Jayakumar M G S/O. Gopalappa vs The State Of Karnataka
2021 Latest Caselaw 3300 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 06TH DAY OF AUGUST, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

       CRIMINAL REVISION PETITION NO.2307 OF 2013

BETWEEN
JAYAKUMAR M G S/O. GOPALAPPA
AGE: 32 YEARS, OCC: DRIVER
R/O. INDUVALLI, TQ: SORAB,
DIST: SHIMOGA
                                                 ...PETITIONER

(BY SRI. SURESH P HUDEDAGADDI, ADVOCATE)

AND
THE STATE OF KARNATAKA
KAGINELE POLICE,
REPRESENTED BY ITS SPP
HIGH COURT OF KARNATAKA,
DHARWAD.
                                                ...RESPONDENT

(BY SRI.RAMESH B CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND
ORDER OF SENTENCE DATED 12.11.2009 PASSED BY THE CIVIL
JUDGE (JR.DN.) & JMFC COURT, BYADAGI IN C.C.NO.175/2007
AND THE JUDGMENT PASSED BY THE II-ADDL. DISTRICT &
SESSIONS    JUDGE,   HAVERI,   SITTING   AT   RANEBENNUR,   IN
CRL.A.NO.69/2009, DATED 26.08.2013 AND THE ACCUSED BE
ACQUITTED FOR THE OFFENCES P/U/S 279 & 304 (A) OF IPC,
AND SEC. 134(a)(b) R/W 187 OF M.V. ACT, BY ALLOWING THIS
REVISION PETITION.
                                   -2-


     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 31.08.2021 COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT MADE THE
FOLLOWING:

                                 ORDER

The revision petitioner has filed this revision petition

under Section 397(1) and 401 of Cr.P.C. for setting aside the

judgment of conviction and order of sentence dated

12.11.2009 passed by the Civil Judge (Jr.Dn.) & JMFC Court,

Byadagi in C.C.No.175/2007, which was confirmed by the II-

Additional District & Sessions Judge, Haveri, sitting at

Ranebennur, in Crl.A.No.69/2009, dated 26.08.2013 for the

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

and Sections 134(a)(b) read with Section 187 of the Motor

Vehicles Act, by allowing the revision petition and acquit the

revision petitioner.

2. For the sake of convenience, parties herein are

referred with original ranks occupied by them before the

Trial Court.

3. The brief facts leading to the case are that the on

20.03.2007 at about 11.40 a.m. within the limits of Kaginele

Police station, on Kaginele-Hedigonda road, near the land of

one Aravind Kulkarni, the accused being the driver of the bus

bearing registration No.KA-14/A-0046, drove it from

Kaginele towards Hedigonda in a rash and negligent manner,

endangering human life and public safety and suddenly took

the vehicle on right side of the road and dashed against

Pulsar motorcycle bearing registration No.KA-27/L-220,

which was coming from opposite direction causing accident

and thereafter the accused ran away from the accident spot

without attending the injured. The rider of the motorcycle,

Mohammed, suffered grievous injuries and was admitted in

Vivekanand General Hospital, Hubli. However, at 3.20 p.m.,

he succumbed because of accidental injuries. On the basis of

the complaint lodged, the investigating officer investigated

the matter and submitted charge sheet against the accused.

The accused appeared before the learned Magistrate through

his counsel and was enlarged on bail. The prosecution papers

were also furnished to him. The accusation was read over

and explained to him and he pleaded not guilty and claimed

to be tried. The prosecution has examined in all 13 witnesses

as PW1 to PW13 and placed reliance on 15 documents,

marked at Ex.P1 to Ex.P15 to prove the guilt of the accused.

After conclusion of evidence of the prosecution, the

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

recorded by explaining the incriminating evidence appearing

against him in the case of the prosecution. The case of the

accused is of total denial and he did not choose to lead any

oral or documentary evidence in support of his evidence.

Having heard the arguments and perusing the oral as well as

documentary evidence placed on record, the learned

Magistrate convicted the accused for the offences punishable

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

134(a)(b) read with Section 187 of the Motor Vehicles Act.

He sentenced the accused to undergo simple imprisonment

for a period of 4 months with fine of Rs.500/- for the offence

punishable under section 279 of IPC and simple

imprisonment for a period of four months with fine of

Rs.400/- for the offence punishable under Section 134(a)(b)

read with Section 187 of the Motor Vehicles Act and also

rigorous imprisonment for a period of 6 months with fine of

Rs.1,000/- for the offence punishable under Section 304-A of

IPC with default clause.

4. Being aggrieved by this judgment, the accused

preferred an appeal before the learned II-Additional Sessions

Judge Haveri, sitting at Ranebennur in Criminal Appeal

No.69/2009 and the learned Sessions Judge by his judgment

dated 26.08.2013 dismissed the appeal by confirming the

judgment of conviction and order of sentence passed by the

Trial Court. Being aggrieved by the concurrent findings of the

Courts below, the revision petitioner-accused has filed this

revision petition seeking acquittal.

5. Heard the arguments advanced by the learned

counsel for revision petitioner and learned HCGP for the

state. Perused he records of the Trial Court in detail.

6. The learned counsel for the revision petitioner

would submit that the judgment of conviction and order of

sentence passed by the Courts below is contrary to the

materials on record and opposed to well established law. He

would contend that the map, Ex.P3, establishes that the

accused was driving the bus on proper side of the road and

the deceased moved his motorcycle on the wrong side, which

resulted in accident. He would contend that the Courts below

have misinterpreted the evidence of PW1, PW3, PW4 and

PW5. He would contend that in fact, there was negligence on

the part of the deceased, as he himself hit the bus on the

right side and the accident has occurred on the left side of

the road. He would further contend that the road at the

accident spot is in zigzag manner. He would also argue that

the passengers in the bus did not see how the accident was

occurred and the evidence of PW3 to PW7 is contrary. Hence,

he would contend that the judgment of conviction and order

of sentence passed by the Courts below has led to

miscarriage of justice and as such, sought for allowing the

revision petition by setting aside the impugned judgments.

