H Anjineya S/O Eranna vs The State Of Karnataka
2021 Latest Caselaw 3079 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 31ST DAY OF JULY, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                   CRL.R.P.NO.2181/2012

BETWEEN:

H.ANJINEYA S/O ERANNA
AGED ABOUT 25 YEARS, HINDU, OCC: DRIVER,
R/O MALLAPURA VILLAGE,
TQ.SANDUR, DIST: BELLARY.
                                              ...PETITIONER
(BY SRI.S.S.BETURMATH, ADV.)

AND:

THE STATE OF KARNATAKA,
BY C.P.I. SANDUR CIRCLE,
GADIGANUR POLICE STATION,
REP.BY SPP.
                                            ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISIION PETITION IS FILED UNDER
SECTION 397(1) R/W SECTION 401 OF CR.P.C. SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.06.2012 BY
THE LEARNED FAST TRACK COURT-III, HOSPET IN CRIMINAL
APPEAL NO.26/2012 ON HIS FILE CONFIRMING THE JUDGMENT
AND ORDER PASSED BY THE LEARNED ADDL. SENIOR CIVIL
JUDGE & JMC, HOSPET DATED 24.01.2012 IN C.C.NO.44/2010
CONVICTING THE PETITONER UNDER SECTION 279, 338, 304-A
OF IPC AND SECTION 187 OF M.V.ACT.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 27.07.2021 COMING
ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:
                                     2




                                  ORDER

The revision petitioner has filed this revision petition

for setting aside the judgment and order dated 25.06.2012

passed by the Fast Track Court-III, Hospet in

Crl.A.No.26/2012 confirming the judgment of conviction

and order of sentence passed by the Additional Senior Civil

Judge & JMFC, Hospet dated 24.01.2012 in

C.C.No.44/2010 whereby the accused/revision petitioner

was convicted for the offence punishable under Sections

279, 338, 304-A of IPC and Section 187 of M.V.Act.

2. For the sake of convenience, the parties herein

are referred with the original rankings occupied by them

before the trial court in order to avoid confusion.

3. The brief aspects leading to the case are as

under:

That the accused was the driver of a tipper lorry

bearing Reg.No.KA-35/A-2423 and on 13.08.2009 at about

12.30 p.m., on NH-63 public road, between Byluvaddigeri

and Dharmasagara village, he drove his vehicle in a rash

and negligent manner endangering human life and dashed

against the motorcycle bearing Reg.No.KA-01/TR-4880

coming from opposite direction. Due to the said impact,

the rider Amaresh died because of the injuries, while the

complainant pillion rider sustained grievous injuries. It is

also alleged that having caused the accident, the accused

failed to attend the injured and reporting the matter to the

nearest police station and fled away from the spot. In this

regard, the pillion rider/complainant has lodged a

complaint and the same was registered in crime

No.95/2009 of Gadiganur police station and after

investigation, the Investigating Officer has submitted the

charge sheet against the accused for the offences

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

Section 187 of M.V.Act.

4. The learned Magistrate after submission of the

charge sheet has taken cognizance of the alleged offences

and issued summons to the accused. Accused has

appeared and was enlarged on bail. The plea was recorded

and accused pleaded not guilty. The prosecution has

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

Exs.P1 to P7 to prove the guilt of the accused. Thereafter,

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

was recorded to explain the incriminating evidence

appearing against him in the case of the prosecution. The

case of the accused is of total denial. However, in his

statement under Section 313 of Cr.P.C. he submitted his

written say stating that while he was proceeding towards

Bellary from Hospet on National Highway, a vehicle was

found parked on the left side of the road and hence, after

placing signal he was overtaking the said vehicle and at

that time, the rider of the motorcycle drove it in a rash and

negligent manner and dashed to the rear wheel of the lorry

resulting in the accident.

