Siddappa S/O Bhimaraya Sajjan vs The State Of Karnataka
2022 Latest Caselaw 217 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 6TH DAY OF JANUARY, 2022

                     BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION No.200018/2016


BETWEEN

SIDDAPPA S/O BHIMARAYA SAJJAN
AGE:47 YEARS, OCC:DRIVER & AGRI.
R/O HONAWAD, TQ & DIST:VIJAYAPUR
                                         ...PETITIONER

(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

AND

THE STATE OF KARNATAKA
R/BY ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
(THROUGH CPI, RURAL CIRLCE,VIJAYAPUR)
                                        ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

   THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE JUDGMENT DATED 12.02.2016 PASSED BY
THE PRL. SESSIONS JUDGE AT VIJAYAPUR, IN CRL.A
NO.45/2015 AND FURTHER BE PLEASED TO SET-ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 15.09.2015 PASSED BY THE II ADDL.
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JMFC AT VIJAYAPUR, IN C.C. NO.985/2011 FOR THE
OFFENCE PUNISHABLE U/S 279, 337, 338 & 304 (A) OF
IPC AND ACQUIT THE PETITIONER, IN THE INTEREST OF
JUSTICE AND EQUITY.


     THIS PETITION COMING ON FOR FINAL 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.

2. The accused, who has been convicted for the

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

of the Indian Penal Code, 1860 (for short 'IPC') and

sentenced to undergo imprisonment for a period of one

year for the offence punishable under Section 304-A of

IPC, confirmed in Criminal Appeal No.45/2015, has

preferred this revision petition.

3. Brief facts of the case are as under:

A complaint came to be lodged contending that on

28.01.2011 at about 10.30 a.m., the accused being the

driver of the cruiser jeep bearing No.KA-22/M-8151 drove

the same in a rash and negligent manner on Kannur -

Inchageri road, near the land of one Kareppa Hippargi in a

curved road and lost control of the said jeep, resulting in

jeep turtuling and fell down and inmates of the jeep i.e.,

CWs.4 to 9 sustained injuries and CWs.10 and 12

sustained grievous injuries and also one Basappa Mole died

on the spot. After receipt of the said complaint, Vijayapur

Rural police registered a case in Crime No.17/2011 and

after thorough investigation laid a charge sheet against the

accused for the offences punishable under Sections 279,

337, 338 and 304-A of IPC.

4. The learned trial Magistrate after securing the

presence of the accused, framed charges. The accused

pleaded not guilty and accordingly, trial was held.

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

prosecution in all examined twelve witnesses as PWs.1 to

12 and relied on twenty documents, which were exhibited

and marked as Exs.P1 to P20. The alleged vehicle has

been marked as MO.1.

6. After conclusion of the prosecution evidence,

accused statement as is contemplated under Section 313

of Cr.P.C. was recorded, wherein, accused has denied all

the incriminatory materials. In order to place his version,

accused got examined himself as DW.1 and also one

witness Chikkayya has been examined as DW.2.

7. Thereafter, the learned trial Judge appreciating

the material evidence on record including the defence

taken by the accused did not agree with the version placed

by the accused about the incident and recorded a finding

that the accused is guilty of the offences punishable under

Sections 279, 337, 338 and 304-A of IPC, convicted the

accused and passed the following sentence:

Offences Imprisonment Fine Default sentence Section 279 Three months Rs.500/- Simple of IPC imprisonment for one month Section 337 Three months Rs.500/- Simple of IPC imprisonment for one month Section 338 One year Rs.500/- Simple of IPC imprisonment for one month Section One year Rs.2,000/- Simple 304-A of imprisonment for IPC four months

8. Being aggrieved by the said conviction

judgment, the accused preferred an appeal before the

District Court in Criminal Appeal No.45/2015. The learned

Judge in the first appellate Court after hearing the parties

in detail by judgment dated 12.02.2016 dismissed the

appeal and confirmed the order of conviction and

sentence passed by the learned Trial Judge. Being

aggrieved by the same, the accused has preferred this

revision petition.

9. In the revision petition, following grounds have

been raised:

a) "That the judgment of appellate Court and judgment of conviction and order of

sentence passed by the trial Court 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.

b) That the offence under Section 279 is technical offence and it merges with the major offences under Section 304-A. Therefore, separate sentences cannot awarded by the Court. But, in the present case both the courts committed error in convicting the petitioner even under Section 279 of IPC.

c) 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 part of the petitioner. But, the courts below failed to appreciated the law laid down b y the Apex Court as well as High Courts that, speed cannot be sole factor for determining the negligent driving unless prove by cogent evidence.

d) That Motor Vehicle Inspector is not been examined to prove that whether vehicle was in mechanical defect or not. So, it is settled principle of law that in a accident case and

that to prove the negligence on the part f the driver, the examination of Motor Vehicle Inspector is sine quo non (mandatory). So, both the courts failed to appreciate the case of the prosecution regarding the failure on the part of the prosecution to examining the Motor Vehicles Inspector.

e) That specific defence of the accused/appellant is that on the day of incident he has stopped cruiser jeep on the say of inmates of the jeep for nature call. At that time, accused/appellant CWs.1, 5 and 13 get down from the jeep and went to right side of the jeep for nature call, deceased Bsappa Mole went to the left side of the jeep for nature call, at that point of time, one Tipper vehicle came from village INchageri, in a rash and negligent manner and dashed to standing jeep towards front side. Thereafter the driver of the tipper vehicle ran away from the spot in that process fell down on the stone sustained injuries and died. The inmates of the jeep is also sustained injuries in the accident and submitted that the accused/appellant is not responsible for the accident, so specific defence taken by accused through DW.1 and

DW.2 is not been properly appreciated by both the Courts.

f) That without admitting the guilt, the sentence imposed on the appellant is exorbitant and to higher side.

g) That the lower court has not taken the consideration all the witnesses are interested witnesses and the alleged eyewitnesses and complainant belongs to the deceased Basappa Mole.

