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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 26TH DAY OF OCTOBER, 2016

BEFORE

THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA

CRIMINAL REVISION PETITION No.200056/2016

Between:

Rajkumar S/o Bheemesh Pugund

Age: 35 years, Occ: Driver in KSRTC
Depot No. 3, Gulbarga
R/o Nagur, Tq. and Dist. Kalaburagi
... Petitioner
(By Sri Subhash Mallapur, Advocate)

And:

The State of Karnataka

Through Devadurga Police Station
Now Represented by Addl. S.P.P.
High Court of Karnataka
Kalaburagi
... Respondent
(By Sri P.S.Patil, HCGP)

This Criminal Revision Petition is filed under Section

397 of Cr.P.C., praying allow the top noted revision petition
by setting aside the judgment dated 09.08.2016 passed by
the learned Principal Sessions Judge Raichur, in Criminal
Appeal No.7/2014, whereby, has modified the sentence
confirming the judgment of conviction dated 07.01.2014
passed by the learned J.M.F.C., Devadurga in
C.C.No.410/2010 and acquit the petitioner from all charges.
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This petition is coming on for Admission this day, the

Court made the following:-

ORDER

The accused in C.C.No.410/2010 on the file of

JMFC, Devadurga, has come up in this revision petition

impugning the concurrent findings of both the Courts

below in convicting and sentencing him for the offences

punishable under Sections 279 and 304A of IPC at the

first instance, and restricting the conviction and

sentence only to the offence punishable under Section

304A of IPC in Criminal Appeal No.7/2014.

2. Brief facts leading to this revision petition are

as under:

The revision petitioner herein, Rajkumar, a driver

of KSRTC Depot caused a road traffic accident on

21.04.2010 at about 11.20 a.m., on Devadurga-Arakera

road. At the relevant time, he was functioning as driver

of KSRTC driving bus bearing registration No.KA-33/F-

17 belonging to the said corporation. The accident is

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said to have taken place on the left side of the road

while the victim-Smt. Doulabee was proceeding from her

house to her land along with a cow. The accident

caused by the revision petitioner herein has resulted in

the death of Doulabee and as well as cow belonging to

their family. Hence, the revision petitioner herein was

charge sheeted for the offences punishable under

Sections 279 and 304A of IPC and as well as for the

offence punishable under Section 187 of Motor Vehicles

Act.

3. The proceeding in C.C.No.410/2010 was

culminated in conviction of the revision petitioner for

the offences punishable under Sections 279 and 304A

of IPC. However, he was acquitted for the offence alleged

against him under Section 187 of the Motor Vehicles

Act. He was sentenced to undergo simple imprisonment

for 6 months for the offence punishable under Section

279 of IPC and to pay fine of Rs.1,000/-, in default, to

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undergo simple imprisonment for 45 days for the said

offence. With reference to the offence punishable under

Section 304A of IPC, he was sentenced to undergo

simple imprisonment for 2 years and to pay fine of

Rs.3,000/-, in default, to undergo simple imprisonment

for 6 months.

4. Being aggrieved by the said judgment and

sentence passed in C.C.No.410/2010, he preferred an

appeal in Criminal Appeal No.7/2014 before the Court

of Sessions at Raichur, wherein after considering the

grounds urged with reference to complaint and oral and

the documentary evidence recorded before the Court of

trial, the appeal was allowed partially wherein the

judgment with reference to conviction under Section

279 of IPC was set aside. So far as conviction under

Section 304A of IPC was modified, inasmuch as, period

of simple imprisonment which was fixed for 2 years is

reduced to 1 year and fine that was imposed was

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retained. So far as the default clause is concerned, the

simple imprisonment for 6 months which was ordered is

reduced to 3 months.

5. The revision petitioner not being satisfied with

the same has come up in this revision petition, mainly

on the ground that the Courts below have not taken into

consideration the manner in which the accident has

taken place. The circumstances under which the

accident has taken place as having been revealed in the

evidence is that the victim Doulabee while chasing the

cow which was moving helter skelter on the road has

barged on to the road without taking due care regarding

vehicle which was plying on the road, at that relevant

point of time, hence she has come under the wheels of

the bus. Though the said accident is regrettable, the

same was beyond the control of accused, inasmuch as,

the accident as having taken place due to the negligence

on the part of the victim herself and not that of the

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revision petitioner which is not properly appreciated by

the learned Magistrate in the trial and as well as by the

appellate Court in the appeal filed by him.

6. He would further contend that for the mistake

of the victim if he is convicted for the aforesaid offences,

he being a government employee would lose his job,

inasmuch as, service condition in the Corporation

where he is working would disallow him to continue as

driver if he is convicted under the provisions of Indian

Penal Code with reference to rash and negligent driving

and as well as causing death in a rash and negligent

manner as enunciated under Section 304A of IPC.

7. In this revision petition, he would also submit

that the Courts below have not properly considered

giving him an opportunity to mend his ways under

Section 3 of the Probation of Offenders, Act, 1958,

inasmuch as, in the five years of his service as on the

date of the accident, he had not caused any accident

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either minor or major and that he was not charge

sheeted for any offence either under the provisions of

the Indian Penal Code or under the provisions of Motor

Vehicles Act with reference to any lacuna in his driving.

