Karnataka High Court

Appasha Gadiwaddar S/O Laxman ... vs The State Through on 3 February, 2022

Bench: V Srishananda

             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.200027/2017

BETWEEN

APPASHA GADIWADDAR
S/O LAXMAN GADIWADDAR
AGE:47 YEARS, OCC:DRIVER
R/O. ALAGI AT POST SHIRWALA
TQ:AFZALPUR DIST:KALABURAGI.           ......PETITIONER

(BY SRI. M M PATIL, ADV.)

AND:

THE STATE THROUGH
JEWARGI P.S NOW
REPRESENTED BY ADDITIONAL SPP,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
KALABURAGI.             ...              ...RESPONDENT

(BY SRI. GURURAJ V. HASILKAR, HCGP.)

     THIS CRL.RP FILED U/S 397 & 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT PASSED BY THE CIVIL JUDGE
& JMFC AT JEWARGI IN C.C.NO.384/2013 DATED:31.08.2015
AND ALSO SET ASIDE THE JUDGMENT OF THE I ADDL.
SESSION'S JUDGE AT KALABURAGI, IN CRL.A.NO.74/2015
DATED:24.01.2017 AND CALL FOR THE LOWER COURT
RECORDS AND ACQUIT THE REVISION PETITIONER OF
                              2


CHARGES U/S 279, 337, 338, 304(A) OF IPC AND U/S 187
OF M.V.ACT,

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

                           ORDER

1. Heard Sri M.M. Patil learned counsel for the

petitioner and Sri Gururaj V. Hasilkar, 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.384/2013 on the

file of the Civil judge & JMFC Court, Jevargi. by Judgment

dated 31.08.2015, whereby he has been convicted for the

offences punishable under Sections 279, 337, 338, 304A IPC

and Section 187 of the Motor Vehicles Act, which was

confirmed in Criminal Appeal No.74/2015, on the file of the I

Additional Sessions Judge, Kalaburagi, by judgment dated

24.01.2017.

3. Brief facts of the case are as under:

Upon a complaint lodged by Sri Lakshmana, who was

an inmate of the vehicle bearing No.KA-32/B-8503, Jewargi

police registered a case in Crime No. No.98/2013 for the

offences punishable under Sections 279, 337, 338, 304A IPC

and Section 187 of the Motor Vehicles Act against the

accused herein. In the complaintit is contended that on

2.5.2013, his younger brother Siddappa Haralayall and his

relatives were proceeding for the Hair cutting ceremony of

his nephew in a Tata Ace vehicle bearing registration No.KA-

32/B-8503 and when they reached a place near Rawnoor

cross at abou 7.30 p.m., the accused drove the said vehicle

in a rash and negligent manner, whereby the said vehicle

turtled. The inmates of the vehicle sustained injuries and

among the inmates Sharanappa lost his life. On account of

the accident, 13 other inmates of the vehicle sustained

injuries. The police after thorough investigation filed charge

sheet against the accused for the aforesaid offences.

Subsequent thereto, presence of the accused was secured by

the learned Magistrate and after taking cognizance of the

aforesaid offences, 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 17 witnesses as PWs.1 to 17 and

relied on 23 documents were relied on by thek prosecution

which were marked and exhibited as Exs.P1 to 23. Among

the documentary evidence, Ex.P-21 is the Post Mortem report

of Sharanaiah and Ex.P-22 is the IMV report which shows

kthat there is no mechanical defect in the vehicle resulting in

the accident. Exs.P8 to 20 are the wound certificates of the

injures inmates of the vehicle in question.

5. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded by the learned Magistrate, wherein

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:

Fine in Offence Imprisonment Default sentence Rs.

   Section    Simple               1,000/- Simple
   279     of imprisonment                 imprisonment
   IPC        for Six months               for one and half
                                           month

   Section    Simple                500/- Simple
   337     of imprisonment                imprisonment
   IPC        for one month               for 7 days

   Section    Simple               1000/- Simple
   338     of imprisonment                imprisonment
   IPC        for Six months              for one and half
                                          months

   Section Imprisonment            9000/- Simple
   304A of for one year                   imprisonment
   IPC                                    for three months

   Section                          500/- Simple
   187     of                             imprisonment
   IMV Act           -                    for 15 days

7. Being aggrieved by the same, accused preferred

an appeal in Criminal Appeal No.74/2015. 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.

