N R Girish vs The State Of Karnataka
2021 Latest Caselaw 1526 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF FEBRUARY 2021

                            BEFORE

 THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No. 683 OF 2013

BETWEEN:

N.R. Girish
S/o. Ramaswamy,
Aged about 25 years,
R/o. Nerlige Village,
Javagal Hobli,
Arasikere Taluk,
Hassan District-573 125.                        .....Petitioner

(By Sri.A.V. Gangadharappa, Advocate)

AND:

The State of Karnataka,
Banavara Police Station - 573 112.            .....Respondent

(By Sri. Thejesh P, HCGP)

       This Criminal Revision Petition is filed under Sections 397
and 401 Cr.P.C. praying to set aside the judgment and order of
conviction and sentence dated 14.12.2010 passed by the Addl.
Civil Judge and JMFC, Arasikere in C.C. No.708/2008 and the
Judgment and order dated 20.06.2013 passed by the Principal
Sessions Judge, Hassan in Crl.A.No.1/2011 and Acquit the
petitioner of the charges levelled against him.
                                                     CRL.R.P. NO.683/2013
                                   2


      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
28.01.2021, coming on for pronouncement of orders this day, the
Court made the following:

                               ORDER

The present petitioner was accused in C.C.No.708/2008, in

the Court of the learned Additional Civil Judge & J.M.F.C at

Arasikere, (hereinafter for brevity referred to as the "trial Court").

By its judgment dated 14.12.2010, the trial Court convicted the

accused for the offences punishable under Sections 279, 304(A)

of the Indian Penal Code, 1860 (hereinafter for brevity referred to

as the "IPC") and Sections 184 and 187 of Motor Vehicles Act,

1988 (hereinafter for brevity referred to as the "M.V. Act") and

was sentenced accordingly.

2. The summary of the case of the prosecution in the trial

Court is that, on 31.12.2007, at about 5.30 p.m., on Banavara-

Javagal road, the accused rode his motor cycle bearing

Registration No. KA.13.S.2834 in a rash and negligent manner

along with CW.4 and dashed against one Sri. Thimmappa, a

pedestrian, who was going on the side of the road. As a result of

which accident, said Thimmappa, the pedestrian, fell down and CRL.R.P. NO.683/2013

sustained grievous injuries. The rider of the motor cycle ran away

from the spot. Though the injured was immediately taken to a

hospital at Banavara and then to NIMHANS at Bengaluru,

however, on the way to NIMHANS hospital, he succumbed to

injuries at 9.30 on the same night. The accident occurred due to

rash and negligent driving of the rider of the motor cycle, as such,

he has committed the offences punishable under Sections 279 and

304A of Indian Penal Code 1860 (hereinafter for brevity referred

to as "IPC" and Sections 184 and 187 of Motor Vehicles Act, 1998

(hereinafter for brevity, referred to as "MV Act").

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

4. In order to prove the alleged offences against the

accused, the prosecution examined twelve witnesses as PW.1 to

PW.12 and marked documents from Exs. P.1 to P.9. The accused

did not lead any evidence from his side, however, a document at

Ex.D1 was marked from the accused's side.

CRL.R.P. NO.683/2013

5. After hearing both side, the trial Court by its impugned

judgment dated 14.12.2010 convicted the accused for the offence

punishable under Sections 279 and 304-A of IPC and Sections 184

and 187 of the MV Act and sentenced him accordingly.

6. Challenging the said order, the accused has preferred an

appeal in Criminal Appeal No.1/2011 before the Court of

Prl.Sessions Judge, at Hassan (hereinafter for brevity referred to

as `Sessions Judge's Court), which by its judgment dated

20.06.2013 dismissed the appeal by confirming the judgment of

conviction passed by the trial Court. It is against these judgments

of conviction, the accused has preferred this appeal.

7. The respondent is being represented by the learned

HCGP.

8. Records from the Trial Court and Sessions Judge's Court

pertaining to the matter were called for and the same are placed

before the Court.

9. Heard the arguments from both side. Perused the

materials placed before this Court.

