IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16

TH

DAY OF JANUARY, 2021

BEFORE

THE HON’BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.126 OF 2015

BETWEEN:

SHIVAKUMAR

S/O BHUTAIAH,

AGED ABOUT 24 YEARS

R/O TARUR, SIRA TALUK

TUMKUR DISTRICT-572125

...PETITIONER

(BY SRI. SUYOGA, ADVOCATE FOR

SRI. ARUNA SHYAM M, ADVOCATE )

AND:

THE STATE OF KARNATAKA

REPRESENTED KORA

POLICE STATION,

TUMKUR DISTRICT

REPRESENTED BY ITS

STATE PUBLIC PROSECUTOR

HIGH COURT BUILDING,

HIGH COURT OF KARNATAKA

BANGALORE-560 001.

…RESPONDENT

(BY SRI.K.S.ABHIJITH,HIGH COURT GOVERNMENT

PLEADER)

R

2

* * *

THIS CRIMINAL REVISION PETITION IS FILED

UNDER SECTION 397 OF CR.P.C. PRAYING TO SET-ASIDE

THE ORDER DATED 23.12.2014 PASSED BY THE LEARNED

PRESIDING OFFICER, FAST TRACT COURT AT TUMKUR, IN

CRL.A.NO.101/2013 AND ALSO THE ORDER DATED

11.09.2013 PASSED BY THE LEARNED II-ADDL. CIVIL

JUDGE AND JMFC COURT AT TUMKUR, IN

C.C.NO.3685/2011 AND CONSEQUENTLY ACQUIT THE

PETITIONER.

THIS CRIMINAL REVISION PETITION IS COMING ON

FOR FINAL HEARING, THIS DAY, THE COURT MADE THE

FOLLOWING:

O R D E R

This revision petition is filed against the judgme nt in

C.C. No.3685/2011 on the file of II Additional Civil Judge

and J.M.F.C, Tumkur, wherein, the court convicted t he

accused-revision petitioner for the offences punish able

under Section 279 and 304A of Indian Penal Code (fo r

short ‘IPC’) read with Section 187 of the Indian Mo tor

Vehicles Act (for short ‘IMV Act’) and sentenced th e

accused to pay a fine of Rs.500/- for the sentence under

Section 279 of IPC and simple imprisonment for a period of

two months with a default sentence of simple

3

imprisonment for 10 days and for offence punishable under

Section 304A of IPC simple imprisonment for a perio d of

one year and a fine of Rs.1,000/- with a default sentence

simple imprisonment for 15 days and for the offence

punishable under Section 187 of IMV Act the accused was

sentenced to pay a fine of Rs.500/- with a default sentence

of simple imprisonment of 10 days which was confirmed in

Crl.A No.101/2013 on the file of Fast Track Court, Tumkur

by judgment dated 23.12.2014.

2. Brief facts which are necessary for disposal o f this

revision petition are as under:

A complaint came to be filed with the Rural Police Station,

Tumkur contending that on 21.09.2011 at about 5:40 p.m.

at Kora bus stop on National Highway-4, Narasimhasw amy

(hereinafter referred to as 'deceased' for short) who was

a postman was standing on the left side of the road in

order to hand over the post bag to a bus. At that

juncture, a lorry bearing No.KA-52-5166 driven by i ts

driver in a rash and negligent manner coming from

4

Tumkur towards Sira, dashed against deceased whereb y,

he sustained grievous injuries on his head and his head

separated from the body and he died on the spot.

3. It is further contended that the driver of the lorry ran

away from the spot without intimating the accident to the

police. On registration of the case, the police investigated

the matter in detail and Circle Inspector of Rural Police

Station, Tumkur filed a charge sheet against the accused

for the offences punishable under Sections 279 and 304A

of IPC and Section 187 of the IMV Act.

4. On receipt of charge sheet, the learned Magistra te

took cognizance of the offences alleged against the

accused and secured the presence of the accused and

charge was framed.

5. The accused did not plead guilty. As such trial was

held. Prosecution in order to prove the case of th e

prosecution, examined in all 11 witnesses who were

examined as PWs.1 to 11 and relied on 11 documents

5

which were exhibited and marked as Exs.P1 to P11. After

conclusion of the prosecution evidence, accused statement

as contemplated under Section 313 of Cr.P.C. was

recorded wherein, the accused denied all the incriminating

circumstances. There was no defence evidence placed by

the accused. Learned Magistrate on cumulative

consideration of oral and documentary evidence on record,

after hearing the parties, passed the order of conviction

and sentence as referred supra.

