K.B. Basavaraj S/O. ... vs The Circle Inspector Of Police
2021 Latest Caselaw 3252 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 31ST DAY OF AUGUST, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

         CRIMINAL REVISION PETITION NO. 2112/2012

BETWEEN:

K.B. BASAVARAJ
S/O. SHAMBULINGEGOWDA
AGE: 46 YEARS
OCC: DRIVER
R/O. BOGHARAHALLI KOPPALU
POST: KUDURGUNDI,
DUDDA HOBLI
HASSAN TALUK AND DISTRICT
                                                 ...PETITIONER

(BY SRI. A.S. PATIL AND SRI. S.S. PATIL , ADVOCATE)

AND:

THE CIRCLE INSPECTOR OF POLICE
TEKKALAKOTE CIRCLE
TEKKALAKOTE
SIRUGUPPA TALUK
BELLARY DISTRICT
REP. BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH
                                               ...RESPONDENT

(BY SRI. RAMESH B. CHIGARI, HCGP)

      THIS CRIMIANL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. 401 OF CR.P.C. SEEKING TO SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED
02.03.2012 PASSED BY THE II ADDITIONAL SESSIONS JUDGE,
BELLARY, IN CRL.A. NO.52/2011 CONFIRMING THE JUDGMENT
AND ORDER OF CONVICTION DATED 13.10.2011 PASSED BY THE
JMFC COURT, SIRUGUPPA IN CC NO.510/2008.
                                       2



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

                               ORDER

This revision petition is filed by the revision

petitioner/accused seeking for setting aside the impugned

judgment and order of conviction dated 02.03.2012 passed

by the II Additional sessions Judge, Bellary, in Criminal

Appeal No52/2011 confirming the judgment and order of

conviction dated 13.10.2011 passed by the Judicial

Magistrate First Class, Siruguppa, in CC No.510/2008.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to this case is

that, the accused being driver of the lorry bearing

No.KA.14/B.786, on 14.04.2008 at about 5.30 a.m., in

between Halekote Village and Siruguppa on Bellary-

Siruguppa road, drove the vehicle in a rash and negligent

manner endangering human life and public safety, and ran

over the herd of sheep, goats and one person by name

Ravihal Durgappa, who was going along with his sheep and

thereby the said person died on the spot and about ten

sheep died and some of the sheep sustained grievous and

simple injuries while, one goat died. It is further alleged

that, some of the inmates of the lorry, have also sustained

fatal injuries. Immediately after the accident, the

accused/revision petitioner ran away from the spot, without

providing any medical aid to the injured.

        4.    On      the   basis   of   the     complaint      and     after

completion     of     investigation,     the     Investigating        Officer

submitted      .the     charge      sheet      against    the     revision

petitioner/accused for the offences punishable under Section

279, 337, 338, 304-A of IPC and Section 134(B) r/w. 187 of

the Motor Vehicles Act.

5. The accused appeared in pursuance of the

summons and denied accusation. Then the prosecution has

led evidence of thirteen witnesses as PWs. 1 to 13 and

twenty documents were also relied on by the prosecution as

Exs.P1 to P20, and then statement of accused under Section

313 of Cr.P.C. was recorded to enable him to explain the

incriminating evidence appearing against him in the case of

prosecution. The case of accused is of total denial and he

did not choose to lead any defence evidence.

6. Having heard the arguments and on perusing the

records, the learned Magistrate found that, accused has

committed offences under Sections 279, 337, 338 and 304-

A of IPC as well as under Section 187 of the Motor Vehicles

Act and accordingly, convicted him and imposed fine of

Rs.1,000/- for the offence under Section 279 of IPC and fine

of Rs.500/- for the offence under Section 337 of IPC, and

fine of Rs.1,000/- for the offence under Section 338 of IPC.

However, for the offence under Section 304-A, he has also

imposed sentence of Simple Imprisonment for a period of

one (01) year with fine of Rs.2,000/- along with default

clauses and for the offence under Section 187 of the M.V.

Act, the accused was imposed fine of Rs.500/- with default

clauses.

