Gangadharaiah vs State Of Karnataka
2021 Latest Caselaw 1528 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.1005 OF 2011

BETWEEN:

Gangadharaiah,
S/o. Ningappa,
Age: now about 53 years,
Resident of Ballagere,
Hebbur Hobli,
Tumkur Taluk.
                                                   ..Petitioner
(By Sri. R. Kothwal, Advocate)

AND:

State of Karnataka
by Kyathasandra Police,
Tumkur.
                                                  .. Respondent

(By Sri. Thejesh P., High Court Govt. Pleader)

                                   ****
      This Criminal Revision Petition is filed under Section 397 of
Cr.P.C. praying to call for the records and to set aside        the
judgment dated 23-04-2011 in C.C.No.1583/2008 passed by the
Principal Civil Judge and JMFC, Tumkur, and set aside the judgment
dated 20-08-2011 in Crl.A.No.45/2011, passed by the Second Fast
Track Court at Tumkur, etc.
                                              Crl.R.P.No.1005/2011
                                 2


      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
01-02-2021, coming on for pronouncement of orders this day, the
Court made the following:

                             ORDER

The present petitioner was originally convicted by the Court of

the Principal Civil Judge and Judicial Magistrate First Class, Tumkur

(hereinafter for brevity referred to as the "Trial Court") in

C.C.No.1583/2008 for the offences punishable under Sections 279,

337, 304-A of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as the "IPC") by its judgment dated 23-04-2011 and

was sentenced accordingly.

Challenging the same, the accused preferred an appeal in

Criminal Appeal No.45/2011 in the Court of the Second Fast Track

Court at Tumkur (hereinafter for brevity referred to as the

"Sessions Judge's Court), which also by its judgment dated

20-08-2011, with some modification in the order of sentence in a

manner, confirmed the conviction of the accused for the offences

punishable under Sections 279, 337, 304-A of the IPC. Aggrieved

by the same, the accused has Preferred this revision petition.

Crl.R.P.No.1005/2011

2. The summary of the case of the prosecution is that,

PW-1 the first informant along with another boy, who had gone to

Davanagere with the load of sinks and after unloading the goods

and loading the rejected Granites in the Canter-Eicher bearing

registration No.KA-06/6943, were on their return journey on

21-05-2008. One Sri. Basavaraju C.M., the deceased was the

driver of the said Canter-Eicher vehicle. At about 9:00 p.m. on the

said day, when the Canter-Eicher vehicle was taking a 'U' turn after

getting the fuel filled on National Highway - NH-14, a private Bus by

name 'Chethana' bearing registration No.KA-20/7196 coming from

Bengaluru side, came in a rash and negligent manner and collided

with the Canter-Eicher vehicle from its rear side. On account of

the said road traffic accident, the said Canter-Eicher vehicle was

pushed forward and collided with an underpass barricade wall. On

account of the same, Sri. Basavaraju C.M., the driver of the Canter-

Eicher vehicle sustained injuries on the vital parts of his body and

later succumbed to the same. The informant also sustained simple

injuries. The injured were initially shifted to the Government

Hospital at Tumakuru and the deceased Basavaraju C.M.

Crl.R.P.No.1005/2011

succumbed to the injuries. Some of the passengers in the private

Bus were also injured. Thus, a charge sheet for the offences

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

came to be filed against the accused.

3. Since the accused pleaded not guilty, the prosecution in

order to prove the alleged guilt against the accused, examined in

all six witnesses from PW-1 to PW-6 and got marked documents

from Exs.P-1 to P-7(a). On behalf of the accused, neither any

evidence was led nor any documents were marked.

4. After hearing both side, the Trial Court by its impugned

judgment convicted the accused for the offences punishable under

Sections 279, 337, 304-A of IPC and sentenced him accordingly.

As observed above, the accused though challenged the said

conviction passed by the Trial Court against him, still could not get

any favourable order from the learned Session's Judge's Court in

Criminal Appeal No.45/2011.

5. The respondent herein - State is being represented by the

learned High Court Government Pleader.

