H Nanjundaiah vs State By Turuvekere Police
2021 Latest Caselaw 6348 Kant

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 17TH DAY OF DECEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION NO.87/2017

BETWEEN:

H. NANJUNDAIAH
S/O LATE HUCHANNA
AGED ABOUT 61 YEARS
RETIRED KSRTC DRIVER
R/AT KOTTURANAKOTTIGE
KASABA HOBLI, TURUVEKERE TALUK
TUMKUR DISTRICT-572 227
                                    ... PETITIONER
(BY SRI.KARUNASAGAR REDDY, ADVOCATE FOR
    SRI. MAHUSUDHAN M.N., ADVOCATE)

AND:

STATE BY TURUVEKERE POLICE
TURUVEKERE TALUK-572 227
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE-560 001
                                     ...RESPONDENT

(BY SRI. V.S. VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.PC PRAYING TO SET
ASIDE   THE   IMPUGNED   JUDGMENT    AND   ORDER
DATED:03.12.2016 PASSED IN CRL.A.NO.10026/2016 BY
                              2

THE V ADDL. DIST. AND S.J., TIPTUR AND THEREBY SET
ASIDE THE ORDER OF CONVICTION AND ORDER OF
SENTENCE PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC,   TURUVEKERE    IN    C.C.NO.392/2015  DATED
29.06.2016 BY ALLOWING THIS REVISION PETITION.

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

                       ORDER

This revision petition is filed by the accused who

suffered an order of conviction in C.C.No.392/2015

dated 29.06.2016 passed by the Senior Civil Judge

and JMFC, Turuvekere for the offence punishable

under Sections 279, 337 and 338 of IPC and

sentenced to undergo simple imprisonment and to pay

fine as under:

  Offence           Simple              Fine        Default
                 Imprisonment                       Sentence

Section 279      6 months         Rs.500/-          30 days


Section 338      6 months         Rs.500/-          30 days


Section 337      3 months         Rs.250/-          15 days

which was confirmed in Crl.A No.10026/2016 is before

this Court in this revision petition.

2. Brief facts of the case are as under:-

Accused was charge sheeted for the offences

punishable under Sections 279, 337 and 338 of IPC by

the Turuvekere Police. The contents of the charge

sheet are that on 02.11.2014 at about 4.30 p.m., near

the bridge on the road of Turuvekere-Tiptur near

Somenahalli the accused being the driver of KSRTC

bus bearing registration No.KA-06-F-583 drove the

same in a rash and negligent manner and dashed

against the motor cycle bearing registration No.KA-

05-EC-1398, whereby the rider and the pillion rider

sustained simple and grievous injuries.

3. After filing of the charge sheet, the

presence of the accused was secured before the

learned Magistrate and plea was recorded. Accused

pleaded not guilty and as such, trial was held.

4. In order to prove the case of the

prosecution, the prosecution examined 10 witnesses

including the injured witnesses as PWs.1 to 10 and the

doctor who issued the wound certificate. The

prosecution relied on 13 documents, which were

exhibited and marked as Exs.P1 to P13 among them

Ex.P8 and Ex.P9 are the wound certificates, Ex.P10 is

the IMV report.

5. On conclusion of the prosecution evidence,

the learned trial Magistrate recorded the accused

statement as contemplated under Section 313 of

Cr.P.C., The accused has denied all the incriminatory

materials found in the case of the prosecution but did

not chose to place his version on record either by

examining himself or by placing his version as is

contemplated under Section 313(5) of Cr.P.C.

Thereafter, learned trial Magistrate heard the

arguments in detail and passed an order of conviction

and sentence as referred to above.

6. Being aggrieved by the same, the accused

preferred an appeal before the District Court at Tiptur

in Crl.A.No.10026/2016.

7. Learned judge in the First Appellate Court

after hearing the arguments of parties in detail and

after perusal of the materials on record, confirmed the

order passed by the learned Magistrate on

03.12.2016. Being aggrieved by the same, the

revision petitioner is before this Court in this revision

petition. In the revision petition the following grounds

have been raised by the revision petitioner.

"The Court below erred in appreciation of facts has wrongly passed the impugned order by convicting the Petitioner without proper appreciation of evidence of parties and documents

available on records mechanically passed the impugned order and the same is against to law and hence the same is liable to be set aside by the hands of this Hon'ble Court by allowing this Revision Petition.

The order of conviction by confirming the order of the Court below by the First Appellate Court is opposed to law and arbitrary and hence the same is liable to be set aside by the hands of this Hon'ble Court by acquitting the Petitioner for the alleged offences.

