Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1325 OF 2012

(Arising out of S.L.P. (Criminal) No. 9132 of 2011

Guru Basavaraj @ Benne Settappa ... Appellant

Versus

State of Karnataka ... Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.In this appeal preferred by special leave under Article 136 of

the Constitution of India, the assail is to the judgment and order

dated 21.06.2011 in Criminal Revision Petition No. 2284 of 2009

passed by the High Court of Karnataka Circuit Bench at

Dharwad whereby the High court has concurred with the

judgment of conviction and order of sentence passed by the

Page 2 2

learned Addl. Sessions Judge, Hospet in Criminal Appeal No. 58

of 2008 wherein the appellate court had set aside the sentence

under Section 279 of the Indian Penal Code, 1860 (for short “the

IPC”) and affirmed the conviction and sentence for offences

punishable under Sections 337, 338 and 304 A of the IPC as

passed by the Judicial Magistrate First Class, Hospet.

3.The broad essential facts leading to the trial of the accused-

appellant (hereinafter referred to as ‘the accused’) are that on

25.03.2006, about 10.15 a.m., the accused-driver was driving an

unregistered new tractor on National Highway No. 13 at bypass

road near the open well of one Golya Naik. The tractor turned

turtle towards the left side and caused simple injuries to many

people who were sitting inside the trailer of the tractor and

grievous injuries to three persons. Injured Kotraiah succumbed

to the injuries sustained in the accident. Be it noted, all the

injured persons were travelling along with their goods in the

trailer of the said tractor.

4.After the accident took place, the concerned police sub-

inspector (PSI) reached the spot, recorded the statement of the

injured persons and after returning to the police station

Page 3 3

registered an FIR and thereafter proceeded to the spot, prepared

the sketch map, seized the vehicle in question and sent the dead

body for post-mortem. After completing the investigation, he

placed the charge-sheet before the Competent Court for the

offences punishable under Sections 279, 337, 338 and 304-A of

the IPC read with Section 187 of the Motor Vehicles Act, 1988.

5.The prosecution, in order to substantiate the allegations,

examined 10 witnesses and got a number of documents marked

as exhibits P-1 to P-24.

6.The accused, in his statement under Section 313 Cr.P.C.,

denied the incriminating material brought against him and took

the stand that the accident occurred due to mechanical failure

and not because of rash and negligent driving. However, he

chose not to adduce any evidence.

7.The learned Magistrate acquitted the accused of the offence

under Section 187 of the 1988 Act and convicted him for the

offences punishable under Sections 279, 337, 338 and 304-A of

the IPC and sentenced him to pay a certain sum as fine and, in

default of payment of the same, to undergo simple imprisonment

for a specific period in respect of the offences under Sections 279

Page 4 4

and 337 and Section 338 of the IPC As far as the offence under

Section 304-A of the IPC is concerned, the learned Magistrate

imposed the sentence of simple imprisonment of six months and

to pay a fine of Rs. 2000/- and, in default, to suffer simple

imprisonment of 45 days.

8.On an appeal being preferred assailing the conviction and

sentence, the learned appellate Judge basically posed two

questions, namely, whether the findings recorded by the trial

court are erroneous and whether the sentence passed by the trial

court required to be interfered with in appeal. After analysing

the evidence, the appellate court came to hold that it had been

proven beyond doubt that the accused being the driver of a newly

purchased unregistered tractor not only overloaded tamarind

bags on the old trailer but also allowed 22 passengers to travel on

the loaded trailer and due to his negligence, the trailer got

detached from the tractor as a consequence of which it turned

turtle by the side of the road. That apart, after detachment of

the trailer, the tractor moved up to 30 feet which clearly reflected

that the tractor was in high speed.

Page 5 5

9.The learned appellate Judge concurred with the view of the

learned Magistrate that the accident had not occurred due to

mechanical defect but there was rash and negligence on the part

of the accused and the same had been established by the

unimpeachable evidence of independent witnesses. Because of

the aforesaid view, he answered the first question in the negative.

As far as the second question is concerned, he sustained the

conviction in respect of all the offences but set aside the sentence

imposed for the offence punishable under Section 279 of the IPC.

