Laxman S/O. Parasappa Itagi vs The State Of Karnataka
2021 Latest Caselaw 3045 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 29TH DAY OF JULY, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL. R.P.NO.2193/2012

BETWEEN:

LAXMAN S/O PARASAPPA ITAGI,
AGE: 39 YEARS, OCC: DRIVER,
R/O GAJENDRAGADA, TQ. & DIST: GADAG
AT PRESENT NARAGUNDA DEPOT.
                                              ...PETITIONER
(BY SRI.S.S.BETURMATH, ADV. FOR
    SRI.K.L.PATIL, ADV.)

AND:

THE STATE OF KARNATAKA,
THROUGH ANNIGERI POLICE STATION,
REP.BY SPP DHARWAD.
                                            ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISOIN PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 15.03.2012 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD IN
CRL.A.NO.147/2008 AND CONSEQUENTLY SET ASIDE THE
JUDGMETN OF CONVICTION PASSED BY THE CIVIL JUDGE
(JR.DN.) AND JMFC COURT, NAVALGUND IN C.C.NO.65/2004
DATED 01.08.2008 AND ACQUIT THE ACCUSED/REVISION
PETITONER FROM THE CHARGES LEVELED AGAINST HIM.

     THIS CRIMINARL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
                               2




                           ORDER

The revision petitioner has filed this revision petition

under Sections 397 and 401 of the Cr.P.C. for setting aside

the judgment of conviction dated 15.03.2012 passed by

the Principal District and Sessions Judge, Dharwad in

Crl.A.No.147/2008 and consequently setting aside the

judgment of conviction passed by the Civil Judge (Jr.Dn.)

and JMFC, Navalgund in C.C.No.65/2004 dated 01.08.2004

by convicting the accused for the offences punishable

under Sections 279, 337 and 338 of IPC.

2. For the sake of convenience, the parties herein

are referred with the original rankings occupied them

before the trial court.

3. The factual matrix leading to the case are that,

the revision petitioner was driver of a KSRTC bus bearing

Reg.No.KA-26/F-270. That on 22.02.2004 at about 11.30

a.m., he drove his bus from Annigeri towards Gadag in a

rash and negligent manner endangering human life and

public safety and dashed to an ongoing motorcycle bearing

Reg.No.KA-25/2882 from back side resulting in grievous

injuries to the complainant and simple injuries to the

pillion rider C.W.4. On the basis of the complaint,

Investigating Officer undertook the investigation and

submitted the charge sheet under Sections 279, 337 and

338 of IPC. After submission of the charge sheet, the

learned Magistrate has taken cognizance and issued

process against the accused/revision petitioner and he has

appeared before the learned Magistrate. Then the plea

under Sections 279, 337 and 338 of IPC was recorded, and

the accused pleaded not guilty and claimed to be tried.

Then the trial was held and the prosecution has examined

in all 8 witnesses as P.Ws.1 to 8 and got marked Exs.P1 to

P6 to prove the guilt of the accused. After conclusion of the

evidence of the prosecution, the statement of the

accused/revision petitioner was also recorded under

Section 313 of Cr.P.C. to enable him to explain the

incriminating materials appearing against him in the case

of the prosecution. The case of the accused was total

denial. However, he did not choose to lead any defence

evidence.

4. After having heard the arguments and

perusing the records, the learned Magistrate by judgment

dated 01.08.2008 convicted the accused for the offence

punishable under Sections 279, 337 and 338 of IPC and

imposed fine of Rs.1,000/- and Rs.500/- for the offence

punishable under Sections 279 and 337 of IPC with default

clause. He has also imposed sentence of simple

imprisonment of 30 days with fine of Rs.1,000/- with

default sentence for the offence punishable under Section

338 of IPC.

5. The said judgment of conviction and order of

sentence came to be challenged by the revision petitioner

in Crl.A.No.147/2008 before the Principal District and

Sessions Judge, Dharwad. The learned Sessions Judge by

judgment dated 15.03.2012 dismissed the appeal

confirming the judgment of conviction and order of

sentence passed by the learned Magistrate. These

judgments and orders passed by the courts below are

being challenged in this revision petition.

6. Heard the arguments advanced by the learned

counsel for the revision petitioner and the learned High

Court Government Pleader for the respondent-State.

Perused the records.

7. Learned counsel for the revision petitioner

would submit that the revision petitioner is a driver of a

KSRTC bus and the evidence does not disclose that the

accident in question was occurred because of the

actionable negligence on the part of the revision petitioner.

He would also invited the attention of the court to the

evidence of P.W.3 who is a conductor and contended that

the accident was occurred because of the actionable

negligence on the part of the rider of the motorcycle. He

would also submit that in case the court comes to a

conclusion that the accident has occurred because of the

actionable negligence on the part of the revision petitioner,

then the sentence of imprisonment of 30 days for the

offence punishable under Section 338 of IPC may be set

aside by restricting it only to fine. Hence, he sought for

allowing the revision petition by setting aside the

impugned judgments of the courts below by acquitting

him.

8. Per contra, learned HCGP has seriously

objected the revision petition contending that injured were

examined as P.Ws.1 and 2 and other eye-witnesses have

also supported the case of the prosecution including the

inmate of the bus. He would further submit that there is

material evidence as against the present revision petitioner

and the learned Magistrate has imposed a reasonable fine

and the judgments of both the courts below do not suffer

from any infirmity or illegality so as to call for interference

by this revisional court. Hence, he would seek for rejection

of the revision petition.

9. Having heard the arguments and perusing the

records, the following point would arise for my

consideration:

"Whether the courts below have erred in convicting the revision petitioner for the offence punishable under Sections 279, 337 and 338 of IPC and the judgments passed by the courts below call for any interference by this revisional court?"

