Karnataka High Court

Chandrakanth S/O Bhimsha Patil vs The State Through on 25 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 25TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200084/2016


BETWEEN:

CHANDRAKANTH S/O BHIMSHA PATIL,
AGE: 48 YEARS, OCC: NEKRTC DRIVER,
R/O. DEPOT NO.3, NEKRTC BUS DEPOT.
KALABURAGI.
                                       ... PETITIONER

(BY SRI AVINASH A. UPLAONKAR &
    SRI RAVI K. ANOOR, ADVOCATES)


AND:

THE STATE THROUGH
GRAMEEN POLICE STATION ,
DIST-KALABURAGI
NOW BY THE ADDL. S.P.P.,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH.
                                      ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO CALL
FOR AND EXAMINE THE RECORDS IN C.C.NO.4135/2010
AN SET ASIDE THE JUDGMENT PASSED BY THE LEARNED
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V ADDL. CIVIL JUDGE AND JMFC COURT GULBARGA BY
ITS JUDGMENT DATED 18 TH NOVEMBER 2013 AND
FURTHER THE SAME BEING CONFIRMED BY THE LEARNED
I ADDITIONAL SESSION JUDGE AT KALABURAGI IN
CRL.APPEAL.NO.74/2013 DATED 5TH OCTOBER 2016.

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

                       ORDER

Heard leaned counsel Sri Ravi K.Anoor, on behalf of

Sri Avinash A.Uploankar and learned High Court

Government Pleader for respondent/State.

2. The present appeal is filed by the accused who

has been convicted in C.C.No.4135/2010 for the offences

punishable under Sections 279 and 304A of IPC and

Section 187 of the Indian Motor Vehicles Act and ordered

to undergo simple imprisonment for a period of six months

with fine of `2,000/- in default sentence of one month

simple imprisonment which was confirmed in Criminal

Appeal No.74/2013 by judgment dated 05.10.2016.

3. Brief facts of the case are as under :-

A complaint came to be filed by one Shivalingappa

S/o Malleshappa Babshetty on 18.09.2010 that on

17.09.2010 his son had been to Kalaburagi for his financial

business and at about 6.30 p.m. he received a telephone

call from one Channappa Chekki that a bus has been ran

over the son of the complainant and the body is lying near

Sultanpur ring road. Immediately himself, Jagannath

Mulagi and Mallikarjun Mulagi and others came to the place

of incident and found that one KSRTC bus bearing

Reg.No.KA-32/F-943 had ran over his son and there was

huge blood injuries on the body of his son. Immediately,

he was pulled out and on enquiry, the son of the

complainant has revealed that at about 6.15 p.m. when he

was about to board the bus, the driver of the bus suddenly

applied the brake and as a result he fell down and hind

tyre has ran over on his abdomen region. Immediately he

was taken to the Government Hospital in an auto rickshaw.

However, on the same day at about 11.00 p.m. his son

died on account of the accidental injuries sustained by

him. Accordingly, the complaint was lodged seeking action

against the driver of the bus bearing Reg.No.KA-32-F-943

by name Chandrakanth S/o Bhimsha Patil. After registering

the case in Crime No.303/2010, jurisdictional police

investigated the matter in detail and filed charge-sheet

against the accused.

4. Presence of the accused was secured and

accused pleaded not guilty and therefore, trial was held.

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

the prosecution in all examined nine witnesses as PWs.1 to

9 and relied on six documentary evidence, which were

exhibited and marked as Exs.P1 to P9. On completion of

the prosecution evidence, accused statement was recorded

as contemplated under Section 313 of Cr.PC., wherein the

accused has denied all the incriminatory circumstances

found against him in the prosecution case. However, he

did not place his version about the incident on record

either examining by himself as a witness or by placing his

written submissions on record as contemplated under

Section 313(5) of Cr.PC.

6. Thereafter, the learned Trial Magistrate heard

the parties in detail and after considering the material

evidence on record, passed an order of conviction and

sentenced as referred to supra.

