Bheemanagouda S/O Siddanagouda vs State Of Karnataka
2021 Latest Caselaw 510 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 8TH DAY OF JANUARY, 2021

                         BEFORE

         THE HON'BLE MR.JUSTICE K. NATARAJAN

       CRIMINAL REVISION PETITION NO.2338/2011

BETWEEN:

BHEEMANAGOUDA S/O.SIDDANAGOUDA,
AGE : 35 YEARS, OCC : DRIVER,
R/O. ARAKERI ONI, UNKAL,
TALUK : HUBLI, DIST : DHARWAD.
                                            ...PETITIONER
(BY SRI M.L.VANTI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY YELLAPUR POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
                                            ...RESPONDENT
(BY SRI. RAMESH B. CHIGARI, ADVOCATE)


     THIS CRIMINAL REVISION PETITION IS FILED U/S. 397(1)
R/W. SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 26.07.2011 PASSED BY FAST
TRACK COURT, SIRSI IN CRL.A.NO.20/2010 CONSEQUENTLY
SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
                                   2




SENTENCE DATED 16.01.2010 PASSED BY JUDICIAL MAGISTRATE
FIRST CLASS, YELLAPUR IN C.C.NO.59/2009 AND ACQUIT THE
PETITIONER OF ALL THE CHARGES, IN THE INTEREST OF JUSTICE
AND EQUITY..

     THIS PETITION COMING ON FOR HEARING THROUGH VIDEO
CONFERENCING HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
                         ORDER

This revision petition has been filed by the petitioner/accused

under Section 397(1) of Cr.P.C against the judgment of conviction

and order passed by the J.M.F.C., Yellapura (hereinafter referred to

as 'the trial Court', for short) in C.C.No.59/2009 dated 16.01.2010

and the same was upheld by the Fast Track Court, Sirsi (hereinafter

referred to as 'the first Appellate Court', for short), in Criminal

Appeal No.20/2010 dated 26.07.2011.

2. Heard the arguments from both sides and perused the

records. The rankings of the parties before the trial Court are

retained for the purpose of brevity.

3. The case of the prosecution is that, Yellapura police filed

charge sheet against the accused for the offences punishable under

Sections 279, 337 and 304A of IPC on the complaint filed by P.W.1-

Yallappa Kallappa Navalgunda, alleging that the complainant and

other were traveling on N.H.-63 in a Tata Sumo vehicle bearing

No.KA-25/A-2912 from Hubballi to Halaga, and the vehicle was

driven by the accused, near Kolikere village at 3-30 a.m. the

accused drove the vehicle in a rash and negligent manner so as to

endanger the human life and caused accident by the vehicle taken

by him in extreme right side of the road and toppled down the

vehicle, due to which, one Nijalingappa has sustained injuries and

died on the way to the hospital. P.Ws.1, 2 and another person

sustained injuries.

4. After filing of the charge sheet, the trial Court after taking

cognizance, accusation read over to the accused, he pleaded not

guilty and claimed to be tried. In order to prove the case,

prosecution in all examined 09 witnesses and got marked 14

documents and statement of the accused under Section 313 Cr.P.C.

was recorded and accused denied all the incriminating evidence

made against him, but not entered into the witness box to lead his

defence evidence. After hearing the arguments, the trial Court

found the accused guilty and convicted him for the offences

punishable under Sections 279, 337 and 304A of IPC and sentenced

him to pay `1,000/- for the offence punishable under Section 279 of

IPC, in default, he shall undergo simple imprisonment for 15 days.

Further, sentenced him to pay fine of `500/-, in default of payment

of fine he shall undergo simple imprisonment for 15 days for the

offence punishable under Section 337 of IPC and he has sentenced

to undergo simple imprisonment for one year for the offence

punishable under Section 304A of IPC and out of the fine amount of

`1,000/-, ordered to pay `500/- each to P.Ws.1 and 2 as

compensation provided under Section 357 of Cr.P.C.

5. Assailing the same, the accused filed appeal before the first

appellate Court in Criminal Appeal No.20/2010, which came to be

dismissed. Hence he is before this Court.

6. Learned counsel for the petitioner has contended that the

judgment of both the Courts will not sustainable under law as the

P.W.1 who sat by the side of the driver, he has turned hostile and

not stated about the rash and negligent driving. As per his

evidence, the vehicle was moving slowly. The P.Ws.1 and 2 who are

the injured witnesses, they were sitting on the back side seat and

P.Ws.3 and 5 were co-passengers, they also sitting behind backside

of the vehicle, they cannot see the road, how the accident was

occurred. All these four witnesses are interested witnesses. There is

no independent witness to prove the negligent driving of the

accused. Investigating Officer who filed the charge sheet was not

examined. The defence taken by the learned counsel is that the

deceased was died due to cardiac arrest, but not due to the

injuries. There is nothing mentioned in the Ex.P.7-Postmortem

examination report. Therefore, considering all these facts, the

prosecution failed to establish the case the negligent driving by the

accused. Hence, he prayed for allowing the petition and to acquit

the accused. Alternatively, the learned counsel also contended that

the accused is very poor man, he is ready to pay fine amount as he

has to take care of his family and by imposing fine amount he shall

be released from the charges. Hence, he prayed to allow the

petition.