6. Being aggrieved by the judgment of the learned

Magistrate, the accused preferred an appeal before the

Fast Track Court, Tumkur in Crl.A No.101/2013.

7. First Appellate Court secured the records and af ter

hearing the parties in detail, confirmed the judgment of

the learned Magistrate and dismissed the appeal. I t is

those judgments, which are the subject matter of th is

revision petition.

6

8. Learned counsel for the revision petitioner Shri

Suyoga submits that Shri Aruna Shyam has been

appointed as Additional Advocate General and theref ore,

he may be permitted to file a memo of appearance an d

argue the matter. He is permitted to file a memo o f

appearance within a week from today.

9. This court heard the arguments of Shri Suyoga,

learned counsel for revision petitioner and Shri K. S.

Abhijith, learned High Court Government Pleader

representing the State Public Prosecutor and perused the

records.

10. Sri Suyoga submits that the trial court as well as the

first appellate court have wrongly convicted the accused

for the offence punishable under Sections 279 and 304A of

IPC read with Section 187 of IMV Act. He further contends

that the material evidence on record has not been properly

appreciated by the trial court and ignored by the f irst

appellate court. Alternatively, he submits that th e

sentence as ordered by the trial court, confirmed by the

7

first appellate court is excessive and thus sought for

allowing the revision petition by granting probatio n or

reducing the period of sentence.

11. Per contra, learned High Court Government Plead er

supported the impugned judgments and prayed for

dismissal of the revision petition.

12. In view of the rival contentions, following poi nts

arises for consideration:

(i) Whether the finding recorded by

the Magistrate that accused is responsible for

the accidental death of Narasimhaswamy

involving a lorry bearing No.KA-52-5166 on

21.09.2011 at 5:40 p.m. near Kora bus stand

on account of the rash and negligent driving of

the driver of the lorry which is confirmed by the

first appellate court in Crl. A No.101/2013 is

erroneous?

(ii) Whether the sentence as ordered

by the learned Magistrate and confirmed by the

first appellate court is excessive?

8

The above said points are answered in negative and partly

in affirmative respectively for the following reasons:-

REASONS

13. POINT NO.1: In the case on hand, even though at

the time of recording the accused statement, the accused

has denied the accident, the material available on record

especially the post mortem report, seizure of lorry, spot

sketch and the oral evidence placed by the prosecut ion

clearly establish that the deceased was a postman waiting

near Kora bus stop for handing over the post bag to a bus,

lost his life in the road traffic accident that occurred on

21.09.2011 at about 5:40 p.m. The material available on

record clearly establish that it is the negligent driving of

the accused which resulted in the accident as noted by

learned Magistrate while appreciating the testimony of eye

witnesses.

14. It is also pertinent to note that accused did not lead

his evidence or atleast file a written submission at the time

of recording the accused statement as to his version of the

9

case. Under the circumstances, the learned Magistrate was

justified in convicting the accused.

15. The learned judge in the first appellate court, re-

appreciated the material on record and concurred with the

finding recorded by the learned Magistrate.

16. This court even after re-appreciation of the e ntire

material on the record in the light of the argument s

advanced on behalf of the revision petitioner, noticed that

eyewitness - PW-2 (Yathish) did not possess any previous

enmity and animosity against accused to depose fals ely.

Therefore, the defence theory that prosecution has not

proved its case with cogent evidence cannot be

countenanced in law. Since, eye-witness has given clear

account of the incident with graphic details and with all

certainty, this court does not find any patent defect or

error of jurisdiction or legal infirmity so as to interfere with

the said finding of both the courts in this revision petition.

Accordingly, Point No.1 is answered in negative.

10

17. POINT NO.2: Insofar as sentence is concerned,

learned counsel for the revision petitioner has contended

that the accused was aged 22 years as on the date o f

accident and therefore, liberal and lenient view ma y be

taken by reducing the sentence. In this regard he relies

on the unreported judgment in Crl.R.P. No.100025/20 14

(Ulas Vs. State of Karnataka) and sought for grant of

probation. Paras 10 to 12 of the said order is culled out

hereunder:

"10. Though the learned counsel for the

petitioner has cited several rulings of this

Court, wherein this Court had occasion to

discuss and deal with similar cases and under

distant circumstances this Court has imposed

fine instead of imposing substantive sentence

of imprisonment for the offence under Section

304A of IPC. In some of the cases, this court

has reduced the imprisonment to a lesser

sentence. Therefore, it goes without saying

that there is discretion vested with the court

either to impose substantive sentence of

11

imprisonment or to impose fine or with both

under Section 304A of IPC.