10.Questioning the legal sustainability of the conviction, it is

submitted by Mr. S. N. Bhat, learned counsel for the appellant,

that all the courts have fallen into grave error by expressing the

opinion that the accident had not occurred due to mechanical

failure, namely, due to non-functioning of the hydraulic system

in a proper manner, and such an expression of opinion vividly

exposits perversity of approach. It is further urged by him that

when the appellant has been acquitted of the offence punishable

under Section 279 of the IPC, he could not have been punished

in respect of the rest of the offences. The last limb of submission

of Mr. Bhatt is that at the time of the accident, the appellant was

22 years of age and, in the meantime, his marriage has taken

Page 6 6

place and, therefore, the same should be regarded as acceptable

mitigating factors and the substantive sentence should be

restricted to the period already undergone in custody and the

quantum of fine be enhanced.

11.Ms. Vishruti Vijay, learned counsel for the State, per contra,

contended that the analysis of the evidence made by the learned

Magistrate as well as by the appellate court are absolutely

flawless and the concurrence thereof by the High Court, in no

manner, can be stated to be perverse. It is put forth by him that

there is ample evidence on record that the incident took place

due to rash and negligent act on the part of the appellant and the

said finding, being appositely founded on the material on record,

does not warrant any interference by this Court. Commenting on

the submission that the appellant has been acquitted under

Section 279 of the IPC and hence, he deserves to be acquitted in

respect of the other offences, it is propounded by Ms. Vishruti

Vijay that on a studied perusal of the judgment of the learned

appellate Judge, it is quite clear that he has maintained the

conviction and not imposed a separate sentence under Section

279 of the IPC and, for that reason, he has set aside the sentence

but not the conviction. The learned counsel further submitted

Page 7 7

that regard being had to the careless, negligent and callous

attitude that has been exhibited by the drivers who are expected

to be professionals, the rate of road accidents that has extremely

gone high and further, in the case at hand, when so many people

have been injured, some have sustained grievous injuries and a

life has been lost, lenient delineation would be an anathema to

the concept of adequate punishment.

12.First, we shall deal with the facet of rash and negligent

driving of the driver. The learned counsel for the appellant has

submitted that the vehicle turned turtle due to mechanical

failure i.e. non-functioning of the hydraulic system in a proper

manner. To appreciate the said submission, we have carefully

perused the material brought on record and the analysis made by

the courts below. On a careful scrutiny of the same, we find that

all the courts have placed reliance on independent witnesses as

well as the testimony of PW-10, the Motor Vehicle Inspector. The

manner in which the accident occurred due to detachment of the

trailer from the tractor and the distance to which the tractor

moved vividly reveals that the vehicle in question was driven

recklessly at a high speed. The plea of mechanical failure as put

forth by the accused was not even suggested to the Inspector.

Page 8 8

What is sought to be emphasised before this Court is that PW-3

has deposed that the accident occurred due to mechanical

failure. The trial court as well as the High Court has not

accepted the testimony of PW-3 as he is only an agriculturist

while the other technical experts including the Motor Vehicle

Inspector have deposed about the rash and negligent driving.

Analysing the evidence in entirety, the learned trial judge as well

as the appellate judge has returned the finding as regards the

rash and negligent driving. The appellate court, on further

scrutiny, has found that the evidence on record clearly shows

that the driver has taken the vehicle to the left side of the road

and, in the process, he moved away from the main road to the

‘kachcha’ road and thereby the link between the tractor and the

trailer got detached. The High Court has opined that the accused

has not taken care to see that the speed of the tractor was within

limit so that the trailer could not be detached. In our considered

view, the analysis of the factual score in this regard cannot be

regarded to be perverse and, therefore, not liable to be unsettled

by this Court.

13.The next limb of submission of the learned counsel for the

appellant is that when he has been acquitted under Section 279

Page 9 9

of the 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 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 Section 279 of the IPC, and,

accordingly, he has set aside the sentence awarded by the trial

court. It is apposite to state here that there is a distinction

between conviction and sentence. A conviction is the proof of the

offence committed by an accused. It is the proof of guilt of the

offence. The punishment component is the sentence. In Rama

Narang v. Ramesh Narang and others

1

, a three-Judge Bench

of this Court, after referring to Section 354 of the Code of

Criminal Procedure, has stated that every judgment referred to in

Section 353 of the Code, shall, inter alia, specify the offence of

which the accused is convicted and the punishment to which he

1

(1995) 2 SCC 513

Page 10 10

is sentenced. This Court, while dealing with the power of the

High Court under Section 389(1) of the Code, has observed that

ordinarily an order of conviction by itself is not capable of

execution under the Code, but it is the order of sentence or an

order awarding compensation or imposing fine or release on

probation which are capable of execution and which, if not

suspended, would be required to be executed by the authorities.

