Supreme Court of India
B. NAGABHUSHANAMversusSTATE OF KARNATAKA
- Citation
- 2008 INSC 650
- Decided
- 13 May 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The conviction under Sections 279 and 304A is affirmed and the sentence of six months' simple imprisonment for 304A and one month for 279 is not shocking.
Summary
The appellant, a bus driver, was prosecuted for causing the death of a seven‑year‑old child by allegedly driving rashly and negligently, offences punishable under Sections 279 and 304A of the Indian Penal Code. The trial court convicted him and sentenced him to one year’s simple imprisonment with a fine for 304A and one month with a fine for 279. The High Court upheld the conviction but reduced the 304A sentence to six months’ simple imprisonment and increased the fine. On appeal, the Supreme Court examined whether the evidence established rash/negligent driving and whether the modified sentence was excessive. Relying on the testimony of multiple eye‑witnesses, the break‑mark evidence and the post‑mortem report, the Court found a concurrent factual finding of rash driving and held that the sentence was not shocking. The Court dismissed the appeal, affirming the conviction and the High Court’s sentence.
Issues considered
- Whether the evidence proved that the bus was driven rashly and negligently, justifying conviction under Sections 279 and 304A IPC.
- Whether the sentence imposed by the High Court (six months' simple imprisonment for 304A and one month for 279) is excessive or "shocking" and can be upheld.
Legislation cited
- Indian Penal Code, 1860s. 279, s. 304A
Subjects
Section 279 IPCSection 304A IPCrash drivingnegligent drivingbus accidentcriminal convictionsentencingres ipsa loquiturmotor vehicle offence
Judgment
[2008] 8 S.C.R. 444
~ -
A B. NAGABHUSHANAM
v
STATE OF KARNATAKA
(Criminal Appeal No. 874 Of 2008)
MAY 13, 2008
B
[S.S. SINHA AND LOKESHWAR SINGH PANTA, JJ.]
PENAL CODE, 1860:
ss. 279 and 304A - Bus hitting a child causing her death
c - Conviction of bus driver by trial court - High Court uphold-
ing the conviction, but modifying the sentence to six months
simple imprisonment and to pay a fine of Rs. 50001- uls 304A
- HELD: There is a concurrent finding of fact that the bus was
being driven rashly and negligently - Sentence awarded by
D High Court canr:ot be said to be shocking.
The appellant was prosecuted_ for commission of of-
fences punishable u/ss 279 and 304-A IPC. The prosecu-
tion case was that the bus which was b~ing driven by the
appellant dashed against a child aged about seven years
E causing her death. The trial court convicted the appellant
of the offences charged. It awarded the appellant a sen-
tence of simple imprisonment for one year and directed
him to pay a fine of Rs.1000/- for the offence punishable
u/s 304A and one month's simple imprisonment and a fine
F of Rs.500/- u/s 279 IPC. On a revision petition filed by the
appellant, the High Court upheld the conviction under
both the counts but modified the sentence u/s 304A to six
months' simple imprisonment with a fine of Rs.5000/-. Still
not satisfied, the accused filed the instant appeal.
G
It was contended for the appellant that from the state-
ment of the prosecution witnesses to the effect that the
bus was being driven at a speed of 15-20 km per hour, the
case of rash and negligent driving was not made out.
H 444
B. NAGABHUSHANAM v:STATE OF 445
KARNATAKA
_,
Dismissing the appeal, the Court A
HELD: PW 1 is a witness to the accident. According
to him, the child sustained grievous injuries on head and
other parts of the body. In answer to a question put to
him in cross-examination, he stated that the bus was be-
ing driven at a high speed. It was found by the trial court B
that the evidence of PW.1 alone was sufficient to hold that
the appellant was guilty of the offences charged. Other
prosecution witnesses were standing at different places.
