Jeevan S/O Moses vs The State Of Karntaka
2022 Latest Caselaw 3191 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 24 TH DAY OF FEBRUARY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200041/2022


BETWEEN:

JEEVAN S/O. MOSES
AGE: 32 YEARS, OCC: DRIVER
 R/O. MANHALLI VILLAGE
TQ: & DIST: BIDAR
                                          ... APPELLANT

(BY SRI RAVI B. PATIL, ADVOCATE)


AND:

1.     THE STATE OF KARNATAKA
       THROUGH MANNALLI
       POLICE STATION

2.     LAXMI W/O. PRABHU
       AGE: ABOUT 36 YEARS
       OCC: HOUSEHOLD
       R/O. SINDHOL VILLAGE
       TQ: & DIST: BIDAR
                                       ... RESPONDENTS

(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R1;
SRI HANMANTHRAYA SINDHOL, ADVOCATE FOR R2)
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     THIS  CRIMINAL   APPEAL   IS   FILED  UNDER
SECTION 379 OF CR.P.C. PRAYING TO      ALLOW THE
APPEAL AND SET ASIDE JUDGMENT DATED 27.05.2016
PASSED BY THE LEARNED PRL. DISTRICT AND SESSIONIS
JUDGE, BIDAR IN CRL.APPEAL NO.19/2015 AS AT
ANNEXURE-A IN THE INTEREST OF JUSTICE AND GRANT
SUCH OTHR RELIEF AS DEEMED FIT IN THE
CIRCUMSTANCE OF THE CASE.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

The present appeal is filed challenging the judgment

passed in Criminal Appeal No.19/2015 whereby the order

of acquittal passed in C.C.No.840/2013 dated 19.03.2013,

for the offences punishable under Sections 279 and 304-A

of the Indian Penal Code (for short 'IPC') and under

Section 187 of the Indian Motor Vehicles Act, 1988 (for

short 'IMV Act') came to be reversed and the accused has

been convicted for the aforesaid offences and sentenced as

under:

"i. The Criminal Appeal No. 19/2015 filed by the appellant is hereby allowed.

ii. The judgment of acquittal in C.C. No. 840/2013 dated 19-3-2014 passed by the

2nd Additional Civil Judge and JMFC-II, Bidar, is hereby set aside.

iii. The respondent-accused Jeevan s/o Mosses, aged 31 years, occupation: driver, r/o Manhalli village, tq. Bidar, is hereby convicted for the offences punishable under Sections 279, 304-A of IPC and under Section 134 r/w 187 of MV Act.

iv. The respondent - accused is hereby convicted for the offence punishable under Section 279 of IPC and he is ordered to undergo simple imprisonment for a period of Six months and also pay fine of Rs.5,000/-.

v. Further the respondent -accused is ordered to undergo simple imprisonment for a period of Two years and also pay fine of Rs.2,000/- for the offence punishable under Section 304-A of IPC.

vi. Further the respondent -accused is ordered to undergo simple imprisonment for a period of Three months and also pay fine of Rs.

       500/-    for    the   offence      punishable     under
       Section 134 r/w section 187 of M.V. Act.
       1988. 30 CRI. APPEAL NO. 19/2015

vii.   All   the    substantive        sentences    shall    run
       concurrently.

viii. The registry is hereby directed to forward entire records to the trial Court along with copy of this judgment to suffer sentence passed by this Appellate Court by securing the respondent - accused.

ix. Send the records to the lower Court along with copy of this judgment forthwith."

2. Brief facts of the case are as under:

A complaint came to be filed on 07.02.2013 by

Smt.Lakshmi contending that at about 10.20 a.m. at

Mannalli - Sindhol road, near the land of one Vithal Rao

Deshpande, the accused being the driver of goods

autorickshaw bearing No.KA-38/6439 drove the same in a

rash and negligent manner and dashed against the

motorcycle driven by one Prabhu S/o. Sharanappa Malage

and was sustained fatal injuries and ultimately lost his life.

3. The jurisdictional police thoroughly

investigated the matter and filed charge sheet against the

accused for the offences punishable under Sections 279,

304-A of IPC read with Section 187 of IMV Act.

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 7 witnesses as PWs.1 to 7 and

relied on 7 documentary evidence, which were marked and

exhibited as Exs.P1 to P7.

6. On conclusion of the prosecution evidence,

accused statement was recorded as contemplated under

Section 313 of Cr.P.C. Accused denied all the incriminatory

materials found against him including the incident.

7. However, the accused did not place his version

about the incident on record either at the time of recording

his statement or by furnishing his written submission as is

contemplated under Section 313(5) of Cr.P.C. Accused also

did not step into the witness box to place his version on

record.

