M.G Thimmaiah S/O Govindaiah vs State Of Karnataka
2021 Latest Caselaw 5008 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 29TH DAY OF NOVEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION NO.26/2013

BETWEEN

M.G THIMMAIAH
S/O GOVINDAIAH
AGED ABOUT 30 YEARS
R/AT MADAPATNA
KUSHALNAGAR,
KODAGU DISTRICT -571 228
                                       ...PETITIONER
(BY SRI M SHARASS CHANDRA, ADVOCATE)

AND

STATE OF KARNATAKA
BY SUNTICOPPA P.S. -571 237
                                    ...RESPONDENT
(SRI K.S.ABHIJITH, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:5.12.12
PASSED BY THE AD-HOC DIST., JUDGE AND P.O., FTC,
KODAGU, MADIKERI IN CRL.A.NO.7/08 AND ORDER
DATED:28.12.07 PASSED BY THE C.J.M., KODGAU,
MADIKERI IN C.C.NO.16/07.
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

This Revision Petition is filed by the accused, who

suffered an order of conviction in C.C.No.16/2007 on the

file of the Chief Judicial Magistrate, Kodagu by Judgment

dated 28.12.2007, whereby he has been convicted for the

offences punishable under Sections 279 and 304(A) of IPC,

which was confirmed in Criminal Appeal No.7/2008, on the

file of the Fast Tract Court, Kodagu by judgment dated

05.12.2012.

2. Brief facts of the case are as under:

Upon a complaint filed by Sri Saleem, Suntikoppa

Police registered a case against the accused for the

aforesaid offences. In the complaint, it is contended that

on 22.11.2006 at about 8.45 a.m., accused being the

driver of Mini lorry tata 407 bearing No.KA-12-4289 driven

the same in a rash and negligent manner in Suntikoppa

town at Apparanda Extension, the second block in front of

the house of the complainant and while taking the vehicle

reverse, dashed against the child of the complainant

resulting in death of the said child. The jurisdictional

police after thorough investigation, laid a charge sheet

against the accused for the aforesaid offences.

3. The presence of the accused was secured

before the learned Magistrate and plea was recorded.

Accused pleaded not guilty and as such, trial was held.

4. In order to prove the case of the prosecution,

prosecution in all examined 7 witnesses as PWs.1 to 7 and

relied on 7 documentary evidence which were marked and

exhibited as Exs.P1 to 7.

5. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C. was recorded, wherein the accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by adducing oral

evidence or filing a written submission as is contemplated

under Section 313(5) Cr.P.C.

6. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the aforesaid offences and sentenced as under:

"Accused is convicted under section 255(2) Cr.P.C., for the offence punishable under sections 279 and 304(A) of Indian Penal Code as under:

1. The accused shall undergo S.I. for three months for the offence punishable under section 279 of Indian Penal Code and he shall pay a fine of Rs.500/-. In default for payment of fine, he shall undergo S.I. for one month.

2. The accused shall undergo S.I. for Six months for the offence punishable under section 304(A) of Indian Penal Code and he shall pay a fine of Rs.2,000/-. In default for payment of fine, the accused shall undergo S.I. for two months."

7. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.7/2008. Learned

Judge in the First Appellate Court after securing the

records and hearing the parties in detail, dismissed the

appeal of the Revision Petitioner and confirmed the order

of conviction and sentence passed by the learned

Magistrate. Thereafter, the accused is in the Revision

Petition.

8. Learned counsel for the Revision Petitioner has

challenged the impugned order on the following grounds:

"The impugned judgment is arbitrary, carious and opposed to the principles of law. The judgment is not according to the law enunciated by precedents, usages and lacks judicial discretion.

Perusing the allegation made, it is evident that there is absolutely no evidence of rash and negligent driving on the part of the accused, as such conviction recorded is unsustainable.

It is submitted that Pw-1 is not the eye witness to the incident and he came to the spot after pw-2 screaming and the same both the courts below appreciated that Pw-1 is not the eye witness.

It is submitted that the prosecution case is relied upon the eye witness i.e Pw-1 and in the cross examination of Pw-1 she admits that she saw the deceased after the wheel of van rolled on deceased and from this it is very much clear that Pw-2 have not seen the deceased before the incident.

It is submitted that the entire oral and documentary evidence on record are not considered properly.

It is submitted that the defense version set- forth before the trial court is rejected without critically examined by the both the courts below.

It is submitted that the propositions of law touching the matter in issue are not examined properly.

