Sri Mallappa S/O Mareppa vs The State Of Karnataka
2022 Latest Caselaw 1804 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION No.200028/2015


BETWEEN

SRI MALLAPPA S/O MAREPPA
AGE: 27 YEARS, OCC:DRVIER
R/O H.NO.HIREBUDUR VILLAGE
TQ.DEVADURGA, DIST.RAICHUR
                                       ...PETITIONER

(BY SRI MAHANTESH PATIL, ADVOCATE)

AND

THE STATE OF KARNATAKA
REPRESENTED BY ITS
LEARNED PUBLIC PROSECUTOR,
RAICHUR, HIGH COURT BENCH
BUILDING, KALABURAGI
THROUGH RAICHUR RURAL
POLICE STATION.
                                      ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

   THIS CRL.P. IS FILED U/S. 397 R/W SEC. 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 19.03.2015 PASSED BY THE LEARNED
PRINCIPAL SESSIONS JUDGE, RAICHUR, IN CRIMINAL
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APPEAL NO: 36/2014 AND THE JUDGMENT AND ORDER
DATED 25.06.2014 PASSED BY THE LEARNED CHIEF
JUDICIAL MAGISTRATE AT RAICHUR, IN C.C.NO:
171/2013 AND ACQUIT THE PETITIONER FROM THE
CHARGES LEVELED AGAINST HIM.

     THIS PETITION COMING ON FOR FURTHER 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.171/2013 on

the file of the chief Judicial Magistrate at Raichur by

Judgment dated 25.06.2014, whereby, he has been

convicted for the offences punishable under Sections 279,

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 confirmed in

Criminal Appeal No.36/2014, on the file of the Principal

Sessions Judge at Raichur by judgment dated 19.03.2015.

3. Brief facts of the case are as under:

Upon a complaint lodged by one Vishal S/o.

Mahadevappa, who was the pillion rider of the motorcycle

bearing No.KA-36/H-9058, aged about 15 years,

Shaktinagar police registered a case in Crime No.31/2013

for the offences punishable under Sections 279, 338 and

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

complaint, it is contended that the complainant and his

friend Murali, aged about 15 years were proceeding on the

said motorcycle after attending the tuition classes. They

intended to visit a mechanic shop and at about 6.20 p.m.

when they were proceeding on Raichur - Hyderabad main

road in front of Swapna bar at Shaktinagar, a earth mover

vehicle (JCB) bearing engine No.H-00024211 and Chassis

No.1819500 came in a rash and negligent manner and

dashed against the motorcycle. The rider of the

motorcycle fell down and said vehicle ran over on him and

succumbed to the injuries. He also sustained injuries on

the right leg. The driver of the JCB vehicle ran away from

the spot. Thereafter, the police investigated the matter

and 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 12 witnesses as PWs.1 to 12

and relied on 17 documentary evidence, which were

marked and exhibited as Exs.P1 to P17.

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      Two years simple Rs.1,000/-        Simple
 304-A     of imprisonment                       imprisonment
 IPC                                             for three months
 Section 338 Simple            Rs.1,000/-        Simple
 of IPC       imprisonment for                   imprisonment
              three months                       for one month
 Section 187       -           Rs.500/-          Simple
 IMV Act                                         imprisonment
                                                 for one month



      8.      Being   aggrieved     by     the   same,   accused

preferred an appeal in Criminal Appeal No.36/2014. 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 Judgments and orders are contrary to the material record and opposed to well established principles of law and therefore the same are liable to be set aside.

x That both the Courts failed to consider evidence of PW-4, PW.7 and PW-11 who are not at all the supported the prosecution case On the other hand both the courts committed error relying the evidence of PW-1 and PW-2 who are interested witnesses. Therefore both the courts failed to consider the contradictions in the evidences of prosecution witnesses. Hence the Judgment and Order of conviction is liable to be set aside.

x That both the courts below not considered that prosecution has failed to prove that petitioner was on the date of accident was driver of the alleged vehicle. The prosecution has not produced any material or evidence to show beyond all reasonable doubt that the petitioner was the driver of the vehicle on the date of accident. The involvement of accused in the alleged accident on the alleged date is not at all proved by the prosecution. Therefore the order of the conviction passed by the trial court is liable to be set aside.

x That as per complaint averments and the evidence of Pw.1 clearly shows that deceased Murali who was rider of the Motorcycle was aged about 15 years at the time of accident. Therefore both the courts ought to have been considered Sec.3, 4 and 5 of the Motor Vehicles Act and ought to have been held that rider and owner of the Motorcycle were himself guilty of not observing statutory provisions, therefore the both the courts wrongly came to the conclusion that accused person was committed offence. Moreover the said act of the owner and rider of a motorcycle was offence and also contributory negligence on part of the owner of a motorcycle. Therefore the order of the conviction is liable to be set aside on the ground that deceased and owner of a motorcycle were themselves negligent.

x That both the Courts below have not at all taken into consideration that averment in the complaint shows that the alleged Motorcycle at the time of accident was taken for repair, therefore both the courts have not drawn adverse inference to this aspects.

x That the prosecution has not proved involvement of the accused in accordance with the criminal jurisprudence, when the identity of the accused was not clear from the circumstances which were before

the investigation authority. Therefore both the courts have not appreciated the said aspects in its proper prospective.

