Sri.Kankareddy S/O Guddadayya vs The State Of Karnataka
2022 Latest Caselaw 1745 Kant

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            IN THE HIGH COURT OF KARNATAKA
                     AT KALABURAGI

      DATED THIS THE 4TH DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.200028/2016

BETWEEN

SRI.KANKAREDDY S/O GUDDADAYYA
AGE:30 YEARS, OCC:DRIVER & OWNER
OF VEHICLE BEARING NO.KA-36-9927
R/O SAMUDRA VILLAGE, TQ:DEVADURGA
DIST:RAICHUR PIN-584101
                                       ...PETITIONER

(BY SRI GANESH NAIK, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH DEVADURGA POLICE STATION
TQ:DEVADURGA, DIST:RAICHUR-584101
                                       ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

   THIS CRL.RP IS FILED U/S 397 OF CR.P.C PRAYING TO
ALLOW THE REVISION AND SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE HON'BLE
JMFC, DEODURG IN C.C.NO.370/2010, CONFIRMED BY THE
PRL.    SESSIONS      JUDGE     AT     RAICHUR    IN
CRL.APPEAL.NO.05/2015 DATED 30TH JAN 2016 AND ACQUIT
THE PETITIONER OF THE CHARGES LEVELLED AGAINST HIM.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

                               ORDER

Heard the learned counsel for the revision petitioner and

the learned High Court Government Pleader for the

respondent - State. Perused the records.

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

suffered an order of conviction in C.C.No.370/2010 on the

file of the JMFC, Devadurga by Judgment dated 14.01.2015,

whereby, he has been convicted for the offences punishable

under Sections 279, 337, 338 and 304-A 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 modified in Criminal Appeal No.5/2015, on the file of the

II Principal Sessions Judge, Raichur by judgment dated

30.01.2016.

3. Brief facts of the case are as under:

A complaint came to be lodged by one Hanumantha

S/o. Siddanna, Devadurga police registered a case in Crime

No.37/2010 for the offences punishable under Sections 279,

337, 338 and 304-A of IPC and under Section 187 of IMV

Act. In the complaint, it is contended that the complainant

had three sons and a daughter and her daughter

Basalingamma was studying in 7th standard. In order to get

a photograph for the purpose of examination, himself and his

daughter Basalingamma were proceeding to Arakera village

and they were standing in the bus stand at about 3.15 p.m.,

at that juncture, a Tata pick up van bearing No.KA-36/9927

came there and they contracted to proceed in the said

vehicle and they boarded the same on the back side of the

vehicle. The driver of the said vehicle drove the said vehicle

in a rash and negligent manner and as such, in order to

avoid a girl, who was crossing the road, he steered the

vehicle on the left side and because of the rash and negligent

driving, the vehicle turtled. After dashing the said girl,

himself and her daughter got injured and the girl, who was

moving on the road sustained grievous injuries and was died.

The driver of the vehicle left the vehicle there itself and ran

away from the spot. The police after registering the case,

investigated the matter and filed the charge sheet against

the accused for the aforesaid offences.

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 10 witnesses as PWs.1 to 10 and

relied on 14 documentary evidence, which were marked and

exhibited as Exs.P1 to P14.

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 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 by 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 One year simple Rs.1,000/-      Simple
of IPC      imprisonment                    imprisonment
                                            for six months
Section 338 Six        months Rs.1,000/-    Simple
of IPC        simple                        imprisonment
              imprisonment                  for 45 days
Section       Two years simple Rs.3,000/-   Simple
304-A      of imprisonment                  imprisonment
IPC                                         for six months
Section 187         -          Rs.500/-     Simple
of IMV Act                                  imprisonment
                                            for 15 days

8. Being aggrieved by the same, accused preferred

an appeal in Criminal Appeal No.5/2015. The learned Judge

in the First Appellate Court after securing the records and

hearing the parties in detail, allowed the appeal in part by

maintaining the order of conviction of the accused for the

offences punishable under Sections 279, 337, 338 and 304-A

of IPC and under Section 187 of IMV Act and set aside the

sentence passed by the trial Magistrate for the offence

punishable under Section 279 of IPC and held that both

substantial sentences shall run concurrently. Being aggrieved

by the same, the accused is in this revision petition.

9. In the Revision Petition, the following grounds

are raised:

¾ The impugned judgment is erroneous in law, against the fact and established principal laid down for the purpose of apperception of evidence by the Supreme Court and high courts and as such to be interfered with and set aside.

¾ That, PW-2 is injured eye-witness as well as is the complainant. In his cross examination he has categorically admitted that, immediately after the accident he lost his unconscious and the same was gained on the next day at Raichur hospital. The question would be arising how can the lodge the complaint at Deodurga Govt. hospital, therefore the prosecution has failed to establish its case. Under such circumstances, it was unjust on the part of trial court or the appellant court to apply the presumption rule.

¾ It is pertinent to submit that, the CW-6/PW-9 who is eye witness to thee incident has been turned HOSTILE and not identified the not accused/petitioner. And panchas PW- 7/CW-2 Ramayy and PW-6/CW-s Hanumantaraya have turned HOSTILE, who have denied the spot and inquest panchanama was conducted in their presence. The IO has

not seized the vehicle in question before the Panchas and absolutely there was no evidence in this aspect. This aspect of the case has been completely Overlooked by the courts below resulting in erroneous conviction of the Accused/Petitioner.

