Karnataka High Court

Shivaraj vs The State Of Karnataka on 1 February, 2022

Bench: V Srishananda

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            IN THE HIGH COURT OF KARNATAKA
                     AT KALABURAGI

      DATED THIS THE 1ST DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.200115/2017

BETWEEN

SHIVARAJ S/O DHULAPPA LALE,
AGE: 55 YEARS, OCC: DRIVER
R/O DHARAM PRAKASH GALLI,
BASAVAKALYAN, TQ: BASAVAKALYAN
DIST: BIDAR
                                        ...PETITIONER

(BY SRI SHARANABASSAPPA K. BABSHETTY, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH BASAVAKALYAN TRAFFIC
POLICE TATION, BASAVAKALYAN,
TQ: BASAVAKALYAN, DIST: BIDAR-585401
                                       ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE)

    THIS CRL.RP IS FILED U/S 397 OF CR.P.C PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE ORDER DATED
31.01.2017, PASSED BY THE PRL. CIVIL JUDGE & JMFC,
BASAVAKALYAN, IN C.C.NO.772/2012 AND THE ORDER
DATED 22.11.2017 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR SITTING AT BASAVAKALYAN, IN
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CRIMINAL   APPEAL  NO.10/2017  AND   ACQUIT   THE
PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE U/S.
279, 337, 304-A OF IPC AND SECTION 187 OF MOTOR
VEHICLES ACT.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

                              ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader and perused the

records.

2. This Revision Petition is filed by the accused, who

suffered an order of conviction in C.C.No.772/2012 on the

file of the Principal Civil Judge and Judicial Magistrate First

Class at Basavakalyan by Judgment dated, whereby, he has

been convicted for the offences punishable under Sections

279, 337 and 304-A of IPC and under Section 187 of the

Motor Vehicles Act, which was confirmed in Criminal Appeal

No.10/2017, on the file of the II Additional District and

Sessions Judge, Bidar sitting at Basavakalyan by judgment

dated 22.11.2017.

3. Brief facts of the case are as under:

A complaint came to be lodged by one Raju S/o.

Vasant Dange on 17.04.2012 contending that about 12.30

p.m. himself and other villagers of his village boarded a lorry

bearing registration No.KA-39/2706 for the purpose of

transportation of the timber. When the lorry was moving on

Basavakalyan towards Sastapur Bangalow, the driver of the

lorry drove the same in a rash and negligent manner and

dashed against the road divider, whereby, the inmates of the

lorry sustained injuries and one of the inmates namely,

Narsingh lost his life and sought for action.

4. The said case was registered by the Traffic Police

of Basavakalyan in Crime No.66/2012 for the aforesaid

offences, investigated the matter and filed charge sheet

against the accused for the aforesaid offences.

5. 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.

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

prosecution in all examined 13 witnesses as PWs.1 to 13 and

relied on 21 documentary evidence, which were marked and

exhibited as Exs.P1 to P21.

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

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

incriminatory circumstances found in the prosecution

evidence including the accident. 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.

8. 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 sentenced to undergo S.I. for the period of 1 year for the offence punishable under Section 304-A of IPC and fine of Rs.5,000/- in default of fine amount he shall undergo S.I. for 1 month. As the offences u/S 279 and 337 of IPC are similar nature of

offence under Section 304A of IPC, lesser sentence will merge in the larger sentence given for the offence under Section 304-A of IPC.

Accused is further sentenced to pay the fine of Rs.400/- for the offence punishable under Section 187 of IMV Act in default of fine amount, he shall undergo S.I. for 4 days."

9. Being aggrieved by the same, accused preferred

an appeal in Criminal Appeal No.10/2017. The learned Judge

in the First Appellate Court after securing the records and

hearing the parties in detail, dismissed the appeal and

confirmed the order of conviction and sentence passed by the

learned Magistrate. Being aggrieved by the same, the

accused is in the Revision Petition.

10. In the Revision Petition, the following grounds

are raised:

(i) That, the impugned judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the Sessions judge is and against the materials on record and based on presumptions, and assumptions and surmises, and it is fit to be set-aside.

(ii) That, the prosecution has utterly failed to prove the charge leveled against the accused petitioner beyond all reasonable doubt and from the evidence adduced by the prosecution, the charges are not at all proved, but the learned Magistrate & Sessions judge have without proper appreciation of oral and documentary evidence, come to a Wrong conclusion and convicted the accused/petitioner, which is legally not correct and the same is liable to be set-aside, by acquitting the petitioner.

(iii) That, it is well settled law that, when there is a doubt in the case of the prosecution, the benefit of such doubt will have to be necessarily extended to the accused/petitioner.