7. Being aggrieved by the same, the accused

preferred an appeal before the I Addl. Sessions Judge,

Kalaburagi in Criminal Appeal No.74/2013 and the learned

Judge in the first appellate Court, after securing the

records from the learned Trial Magistrate and after hearing

the parties in detail re-appreciated the material evidence

on record and dismissed the appeal, by confirming the

order of the learned Trial Magistrate. Being aggrieved by

the same, the petitioner is before this court in this Revision

Petition.

8. In the Revision Petition, following grounds

have been raised:

x That, the impugned judgment and order of conviction and sentence 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 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, looking into the evidence of the prosecution witnesses they have stated only regarding the applying of sudden brake by the petitioner not regarding the rashness Or culpable revision negligence on the part of the revision petitioner. But the court below failed to appreciate the law laid down by the apex court and as well as our High court.

x That, the reasons given by the trail court in believing interested Witnesses are not proper and there are number of Contradiction in the evidence of these witnesses. The reasons given are not

proper and contrary to principles of criminal jurisprudence.

x That, the revision petitioner is not responsible for the persons standing near the door and it is not the permitted place to board the bus of the and stand at the door, hence the negligence in the said accident and this revision petitioner is not at all responsible for the said accident and also it is the duty of the conductor to close the door after the passenger enter into the bus.

x That, on perusing the charge sheet papers and more so the evidence of Pw-5 & Pw-6 it is no way bought on record that the revision petitioner has applied the brake negligently endangering the life of the person standing on the door in a crowded bus.

x That, is the prorogate and duty of taking the decision of applying brakes on the driver who is in control of the entire bus. Thus, no culpable act can be attributed to the revision petitioner.

x That, the petitioner has not committed any Offence revisi0n U/sec.279, 304(A) of IPC R/w 187 of IMV Act., as there is no evidence of the

said offences alleged against the revision petitioner.

9. Reiterating the above grounds, Sri Avinash A.

Uploankar, vehemently contended that both the courts

have not properly appreciated the material evidence on

record and passed an order of conviction resulting in

miscarriage of justice and sought for allowing the Revision

Petition. He also contended that the accused was not the

driver of the bus in question at the relevant point of time

and the said aspect of the matter has not been properly

proved by the prosecution and thus sought for allowing the

Revision Petition.

10. Per contra, learned High Court Government

Pleader supports the impugned judgment and sought for

dismissal of the Revision Petition.

11. In the light of the arguments put forth by the

parties and having regard to the limited scope of revisional

jurisdiction, following points would arise for consideration:

(i) Whether the finding recorded by the learned Trial Magistrate and confirmed by the First Appellate Court is suffering from legal infirmity, factual patent defect or error of jurisdiction and thus calls for interference?

(ii) Whether the sentence is excessive?

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

charges leveled against the accused, the complainant has

been examined. The complainant in his examination in

chief has reiterated the complaint averments with graphic

details as to how the incident has taken place. It is found

from the complaint averments and oral testimony of PW-1

that soon after the incident, he came to know about the

incident from one Chennappa Chakki over phone and

immediately, he rushed to the spot, wherein, the son of

the complainant who was struck in between the wheels of

the bus has been removed and on enquiry, it revealed that

he was about to board the bus, the driver of the bus has

suddenly applied brake in a rash and negligent manner

whereby the deceased fell down and because of the rash

and negligent driving of the driver, the hind wheel of the

bus ran over on the head of the son of the complainant.

These aspects of the matter has been rightly appreciated

by the learned Trial Magistrate. In other words, the

evidence of PW-1 is nothing but an evidence which is to be

taken as per Section 6 of the Indian Evidence Act, as he

has received the information about the cause of accident

from the deceased himself.

13. It is pertinent to note that immediately, the

son of the complainant has been shifted in the

autorickshaw and admitted to the Government Hospital,

wherein at about 11 pm., the deceased died on the same

day. The Post Mortem report marked at Ex.P-6 reveals

that the death of the deceased is on account of the

accidental injuries sustained by the deceased.

