Bangaioreei
IN THE HIGH COURT OF KARNATAKA CIRCUIT.'BEiN.CiH"'v~.,
AT DHARWAD I " t u *
DATED THIS Tm: 28TH DAY oFWAUGU_sT» ~ _ 1: E
BEFORE Q A' i
THE I~1ON'BLE MR. JIi'§3Ti..CEVii1'J.,iiKIJMAi{i~..j.\.'i..._..V 5; V
Criminal Revisiori 13etitiV(_):i1"':ix\..lbu_:_).- ef'
Between: A i. ii 1 A.
Sri Shabbir Mohammadshiraj" --
Gorikhan
Aged about 46 years 5; _ '
Occ: Driver it H ' -- . é .
R/o Veerabhadrai1.a"ga*r,__ _ .. '
Belgaum ' = 7 i
_ V V V .. Petitioner
(By Sri Jagaeii«si1'-Piatili'.i§i'£§i1.re'e~:eit'e<ii
And: V A V 'V
'statgi Ef<8.I'V1v'i3."1Zak'éiH %%%% " ii
Byits State 1i~'r'osecutor
High -Court' B:1ii.1.Vdifi.g.Sv"
A ..Respondent
flay' s_r1 P.H..Gct-tigiiindi, HCGP)
; i»ffTAh'iS'~..crimina1 revision petition is filed 11/3 397 Cr.P.C.
bv the Advocate for the petitioner praying that this I-Iorfble
'.'jjvC'._<__)fui*1: may be pleased to set aside the order dt. 09.11.2005
u
passed by the R0,, F.T.C.~I (Dist. as S.J.), ch11<ee11._g1n
Cr1.A.No.1-42/2004 and etc.
This petition coming on for final hear'
N.Kumar J., made the following:
ORDER
This revision is preferred by’ the ace-useei ch’eii1éen,ging thee]
order of conviction passed in order of
conviction passed by the L ,I*’or the purpose
of convenience, the 4p’ar_tie:’th§ey are referred
to before the leairnfed 3. A .
2. on:’=22.o-4i 12.30 hrs within the limits of
BCPS on Nipe1r’ri’f.Chi];{‘;¢?’c’jg1i,i_ the Samadhi Math, the
eicciiseci. bearing registration No.KA-28
P’r’8:75;fi’Qrn side towards Nipani side in high speed
negligently vveinudfgj-genidangering the human life. He dashed
7,e.ga1inst the ie.ornp1ainant’s mother Shakuntala and her son
‘i._”vV4ivei_kain2£n.d, while Shakuntala was crossing the road from
V” ‘V.’j~vn_o1′:the.rn edge to southern end. On account of the accident,
t
5/’.
the mother Shakuntala died at the Spot and the son .po’fpthe
complainant was seriously injured.
jurisdictional police filed a charge–sheet
punishable under Sections 279,
submitting the charge~sheet,
Court. Provisions of Section 2o7lc£._’:>’.c. l§0ffi1pll’i§eldl with.
Plea was recorded on not
guilty and claimed trial. ‘1lhe:’_p.r(ise{#1t~}§ii~ii//M,-fstablish their
case examined sixi_’.wi:tnesse–s a_sJPWs_– I ltowfi and got marked
13 documeihléiv to Accused in cross–
examination”1n:arl{ed.lVV_ti;iio.iidolcurrients which are marked as
eXhibits–D.1–. c.ross–eXamining PW»6, after the
ieviidencefl, was examined under 313 Cr.P.C.
The’leargxed-ti:’Magi’sti*ate on appreciation of the oral and
7l’documentax”y_”evidence on record held that the prosecution
approved that the accused drove his bus in a high speed
‘Chikkodi side towards Nipani side and dashed to the
icol::r1plainant’s mother and son and caused the accident and
l»2/
the prosecution has proved the offence beyond all reaso~n:a.h1e
doubt against the accused and in the
comp1ainant’s mother Shakuntala diedmdue to”‘thie’gne’gIige11t ii”
and rash driving of the accused and ‘the1jefo:rei,’tn»he~
an offence punishable under Sec’ti’on_304¥’A v V L’
sentenced to undergo one year pay
fine of RS500/~ for offenvciesf Section 279
IPC and in default togpay one month’s
simple iInpTiSOI€1I’£1§’€I}VfA::~iéiielifid months simple
imprisonmezvntiiiian’d}_.V /- for the offence
committed In default to pay, he shall
undergo simpie Further the accused was also
simple imprisonment and pay
fine: the offence committed under Section
IAPC. ,.__’In~.ti’efau1t to pay fine, to undergo one month
“svimpie..imprisonment. The sentence was ordered to be run
V ” e . V ‘concurrently.