CRL.R.P. NO.683/2013

10. The only point that arises for my consideration is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

11. The prosecution case is that, on 31.12.2007, at

about 5.30 p.m., a road traffic accident had occurred on

Banavara-Javagal road, within the limits of the respondent-

Police Station, wherein a motor cycle bearing Registration

No. KA.13.S.2834 dashed against the pedestrian by name

Sri. Thimmappa, due to which road traffic accident, the said

Thimmappa sustained grievous injuries and succumbed to it.

12. Among twelve witnesses examined by the

Prosecution, PW.1, PW.3 and PW.11 have spoken about the

road traffic accident and involvement of the alleged motor

cycle in the said accident. Further, these witnesses have also

categorically stated that in the said road traffic accident, one

Sri. Thimmappa, an elderly person, sustained injuries and

died. The said evidence of these material witnesses

regarding occurrence of road traffic accident and involvement CRL.R.P. NO.683/2013

of the motor cycle bearing Registration No.KA.13.S.2834 in

the said accident and one Sri. Thimmappa sustaining injuries

in the said road traffic accident and succumbing to it, has not

been specifically denied or disputed from the accused's side in

the cross-examination of any of the prosecution witnesses.

On the other hand, in the cross-examination of PW.1, PW.2,

PW.3 and PW.11 and PW.12, suggestions were made from

the accused's side to the respective witnesses suggesting that

road traffic accident has occurred due to a fall of the

deceased Thimmappa on the alleged date. Thus, by

specifically suggesting to these witnesses about the

occurrence of the road traffic accident and Sri. Thimmappa

sustaining injuries in the said road traffic accident, the

accused has admitted occurrence of the road traffic accident

and involvement of motor cycle bearing Registration

No.KA.13.S.2834 and also Thimmappa sustaining injuries in

the said road traffic accident.

CRL.R.P. NO.683/2013

13. Further, the evidence of PW.7-Dr. Sunitha Prakash

is that, she conducted autopsy on the dead body of the

deceased Thimmappa and noticed several injuries on his

body as described in Ex.P5 and she had opined that the cause

of death was due to shock and hemorrhage with fracture of

both bones, which were ante-mortem in nature. The said

Doctor has also stated in her evidence that there is possibility

of all those injuries being caused in the road traffic accident.

14. PW.1, PW.2 and PW.3 claiming themselves to be

the eyewitnesses to the alleged incident, have stated that, in

the road traffic accident, due to dashing of the motor cycle to

the pedestrian Thimmappa, he sustained multiple injuries.

No doubt, PW.2 and PW.3 have stated in their evidence that

immediately after the accident, when they saw the injured

Thimmappa, they did not notice any bleeding injury. By that

itself, it cannot be inferred that PW.2 and PW.3 were not the

eyewitnesses to the alleged incident or that the deceased did

not sustain injuries in the accident. Further, PW.1, PW.2 and

PW.3 in their evidence also stated that, immediately after the CRL.R.P. NO.683/2013

accident, since they had witnessed the accident being

present in the spot, had shifted the injured to the hospital at

Banavara. Further, PW.1 being the nephew of the deceased,

has stated that, as per the Doctor's advise, the injured

Thimmappa was also shifted to the Government Hospital at

Hassan and from there, as per the medical advise, he was

being taken to NIMHANS in Bengaluru, in an ambulance.

However, on the way, near Channarayapatna, the injured

succumbed to the injuries, as such he was taken to

Government Hospital at Channarayapatna, where the Doctor

declared him as dead. The said narration of the details of

shifting the injured to different hospitals and he succumbing

to the injuries sustained in the accident since has not been

specifically denied in his cross-examination, the said evidence

and also the evidence of PW.7-Doctor and the Post Mortem

report at Ex.P5 clearly go to establish that the deceased

Thimmappa died due to the injuries sustained by him in the

road traffic accident.

CRL.R.P. NO.683/2013

15. Learned counsel for the petitioner in his argument

submitted that, he disputes the identity of the person, who is

alleged to have caused the accident. Learned counsel

submitted that there is no consistency in the evidence of

PW-1, PW-2 and PW-3 with respect to their presence in the

place of accident. Though PW-1 has stated that he was alone

near the spot of accident, but, PWs.2 and 3 have stated that

all the three of them were together, which creates a doubt in

the case of the prosecution.

