GURU BASAVARAJ @ BENNE SETTAPPA vs. STATE OF KARNATAKA

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. JUDGMENT 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 1 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 JUDGMENT 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 2 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 JUDGMENT 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 3 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 JUDGMENT 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 4 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 JUDGMENT 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 5 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 JUDGMENT 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 6 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 JUDGMENT 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 7 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 JUDGMENT 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 8 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 JUDGMENT offence committed by an accused. It is the proof of guilt of the offence. The punishment component is the sentence. In Rama 1 Narang v. Ramesh Narang and others , 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 9 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, JUDGMENT 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 10 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, JUDGMENT 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 11 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.

2 (1987) 1 SCC 538 Page 12 13

3 (1991) 3 SCC 471 4 (1994) 4 SCC 353 5 (2000) 5 SCC 82 Page 13 14

6 (2002) 3 SCC 738 Page 14 15

system.

7 (2005) 5 SCC 554 8 (2008) 5 SCC 730 Page 15 16

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 16 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

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.

11 Nanda , one of us (K.S. Radhakrishnan, J.), in his separate opinion, pertaining to the conception of adequate sentencing, has expressed thus:

11 2012 (7) SCALE 120 Page 17 18

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12 AIR 2012 SCW 1772 Page 19 20

13 AIR 2008 SC 2314 Page 20 21

……………………………….J. Page 21 22

JUDGMENT Page 22