Shivakumar S/O Chandrashekhar ... vs State Of Karnataka
2021 Latest Caselaw 5374 Kant

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        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.200044/2014

BETWEEN:

SHIVAKUMAR
S/O CHANDRASHEKHAR HIREMATH
AGE: 30 YEARS OCC: AGRICULTURE & DRIVER
R/O VILLAGE RAJESHWAR
TQ. BASAVAKALYAN
DIST. BIDAR
                                          ... PETITIONER

(BY SRI B.C. JAKA, ADVOCATE)

AND:

STATE OF KARNATAKA
THROUGH THE POLICE TRAFFIC
BASAVAKALYAN
TQ.BASAVAKALYAN
DIST. BIDAR
                                       ... RESPONDENT

(BY SRI GURURAJ V HASILKAR, ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 (1) AND 401 OF CRIMINAL PROCEDURE CODE,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 24.02.2014, PASSED IN
C.C.NO.57/2011 BY THE JMFC, BASAVAKALYAN AND JUDGMENT
AND ORDER DATED 25.06.2014, PASSED IN CRL.A.NO.61/2014
BY THE FTC, BASAVAKALYAN, BY ALLOWING THIS REVISION
PETITION, CONSEQUENTLY ACQUIT THE PETITIONER AND ETC.
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      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

2. The factual matrix of the case is that on

18.08.2010 at about 1.45 p.m., P.W.8 was driving his auto

bearing No.KA39-5307 carrying the school children in the

auto from Basavaklayan towards Bungalow. The accused

being the driver of the lorry bearing No.MH-04-CP-1846

came from Bungalow towards Basavakalyan took right turn

by using the road passage and came in a high speed and

dashed against the auto, as a result, three children

succumbed to the injuries and more than five children

including the auto driver sustained injuries. The police

have registered the case and after the investigation file the

charge sheet for the offences punishable under Sections

279, 337, 338, 304A of IPC read with Section 187 of IMV

Act.

3. The Trial Court relying upon the oral and

documentary evidence and considering the 313 statement

and also the contention of the respective defence counsel

and also the State, convicted the accused for all the

offences and imposed substantial sentence of 1½ years for

the offence punishable under Section 304A of IPC and fine.

The same has been challenged in Crl.A.61/2014. The

Appellate Court on re-appreciation of both the oral and

documentary evidence set aside the sentence of

compulsory imprisonment of four months for the offence

punishable under Section 279 of IPC and Section 187 of

IMV Act. However, imposed the fine of Rs.1,000/- and

Rs.500/- respectively. The conviction and sentence of the

accused was confirmed. Being aggrieved by the

modification of the order and confirmation for the offence

punishable under Section 304A, the present revision

petition is filed.

4. The counsel appearing for the revision

petitioner in his argument vehemently contend that both

the Courts have failed to consider the material available on

record, admittedly, PW1 is complainant in the above case

who categorically deposed that he cannot identify the

accused and also he cannot say the name of the lorry

driver. Even he has deposed that he not aware of the date

of the accident and all the panchas have categorically

stated that they don't know the contents of panchanama.

The prosecution has not examined the parents of the

deceased children i.e., CW8, 11 and 12. Inspite of some of

the witnesses have turned hostile, the Trial Court

committed an error in convicting the petitioner herein.

Hence it requires interference of this Court.

5. Both the Courts have relied upon the evidence

of PW8 and he deposed that he was the driver of the auto.

While taking the children to the school, due to the

negligence on the part of this petitioner, the accident has

taken place and three school going children have lost their

life and others have sustained injuries. This Court also

taken note of the Ex.P19-hand sketch and PW2 and PW3

are the spot mahazar witnesses have also supported the

case of the prosecution and Ex.P19 sketch discloses that

there is two roads and in between two roads, there is a

divider. Because of the said divider, roads become one

way. Lorry was expected to move on A-road in north

direction. Similarly, the auto was expected to move on B-

road in south direction. The accused making use of the

gap between the road divider, he took the vehicle towards

wrong side and proceeded towards extreme side and

hence, the said accident was occurred. Hence, there is no

ground to interfere with the petition.

6. Having heard the respective counsel appearing

for the parties and also on perusal of the evidence

available on record, the point that would arise for the

consideration of this court are

Whether both the courts have committed an error in convicting the petitioner and whether this court can exercise the revisional powers under Section 397 read with section 401 of

cr.p.c. with regard to the legality and correctness of the offence?

7. Having considered the respective counsel

submissions and also the evidence available on record I.e.,

the oral evidence of PW1 to 10 and the documentary

evidence at Ex.P1 to P19 and also the grounds urged in the

petition, the main contention of the petitioner counsel

herein that the trial court had committed an error in

considering the evidence of PW8. PW8 in his evidence has

deposed that the driver of the lorry, drove the vehicle in a

rash and negligent manner and also both the courts have

taken note of the document at Ex.P19-sketch and also

considered the IMV report, which is marked at Ex.P17 and

also the wound certificate which is marked at Ex.P8 to 13.

However, the Appellate Court set aside the conviction

order for the offence punishable under Sections 337 and

338 of IPC and no appeal is filed against the said order.

Having considering both the oral and documentary

evidence and also the grounds urged in the petition and

also taking note that there were three deaths of school

going children and the evidence of PW8 who is the driver

of the auto and his evidence is consistent. Hence, I do not

find any merit in the revision to reverse the finding of both

the Courts.

8. However taking into note of the offence

invoked under Sections 279 and 304A of IPC and when the

offence under Section 304A of IPC is the higher offence,

the very ingredients of the offence under Section 279 of

IPC also includes in the offence under Section 304A.

Hence, both the Courts have lost their sight in appreciating

the ingredients of the offence and hence, it is appropriate

to set aside the judgment of conviction for the offence

punishable under Section 279 of IPC and also the

sentence.

9. The accident was taken place in the year 2008

and almost a decade has been lapsed and also in the

accident, three children have lost their life and having

taken note of the gravity of the offence and death of the

children, it is not a case to impose only fine modifying the

sentence. But this court has to take note of the factual

aspects of the case and also the matter of one decade old,

it is appropriate to reduce the sentence from 1 ½ years to

six months modifying the sentence and increasing the fine

amount to the tune of Rs.1,50,000/- and out of

Rs.1,50,000/-, Rs.50,000/- each is payable to the parents

of the deceased children on the proper identification.

10. In view of the aforesaid discussions, I pass the

following

ORDER

The revision petition is allowed in part.

The conviction and sentence for the

offence punishable under Section 279 of IPC is

hereby set aside. The sentence of 1½ years is

reduced to six months for the offence

punishable under Section 304A of IPC and

directed the revision petitioner to pay fine of

Rs.1,50,000/0 and out of that the

compensation of Rs.50,000/- each shall be

payable to the parents of the deceased

children on proper identification.

The sentence in respect of the offence

punishable under Section 187 of IMV Act is

unaltered.

Sd/-

JUDGE

VNR/SAN