Shivanna v. State by K.M.Doddi Police

(By Shri. P. Karunakara, High Court Government Pleader) This Criminal Revision Petition is filed under Section 397 read with 401 Code of Criminal Procedure, 1973, by the advocate for the petitioner praying to set aside the judgment dated 24.11.2008 passed by the Principal Sessions Judge and 2 concurrent charge of Fast Track Court-IV, Mandya, in Criminal Appeal No.60/2008 and the judgment dated 7.6.2008 passed by the Additional Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, Maddur, in C.C.No.887/2005. This Criminal Revision Petition is coming on for Hearing, this day, the court made the following: O R D E R Heard the learned counsel for the petitioner and the learned Government Pleader.

2. The facts leading up to this case are as follows: The petitioner was the driver of a private bus which was proceeding towards K.M. Doddi from Doddarasinakere and when it neared Doddarasinakere gate at about 12.20 p.m. on 18th December 2004, the said bus bearing Registration No. CRQ-7295 had gone out of control, since it was alleged that the petitioner had tried to turn the bus at high speed, as a result of which the bus toppled, resulting in the death of the cleaner and causing simple and grievous injuries to many others. On the basis of the complaint filed by one D.C. Shivaramu, a case was registered by 3 the jurisdictional police in Crime No.157 of 2004 and after investigation, the charge sheet was filed against the accused- petitioner and the petitioner had pleaded not guilty and claimed to be tried. The prosecution thereafter examined PWs 1 to 19 and marked exhibits P1 to P62 and on consideration of evidence and rival contentions, the Trial Court framed the following points for consideration:

1. Whether the prosecution proves beyond reasonable doubt that on 18.12.2004 at about

12.20 p.m., on the Maddur-Malavalli main road near Doddarasinakere gate the accused driving the bus bearing No.CRQ 7295 in a rash and negligent matter endangering human life and personal safety of others lost control and caused the bus to fall from the road resulting in simple and grievous injuries to the passengers in the bus and thereby committed the offences punishable u/s 279, 337 and 338 IPC?

2. Whether the prosecution proves beyond reasonable doubt that on the date, time and place abore mentioned the accused causing the accident 4 in the above manner resulted in death of cleaner of the bus Andani on the spot nor amounting to culpable homicide and thereby committed the offence punishable under Section 304(A) IPC?

3. The Trial Court answered the points in the affirmative and held that the petitioner was found guilty for offence punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity) and sentenced the petitioner to pay a fine of Rs. 1,000/- for the offence punishable under Section 279 IPC, to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.,1,000/- for the offence punishable under Section 338 IPC and to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 304(A) IPC and to pay a fine of Rs.5,000/-. The same having been challenged in appeal, the Appellate Court had modified the sentence to hold that the conviction of the accused in respect of the offences under various Sections, though confirmed, the sentences were to run concurrently. It is that, which is under challenge in the present petition. 5

4. The learned counsel for the petitioner-accused, would seek to take through the record to contend that the accident cannot be attributed to rash and negligent driving. As seen from the description of the scene, the spot where the accident had occurred, was undergoing repairs, in that, drainage was being constructed and that the ground was soggy on account of recent rains, the bus, though travelling at a sedate speed, had lost control as alleged in the complaint itself and had toppled and it was not account of rash and negligent driving. Since the road condition was bad, it cannot be attributed to any criminal conduct on the part of the petitioner. In the light of the evidence that is tendered, and the witnesses who have spoken in respect of the accident had clearly admitted that the speed of the bus could not be gauged and it is evident that the bus was moving at a slow speed since the bus has toppled as it was negotiating the bend was about to take a turn and it is clear that it was attributable to the road condition and not necessarily to any 6 want of diligence on the part of the petitioner. Even if it could be said that some element of negligence could be attributed to the petitioner, the maximum punishment that could be imposed for an offence punishable under Section 304-A having been imposed by the Courts below, results in grave injustice to the petitioner, having regard to fact that the petitioner had a blemish-less career and there are no earlier incidents that could indicate want of diligence on his part, and given the doubtful evidence as to there being any rash and negligent act on the part of the petitioner and the imposition of serious punishment of imprisonment for two years results in grave injustice and in the alternative, the learned counsel for the petitioner would submit that petitioner is the sole earning member of the family and by virtue of the punishment imposed, not only the petitioner, but his family also would suffer and therefore pleads that the punishment of imprisonment be waived on terms, which this Court may impose.

5. While, the learned Government Pleader would seek to 7 justify the judgments of the Court below and would submit that having regard to the large number of injured people and the fact that the cleaner of the bus had succumbed to the injuries in the accident, the petitioner’s case being viewed with any lenience would result in a miscarriage of justice, as there is no warrant for any such consideration. And in the light of the independent evidence that is available to show that the petitioner was indeed guilty of rash and negligent driving, there is no warrant for interference as any such consideration can only be on a re- appreciation of evidence, which would be completely outside the scope of Section 397 of the Code of Criminal Procedure, 1973 under which this Court can exercise power of Revision and hence would submit that since on facts there are concurrent findings on record, there is no warrant for interference.

6. On a close consideration of record, the plea of the petitioner that the accident had occurred on account of the road condition and not on account of want of diligence on the part of the petitioner, cannot be readily accepted. The bus, as seen 8 from the sketch and as described by the witnesses, had toppled after it had tried to a take turn at the crossing, and therefore, if the bus was moving at a sedate speed such a possibility was remote notwithstanding that the road condition was not conducive to safe driving. Therefore, the question of this Court setting aside the finding of fact, which are concurrent findings, is out of the question. There is no such circumstance, which would require interference of this Court. However, insofar as the punishment is concerned, though the Appellate Court has modified the punishment imposed to direct that the punishment under various Sections to run concurrently, the quantum of punishment imposed is the maximum permissible under Section 304-A IPC. This, having regard to the circumstance of the case, is harsh and has visited the petitioner with a greater degree of punishment than was warranted.

7. Accordingly, insofar as the quantum of punishment is concerned, it would have to be drastically reduced and in the opinion of this Court the punishment of simple imprisonment for 9 a period of one year, apart from fine payable, would be in accordance with law. Accordingly, the petition is allowed in part. The punishment imposed on the petitioner under the various Sections shall be reduced to a period of one year simple imprisonment.

8. The petition is allowed in part in terms as above. Sd/- JUDGE