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

i) That court below failed to put the questions in respect of incriminating circumstances appearing against the petitioner, each material circumstances appearing in the evidence against the accused is required to be put to him specifically, distinctly and

separately, failure to do so 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.

j) That the courts below failed to appreciate the defence taken by the petitioner.

k) That the Courts below have failed to appreciate the case of the prosecution and the evidence adduce 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.

l) 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 by to the basic concept of proof beyond reasonable doubt and this has resulted in grave miscarriage of justice.

m) That in view of the matter, both the courts ought to have given benefit of doubt to the petitioner and acquitted him."

10. Reiterating the above grounds, the learned

counsel for the revision petitioner contended that both the

Courts have not properly appreciated the material

evidence on record and wrongly convicted the accused

resulting in miscarriage of injustice and sought for allowing

the revision petition.

11. Alternatively, he contended that in the event

this Court maintaining the finding regarding the negligence

of the accused resulting in the accidental death of Basappa

Mole, this Court may take a lenient view by reducing the

imprisonment period

12. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that the incident as has been occurred has been given a

altogether a different colour by the accused in his evidence

and therefore, accused having taken a false plea, is has

been rightly appreciated by the learned Trial Judge and

confirmed by the first appellate Court in holding that

accused is guilty of the offences alleged against him and

thus, sought for dismissal of the revision petition. He also

pointed that the material evidence on record clearly

indicate that there are nine persons who have been injured

and one death has taken place. Therefore, no leniency can

be shown to the accused and sought for dismissal of the

revision petition in toto.

13. In view of the rival contentions of the parties

and having regard to the scope of the revision petition, the

following points would arise for consideration:

1. Whether the finding recorded by the learned Trial Judge and confirmed by the first appellate Court that the accused is guilty of the offences punishable under Sections 279, 337, 338 and 304-A of IPC is suffering from legal

infirmity, perversity, patent factual defects or error of jurisdiction and thus, calls for interference?

2. Whether the sentence is excessive?

14. In the case on hand, the complainant is the

uncle of deceased Basappa Mole. He is also one of the

inmates of the jeep and he has supported the case of the

prosecution. PWs.2, 4, 5, 6 and 7 have also supported the

case of the prosecution. The doctor is examined as PW.11,

who has issued the postmortem report in respect of

deceased Basappa Mole.

15. The cross examination to the prosecution

witnesses did not yield any useful material so as to

disbelieve the case of the prosecution. The investigation

officer or the witnesses who have been examined on behalf

of the prosecution did not possess any previous enmity or

animosity against the accused so as to falsely implicate

him in the case. The wound certificate produced and

marked at Exs.P10 to P19 amply exposes the injuries

sustained by the inmates of the jeep.

16. The accused in order to place his version about

the incident on record examined himself as DW.1 and one

Chikkayya as DW.2. Both of them deposed before the

Court that when the jeep has been parked for attending

the nature call, an unknown tipper dashed against the

jeep, whereby, the inmates of the jeep sustained injuries

and looking at the incident, the deceased Basappa Mole,

while rushing towards the jeep, fell on a stone sustained

injuries and died in the incident. The said evidence is not

only unnatural but also meant to somehow escape from

the rigors of law.

17. The learned Trial Judge after appreciating the

entire material evidence on record, has rightly rejected the

defence of the accused and convicted accused for the

offences alleged against him. The learned Judge in the

first appellate Court after thorough re-appreciation of the

entire material on record has concurred with the finding

recorded by the learned Trial Judge.

18. This Court having regard to the scope of the

revisional jurisdiction, reconsidered the entire material

evidence on record in the light of the grounds in the

revision petition.

19. Since the accused has taken a false and

unnatural plea about the incident, no weightage

whatsoever can be given to the testimony of DWs.1 and 2.

Further, the injured persons, who are the inmates of the

jeep have clearly deposed before the Court with graphic

details about nature of the accident. All of them in chorus

deposed about the negligence of the accused in driving the

vehicle resulting in turtling of the jeep whereby they

sustained injuries. The photographs produced before the

Court and marked as exhibits clearly indicate the nature of

damages caused to the jeep and the accidental injuries

sustained by the deceased is also depicted in the

photographs and the postmortem report.

20. These aspects have been rightly appreciated

by both the Courts and therefore, this Court is of the

considered opinion that the contentions urged on behalf of

the revision petitioner cannot be countenanced in law.

Hence, point No.1 is answered in the negative.

21. Regarding point No.2:- Insofar as the sentence

is concerned, the learned Trial Judge has awarded the

sentence as referred to supra and the learned judge in the

first appellate Court has confirmed the sentence passed by

the learned Trial Judge. No other material is available on

record so as to interfere with the sentence that has been

passed by the learned Trial Judge and confirmed by the

first appellate Court. Keeping in mind the principles of law

enunciated in the judgment of the 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 no case is made out to reduce the sentence in the

case on hand. Accordingly, point No.2 is also answered in

the negative. In view of the answers to point Nos.1 and 2

in negative, following:

ORDER

Revision petition sans merit and hereby dismissed.

Accused/revision petitioner is granted time till

31.01.2022 to surrender before the Trial Magistrate for

serving the sentence.

Office is directed to return the Trial Court records

with copy of this order forthwith.

Sd/-

JUDGE

Srt