Lohitkumar Patil S/O Gunderay vs State Of Karnataka
2021 Latest Caselaw 3155 Kant

                           -1-



            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 17TH DAY OF AUGUST, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

      CRIMINAL REVISION PETITION NO.2213 OF 2012

BETWEEN
LOHITKUMAR PATIL S/O GUNDERAY
AGE: 33 YEARS, OCC: DRIVER, KSRTC,
R/O.KAGADE CHOWK CROSS,
BHAVANI NAGAR, GULBARGA,
C/O. AT KSRTC DEPOT, SIRSI (UK)
                                          ...PETITIONER

(BY SRI. CHETAN T LIMBIKAI, ADVOCATE)

AND
STATE OF KARNATAKA
RPTD BY PUBLIC PROSECTOR
UTTARA KANNADA, KARWAR
                                          ...RESPONDENT

(BY SRI. RAMESH B CHIGARI, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. SEEKING TO SET
ASIDE THE JUDGEMENT AND ORDER OF CONVICTION PASSED
BY THE JMFC COURT, SIDDAPUR, IN C.C.NO.1049/2009 DATED
05.04.2011 AND THE JUDGEMENT PASSED BY THE DISTRICT &
SESSIONS JUDGE, U.K. KARWAR, IN CRL.A.NO.59/2011, DATED
29.05.2012, IN THE INTEREST OF JUSTICE.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
                             -2-



                          ORDER

This revision petition is filed under Section 397 and

401 of the Code of Criminal Procedure, challenging the

judgment of conviction passed by the learned JMFC,

Siddapur in C.C.No.1049/2009 dated 05.04.2011 and

confirmed in Criminal Appeal No.59/2011 by the learned

District and Sessions Judge, Uttar Kannada, Karwar by

judgment dated 29.05.2012 for the offences punishable

under Sections 279, 337 and 338 of IPC.

2. For the sake of convenience, parties are

referred as per original ranks occupied by them before the

Trial Court.

3. The accused was the driver of KSRTC bus

bearing registration No.KA-01/F-1404 and on 16.05.2009

at about 6.45 a.m., he drove his vehicle in a rash and

negligent manner on Siddapur-Kumta road, and when he

reached near Shirur bridge, he dashed on coming Maruti

Omni van bearing registration No.KA-31/M-4024 and

thereby caused accident. It is alleged that in the said

accident, the driver of omni vehicle i.e. CW4 and other

witness i.e. CW5 have sustained grievous injuries and

complainant and CW6 sustained simple injuries. In this

regard, the first informant/CW1 has lodged a complaint

and a case came to be registered in Crime No.64/2009 in

Siddapur police station. Thereafter, the investigating

officer after investigation submitted charge sheet against

the accused for the offence punishable under Sections 279,

337 and 338 of IPC. The learned Magistrate has taken

cognizance and issued process to the accused. Accused

appeared before the learned Magistrate and was enlarged

on bail. The plea of the accused was recorded and accused

denied all the accusations. Then to prove the guilt of the

accused, the prosecution has examined in all five

witnesses as PW1 to PW5 and also relied on documents

marked at Ex.P1 to Ex.P9. During the course of the

evidence, Ex.D1 to Ex.D5 were also marked on behalf of

the accused. Thereafter, the learned Magistrate recorded

the statement of the accused under Section 313 of Cr.P.C.,

and the case of the accused if of total denial. In his

statement recorded under Section 313 of Cr.P.C., to

question No.12 he has simply stated that he was driving

the bus slowly and the accident has occurred because of

actionable negligence on the part of the driver of Maruti

Omni van.