8. Thereafter, learned trial Judge after hearing

the parties in detail acquitted the accused for the aforesaid

offences.

9. Being aggrieved by the same, the de-facto

complainant Lakshmi preferred an appeal against the

accused.

10. The learned trial Judge in the first appellate

court after securing the records, re-appreciated the

material evidence on record and convicted the accused and

sentenced as referred to supra.

11. Being aggrieved by the same, the present

appeal is filed.

12. In the appeal following grounds have been

raised :-

x That the impugned order passed by the learned Prl. District and Sessions Judge is contrary to law, facts and probabilities of the case, as such, the same is liable to be set aside.

x The Petitioner submit that the judgment impugned is highly illegal and is without any jurisdiction as the Appeal against the Acquittal lies to

High Court with leave of the court and there is no power vested with the court of Session to entertain the Appeal against the acquittal under Section 378 and thus the entire judgment of the 1 st Appellate court is without any jurisdiction and cannot be sustained.

x The Petitioner further submits that the procedure adopted by the 1 st Appellate Court is highly arbitrary and illegal and cannot be sustained either in law or on the facts of the case and the entire proceeding is clear in contravention with the settled proposition of law. The Petitioner submits that the 1st Appellate Court has failed to register the Appeal before permitting the Respondent No.2/complainant to lead additional evidence, as the application seeking condonation of delay is considered only along with the main matter, hence the additional evidence recorded by the 1st Appellate Court is without any effect and cannot be relied for any purpose.

x The Petitioner submits that though he was served with the notice and the counsel appointed by him filed the vakalath, has however failed to represent the Petitioner in the matter. The Petitioner submits that as per section 354 of Cr.P.C. whenever an accused is convicted for any offence alleged against him the court shall hear the accused on sentence before imposing any sentence, however in the case on hand the 1st Appellate Court has preceded to pass both the order of conviction and sentence in a same Order without even seeking the presence of the accused for hearing on sentence, thus the impugned Judgment is highly arbitrary and illegal and cannot be sustained in the eyes of law.

x The Petitioner submits that the 1st Appellate court has relied on the statement in the form of examination in Chief of the Petitioner in MVC No. 352/2013 and treated the same as an admission as to he being

the driver driving the auto rickshaw at the time of accident and proceeded to hold that the Petitioner himself has admitted the negligence for the cause of accident, which is highly impermissible in the eyes of law as any evidence or statement made in some other proceeding cannot be taken as conclusive proof for convicting a person in criminal offence and the prosecution has to prove the case beyond all reasonable doubts, thus the reliance placed by the 1st Appellate court on the additional document produced being the deposition of the Petitioner in MVC case is highly impermissible and same cannot be sustained.

x The Petitioner submits that the entire proceedings against petitioners is baseless and hence the learned Prl District and Sessions Judge committed serious error in entertaining the appeal and reversing the judgment of the Trial Court acquitting the Petitioner of the offence alleged against him.

x Even otherwise the judgment of the 1" Appellate Court cannot be sustained as same is capricious, illegal and arbitrary in nature. The Petitioner submits that he has not preferred any other Petition or Revision or Appeal challenging the judgment impugned before this Hon'ble court or any other court on the same subject matter.

13. Reiterating the above grounds, Sri Ravi B.Patil

learned counsel for the appellant vehemently contended

that the material on record is not properly appreciated by

the first appellate court and wrongly convicted the accused

for the aforesaid offences and sought for allowing the

appeal.

14. He has also pointed out that additional

evidence has been placed before the first appellate court in

the form of affidavit said to have been filed by the accused

before the learned Motor Accident Claims Tribunal (MACT)

wherein the dependants of the deceased have sought for

grant of compensation and without affording sufficient

opportunity, the affidavit filed by the accused has been

relied on by the first appellate court while passing an order

of conviction and therefore the impugned judgment is bad

in law and therefore sought for allowing the appeal in toto.

15. Alternatively, he contended that in the event

this court is to maintain the order of conviction, taking

note of the fact that the appellant had the benefit of the

order of acquittal which came to be reversed in Criminal

Appeal No.19/2015 and therefore sought for allowing the

appeal.

16. Per contra, learned High Court Government

Pleader opposes the appeal grounds and sought for

dismissal of the appeal in toto.

17. In view of the rival contentions of the parties,

following points would arise for consideration :-

1. Whether the order passed by the learned Judge in the first appellate court in Crl.A.No.19/2015 convicting the accused/appellant for the offences punishable under Sections 279 and 304A of IPC and Section 134 read with Section 187 of the Indian Motor Vehicles Act is suffering from legal infirmity or perversity and thus calls for interference ?