They had occasion to see the accident from different di-
rections. Besides, the spot 'mahazar' (Ext. P-2) disclosed c
that there was a break-mark for about 20-25 feet on the
road. The contents of the 'mahazar' (Ext. P-5) were not
challenged. The bus admittedly did not have any mechani-
cal failure. Appellant did not say that there was an error of
, judgment on his part. The High Court while exercising it? D
limited revisional jurisdiction also discussed the case at
some detail. There is a concurrent finding of fact that the
bus was being driven by the appellant rashly and negli-
gently. There is no reason to take a different view. The
sentence awarded by the High Court cannot be said to E
be shocking. [para 6-11] [451E, 447H 450ABC 449F,G]
Oa/bir Singh v: State of Haryana (2000) 5 SCC 82; and
Rattan Singh v: State of Punjab (1979) 4 SCC 719 - relied
on.
F
Syad Akbar vs. State of Karnataka AIR 1979 SC 1848 -
held inapplicable.
State of A.P vs. C. Uma Maheswara Rao & anr (2004) 4
sec 399 - referred to.
G
CRIMINALAPPEALJURISDICTION: Criminal Appeal No.
874 of 2008
From the final Judgment and Order dated 26.6.2007 of
the High Court of Karnataka at Bangalore in Crl. R.P No. 618/
2004 H
446 SUPREME COURT REPORTS [2008] 8 S.C.R.
A S K. Kulkarni, M. Gireesh Kumar and Vijay Kumar for the
Appellant.
Anitha Shenoy for the Respondent.
The Judgment of the Court was delivered by.
B S.B. SINHA, J. 1. Leave granted.
2. Appellant was the driver of a bus bearing registration
No. AP-10-Z-5260. He was driving the said bus on Bangalore-
Hindupur road. On 10.1.1999, at about 2:00 p.m. when the bus
c was passing through a village commonly known as Kamalapura,
it dashed against a child by name Shantha, as a result whereof
she died. Shantha was about 7 years old at that time. A criminal
prosecution under Sections 279 and 304A of the Indian Penal
Code was initiated against him. He was found guilty of the said
offences. He was sentenced to one year's simple imprisonment
0
and to pay a fine of Rs. 1,000/- for commission of the offence
punishable under Section 304A and simple imprisonment for
one month and to pay a fine of Rs.500/- for the offence punish-
able under Section 279 of the Indian Penal Code. The appeal
E preferred thereagainst by him was dismissed. The High Court.
however, by reason of the impugned judgment modified the
sentence directing:
"The order of sentence passed against the revision
petitioner for the offence punishable under Section 304-
F A IPC is modified. He shall undergo simple imprisonment
for six months and to pay a fine of Rs. 5000/-. In default of
payment of fine amount. he shall undergo simple
imprisonment for one month. Out of the fine amount of
Rs.5000/- if deposited by the revision petitioner-accused,
a sum of Rs.4000/- shall be paid to P.W. 6 Gowramma
G
ar.d remaining Rs.1000/- shall be credited to the State
exchequer."
3. A limited notice was issued by this Court by an order
dated 25.2.2008 only on the question of sentence.
H
B. NAGABHUSHANAM v. STATE OF 447
K.ARNATAKA [S.B. SINHA, J.]
-)
4. Mr. Kulkarni, learned counsel appearing on behalf of A
the appellant, submits that keeping in view the facts and cir-
cumstances of the case, this Court may also go into the merit of
the matter and pass a judgment of acquittal in favour of the ap-
pellant. Learned counsel contends that the very fact that in the
First Information Report, it was alleged that the deceased was B
standing on the left side of the road and the dead body was
). found on the right side thereof is indicative of the fact that she
all of a sudden ran along the road resulting in the said accident.
It was urged that apart from the mahazar, the evidence was
brought on record to show that the appellant was driving the
said bus rashly and negligently and, in any event, the question
c
of rash and negligent driving on the par.t of the appellant does
not arise as the speed of the bus was about 20 kilometers per
hour. The doctrine of res ipsa loquitur, the learned counsel urges
whereupon reliance has been placed by the courts below, can-
> D
not have any application in a criminal case.
5. Ms. Anitha Shenoy, learned counsel appearing on tie-
half of the respondent, on the other hand, submitted that for the. .
purpose of finding out the guilt on the part of the appellant, the
entire circumstances must be construed as a whole which are: E
i) The evidence of the eye-witnesses;
ii) No mechanical failure in the vehicle was noticed;
. iii) No case of error of judgment has been made
out; and F
iv) Appellant has not offered any explanation at all
as to how the accident took place.