It is pertinent to note that, the accident occurred on 02.04.2014 but the wound certificate discloses that, the wounds are notified on 02.11.2015 and the alteration also present at the wound certificate and the same are not properly verified and appreciated by the courts below. Hence, on this ground alone the impugned judgment and order passed by the courts below are deserves to be set aside by the hands of this Hon'ble Court.

It is submitted that, on suggestion to the PW-1(EYE WITNESS) by the defense counsel then the witness deposed as zÉÆqÁÝWÀlÖ¢AzÀ C¥ÀWÁvÀªÁ¬ÄvÀÄ JAzÀÄ ºÉüÀ¯ÁzÀ ¸ÀܼÀÀzÀªÀgÉUÀÆ E½eÁgÀÄ gÀ¸ÉÛ EgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. And further he deposed as ¸ÉÆêÀÄ£ÀºÀ½î¬ÄAzÀ §gÀĪÁUÀ C¥ÀWÁvÀªÁ¬ÄvÀÄ JAzÀÄ ºÉüÀ¯ÁzÀ gÀ¸ÉÛ

¸ÀªÀĪÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj and the same suggestion was put to PW-2(RIDER OF THE BIKE) then he deposed that, zÉÆqÁÝWÀlÖ PÀqɬÄAzÀ §gÀĪÁUÀ gÀ¸ÉÛ E½eÁgÀÄ EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj and further he deposed that, C¥ÀWÁvÀªÁ¬ÄvÀÄ JA§ ¸ÀܼÀzÀ°è gÀ¸ÉÛ £ÉÃgÀªÁVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. The depositions of the both witnesses are contradictory and the same was not properly appreciated by the courts below. Hence, on this ground also the impugned judgment and order passed by the courts below are deserves to be set aside by the hands of this Hon'ble Court.

It is submitted that, on suggestion to the PW-2(RIDER OF THE BIKE) by the defense counsel then the witness deposed as £À£ÀUÉ ¥ÀæeÉÕ vÀ¦àzÀ PÁgÀt £À£ÀߣÀÄß AiÀiÁgÀÄ D¸ÀàvÉæUÉ ¸ÉÃj¹gÀÄvÁÛgÉ JAzÀÄ £À£ÀUÉ eÁÕ¥ÀPÀ EgÀĪÀÅ¢®è and further he deposed as C¥ÀWÁvÀªÁzÀ £ÀAvÀgÀ £À£ÀUÉ ¥ÀæeÉÕ vÀ¦àgÀÄvÀÛzÉ, £À£ÀUÉ «PÉÆÖÃjAiÀiÁ D¸ÀàvÉæAiÉÄ°è C¥ÀWÁvÀªÁzÀ 3 ¢£ÀUÀ¼À £ÀAvÀgÀ eÁÕ£À §A¢gÀÄvÀÛzÉ and the same suggestion was put to PW-

3(PILLION RIDER OF THE BIKE) C¥ÀWÁvÀªÁzÁUÀ £À£Àß ªÀiÁªÀ¤UÉ ¥ÀæeÉÕ vÀ¦àgÀ°®è. The depositions of the both witnesses are contradictory and the same was not properly appreciated by the courts below. Hence, on this ground also the impugned judgment and order passed by the courts below are deserves to be set aside by the hands of this Hon'ble Court.

It is submitted that, on suggestion to the PW-2(RIDER OF THE BIKE) by the defense counsel then the witness deposed as ¥ÉưøÀgÀÄ £À£Àß ºÉýPÉAiÉÄãÀÄß C¥ÀWÁvÀªÁzÁUÀ §gÉzÀÄPÉÆArgÀÄvÁÛgÉ i.e. on 02.11.2014 but the records of the charge sheets reveals that, the statement of the PW-2 is taken on 02.08.2015 and the same was not properly appreciated by the courts below. Hence, on this ground also the impugned judgment and order passed by the courts below are deserves to be set aside by the hands of this Hon'ble Court.

It is pertinent to note that in the written complaint there was no record of amputation of the leg nor in the charge sheet this aspect also not observed and appreciated by the courts below. Hence the impugned judgment and order passed by the courts below are deserves to be set aside by the hands of this Hon'ble Court.

Viewed from any angle the impugned order of the Session Court is not at all maintainable either in law or as on facts and the same is liable to be set-aside on merits."

8. Reiterating the above grounds, learned

counsel for the Revision Petitioner Sri.Karunasagar

Reddy representing Sri.Madhusudhan.M.N vehemently

contended that both the Courts have wrongly

convicted the accused resulting in miscarriage of

justice and sought for allowing the Revision Petition.