gt,
3. Aggrieved by the order convicting him, the actiised
preferred a criminal appeal No.142 of 2004
Track Court–I (District and Sessions Judge, Their ‘
appellate court on reappreciation ofitheilentire-evidence’
record formulated five issues for; consideratiorl,.5Tln”fact;’. l’.1’1€V.”‘.
accused had filed an application foifiahdditionial. evidence under
Section 391 of the Crirriinal Efrnocevdiiifl”-Coded” ffhe said
application was alsovpconsidered appeal on
merits. The held are not just and
reasonable to:i§.rec:al’lil.:l_’theAurnlotor vehicle inspector to
depose befolrepl ‘the “additional evidence. The
prosecution. provevd ibevond reasonable doubt that on
p.rn. accused drove the bus on
Nipanieii-Fi.ikl?iodi’ Road near BCPS in a high speed in a rash
and negl’i«gen.__t’ ‘manner so as to endanger the human life and
l of others and dashed against Shakuntaia and
and caused death of Shakuntala and grievous
li11l_i4ur”‘ie’s to Vivekanand and therefore committed offences
if
punishabie under Sections 279, 338 and 3o54;jA§t’,;i1§5c,.
Therefore, it affirmed the order of conviction
learned Magistrate, but it modified the
Magistrate sentencing the accused
simple imprisonment and pay to
undergo simple imprisonment offence
punishable under Section remaining
part of the senten?ei:7iVi§’S by these two
orders, the accLt:s_ed;:has p–refetred’thisirevision petition.
3. SriCjagadishw’:’f?atil,Vi4Vi1a%.arned counsel for the accused
assailing the passed by the courts below
cc’-n.tende’cli, the””ey_i__dence on record shows that the
a¢¢::;:1e1}1t’r:o,o–x,’p1a¢é not on account of the rash and negligent
but because the deceased suddenly
_jii_ipc*-tri4ed_,to cro~ss}the road with her grandchildren, which fact is
‘1._’_’r;o_tfpféperiy appreciated by the courts below. Even
it V-i:,otheI’w1?se, the deceased has also contributed by her
it,/
047’-‘
negligence to the accident which fact is not considered.
courts below. Thirdly, he contended an app_1i’cat-ion:
additional evidence to examine the motor ve–hic-}.e:’~..ir1’s.pector
was made and it was rejected by the lower a=pf3’e1’l’ateV:courtsl
without sufficient cause. Theref-‘)re..,_’ thel’ab’plication»0ugl_”lt to
be allowed. Permission is to be grantee te”1«e.e_d additional
evidence. Lastly he contended sentence viz., one
year simple imprisonment”‘i’s-::on’ht.h_el side and it
requires to be E~{vel:.:a_fllso that the accused
is entitled to _io1’«.v.:l.Secti.lonV 4 of the Probation of
Offenders Acts1958ands_iih’e..:c’o1;i1d be released by imposing
only fine. :.~ ..
..r§§;.n’tra~,learned public prosecutor supported the
V liirripugned. 0rd’e1’s;~”
“the death of Shakuntala and injury to Vivekanand.
if/is
‘I’i1_eW:_rr1aterial on record clearly establishes the
In fact the suggestions made to the prosecution.’Hvdvititeases
and the statements made under Section 313
accused does not dispute the accideifitf “Iti_s”–.the caseiofuthe.
accused that the deceased with the chi_1d’.
the road and it is because of her r1vegiigence”‘Vtook
place. It is in this contextigthe hasvvitoxestablish
that the accident, the death due to the
rash and negligent ‘dri:\3ing:=A.’0f The material on
record clearly is on the right
side of from Chikkodi side at
a distance oi; road. The road is running
east to west. LA viras i’aci’ngTtowards west 80 feet away from
H mark on the tar road also
bloodspoits” were’ pfresent. Even meat pieces were spread over.