It has been further stated that in certain situations, the order of

conviction can be executable in the sense that it may incur a

disqualification. We have referred to the aforesaid authority only

to highlight that there is a distinction between a conviction and a

sentence. In the instant case, as the judgment of the appellate

court would show, the view has been expressed that a separate

sentence under Section 279 of the IPC is not necessary and,

accordingly, the said sentence has been set aside. The reading of

the entire judgment makes it graphically clear that the conviction

under Section 279 of the IPC has not been annulled. It is

noticeable that the rash and negligent driving by the accused

that resulted in the causation of injuries to the persons travelling

in the trailer has been proved. There is no cavil that some have

been seriously injured and one person who was grievously

Page 11 11

injured breathed his last. Thus, the submission of the learned

counsel for the appellant that he has been acquitted of the

offence under Section 279 of the IPC does not deserve

acceptance, and, accordingly, we, unhesitatingly, repel the same.

14.The last plank of submission of Mr. Bhat is that the

accused-appellant was a young man of 22 years at the time of the

occurrence and in the meantime, he has entered into wedlock

and, therefore, maintaining of substantive sentence would be

inapposite, and in fitness of things, it should be restricted to the

period already undergone and the amount of fine may be

enhanced with the stipulation that it shall be paid as

compensation to the victims of the accident.

15.The aforesaid submission, in our considered opinion,

requires a careful and cautious examination. What is basically

sought to be argued on behalf of the appellant is that there are

mitigating circumstances warranting lenient treatment. As we

perceive, two aspects, namely, (i) the age of the accused at the

time of the accident; and (ii) his present marital status, have

been highlighted as mitigating factors. Before we dwell upon

whether these two aspects should be regarded as extenuating

Page 12 12

factors to reduce the sentence in a crime of this nature in the

present social context, we think it apt to refer to certain

authorities in the field.

16.In State of Karnataka v. Krishna alias Raju

2

, while

dealing with the concept of adequate punishment in relation to

an offence under Section 304-A of the IPC, the Court stated

that considerations 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 justice

dispensation system. It need be hardly pointed out that the

imposition of a sentence of fine of Rs. 250 on the driver of a

Motor Vehicle for an offence under Section 304-A of the IPC and

that too without any extenuating or mitigating circumstance is

bound to shock the conscience of any one and will

unmistakably leave the impression that the trial was a mockery

of justice. Thereafter, this Court enhanced the sentence to six

months rigorous imprisonment with fine of Rs. 1000 and, in

default, to undergo rigorous imprisonment for two months.

2

(1987) 1 SCC 538

Page 13 13

17.In Sevaka Perumal and another v. State of Tamil

Nadu

3

, it has been emphasized that undue sympathy resulting

in imposition of inadequate sentence would do more harm to

the justice system and undermine the public confidence in the

efficacy of law.

18.In Jashubha Bharatsinh Gohil and Ors. v. State of

Gujarat

4

, the Court, adverting to the new challenges of

sentencing, opined that the courts are constantly faced with the

situation where they are required to answer to new challenges

and mould the sentencing system to meet those challenges.

Protection of society and deterring the criminal is the avowed

object of law and that is required to be achieved by imposing

appropriate sentence.

19.In Dalbir Singh v. State of Haryana

5

, this Court

expressed thus:

“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 304A IPC as attracting the

benevolent provisions of Section 4 of the PO Act.

While considering the quantum of sentence, to be

3

(1991) 3 SCC 471

4

(1994) 4 SCC 353

5

(2000) 5 SCC 82

Page 14 14

imposed for the offence of causing death by rash or

negligent driving of automobiles, one of the prime

considerations should be deterrence.”

