JUDGMENT : Appellant-State feeling aggrieved by judgment of Trial Court on the file of Additional JMFC, Kumta in C.C.No.646/2015 dated 13.02.2019 preferred this appeal. 2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 15.06.2015 at about 1.00 p.m. on Torake-Devarabhavi road of Gokarna, accused being rider of motorcycle bearing No.KA 30/S-0457 along with pillion rider Nagesh Honna Gowda drove the same in rash and negligent manner, so as to endanger human life and dashed against KSRTC bus bearing No.KA 42/F-425 towards its right front side. Due to rash and negligent driving of motorcycle by accused, the accident in question has occurred, wherein accused sustained simple injuries and pillion rider succumbed to the injuries sustained in the accident on 04.07.2015 while he was under treatment in Tejaswini Hospital, Mangaluru. On these allegations made in the complaint, the Investigating Officer completed the investigation and filed charge sheet. 4. In response to summons, accused appeared through counsel. The substance of accusation was read over and explained to accused, pleaded not guilty and claimed to be tried. Prosecution to prove the accusation leveled against accused relied on evidence of PWs.1 to 9 and documents at Exs.P.1 to P.16. 5. On closure of prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused denied all incriminating material evidence appearing against him and claimed that accident in question occurred due to rash and negligent driving of driver of KSRTC bus. In support of such claim, relied on his own evidence as DW.1. The Trial Court after appreciation of evidence on record, acquitted the accused from the accusation leveled against him. 6. Appellant-State challenging the judgment of acquittal contended that Trial Court has not properly appreciated the material evidence of PWs.1, 3 and 4 with reference to undisputed spot features of accident Ex.P.2 and the sketch map Ex.P.12 of the place of accident. The Trial Court has committed serious error in relying on the defence evidence of accused without there being any basis and the same is contrary to the evidence on record in acquitting the accused. The approach and appreciation of oral and documentary evidence by Trial Court is contrary to law and evidence on record. The Trial Court has committed serious error in relying on the defence evidence of accused without there being any basis and the same is contrary to the evidence on record in acquitting the accused. The approach and appreciation of oral and documentary evidence by Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of Trial Court. Consequently, to convict the accused for the offences alleged against him. 7. In response to notice of appeal, accused has appeared through counsel. 8. Heard the arguments of both sides. 9. On careful perusal of oral and documentary evidence placed on record by the prosecution and the defence evidence of accused DW.1, it would go to show that accident in question occurred on 15.06.2015, at 1.00 p.m. on Torake-Devarabhavi road of Gokarna, the accused was rider of motorcycle bearing No.KA 30/S-0457 along with pillion rider Nagesh Honna Gowda and involvement of KSRTC Bus bearing No.KA 42/F-425 driven by complainant PW.1 who has filed the complainant Ex.P.1. The pillion rider of motorcycle Nagesh Honna Gowda succumbed to the injuries sustained in the accident on 04.07.2015 while he was under treatment in Tejaswini Hospital, Mangaluru. Accused in the said accident suffered simple injures as per wound certificate Ex.P.10. The vehicles involved in the accident were examined by MV Inspector PW.6 and issued MV Report Ex.P.8 are the facts not disputed by the accused and same can also borne out from the material evidence placed on record. It is the defence of accused that accident in question has occurred due to rash and negligent driving of driver of KSRTC bus and by the time he came to the Police Station to file complaint after discharge, came to know that driver of KSRTC bus has already filed the complaint against him. Accused further claimed that on concocted facts, the driver of KSRTC bus to save himself from prosecution has filed the false complaint Ex.P.1. 10. The prosecution has to discharge its initial burden of proving the fact that accident in question occurred due to actionable negligence on the part of accused and as a result, dashed against the KSRTC bus bearing No. KA 42/F-425 coming from the opposite side on its front side bumper, due to which pillion rider of motorcycle Nagesh Honna Gowda succumbed to the injuries sustained in the accident. In the said process, the defence of accused that accident occurred due to actionable negligence of driver of KSRTC bus also has to be appreciated. 11. The factum of accident that occurred on 15.06.2015 and the place of accident, further accused was the rider of motorcycle with pillion rider Nagesh Honna Gowda who succumbed to the injuries sustained in the accident on 04.07.2015 and PW.1 was driving the KSRTC bus bearing No.KA 42/F-425 involved in the accident are the facts not disputed. The oral evidence of PW.1 driver of KSRTC bus who has filed complaint Ex.P.1, Conductor of bus PW.3 and PW.4 independent witness to the accident would go to show that they have consistently deposed about accident occurred on 15.06.2015 at 1.00 p.m. on Torake-Devarabhavi road, Gokarna, accused was rider of motorcycle bearing No.KA 30/S-0457 along with pillion rider Nagesh Honna Gowda and PW.1 was driver of KSRTC Bus bearing No.KA 42/F-425 involved in the accident. The rider of motorcycle i.e. accused sustained simple injuries and pillion rider Nagesh Honna Gowda, immediately after the accident was shifted to hospital, further while he was under treatment in Tejaswini Hospital, Mangaluru succumbed to the injuries sustained in the accident on 