Kallayani vs State of Karnataka

K.N. Phaneendra, J.—The petitioner has come up before this Court challenging the order passed by the JMFC, Chittapur in C.C. No. 211/2007 in convicting and sentencing him under Section 160(2) Railways Act, 1989, in sentencing him to undergo simple imprisonment for one year which was confirmed in Criminal Appeal No. 46/2011 by the III Addl. Sessions Judge, Gulbarga, vide order dated 11.11.2013.

I have heard the arguments of the learned counsel for the petitioner and also the learned Addl. SPP for the respondent. Perused the records.

The case made out against the accused/petitioner as per the charge sheet before the trial Court are that on 15.01.2007 at about 11.30 hours the Deputy Station Master Wadi issued a memo stating that a Jeep bearing No. KA-32/M-1071 has dashed to Boomer pole of level crossing gate No. 91-B situated between Wadi and Shahabad. As per the memo the ASI of RPF Wadi along with his staff went to the spot and made inquiries and came to know that the present petitioner who was the driver of the Jeep has dashed against the Railway gate and caused damage to the railway gate. The ASI RPF on the basis of the said information and circumstances, registered a case in Crime No. 27/2007 under Section 160(2) of Railways Act. After due investigation, it appears a charge sheet has been filed a case registering in C.C. No. 211/2007 on the file of the trial Court. It is also seen that the petitioner was arrested on 16.01.2007 and released on 20.01.2007 and he was in custody for a period of four days. After securing the presence of the accused the Court has framed charge sheet against the accused for the offence punishable under Section 160(2) of Railways Act as he pleaded not guilty the trial proceeded.

In order to prove the guilt of the accused prosecution examined P.Ws. 1 to 8 and got marked P.1 to P.9. The accused was also examined under Section 313 of Cr.P.C. and after hearing arguments as the accused did not choose to lead any evidence, the trial Court rendered the judgment of the conviction and sentence, the accused to undergo simple imprisonment for one year for the offence punishable under Section 160(2) of Railways Act 1989. The trial Court after considering the evidence of P.W. 4 particularly the eyewitness to the incident, who has categorically stated that on the date and time of the incident he was on duty near gate 91(B) he observed that from the Rawoor village side a jeep bearing No. KA-32/M-1071 driven by the petitioner herein and dashed against the boomer pole to the railway gate due to which railway gate has broken. The witness has categorically stated that he raised hue and cry to stop the said vehicle but in spite of that without listening to him the petitioner rashly driving the vehicle dashed against the boomer pole and caused damage to the railway property. The trial Court has believed the said version. The other witnesses are the circumstantial witnesses where it is not necessary to deal in detail with regard to such evidence. Even at the time of argument before the Court the learned counsel for the petitioner strongly contended that it is not an intentional act of the petitioner and it is only due to some rash or negligent driving he might have committed such an offence. Therefore, he has not made any injury to any person and during the course of the incident some damage might have occurred to the railway property. Therefore, even though the trial Court has held that the accused is guilty, the sentence passed by the trial Court is totally disproportionate to the offence alleged to have been committed by the petitioner. Of course, Section 160(2) of Railways Act, does not speak about any intention as such to be present as an ingredient to constitute an offence under Section 160(2) of the Railways Act. The said section reads as under:

"if any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to five years". This provision clearly indicates that for whatever may be the reason if any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, then he shall punishable with imprisonment for a term which may extend to three years.

There is no allegation as such he brook down any gate or chain or barrier but it is only alleged that the boomer pole to railway gate has been damaged but there is no specific allegation that due to which any damage has been done to the road traffic so as to cause any inconvenience to the people at large to cross the railway level crossing Perhaps the punishment is more, prescribed under this particular provision may be for the reason that if by means of causing such an incident if the railway gate is completely damaged or any person due to the damage of such gate or chain could unlawfully cross the level crossing, in that eventuality any railway accident may happen in that context the punishment prescribed under Section 160(2) of Railways Act may be harsh. But it doesn''t mean to say that in all the cases such punishment has to be imposed, it all depends upon the facts and circumstances of each case, when there is no material before the Court to show that the said gate was completely damaged so that the public traffic had been intercepted or disturbed or any public was allowed to pass through the said gate due to its breakage etc. In the absence of that, and as the gravity of the offence committed by the petitioner is not so high, so as to punish him with imprisonment for one year as rightly argued by the learned counsel, if he was charged under Section 279 and 427 of IPC, lesser punishment is prescribed therein due to his rashness or negligence. It appears, the incident happened without breaking the gate or affecting road traffic. These aspects in my opinion though not sufficient to totally exonerate the accused, but they can be definitely used as mitigating circumstance to reduce the sentence. The petitioner is a man aged 36 years having wife and children to be looked after and the nature of offence and the circumstances show that it is not so serious offence that should be taken into consideration to impose the punishment of one year. The punishment should be normally commensurate with all the existing circumstances. Merely because harsh punishment is prescribed under the provision when the discretion is given to the Court, under the provision that it may extend to five years that discretion has to be exercised considering all the surrounding facts and circumstances of the case.

Considering the age of the accused and he is a married man and it is the first unpleasant incident in his life, I am of the opinion, the period already undergone by him i.e. four days punishment is sufficient but apart from that he shall also saddled to pay some compensation to the railway department for having caused such damage to the railway property. Therefore, the order passed by the learned Magistrate so far it relates to sentence is concerned is little bit too harsh. However, findings of the trial Court and the First Appellate Court holding the accused guilty for the offence punishable under Section 160(2) of Railway Act is concerned is based on evidence on record and it doesn''t call for any interference while exercising power under Section 397 of Cr.P.C.

Hence, I pass the following:

ORDER

"(1) The petition is partly allowed.

(2) The judgment of conviction passed by the trial Court holding the accused guilty under Section 160(2) of Railway Act, confirming the sentence by the First Appellate Court is not *disturbed.

(3) The sentence is modified. The accused is sentenced to undergo punishment for four days, the period for which he has already undergone during the course of investigation. Further, the petitioner need not undergo any further imprisonment

(4) Exercising powers under Section 357 (3) of Cr.P.C. an amount of Rs. 15,000/- is awarded as compensation in favour of the Railway department i.e. the complainant before the trial Court to be payable by the accused if he doesn''t pay that amount, the same shall be recovered as fine imposed and if he doesn''t pay the said amount he shall undergo simple imprisonment for three months."

*Corrected vide chamber order dated 19.03.2015