7. Being aggrieved by the said judgment of

conviction, the accused/revision petitioner has filed an

appeal in Criminal Appeal No.52/2011 before the II

Additional Sessions Judge, Bellary and the learned Sessions

Judge by his judgment dated 02.03.2012 dismissed the

appeal by confirming the judgment of conviction and order of

sentence passed by the trial Court.

8. Being aggrieved by the impugned judgments

passed by both the Courts below, the revision petitioner has

filed this revision petition under Section 397 r/w. 401 of

Cr.P.C.

9. Heard the arguments advanced by the learned

counsel for revision petitioner and the learned High Court

Government Pleader (for short, 'HCGP') for Respondent-

State. Perused the records secured from the Courts below.

10. Learned counsel for the petitioner would contend

that the prosecution has failed to bring home the guilt of the

accused regarding rash and negligent act on the part of the

revision petitioner/accused and further he would contend

that, since one sheep suddenly came on road, in order to

avoid the same, the accused took the vehicle by the side of

the road, which has resulted in accident and there is no

negligence on his part. He would also contend that the

witnesses have not supported the case of the prosecution

regarding rash and negligent driving on the part of the

accused and the sketch also does not establish his rash and

negligent act. Alternatively, learned counsel for the revision

petitioner/accused contend that the trial Court has imposed

sentence of imprisonment for a period of one year and that

may be restricted to fine only.

11. Per contra, the learned HCGP has seriously

objected the petition on the ground that the evidence on

record clearly establish that there is actionable negligence

on the part of the accused/revision petitioner and he has not

stepped into witness box to explain, in what circumstances,

accident has occurred. Hence, he would contend that, both

the courts below have rightly convicted the accused and

imposed reasonable sentence, and hence sought for

dismissal of the revision petitioner.

12. Having heard the arguments advanced by the

learned counsels appearing on both sides and on perusing

the records it is an undisputed fact that, the

accused/revision petitioner was the driver of the offending

vehicle. It is also an undisputed fact that the vehicle met

with an accident at about 5.30 a.m., while the accused

driving the vehicle on Bellary-Siruguppa Road. The sketch at

Ex.P20 discloses that, at the accident spot on Bellary-

Siruguppa Road is situated in South to North direction. It is

also a State Highway having sufficient width. The lorry was

moving from South towards North. The Accident Spot is

shown to be eastern edge of the road. When the vehicle was

moving from South to North, the accused ought to have

driven his vehicle on the western side of the road. The

records disclose that he moved on the wrong side i.e., on

eastern side and ran over herd of sheep and goat and

caused accident. It is the accused, who has to explain the

reason. Now it is submitted that suddenly a sheep came on

the road and he was compelled to take vehicle by the side of

the road, which has resulted in accident. But, the said

defence is not substantiated in the evidence. Apart from

that, the accident had taken place at about 5.30 hours in the

early morning. The accused would have been the best

witness in the facts and circumstances of the case, as he was

the driver of the vehicle. Admittedly, other inmates have

also suffered injuries and some of them have deposed in

favour of prosecution and some have pleaded ignorance as

to how accident occurred. But, the accused is required to

explain as to under what circumstances, the accident has

occurred and what all precautions he has taken for avoiding

the accident. Section 106 of the Indian Evidence Act, 1872

casts burden on the accused/revision petitioner to explain

the fact within his knowledge. Section 106 of the Indian

Evidence Act reads as under:-

"Sec.106. Burden of proving fact specially within knowledge - When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him."

13. In the instant case, the accused has not

bothered to enter into witness box to advance his evidence

as to how the accident has occurred. Even his statement

under Section 313 of Cr.P.C. is also silent and that itself

clearly disclose that he is not prepared to give any

explanation as to the cause of accident. He wanted to take

advantage of hostility of some of the witnesses. But, it is to

be noted here that the vehicle ran away on the herd of

sheep and goat and a person succumbed because of

injuries. It is also evident that some of the inmates of the

vehicle sustained injuries as well as some sheep also

sustained injuries.