rent Wheel fit” conductors side was touched to the dead
Even wheel was bloodstained. Exhibits–
sketch of scene of offence. In the sketch the bus
shcwn proceeding from Chikodi side to Nipani side and
EL. 3
the accident piace is shown towards right side i.e., nort4hce_rn
side of the road about 3 feet away from
road. On both sides 8 feet kutcha road is shown’ toiwardrs ”
southern side KEB office is shown just a:’o’o2.it
feet away. On the eastern side Sarriadi Math. i’oad=[i’s»..sho’wn. 2 L’
Again towards the eastern side oftthis=r_oad.h«ou’se_ibf PW–2
Muneer Nabbesab Mulia andiiifishop \u/ithja’g1f’t’Jani are shown.
The sketch disc1oses_’th_at or’ib’oth sidfgg e’~;’oo};:'{ 116 feet kutcha
road exists and:.t’12″et<__tot,aE width-…of road is about 35 feet.
80 feet away" is placed. Brake
marks were having meat pieces and
blood on the fofidl about four feet awar from the
daughter of the deceased is the
eye–uw-itriiess" ~.i.vifr'1._ith.i's.–:case. She has deposed that while she
standing"i1i,A«:'front of the shop situated opposite Nipani–
on the northern side facing to the south the
high speed and dashed to her mother. Then the
id1*jii_x:r'e1"–"app1ied the brake and stopped the bus. The bus
_ 19"
dragged her mother for about 100 feet ahead a1’1d_~-then
stopped. The left side front Wheel of the bus was on
of her mother. immediately she ran to the spot
son. He had sustained injuries to head ‘and.other«pia’rts of
body. Bleeding was present and their %aw_-her
who died on the spot. When the”‘-accident’—-tooi<eitwas
about 12.30 pm. Further. she a}_.soiisL:atepdc'-that the said shop
is situated 200 feet away froni which was
visible to them. crosseef{arninatiwo_n;fit is elicited that
she has This evidence of hers
has in no waypptaintediiindV.thc.:cro'ss–examination. In fact the
photographs–i?9 been produced which clearly
account' thevpiace of the accident, the width of the
road,i'—the and the kutcha road on either side of
tar ir"o._adi.__"a§nd«:i"'the place where the bus stopped after the
Ir1*-thhe cross–examination of PW6 the accused got
'two documents as e:s<hibits–D1 to D2 which pertain to
"shop. It has been suggested that this is the shop to
ta/N
which the complainant had gone to purchase the
From the said photograph, it is clear that the shop .
beside the Nipani–Chikkodi road andhinear eierseei«e»o1~the~
accident. Thus photographs also reireaT.'_"th'atiiithe ::sa.id:i'i_T1=oiad:
has got sufficient width and kutc-ha-..roadi'besi.c1ei"the._:tar. road. * it
It is on appreciation of the aforesaid.:'ev_idenceionrecoird, both
the courts have concurrently'heidgvft.h»ati"theV:accident was on
account of the rash..:ia.nd jziegligient the accused.
The deceased child Vivekanand
sustained nothing on record to
suggest thatiiiithpé.dec’c.asiei(j.i;i’1t_a§p”contributed to the accident as
contendedpbyf. the Similarly there is nothing on
accused was trying to cross the
road suddenly got into the road which is
cause. for’ aeeident. The photographs clearly show that
T accused “was driving the bus on the wrong side. He had
V”«_:ta.i§¢_f1″‘theVehicle to the extreme right side of the road. The
evide1’1ce on record discloses that the road was straight to an
‘ \_,:iV,.-
sidelined in forming the said opinion is “the nature-
of the offence.”