¾ That, PW-3 is injured witness and PW-9 Bhagamma who is the eye witness and injured has admitted the vehicle was moving at the speed of 30 KM per hour. The prosecution has failed to prove rash and negligence driving the vehicle by the Accused/Petitioner. The injured witnesses have categorically admitted that, deceased Bhagamma all of sudden crossed the road and meet with accident. Further Ex.P-5 & Ex.P-6 are the colour photographs clearly that, the road is not good conditions , there are full ditches and it is katcha road and is in jig-jag manner and either sides stones such are collected, jail tree are their and bushed are their. Under such circumstances, it was unjust on the part of trial court or the appellant court to apply the presumption rule. This aspect of the case has been completely Overlooked by the courts below resulting in erroneous conviction of the Accused/Petitioner.

¾ That, the prosecution has failed to prove, injured Hanumantha (PW-2)/complainant has sustained multiple of the grievous injuries. The doctor/ PW-1 has admitted in his cross examination that, he could not found blood marks on the cloth of injured. Further the prosecution has tailed to produce the further treatment of injuries and not collected

the wound certificates from the treated doctor. The IO/PW- 10, in his cross- examination admits that, there is ditches at the spot, further stated that he has taken further statements of eye witnesses and before them he produced the Accused/petitioner and they are all identified him. All the eye witness are denied, they have not given any further statements to the IO and no identification of the accused/petitioner before them. This aspect of the case has been completely Overlooked by the courts below resulting in erroneous conviction of the Accused/Petitioner.

¾ Viewed from any angle, the judgments under revision are erroneous and hence liable to be set aside.

10. 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.

11. 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 and lenient view may be taken and therefore,

sought for allowing of the petition.

12. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that because of rash and negligent driving of the accused,

the incident has occurred and the injured eyewitnesses

supported the case of the prosecution and therefore, sought

for dismissal of the revision petition.

13. He also contended that the first appellate Court

has already used its discretion in favour of the

accused/petitioner by setting aside the separate punishment

ordered by the trial Magistrate for the offence punishable

under Sections 304-A and 338 of IPC and therefore, no

leniency can be shown by this Court and sought for dismissal

of the revision petition in toto.

14. 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 the accused/revision petitioner is guilty of the offences punishable under Sections 279, 337, 338 and 304-A of IPC and under 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?"

15. In the case on hand, the incident that occurred

on 04.03.2010 involving the Tata pick up Van bearing No.KA-

36/9927, whereby, the complainant and her daughter got

injured and Bagamma having lost her life stands established

by placing necessary oral and documentary evidence on

record. There is no dispute that the accused/petitioner was

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

accident. The material on record namely, the postmortem

report vide Ex.P8 and wound certificates vide Exs.P1 to P3

clearly indicate that the complainant and his daughter have

sustained grievous injuries in the road traffic accident and

Bagamma having lost her life, the injured eyewitnesses have

supported the case of the prosecution by deposing before the

Court in terms of the complaint averments with graphic

details is tested in the cross examination by the accused. In

such cross-examination, there is no useful material has been

elicited so as to disbelieve the version of the complainant.

16. Further, in a matter of this nature, the accused is

bound to place his version on record about the incident. 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."

17. Applying the legal principles enunciated in the

above case to the case on hand, since the prosecution has

already placed on record the positive evidence on record to

show because of the rash and negligent driving of the vehicle

in question by the accused, the incident has occurred and

Bagamma lost her life and complainant and his daughter

sustained injuries. Therefore, the trial Magistrate and the

first appellate Court have rightly appreciated the material on

record and recorded a finding that accused is guilty of the

offences alleged against him. The learned Judge in the first

appellate Court took into consideration that offences under

Sections 279 and 337 of IPC merges with the offences under

Sections 304-A and 338 of IPC. Therefore, the said fact

depicts that there is a total application of mind by the

learned judge in the first appellate Court while re-

appreciating the materials on record.

18. In view of the foregoing discussion, this Court is

of the considered opinion that there is no legal infirmity or

perversity or patent factual defect or error of jurisdiction in

reaching out such a finding by the learned trial Judge and the

first appellate Court. Accordingly, point No.1 is answered in

the negative.

19. Regarding point No.2: The trial Court has passed

the sentence as referred to supra, which was modified by the

first appellate Court by maintaining the sentence passed by

the learned trial Magistrate for the offence under Sections

304-A and 338 of IPC and under Section 187 of IMV Act.

20. Taking note of the fact that even in the complaint

averments itself, there is a mention that in order to avoid the

crossing of the road by the deceased - Bagamma, the

accused has to steer the vehicle on the left side, this Court is

of the considered opinion that ordering two years simple

punishment is on the higher side and the same requires

reduction by one year. Accordingly, point No.2 is answered

partly in the affirmative and pass the following:

ORDER

The criminal revision petition is allowed in part.

While maintaining the conviction of the

accused/revision petitioner for the offences punishable under

Sections 304-A and 338 of IPC and under Section 187 of IMV

Act, the punishment of simple imprisonment of two years

awarded by the first appellate Court for the offences under

Sections 304-A and 338 of IPC and under Section 187 of

IMV Act is hereby reduced to one year simple imprisonment.

Rest of the sentence stands unaltered.

The accused/revision petitioner is granted time till

28.02.2022 to surrender before the trial Court for serving

remaining part of the sentence.

The office is directed to return the trial Court records

along with a copy of this order forthwith.

Ordered accordingly.

Sd/-

JUDGE Srt