6. Both the trial judge, the appellate court as also the High
Court considered the matter in details. G
4
The learned trial judge categorically held that the bus was
being driven at a high speed It further took into consideration
that no cross-examination was effected on the said question,
stating:
H
448 SUPREME COURT REPORTS [2008] 8 s c R.
A "7. In this case the PW 1 one Sri. Chowdappa is the
complainant. He has sworn to the facts that on the date of
incident about 8-10 months back earlier to the date of his
evidence in this case, the said witness deposed to the
effect that on that day he was very near at a distance of
B about 25 feet from the place of accident and by that time
the bus driven by the accused person from Bangalore to
Hindupur direction dashed against the child and as a result
of which the child sustained grievous injury to head and
other parts of the body and as a result the child died at the
c spot. In this connection he has also given a complaint as
per Ex. P.1 and his signature came to be marked as per
Ex. P.1 (a). The PW 1 has also identified the accused
person who is responsible for the accident. He has also
deposed about the mahazar as per Ex. P 2 and identified
his signature at Ex. P 2(a). The cross examination
0
conducted on behalf of accused person also supports the
prosecution case. During the course of cross examination
against it has been made clear about the distance, place
of occurrence. direction. On careful study of the cross
examination discloses nothing has been elicited to
E disprove the case of the prosecution. It has also been
elicited in the cross examination that the bus was driven
in such a speed. Not even a single question was posed
to him with regard to contents of Ex. P 2 and Ex. P 2(a),
thereby the contents of mahazar remained unchallenged.
F In addition to other witnesses and evidence, the evidence ..
of PW 1 itself is sufficient to prove the guilt of the accused
person. and this evidence is very helpful to the prosecution
to prove the guilt of the accused person.
9. Comparative study of evidence of PW 3 to PW 6 and
G
PW 8 to PW 11 clearly establishes the case of the
prosecution. All the witnesses have deposed about the
rash and negligent driving of the bus by the accused person
resulting in death of Shanthamma. aged about 7 years. All
these witnesses have stated that they were standing
H
B. NAGABHUSHANAM v. STATE OF 449.
KARNATAKA [S.B. SINHA, J.]
- .l
separately at different places nearby the place of accident A
and that they have witnessed the accident as eye witnesses,
and absolutely there is no controversy of contradictory
evidence between each witnesses i.e. from PW 3 to PW
6 and PW 8 to PW 11. The defence counsel has totally·
failed to establish that the driver of the bus is not B
responsible for the death of Shanthamma, and there is no
rash and negligent driving on the part of the accused person.
The contents of cross examination of all these witnesses
also in the cross examination of PW 3, after the accident
the bus was taken to the police station. As stated earlier c
PW 15 got released the bus from fhe police station."
There is no reason to take a different view. It is not pos-
sible for us in a case of this nature to reappreciate evidence.
7. Reliance by the appellant on the deposition of one of
D
the prosecution witnesses that the bus was being .driven at a
speed of 15-20 kilometers per hour, in our opinion, has rightly
not been accepted.
8. The dead body of the girl was found 2 feet away from
the bus. It was only 3 feet away from the pavement on the right E
side of the road. The bus admittedly did not have any mechani-
cal failure. Appellant did not say that there was an error of judg-
ment on his part.
The High Court while exercising its limited revisional juris-
diction also discussed the case at some details. F
There is a concurrent finding of fact that the bus was being
driven rashly and negligently. The post mortem report was proved
by PW 12- Dr. M. N. Raju. She sustained several external inju-
ries. On dissection, the following injuries were found:
G
'~ ., "a) Right temporal region Depressed Wound
present
b) Normal clots present in the right temporal
region."
H
450 SUPREME COURT REPORTS [2008] 8 S.C.R.
'.
