Yamanappa S/O. Shivappa Halaki vs The State Of Karnataka,
2021 Latest Caselaw 3090 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 02ND DAY OF AUGUST, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL.RP.NO.2075/2012

BETWEEN:

YAMANAPPA S/O SHIVAPPA HALAKI,
AGED ABOUT 38 YEARS,
R/AT KALLOLLI, NOW AT MAREGUDDI,
TQ.JAMKHANDI, DIST: BAGALKOTE.
                                             ...PETITIONER
(BY SRI.MAHANTESH S.MATHAD, ADV. FOR
    SRI.MRUTYUNJAYA TATA BANGI, ADV.)

AND:

THE STATE OF KARNATAKA,
REP.BY SUB-INSPECTOR OF POLICE,
RURAL POLICE STATIN, JAMKHANDI,
DIST: BAGALKOTE.
                                          ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W SECTION 401 OF CR.P.C. TO SET ASIDE
THE ORDER OF CONVICTION PASSED BY THE ADDL.CIVIL
JUDGE AND JMFC, JAMKHANDI DATED 18.07.2011 PASSED IN
C.C.NO.282/2009 CONFIRMED BY THE COURT OF FAST TRACK,
JAMKHANDI DATED 31.01.2012 PASSED IN CRL.A.NO.62/2011
CONVICTING THE PETITONER FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 279 AND 338 OF IPC R/W SECTION 187 OF
M.V.ACT AND ACQUIT THE PETITIONER BY ALLOWING THE
PRESENT REVISION PETITION.

      THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                   2




                            ORDER

This revision petition is filed against the judgment

and order of conviction passed by the Fast Track Court,

Jamkhandi in Crl.A.No.62/2011 dated 31.01.2012 whereby

the learned Sessions Judge has dismissed the appeal by

confirming the judgment of conviction and order of

sentence passed by the Additional Civil Judge & JMFC,

Jamkhandi in C.C.No.282/2009 dated 18.07.2011.

2. The facts leading to the case care that, on

19.03.2009 at about 3.00 p.m, within the limits of

Jamkhandi Rural Police Station, on Mareguddi-Kallusallu

country side road, the accused being the driver of the

Tractor & Trailer bearing Reg.No.KA-48/T-4248-4249,

drove it in a rash and negligent manner endangering

human life and public safety from Mareguddi village

towards Kallusallu and while P.W.1 was walking by the side

of the road, the accused knock down P.W.1 causing

grievous injuries to her and thereafter fled from the spot

without intimating the accident to the nearest police

station and without attending the injured. The victim was

admitted in KLE Hospital, Belagavi and she filed a

complaint in crime No.32/2009 of Rural Police Station and

thereafter, Investigating Officer has submitted charge

sheet against the accused for the offences punishable

under Sections 279 and 338 of IPC and Section 187 of

M.V.Act. The case was registered in C.C.No.282/2009 and

the learned Magistrate after taking cognizance issued

process to the accused. The accused appeared and was

enlarged on bail. The plea was framed and read over to

the accused and he pleaded not guilty.

3. The prosecution has examined 15 witnesses

and got marked 12 documents as per Exs.P1 to P12. The

learned Magistrate recorded the statement of the accused

under Section 313 of Cr.P.C. to enable him to explain the

incriminating evidence appearing against him. However,

the case of the accused is total denial, but he has not put

forward any defence evidence. Then, the learned

Magistrate after hearing the arguments convicted the

accused under Section 255(2) of Cr.P.C. for the offences

punishable under Sections 279 and 338 of IPC as well as

under Section 187 of M.V.Act. He has imposed sentence of

simple imprisonment for a period of three months with fine

of Rs.1,000/- for the offence punishable under Section 279

of IPC and simple imprisonment for a period of six months

with fine of Rs.1,000/- for the offence punishable under

Section 338 of IPC and fine of Rs.500/- for the offence

punishable under Section 187 of M.V.Act.

4. This order is being challenged before the

District and Sessions Judge and Presiding Officer, Fast

Track Court, Jamkhandi in Crl.A.No.62/2011 and the

learned Sessions Judge by judgment dated 31.01.2012

dismissed the appeal by confirming the judgment of

conviction and order of sentence passed by the learned

Magistrate. Hence, the revision petitioner has approached

this court by filing this revision petition.

5. Heard the arguments of the learned counsel for

the revision petitioner and the learned HCGP for the

respondent-State. Perused the records.

6. Learned counsel for the revision petitioner

would argue that the judgment of the courts below are

contrary to law and both the courts below have failed to

appreciate the evidence and relied the sole evidence of the

complainant, which is not trustworthy. He would also

contend that, for the offence under Section 338 of IPC,

there is no material placed in the form of x-rays and the

complainant instead of getting admitted in the Government

Hospital at Jamkhandi got admitted in Belagavi, which is at

a distance of 180 k.m. which creates doubt regarding

conduct of the complainant. Alternatively, he would also

submit that the sentence of imprisonment may be set

aside by restricting the conviction only to the extent of

fine.