11. In this regard, the decision cited by

the learned High Court Government Pleader in

my opinion should be borne in mind because in

this case, the Hon'ble Apex Court has virtually

issued guidelines under what circumstances

the courts have to deal with the accident

matters in imposing the sentence on the

accused person. The above cited ruling

reported in 2012(2) SCC 182 in which the

Hon'ble Apex Court has held that:

"Motor accident - Death caused by rash

and negligent driving - quantum of sentence -

considerations - Bus and truck, being driven in

a rash and negligent manner by both drivers,

collided with each other - Five persons

travelling in bus died - Trial Court convicted

both respondent - accused (drivers of bus and

truck) and directed them to undergo Rigorous

imprisonment for two years each - sentence

upheld by Sessions Judge - High Court

considering that respondent - accused had

suffered a protracted trial for about 17 years

and had already undergo custody for 15 days,

12

reduced quantum of sentence to period already

undergone but enhancing the amount to

Rs.25,000/- each."

The Apex Court has in fact disapproved

the observations made by the High Court,

holding that the Probation of Offenders Act,

1958 is not applicable to the offence under

Sections 304A of IPC, the Court held that:

"Criminal Courts cannot treat nature of

offence under Section 304A IPC as attracting

benevolent provisions of Probation of Offenders

Act - One of the prime considerations in

determining quantum of sentence for offence

of causing death or injury by rash and

negligent driving of automobiles should be

deterrence - For lessening high rate of motor

accidents due to careless and callous driving of

vehicles, courts are expected to consider all

relevant facts and circumstances bearing on

question of sentence and proceed to impose a

sentence commensurate with gravity of offence

- sentence of six months Rigorous

imprisonment and fine of Rs.5,000/- each

imposed."

13

12. In view of the above said guidelines,

this Court has to strike a balance as to what

would be the proper and correct sentence that

could be passed against the petitioner herein."

18. However, the age is not the criteria in the facts

and circumstances of this case to reduce the sentence or

to show lenience.

19. Insofar as the decision rendered in

Crl.R.P.2152/2011 in the case of S H Manjanna Vs.

State, relied on by the learned counsel for the revision

petitioner wherein, for the offence punishable unde r

Section 304-A of IPC, the co-ordinate bench of this court

proceeded to grant the benefit of probation to the accused.

The relevant portion is culled out hereunder:

"13. Having taken note of the peculiar

circumstances of the case and the principles

laid down in the judgment of the Apex Court

referred supra, the question of invoking section

4 and 12 of the Probation of Offenders Act,

does not arise in the case on hand. Due to the

14

impact two lives are lost. One is the driver and

another person who was in the cabin of the

lorry. However taking into note of the accident

is of the year 2003, and almost 16 years time

has been elapsed and instead of sending him

to serve the sentence of imprisonment for a

period of six months as imposed by the lower

appellate Court and also taking note of the

nature of job of the petitioner herein being a

driver of KSRTC and also this Court in the

earlier judgments instead of imposing sentence

of simple imprisonment, taken note of loss of

life of persons, the same can be compensated

by enhancing the fine amount and the

sentence of imprisonment can be waived off

and ordered to pay fine amount as

compensation to the L.Rs., of deceased

persons.

14. In the case on hand two persons have

lost life and hence instead of ordering for

sentencing him to undergo simple

imprisonment which affects his service, it is

appropriate to impose fine of Rs.1,00,000/-

and out of that an amount of Rs.45,000/- each

can be paid in favour of the L.Rs., of the

15

deceased persons. The remaining amount of

Rs.10,000/- should go to the State."

20. But, in the case of State of Punjab Vs. Saurabh

Bakshi, reported in (2015) 5 SCC 182, it has been held

as under:

"8. It is submitted by Mr.Madhukar that

when the prosecution had been able to establish

the charges levelled against the respondent and

both the trial court and the appellate court had

maintained the sentence there was no

justification on the part of the High Court to

reduce the sentence to the period already

undergone solely on the basis that the

respondent had paid some compensation. It is

his further submission that keeping in view the

gravity of the offence that two deaths had

occurred the High Court should have kept itself

alive to the nature of the crime and should have

been well advised not to interfere with the

quantum of sentence. He has commended us to

the decisions in State of Punjab v. Balwinder

Singh [State of Punjab v. Balwinder Singh,

(2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706]

and Guru Basavaraj v. State of Karnataka [Guru

16

Basavaraj Vs. State of Karnataka, (2012) 8 SCC

734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC

(Cri)972] .

