Karnataka High Court

Shafi S/O Lal Ahmed vs The State Of Karnataka R/By Addl ... on 5 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF JANUARY, 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200077/2015


BETWEEN:

Shafi S/o Lal Ahmed,
Age : 32 years, Occ : Auto Driver,
R/o Hatti, Tq : Lingasugur,
Dist : Raichur.
                                              ... Petitioner

(By Sri Shivanand V.Pattanshetti, Advocate)


AND:

The State of Karnataka,
R/by Addl. SPP.,
High Court of Karnataka,
Kalaburagi Bench.
                                          ... Respondent

(By Sri Sharanabasappa M. Patil, HCGP)

      This Criminal Revision Petition is filed under
Section 397 r/w 401 of Cr.P.C praying to set aside the
judgment dated 04.11.2015 passed by the II Addl. District
and Sessions Judge at Raichur in Crl.A.No.30/2015 and
further be pleased to set-aside the judgment of conviction
and order of sentence dated 10.07.2015 passed by the
Civil Judge (Sr.Dn.) and JMFC, Lingasuguru in
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C.C.No.16/2014      for the offences punishable under
Sections 279, 304(A) of IPC and under Section 3 r/w 181
of M.VAct and acquit the petitioner in the interest of justice
and equity.

      This revision petition coming on for Final Hearing this
day, the Court made the following:

                         ORDER

The accused is in revision who has suffered an order

of conviction for the offences punishable under

Sections 279 and 304A of IPC (for short, 'IPC') and

Section 181 of the Motor Vehicles Act (for short, 'M.V.Act'),

which was confirmed in Criminal Appeal No.30/2015, has

preferred this revision petition.

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

A complaint came to be lodged with Hutti Police

Station contending that on 02.05.2009 at about 1.00 p.m.

near Kakanagar Bridge on Hutti-Lingasuguru road one

Ramanna was proceeding on a bicycle to Hutti village. At

that juncture, accused being the rider of the Hero Honda

motorcycle bearing Reg.No.KA-32-J-724 came in a rash

and negligent manner and dashed against Ramanna

whereby he fell down and sustained fatal injuries. He was

shifted to Hutti Camp Hospital and thereafter for higher

medical care to Raichur Government Hospital. Ramanna

succumbed to the injuries on 06.05.2009 at about 5.45

p.m. Based on the complaint, police registered the case

and after through investigation filed charge-sheet against

the accused for the offences punishable under Sections

279, 304A of IPC and Section 181 of M.V.Act.

3. On receipt of the charge-sheet, cognizance of

the aforesaid offences was taken by the jurisdictional

Magistrate and presence of the accused was secured. Plea

was recorded and accused pleaded not guilty and hence

trial was held.

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

in all nine witnesses have been examined by the

prosecution as PWs.1 to 9 and relied of nine documents

which were marked and exhibited as Exs.P1 to P.9.

5. Thereafter, trial Magistrate recorded the

statement of the accused wherein accused has denied all

the incriminatory circumstances including the accident.

However, he did not place his version about the incident by

examining himself as witness or by placing any written

submissions as is contemplated under Section 313(5) of

Cr.P.C.

6. Thereafter, the learned trial Magistrate heard

the parties and after appreciating the material evidence on

record passed an order of conviction, convicting the

accused for the aforesaid offences.

7. Being aggrieved by the same, the accused

preferred an appeal in Criminal Appeal No.30/2015. The

learned Judge in the first Appellate Court after securing the

records and hearing the parties in detail dismissed the

appeal by judgment dated 04.11.2015 and confirmed the

order of conviction and sentence.

8. Being aggrieved by the same, the accused is

before this court in this revision.