Thereafter, the Court proceeded to highlight what is expected of a

professional driver:

“A professional driver pedals the accelerator of the

automobile 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 a

vehicle in locomotion. He cannot and should not

take a chance thinking that a rash driving need not

necessarily cause any accident; or even if any

accident occurs it need not necessarily result in the

death of any human being; or even if such death

ensues he might not be convicted of the offence; and

lastly, that even if he is convicted he would be dealt

with leniently by the court. He must always keep in

his mind the fear psyche that if he is convicted of

the offence for causing death of a human being due

to his callous driving of vehicle he cannot escape

from jail sentence. This is the role which the courts

can play, particularly at the level of trial courts, for

lessening the high rate of motor accidents due to

callous driving of automobiles.”

20.In State of Karnataka v. Sharanappa Basanagouda

Aregoudar

6

, it has been ruled that if the accused are found

guilty of rash and negligent driving, courts have to be on guard

to ensure that they do not escape the clutches of law very

lightly. The sentence imposed by the courts should have

6

(2002) 3 SCC 738

Page 15 15

deterrent effect on potential wrong-doers and it should

commensurate with the seriousness of the offence. Of course,

the courts are given discretion in the matter of sentence to take

stock of the wide and varying range of facts that might be

relevant for fixing the quantum of sentence, but the discretion

shall be exercised with due regard to the larger interest of the

society and it is needless to add that passing of sentence on the

offender is probably the most public face of the criminal justice

system.

21.In State of M.P. v. Saleem alias Chamaru and Anr.

7

, it

has been ruled that the object should be to protect society and

the avowed object of law is achieved by imposing appropriate

sentence to deter the criminal. It is expected that the courts

would operate the sentencing system so as to impose such

sentence which reflects the conscience of the society and the

sentencing process has to be stern where it should be.

22.Yet again in B. Nagabhushanam V. State of

Karnataka

8

, the Court, taking note of the fact that the vehicle

was being driven rashly and negligently, opined that six

7

(2005) 5 SCC 554

8

(2008) 5 SCC 730

Page 16 16

months' simple imprisonment and a direction to the appellant

to pay a fine of Rs. 1,000/- for commission of the offence

punishable under Section 304-A and simple imprisonment for

one month and to pay a fine of Rs. 500/- for the offence

punishable under Section 279 of the Indian Penal Code cannot

be said to be shocking.

23.Recently, in State of Punjab v. Balwinder Singh and

Ors.

9

, this Court while dealing with the concept of sentencing,

has stated thus:

“While considering the quantum of sentence to be

imposed for the offence of causing death or injury

by rash and negligent driving of automobiles, one of

the prime considerations should be deterrence. The

persons driving motor vehicles cannot and should

not take a chance thinking that even if he is

convicted he would be dealt with leniently by the

Court”.

24.In Alister Anthony Pareira v. State of Maharashtra

10

, it

has been laid down that sentencing is an important task in

relation to criminal justice dispensation system. One of the prime

objectives of the criminal law is imposition of appropriate,

adequate, just and proportionate sentence commensurate with

the nature and gravity of crime and the manner in which the

9

(2012) 2 SCC 182

10

(2012) 2 SCC 648

Page 17 17

crime is done. There is no straitjacket formula for sentencing an

accused on proof of crime. The courts have evolved certain

principles: twin objective of the sentencing policy is deterrence

and correction. What sentence would meet the ends of justice

depends on the facts and circumstances of each case and the

court must keep in mind the gravity of the crime, motive for the

crime, nature of the offence and all other attendant

circumstances. It has been further opined that the principle of

proportionality in sentencing a crime-doer is well entrenched in

criminal jurisprudence. As a matter of law, the proportion

between crime and punishment bears the most relevant influence

in the determination of sentencing the crime-doer. The court has

to take into consideration all aspects including the social interest

and conscience of the society for award of appropriate sentence.

25.In State TR. P.S. Lodhi Colony, New Delhi v. Sanjeev

Nanda

11

, one of us (K.S. Radhakrishnan, J.), in his separate

opinion, pertaining to the conception of adequate sentencing, has

expressed thus:

“Law demands that the offender should be

adequately punished for the crime, so that it can

deter the offender and other persons from

11

2012 (7) SCALE 120

Page 18 18

committing similar offences. Nature and

circumstances of the offence; the need for the

sentence imposed to reflect the seriousness of the

offence; to afford adequate deterrence to the

conduct and to protect the public from such crimes

are certain factors to be considered while imposing

the sentence.”

