1. Criminal Appeal No.266/2018 is preferred by the State seeking leave to appeal and for setting aside the judgment and order of acquittal dated 13.02.2017 passed in Crl.A. No.252/2015 by the IV Additional District & Sessions Judge, D.K. Mangalore, for the offence punishable under Section 304A IPC and to confirm the order of conviction dated 29.10.2015 passed in C.C. No.826/2013 by the I Additional Civil Judge and JMFC, Bantwal, convicting the respondent-accused for the offence punishable under Section 279, 337 and 304A IPC.

2. The Criminal Revision Petition No.1040/2017 is preferred by the appellant-accused against the judgment of conviction and sentence passed in Crl.A. No.252/2015 by the IV Additional Sessions Judge, Mangalore, D.K. for the offence punishable under Section 279 and 337 of IPC.

3. The trial Court had sentenced the accused to undergo simple imprisonment for a period of one month and to pay a fine of Rs.1,000/- for the offence punishable under Section 279 IPC and further undergo simple imprisonment for one month and to pay a fine of Rs.500/- for the offence punishable under Section 337 IPC. The accused was also sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 304A IPC. In default to pay the fine amount, to undergo simple imprisonment for a period of one month. The accused is directed to pay compensation of Rs.2,000/- each to C.W.1 and to the family of the deceased.

4. The prosecution case in nutshell is that on 15.12.2012 afternoon at about 1.00 p.m., the complainant Shivaram and his friend Rakesh were proceeding on a motorcycle bearing Registration No.KA- 19-ED-2158, from Punacha to Vitla. At about 3.15 p.m., when they were near Apperipade Village, the accused being the driver of mini tempo bearing Registration No.KA-21/7823 drove the vehicle in a rash and negligent manner and dashed to the motorcycle. As a result of which the pillion rider succumbed to the injuries and the complainant-rider of the motorcycle sustained grievous injuries. On the complaint filed by the rider of the motorcycle, the Police registered the case at P.S. Crime No.199/2012 for the offences punishable under Section 279, 337 and 304A of IPC. After completion of investigation, the police submitted the charge sheet against the accused for the offence punishable under Section 279, 337 and 304A IPC.

5. In order to prove its case, the prosecution has examined nine witnesses, the documents are marked as Ex.P1 to Ex.P18. After closure of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. The accused has denied the incriminating circumstances against him and has not led any defence evidence.

6. On appreciation of the oral and documentary evidence placed on record, the trial Court convicted the accused for the offence punishable under Section 279, 337 and 304A IPC.

7. Being aggrieved by the judgment of conviction and sentence passed by the trial Court, the accused had preferred the appeal before the Sessions Court, which was registered as Crl.A. No.252/2015.

8. On hearing the learned public prosecutor and learned counsel for the complainant, the Sessions Court allowed the appeal in part. The order of conviction and sentence for the offence punishable under Section 304A IPC was set-aside, but the order of conviction and sentence for the offence punishable under Section 279 and 337 of IPC was confirmed. The impugned order in the aforesaid appeal is under challenge before this Court.

9. The learned High Court Government Pleader submitted that there is clinching evidence to prove that the accident was due to rash and negligent driving of the accused, which has resulted in the death of the pillion rider. Thus, the finding given by the Sessions Court for setting aside the order of conviction for the offence punishable under Section 304A IPC is not proper and justified. There is ample evidence on record to show that the accident was due to rash and negligent driving of the accused of the mini Tempo and there is no material evidence to infer that the said accident was because of contributory negligence by the rider of the motorcycle or for any mechanical defect. The sentence imposed for the offence punishable under Section 279 and 337 IPC is inadequate.

10. The learned counsel for the respondent-accused in Crl.A. No.252/2015 who is the petitioner in Crl.R.P. No.1040/2017 submitted that the finding given by the first appellate Court is contrary to the evidence on record. The first appellate Court has not considered the fact that the place of accident was on the curve road and because of the same, the accused-driver could not notice the on coming motorcycle immediately. It is further urged by the counsel that when the appellant has been acquitted for the offence under Section 304A IPC he could not have been punished for the rest of the offences. The last contention of the counsel is that the appellant-accused is a youngster and the entire burden is on him to look after his family members. As such, the detention would definitely put his family members to hardship. Under these circumstances, the imposition of fine alone would be justified.

11. On appeal being preferred assailing the conviction and sentence, the learned Appellate Judge (Sessions Judge, Mangalore) has upheld the finding of the trial Court regarding rash and negligent driving of the driver of the Tempo, but has set aside the sentence passed by the trial Court for the offence punishable under section 304A of IPC.

12. Having regard to the submission of the learned High Court Government Pleader and the learned counsel for the accused, the questions that arises for consideration are:

1. Whether the finding given by the Appellate Court for setting aside the sentence awarded by the trial Court for the offence under Section 304A IPC is justified

2. Whether the sentence awarded for the offence under Sections 279 and 337 is justified

13. At the first instance, it is necessary to deal with the facet of rash and negligent driving of the driver of the Tempo. I have perused the material evidence placed on record and the analysis made by the Courts below. In the instant case, PW.1 is the injured complainant, who was the rider of motorcycle on the date of the accident which is involved in the accident. PW.2 is the eye witness and EX.P6 is the spot mahazar witness. PW.3 is the mahazar witness spot mahazar which is marked as Ex.P6, supports and admits sketch. PW.4 states that PW.2 has shown the spot and supports the prosecution case. PW.5 is the Assistant Sub-Inspector who recorded the statement of injured victim prior to his death which is marked as Ex.P7. PW.6 is the Police Inspector who completed the investigation and submitted the chargesheet. PW.7 is the owner of the mini Tempo. PW.8 is the Head Constable who recorded the complaint of PW.1 - injured. PW.9 is the Police Sub-Inspector who prepared the spot sketch and mahazar which is marked as Ex.P6.