4. After hearing the arguments, learned

Magistrate has found that the prosecution has proved the

guilt of the accused beyond all reasonable doubt for the

offences punishable under Sections 279, 337 and 338 of

IPC and accordingly, convicted him by imposing fine of

Rs.1,000/- each for the offences punishable under Sections

279 and 338 of IPC and imposed fine of Rs.500/- for the

offence punishable under Section 337 of IPC with default

clause. This judgment came to be challenged in Criminal

appeal by the accused in Criminal appeal No.59/2011

before the learned Sessions Judge at Karwar and the

learned Sessions Judge by judgment dated 29.05.2012

dismissed the appeal holding that it is meritless. Being

aggrieved by concurrent findings, the accused/revision

petitioner has approached this Court by filing this revision

petition.

5. Heard the arguments advanced by both the

counsel and perused the records of the Trial Court.

6. Learned counsel for revision petitioner would

contend that both the courts below have not properly

appreciated the oral and documentary evidence and there

is no evidence to prove the rash and negligent driving on

the part of the accused/petitioner and the evidence of

PW1, PW3 and PW4 is not corroborated with each other

with regard to rash and negligent act on the part of the

accused. It is also contended that though the evidence is

inconsistent regarding spot of the accident in existence

was of shape of "L" or "U" curve but the courts below have

relied on self-interested testimony of the witnesses and it

has led to miscarriage of justice. He would also contend

that if the court comes to the conclusion that the accused-

petitioner is guilty of the offences alleged against him, he

may be released under the provisions of Section 3 or 4 of

the Probation of Offenders Act. Hence, he has sought for

allowing the petition.

7. Learned HCGP appearing for respondent-state

has seriously objected the petition on the ground that both

the Courts below have meticulously appreciated the oral

and documentary evidence and arrived at a just decision.

He would also contend that both the Courts have imposed

minimum sentence of fine hence, it does not call for any

interference.

8. Having heard the arguments and perusing the

records, it is evident that the accused was the driver of

KSRTC Bus bearing registration No.KA-01/F-1404. Further,

it is an undisputed fact that CW4 was the driver of Maruti

Omni van bearing registration No. KA-31/M-4024 and

there was head on collision between these two vehicles on

Siddapur Kumta road near Siddapur Bridge.

9. PW1 is the first informant and he has given

evidence in accordance with the case of the prosecution.

Accordingly, PW4 and 5 have also given their evidence. It

is undisputed fact that the CW4 and one witness have

suffered grievous injuries while other two witnesses have

sustained simple injuries. On perusal of the records, it is

evident that there is no dispute about the involvement of

both the vehicles in the accident. Accused has relied on

Ex.D1 to Ex.D5 which are the photographs and statement

of the witnesses. Ex.D1, Ex.D4 and Ex.D5 are the

photographs of the alleged accident spot wherein it shown

that there is a curve at the accident spot. However, during

the course of cross-examination it is suggested that while

accused was driving the vehicle there were certain pits on

the road and in order to avoid a pit, he has driven his

vehicle on the right side, which resulted in accident. In this

regard it is necessary to verify the sketch of the scene of

offence and Ex.P2 is the mahazar of scene of offence. On

perusal of Ex.P2, it is evident that at the accident spot, the

road is running from west towards east. Kumta is towards

west while Siddapur is towards east. Further the KSRTC

bus was moving from Kumta i.e. from west towards east

i.e. towards Siddapur. The omni van was moving towards

east-west i.e. from Siddapur towards Kumta. The road at

the accident spot is of 18 ft in width. The accident spot is

shown to be on the southern edge of the road. When

accused was driving his KSRTC bus from west to east, he

should have driven the vehicle on the northern side of the

road. On perusal of the sketch, it shows that still there was

space of 8 ft. on the northern side of the road. This

document discloses that the accused has moved his vehicle

on wrong side i.e. on the southern side of the road. The

omni van was moving on the left side of the road i.e.

towards southern end itself. It is for the accused to explain

as to what compelled him to move his vehicle on the right

side of the road. During the course of cross-examination of

the witnesses, a suggestion was made that since the road

was having lot of pits, in order to avoid a pit, the accused

moved his vehicle towards right side. In such an event the

accused was able to see the on coming vehicles and he

could have stopped his vehicle and after passing of on

coming vehicle, then he should have moved his vehicle on

the right side but that was not the happened in this case.