Crl.R.P.No.1005/2011

6. The Trial Court and the Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Heard the arguments from both side. Perused the materials

placed before this Court including the Trial Court and Sessions

Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial Court.

9. After hearing the learned counsels for the parties, the only

point that arise for my consideration in this revision petition is:

Whether the findings recorded by the Trial Court as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court ?

10. Learned counsel for the accused/petitioner in his

arguments submitted that, there is no material placed before the

Trial Court to prove the alleged guilt against the accused.

However, the Trial Court and the learned Sessions Judge's Court Crl.R.P.No.1005/2011

without appreciating the materials placed before them in their

proper perspective have committed an error in convicting the

accused for the alleged offences. He further submits that there are

variations in the prosecution case as pleaded and proved. The

complainant (PW-1) says the private Bus dashed the Canter vehicle

from behind, whereas, the evidence of PW-1 would go to show that

the private Bus is said to have dashed to the Canter vehicle on the

driver side door portion (front). Further, PW-1 in his cross-

examination says that at about 7:30 p.m., food was taken,

whereas, the post-mortem report does not show the presence of

un-digested food. He also says that PW-1 has stated that, the

statement was given to the Police in the Hospital, whereas PW-6, as

Investigating Officer says that, the statement was recorded in the

Hospital at 7:30 p.m. on the next day of the accident.

The learned counsel for the petitioner further submitted that

since admittedly, PW-1 was sitting on the back side of the Canter

Eicher vehicle, which was covered with tarpaulin, he could not have

seen either the private Bus or the driver of the said Bus, as such,

his evidence does not inspire confidence to believe. He also submits Crl.R.P.No.1005/2011

that, admittedly PW-2 was sitting on the back side of the driver of

the private Bus, as such, he also could not have seen and identified

the driver of the Canter vehicle. With this, he submits that the Trial

Court failed to appreciate these aspects which led it to pass an

order of conviction against the accused.

11. Learned High Court Government Pleader for the

respondent - State in his arguments submitted that, the accident in

question is not disputed. So also the alleged involvement of the

private Bus. That being the case, when there is nothing to show

that the accused was not driving the Bus at the time of accident,

the question of false implication of the accused in the accident does

not arise. He also submits that the evidence of PW-1 and PW-2,

who are the eye witnesses corroborates the case of the prosecution

and proves the alleged guilt against the accused.

12. At the outset, it has to be noticed that nowhere the

petitioner/accused has denied that in the alleged accident, the

vehicles involved were one Private passenger carrying Bus bearing

registration No.KA-20/7196 and one Canter-Eicher motor vehicle Crl.R.P.No.1005/2011

bearing registration No.KA-06/6943. It is also not in dispute that in

the said road traffic accident, the driver of the said Canter-Eicher

vehicle by name Sri. Basavaraju C.M. is said to have sustained

multiple injuries and succumbed to it. It is in this background of

the undisputed facts, the case of the prosecution is required to be

seen.

13. Among the six witnesses examined by the prosecution,

PW-1 and PW-2 are projected by it as eye witnesses. PW-1 -

Satisha, in his evidence has stated that, at the time of accident, he

was the helper in the Canter vehicle and deceased Basavaraju was

the driver of the said vehicle. He has stated that a private Bus

coming from Bengaluru direction dashed on the right side front

portion of the Canter vehicle causing the road traffic accident, in

which he sustained injuries to his legs and head and the driver of

the Canter vehicle died due to the injuries sustained in the said

accident. Thereafter, they were shifted to one Sridevi Nursing Home

and from there to Government Hospital at Tumakuru. The witness

has given the registration number of the said private Bus said to

have caused the accident. The witness has further stated that the Crl.R.P.No.1005/2011

accident happened solely due to the rash and negligent driving of

the private Bus by its driver.