x That the trial court failed in raising proper inferences based on the evidence PW-9 and Ex.P-6 & 7 i.e. IMV reports, were clearly shows that alleged vehicle involved in the accident was not damaged and alleged motorcycle was not examined in accordance with rules, therefore court below ought to have been raised proper inferences.

x That the Trial Court has not put forth the relevant questions to the Petitioner at the time of recording the 313 statement so as to ascertain the actual facts that took place at the time of the accident. Thus, the Petitioner has been materially prejudiced in defending his case. Therefore, both the Judgments and Orders under Revision are liable to be set aside.

x That the prosecution has not proved beyond reasonable doubt that petitioner is alone cause for the accident, from the prosecution witnesses and documents clearly shows that deceased motorcycle rider is also negligent in riding motorcycle, therefore under those circumstances the courts below ought have been held that there is contributory negligence

on part of the deceased motorcycle rider. The non consideration of these vital aspects of the matter as resulted passing of conviction order.

x That both the courts below have not drawn proper presumptions and inferences based on the evidence available before the court.

x Viewed from any angle and at any stretch of imagination, it could clearly be held that the impugned Judgments and Orders are highly erroneous, illegal, arbitrary and opposed to the principles of law and natural justice and therefore the same are 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 materials on

record and wrongly convicted the accused resulting in

miscarriage of justice and thus, sought for allowing the

revision petition.

11. He further contended that the main thrust of

the revision petitioner is that the deceased being the

minor, who did not admittedly possessed a valid driving

licence, drove the motorcycle in a rash and negligent

manner and the police have not properly investigated the

matter and sought for allowing the revision petition.

12. 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.

13. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that question of deceased being a minor and not having a

driving licence is immaterial for the Courts to consider the

rash and negligent driving of the revision petitioner. He

also contended that the police after thorough investigation

filed charge sheet against the accused/petitioner and the

same has not been challenged by the revision petitioner at

an appropriate point of time and therefore, sought for

dismissal of the Revision Petition.

14. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, the

following points 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, 338 and 304-A 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?"

15. In the case on hand, the accidental death of

Murali involving the motorcycle bearing registration No.KA-

36/H-9058 and JCB engine No.H-00024211 and Chassis

No.1819500 on 03.03.2013 stands established by placing

necessary oral and documentary evidence on record. The

postmortem report clearly indicates that the deceased was

aged about 15 years. Admittedly, he did not possess any

driving licence to drive the said motorcycle. The pillion

rider, who was another injured in the accident is the

complainant in the case. He is also aged about 15 years.

The police ought to have taken note of the said aspect of

the matter while investigating the matter and should have

filed charge sheet against both persons. Insofar as

deceased is concerned, the police ought to have filed

charge sheet, may be an as abated charge sheet for

violation committed by the deceased in respect of the

motor vehicle accident offence. For the reasons best

known to the parties, the charge sheet filed against the

revision petitioner alone remained unanswered without a

proper challenge. The trial Court and the learned judge in

the first appellate Court have lost sight of the said aspect

of the matter while passing the order of conviction and

sentence.

16. Though in a matter of this nature, contributory

negligence is not much of importance while deciding the

negligence of the revision petitioner, since the deceased

himself did not possess a valid driving licence to drive the

motorcycle in question as he was admittedly a minor and

the parents of the deceased having allowed the minor to

ride the motorcycle on a road that too on a highway,

cannot be lost sight of by this Court while passing an

appropriate order atleast in respect of the sentence is

concerned. Since the accidental death and negligence on

the part of the revision petitioner having been established

by placing oral and documentary evidence on record and

absolutely there being no explanation whatsoever

furnished by the accused/petitioner, following the dictum

of the Hon'ble Apex Court in the case of Ravi Kapur Vs.

State of Rajasthan reported in (2012) 9 SCC 284, the

finding of the trial Court and confirmed by the first

appellate Court that the accused is guilty of the offences

alleged against him cannot be interfered. Accordingly,

point No.1 is answered in the negative.

17. Regarding point No.2: However, the fact of

deceased being minor, aged about 15 years and not

having a driving licence to drive the motorcycle on road

that too with a pillion rider, who is the complainant, this

Court is of the considered opinion that awarding

imprisonment of two years in the peculiar facts and

circumstances is harsh insofar as the revision petitioner is

concerned. Accordingly, this Court is of the considered

opinion that awarding a fine amount of Rs.50,000/- for the

offences punishable under Section 279, 338 and 304-A of

IPC and setting aside the period of imprisonment would

meet the ends of justice. Out of the fine amount

recovered, if Rs.45,000/- is awarded as compensation to

the parents of the deceased, ends of justice would be met.

Accordingly, point No.2 is answered and pass the

following:

ORDER

The revision petition is allowed in part.

The conviction of the accused/revision petitioner for

the offences punishable under Sections 279 and 338 and

304-A of IPC is set aside. The accused/revision petitioner

is directed to pay a fine of Rs.50,000/- for all the offences

including the fine imposed by the trial Court and confirmed

by the first appellate Court on or before 15.03.2022.

Out of the fine amount recovered, a sum of

Rs.45,000/- is ordered to be paid as compensation to the

parents of the deceased under due identification 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 15.03.2022, 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