5. After hearing the arguments, the learned

Magistrate has convicted the accused/revision petitioner

and sentenced him to undergo simple imprisonment for six

months and pay a fine of Rs.2,000/- for the offence

punishable under Section 304-A of IPC. Similarly, he was

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

under Section 279 of IPC and Rs.1,000/- for the offence

punishable under Section 338 of IPC and Rs.400/- for the

offence punishable under Section 187 of M.V.Act with a

default clause on failure to pay the fine amount. This

judgment of conviction and order of sentence came to be

challenged before the Fast Track Court-III at Hospet in

Crl.A.No.26/2012 and the learned Sessions Judge by his

order dated 25.06.2012 dismissed the appeal by

confirming the judgment of conviction and order of

sentence passed by the trial court. Being aggrieved by the

said orders, this revision petition is filed by the accused.

6. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned High Court

Government Pleader for the respondent-State. Perused the

records.

7. Learned counsel for the revision petitioner

would submit that both the courts below have not properly

appreciated the oral and documentary evidence placed on

record. He would further submit that the evidence of the

complainant discloses that there is lot of contradictions and

he has improved his version, but the courts below have

ignored this aspect. He would submit that the evidence of

the cleaner has not been properly appreciated by the trial

court and P.W.3 has specifically deposed regarding rash

and negligent riding on the part of the rider of the

motorcycle, but that was not taken into consideration. He

would further submit that the evidence lead by the

prosecution does not establish the rash and negligent act

on the part of the revision petitioner and he is not

responsible for the accident. He would further submit that

he has been implicated only on the ground that there is a

death of the rider of the motorcycle. Hence, he would seek

interference by this court by setting aside the judgment

and orders passed by both the courts below.

8. Per contra, learned HCGP has seriously

opposed the revision petition contending that both the

courts below have appreciated the oral as well

documentary evidence minutely. He further argued that

both the courts below have considered the defence raised

by the revision petitioner/accused and also arrived at a

just decision by imposing reasonable sentence. Hence, he

would submit that the judgment of conviction and order of

sentence does not call for any interference by this court as

they do not suffer from any infirmities. Hence, he would

seek for rejection of the revision petition.

9. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"Whether the revision petitioner proves that courts below have erred in convicting the revision petitioner for the offence punishable under Sections 279, 338, 304-A of IPC and Section 187 of M.V.Act and the said judgments

and orders call for any interference by this court?"

10. It is to be noted here that the accused/revision

petitioner has been prosecuted for the offence punishable

under Sections 279, 338, 304-A of IPC and Section 187 of

M.V.Act. This is a revisional court and the power under

revision are very limited and revisional powers are

required to be exercised sparingly, unless it is shown that

there is injustice caused apparently on the face of the

records.

11. In the present case, the occurrence of the

accident between the tipper lorry driven by the

accused/revision petitioner and the deceased on

13.08.2009 is not in dispute. Further, the death of the

rider of the motorcycle is also an admitted fact. It is also

an admitted fact that revision petitioner was driving the

offending vehicle during the relevant period of accident.

The pillion rider has lodged a complaint and set law in

motion. He has deposed that the accused has caused the

accident and accident is because of the actionable

negligence on the part of the driver of the tipper lorry.

However, his evidence discloses that he has improved his

version regarding accused driving the vehicle by holding a

mobile in his right hand, which is not referred in the

complaint. But, the evidence regarding other aspects

establish that the accident did took place.

12. Ex.P2(d) sketch of scene of occurrence of the

accident spot discloses that the road is running from East-

West direction. Admittedly, the lorry was moving from

West-East, i.e., from Hospet to Bellary. Admittedly,

motorcycle was moving from East-West. The revision

petitioner/accused was required to drive his vehicle on the

left side of the road, i.e., towards northern side. But the

accident has occurred on the southern side at a distance of

4 feet from edge of road. At the accident spot, width of the

road is 20 feet and it is a National Highway. Hence, there

is sufficient place for the revision petitioner to drive his

vehicle on the left side of the road, but he moved on the

right side towards southern side.