Under these circumstances, the principle of res ipsa

loquitur is applicable to the facts and circumstances of the

case on hand. Further to explain all these facts, the

accused would have been a best witness but he has not

made any efforts to explain as to under what

circumstances, the accident had occurred as contemplated

under Section 106 of the Indian Evidence Act. As such,

adverse inference is required to be drawn. Both the Courts

below have appreciated the oral and documentary

evidence in accordance with law and are justified in

convicting the accused for the offences punishable under

Sections 279, 337 and 338 of IPC.

10. The learned counsel for petitioner would

submit that the petitioner may be enlarged under the

provisions of P.O. Act since the offences are punishable

under Section 279, 337 and 338 of IPC. In the instant

case, it is not proper to apply the provisions of P.O. Act.

Learned counsel for petitioner has placed his reliance on

decision in the case of Sri. Bharath v. The State of

Bhatkal Town Police Station reported in ILR 2009 KAR

985. But on perusal of the facts and circumstances of the

case, it is evident that in the said case sentence was

maintained and however, he was granted benefit of

provisions of Section 4 of the P.O. Act. When sentence is

maintained the question of extending the benefit of P.O.

Act, does not arise at all. Hence, the principles enunciated

in the above said decision cannot be made applicable to

the facts and circumstances of the case on hand. The

learned counsel would submit that sentence may be set

aside and he may be released under the provisions of P.O.

Act. But as observed above, considering the gravity and

nature of the offences, it is not a fit case wherein the

provisions of P.O. Act can be incorporated.

11. The learned counsel for the revision petitioner

has further placed his reliance on the decision of the

Hon'ble Apex Court in the case of Surendran v. Sub-

Inspector of Police reported in 2021 SCC Online SC

445. But in the said case, though the offences were under

Section 279, 337 and 338 of IPC and for the offences

punishable under Sections 279 and 338 the imprisonment

for six months with fine of Rs.500/- was imposed, the

Hon'ble Apex Court considering the fact that the case was

26 years old, it has reduced the sentence by only imposing

fine by setting aside the sentence of imprisonment. The

said principles cannot be applicable to the case on hand, as

in the instant case, only fine is imposed and not sentence

of imprisonment.

12. The learned counsel for petitioner would

submit that the petitioner is having 16 years of long

service and hence, he seeks for extending the benefit of

P.O. Act. The petitioner was the driver of the KSRTC bus,

who drove the vehicle in a rash and negligent manner and

caused accident. He was carrying the passengers and as

such, he should be more cautious. Hence, question of

extending benefit under the provisions of P. O. Act, does

not arise at all and the act of rash and negligent driving

does have not have any relevancy with the remaining

service of the accused/revision petitioner. It is for the

corporation to take appropriate call.

13. The learned counsel has further placed reliance

on the decision of this Court passed in Criminal Revision

No. 2280/2012 dated 07.11.2015 and sought that there

may be certain observation regarding conviction, and

sentence shall not come in the way of employment of the

present petitioner. The petitioner is a driver under KSRTC.

He is governed under regulations of KSRTC. When the

conviction is being confirmed, it is left to the discretion of

the appointing authority. In case of extension of provisions

of P.O. Act, under Section 12 of the P.O. Act, directions

could have been issued but since P.O. Act is not attracted

in the instant case, such directions cannot be given but

however it is left to the discretion of the appointing

authority. Looking to these facts and circumstances of the

case, the petition is devoid of any merits and needs to be

rejected. Accordingly, I proceed to pass the following;

ORDER

The above revision petition is dismissed.

In view of disposal of the case, pending

interlocutory applications, if any do not survive

for consideration and are dismissed

accordingly.

Sd/-

JUDGE

yan