04.07.2015. The above referred witnesses were subjected to lengthy cross-examination and they have withstood the test of cross-examination and there is nothing elicited in their cross-examination to discredit their evidence. The defence of accused is that the driver of KSRTC bus bearing No.KA 42/F-425 driven by PW.1 left his way and came to extreme right side, thereby dashed against right side front handle of the motorcycle due to which accident in question has occurred. In order to decide the actionable negligence leading to the accident in question, the above referred evidence of PWs.1, 3, 4 and the defence of accused DW.1, the evidence of PW.2 panch witness to the spot panchanama Ex.P.2 and the author of spot panchanama PW.7 with the photographs Exs.P.3 and P.4 coupled with the sketch map Ex.P.12 and evidence of Investigating Officer PW.2 will have to be appreciated. 12. PW.2 panch witness to spot panchanama Ex.P.2 has spoken about drawing of spot panchanama in his presence, wherein the KSRTC bus bearing No.KA 42/F-425 and the motorcycle bearing No.KA 30/S-0457 involved in the accident were there. 12. PW.2 panch witness to spot panchanama Ex.P.2 has spoken about drawing of spot panchanama in his presence, wherein the KSRTC bus bearing No.KA 42/F-425 and the motorcycle bearing No.KA 30/S-0457 involved in the accident were there. The photographs of place of accident were taken as per Exs.P.3 and P.4 and the spot features of place of accident was noted in the spot panchanama Ex.P.2. PW.7 the scribe of spot panchanama Ex.P.2 has spoken about writing of spot panchanama Ex.P.2 at the place of accident. The evidence of Investigating Officer PW.8 after registering the case Ex.P.11 visited the spot and prepared spot panchanama Ex.P.2 and sketch map Ex.P.12. 13. The spot features recorded in the spot panchanama Ex.P.2 with reference to evidence of PWs.2 and 7 would go to show that the road at the place of accident runs from Madangiri to Gokarna in East-West direction. The width of road at the place of accident is 18 feet and the distance from Northern side road to the place of accident is 11 feet and distance from Southern side is about 7 feet. Indisputably, both the vehicles prior to the accident were moving in an opposite direction. The KSRTC bus bearing No.KA 42/F-425 driven by accused was proceeding from Madangiri towards Gokarna and he was supposed to keep left side that is to Southern side of the road. Accused was proceeding on his motorcycle bearing No.KA 30/S-0457 with pillion rider Nagesh Honna Gowda was proceeding from Gokarna towards Madangiri and he was supposed to keep his left side i.e. towards Northern side. It is specific evidence of PW.1 who was driver of KSRTC bus bearing No.KA 42/F-425 that on seeing the rider of motorcycle coming with high speed from opposite side, took his vehicle to left side. However, inspite of it, the rider of motorcycle bearing No.KA 30/S-0457 dashed to the front right side bumper portion of the right side head light, due to which, rider of the motorcycle and pillion rider fell to the ground and they have sustained injuries. However, inspite of it, the rider of motorcycle bearing No.KA 30/S-0457 dashed to the front right side bumper portion of the right side head light, due to which, rider of the motorcycle and pillion rider fell to the ground and they have sustained injuries. Looking to the spot features recorded in spot panchanama Ex.P.2 and photographs Exs.P.3 and P.4, the damages caused to both the vehicles as per MV Report Ex.P.8, further coupled with the sketch map as per Ex.P.12 would unmistakably demonstrate the fact that accused being the rider of motorcycle bearing No.KA 30/S-0457 while proceeding from Gokarna to Madangiri on the road leading to East-West, who was supposed to keep left side of the road towards Northern side has exceeded his way of limit and came to the extreme right side and dashed against the right side bumper portion of KSRTC Bus No.KA 42 F/-425, due to which the accident in question has occurred. The rider of the motorcycle has succumbed to the injuries sustained in the accident on 04.07.2015 while he was under treatment in Tejaswini Hospital, Mangaluru, and Ex.P.9 is the PM Report to substantiate the said fact. Accused also suffered simple injuries as per wound certificate Ex.P.10 issued by Medical officer, General Hospital, Kumta. The said evidence of PW.1 is duly corroborated by the evidence of PWs.3 and 4. Therefore, the defence of accused and his evidence as DW.1 that accident in question occurred due to culpable rashness and negligence on account of driver of KSRTC bus No.KA 42/F-425 who has exceeded his way of limit to the left side and proceeded to the extreme right side and dashed against the right side portion of motorcycle cannot be accepted in view of oral evidence of PWs.1, 3 and 4, further the evidence of PWs.2 and 7 with reference to spot features recorded in spot panchanama Ex.P.2 and sketch map Ex.P.12 which fact has been further strengthened by evidence of Investigating Officer PW.8. 