9. In the revision petition, following grounds have

been raised :-

x That, judgment passed by the courts below is manifestly illegal and against the facts and evidence on record and also against the well established principles governing the criminal law. Hence deserves to be set-aside.

x That, the offence U/s 279 is technical offence and it merges with the major offences U/s 304(A). Therefore, separate sentences cannot be awarded by the court. But, in the present case both the courts committed an error in convicting the petitioner even U/s 279 of IPC.

x That, trial court failed to give reasonable opportunity of hearing on sentence. So, it is nothing but violative of principles of natural justice.

x That, looking into evidence of the prosecution witnesses, they have stated only regarding the speed of vehicle, not regarding the rashness or culpable negligence on the parts of the petitioner. But, the courts below failed to appreciate the law laid down by the Apex Court as well as our High Court that, speed cannot be sole factor for determining the negligent driving unless prove by cogent evidence.

x That, both the courts have not considered the fact that, the deceased Ramanna S/o Ramappa has not taken precaution as on the date of accident, without taking note of approaching vehicle and thus killed by dashing the vehicle the driver cannot be liable for any rash and negligent act.

x That, the lower court has not taken the consideration all the witnesses are interested witnesses and the eye witnesses and complainant belongs to the deceased Ramanna S/o Ramappa.

x That, reasons given by both the courts in believing interested witnesses are not proper, there are number of contradiction in the evidence of these witnesses. Both the courts ought to have taken into consideration of those lacunas and then appreciated the evidence on record in the proper and proper manner. The reasons given are not contrary to principles of criminal jurisprudence.

x That, court below failed to put the questions in respect incriminating Circumstances appearing against the of petitioner, each material circumstances appearing in the evidence against the accused is required to be put to him do so specifically, distinctly failure to and separately, amounts to serious irregularity. This object is based

on the maxim audi alterum partem" which one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstances without affording the accused an opportunity of explaining the said incriminating Circumstances.

x That, courts below failed to appreciate the defence taken by the petitioner.

x That, the courts below have failed to appreciate the case of the prosecution and the evidence adduced on behalf them is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there is not even an iota of evidence, let alone prima-facie evidence to connect the petitioner with the alleged offence and both the court below have failed to appreciate the evidence in its right prospective and hence the judgments of courts below as resulted in grave miscarriage of justice.

x That, the courts below have passed the judgment on assumptions, surmises and conjectures to base its judgment and both the courts below have given a complete go bye to the basic concept of proof beyond reasonable doubt and this has resulted in grave miscarriage of justice.

x That, the view of matter, both the courts ought to have given benefit of doubt to the petitioner and acquitted him.

x That, some other grounds will be urged at the time of arguments.

10. Reiterating the above grounds, learned counsel

for the revision petitioner Sri Shivanand Pattanshetti,

vehemently contended that the incident is an accident and

the material evidence on record is not properly appreciated

and the accused has been wrongly convicted for the

aforesaid offences and sought for allowing the revision

petition.

11. He further contended that the material

evidence on record is not sufficient to hold that it is the

rash and negligent driving of the motorcycle by the

accused alone is responsible for the accidental injuries

sustained by the Ramanna and therefore sought for

allowing the revision petition. Alternatively, he contended

that the sentence is excessive and sought for taking a

lenient view by allowing the revision to that extent.

12. Per contra, learned High Court Government

Pleader vehemently contended that the material evidence

on record have been properly appreciated by both the

courts and in the absence of any previous enmity or

animosity nurtured by the prosecution witnesses against

the accused, the theory of the false implication is ruled out

and therefore, sought for dismissal of the revision petition.

13. Insofar as alternate plea is concerned, learned

High Court Government Pleader contends that on taking

note of the high raise in the road traffic accidents resulting

in loss of human life, the courts are expected to pass

stringent sentences so as to curb the menace and sought

for dismissal of the revision petition.

14. In view of the rival contentions, following

points would arise for consideration :-

1. Whether the finding recorded by the trial Magistrate confirming by the first appellate Court

that the accused is guilty of the offences punishable under Sections 279 and 304A of IPC and Section 181 of M.V.Act is suffering from patient factual defect, legal infirmity or perversity and thus calls for interference ?

2. Whether the sentence is excessive ?

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

06.05.2009 at about 5.45 pm. in Raichur Government

Hospital on account of the accidental injuries sustained by

him on 02.05.2009 at about 1.00 p.m. involving

motorcycle bearing Reg.No.KA-32-J-724 ridden by the

accused stands established by placing necessary oral and

documentary evidence on record. Post mortem

examination report conclusively established that Ramanna

has lost his life on account of the fatal injuries sustained

by him in the road traffic accident occurred on 02.05.2009.