9. Ms Meenakshi, learned Senior Counsel,

per contra, has contended that the respondent

was quite young at the time the accident took

place and it may be an act of negligence, but the

contributory facet by the Maruti car driver

cannot be ruled out. That apart, there are

mitigating circumstances for reduction of the

sentence and in the obtaining factual matrix the

High Court has appositely adopted corrective

machinery which also reflects the concept of

proportionality. The learned Senior Counsel

would also submit that when the High Court has

exercised the discretion which is permissible

under Section 304-A IPC this Court should be

slow to interfere. It is urged by her that when

the compensation had been paid, the High Court

has kept in view the aspect of rehabilitation of

the victim and when that purpose have been

subserved the reduction of sentence should not

be interfered with. The learned Senior Counsel

has drawn inspiration from Gopal Singh v. State

of Uttarakhand [Gopal Singh v. State of

Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC

(Cri) 608] and a recent judgment in Criminal

17

Appeal No. 290 of 2015 titled State of

M.P. v. Mehtaab [State of M.P. v. Mehtaab,

(2015) 5 SCC 197 : (2015) 2 Scale 386].

10. At the outset, it is essential to note that

the respondent stood convicted by the trial court

as well as by the appellate court. The findings

recorded by the said two courts are neither

perverse nor did they call for interference in

exercise of the revisional jurisdiction. The High

Court as we notice has been persuaded by the

factum of payment of compensation by the

respondent herein, amounting to Rs 85,000 to

the legal representatives of deceased Jagdish

Ram and his nephew and the said compensation

had been directed to be paid by virtue of the

order dated 19-9-2013 [Saurabh Bakshi v. State

of Punjab, Criminal Revision No. 2955 of 2013,

order dated 19-9-2013 (P&H)] passed by the

High Court. It is submitted by Ms Arora that

apart from the young age of the respondent at

the time of occurrence the aforesaid aspect

would constitute the mitigating factor.

11. In Mehtaab case [State of M.P. VS.

Mehtaab, (2015) 5 SCC 197 : (2015) 2 Scale

386] a two-Judge Bench was dealing with the

18

case under Section 304-A IPC wherein the

respondent was convicted under Sections 304-A

and 337 IPC and sentenced to undergo one

year's and three months' rigorous imprisonment,

respectively. The High Court had reduced the

sentence to 10 days. It is apt to note here that

in that case the deceased had received injuries

due to shock of electric current. The Court took

note of the submission of the learned counsel for

the State and proceeded to opine as follows:

(SCC p. 199, paras 6-7)

“6. The learned counsel for the State

submitted that the respondent-accused

had installed a transformer in his field and

left the electric wires naked which was a

negligent act. The deceased Sushila Bai

died on account of the said naked wire

which had high voltage and was not visible

in the dark. The offence having been fully

proved by the evidence on record, the

High Court was not justified in reducing

the sentence to 10 days which was not

just and fair. Even if liberal view on

sentence of imprisonment was to be taken,

the High Court ought to have enhanced

the sentence of fine and awarded a

19

reasonable compensation as a condition

for reduction of sentence.

7. We find force in the submission. It

is the duty of the Court to award just

sentence to a convict against whom charge

is proved. While every mitigating or

aggravating circumstance may be given

due weight, mechanical reduction of

sentence to the period already undergone

cannot be appreciated. Sentence has to be

fair not only to the accused but also to the

victim and the society. It is also the duty

of the court to duly consider the aspect of

rehabilitating the victim. Unfortunately,

these factors are missing in the impugned

order. No cogent reason has been

assigned for imposing only 10 days'

sentence when an innocent life has been

lost.”

12. After so stating the Court referred to

the decision in Suresh v. State of

Haryana [(2015) 2 SCC 227 : (2015) 2 SCC

(Cri) 45] and enhanced the compensation taking

note of the financial capacity of the accused-

respondent therein, and directed as follows:

20

(Mehtaab case [State of M.P. v. Mehtaab, (2015)

5 SCC 197 : (2015) 2 Scale 386] SCC p. 200,

paras 10-11).