Further from the date of aforesaid accident till date he

has not committed any offence under any of the

provisions of Indian Penal Code, be it with reference to

driving or in any other matters. In that view of the

matter, an opportunity should have been given to him to

mend his ways and to ensure that such mistake is not

repeated in his service.

8. However, the learned High Court Government

Pleader appearing on behalf of the State would try to

substantiate that the judgment rendered by the

appellate Court is more liberal in allowing the appeal so

far as the offence alleged against him under Section 279

of IPC being set aside and further, sentence which was

passed for the offence punishable under Section 304A of

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IPC being reduced from 2 years to 1 year, the same is

just and proper in the facts and circumstances of the

case. Therefore, question of reviewing the judgment

passed in Criminal Appeal No.7/2014 does not arise for

consideration in this revision petition and the same

shall be dismissed.

9. Heard the learned counsel appearing for both

the parties. The provisions of Section 304A of IPC and

Section 3 of Probation of Offenders, Act, 1958 is looked

into. The same reads as under:

Section 304A of IPC:

“304A. Causing death by negligence

– Whoever causes the death of any person by
doing any rash or negligent act not amounting
to culpable homicide, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine,
or with both.”

Section 3 of the Probation of Offenders

Act, 1958:

“3. Power of Court to release certain

offenders after admonition- When any
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person is found guilty of having committed an

offence punishable under section 379 or
section 380 or section 381 or section 404 or
section 420 of the Indian Penal Code, (45 of
1860) or any offence punishable with
imprisonment for not more than two years, or
with fine, or with both, under the India Penal
Code, or any other law, and no previous
conviction is proved against him and the
Court by which the person is found guilty is of
opinion that, having regard to the
circumstances of the case including the
nature of the offence, and the character of the
offender, it is expedient so to do, then,
notwithstanding anything contained in any
other law for the time being in force, the Court
may, instead of sentencing him to any
punishment or releasing him on probation of
good conduct under section 4 release him
after due admonition
Explanation.- For the purposes of this section,
previous conviction against a person shall
include any previous order made against him
under this section or section 4.”

10. In furtherance to relying upon the aforesaid

provision, learned counsel for the revision petitioner

also cited the judgment rendered by the Hon’ble Apex

Court in the matter of Aitha Chander Rao Vs. State of

Andhra Pradesh reported in 1981 (Supp) SCC 17

wherein under similar circumstances, the Hon’ble Apex

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Court has suspended the sentence of imprisonment

subject to condition stipulated therein. The relevant

portion would read as under:

“The Sessions Judge had found that

there was some amount of contributory
negligence on the part of the appellant and
having regard to the peculiar circumstances of
this case we think it is eminently a fit case in
which the appellant may be released on
probation. We therefore suspend the sentence
of imprisonment only maintaining the fine
imposed on the appellant and instead release
him on probation of good conduct under
Section 4 of the Probation of Offenders Act
and Section 361, Cr.P.C., The appellant shall
execute a bond of Rs.1000 for maintaining
peace and good behavior for a period of one
year and if he violates any condition of the
bond, he may be called upon to surrender
and serve the remaining part of the sentence.
Out of the fine of Rs.500, the entire amount
shall be paid as compensation to the widow
and legal heirs of the deceased.”

11. In addition to that, learned counsel has also

relied upon the unreported judgments of the Co-

ordinate Bench of this Court in the matter of

M.C.Gangaiah Vs. State of Karnataka in Criminal

Revision Petition No.1069/2009 disposed of by

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order dated 04.07.2012 and in the matter of

Jagadeesh Hatti Vs. State of Karnataka in Criminal

Revision Petition No.2315/2010 disposed of on

18.09.2013, wherein under similar circumstances, the

Co-ordinate Bench of this Court has enhanced the fine

which is imposed on the revision petitioner in lieu of the

sentence of imprisonment passed on him taking into

consideration that the revision petitioner in aforesaid

both judgments were drivers in KSRTC and that service

regulations in the said company would render them

ineligible to continue as driver if they are convicted for

the offences punishable under Sections 279 and 304A

of IPC. Therefore, following the aforesaid three

judgments, this Court would allow this revision petition

in the following manner.

12. The judgment and sentence modified by the

Sessions Court in Criminal Appeal No.7/2014 is hereby

confirmed subject to condition that sentence imposed

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under Section 304A of IPC with reference to undergo

simple imprisonment for 1 year is suspended for a

period of two years from today with a condition that he

shall not cause any offence either under the provisions

of Motor Vehicles Act or under the provisions of Indian

Penal Code with reference to rash and negligent Act in

his driving of the bus belonging to KSRTC or any other

vehicle. If such an offence is committed by him, the

sentence which is imposed on him would automatically

revived. In addition to that, fine which is imposed by

the Court below at Rs.3,000/- for the offence

punishable under Section 304A of IPC is increased to

Rs.50,000/- and the same shall be deposited by him

within 60 days from today. On such deposit, a sum of

Rs.45,000/- is ordered to be released in favour of the

husband of the deceased-Doulabee and another sum of

Rs.5,000/- shall be appropriated to the Registry.

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With such observations, this Criminal Revision

Petition is disposed of.

Sd/-
JUDGE

NB*
Ct: MHS