Thus Parliament has left it to the Court to decide:When’–a11d
how the Court should form suchlgopiniojnll’=._l
sufficient indication that releasing-.._the ‘c.on”victedl’Awper_son on. ”
probation of good conductmust to to be
expedient. The Word thoughtfully
employed by the Parliarnent”i’n’:.tEi:e to mean it as
“apt and accomplishment
of a specified ‘apt and suitable to
the end in held that the Court must
construe the said. with the context and object
of.-the iltlsfvidflest amplitude. The Word expedient
used ‘inl'”Seyct.i’on:v’4l’o.f the Probation of Offenders Act in the
.’ll”i._cvontext .of’lcastihg duty on the Court to take into account
Lthe’circumstances of the case including the nature of the
it means that Section 4 can be resorted to
H the Court considers the circumstances of the case,
if
particularly the nature of the offence and the court
opinion that it is suitable and appropriate for
specified object that the offender can beiiirelreased
of good conduct.
After laying down the~..aforeisaiti–:’jéprinciplesvviiniivv applying
the said principles to a case iivsectiaga.n__’_i304–A IPC is
concerned, the Sup’re’rne’ Court; 12as’ob’se’1″ve_df as under:
Clo’-rJrts::f:’§fl21is~t;”bear_”iinVémind that when
any plea is S.-4 of the PO Act for
applicationjito VaVcoriifictietiiiépierson under 8.30-4–A of
I.P.C:..-,–. txhatua i”oaC1′.”‘accic1er1ts have profliferated to
evxxtentiiiantivthe toll is galloping up day-
‘b;y–‘day«v._ini and that no solution is in sight
any quarters to bring them
down. this Court lamented two decades ago
[7-‘«.___V’~».that “:n¢’re people die of road accidents than by
“:i’1nos’t~«_.diseases, so much so the Indian highway are
among the top killers of the country” the
saturation of accidents toll was not even
what it is today.”
In fact as on today, India is No’.__1 i::’1rthe’eeworld i”11:”=r_o’a1d
accidents and the number of perv.-§(_)13.$ killedxin roaldlV.ac-cigdents.
It is in this background the Supreme Cvourt what
should be the sentence -para 13 of the
judgment it is stated as under”: — in V
« 1 Bfea.£1fig%: in it the… galloping trend in
road and the devastating
consequences victims and their
families, Cr’imV_£na,1′:–Court’sV cannot treat the nature
.–__of tire offencelu’n«de_r.S.304–»~A, I.P.C. as attracting
provisions of S.-4 of the’PO Act.
the quantum of sentence, to be
imp.osedv.for:’..–the offence of causing death by rash
lpuor negligent driving of automobiles, one of the
llvvflfprinie considerations should be deterrence. A
e:’_lprofessiona1 driver pedals the accelerator of the
VA _,a1.:ltomobi1e almost throughout his working hours.
He must constantly inform himself that he cannot
afford to have a single moment of laxity or___
inattentiveness when his leg is on the pedal of
Vehicle in locomotion. He cannot and should~~–noVt’__’__l”I’
take a chance thinking that a rash driving.__:nejeclvvi’l–li
not necessarily result in the death of’
being; or even if such death ensluesfhe
be convicted of the offence; and that»’eve.nv’l.if
he is convicted of the offence”;«.aiid lastlv that
if he is convicted he would be dealt-avvithfileniently
by the Court. He his mind
the fear psyche of the
offence a human being due to
his callous drivingVgioifiuvehicle he cannot escape
from jailiiilsentenlcebv is the role which the
Cotuits can pilayii: ip8.l’:’I1lCL11aI1y at the level of trial
,.4~Courts;””i:’pfoVi”g._lessevning the high rate of motor
._.a”c._c.iden”ts_!dueto callous driving of automobiles.”
‘V 6. the light of the law laid down by the Apex Court,
getheijtrialii-…Acourt rightly applied those principles. and has
i””‘_’~coi–ivicted the accused to undergo simple imprisonment as
lg,
well as to pay fine. The judgment and order
learned Magistrate as well as by the Appellate Cotiirt
in accordance with law and they hai}e'”rigFi.t1y.gtiec.iine(3;:
exercise their power under Section 4?, of the ‘Probatio=n”~.of
Offenders Act. In that View for
interference is made outnor out for
exercising the power under Probation of
Offenders Act, esppeciiaiiiy theeiiightiijof”tlrieiflaw laid down by
the Apex Courtiin Hence no merits,
revision petition is cisrniisse4d’.«~., _.
Sd/-5
JUDGE