26.From the aforesaid authorities, it is luminous that this

Court has expressed its concern on imposition of adequate

sentence in respect of commission of offences regard being had to

the nature of the offence and demand of the conscience of the

society. That apart, the concern has been to impose adequate

sentence for the offence punishable under Section 304-A of the

IPC. It is worthy to note that in certain circumstances, the

mitigating factors have been taken into consideration but the

said aspect is dependent on the facts of each case. As the trend

of authorities would show, the proficiency in professional driving

is emphasized upon and deviation therefrom that results in rash

and negligent driving and causes accident has been condemned.

In a motor accident, when a number of people sustain injuries

and a death occurs, it creates a stir in the society; sense of fear

prevails all around. The negligence of one shatters the

tranquility of the collective. When such an accident occurs, it

has the effect potentiality of making victims in many a layer and

Page 19 19

creating a concavity in the social fabric. The agony and anguish

of the affected persons, both direct and vicarious, can have

nightmarish effect. It has its impact on the society and the

impact is felt more when accidents take place quite often because

of rash driving by drunken, negligent or, for that matter,

adventurous drivers who have, in a way, no concern for others.

Be it noted, grant of compensation under the provisions of the

Motor Vehicles Act, 1988 is in a different sphere altogether.

Grant of compensation under Section 357(3) with a direction that

the same should be paid to the person who has suffered any loss

or injury by reason of the act for which the accused has been

sentenced has a different contour and the same is not to be

regarded as a substitute in all circumstances for adequate

sentence.

27. Recently, this Court in Rattiram & Ors. v. State of M.P.

Through Inspector of Police

12

, though in a different context,

has stated that criminal jurisprudence, with the passage of time,

has laid emphasis on victimology which fundamentally is a

perception of a trial from the view point of the criminal as well as

the victim. Both are viewed in the social context. The view of the

12

AIR 2012 SCW 1772

Page 20 20

victim is given due regard and respect in certain countries. It is

the duty of the court to see that the victim’s right is protected.

28.We may note with profit that an appropriate punishment

works as an eye-opener for the persons who are not careful while

driving vehicles on the road and exhibit a careless attitude

possibly harbouring the notion that they would be shown

indulgence or lives of others are like “flies to the wanton boys”.

They totally forget that the lives of many are in their hands, and

the sublimity of safety of a human being is given an indecent

burial by their rash and negligent act.

29.There can hardly be any cavil that there has to be a

proportion between the crime and the punishment. It is the duty

of the court to see that appropriate sentence is imposed regard

being had to the commission of the crime and its impact on the

social order. The cry of the collective for justice which includes

adequate punishment cannot be lightly ignored. In Siriya alias

Shri Lal v. State of M.P.

13

, it has been held as follows: -

“Protection of society and stamping out criminal

proclivity must be the object of law which must be

achieved by imposing appropriate sentence.

Therefore, law as a corner-stone of the edifice of

13

AIR 2008 SC 2314

Page 21 21

“order” should meet the challenges confronting the

society. Friedman in his “Law in Changing Society”

stated that, “State of criminal law continues to be –

as it should be – a decisive reflection of social

consciousness of society”. Therefore, in operating

the sentencing system, law should adopt the

corrective machinery or the deterrence based on

factual matrix. By deft modulation sentencing

process be stern where it should be, and tempered

with mercy where it warrants to be.”

30.In view of the aforesaid, we have to weigh whether the

submission advanced by the learned counsel for the appellant as

regards the mitigating factors deserves acceptance. Compassion

is being sought on the ground of young age and mercy is being

invoked on the foundation of solemnization of marriage. The

date of occurrence is in the month of March, 2006. The scars on

the collective cannot be said to have been forgotten. Weighing

the individual difficulty as against the social order, collective

conscience and the duty of the Court, we are disposed to think

that the substantive sentence affirmed by the High Court does

not warrant any interference and, accordingly, we concur with

the same.

31.Consequently, the appeal, being devoid of any substance,

stands dismissed.

……………………………… .J.

Page 22 22

[K. S. Radhakrishnan]

……………………………… .J.

[Dipak Misra]

New Delhi;

August 29, 2012.