7. Per contra, learned High Court Government

Pleader appearing for the respondent-State supported the

judgment of conviction and order of sentence passed by

the trial court. He would contend that both the courts

below have appreciated the oral and documentary

evidence meticulously and arrived at a just decision.

Hence, he seeks dismissal of the revision petition.

8. Having heard the arguments and perusing the

records, it is evident that the revision petitioner is a driver

of a Tractor and Trailer bearing Reg.No.KA-48/T-4248-

4249. Though the revision petitioner has made a

halfhearted attempt to dispute his status as driver, the

evidence clearly discloses that he was driver of the

offending vehicle. Further, involvement of the offending

Tractor and Trailer in the accident is also undisputed. The

learned counsel for the revision petitioner has also

admitted these aspects before this court during the course

of his arguments. There is no serious dispute of the fact

that the complainant has suffered grievous injuries. Ex.P9

clearly establishes this aspect. The contention of the

learned counsel for the petitioner that, 'X-rays are not

produced', cannot be a ground to discard the wound

certificate issued by the Medical Officer, when the x-ray

number and other details were referred there. The medical

certificate clearly discloses that the injuries are grievous in

nature and no contrary evidence is also produced by the

revision petitioner. The owner of the vehicle was also

examined and though he has turned hostile, he has

categorically stated that the accused was the driver of the

offending vehicle and he did not dispute the involvement of

his vehicle in the accident. He got released the vehicle by

executing an indemnity bond.

9. The accused being the driver has seen the

complainant-Smt.Shobha while she was moving on the

road and caused the accident by hitting from back side.

How the accident has occurred is within the knowledge of

the accused and hence, he would have been the best

person in the given circumstances to explain these

aspects. Section 106 of the Indian Evidence Act casts

burden on the person to establish the facts specifically

within his knowledge. In the instant case, admittedly it is

within the knowledge of the accused as to how the

accident has occurred. But, he is not prepared to give any

explanation in this regard. His statement under Section

313 of Cr.P.C. is also a formal denial. Hence, adverse

inference is required to be drawn and admittedly the

complainant has suffered grievous injuries. The trial Court

and the appellate Court have appreciated the evidence and

are justified in convicting the accused for the offences

punishable under Sections 279 and 338 of IPC and under

Section 187 of M.V.Act. In these circumstances, question

of interference of this Court with the judgment of

conviction passed by the trial court is un-warranted.

10. Learned counsel for the accused/revision

petitioner would argue that there are lot of dependents on

the petitioner and he is aged more than 45 years and the

accident has occurred at 12½ years earlier and as such,

looking to the long pending dispute, sought for leniency

against accused by imposing only fine by setting aside the

part of sentence of imprisonment. In this context, he has

placed reliance on a decision of the Hon'ble Apex Court in

Criminal Appeal No. 536/2021 arising out of SLP (Crl.)

No.5985/2016, wherein the Hon'ble Apex Court has

substituted the sentence only by way of fine of Rs.1,000/-

for the offences punishable under Sections 279 and 338 of

IPC by modifying the sentence of imprisonment of six

months. The offence under Section 279 is punishable with

imprisonment for a period of six months or fine of

Rs.1,000/- or both. The offence under Section 338 of IPC

is punishable with imprisonment for two years or fine of

Rs.1,000/- or both. It is evident that maximum fine

prescribed is Rs.1,000/- in respect of both the offences.

As regards the offence under Section 187 of M.V.Act, only

fine has been imposed. In the instant case also, the

accident has occurred about 12 years back. Further, the

revision petitioner hails from the rural area and he is a

rustic agriculturist. Lot of water has been flown in this 12

years period. The principles of the above cited case are

similar to the case in hand and are applicable to present

case.

11. Looking to these facts and circumstances, in

my considered opinion, by confirming the conviction, the

sentence can be modified by setting aside the sentence of

imprisonment by restricting it to fine of Rs.1,000/- for

each of the offences under Section 279 and 338 of IPC,

which will meet the ends of justice. Accordingly, I proceed

to pass the following:-

ORDER

The criminal revision petition is allowed partly. The conviction order dated 18.07.2011 passed by the Additional Civil Judge and JMFC, Jamkhandi in Criminal Case No.282/2009 which is confirmed by the Court of Fast Track, Jamkhandi, vide judgment dated 31.01.2012 passed in Criminal Appeal No.62 of 2011 convicting the accused/revision petitioner for the offences punishable under Sections 279 and 338 of IPC read with Section 187 of M.V. Act, are confirmed.

However, the sentence of imprisonment for the offence under Sections 279 and 338 of IPC is set aside and it is restricted only to fine portion by confirming fine portion with default clause as imposed by the trial court.

The fine if not deposited by the accused/revision petitioner, the same shall be deposited within one month from today.

Sd/-

JUDGE

MBS/KGR*