16. The complainant has supported the case of the

prosecution so also the mahazar witnesses and

eyewitnesses have supported the case of the prosecution.

PW.3-Prahalad who is an eyewitness to the accident has

clearly deposed that it is on account of rash and negligent

driving of the motorcycle by the accused resulted in the

accident which dashed against the bicycle ridden by the

deceased. In the cross-examination of PW.3, no doubt it is

elicited that in the place of accident, road is a curve road

and there was less visibility. However, the said admission

is alone is not sufficient enough to dislodge the case of the

prosecution. PWs.4 and 5 are to more eyewitness to the

incident. They have also supported partly to the case of

the prosecution. It is pertinent to note that PWs.3 to 5 did

not nurture any previous enmity or animosity against

accused to depose falsely against accused..

17. Taking note of the oral testimony of the

prosecution witnesses coupled with the post mortem

examination report and other material evidence on record,

trial Magistrate has recorded a finding that the injuries

sustained by Ramanna in the road traffic accident is only

due to the rash and negligent driving of the motorcycle by

the accused. Further, there was no contra evidence placed

by the accused in this regard nor any version is placed on

record about the accident. In this regard, this Court

gainfully places its reliance on the decision 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."

18. Applying the legal principles enunciated in the

above decision, trial Magistrate has rightly considered the

material evidence on record and in the absence of any

contra evidence placed by the accused as is held in the

case of Ravi Kapur stated supra, the consequences in law

has been followed by the trial Magistrate while recording

the finding that the accused is guilty of the offences

punishable under Sections 279, 304A of IPC and

Section 181 of M.V.Act. The learned Judge in the first

Appellate Court while re-appreciating the material evidence

on record has clearly concluded that the finding recorded

by the trial Magistrate is not suffering from any legal

infirmity or perversity, accordingly, the first Appellate

Court has also confirmed the finding recorded by the trial

Magistrate.

19. This Court having regard to the limited scope

of the revisional jurisdiction reconsidered the material

evidence on record. Since, trial Magistrate has believed the

evidence of PWs.3 and 5 and also part support made by

PW.4 coupled with the post mortem examination report,

the finding recorded by the trial Magistrate confirmed by

the first Appellate Court that accidental injuries sustained

by Ramanna is only on account of the rash and negligent

driving the of the motorcycle by the accused is based on

sound and logical reasons and therefore does not call for

interference by this Court in this revision. Hence, point

No.1 is answered in the negative.

Regarding point No.2 :

20. The trial Magistrate has awarded sentence of

imprisonment for the offence punishable under

Sections 304A of IPC, simple imprisonment for one year

and ordered to pay a fine of `1,000/- and with default

sentence. For the offence punishable under Section 279 of

IPC the trial Magistrate has awarded fine of `1,000/- and

with default sentence of 15 days imprisonment. For the

offence punishable under Section 3 read with Section 181

of M.V.Act the trial Magistrate has awarded `500/- fine and

10 days for simple imprisonment. The first Appellate Court

has confirmed the order of conviction as well as sentence

passed by the trial Magistrate.

21. Before this Court, learned counsel for the

revision petitioner Sri Shivanand Pattanshetti vehemently

contended that accused is the first time offender and as

such, imposing simple imprisonment of one year for the

offence punishable under Section 304A of IPC is on the

higher side and sought for interference. He also pointed

out that taking note of the date of the offence and the age

of the accused, this Court may awardin lesser punishment

by taking lenient view. Learned High Court Government

Pleader opposes the said submission.

22. What is appropriate sentence in a matter of

this nature is no longer res integra the Hon'ble Ape Court

in the case of State of Punjab v. Saurabh Bakshi,

reported in (2015) 5 SCC 182, it has been held as

under:

"14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 :

(2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction: (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12)"

23. Taking note of the above aspect of the matter

and peculiar facts and circumstances of the case, if the

sentence of imprisonment is reduced from one year to nine

months the ends of justice would be met. Accordingly,

point No.1 is answered partly in the affirmative.

24. Point No.2 : In view of above discussion, the

following :