Sri. Nagaraju @ Nagappa vs State of Karnataka

V. Jagannathan

This revision petition is filed by A1 along with A2 who were put on trial in respect of the offences punishable under Sections 279, 337, 338, and 304-A of IPC. The trial court convicted both the accused and they were sentenced to one year S.I. and Rs. 5,000/- fine. in default to undergo 3 months further imp0risonment. The appellate court dismissed the appeal preferred by this Petitioner by this Petitioner as well as the other accused A2.

The case of the prosecution in short is that, on 18.10.1999, a passenger train bearing No. 251 had arrived at Chitradurga railway station and it got a signal from the station master to move at about 2.15 p.m. The 2nd accused in this case who was the railway guard/gate man working at the railway level crossing gate No. 23-B situated between the Chitradurga and Balenahalli railway station did not take necessary care to closed the gates. However, he closed one gate and before the other could be closed, a passenger bus driven by the Petitioner herein tried to cross the railway line and the process, the bus was found between the two gates and the collusion occurred between the bus and the train. On account of the said accident, six persons were died and nine persons were injured.

Both accused No. 1 i.e., the Petitioner herein and A2-the railway guard gate man pleaded not guilty to the charge leveled against them under Sections 279, 337, 338 and 304-A of IPC and the prosecution examined 17 witnesses and produced 33 documents. After recording of the accused statement, the trial curt after appreciating the evidence on record fund that the prosecution had brought home the guilt of the accused beyond all reasonable double and accordingly, both the accused were convicted and sentenced as mentioned above. The appeals preferred by the accused were also dismissed.

Learned Counsel for the Petitioner who is A1 argued that this Court has allowed the criminal revision petition filed by A2 in Cro. R.P. No. 326/2004 and conviction of A2 was set aside and he was acquitted by giving him the benefit of doubt of double. It is therefore contended that the present Petitioner also stands on the similar footing and therefore, the Petitioner also be acquitted of the offences. Apart from this, it is also argued by referring to the evidence on record that the eyewitnesses P.Ws. 9 to 11 have turned hostile and the bus inmates have put the blame for the accident on both the drive5rs. Under the said circumstances, the Petitioner also be acquited by giving him the benefit of doubt.

On the other hand, submission of learned HCGP for the Respondent-State is that, the evidence on record clearly goes to show that this Petitioner despite knowing that both the gates were not often, yet proceeded to cross the railway line and got struck of between the two gates and train which had already stated to move, dashed against the bus and as a result of which, six persons died and nine persons were injured. It is submitted that the evidence of P.W. 12, the Driver of the engine clearly goes to show that the bus had crossed the level crossing though only ones of the two gates was found open. As such, the findings of the courts below call for no interference and conviction of the Petitioner be confirmed.

Having thus heard both sides and after going through the evidence of the prosecution witnesses and also taking note of the order passed by this Court in Crl. R.P. No. 326/2004 on 27.08.2004, it is clearly established from the evidence on record that one of the two gates was kept open but the right side gate was closed. Despite, this position at the level crossing, the bus driver by this Petitioner went ahead and passed one gate before it could reach the other gate, which was closed, the train came and there was the driver of the engine has clearly deposed in his evidence that when the train was passing through the gates, the bus entered and dashed to the train.

It is therefore clear from the over all evidence on record that the bus driver was solely negligent, because he failed to notice the fact of the right side gate at the level crossing being still being closed though the left side gate was open. Without noticing the said position of the gates, the Petitioner drove his bus and in the meanwhile, the train also came leading to the accident.

For the above reasons, the acquittal of the railway guard has nothing to do with the negligent act on the part of the bus driver. Both the courts have rightly accepted the evidence on record and conviction of this Petitioner is based on the evidence of the prosecution witnesses and therefore, I see no case is made out for this Court to interfere with the conviction of the Petitioner.

As far as sentence is concerned, learned Counsel for the Petitioner submitted that in view of the acquittal of A2, this Petitioner also be given the relief of the sentence being reduced to three months.

On the other hand, submission of learned HCGP is that minimum sentence is six months in respect of an offence punishable u/s 304-A of IPC and therefore, the sentence also requires no modification.

Having thus heard both sides, in my view, the sentence can be reduced to six months by maintaining the fine amount.

Hence, I pass the following order:

(i) Conviction of the Petitioner by the courts below is sustained.

(ii) As far as sentence is concerned, the Petitioner is sentenced to undergo S.I. for six months and to pay a fine of Rs. 5,000/-, and in default, to undergo 3 months S.I.

Revision petition is therefore allowed in part to the extent of the sentence being modified as above.