It is submitted that the Viewing from any angle the impugned is not according to law and is not sustainable. The Petitioner humbly submits that he may be permitted to take additional grounds at the time of addressing arguments on merits.

The Petitioner humbly submits that he is a driver and eking out his livelihood as a driver and his income is the only source of income for his aged parents, wife and children. If the Petitioner is sent to jail for no fault of his, his family will suffer from the shock and loss of earning member."

Reiterating the above grounds, learned counsel for the

Revision Petitioner has contended that both the Courts

have not properly appreciated the materials on record and

sought for allowing the Revision Petition. Alternatively,

Sri Sharass Chandra also contended that the sentence

passed by the Trial Magistrate is excessive and accused is

entitled for an order of probation which has been ignored

by the learned Judge in the first Appellate Court and

sought for taking lenient view.

9. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that the Trial Magistrate has rightly appreciated the

materials on record. He also pointed out that the

contentions now urged before this Court was not even

urged by the accused during the trial and no proper

defense is coined before the Trial Magistrate inasmuch as

the entire incident was denied by the accused before the

Trial Magistrate and sought for dismissal of the Revision

Petition. He also pointed out that the accused is not

entitled for any leniency in view of the attendant

circumstances of the case and sought for dismissal of the

petition.

10. In view of the rival contentions and having

regard to the scope of the Revision Petition, following

points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 279 and 304(A) of IPC which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

11. In the case on hand, the accidental death of

Mehak Kousher, aged 1 year 3 months on 22.11.2006

involving a tata 407 van bearing No.KA-12-4289 is not in

dispute. Admittedly, while taking the reverse of the said

vehicle in front of the house of the complainant, the

accident has occurred. The accused has not offered any

explanation as to the incident. It is not forthcoming from

the defence that accused has taken all necessary

precautions while taking reverse of the vehicle, by the

cleaner of the van getting down and giving signals. No

doubt, Sri M.Sharass Chandra, learned counsel for the

Revision Petitioner contended that the width of the road is

only 6 feet and vehicle itself occupies 4 feet and therefore,

the child who came from the hind side was not visible to

the accused, which resulted in the accident and no

negligence could be attributed to the Revision Petitioner. It

is pertinent to note that such a defence was not taken

before the Trial Magistrate or at least before the first

Appellate Court. Further, accused itself did not place his

version before the Court in this regard. In a matter of this

nature, what is the role that is to be adopted by an

accused and what is expected from an accused is no longer

res integra. The Hon'ble Supreme Court in the case of

Ravi Kapur Vs. State of Rajasthan reported in (2012)

9 SCC 284, it has been held as under:

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

12. Applying the legal principles enunciated in the

aforesaid decision to the case on hand, the accused was

bound to have his version to the incident either at the time

of recording the accused statement or at least by placing

his version to the case on record in writing as is

contemplated under Section 313(5) of Cr.P.C. or by

examining himself. No such effort has been made by the

accused and he has deliberately failed to use the

opportunity granted by the Trial Magistrate. Under such

circumstances, consequences of law has to follow, which

has been followed by the Trial Magistrate and confirmed by

the first Appellate Court in recording a finding that accused

is guilty of the offences punishable under Sections 279 and

304(A) IPC. Therefore, from the above discussions, this

Court is of the considered opinion that none of the grounds

urged on behalf of the Revision Petitioner holds merit in

upsetting the finding recorded by the Trial Magistrate and

confirmed by the first Appellate Court that the accused is

guilty of the offences punishable under Sections 279 and

304(A) IPC. Accordingly, point No.1 is answered in the

negative.

13. Insofar as the sentence is concerned, the

accused has been sentenced as referred to supra. There is

no mitigating circumstances available on record so as to

reduce the sentence. What is the appropriate sentence

that is to be passed in a road traffic accident resulting in

death of human being is also no longer res integra. The

Hon'ble Apex Court in the case of State of Punjab v.

Saurabh Bakshi, reported in (2015) 5 SCC 182, it has

been held as under:

"14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction: (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12)"

14. Applying the legal principles enunciated in the

above decision to the case on hand, in the absence of any

proper explanation offered by the accused so as to reduce

the sentence, this Court is of the considered opinion that

no ground is made out to reduce the sentence by taking

lenient view for granting the probation. Accordingly, point

No.2 is answered in negative and following order is

passed:

ORDER

(i) The Revision Petition sans merit and hereby dismissed.

(ii) Time is granted for the accused/Revision Petitioner for serving the remaining part of the sentence till 15.01.2022.

Sd/-

JUDGE

KA*