(iv) That, the prosecution has examined in all 13 witnesses., among them Pw-5, 6, 7 & 8 are stated to be the injured witnesses, but they are turned hostile. Other witnesses are interested witnesses and their evidence could not be relied upon unless it is corroborated with the evidence of other independent witnesses.

(v) That, both the courts have committed error in relying upon the evidence of complaint Pw-11 to convict the petitioner, because his evidence is contrary to complaint lodged by him and there are material contradictions and omissions, but the courts below have not taken in account those contradiction & omissions and has come to a wrong conclusion that, the evidence of PW11 is believable. Thus, there were variance and material omissions in testimony of witness before police and at the trial and therefore his testimony was not trust worthy or believable hence the petitioner is liable to be acquitted.

(vi) That, the prosecution has failed to prove that, the petitioner/ accused was negligent is driving the vehicle. As per Ex-P-20 sketch map, there may be a chance of taking U turn for getting filled fuel, or

air to the tyre. Therefore, the impugned orders are liable to be set-aside.

11. Reiterating the above grounds, learned counsel

for the Revision Petitioner vehemently contended that both

the Courts have not properly appreciated the material

evidence on record and wrongly convicted the accused

resulting in miscarriage of justice and thus, sought for

allowing the Revision Petition.

12. Alternatively he contended that the sentence

imposed by the trial Court and confirmed by the first

appellate Court is in excess and sought for modification of

the sentence.

13. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that the injured eyewitnesses have deposed before the Court

that the accused was the driver of the lorry in question and

there is no dispute that Narsingh lost his life in the accident

and the driver of the lorry drove the same in a rash and

negligent manner and hit the divider of the road resulting in

the accident and therefore, all ingredients to attract the

offences alleged against the accused have been proved by

the prosecution beyond reasonable doubt and therefore,

sought for dismissal of the revision petition.

14. He also contended that in the accident three

persons have sustained simple injuries and one person was

died and therefore, no leniency can be shown and sought for

dismissal of the revision petition in toto.

15. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points that would arise for consideration are:

"1. Whether the finding recorded by the learned Magistrate that the accused/revision petitioner is guilty of the offences punishable under Sections 279, 337 and 304-A of IPC and under Section 187 IMV Act, 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?"

16. In the case on hand, in order to prove the case of

the prosecution, one Raju S/o Vasant Dolle, who filed the

complaint has been examined as PW.1 and he deposed

before the Court in conformity with the complaint averments

and supported the case of the prosecution.

17. The prosecution witnesses, namely, Maruti,

Ishwar, Rajkumar, Madhavrao, Narsingh, Sridhar,

Narayanrao and Mohammed Jafar have not fully supported

the case of the prosecution. So also, the investigation

agency has placed the necessary evidence on record. Among

them, PW.5 has turned partly hostile to the case of the

prosecution, who is also an injured witness.

18. In his evidence, while narrating the incident,

strangely PW.5 has stated that the incident has occurred on

account of the mechanical defect. The IMV report filed by

the prosecution marked vide Ex.P15 clearly indicate that

there is no mechanical defect in the offending lorry. The

author of Ex.P15 one Mohammed Jafar is examined before

the Court as PW.9. He deposed before the Court in clear and

categorical terms that he has not noticed any mechanical

defect in the lorry and accident has not occurred due to

mechanical defect. In his cross examination, except

suggesting that he has given a false certificate, there is no

material elicited.

19. The death of the deceased is proved by the

prosecution by placing the postmortem report vide Ex.P8 on

record. The wound certificates are marked as Exs.P9 to

P14. The doctor, who issued the wound certificates has also

supported the case of the prosecution. These aspects of the

matter has been rightly appreciated by the trial Magistrate

while recording a categorical finding that the incident has

occurred due to the rash and negligent driving of the lorry in

question by accused/petitioner on 17.04.2012.

20. In a matter of this nature, the accused is bound

to place his version on record. If he deliberately fails to do

so, the consequences in law should follow. In this regard,

this Court gainfully places its reliance on the judgment of the

Hon'ble Apex 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."

21. In the case on hand, the accused has not placed

his version on record either by examining himself or by

placing written submission on record as contemplated under

Section 313(5) Cr.P.C., the consequences in law has been

followed by the trial Magistrate while passing an order of

conviction against the accused for the aforesaid offences.

22. Further, the learned Judge in the first appellate

Court not only concurred with the finding recorded by the

trial Magistrate but also has supplemented the additional

reasons for confirming the order of conviction.

23. This Court having regard to the limited revisional

jurisdiction, reconsidered the material on record. The oral