2. Whether the sentence is excessive ?

18. In the case on hand, accidental death of

Prabhu S/o Sharanappa Malage on 07.02.2013 being the

rider of the motorcycle which met with an accident with

goods auto rickshaw bearing Reg.No.KA-38/6439 stands

established by placing necessary oral and documentary

evidence on record. Whether the appellant was the driver

of the auto rickshaw or not was not properly proved before

the learned trial Magistrate and therefore the appellant

had the advantage of an order of acquittal before the

learned trial Magistrate. The State did not chose to

challenge the order passed by the learned trial Magistrate

and therefore de-facto complainant namely Lakshmi who is

the wife of the deceased filed an appeal before the District

Court in Crl.A.No.19/2015.

19. During the course of pendency of the appeal,

the affidavit filed by the very same appellant before the

MACT was produced and sought to be relied as an

additional evidence. The learned Judge in the first

appellate court took notice of the said affidavit and treated

the same as additional evidence and in view of the

unequivocal admission made by the very same appellant in

the affidavit, relied on the same and allowed the appeal

filed by the wife of the deceased and convicted the

appellant for the aforesaid offences.

20. Being aggrieved by the same, the present

appeal is filed. Sri Ravi B.Patil, learned counsel for the

appellant vehemently contended that in the event of the

first appellate court relying on the affidavit said to have

been filed by the present appellant, to be accepted as

additional evidence, proper opportunity was not granted by

the learned Judge in the first appellate court. He also

pointed out that an opportunity should have been provided

by the first appellate court to explain under what

circumstances that affidavit came to be filed before the

MACT and sought for allowing the appeal.

21. Per contra, Sri Hanamanthraya Sindol, learned

counsel for the respondent No.2 and learned High Court

Government Pleader for respondent No.1/State supported

the impugned judgment.

22. This court meticulously considered the material

evidence on record. It is a fact that before the learned

Magistrate the prosecution failed to establish by placing

necessary documents to show that the appellant is the

driver of the goods auto rickshaw bearing Reg.No.KA-

38/6439 as on the date of the accident.

23. The indemnity bond which is executed by the

owner of the auto rickshaw on record, has not even

marked as an exhibit before the trial court. It also did not

reveal the name of the appellant except stating that the

accident has occurred on account of the rash and negligent

driving of the driver of the auto rickshaw.

24. Taking note of the said aspect of the matter,

the learned trial Magistrate acquitted the

accused/appellant. However, learned trial Judge in the first

appellate court exercising the appellate powers, relied on

the affidavit filed by the very same appellant before the

MACT and convicted the accused/appellant. Since the

affidavit came to be filed by the very same appellant

before another judicial forum, the learned trial Judge in

the first appellate court relying on the affidavit cannot be

found fault with, more so when the appellant has not

challenged the action of the first appellate court in not

properly considering the additional evidence. Therefore,

the conviction order passed by the first appellate court

reversing the order of acquittal passed by the learned

Magistrate cannot be termed as perverse. Hence, point

No.1 is answered in the negative.

Regarding point No.2 :-

25. Since the appellant is convicted for the first

time before the first appellate court and that too by relying

on the additional evidence, there is no discussion in the

impugned order regarding the hearing of the

accused/appellant on the question of quantum of sentence,

this court is of the considered opinion that imposing the

sentence by the learned judge in the first appellate court

suffers from legal infirmity. However, only for the purposes

of hearing and passing appropriate quantum of sentence,

remanding the matter at this distance of time would result

in futile exercise. Accordingly, this court is of the

considered opinion that by imposing a fine of `30,000/-

and setting aside the order of imprisonment of the

appellant for the aforesaid offences, would meet the ends

of justice in the facts and circumstances of the present

case only. Accordingly, point No.2 is answered and hence

the following :

ORDER

Revision Petition No.200055/2016 which is now

converted into Criminal Appeal No.200041/2022 by order

dated 24.02.2022 is hereby allowed in part.

While maintaining the conviction of the appellant for

the offences punishable under Sections 279 and 304A of

IPC and Sections 134 read with 187 of the Indian Motor

Vehicles Act, the appellant is ordered to pay a fine of

`30,000/-.

Out of the fine amount, a sum of `25,000/- is to be

paid to Smt.Lakshmi, de-facto complainant wife of Prabhu

(deceased) under due identification and the balance

amount of `5,000/- is to be appropriated to the State

towards defraying expenses.

Time is granted to deposit the fine amount of

`30,000/- till 31.03.2022.

If there is default in payment of the fine amount,

sentence of imprisonment ordered by the learned Judge of

the first appellate court stands restored automatically.

Office is directed to return the trial court records

along with a certified copy of this judgment forthwith.

In view of the fact that the matter is of the year

2016 filing of amended appeal memorandum is dispensed

with.

Sd/-

JUDGE

Srt/sn