A 9. PW 1 is one Sri.Chowdappa. He is a witness to the
accident. According to him, the child sustained grievous inju-
ries on head and other parts of the body. In answer to a ques-
tion put to him in cross-examination, he stated that the bus was •
being driven at a high speed. The mahazar, was marked as
B Exhibit P-2. The contents of the mahazarwas not challenged. It
was found by the learned trial judge that the evidence of PW.1
alone \iVas sufficient to hold that the appellant was guilty of the
said offences. Other prosecution witnesses were standing at
different. places. They had occasions to see the accident from
c different directions. The spot mahazar disclosed that there was
a break~mark for about 20-25 feet on the road.
Reliance placed by Mr. Kulkarni on Syad Akbar vs. State
of Karnataka reported in [AIR 1979 SC 1848] is not apposite. It
proceeded on the basis that doctrine of res ipsa loquitur stricto
0 sensu would not apply to a criminal case as its applicability in
an 3Ction for injury by negligence is well knoll' 1'1. In Syad Akbar
(supra), this Court opined :
"Such simplified and pragmatic application of the notion
of res ipsa loquitur, as a part of the general mode of
E inferring a fact in issue from another circumstantial fact is
subject to all the principles, the satisfaction of which is
essential before an accused can be convicted on the basis
of circumstantial evidence alone. These are: Firstly all the
circumstances, including the objective circumstances
F constituting the accident, from which the inference of guilt
is to be drawn, must be firmly established. Secondly, those
circumstances must be of a determinative tendency
,pointing un-erringly towards the guilt of the accused. Thirdly,
the circumstc,mces should make a chain so complete that
G they cannot reasonably raise any other hypothesis save
that of the accused's guilt. That is to say, they should be • ...
incompatible with his innocence, and inferentially exclude
.au reasonable doubt about his guilt.·
The maxim was not applied having regard to the fact of a
H
B. NAGABHUSHANAM v. STATE OF 451
KARNATAKA [S.S. SINHA, J.]
~)
said case and on the finding that it was a case of error of judg- A
ment and the accused gave a reasonable, convincing explana-
tion of his conduct. The maxim res ipsa loquitur_was not found
to be applicable.
However .we may notice that the said principle was ap-
plied in a case under the Prevention of Corruption Act in State B
of A.P vs. C. Uma Maheswara Rao & anr [(2004) 4 SCC 399]
" in the following terms:
"We may note that a three-Judge Bench in Raghubir Singh
v. State of Haryana [(1974) 4 SCC 560] held that the very c
fact that the accused was in possession of the marked
currency notes against an allegation that he demanded
and received the amount is "res ipsa loquitur"
10. Although a limited notice was issued, we have cons id-
ered the contentions raised by Mr. Kulkarni with all seriousness D
that they deserved.
11. We are of the opinion that six months' simple impris-
onment and a direction to the appellant to pay a fine of Rs.1,000/
- for commission of the offence punishable under Section 304A
and simple imprisonment for one month and to .pay a fine of
E·
Rs.500/- for the offence punishable under Section 279 of the
Indian Penal Code cannot be said to be shocking.
12. We may, in this connection, notice that in Oalbir Singh
v State of Haryana [(2000) 5 SCC 82], this Court opined: F
"
"13. 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 !PC as attracting
the benevolent provisions of Section 4 of the PO Act. While G
considering the quantum of sentence, to be imposed for
• the offence of causing death .by rash or negligent driving
of automobiles, one of the prime considerations should
be deterrence. A professional driver pedals the accelerator
of the automobile almost throughout his working hours. H
452 SUPREME COURT REPORTS [2008] 8 S.C.R.
\ ,
A 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
B 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
c 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."
D
13. In Rattan Singh v. State of Punjab [(1979) 4 SCC 719),
this Court held:
"5. Nevertheless, sentencing must have a policy of
correction. This driver, if he has -to become a good driver,
E must have a better training in traffic laws and moral
responsibility, with special reference to the potential injury
to human life and limb. Punishment in this area must,
therefore, be accompanied by these components. The
State, we hope, will attach a course for better driving
F together with a livelier sense of responsibility, when the
punishment is for driving offences. Maybe, the State may
consider, in cases of men with poor families, occasional
parole and reformatory courses on appropriate application.
without the rigour of the old rules which are subject to
G Government discretion."
14. We, therefore, do not find any merit in this appeal which •
is dismissed accordingly.
R.P. Appeal dismissed.
H
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