REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL  APPEAL No.324 OF 2019 (Arising out of S.L.P.(Crl.) No.5655 of 2018)

Nagaraj  ….Appellant(s)

VERSUS

Union of India       ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 15.03.2018   passed by

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the  High  Court of   Karnataka, Circuit Bench at

Dharwad in Criminal Revision Petition No.100297 of

2017 whereby the High Court dismissed the

criminal revision petition filed by the appellant

herein and affirmed the orders passed by the Courts

below.

3. The appeal involves a short point as would be

clear from a few facts stated hereinbelow.

4. The appellant was a driver working in the

Karnataka  State  Road  Transport  Corporation.  On

03.08.2006 at around   11.15 p.m.,   the appellant

while driving the bus hit it against the railway

crossing gate  KM No. 350­5­6, which was set up on

the railway line between Chalageri and Ranebennur

Railway Stations. Due to the said hit, the railway

crossing gate was broken.

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5. Section 160(2) of the Railways Act, 1989

provides that 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 punished

with imprisonment for a term which may extend to

5 years.  

6. The appellant  was, therefore, prosecuted for

commission of offence punishable under Section

160(2)  of the Railways Act,  1989 by the Principal

Civil  Judge and 1st  Additional  JMFC, Ranebennur

and pursuant to which FIR   No.385/2006) was

lodged against him on  04.08.2006 in  RPF Police

Station, Ranebennur.

7. By order dated 05.04.2011 passed by the 1st

Additional JMFC, the appellant was found guilty for

commission of the offence for which he was charged

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and was accordingly sentenced to undergo simple

imprisonment for  a period of six months.   

8.  The appellant felt aggrieved and filed appeal

before the Additional District and Sessions Judge,

Haveri. By order dated 04.03.2016, the Additional

District and Sessions Judge dismissed   the appeal

filed by the appellant resulting in affirmation of his

conviction and sentence awarded by the JMFC by

his order dated 05.04.2011.  

9. The appellant carried the  matter further in

Revision in the High Court of Karnataka at

Dharwad Bench. By impugned order, the High

Court dismissed the revision and upheld the

appellate order dated 04.03.2016 giving rise to filing

of this appeal by way of special leave by the

appellant in this Court.

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10. Heard Mr. Anand Sanjay M. Nuli, learned

counsel for the appellant and Mr. R.

Balasubramanian, learned counsel for the

respondent.

11. The submission of learned counsel for the

appellant was three­fold. In the first place, he

contended that the appellant was wrongly convicted

for an offence punishable under Section 160(2)   of

the Railways Act.  According to him, there was no

sufficient evidence to prosecute the appellant much

less to convict him for an offence punishable under

Section 160(2) of the Railways Act.  

12. In the second place, learned counsel

contended that in any event, when admittedly there

was no injury caused to any human being  in the

incident except causing some damage to the railway

crossing gate, the six months’ jail  sentence to the

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appellant for  commission of  such offence was not

justified. According to him, it  was excessive and

disproportionate to its nature and the resultant loss

caused. It was also urged that the appellant out of

six  months’ jail sentence has already undergone

around one month’s jail sentence and, therefore, in

the interest of justice, his jail sentence is liable to be

altered and reduced to what he has already

undergone.  

13. In the alternative, learned counsel urged that

the appellant at the time of commission of offence

was hardly 21 years of age and, therefore, keeping

in view the totality of the circumstances of the case

and the nature of offence, he be released under the

Probation of Offenders Act, 1958.

14. In reply,  learned counsel for the respondent

supported the impugned order and contended that

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the appeal is liable to be dismissed by affirming the

impugned order.

15. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal in part.

16. In our view, the first submission  of learned

counsel for the appellant has no substance. It is for

the reason that when the three Courts below, i.e.,

the  Court of  Magistrate,  Appellate  Court  and the

High Court in its revisionary jurisdiction, on

appreciation of evidence, have arrived at a

conclusion that the  appellant  was found to  have

committed the offence, such finding being

concurrent finding of fact is binding on this Court

while hearing appeal under Article 136 of the

Constitution.  

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17. Even otherwise, we have not been able to

notice any kind of perversity or illegality in the

concurrent finding, which may call for any

interference in this appeal.

18. Coming now to the second submission, we find

substance therein. It is for the reasons that, first,

the appellant  has already undergone one month’s

jail sentence; second, the offence in question is

neither against the society nor it involves any moral

turpitude and nor it  has  resulted  in  causing  any

harm or injury to any human being except causing

some damage to the railway property, viz., one

railway crossing gate; and lastly, the offence is now

13 years old.

19.   Keeping in view the aforementioned three

reasons and in the interest of justice, we are,

therefore, of the considered opinion that the six

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months’  jail  sentence awarded to the appellant by

the three  Courts  below  deserves to  be altered to

“what he has already undergone by the appellant till

date”.

20. In the light of the foregoing discussion, the

third submission urged by the learned counsel for

the appellant deserves to be rejected. Even

otherwise, we find no merit in it for the reason that

the appellant did  not raise such  plea before the

three Courts below though it was available to him at

all stages of the proceedings.

21.   In view of the foregoing discussion, the

appeal succeeds and is allowed in part. The

conviction of the appellant is upheld but sentence

awarded to the appellant is reduced to “what he has

already undergone”. In other words, now the

appellant is not required to undergo any further jail

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sentence  in this case except what he has already

undergone.

22. The appellant is already on bail, his bail bond

is discharged.  

………...................................J. [ABHAY MANOHAR SAPRE]                                                                            ....……..................................J.

       [DINESH MAHESHWARI] New Delhi; February 21, 2019.

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