7. Per contra, learned HCGP for the respondent-State

supported the judgments passed by both the Courts below and

contended that the accident is not in dispute, death of Nijalingappa

is also not in dispute. Evidence of the prosecution witnesses goes to

show that he has drove the vehicle on the extreme right side of the

road. He has not explained how the accident was occurred. Ex.P.3

sketch, clearly shows that, spot of accident is not a curve. Death of

the deceased-Nijalingappa was due to accident and injuries are not

disputed. P.W.9 who was conducted the entire investigation except

filing of the charge sheet, evidence of the injured witnesses cannot

be brushed aside as interested witnesses. Ex.P.6-M.V.report shows

that the accident was occurred not due to any mechanical defect.

Therefore, he prayed for dismissal of the revision petition.

8. Upon hearing the arguments from both side and on perusal

of the records, it shows that it is not in dispute that the

petitioner/accused was the driver of Tata Sumo vehicle bearing

registration No.KA-25/A-2912 and the P.Ws.1, 2, 4, 5 and the

deceased and another person were all passengers traveled from

Hubballi to Halaga, in order to go near Karwar for the purpose of

providing treatment to a person Smt.Mallawwa, at about 3.30 a.m.

on N.H.-63 near Kolikere, the vehicle was topple down by going into

to a ditch by the side of the road. It is also not in dispute that the

Nijalingappa the co-passenger who sustained injuries and he has

died while going to the hospital. P.Ws.1 and 2 who have sustained

simple injuries and taken the treatment in Hospital and the

evidence of P.W.8-Doctor clearly goes to show that they have

sustained simple injuries and he has treated them. The learned

counsel for the petitioner/accused not in impeached the evidence of

the Doctor regarding sustaining the injury due to the accident and

evidence of Doctor. Ex.P.7 clearly shows that the said Nijalingappa

died due to shock and hemorrhagic in the road traffic accident.

Though the learned counsel for the petitioner contended that said

Nijalingappa died due to cardiac arrest, but there is no suggestion

made to the P.W.8 in the cross-examination regarding cause of

death of Nijalingappa. Absolutely there is no whisper in the cross-

examination that the Nijalingappa was died due to cardiac arrest.

Per Contra, the document at Exs.P.8 and 7 Wound Certificates and

Post Mortem report, go to show that injuries sustained to the

Nijalingappa in the accident, due to which, he has died. The

prosecution once established from the evidence of P.Ws.1, 2, 3 and

5 that the accident was occurred by toppling the vehicle into ditch

by the side of the road and they are co-passengers traveled in the

same vehicle. There is nothing to disbelieve their evidence and they

cannot be the interested witnesses who traveled in the vehicle and

sustained injuries. The negligence as spoken by the P.Ws.1, 2, 3,

and 5, though the P.W.4 partly turned hostile, but the accident was

not disputed by the defence. The accident is not in dispute, driving

of the vehicle by accused is not in dispute, death is not in dispute

and injuries are not in dispute. The exclusive knowledge of the

accused to show how the accident was caused and how the vehicle

was fell into the ditch and toppled down. Absolutely there is no

explanation forthcoming in the cross-examination of any of the

witnesses and also in the statement of accused recorded under

Section 313 of Cr.P.C. how the accident was occurred. It is not the

case of accused that in order to avoid the opposite vehicle, he has

driven the vehicle by the side of the road, due to which, it was fell

down. The case of the accused is one of total denial, he has

answered to all the questions in the statement recorded under

Section 313 of Cr.P.C. are as false and he also not entered into

witness box to explain was precautionary measures, he has taken in

order to avoid the accident and toppling the vehicle and on the

other hand, the IMV report Ex.P.6 goes to show that the accident

was occurred not due to any mechanical defect. Merely, the

investigating Officer who just filed charge sheet has not examined,

itself is not a ground to show the case of the prosecution is fatal.

On the other hand, evidence of all the witnesses including two

panchas P.Ws.6 and 7, they have supported the prosecution case. I

do not find any error or illegality committed by both the Courts

below and in the concurrent findings of Courts below holding that

the prosecution successful in proving the rash and negligent,

accident, death and injuries caused to the P.Ws.1 to 4. Therefore,

the contention of the learned counsel for petitioner cannot be

accepted. However, the trial Court sentenced the accused to under

to simple imprisonment for one year and looking to the age and

family background of the petitioner/accused, the learned counsel

submitted that it is deemed fit to reduce the sentence from one

year to six months and it is not acceptable that he should be

released only imposing fine. Therefore, I pass the following :

ORDER

Petition is allowed in part. The Judgment of conviction and

order passed by the trial Court and confirmed by the first appellate

Court is hereby confirmed. However, the sentence for the offence

punishable under Section 304A of IPC is reduced to six months from

one year. The remaining sentence imposed under Sections 279 and

337 of IPC are hereby confirmed.

Send a copy of the order passed today along with the trial

Court records to the Courts below.

Sd/-

JUDGE

ckk