Mallikarjun S/O Parbanna vs The State Through
2022 Latest Caselaw 1616 Kant

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            IN THE HIGH COURT OF KARNATAKA
                     AT KALABURAGI

      DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.200039/2015

BETWEEN

MALLIKARJUN S/O PARBANNA
AGE:43 YEARS, PC NO.238,
R/O BASAVAKALYAN,
DIST. BIDAR
                                               ...PETITIONER

(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)

AND

THE STATE THROUGH
ADDL. TRAFFIC POLICE STATION,
DIST: KALABURAGI
                                            ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

   THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO CALL FOR THE RECORDS AND EXAMINE THE
RECORDS    IN   C.C.NO.1209/2008   AND   SET    ASIDE   THE
JUDGMNT PASSED BY THE LEARNED I ADDL. CIVIL JUDGE
(JR.DN) AND JMFC COURT GULBARGA BY ITS JUDGMENT
DATED    04.11.2009   AND   FURTHER   THE      SAME   BEING
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CONFIRMED BY THE LEARNED III ADDITIONAL SESSION
JUDGE AT KALABURAGI IN CRL.APPEAL NO.72/2010 DATED
13TH MARCH 2015, IN THE INTEREST OF JUSTICE AND
EQUITY.



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


                           ORDER

Heard the learned counsel for the petitioner and learned

High Court Government Pleader for the respondent - State

and perused the records.

2. This revision petition is filed by the accused, who

suffered an order of conviction in C.C.No.1209/2008 on the

file of the I Additional Civil Judge (Jr.Dn.) and JMFC,

Kalaburagi by Judgment dated 04.11.2009, whereby, he has

been convicted for the offences punishable under Sections

279 and 338 of the Indian Penal Code, 1860 (for short 'IPC')

and under Section 187 of the Indian Motor Vehicles Act, 1988

(for short 'IMV Act'), which was confirmed in Criminal Appeal

No.72/2010, on the file of the III Additional Sessions Judge

at Kalaburagi by judgment dated 13.03.2015.

3. Brief facts of the case are as under:

Upon a complaint lodged by Ravi S/o. Sharanappa, the

Traffic Police, Kalaburagi registered a case in Crime

No.137/2007 for the offences punishable under Section 279

and 338 of IPC and under Section 187 of the IMV Act. It is

alleged in the complaint that on 12.11.2007 at about 11.30

a.m., near MSK Mill road, opposite to ITI College, the

accused being the driver of Jeep bearing No.KA-33/G-185

drove the same in a rash and negligent manner and dashed

against the Scooter bearing No.KA-32/J-2023, which was

coming from Patel Circle. It is alleged that because of the

accident, complainant and CW.4 - Vinaykumar sustained

grievous injuries in the said accident. Therefore, they sought

action against the accused/revision petitioner. The police

after thorough investigation filed charge sheet against the

accused.

4. The presence of the accused was secured before

the learned Magistrate and plea was recorded. The accused

pleaded not guilty and as such, trial was held.

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

prosecution in all examined 8 witnesses as PWs.1 to 8 and

relied on 11 documentary evidence, which were marked and

exhibited as Exs.P1 to P11.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

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

incriminatory materials 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.

7. 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:

  Offences          Imprisonment          Fine             Default
                                                          sentence
Section 279 Three    months Rs.1,000/-                Simple
of IPC      simple                                    imprisonment
            imprisonment                              for one month
Section 338 One        year Rs.1,000/-                Simple
of IPC      rigorous                                  imprisonment
            imprisonment                              for one month
Section 187      -          Rs.500/-                  Simple
IMV Act                                               imprisonment
                                                      for fifteen days

8. Being aggrieved by the same, accused preferred

an appeal in Criminal Appeal No.72/2010. 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. Thereafter, the accused is in this revision

petition.

9. In the Revision Petition, the following grounds

are raised:

x That, the impugned judgment and order of conviction

and sentence 7 recorded by the learned trial judge is

contrary to law, facts and evidence on record. Hence

the same is liable to be set aside.

x The reasons assigned by the learned trial judge while

passing the 8 impugned judgment and order of

conviction and sentence are erroneous and as such he

has slipped into an error and passed the impugned

judgment and order of conviction and sentence,

resulting in Substantial miscarriage of justice to the

case of Appellant.

x That, trail court has lost sight in appreciating the

evidence of important injured witnesses Pw-1 & Pw-4.

x That, Pw-1 Ravi and Pw-4 Vijay being a pillion rider of

the vehicle 10. have clearly admitted that the place of

incident being a busy road the city it in not possible to

drive the vehicle beyond 30-40 Kms speed per hour.

x That, the Pw-6 Kirtisagar who nowhere appears from

the initiation of the case nor an accomplice for having

shifted the injured and admittedly being of the same

caste has been cited as an eye Witnesses and

deposes before the court.

x That, it is a definite case of the appellant that it was

Pw-4 & Pw-1 12. who came in rash and negligent way

from the opposite side by Overtaking an auto and

dashing the jeep.

x This material aspect is being fortified by the MVI

report at Ex-P9 which clearly depicts damage on the

right side of the jeep. This aspect even though

highlighted in the trail court, the court below has

misconceived by an unacceptable explanation leading

to passage of impugned judgment.

x That, soon after the accident it was the appellant who

has gone to the police station and lodged the

complaint registered at the Crime.No.137/07 and the

same was elicited from Pw-8 PSI. This fact itself was

sufficient to bring out from the purview of 187 MV

Act.