“10. As already observed, the

respondent having been found guilty of

causing death by his negligence, the High

Court was not justified in reducing the

sentence of imprisonment to 10 days

without awarding any compensation to the

heirs of the deceased. We are of the view

that in the facts and circumstances of the

case, the order of the High Court can be

upheld only with the modification that the

accused will pay compensation of Rs 2

lakhs to the heirs of the deceased within

six months. In default, he will undergo RI

for six months. The compensation of Rs 2

lakhs is being fixed having regard to the

limited financial resources of the accused

but the said compensation may not be

adequate for the heirs of the deceased. In

such a situation, in addition to the

compensation to be paid by the accused,

the State can be required to pay

compensation under Section 357-A CrPC.

21

11. As per the judgment of this Court

in Suresh [(2015) 2 SCC 227 : (2015) 2

SCC (Cri) 45] , the scheme adopted by the

State of Kerala is applicable to all the

States and the said scheme provides for

compensation up to Rs 5 lakhs in the case

of death. In the present case, it will be

appropriate, in the interests of justice, to

award interim compensation of Rs 3 lakhs

under Section 357-A CrPC payable out of

the funds available/to be made available

by the State of Madhya Pradesh with the

District Legal Services Authority, Guna. In

case the accused does not pay the

compensation awarded as above, the

State of Madhya Pradesh will pay the

entire amount of compensation of Rs 5

lakhs within three months after expiry of

the time granted to the accused.”

13. In our considered view the decision in

the said case has to be confined to the facts of

that case. It cannot be said as a proposition of

law that whenever an accused offers acceptable

compensation for rehabilitation of a victim,

regardless of the gravity of the crime under

22

Section 304-A IPC, there can be reduction of

sentence.

14. In this context, we may refer with

profit to the decision in Balwinder Singh [State

of Punjab v. Balwinder Singh, (2012) 2 SCC 182

: (2012) 1 SCC (Cri) 706] wherein the High

Court had allowed the revision and reduced the

quantum of sentence awarded by the Judicial

Magistrate, First Class, for the offences

punishable under Sections 304-A, 337, 279 IPC

by reducing the sentence of imprisonment

already undergone, that is, 15 days. The Court

referred to the decision in Dalbir Singh v. State

of Haryana [Dalbir Singh v. State of Haryana,

(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and

reproduced two paragraphs which we feel

extremely necessary for reproduction:

(Balwinder Singh case [State of

Punjab v. Balwinder Singh, (2012) 2 SCC 182 :

(2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para

12)

“12. … ‘1. When automobiles have

become death traps any leniency shown

to drivers who are found guilty of rash

driving would be at the risk of further

23

escalation of road accidents. All those

who are manning the steering of

automobiles, particularly professional

drivers, must be kept under constant

reminders of their duty to adopt utmost

care and also of the consequences

befalling them in cases of dereliction.

One of the most effective ways of

keeping such drivers under mental vigil

is to maintain a deterrent element in the

sentencing sphere. Any latitude shown to

them in that sphere would tempt them to

make driving frivolous and a frolic."

21. It is pertinent to note that in Sourab Bakshi's

case, the Hon'ble Apex Court referred the decisions

rendered in the case of (1) State of Punjab Vs. Balwinder

singh [(2012) 2 SCC 182]; (2) Nagabhushanam Vs. Sta te

of Karnataka reported in 2008 5 SCC 730; (3)

Gurubasavaraj Vs. State of Karnataka reported in (2012) 8

SCC 734; and (4) State of Karnataka Vs. Sharanappa

Basanagouda Aregowda reported in (2002) 3 SCC 738 a nd

various other judgments of the Hon'ble Apex Court

regarding passing of appropriate sentence for an offence

24

punishable under Section 304A IPC and came to the

conclusion that showing leniency or ordering compensation

for reduction of the sentence would only result in mis-

placed sympathy and mockery of justice. The Hon'bl e

Apex Court also specifically ruled that the lives of poor

cannot be dealt with lightly. It also ruled that the lives of

pedestrians is always in an uncertainty if professi onal

drivers are dealt lightly. The drivers of vehicles involving

rash and negligent act should not be made to feel t hat

they are the 'Emperors of all they survey'. The court also

rules that young age is not the sole criteria for reduction of

sentence.

22. Applying the principles enunciated in the said

decisions to the facts of this case, the offence un der

Section 304A of IPC is a distinct class of offence, where the

Hon'ble Apex Court felt the necessity of passing

appropriate sentence of imprisonment and not to jum p to

grant probation for such class of offence. Accordingly, the

judgments rendered by the coordinate bench of this court,

25

relied on by the learned counsel for the Revision Petitioner

in CRL.RP. No.100025/2014, (Ulas Vs. State of Karnataka)

and CRL.RP. No.2152/2011 (S.H. Manjanna and State o f

Karnataka) are not of much avail in accepting the prayer

for grant of probation.

