Karnataka High Court

Motilal S/O Puru Chawan vs State Through on 6 January, 2022

Bench: V Srishananda

                         1




          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.200052/2016


BETWEEN

MOTILAL S/O PURU CHAWAN
AGE:28 YEARS, OCC:PRIVATE EMPLOYEE,
R/O:GOPAL NAIK TANDA, NALWAR,
TQ:CHITTAPUR, DIST:KALABURAGI.
                                      ...PETITIONER

(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)

AND

STATE THROUGH
SUB-INSPECTOR OF POLICE, YADGIR RURAL
POLICE STATION, YADAGIR, REPRESENTED
BY SPP, HIGH COURT OF KARNATAKA
KALABURAGI BENCH.
                                     ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, 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 16.11.2012 PASSED BY
THE    LEARNED    JMFC   COURT   AT  YADAGIR,   IN
C.C.NO.198/2011 AND ALSO SET ASIDE THE JUDGMENT
DATED 12.07.2016 PASSED BY THE LEARNED SESSIONS
                                2




JUDGE AT YADGIR IN CRL.A.NO.20/2012 CONSEQUENTLY
BE PLEASED TO ACQUIT THE PETITIONER FOR THE
ALLEGED OFFENCES. 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 suffered an order of

conviction in C. C.No.198/2018 confirmed in Criminal

Appeal No.20/2012 is before this Court in this revision.

3. Brief facts of the case are as under:

Upon a complaint lodged by one Sri Bhimaraya

(PW.1), Yadgiri Rural police registered a case in Crime

No.73/2011 against the accused for the offences

punishable under Sections 279, 337 and 304-A of the

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

181(3) of the Indian Motor Vehicles Act, 1988 (for short

'IMV' Act'). In the complaint, it is contended that on

26.04.2011 at about 7.00 p.m. near Chamnalli Tanda, the

accused being the rider of the motorcycle bearing

registration No.KA-32/V-5673 without having a valid

driving licence, dashed against a autorickshaw bearing

registration No.KA-33/8487, whereby, one of the inmates

of the autorickshaw namely, Kireteppa lost his life and

other inmates sustained injuries. After registration of the

case, police after thorough investigation, laid a charge

sheet against the accused for the aforesaid offences.

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 ten witnesses as PWs.1 to 10

and relied on thirteen documents, which were exhibited

and marked as Exs.P1 to P13.

6. On 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 found against him. However,

the accused did not choose to place his version on record

either by examining himself as witness or by placing any

written submissions on record.

7. Thereafter, the learned trial Judge appreciating

the material evidence on record passed an order of

conviction, convicting the accused for the offences

punishable under Sections 279, 338 and 304-A of IPC and

under Section 181(3) of IMV Act and passed the following

sentence:

  Offences       Imprisonment             Fine               Default
                                                            sentence
Section 279 Three     months           Rs.750/-         Simple
of IPC       simple                                     imprisonment
             imprisonment                               for fifteen days
Section 337 One        month           Rs.400/-         Simple
of IPC       simple                                     imprisonment
             imprisonment                               for eight day
Section      Six      months           Rs.1,000/-       Simple
304-A     of rigorous                                   imprisonment
IPC          imprisonment                               for one month
Section            -                   Rs.300/-         Simple
181(3)   of                                             imprisonment
IMV Act                                                 for seven days





      8.      Being       aggrieved      by   the     said     conviction

judgment, the accused preferred an appeal before the

District Court at Yadgiri in Criminal Appeal No.20/2012.

The learned Judge in the first appellate Court after

securing the records and hearing the parties in detail by

judgment dated 12.07.2016 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. "The impugned orders passed by both the Court below are illegal, arbitrary, contrary to law and records of the case and besides being against the principles of natural justice.

B. It is submitted that in the absence of cogent evidence to point out the guilt of petitioner, the courts below committed a mistake in convicting the petitioner.

C. Both the courts below have not applied their mind to the facts of the case and also to the

evidence on record which has led to passing of the judgment impugned in this criminal revision petition.

D. The both the courts below failed to note that the PW.1 to 5 and PW.7 to 10 have given admission to show that due to rash and negligent on the part of tom tom vehicle the accident took place which has not been properly considered by the court below. Which as resulted in convicting the petitioner for the alleged offences.

E. The prosecution has failed adduce evidence of independent witnesses when the accident occurred in the public place and convicted only on the evidence of interested and chance witnesses which is against the principal of the natural justice.

F. It is submitted that, the material witnesses PW.6 has not supported the prosecution version the court below failed to consider the same. Hence, the indulgence of this Hon'ble Court is sought for.