14. The cause of death is on account of cardio

respiratory failure due to hypovolemic shock as a result of

internal bleeding (injuries sustained). These aspects of the

matter has been rightly considered by the learned Trial

Magistrate while appreciating the case of the prosecution.

15. It is further pertinent to note that the

complainant or other prosecution witnesses who have

supported the case of the prosecution, did not nurture any

previous enmity or animosity against the accused herein.

16. It is argued on behalf of the petitioner that he

was not the driver of the bus in question. However, on

perusal of the indemnity bond executed by the higher

officials of the KSRTC, at the time of release of the bus in

question which was involved in the accident, it has been

mentioned that the very petitioner is the driver of the bus

as on the date time of the accident. It is also pertinent to

note that soon after the incident, the very petitioner who

was duty bound to intimate the accident to the police, ran

away from the spot. All these factors have been rightly

appreciated by the learned Trial Magistrate and the learned

Judge in the first appellate court while recording a finding

that the accidental death of Sharanabasappa occurred on

account of the rash and negligent driving of the KSRTC

bearing No.KA-32/F-943 by the Revision Petitioner herein.

17. This court having regard to the limited scope of

revisional jurisdiction, re-considered the material evidence

on record in the light of the arguments put forth by the

learned counsel for the Revision Petitioner herein.

18. Further, in a matter of this nature, the accused

is bound to place his version on record. When he

deliberately fails to do, consequences in law has to be

followed in this regard. In this regard, gainfully this court

places 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:

"35. 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."

19. Applying the legal principles enunciated to the

case on hand, as the accused has simply denied all the

incriminatory materials and did not deliberately make use

of the opportunity as contemplated under Section 313(5)

of Cr.PC. to place his version on record. Accordingly, the

learned Judge in the First Appellate Court have followed

the consequences in law in holding that accused is

responsible for the accidental death of the deceased

Sharanabasappa.

20. On such re-consideration, this court is of the

considered opinion that the finding recorded by the Trial

Magistrate confirmed by the First Appellate Court that

accidental death of Sharanabasappa is based on sound and

logical reasons and not suffering from any legal infirmity or

perversity. There is no error of jurisdiction either in the

factual defects or error of legal infirmity in arriving at a

conclusion. Accordingly, Point No.1 is answered in the

Negative.

Regarding Point No.2:

21. The learned Trial Magistrate has sentenced the

Revision Petitioner to undergo simple imprisonment for six

months for the offence punishable under Section 304A IPC.

Since, the State has not preferred any Appeal/Revision

seeking enhancement of sentence, the dictum of the

Hon'ble Apex Court in the case of State of Punjab v.

Saurabh Bakshi, reported in (2015) 5 SCC 182, this

court is of the considered opinion that the sentence

ordered by the learned Trial Magistrate and confirmed by

the First Appellate Court is just and proper in the facts and

circumstances of the case. The relevant portion of the said

judgment is extracted hereunder:

"8. It is submitted by Mr.Madhukar that when the prosecution had been able to establish the charges levelled against the respondent and both the trial court and the appellate court had maintained the sentence there was no justification on the part of the High Court to reduce the sentence to the period already undergone solely on the basis that the respondent had paid some compensation. It is his further submission that keeping in view the gravity of the offence that two deaths had occurred the High Court should have kept itself alive to the nature of the crime and should have been well advised not to interfere with the quantum of sentence. He has commended us to the decisions in State of Punjab v. Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] and Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972]."

22. Applying the legal principles enunciated in the

said case to the case on hand and in the absence of any

mitigating circumstances placed by the Revision Petitioner,

awarding simple imprisonment of six months for the

offence punishable under Section 304A of IPC by the

learned Magistrate, is most appropriate. Accordingly, no

interference is necessary by this court. Accordingly, Point

No.2 is answered in the Negative and following order is

passed:

ORDER

Revision Petition sans merit and accordingly,

dismissed. The accused is granted time till 15.2.2022 to