Vaijinath S/O Veershetty ... vs The State Through
2021 Latest Caselaw 5373 Kant

                          1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 3RD DAY OF DECEMBER 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

              CRL.RP.No.200004/2014

BETWEEN:

VAIJINATH S/O VEERSHETTY KAMSHETTY
AGE: 30 YEARS, OCC: DRIVER
R/O TEENDUKAN GALLI BHALKI TOWN
TQ. BHALKI, DIST. BIDAR.
                                       ... PETITIONER

(BY SRI RAVI K. ANOOR, ADVOCATE AND
SRI.AVINASH A. UPLOANKAR, ADVOCATE)

AND:

THE STATE THROUGH
KHATAKCHINCHOLI POLICE STATION
DIST. BIDAR
                                      ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CRIMINAL
PROCEDURE CODE, PRAYING TO CALL FOR AND EXAMINE THE
RECORDS IN C.C.NO.405/2008 AND SET ASIDE THE JUDGMENT
PASSED BY THE LEARNED JMFC COURT BHALKI BY ITS
JUDGMENT DATED 29TH AUGUST 2013 AND FURTHER THE SAME
BEING CONFIRMED BY THE ADDITIONAL DISTRICT & SESSIONS
JUDGE AT BIDAR, SITTING AT BHALKI IN CRL.APPEAL
NO.62/2013 DATED 21ST DECEMBER 2013.
                               2




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

                         ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader for the State.

2. The factual matrix of the case is that on

18.02.2008 at about 8.00 a.m., on Bhalki-Basavakalyan

road in the village limits of Dadgi, this petitioner being the

driver of the jeep bearing No.KA-32/M-2993 drove the

same towards Ghodwadi in a rash and negligent manner

endangering human life, caused the accident. As a result

the vehicle turned turtle and due the said impact P.Ws.1,

10 to 22, 24 & 25 and other inmates of the jeep sustained

simple and grievous injuries besides causing death of three

persons. The police have registered the case and

investigated the matter and filed the chargesheet for the

offences punishable under Section 279, 337, 338, 304-A of

IPC and under sections 187, 192 of Motor Vehicles Act.

The prosecution in order to prove the case examined

P.Ws.1 to 31 and got marked documents at Exs.P.1 to 24.

Thereafter, the accused was examined under section 313

of Cr.P.C., and accused did not lead any defence evidence.

The trial Court after considering both oral and

documentary evidence convicted the accused for the above

said offences and imposed substantial sentence of one

year for the offence punishable under Section 304-A of IPC

and also imposed fine. Hence, the appeal is filed before

the appellate Court in Criminal Appeal No.62/2013. The

appellate Court after re-appreciating the material available

on record, dismissed the appeal. Hence, the present

revision petition is filed before this Court.

3. The main contention of the learned counsel for

the petitioner is that both the courts have committed an

error in not appreciating the evidence as the witnesses

have stated that there was no fault on the part of the

driver of the vehicle and all the eye witnesses have

admitted that there was kaccha road and there were

ditches on the road and therefore, the vehicle turned turtle

as no one could drive the vehicle in high speed on the said

road. The case of the prosecution that this petitioner

drove the vehicle in a rash and negligent manner and

Exs.P.2 to 5 were not considered by both the courts i.e.,

photographs and the said accident had caused due to burst

of the tyre, hence, it requires interference of this Court.

4. Per contra, learned High Court Government

Pleader would submit that the grounds which have been

urged before the Court are appeal grounds and no grounds

are urged with regard to legality and correctness of the

finding of both the courts and both the courts having

considered the testimony of P.Ws.1, 10 to 18 and 20, 24

and 25 who have deposed that he drove the vehicle in rash

and negligent manner and the fact that the vehicle has

turned turtle on account of rash and negligent driving and

due to the said impact, several persons have sustained

injuries and three deaths have taken place and hence, it is

not a fit case to exercise revisional power.

5. Having heard the learned counsel for the

petitioner and the learned High Court Government Pleader

and also considering the grounds urged in the revision

petition, the point that arise for consideration before this

Court is:

1. Whether this Court can exercise power under

section 397 read with section 401 of Cr.P.C., with regard

to legality and correctness of the judgment?