10. It is an undisputed fact that the petitioner is a

driver of KSRTC bus bearing Reg.No.KA-26/F-270. It is

also not in serious dispute that the said bus was involved

in the accident on 22.02.2004. The prosecution has

examined in all 8 witnesses and P.W.1 is the complainant

injured who is the rider of the motorcycle while P.W.2 is

the pillion rider and both of them have supported the case

of the prosecution. P.W.3 is the conductor who has resiled

from the statement given before the investigating agency.

P.Ws.4 and 5 are the pancha witnesses and they have

turned hostile. P.W.6 is a passenger travelling in the

KSRTC bus and an eye-witness. He has also supported the

case of the prosecution. P.Ws.7 and 8 are the Investigating

Officers. Ex.P1 is the complaint and Ex.P3 is the spot

mahazar while Ex.P4 is the FIR, Ex.P5 is the IMV report

and Ex.P6 is the wound certificate of the complainant.

11. The evidence of the prosecution witnesses

disclose that the accident has occurred on Annigeri-Gadag

road. At the accident spot, the road is running from

Annegeri towards Gadag i.e., from West-East. It is also

evident from Ex.P3 spot panchanama that, at the accident

spot, the width of the road is 22 feet and further it is a

National Highway. The accident has occurred at a distance

of 3 feet from Northern edge and 19 feet from Southern

edge. The allegation of the prosecution as well as evidence

of the witnesses does establish that the rider of the

motorcycle was proceeding from Annigeri towards Gadag

and he was moving on the left side, i.e., on the Northern

edge. The bus was also moving from West-East, i.e., from

Annigeri towards Gadag. Though the driver of the bus had

sufficient space on his left side, i.e., south side, he would

have negotiated ongoing motorcycle by overtaking the

vehicle, but instead of negotiating the motorcycle, he

straightway knocked the motorcycle from back side

resulting in the accident. In the instant case, the doctrine

of res ipsa loquitor is directly applicable, as the things itself

speak rash and negligent act.

12. Apart from P.Ws.1 and 2 who are injured eye-

witnesses, P.W.6 who is inmate of the bus has also

supported the case of the prosecution. Though panch

witnesses have turned hostile, it does not have any

relevancy, as the accident is admitted. Further, from Ex.P5

IMV report, it is evident that front mudguard of the bus

was damaged.

13. The learned counsel for the revision petitioner

invited attention of the court towards the evidence of

P.W.3 who is the conductor of the bus who has turned

hostile. But admittedly, he is co-worker with the revision

petitioner and as such, it is quite natural that he has not

supported the case of the prosecution. However, during

the cross-examination, a specific defence was set up by

the defence counsel that at the time of the accident, the

rider of the motorcycle was talking on a mobile and in the

said process he suddenly came by the side of the road,

which has resulted in the accident. But this fact is within

the knowledge of the revision petitioner and the

suggestions made to P.Ws.1, 2 and 6 in this regard have

been denied by the witnesses. Section 106 of the Indian

Evidence Act casts burden on the person to prove the fact

within his knowledge. It is revision petitioner/accused who

is best person in the given circumstances to explain under

what circumstances the accident has occurred, but he did

not made any efforts in this regard. On the contrary, 313

statement recorded by the court below discloses that he

has simply denied the incriminating material appearing in

the case of the prosecution, but did not put forward any

defence and he has not even bothered to give any

explanation regarding alleged accident. Under such

circumstances, it is crystal clear that the accident in

question is because of actionable negligence on the part of

the driver of the bus, i.e., revision petitioner. Further,

there is no dispute of the fact that P.W.1 complainant has

lost his four teeth in the said accident and P.W.2 has

suffered simple injuries. As such, the ingredients of Section

337 and 338 are also attracted.

14. In fact, the learned Magistrate was liberal in

imposing sentence and he has imposed only sentence of

fine for the offence punishable under Sections 279 and 337

of IPC and imposed only 30 days simple imprisonment with

fine for the offence punishable under Section 338 of IPC,

though he has got discretion to impose imprisonment up to

2 years. However, the State has not challenged this order

of sentence. Hence, it is evident that the learned

Magistrate was liberal also in imposing the sentence.

15. Learned counsel for the revision petitioner

argued that the revision petitioner is a driver in KSRTC bus

and considering this aspect the sentence of imprisonment

of 30 days may be set aside by restricting it to only a fine.

But no acceptable reasons are forthcoming to reduce the

sentence that too in a revision. This aspect is already

canvassed before the Sessions Judge in the appeal and the

Sessions Judge in paragraph 12 of his judgment has

considered this aspect in detail and rejected the said

contention. Under these circumstances, question of

interference with the said judgment regarding sentence

that too in a revision does not arise. The judgments of the

courts below do not suffer from any infirmity or illegality so

as to call for any interference by this revisional court.

Under these circumstances, looking to the facts and

circumstances of the case in hand, I answer point under

consideration in the negative and proceed to pass the

following:

ORDER

The revision petition is dismissed by confirming the

judgment of conviction dated 15.03.2012 passed by the

Principal District and Sessions Judge, Dharwad in

Crl.A.No.147/2008 confirming the judgment of conviction

passed by the Civil Judge (Jr.Dn.) and JMFC, Navalgund in

C.C.No.65/2004 dated 01.08.2004 for the offences

punishable under Sections 279, 337 and 338 of IPC.

Send the TCR with certified copy of this order to the

concerned trial court to secure the accused/revision

petitioner for serving the sentence.

Sd/-

JUDGE

MBS/-