14. The Trial Court without properly appreciating the oral evidence of PWs.1, 3 and 4 and undisputed place of accident which is also certified by evidence of PW.2 and spot features at the place of accident Ex.P.2 and sketch map Ex.P.12 coupled with evidence of Investigating Officer PW.8 has recorded erroneous findings that prosecution has failed to prove the offences alleged against accused. The observations and findings recorded by the Trial Court are contrary to above referred evidence on record. Therefore, same cannot be legally sustained and this Court for the reasons recorded above, has observed and held that accident in question has occurred due to culpable rashness or negligence of accused in driving the motorcycle bearing No.KA 30/S-0457 and as a result, dashed against the KSRTC bus bearing No.KA 42/F-425 coming from the opposite side by exceeding his way of limit and traveled to the extreme right side by dashing to the right side portion bumper below the right side head light. On account of such actionable negligence, pillion rider of motorcycle Nagesh Honna Gowda succumbed to the injuries sustained in the accident and accused himself suffered injuries as recorded in would certificate Ex.P.10. The Trial Court has rightly acquitted the offence under Section 337 of IPC, since the accused himself is injured in this case. The prosecution has proved the guilt of accused beyond all reasonable doubt for offences under Section 279 and 304A of IPC. The contrary finding recorded by the Trial Court cannot be legally sustained in view of above referred evidence placed on record by the prosecution. Therefore, interference of this Court is required. 15. Now, coming to the question of imposition of sentence, the offence under Section 279 and 304A of IPC are punishable with imprisonment or fine or with both. The offence under Section 279 of IPC merges with the offence under Section 304A of IPC. Hence, separate sentence for the offence under Section 279 of IPC cannot be imposed. In this context it is useful to refer Co-ordinate Bench judgment of this Court in Anil s/o Seetaram Lamani Vs. The State of Karnataka, Crl.R.P.No.2509/2012, dated 09.08.2017 wherein it has been observed and held that:- "Though the offence punishable under Section 279 of IPC is independent, when the accused is charge sheeted under Section 304A of IPC, an offence under Section 279 of IPC virtually merges with the main offence punishable under Section 304A of IPC". This finding has been recorded on the basis of judgment of Hon'ble Apex Court in Guru Basavaraj Alias Benne Settappa Vs. State of Karnataka reported in (2012) 8 SCC 734 . Therefore, in view of the principles enunciated in the aforementioned judgment of this Court and Hon'ble Apex Court separate imposition of sentence under Section 279 of IPC is unwarranted. This finding has been recorded on the basis of judgment of Hon'ble Apex Court in Guru Basavaraj Alias Benne Settappa Vs. State of Karnataka reported in (2012) 8 SCC 734 . Therefore, in view of the principles enunciated in the aforementioned judgment of this Court and Hon'ble Apex Court separate imposition of sentence under Section 279 of IPC is unwarranted. 16. When the prosecution has proved the offence under Section 304A of IPC appropriate sentence will have to be imposed. The benefit of Section 4 of P.O. Act is not available to the cases covered under Section 304A of IPC. In this context it is useful to refer the judgment of Hon'ble Apex Court in Dalbir Singh vs. State of Haryana reported in Crl.L.J 2000 page No. 2283 (SC), wherein, it has been observed and held that :- "Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the P.O.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." 17. Where the accused is found guilty for the offence under Section 304A of IPC mere sentence of fine is not adequate. In this context it is profitable to refer the judgment of this Court in State Vs. Embichi Ahmed reported in ILR 1990, page No.598, wherein it has been observed and held that "Consideration of undue 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 imposition of sentence of fine of Rs.250/-on the driver of a motor vehicle for an offence under Section 304 of IPC and that too without any extenuating or mitigating circumstances is bound to shock the conscience of anyone and will unmistakably leave the impression that the trial was a mockery of justice." 18. The Hon'ble Apex Court in another judgment in State of Madhya Pradesh Vs. The Hon'ble Apex Court in another judgment in State of Madhya Pradesh Vs. Surendra Singh reported in (2015) 1 SCC 222 , wherein it has been observed and held that:- "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of offence will be counterproductive in the long run and against the interest of the Society." In a latest judgment of Hon'ble Apex Court in State of Punjab Vs. Dil Bahadur reported in 2023 Live Law (SC) 267, wherein, it has been observed and held that “The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and defenceless and unprotected state of the victim. Imposition of appropriate is the manual in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Court should impose punishment befitting to the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." In view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court, it is evident that mere imposition of fine is not adequate for the prove offence under Section 304A of IPC. The Court will have to impose appropriate punishment for the offence under Section 304A of IPC looking to the facts and circumstances of the case. The Court will have to impose appropriate punishment for the offence under Section 304A of IPC looking to the facts and circumstances of the case. In view of the facts and circumstances of the case, if the accused is sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for a period of two months for the offence under Section 304A of IPC is ordered, will meet the ends of justice. Consequently, proceed to pass the following; Order Appeal filed by the appellant-State is hereby allowed. The judgment of Trial Court on the file of Additional JMFC, Kumta, in C.C.No.646/2015 dated 13.02.2019 is hereby set aside. Accused is sentenced to undergo simple imprisonment for six months and pay fine of Rs.5,000/-, in default of payment of fine, shall undergo simple imprisonment for two months for the offence under Section 304A of IPC. No separate sentence is awarded for the offence punishable under Section 279 of IPC. Registry is directed to send back the records along with copy of this judgment to Trial Court.