The witness was subjected to a detailed cross-examination,

wherein, more details were elicited from him regarding the manner

of occurrence of the accident and the place of accident. It was also

attempted to elicit from him that at the time of the accident, he was

sitting on the backside of the Canter vehicle along with one more

boy aged about 18 years. The witness also stated, after the

accident, the driver of the Canter vehicle had fallen on the road and

two boys who came to the spot of the accident got him (the

witness) down from the vehicle. He stated that, since he raised hue

and cry, nearly about nine persons gathered in the spot and

immediately a specific suggestion was made to this witness that

since he was sitting on the back side of the Canter vehicle, he could

not see the private Bus and identify its driver, which suggestion

was not admitted as true by this witness. The witness also stated

that Canter vehicle had a tarpaulin on its back side.

14. It is based upon the said statement of PW-1 made in his

cross-examination that, the Canter vehicle had tarpaulin on its back Crl.R.P.No.1005/2011

side, the learned counsel for the petitioner vehemently contended

that, when PW-1 is said to have been sitting in the back side of the

Canter vehicle, which was covered with tarpaulin, it is highly

improbable and impossible for such a person to witness the

accident. As such, his statement that he had seen the accident

including the vehicle involved and the accused as the driver of the

private Bus is highly unbelievable.

The said argument of the learned counsel for the petitioner is

not convincing and acceptable for the reason that, though PW-1 in

his evidence has stated that he was sitting on the back side of the

Canter vehicle, but nowhere he has stated that it was on the hind

portion of the said vehicle, which is the goods carriage unit. It is

for the reason that, in the same evidence, PW-1 has stated that on

the front side, the cleaner of the vehicle was there, as such, he was

sitting on the back. It clearly go to show that the said front and

back portion is in the driver's cabin of the Canter vehicle. It is so

because in a Canter vehicle, there would be no provision for

carrying any passengers in the back portion of the vehicle which is Crl.R.P.No.1005/2011

a goods carriage unit. As such, there is all the possibility for PW-1

to see the accident.

15. No doubt, PW-1 has stated in his cross-examination that

on the back of the Canter vehicle, there was tarpaulin, it does not

mean that all the four sides of the back portion of the vehicle was

closed with tarpaulin cover. No statement was elicited from the

witness to the extent that tarpaulin had covered the back portion of

the vehicle and that covering was also in such a way that all the

four sides were completely closed so that if a person sitting there

could not able to see outside. As such, in the absence of complete

and necessary details in that regard, merely because PW-1 is said

to have stated that on the backside of the Canter vehicle, there was

tarpaulin, by that itself, it cannot be inferred or concluded that it

was closed in all its four directions completely, disabling a person to

see outside.

16. PW2 - Tawamani claims himself to be an injured person

in the accident. He has stated that at the time of road traffic

accident, he was travelling in the private Bus from Dabaspete to Crl.R.P.No.1005/2011

Tumakuru and that the driver of the private Bus was driving the

private Bus with high speed. The witness has also stated that in the

said road traffic accident, he sustained a hurt on his shoulder. After

giving the registration number of the private Bus, he has also

identified the accused in the Court. Like PW-1, he also stated that

the accused was the driver of the said Bus and the accident has

happened at the fault of the said driver who was driving the Bus

with over speed. The Wound Certificate at Ex.P-5 and the evidence

of PW-5 Doctor further corroborates the evidence of PW-2 that, he

was an injured in the side road traffic accident and had sustained

three simple injuries in the accident. Therefore, the evidence of

PW-2 further corroborates the case of the prosecution that, the

accident in question has occurred due to the fault of the driver of

the private Bus and that the accused was driving the private Bus at

the time of accident.

17. PW-3 - Smt. Nethravati is the hearsay witness and has

stated that the deceased in the accident was her husband and the

accident has occurred at the fault of the driver of the private Bus.

Crl.R.P.No.1005/2011

18. PW-4 - Balakrishna has spoken about drawing of scene of

offence Panchanama as per Ex.P-4. However, he has stated that he

has put his signature to the said panchanama in the Police Station.

Thus, his evidence though does not inspire any confidence to

believe, but the evidence of PW-1, PW-2 and PW-6 since mentions

about the place of accident which has not been disputed, the place

of accident stands proved.

19. PW-5 - Doctor has spoken about he treating PW-2 and

issuing the Wound Certificate as per Ex.P-5.