Alternatively he submits that all the Sections for which

the accused has been convicted are punishable with

fine or imprisonment and therefore, this Court may

kindly take a lenient view and impose only fine against

the accused.

9. Per contra, learned High Court Government

Pleader supported the impugned judgments and

contended that testimony of the injured eye witnesses

coupled with the oral testimony of the doctor who

issued the wound certificates clearly establish the

incident and therefore, the impugned judgments are

based on sound and logical reasons and therefore, no

scope is available to interfere with the well reasoned

order passed by both the Courts and sought for

dismissal of the Revision Petition.

10. Insofar as alternative submission is

concerned, learned HCGP contended that road traffic

accident and injuries sustained by the general public is

on high pedestal and in such circumstances, the

Courts are required to take strict view instead lenient

view and therefore, no case is made out for setting

aside the imprisonment and ordering only for fine and

sought for dismissal of the revision petition in toto.

11. In view of the rival contentions and having

regard to the limited scope of revisional jurisdiction,

the following points would arise for consideration:

1. Whether the findings recorded by the trial magistrate that the accused person is guilty of the offences

punishable under Sections 279, 337 and 338 of IPC, which is confirmed by the First Appellate Court in Crl.A.No.10026/2016 is suffering from legal infirmity, perversity and thus calls for interference?

2. Whether the sentence is excessive?

12. In the case on hand, the incident is not in

dispute. The accident that occurred near bridge on

Turuvekere-Tiptur road near Somenahalli on

02.11.2014 at about 4.30 p.m., stands established by

the prosecution by placing necessary oral and

documentary evidence on record. Admittedly, wound

certificate issued and marked at Exs.P8 and P9 depicts

that the injured persons have suffered injuries in a

road traffic accident. There is no delay in lodging the

complaint. The accident has occurred in broad day

light. Further, the complainant and injured persons did

not possess any previous enmity or animosity against

the accused-revision petitioner so as to falsely

implicate in the case. When the prosecution has

proved this case by placing necessary oral and

documentary evidence on record it is for the accused

to place on record his version about the incident. He

has failed to do so. In this regard this Court places its

reliance on the judgment of the Hon'ble Apex Court in

the case RAVI KAPUR Vs. STATE OF RAJASTHAN

REPORTED IN (2012) 9 SCC 284, wherein at

Paragraph No.39 it has been held as under:

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the

accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

13. Applying the legal principles enunciated in

the above case, to the case on hand and in the

absence of the version placed by the accused about

the incident, the consequences of law has been rightly

applied by the learned trial magistrate and re-

appreciated by the learned judge in the First appellate

Court. Therefore, this Court is of the considered

opinion that no case is made out by the revision

petitioner to interfere with the well reasoned-order

passed by both the Courts and accordingly, point No.1

is answered in the Negative.

14. As regards Point No.2: Insofar as sentence

is concerned, the incident has occurred when the

accused was driving the bus bearing registration

No.KA-06-F-583. The injured persons no doubt have

suffered the injuries as is mentioned in Ex.P8 and

Ex.P9. Further, the injured persons would have also

approached the Motor Accident Claims Tribunal for the

purpose of obtaining necessary compensation. Under

such circumstances, ordering for imprisonment for the

offences punishable under Sections 279, 337 and 338

of IPC, there is no proper basis and accordingly, the

sentence of imprisonment needs to be set aside by

enhancing the fine amount. Accordingly, point No.2 is

answered and pass the following:

ORDER

i. Criminal revision petition is allowed-in-part.

ii. While maintaining the conviction of the accused-revision petitioner for the offences punishable under Sections 279, 337 and 338 of IPC, the accused is directed to pay

fine of Rs.21,000/- for all the offences with default sentence of 6 months simple imprisonment.

iii. After receipt of the fine amount, a sum of Rs.10,000/- to be paid to each of the injured witnesses viz., PW.2-Mudalaiah and PW.3-Raveesha, as compensation.

iv. Further, since the accused is convicted for committing road traffic accident, he is at liberty to make necessary representation to his higher authority since disciplinary enquiry is initiated, and this order shall not come in the way of rights to be exercised by the revision petitioner.

v. Time is granted till 15.01.2022 to pay the fine amount. If the accused failed to pay the fine amount, the order of the Trial Court automatically stand restored.

Office is directed to return the Trial Court Records

with the copy of this order, forthwith. If the accused

failed to pay the fine amount, the order of the Trial

Court automatically stand restored.

Sd/-

JUDGE

NS