16. A reading of the evidence of PWs.1 to 3 would go to

show that all the three of them have uniformly stated about

manner of the accident and also the identity of the accused.

Though PW-1 has stated that he was standing near the bus

stop in the village waiting for arrival of the bus, which was

near Kankerehalli gate, but, no where he has stated that

PWs.2 and 3 were not there in the said spot. He has

categorically stated that as was seen by them, it was the

accused alone who was riding the motorcycle at the time of CRL.R.P. NO.683/2013

accident and after committing the accident, he ran away from

the place.

Similarly, PW-2 also has stated that he was also near

the spot of the accident sitting on a wooden bench beneath a

baniyan tree which was in the bus stop of Kankerehalli

village. He too has stated that it was the accused only who

rode his motorcycle in a rash and negligent manner and ran

away from the place after causing the accident. He has given

some more details that after the accident, people gathered

there though caught hold of the accused and started beating

him, still, the accused could able to escape from them.

PW-3 also has stated that at the time of accident, he

was waiting in the bus stand in order to go to Banavara, as

such, he saw the occurrence of the accident. He too has

stated that it was due to the rash and negligent riding of the

motorcycle by the accused, the accident in question has

happened. He has also stated that accused ran away from

the place after the accident.

CRL.R.P. NO.683/2013

17. These witnesses have identified the accused as the

one who has caused the accident. More importantly, PW-11

Basavaraju, who undisputedly is the pillion rider of the

motorcycle has specifically stated that he was the pillion rider

on the motorcycle which was being ridden by the accused.

He has maintained the same stand that accused was riding

the motorcycle at the time of accident. However, he

contends that accident that took place was not at the fault of

the rider of the motorcycle, but, it was at the fault of the

deceased who was trying to cross the road. His statement

that he was the pillion rider and accused was riding the

motorcycle at the time of accident has not been denied in the

cross-examination.

In addition to the above, the Investigating Officer i.e.,

PW-12 in his evidence has also stated that on 8.1.2008, the

accused himself appeared before him in the police station and

confessed, as such, he arrested him and later enlarged him

on bail. The said evidence of PW-11 that the accused was

riding the motorcycle, wherein he was the pillion rider and CRL.R.P. NO.683/2013

the evidence of PW-12 that accused voluntarily surrendered

before him, further confirms and proves beyond doubt that it

was the accused and accused alone who was riding the

offending vehicle at the time of accident.

Therefore, the argument of learned counsel for the

petitioner that there is no certainty regarding who caused the

accident is not acceptable.

18. Learned counsel for the petitioner also canvassed

an argument that there is no consistency in the evidence of

prosecution witnesses regarding the manner in which the

accident had occurred. He also stated that there is

discrepancy regarding the width of the road. He contended

that the prosecution witnesses have varied in describing the

width of the road. A perusal of the evidence, more

particularly of PWs.1 to 3 would go to show that all the three

witnesses have spoken about the occurrence of the accident

on a tar road leading from Banavara to Javagal. PW-1 has

stated that the tar road was a width of 13 feet of having on

either side 3 feet width mud road. PW-2 has given the width CRL.R.P. NO.683/2013

of the tar road from 15' x 20'. PW-3 also has stated that the

width of the tar road was about 12' x 13'.

19. Thus, there is no greater discrepancy in the

description of the alleged width of the tar road on which the

accident is said to have taken place. A common man or a

passerby is not expected to give the measurement with

technical and engineering precession and accuracy.

Admittedly, their assessment about the width is not after its

measurement, but, what they could gauge through their

sight, as such, the same cannot be expected to be of an

engineering and mathematical accuracy. As already

observed, all these three witnesses have shown that the

width of the road was at least 13 feet. Therefore, the

argument of learned counsel that there is huge discrepancy in

the alleged width of the road is also not convincing.