8. In the Revision Petition, the following grounds

are raised:

"GROUNDS

That, the complainant who was examined on behalf of the prosecution as Cw1/Pw1 wherein in examination in Chief the Pw1 has not stated the name of the accused before the lower court so also in complaint ExP1 so also in cross examination and also he has not stated anything about the accused person driving the vehicle in rash and negligent manner. This fact was not considered by the lower court and also by appellate court hence resulted in miscarriage of justice.

That, one Babu who was also travelling in the vehicle examined as Cw-7/Pw-5 who in his examination in chief stated as Bhimuji was driving and he is of his own village and he has been treated as hostile other witnesses who are travelling in TATA Ace

not supported the case of prosecution they are treated as hostile they are Bhimsa Cw6/Pw6, Mallikarjun Cw- 7/Pw-7 so also panchas Siddannagouda Cw-2/Pw-2 Rayappa Cw-3/Pw-3 not supported the prosecution case but all these facts are not considered by the Trial Court and also the appellate court and hence, resulted in miscarriage of justice."

9. 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. Learned counsel for the Revision Petition

further contended that lenient view may be taken.

10. 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 has further contended that due to the rash

and negligent driving of the vehicle in question by the

accused person, 13 persons got injured and one person has

lost his life and therefore, the Revision Petition is to be

dismissed in toto.

11. 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 accused person is guilty of the offences punishable under Sections 279, 337, 338, 304A IPC read with Section 187 of the IMV Act, and confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, in order to establish the

case of the prosecution, complainant got examined as PW-1.

He has deposed in line with the complaint averments with

graphic details about the incident. The injured eye-witnesses

have also been supported the case of the prosecution. The

oral testimony of the injured witnesses is sufficiently

corroborated by the wound certificates marked at Exs.P-8 to

P-20 issued by the doctor. Further, the inquest mahazar and

the Post Mortem report marked at Ex.P-4 and P-21 clearly

establish that Sharanappa lost his life on account of the

accidental injuries, being the inmate of the vehicle bearing

No.KA-32/B-8503 on the day of the incident/accident.

13. All the prosecution witnesses have specifically

stated that the accident has occurred solely on the rash and

negligent driving of the driver of the vehicle in question, who

is none other than the accused/Revision Petitioner. Ex.P-22

IMV report clearly shows that there is no mechanical defect

in the vehicle in question resulting in accident. All these

aspects of the matter has been rightly appreciated by the

learned Magistrate while recording a finding that accused is

guilty of the offences alleged against him.

14. Further, the learned Judge in the First Appellate

Court, not only concurred with the finding recorded by the

learned Magistrate, but also supplemented additional reasons

for maintaining such a finding.

15. This court having regard to the limited revisional

jurisdiction, re-considered the materials on record. It is

pertinent to note that there is no dispute that the accused is

a driver of the vehicle in question as on the date of the

accident. Ex.P-22 IMV Report depicts that there is no

mechanical defect which is the cause for the accident. The

wound certificates, Post Mortem report and the inquest

mahazar clearly depicts that Sharanappa lost his life and

other 13 people have suffered injuries on account of the

accident. None of these witnesses have possessed any

previous enmity or animosity against the accused to falsely

implicate in the above case. Further, in a matter of this

nature, accused is bound to place his version on record.

However, in the case on hand, the accused has failed to

place his version on record either by examining himself or by

filing any written submissions on record as is contemplated

under Section 313(5) Cr.PC. In this regard, it is pertinent to

note rely upon 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."

16. Applying the legal principles enunciated in the

above case, this court is of the considered opinion that the

chances that has given to the accused to explain about the

incident, and he has deliberately failed to utilise the said

opportunity to place on record his version about the incident,

the prosecution evidence cannot be doubted in holding that

the accused is guilty of the offences alleged against him.

Accordingly, considering the materials available on record,

this court is of the considered opinion that the finding

recorded by the learned Magistrate and confirmed by the

First Appellate Court that the accused is guilty of the

aforesaid offences is just and proper and there is no legal