The main legal point established in the judgment is the requirement to prove actionable negligence and the application of sentencing policy based on the proportionality of the offence.

JUDGMENT :

Rajendra Badamikar, J.

1. This criminal revision petition is filed under Sec. 397 r/w Sec. 401 of Cr.P.C. seeking to set aside the judgment of conviction dtd. 30/10/2012 passed by the District and Sessions Judge, Uttara Kannada, Karwar in Crl.A.No. 119/2010 confirming the judgment conviction and order of sentence dtd. 30/9/2010 passed by the JMFC, Ankola in C.C.No. 345/2007 and sought for acquittal of the accused/revision petitioner.

2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court.

3. The brief facts leading to the case are that, on 9/5/2007 at about 8.30. a.m. on NH-17 at Aversa in Ankola Taluk, accused has driven his lorry bearing No. KA28/A-4597 from Ankola towards Karwar in a rash and negligent manner so as to endanger to human life and public safety and dashed to the oncoming motorcycle bearing No. KA-30/E-7163 from the opposite side and thereby the rider of the motor cycle succumbed due to injuries on the spot. In this regard, a complaint came to be lodged and the Investigating Officer after investigation of the crime has submitted the charge sheet under Ss. 279 and 304-A of IPC.

4. After submission of the charge sheet, the learned Magistrate has taken cognizance and the accused has appeared in pursuance of summons issued to him and was enlarged on bail. The accused denied accusation made against him and the prosecution has examined in all eight witnesses as PWs. 1 to 8 and nine documents were marked as Exs.P1 to P9. After conclusion of evidence, the statement of accused under Sec. 313 of Cr.P.C. is recorded to enable him to explain incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial and he did not choose to lead any oral or documentary evidence in support of his defence.

5. After hearing the arguments and appreciating the evidence on record, the learned Magistrate has convicted the accused by imposing sentence of imprisonment of six months with fine of Rs.1,000.00 with default sentence of 30 days of Simple Imprisonment. Being aggrieved by this judgment of conviction, the accused has filed an appeal in Criminal Appeal No. 119/2010 before the District and Sessions Judge, Uttara Kannada, Karwar and the learned Sessions Judge by judgment dtd. 30/10/2012, dismissed the appeal by confirming the judgment of conviction and order of sentence.

6. Heard the learned counsel for revision petitioner and the learned High Court Government Pleader (for short, 'HCGP' appearing for the Respondent-State. Perused the records of the trial Court.

7. Learned counsel for the Revision Petitioner would contend that both the courts below have committed grave error in convicting the accused and have not properly appreciated the oral and documentary evidence. He would also contend that investigation is one sided and Ex.P2 disclose that there is no negligent act on the part of the accused. He would also contend that, in case the Court comes to conclusion that the accident is because of actionable negligence on the part of the revision petitioner, it may take a lenient view, as the petitioner is aged about 59 years as on today and he has underwent mental trauma for last 14 years and as such, he would seek for exonerating the revision petitioner from sentence of imprisonment by enhancing the fine amount.

8. Per contra, the learned HCGP has contended that the evidence on record clearly establish that the accident in question was because of actionable negligence on the part of the revision petitioner, as he moved his vehicle on wrong side of the road and dashed against oncoming motor bike resulting in the death of the rider of the vehicle. He would also contend that, there is material evidence against the accused and as such the sentence should be proportionate to the offence committed by the accused, and imposing fleebite sentence is deprecated by the Hon'ble Apex Court, and in this regard, he placed reliance on t