6. Having heard the respective counsels and also

on perusal of the material available on record, it is the

case of the prosecution that 18.02.2008 at about 8.00

a.m., this petitioner drove the vehicle in a rash and

negligent manner as a result, the occupants of the jeep

have sustained injuries and three persons have lost their

lives. The prosecution also mainly relied upon the evidence

of injured witness particularly witness P.W.1, 10 to 18, 20,

24, 25 and those witnesses withstood the cross-

examination and the fact that the vehicle was turtle was

also not in dispute. It is also not in dispute that on

account of such accident three persons have lost their life

and in order to prove the factum of the defence that tyre

was bursted, no defence evidence has been led by the

petitioner herein. Hence, both the courts taking into

consideration particularly the evidence of injured witnesses

came to the conclusion that he drove the vehicle in a high

speed and in rash and negligent manner. P.Ws.12 and 13,

15 to 18 unequivocally deposed with regard to high speed

and driving of the vehicle in a rash and negligent manner

hence, taking into account both oral and documentary

evidence and also reasoning assigned by the trial Court

and the appellate Court, I do not find any reason to

exercise power under section 397 read with section 401 of

Cr.P.C. However, taking into note of the offences invoked,

the trial Court has convicted the accused for the offences

punishable under Sections 279, 337, 338, 304-A of IPC

and under section 187 and 192 of Motor Vehicles Act and

imposed the sentence. The substantial sentence under

section 304-A of IPC imposed for a period of one year and

to pay fine of Rs.5,000/- and in default to undergo three

months imprisonment is imposed. The appellate Court

dismissed the appeal and confirmed the conviction and

also sentence but both the courts below have failed to take

note of the fact that the offence under section 279 is in

respect of ingredient of negligence which merges with

section 304-A of IPC which is the higher offence. Hence,

the conviction of the revisional petitioner for the offence

punishable under Section 279 of IPC with section 304-A of

IPC also invoked and convicted, it requires interference of

this Court and the same is set aside. The incident has

taken place in the year 2008 and almost it is more than a

decade, it is an accident and it is not intentional and no

doubt, it is emerged that the accident occurred due to

negligence and taking into note of the fact that it is more

than a decade, no purpose would be served in keeping him

for a period of one year and taking into note of the gravity

of the offence and death of three persons in the accident,

it is appropriate to reduce the sentence from one year to

six months and this Court can modify the sentence

enhancing the fine amount. The revisional petitioner

counsel also would submit that little enhancement can be

done modifying the fine amount. This Court in criminal

petition No.2208/2009 and in Crl.P.No.2099/2011 awarded

compensation in the case and also observed that no

purpose would be served after lapse of 14 years but this

Court inclined to modify the entire sentence taking into

note the gravity of the offence wherein three persons have

lost their lives and hence, it is appropriate to award the

compensation and direct the revisional petitioner to pay

fine of Rs.1,50,000/- in respect of offence under section

304-A and the same is payable in favour of the legal heirs

of the persons who have lost their lives as compensation

and the same is payable within six weeks. In case of

default of payment of fine amount, he has to undergo

sentence for the offence which have been proved against

him in terms of the order of the trial Court which has been

confirmed by the appellate Court. The same analogy is

considered by this Court in Criminal Revision Petition

No.2135/2011. No doubt, in those cases modified to the

fullest extent but this Court has observed that there were

three deaths and hence, modified to six months.

7. In view of the observation made above, I pass

the following:

ORDER

The revision petition is allowed in part. The

judgment of conviction for the offences punishable under

Section 279 of Cr.P.C., is hereby set aside.

The order of sentence passed by the Trial Court

sentencing the accused to undergo simple imprisonment

for a period of one year is modified and the same is

reduced to six months for the offence punishable under

Section 304-A of IPC.

The fine amount of Rs.5,000/- imposed for the

offence punishable under Section 304-A of IPC is enhanced

to Rs.1,50,000/- and the same is payable within six weeks

and on deposit, the office is ordered to pay the said

amount in favour of the legal heirs of deceased persons at

Rs.50,000/- each as compensation on proper identification.

The order of sentence passed by the Trial Court with

regard to other offences is confirmed and the said fine

amount shall vest with the State.

The trial Court is directed to secure the accused and

sentence him for six months as modified. In default of

payment of enhanced fine amount, he shall undergo

simple imprisonment for a period of one year as ordered

by the Trial Court.

The petitioner is also entitled to benefit under section

428 of Cr.P.C.,

Sd/-

JUDGE

VNR