20. PW-6 - Police Sub-Inspector has spoken about he

receiving the complainant's statement, preparing an FIR and

submitting the same to the Court.

21. The inquest mahazar at Ex.P2, post-mortem report at

Ex.P3 and Wound Certificates at Exs.P-5 and P-6 have since been

marked with consent and the inquest panchanama shows that the

panchas have opined that the deceased Basavaraju C.M. died due

to the injuries sustained by him in the road traffic accident and the

post-mortem report opines that, the cause of death of deceased Crl.R.P.No.1005/2011

was due to shock and haemorrhage as a result of head injuries. It

also identifies among various other injuries the fracture of left

middle cranial fosse with blood clots, fracture of left posterior

cranial fosse and also linear fracture of left parieto occipital region

with blood clots. Thus is established that the death of

Basavaraju C.M. was due to the injuries sustained by him in the

said road traffic accident.

22. Learned counsel for the petitioner also argued that the

complainant (PW-1) has stated that the private Bus dashed to the

Canter from behind, whereas, in his evidence as PW-1, he has

stated that the private Bus dashed on the driver side door of the

Canter vehicle. Thus, there is variation.

23. Primarily, it has to be noticed that in the cross-

examination of PW-1, such a variation or alleged contradiction was

not confronted with the witness. Further, even according to the

complainant/PW-1, the private Bus dashed from the rear, it does

not particularly mean on the exact back of the Canter vehicle but

the Bus coming from the backside dashing to the Canter vehicle Crl.R.P.No.1005/2011

was on the driver side door which admittedly is not the front portion

facing the road. A complete reading of the complaint as well as the

evidence of PW-1 gives the picture of the accident and gives no

scope to call the alleged discrepancy as a variation in the case of

the prosecution.

24. Learned counsel for the petitioner also submitted that,

when PW-1 in his cross-examination has stated that, at 7:30 p.m.

food was taken but post-mortem report at Ex.P-3 does not mention

about the un-digested for semi-digested food in the stomach of the

deceased. The said argument of the learned counsel is not

acceptable for the reason that, nowhere PW-1 has stated that, even

the driver of the Canter vehicle had dinner at 7:30 p.m. or that

when the deceased is said to have died at 9:35 p.m. in the

Hospital, the food taken about two hours back still is expected to

remain in his stomach itself rather than flowing down into the other

organs like the intestine.

25. Lastly, learned counsel for the petitioner also canvassed

an argument that, PW-1 has stated that the Police recorded his Crl.R.P.No.1005/2011

statement in the Hospital on the same night. Whereas PW-6 has

stated that the statement of the complainant was recorded on the

next day morning at about 8 O'clock, as such, the prosecution case

is unbelievable.

26. No doubt, PW-6 the Police Sub-Inspector of the

respondent Police Station has stated that he recorded the

statement of the injured PW-1 at 8 O'clock on the morning of the

next day of the accident. However, the said discrepancy being a

minor discrepancy would not take away the case of the prosecution

in proving the guilt of the accused. Thus, the prosecution

evidence has not only proved that the accident in question has

occurred at the rash and negligent driving of the present accused

who was driving the private Bus at the time of accident, but it has

also proved that in the said accident, PW-2 and some more

persons including one Sri. Ameer, Son of Mohammed Gous, shown

as an injured in the Wound Certificate at Ex.P-6, have sustained

injuries. It is also established that the deceased Basavaraju C.M.,

who was the driver of the Canter-Eicher vehicle also sustained

multiple injuries in the accident and succumbed to the same.

Crl.R.P.No.1005/2011

27. Accordingly, both the Trial Court and the learned

Sessions Judge's Court have rightly convicted the accused for the

alleged guilt. After taking into the stock of the circumstances of the

case and the mitigating factors, if any, the Trial Court has ordered

the sentence against the accused which is proportionate to the

gravity of the proven guilt. As such, I do not find any illegality or

perversity or irregularity, in the impugned judgment warranting

any interference at the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as

devoid of merits.

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

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

respective records forthwith.

Sd/-

JUDGE BMV*