7. Per contra, the learned HCGP appearing for

respondent-state has contended that PW4 and PW5 are

inmates of the bus and they have specifically deposed

regarding the rash and negligent driving on the part of the

accused, who was the driver of the bus. He would also

contend that except PW9, all other witnesses have supported

the case of the prosecution and there is no reason for

discarding the evidence on record. Ex.P3, in fact, establishes

that the bus was moved in a wrong direction i.e. on right

side of the road, which resulted in accident and the accused

has not explained the accident, as he would have been the

best witness. Hence, he would contend that both the Courts

below have appreciated the oral and documentary evidence

in detail and arrived at a just decision of convicting the

accused-revision petitioner by imposing a reasonable

sentence. Hence, he would seek for dismissal of the revision

petition.

8. Having heard the arguments and perusing the

records, it is undisputed fact that the accused was the driver

of the offending vehicle bearing registration No. KA-14/A-

0046 at the time of the accident. Further, it is also an

undisputed fact that the bus hit the motorcycle of the

deceased and there was head on collision between two

vehicles on 20.03.2007 at 11.40 a.m. at Kaginele-Hedigonda

road near the land of Aravind Kulakarni. It is also undisputed

fact that the rider of the pulsar motorcycle bearing

registration No.KA-27/L-220 sustained grievous injuries and

succumbed in the hospital. All these aspects have been

undisputed. The accused is only disputing the rash and

negligent driving on his part. However, the statement of the

accused was recorded under Section 313 of Cr.P.C., but the

accused did not give any explanation and the simple defence

he put forward is that the deceased was coming on

motorcycle by talking on his mobile and the accident has

occurred because of his negligence. But this fact is not

suggested to any of the witnesses during the course of

cross-examination.

9. PW1 is the complainant and he is an eyewitness

to the incident. PW1 has specifically deposed that the

accused overtook the bus and dashed against on coming

motorcycle of the deceased by moving his bus on the right

side of the road. Though this witness was cross-examined,

nothing was elicited so as to impeach his evidence. Though

he was suggested that the deceased was talking on his

mobile while riding the motorcycle, he denied the said

suggestion.

10. PW2 is the spot pancha and PW3 is another

eyewitness. They have also supported the case of the

prosecution. PW4 and PW5 are two passengers of the bus

and they have specifically deposed that the accident is

because of actionable negligence on the part of the accused.

Very interestingly, PW4 has specifically deposed that the

accused himself was talking on his mobile while driving the

bus and drove it in a high speed and caused accident. PW11

and PW13 are the investigating officers.

11. Though the eyewitness PW1 and PW3 to PW5

were cross-examined at length, nothing was elicited so as to

impeach their evidence. Though the accused has taken a

defence that the deceased was riding the bike by talking on

his mobile, but same is not substantiated by him. All along,

it is contended by the learned counsel for the revision

petitioner that the accused was driving the bus on a proper

side of the road. Ex.P2 is the spot mahazar and Ex.P3 is the

spot sketch. These are material documents. These

documents establish that at the accident spot, road is

running from east to west. Hedigonda is situated towards

east, while Kaginele is situated on the western side. Further,

it is evident that at the spot of the accident, the road is of

the width of 20 ft. The bus was admittedly moving from

Kaginele towards Hedigonda i.e. from west to east. Hence,

the bus ought to have moved on the northern side of the

road. But on perusal of the records, it is evident that the

accident spot is 2 ft from southern edge of road and 18 ft

from the northern edge of road. The road is of the width of

20 ft itself and having zigzag curve. The accused should

have driven his vehicle towards northern side of the road,

but the spot mahazar and sketch disclose that he moved the

bus on the southern side and the accident spot is on the

southern side edge of the road at a distance of 2 ft. That

itself discloses that instead of driving the bus on the left side

of the road, the accused drove it on the right side of the

road. Hence, it is evident that the accused has moved his

bus on the wrong side and the bumper of the bus hit the

motorcycle of the deceased and as a result, the rider of the

motorcycle sustained grievous injuries and succumbed to the

injuries in the hospital. There is no dispute about the fact

that the rider of the motorcycle succumbed because of

accidental injuries in the hospital. Ex.P2 and Ex.P3 have

completely falsified the defence raised by the accused-

revision petitioner that the bus was moving the on right side

but that itself establishes that the accused moved on the

wrong side of the road and it is for the accused to explain as

to why he was driving the bus on wrong side i.e. right side of

the road. The accused has not made any attempts in this

regard. Looking to these facts and circumstances, it is prima-

facie evident that the accident was because of actionable

negligence on the part of the accused. Immediately after the

accident, the accused fled away from the spot without

attending the injured. The death of the injured is also

admitted. Hence, it is evident that the prosecution has

established the guilt of the accused for the offence

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

Sections 134(a)(b) read with Section 187 of the Motor

Vehicles Act. Both the courts below have appreciated the oral

and documentary evidence in detail and Trial Court is

justified in convicting the accused. Further, the Appellate

Court has re-appreciated the evidence and confirmed the

judgment of the Trial Court. The Courts below have also

imposed a reasonable sentence against the accused. Hence,

the judgment of conviction and order on sentence passed by

the Trial Court and confirmed by the Appellate Court does

not call for any interference by this Court. As such, the

revision is devoid of any merits and needs to be dismissed.

Accordingly, I proceed to pass the following:

ORDER

The revision petition is dismissed.

In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

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