10. Reiterating the above grounds, learned counsel

for the revision petitioner vehemently contended that both

the Courts have not properly appreciated the materials on

record and wrongly convicted the accused resulting in

miscarriage of justice and thus, sought for allowing the

revision petition.

11. Alternatively, he contended that the sentence is

excessive and therefore, this Court may take a lenient view

by reducing the imprisonment period and sought for allowing

the revision petition.

12. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that both the Courts have rightly appreciated the materials

on record and therefore, sought for dismissal of the Revision

Petition.

13. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused/revision petitioner is guilty of the offences punishable under Sections 279 and 338 of IPC and Section 187 of 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?"

14. In the case on hand, the injured is examined as

PW.1. The version of PW.1 is corroborated by the wound

certificates issued by the doctor vide Exs.P8 and P9. PW.1

has specifically stated before the Court about the incident

with graphic details. In the cross examination of PW.1,

suggestions made to him that he has a filed a false complaint

against the accused is denied by him. He also denied the

suggestion that he himself has dashed against the jeep and

filed a false complaint against the accused.

15. PW.2 is the circumstantial witness who did not

support the case of the prosecution. PW.3 also turn hostile to

the case of the prosecution. PW.4 is another injured in the

accident, who has also supported the case of the prosecution

and withstood the detail cross examination. PW.5 is the

mahazar witness who also did not support the case of the

prosecution in its entirety. PW.6 is the eyewitness who

supported the case of the prosecution. PW.7 is the

circumstantial witness who did not support the case of the

prosecution. PW.8 is the investigation officer.

16. In the case on hand, the incident is not disputed,

as could be seen from the suggestions made to PW.1. In the

cross-examination of PW.1, it has been suggested that the

very complainant himself is negligent and he dashed against

the jeep driven by accused/petitioner. However, the charge

sheet came to be filed against the accused after thorough

investigation. Therefore, said suggestions made on behalf of

the accused would not improve the case of the accused to

any extent. Further, the accused did not place his version

about the accident by examining himself or by placing written

submission as contemplated under Section 313(5) of Cr.P.C.

Accordingly, the trial Court was justified in recording a

finding that the accused/petitioner is guilty of the offences

alleged against him. Further, the first appellate Court has

also re-appreciated the material evidence on record and

concurred with the finding recorded by the trial Magistrate.

17. In a matter of this nature, after prosecution

establishes its case by placing necessary evidence on record,

it is the duty of the accused to explain the incident by placing

his version on record. If he fails to do so, the necessary

consequences in law have to be followed. 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.

18. In the case on hand, since the revision petitioner

has deliberately failed to place his version on record by

utilizing the opportunity granted to him by recording his

statement under Section 313 of Cr.P.C. and has simply

denied all the incriminatory materials on record, the

consequences in law have been followed by the learned Trial

Magistrate and re-appreciated by the first appellate Court.

19. On reconsideration of the materials on record,

having regard to the limited scope of the revisional

jurisdiction, this Court does not find any legal infirmity or

perversity whatsoever in the findings recorded by the Courts

below in the impugned judgments. Accordingly, point No.1 is

answered in the negative.

20. Regarding point No.2: The injured eyewitnesses

have suffered grievous injuries as could be seen from Exs.P7

and P8. Taking note of the fact that there is no compulsory

imprisonment provided under the provisions of Sections 279

and 338 of IPC, this Court is of the considered opinion that if

the fine amount is enhanced by a sum of Rs.25,000/- in

respect of all the offences and portion of the fine amount is

ordered to be paid as the compensation to the injured

witnesses, ends of justice would be met. Accordingly, point

No.2 is answered and pass the following:

ORDER

The revision petition is allowed in part.

While maintaining the conviction of the

accused/revision petitioner for the offences punishable under

Sections 279 and 338 of IPC and Section 187 of IMV Act,

accused/revision petitioner is directed to pay a fine of

Rs.25,000/- for all the offences including the fine imposed by

the trial Court and confirmed by the first appellate Court on

or before 10.03.2022.

Out of the fine amount recovered, a sum of

Rs.15,000/- is ordered to be paid as compensation to PW.1

under due identification and a sum of Rs.5,000/- is ordered

to be paid as compensation to PW.4 in terms of Section 357

of Cr.P.C. and the balance amount of Rs.5,000/- is to be

appropriated towards defraying expenses of the State.

It is made clear that if fine amount is not paid on or

before 10.03.2022, the order of the trial Magistrate

confirmed by the first appellate Court stands restored

automatically.

Office is directed return the trial Court records along

with a copy of this order forthwith.

Ordered accordingly.

Sd/-

JUDGE

Srt