courts that accused is guilty of the offences punishable under Sec. 279 and 304A of IPC is suffering from patent defect or error of jurisdiction or illegality, and thus calls for interference? (ii) Whether the sentence passed is excessive? 11. Answer to the above points are in the negative, and partly in affirmative respectively for the following: REASONS: 12. The case of the prosecution is based on the oral testimony of the eye-witnesses who was also moving on the same direction as that of the deceased in yet another bicycle who is examined before the Court as PW-1, Though PW-7 is also cited as an eye-witness, he did not support the case of the prosecution. Admittedly, PW-7 is the cleaner of the offending vehicle, who has deposed that he was sleeping at the time of incident. PW-3 is also another eye-witness according to the case of prosecution who did not support the case of the prosecution. Though both these witnesses were treated as hostile witnesses, no worth material is elicited in their cross examination by the prosecution. PW-1 being the complainant and independent eye-witness gave an account of the incident categorically with graphic details and withstood the searching cross examination. 13. It is pertinent to note that PW-1 is a total stranger insofar as accused is concerned, who did not possess any previous enmity or animosity so as to falsely implicate the accused in the case. As such, the learned trial Magistrate placing reliance on the oral testimony of PW-1 and convicting the accused for the offence punishable under Ss. 279 and 304A IPC cannot be lightly interfered. Further, the first appellate court has re-appreciated the materials on record and agreed with the finding recorded by the learned Trial Magistrate. It is now well settled principles of law that it is not the quantity of evidence i.e., required to establish the fact before the Court but it is the quality of evidence which is required. Applying the said settled principles to the case on hand, this court does not find any material whatsoever, so as to accept that there is a patent defect or error of jurisdiction or legal infirmity in recording a finding by the learned Magistrate that the accused guilty of the offences alleged. 14. Applying the said settled principles to the case on hand, this court does not find any material whatsoever, so as to accept that there is a patent defect or error of jurisdiction or legal infirmity in recording a finding by the learned Magistrate that the accused guilty of the offences alleged. 14. It is also pertinent to note that accused did not offer any explanation as to the incident when his statement was recorded under Sec. 313 Cr.PC. nor led any defence evidence. What is the role of an accused in a matter of this nature and what is expected of an accused when he is facing charge under Sec. 304A IPC is clearly spelt out in the case of Ravi Kapur Vs State of Rajasthan reported in (2012) 9 SCC 284 . The relevant paragraph of the said judgment is culled out hereunder: "35. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Sec. 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case." 15. In the case of State of Punjab v. Saurabh Bakshi, reported in (2015) 5 SCC 182 it has been held as under: "8. It is submitted by Mr.Madhukar that when the prosecution had been able to establish the charges levelled against the respondent and both the trial court and the appellate court had maintained the sentence there was no justification on the part of the High Court to reduce the sentence to the period already undergone solely on the basis that the respondent had paid some compensation. It is his further submission that keeping in view the gravity of the offence that two deaths had occurred the High Court should have kept itself alive to the nature of the crime and should have been well advised not to interfere with the quantum of sentence. He has commended us to the decisions in State of Punjab v. Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] and Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972] ." 16. Further, following the dictum in the case of Ravi kapur and Sourab bakshi, referred to supra, this court is of the considered opinion that in the absence of any explanation of whatsoever offered by the accused, at the time of recording accused statement, the finding recorded by both the courts is based on sound principles of law and does not calls for interference by this court that too, in the revisional jurisdiction. Accordingly, point no.1 is answered. 17. Regarding Point No.2: There is some force in the arguments advanced by the learned counsel for the petitioner that the sentence is not properly passed. Whenever an accused is convicted for the offence punishable under Ss. 279 and 304A of IPC, a separate sentence needs to be ordered in respect of both the counts is a question that often arises. More so, when only one victim is involved in the incident. Law in this regard is no longer resintegra. Gainfully, this court places its reliance on the judgment of the Hon'ble Apex Court in the case of Gurubasavaraj @ Bennishettappa Vs. State of Karnataka reported in (2012) 8 SCC 734 , wherein the Hon'ble Apex Court has held as under: "14. The next limb of submission of the learned counsel for the appellant is that when he has been acquitted under Sec. 279 IPC, he cannot be punished in respect of the other offences as the allegation of rash and negligent act cannot be treated to have been proven. The aforesaid submission, on a first blush, may look quite attractive, but on a deeper scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The aforesaid submission, on a first blush, may look quite attractive, but on a deeper scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The learned Appellate Judge, after due appreciation of the evidence on record as expected of an appellate Court, has come to the conclusion that the accused was driving the vehicle in a rash and negligent manner. After ascribing some reason, he has thought it apposite that a separate sentence should not be imposed under Sec. 279 IPC, and accordingly, he has set aside the sentence awarded by the trial Court. 18. Applying the above principles of law to the case on hand, and in view of the fact that only one victim is involved in the present case, ordering separate sentence of imprisonment for the offence punishable under Sec. 279 of IPC by the Trial Court is incorrect which has been ignored by the first appellate court. 19. Accordingly, in view of the authoritative pronouncements of the Hon'ble Apex Court in the case of Gurubasavaraj cited supra, the sentence as ordered by the Trial Court for the offence punishable under Sec. 279 of IPC needs to be set aside and to that extent sentence of the Trial Court needs to be modified. However, the imprisonment as ordered by the Trial Court and confirmed by the first appellate Court in regard to Sec. 304A IPC is justifiable in the absence of any mitigating circumstances placed by the accused. 20. There cannot be any dispute as to the principles of law enunciated in Tangasamy referred to supra relied on by the learned counsel for the petitioner. However, the said case can be distinguished on facts. In the said case, the Hon'ble Apex Court took note of the factual aspects as is deposed by PWs.4 & 5 in regard to the nature of accident and then held that negligent driving of the vehicle by the accused resulted in death of four persons and causing injuries to three persons. Insofar as appropriate sentence is concerned, Hon'ble Apex Court placing reliance on Alister Anthony Pareira Vs. Insofar as appropriate sentence is concerned, Hon'ble Apex Court placing reliance on Alister Anthony Pareira Vs. State of Maharashtra reported in 2012 (2) SCC 648 , also noticed that the Trial Court granted only four months imprisonment which was on lower side, but Hon'ble Apex Court desisted from enhancing the punishment on account of the fact that there was no appeal/revision by the State seeking enhancement of the sentence. Therefore, the said decision is not of much avail for the accused to seek reduction of sentence on the count of 304A of IPC. Accordingly, Point No.2 is answered and following order is passed: ORDER (i) Revision Petition is allowed in part. (ii) While maintaining the conviction of the accused for the offence punishable under Ss. 279 and 304A IPC, the separate sentence of simple imprisonment of six months for the offence under Sec. 279 of IPC is hereby set aside. (iii) Rest of the sentence stands un-altered. (iv) The Trial Court records with copy of this order be returned as early as possible. (v) Trial Court shall issue modified conviction warrant. (vi) Revision petitioner shall surrender before the Trial Court forthwith to serve the sentence.