G. That the case of the prosecution is that the vehicle of the petitioner motor bike dashed against tom tom vehicle which has resulted in death of one person by name Kirteppa who was travelling in tom tom vehilce, it shown the motor bike being a small vehicle dashed against tom tom vehicle and the tom

tom vehicle turtuled as a result of which the passengers travelling in the tom tom vehicle have sustained injuries, the petitioner and pillion rider has also sustained injury. The case of the prosecution itself creates doubt regarding version of the prosecution. The court below failed to consider the same which has resulted in passing impugned judgment.

H. It is submitted that, from the perusal of sketch produced by the prosecution clearly shown that the accident took place at west side of the road which is left side of the petitioner vehicle it shown the tom tom vehicle came extreme right side of the road which ahs resulted in causing accident the court below failed to consider the sketch placed on record on that ground also the judgment passed by both courts below are liable to be set aside.

I. The prosecution has failed to establish that the accident occurred due to rash and negligent driving of the petitioner, infact the accident occurred due to mechanical defect. The said aspect court below failed to consider hence the indulgence of this Court is sought for.

J. The prosecution has failed to prove the guilt of the petitioner beyond all reasonable

doubt. Hence indulgence of this Court is sought for.

K. Both the courts below have failed to not that the petitioner is the only earning member of the family and whose entire family depends on him and hence the courts below ought to have appreciated the evidence on record very minutely before having convicted the petitioner.

L. The court committed an error in convicting the petitioner for higher punishment then the punishment given in the trial Court, in the appeal failed by the petitioner is not permissible under law. On that ground alone the impugned judgment passed b the 1st appellate court is liable to be set aside. M. Even other wise viewed from any angle the impugned orders passed by both courts below are illegal, arbitrary contrary to law and records of the case and calls for interference of this court."

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 in proper perspective and wrongly

convicted the accused resulting in miscarriage of injustice

and sought for allowing the revision petition.

11. 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.

12. Per contra, learned High Court Government

Pleader while supporting the impugned judgments

contended that the accused did not possess a valid and

effective driving licence to ride the motorcycle as on the

date of the accident resulting in rash and negligent driving

of the motorcycle and dashing against the autorickshaw,

whereby the inmates of the autorickshaw not only

sustained injuries and one of the inmates namely,

Kireteppa also died in the accident and therefore sought

for dismissal of the revision petition. In respect of the

sentence is concerned, he contended that the Courts below

passed an appropriate sentence and there is no scope for

taking any lenient view in the matter 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 firt 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 incident that occurred

on 26.04.2011, at about 7.00 p.m., near Chamnalli Tanda,

wherein, a motorcycle bearing No.KA-32/V-5673 being

ridden by the accused dashing against the autorickshaw

bearing No.KA-33/8487 stands established by placing

necessary oral and documentary evidence on record. The

injured eyewitnesses have been examined before the Trial

Court as PWs.1 to 3. In their evidence, they have stated

about the incident with graphic details. In their cross-

examination, no material is elicited so as to disbelieve the

their version.

15. However, PW.6, who is the pillion rider of the

motorcycle has been examined by the prosecution who has

deposed before the Court that the driver of the

autorickshaw tried to overtake a tipper lorry and in the

process the accident has occurred. Much, weightage

cannot be granted to the said portion of the evidence on

record, inasmuch as, the accused/revision petitioner

himself did not say so before the Court while recording his

statement or by examining himself before the Court.

Therefore, eschewing the said portion of the evidence,

learned Trial Magistrate has rightly believed the

prosecution case and convicted the accused/revision

petitioner for the aforesaid sentences.

16. The learned Judge in the first appellate Court

on re-appreciation of the entire material on record,

concurred with the finding recorded by the learned Trial

Judge.

17. This Court having regard to the limited scope

of the revisional jurisdiction, reconsidered the entire

material evidence on record in the light of the grounds in

the revision petition. Absolutely, there is no discrepancy

or legal infirmity in the finding recording by the trial

Magistrate or by the learned Judge in the first appellate

Court in reaching out a finding that the accused is guilty of

the aforesaid offences.

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

bound to place on record his version about the incident.

When he fails to do so, consequences in law should be

followed. In this regard, this Court gainfully places its

reliance on the judgment of the Apex Court in the case of

Ravi Kapur Vs. State of Rajasthan reported in (2012)

9 SCC 284. More particularly, in paragraph 39, which

reads 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."

19. Applying the legal principles enunciated in the

above decision to the facts of this case, when the

prosecution has proved its case, it is expected that the

accused could also place his version about the incident.

Having failed to place his version about the incident, the

consequences in law has been followed by the learned trial

Magistrate and re-appreciated by the learned Judge in the

first appellate Court. Accordingly, from the foregoing

discussion, this Court is of the considered opinion that

there is legal infirmity or perversity in the finding recorded

by the learned trial Magistrate and confirmed by the Judge

in the first appellate Court. Hence, point No.1 is answered