23. For the offence under Section 304A of IPC

maximum punishment that could be awarded is two yea rs.

Further, it is pertinent to note that accused did not offer

his version as to the incident. The necessity of offering

explanation by the accused in a matter of this natu re is

desirable so as to arrive at a proper finding while

adjudging the guilt as well as for passing an appropriate

sentence. If the accused deliberately fails to make use of

such an opportunity or fail to place defence evidence, the

Trial judge has to assess the materials on record a s is

placed by the prosecution alone.

24. In this regard, this court places reliance on the

judgment of the Hon'ble Apex Court in the case of Ravi

26

Kapur Vs. State of Rajasthan reported in (2012) 9 SCC

284 it has been held as under:

"39. It is true that the prosecution is

required to prove its case beyond reasonable

doubt but the provisions of Section 313 Cr.P.C.

are not a mere formality or purposeless. They

have a dual purpose to discharge, firstly, that

the entire material parts of the incriminating

evidence should be put to the accused in

accordance with law and, secondly, to provide

an opportunity to the accused to explain his

conduct or his version of the case. To provide

this opportunity to the accused is the mandatory

duty of the Court. If the accused deliberately

fails to avail this opportunity, then the

consequences in law have to follow, particularly

when it would be expected of the accused in the

normal course of conduct to disclose certain

facts which may be within his personal

knowledge and have a bearing on the case."

25. In the case on hand, on conclusion of the

prosecution witnesses, at the time of recording the

accused statement, accused denied all the incrimina ting

27

circumstances. He did not lead any evidence or place on

record his version as to the incident. Nor, did he furnish

any written submission so as to accept the same as part of

the record as is contemplated u/s.313 of Cr.PC.

26. As such, by following the dictum in Ravi Kapur's

case cited supra, when the accused has deliberately failed

to offer his explanation to put forth his case, it is needless

to emphasize that the consequences under law should

follow. The same has been done by the learned Magistrate

while passing the sentence of imprisonment of one year in

the absence of any mitigating circumstances that wa s

placed before the Trial Court.

27. It is also pertinent to note that the State did not

challenge the sentence as is imposed by the learned

Magistrate seeking enhancement of the sentence. As

such, as far as the State is concerned, the sentence as is

passed by the learned Magistrate has become final. But it

is also pertinent to note that the learned Magistrate has

28

ordered simple imprisonment for two months for the

offence punishable under Section 279 of IPC as well.

28. Whenever an accused is convicted for the offe nce

punishable under Sections 279 and 304A of IPC, a

separate sentence needs to be ordered in respect of both

counts is a question that often arises.

29. The law in this regard is no longer resintegr a.

Gainfully, this court places its reliance on the judgment of

the Hon'ble Apex Court in the case of Gurubasavaraj @

Bennishettappa Vs. State of Karnataka reported in

(2012) 8 SCC 734, wherein the Hon'ble Apex Court has

held as under:

"14. The next limb of submission of the

learned counsel for the appellant is that when he

has been acquitted under Section 279 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

29

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 IPC,

and accordingly, he has set aside the sentence

awarded by the trial Court.

30. Applying the above principles of law to the case on

hand, in view of the fact that only one victim is involved in

the present case, ordering separate imprisonment for the

offence punishable under Section 279 of IPC by the Trial

Court is incorrect which has been ignored by the fi rst

appellate court. Accordingly, the sentence as ordered by

the Trial Court for the offence punishable under Se ction

279 of IPC needs to be set aside.

31. Accordingly, to that extent, sentence as is ordered by

the learned Magistrate and confirmed by the first Appellate

Court needs interference by this court by setting aside the

30

sentence of imprisonment of two months for the offe nce

punishable under Section 279 of IPC. Accordingly, point

No.2 is answered partly in the affirmative and following

order is passed:-

ORDER

Revision Petition is allowed-in-part. While

maintaining the order of conviction for the offence

punishable under Sections 279 and 304A of IPC and

Section 187 of IMV Act, the sentence of imprisonmen t

ordered for the offence punishable under Section 27 9 of

IPC is set-aside. Rest of the sentence stands unalt ered.

The accused is directed to surrender before the Trial

Court for serving the sentence.

Office is directed to return the Trial Court Recor ds

forthwith, with a copy of this order so as to enable the Trial

Court to issue modified conviction warrant.

Sd/-

JUDGE

Chs/PL*