13. Further, it is evident that there was a small

curve at the accident spot and he was negotiating the

curve. It is important to note here that, when the revision

petitioner was negotiating the curve, he was required to

take precaution and observe the oncoming vehicles. A

defence was set up that since a lorry was parked at the left

side of the road, by giving indicator he tried to overtake

the parked lorry, the rider of the motorcycle came in a

rash and negligent manner. Since it was a curve, if at all

the lorry was parked there, it was his duty to stop and

then proceed by giving way to the vehicles coming from

opposite direction. But he has not done so in the instant

case.

14. It was argued that the evidence of P.W.3 was

ignored. P.W.3 is the cleaner of the lorry and quite

naturally he has turned hostile and claimed that on the left

side of the road, a lorry was parked due to breakdown and

while overtaking the lorry, the rider of the motorcycle

came from opposite direction and dashed. The explanation

filed along with 313 statement discloses that the accused

did not refer to any lorry but he simply asserts one vehicle

was parked without disclosing details of that vehicle. Very

interestingly, at the time of drawing of mahazar, no such

vehicle was found at the spot by the Investigating Officer.

Apart from that, on perusal of the IMV report Ex.P5, it is

evident that motorcycle was new and the entire vehicle

was damaged. However, no noticeable damages were

recorded to the lorry as per Ex.P5. There is no serious

dispute regarding scene of offence mahazar which was

drawn. Apart from that, after having caused the accident,

the lorry was stopped at a distance of 50 feet towards

east. This again establishes that the lorry was also moving

in a high speed and it could not be stopped at the spot

immediately. Since it is the defence of the accused that a

lorry was parked on the left side of the road due to

breakdown, he should have reduced the speed of the

vehicle and that too when he was negotiating a curve.

Further, the motorcycle hit to the rear wheel of the lorry

and it is not a head on collision. That itself discloses that it

is the accused who has drove his vehicle in a rash and

negligent manner.

15. The evidence of P.W.3 relied on by the learned

counsel for the revision petitioner in this regard does not

come to the aid of the revision petitioner in any way, as

his entire evidence is falsified by Ex.P2(d) and Ex.P5.

P.W.2 Spot Mahazar witness though pleads ignorance

regarding the contents of the mahazar, his evidence

establishes that the police did visited the spot and

mahazar was drawn in his presence. Though the

complainant tried to improve his case, however, that does

not assist the defence in any way. The principles of res

ipsa loquitur is directly applicable and it is for the accused

to explain as to under what circumstances this accident

has occurred and what precautions he has taken. But he

has not entered the witness box to prove his defence.

There is no evidence to show that he has reported the

matter to the nearest police station or attended the injured

immediately. Further, there is no dispute of the fact that

complainant has suffered grievous injuries and death of

the rider of the motorcycle. The death is due to accidental

injuries and hence, it is evident that the accident in

question is occurred because of the actionable negligence

on the part of the present revision petitioner.

16. Both the courts below have appreciated the

oral as well documentary evidence in detail and minutely.

They have come to a right conclusion that the accident has

occurred because of the negligence on the part of the

revision petitioner/accused and rightly convicted the

accused. The revision petitioner was imposed sentence as

well as fine and imposition of sentence was only for a

period of six months. The State has not challenged the

said sentence. Under these circumstances, the courts

below have imposed reasonable punishment to the

accused and under such circumstances, the judgment of

conviction and order of sentence passed by the trial court

and confirmed by the appellate court does not call for any

interference by this court, as they do not suffer from any

infirmity or illegality. Accordingly, I proceed to answer the

point under consideration in the negative and proceed to

pass the following:

ORDER

The revision petition is dismissed by confirming the

judgment and order dated 25.06.2012 passed by the Fast

Track Court-III, Hospet in Crl.A.No.26/2012 confirming the

judgment of conviction and order of sentence passed by

the Additional Senior Civil Judge & JMFC, Hospet dated

24.01.2012 in C.C.No.44/2010 for the offence punishable

under Sections 279, 338, 304-A of IPC and Section 187 of

M.V.Act.

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/-