14. On careful scrutiny, it is seen that both the Courts below by considering the relevant evidence of the injured complainant, independent witnesses, spot sketch, spot mahazar and other documentary evidence, have come to the conclusion that the accident was due to the rash and negligent driving of the driver of the tempo, namely the accused. But, on analyzing some part of the evidence, the first appellate Court has held that the prosecution has failed to prove the proximate cause between the death of the pillion rider of the motor cycle by name Rakesh and the accident. With this reasoning, the order of the trial Court convicting the accused for the offence punishable under Section 304A IPC is set aside.

15. The evidence of PW1 injured complainant, PW2 - independent eye witness, PW3 and PW4 mahazar witnesses and the contents of Exhibit-P1 complaint and Exhibit-P15 spot sketch, clearly disclose that the accident has taken place on the curve road. The spot sketch demonstrates that the driver of the tempo has come on extreme right side (wrong side) of the road and has dashed to the motor cycle which was coming on the extreme left side of the road. The injured complainant and the eye witnesses have been cross examined, but nothing is elicited to establish that the accident was due to the negligence of the rider of the motor cycle PW1. Thus, the finding given by the Courts below regarding the rash and negligent driving of the driver of the tempo, cannot be regarded as perverse and therefore, cannot be liable to be set aside.

16. The first and the foremost contention of the learned counsel for the accused is that when the accused has been acquitted of the offence punishable under Section 304A IPC, he cannot be punished in respect of other offences punishable under Sections 279 and 337 of IPC as the allegation of rash and negligent act cannot be treated to have been proved.

17. The learned first appellate Court on due appreciation of evidence on record that the injured victim died after several days of the accident, has come to the conclusion that there was no proximate cause between the death and the accident. But, on going through the entire judgment of the appellate Court, it is graphically clear that the conviction under Section 279 and 337 IPC has not been annulled. The appellate Court has observed that there is evidence regarding rash and negligent driving by the accused that has resulted in causing injuries to the rider of the motor cycle PW1 and also the pillion rider who died after few days. Thus, the contention of the learned counsel for the accused that in view of setting aside the order of the trial Court, for the offence under Section 304A the accused cannot be punished for other offences does not hold good.

18. In the present case, the pillion rider of the motorcycle has lost his life because of the injuries caused in the said accident. No doubt the death has not occurred immediately, the victim has died after 21 days. The Post-Mortem Report Exhibit-P10 disclose that the victim died due to complications of abdominal injury as a result of blunt force trauma. The Medical Officer has not been examined. Considering these aspects, the first appellate Court has come to the conclusion that the accident was not the proximate cause for the death of the injured victim. The view taken by the appellate Court about likelihood or chances of death being caused because of medical complications cannot be ruled out. When two views are possible, the view which is favourable to the accused requires to be considered. Hence, the grounds urged by the appellant-State does not survive for consideration. Even the revision petition deserves to be rejected as there is ample evidence to prove the rash and negligent driving of the accused.

19. The next contention of the learned counsel for the appellant is that the appellant - accused is an youngster and the entire burden is on him to look after his family members. Thus, in the event of detention, his family members would be put to hardship.

20. As far as imposition of sentence is concerned, the submission of the learned counsel for the accused and the learned High Court Government Pleader requires a careful and cautious examination. What is basically sought to be argued on behalf of the accused is about mitigating circumstances warranting lenient treatment while imposing the sentence. In the case on hand, the trial Court has convicted the accused for the offence punishable under Section 279 and 337, as well as 304A IPC. But the appellate Court has set aside the sentence for the offence punishable under Section 304A IPC alone. At this stage, it is necessary to consider the factors if any for taking lenient view in imposing sentence.

21. In a decision, State of Karnataka v. Sharanappa Basanagouda Aregoudar (AIR 2002 SC 1529 [LQ/SC/2002/404] ) , it has been held 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 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.

22. Always, the 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. Sometimes, they indulge in reckless driving ignoring the safety of other human beings moving on the road. 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.

23. In the facts and circumstances of the present case, I am of the view that the sentence affirmed by the appellate Court for the offences punishable under Section 279 and 337 IPC is proper and justified and the same does not warrant any interference. Accordingly, I concur with the order of the appellate Court.

24. Consequently, the Criminal Appeal by the State and the Criminal Revision Petition by the accused being devoid of merits, stands dismissed. Since the accused is convicted for the offences punishable under Section 279 and 337 IPC, the trial Court is directed to issue conviction warrant to the jail authorities forthwith after securing the accused.

The Registry is directed to send the copy of this order to the trial Court forthwith along with records and a free copy of this order shall be furnished to the respondent-accused in Criminal Appeal who is the petitioner in Criminal Revision Petition.