20. Learned counsel for the petitioner also submitted

that PW-5 has stated that the alleged motorcycle was seized

in his presence by drawing a seizure panchanama as per CRL.R.P. NO.683/2013

Ex.P-3 which mahazar was shown to have been drawn on

3.1.2008, whereas, in the FIR submitted to the learned

Magistrate on 1.1.2008, the details of the vehicle is

mentioned as such, it is clear that the said vehicle must have

been in the police station at the time of registration of the

case. But, the said argument is not acceptable for the reason

that the complainant who is the eye witness to the accident

has given the registration number of the motorcycle, which

according to him, has caused the accident, in his complaint

itself. It is based on the said complaint, a mention about the

registration number of the vehicle in FIR is made. It is not

mandatory that before mentioning the alleged offending

vehicle's registration number in the FIR, the said vehicle

should necessarily be seized by the investigating agency.

Therefore, the argument of learned counsel for the petitioner

on the said point is also not acceptable.

21. Barring these, learned counsel for the petitioner has

not canvassed any other points to establish that interference

by this Court is warranted in the impugned judgments. On CRL.R.P. NO.683/2013

the other hand, the evidence of prosecution witnesses,

including the evidence of eye witnesses, panch witnesses, the

doctor who conducted autopsy on the body of the deceased,

the Motor Vehicle Inspector, who has examined the vehicle

and given his report as per Ex.P-6, would clearly go to

establish that a road traffic accident as alleged in the charge

sheet has occurred solely due to rash and negligent riding of

the motorcycle by the accused and that there was no

mechanical defect at the time of the accident. It is further

proved beyond reasonable doubt that in the said accident,

deceased Thimmappa sustained grievous injuries and

succumbed to it. It is after analysis of materials placed

before them in its proper perspective, both the trial Court, as

well the Sessions Judge's Court have uniformly held that the

prosecution has proved the alleged guilt against the accused.

As such, I do not find any perversity, illegality or irregularity

in the said finding warranting interference at the hands of this

Court convicting the accused for the alleged offences.

CRL.R.P. NO.683/2013

However, the sentence ordered for the proven guilt

when verified, it is found that for the offence under Section

279 IPC, the accused was sentenced to pay a fine of `1,000/-

and in default of payment of fine, to undergo simple

imprisonment for a period of fifteen days and for the offence

punishable under Section 304-A of IPC, the accused was

sentenced to undergo imprisonment for a period of one year

and to pay a fine of `1,000/- and in default of payment of

fine, to undergo simple imprisonment for a period of thirty

days and for the offences under Sections 184 and 187 of

M.V.Act, the accused was imposed with fine of `500/- and in

default of payment of fine, to undergo simple imprisonment

for a period of fifteen days.

22. It is the settled principle of sentencing policy that

the sentence ordered upon the guilty person for a proven

guilt must be proportionate to the gravity of the guilt proved.

It must be neither for the name sake nor exorbitant. In the

instant case, when the facts and circumstances of the case

and the nature of the proven guilt is considered, the sentence CRL.R.P. NO.683/2013

ordered for the offence punishable under Section 279 IPC and

Sections 184 and 187 of M.V.Act appears to be reasonable

and proportionate to the proven guilt, whereas, the sentence

of one year imprisonment ordered for the proven guilt

punishable under Section 304-A of IPC appears to be slightly

on the higher side in the circumstances of the case. As such,

it is only for modifying the said sentence of imprisonment

imposed on the accused for the proven guilt punishable under

Section 304-A of IPC, interference by this Court is

warranted.

23. Accordingly, I proceed to pass the following order:

ORDER

The Criminal Revision Petition is allowed in-part. The

sentence of imprisonment imposed upon the accused for the

offence punishable under Section 304-A of IPC is reduced and

confined to six months simple imprisonment. Rest of the

findings of the trial Court, which was further confirmed by the

Sessions Judge's Court, holding the accused guilty of the

offences punishable under Section 279 of IPC and Sections CRL.R.P. NO.683/2013

184 and 187 of M.V.Act, and also the sentence ordered,

except what is modified as above, stands confirmed.

Registry to transmit a copy of this order to both the trial

Court as also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

KGR*/bk