14. Ex.P1 is the inquest mahazar; Ex.P15 is the

post-mortem report; PWs.P9 to P11 are the injured, who

were inmates of the vehicle and their evidence supports the

case of the prosecution. From Exs.P16 to P18, it is evident

that Ten sheep and one goat died due to accidental injuries;

Ex.P8 discloses that, accident is not caused due to any

mechanical defect in the vehicle; Ex.P20 clearly establish

that, it is because of actionable negligence on the part of the

accused, accident has occurred and he would have given

proper explanation in this regard. The oral and

documentary evidence clearly establish that occurrence of

accident is only because of actionable negligence on the part

of the accused. The trial Court has appreciated the oral and

documentary evidence and rightly convicted the accused.

The appellate Court has re-appreciated the evidence and

has confirmed the judgment of conviction and order of

sentence passed by the trial Court. Hence, considering

these facts and circumstances, question of interfering with

the judgment of conviction passed by the Courts below does

not arise at all.

15. Learned counsel for the revision petitioner would

contend that, for offence under Section 304-A of IPC, the

accused was imposed sentence of Simple Imprisonment for

a period of one year with fine of Rs.2,000/-, with default

clauses. He would contend that accused is an aged person

having number of dependants and hence, he would request

for setting aside the sentence of imprisonment by restricting

it to the punishment of fine only. In this context he placed

reliance on unreported decisions of this Court in Criminal

Revision Petition 461/2011 dated 08.10.2020 and

Criminal Revision Petition No.2152/2011 dated

01.04.2019 and Criminal Revision Petition 578/2020

dated 10.09.2020 and submitted that in Criminal Revision

Petition No. 578/2020 only fine is imposed for offence

under Section 304-A of IPC. But, said order cannot be

termed as a precedent, as in the decision reported in

(1987) 1 SCC 538 (State of Karnataka Vs. Krishna

alias Raju), the Hon'ble Apex Court has held that the

sentence shall be proportionate to the offence and

condemned the act of imposing flee-bite sentence.

16. Admittedly, in the instant case, due to the

accidental injuries, one person succumbed at the spot and

ten sheep and one goat also died in the accident. That itself

disclose the gravity of the offence and rash and negligent

act on the part of the petitioner. Looking to the facts and

circumstances of the case and the principles relied in the

above said decisions by the learned counsel for revision

petitioner cannot be made applicable. However, the trial

Court has imposed sentence of imprisonment for a period of

one year for the offence under Section 304-A of IPC. The

accident has occurred on 14.04.2008 ie., about 13 years

back. Lot of water has been flown in between. Therefore,

looking to the facts and circumstances, the sentence of

imprisonment of one year appears to be on higher side and

in my considered opinion, it can be restricted to six months

by enhancing the fine of Rs.10,000/-, with default clause of

Simple Imprisonment for two months, which will serve the

purpose. As regards the other offences, the sentence of fine

is only imposed, which does not call for any interference.

Accordingly, I proceed to pass the following:-

ORDER

i) The revision petition is allowed-in-part.

      ii)   The     judgment             of    conviction     dated
            13.10.2011           passed        by      the   Judicial
            Magistrate First Class, Siruguppa in CC
            No.510/2008          and      affirmed      by   the   II
            Additional         sessions       Judge,    Bellary,   in

Criminal Appeal No.52/2011 vide judgment dated 02.03.2012, stands confirmed. However, the order of sentence so far as it relates to the offence under Section 304-A of IPC, is modified. The sentence of

imprisonment is reduced to six months by enhancing the fine amount from Rs.2,000/- to Rs.10,000/-, in default to undergo Simple Imprisonment for a period of two months.

iii) The other sentence pertaining to Section 279, 337 and 338 of IPC and also Section 187 of the M.V. Act, stands unaltered.

iv) Out of fine amount of Rs.10,000/-

Rs.5,000/- shall be paid to the Guardian of the deceased by way of compensation under Section 357 of Cr.P.C. and balance of Rs.5,000/- shall be credited to the State Ex- chequer.

v) The fine amount shall be deposited before the concerned trial Court within four weeks from today.

v) The period of detention of the accused in custody during trial is set-off against the sentence imposed, under Section 428 of Cr.P.C.

Sd/-

JUDGE

KGR*