Suresh S/O. Jatteppa Navi vs The State Of Karnataka
2022 Latest Caselaw 605 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 13TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200005/2016


BETWEEN:

SURESH S/O. JATTEPPA NAVI,
AGE: 38 YEARS, OCCU: DRIVER,
R/O SATALGAON VILLAGE,
TQ:INDI, DIST:VIJAYAPUR.

                                      ... PETITIONER

(BY SRI R.S.LAGALI, ADVOCATE)


AND:

THE STATE OF KARNATAKA
REP. BY PSI., INDI PS.

                                     ... RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W.S.401 of CRIMINAL PROCEDURE
CODE, 1973 PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 23.12.2015 PASSED IN
CRIMINAL APPEAL NO.4/2013 BY THE I ADDL. SESSIONS
JUDGE, VIJAYPUR THEREBY CONFIRMING THE JUDGMENT
AND ORDER OF CONVICTION DATED 17.12.2012 PASSED
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BY SENIOR CIVIL JUDGE AND J.M.F.C., COURT, INDI IN
CRIMINAL CASE NO.28/2009 AND CONSEQUENTLY
ACQUIT TE PETITIONER/ACCUSED.

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

                         ORDER

The present petition is filed by the accused who has

suffered an order of conviction in C.C.No.28/2009,

confirmed in Criminal Appeal No.4/2013 for the offences

punishable under Sections 279 and 338 of Indian Penal

Code (for short, 'IPC') and Section 187 of Motor Vehicles

Act (for short, 'M.V.Act').

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

A complaint came to be lodged contending that on

04.10.2008 at about 5.30 p.m. the complainant received a

phone call from one Manjunath stating that his grand

daughter Megha met with an accident and she is admitted

to Government Hospital. Immediately, complainant rushed

to Indi and found his grand-daughter Megha in the hospital

with head injury and injury on the right leg. There was

bleeding from ear and nose and she was unconscious.

Thereafterwards he came to know from his daughter

Menakshi that when herself and her daughter Megha were

returning from Salotagi in an auto rickshaw (tum-tum) and

got down and going towards Mettige, a white coloured

pick-up tempo trax bearing Reg.No.KA-28-8519 came in a

rash and negligent manner and dashed against Megha and

the driver of the vehicle did not stopped the vehicle and

ran away from the spot. Thereafterwards, somebody had

shifted her to Indi Government Hospital and sought for

action. Indi police based on the said complaint, registered

the case in Crime No.216/2008 for the offences punishable

under Sections 279, 337 and 338 of IPC and Section 187

of M.V.Act. Further, the police conducted a detailed

investigation inter alia arresting the accused/revision

petitioner and let him on bail and also gave the interim

custody of the seized vehicle to its owner namely Ullappa

after obtaining the indemnity bond.

3. Thereafter, the learned trial Magistrate took

cognizance of the aforesaid offences and secured the

presence of the accused.

4. Plea was recorded. Accused pleaded not guilty

and therefore, trial was held.

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

seven witnesses were examined as PWs.1 to 7 and the

prosecution relied on five documentary evidence nd

marked as Ex.P.1 to Ex.P5. On conclusion of the

prosecution evidence, accused statement was recorded as

is contemplated under Section 313 of Cr.P.C. Accused

denied all the incriminatory materials found against him

including the accident.

6. However, the accused did not place his version

about the incident on record either at the time of recording

his statement or furnishing any 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.

7. Thereafter, learned trial Magistrate heard the

parties in detail and appreciated the material evidence on

record and convicted the accused for the aforesaid

offences and passed the following sentence :-

Default Offence imprisonment Fine sentence 279 of IPC Six months `500/- 15 days 338 of IPC One year `500/- 15 days 187 of M.V.Act Two months `500/- 08 days

8. Being aggrieved by the same, the accused has

filed an appeal before the District Court, Vijayapur in

Crl.Misc.No.4/2013. The learned Judge in the first

appellate court after securing the records and on perusal of

the material evidence on record reappreciated the same

and dismissed the appeal filed by the accused by judgment

dated 23.12.2015.

9. Being aggrieved by the same, the accused is

before this court in this revision petition.

10. In the revision petition following grounds have

been raised :-

x The Judgment and Order of conviction passed by the Courts below are contrary to law, facts & evidence on record besides being arbitrary.

x Both the Courts below have gravely erred in recording the Judgment& Order of conviction against the Petitioner without proper appreciation of facts & evidence on record as the facts of the case are improbable & evidence suffers from various infirmities.

x It is respectfully submitted that, both the courts below failed to note that Pw-l/Complainant is not an eye witness to the incident. It is submitted that on perusal of the complaint Ex. P.1 it is clear from the contents of the complaint that on 04.10.2008 while the complainant was in village he received call from one Kashinath who informed regarding the accident of his grand daughter. Upon learning about the accident the Complainant along with his brother Channamallappa immediately rushed to Indi hospital. So the plain reading of the complaint clearly rules out the fact that the complainant is an eyewitness to the incident.

x It is respectfully submitted that, PW.-6 Meenakshi who is the mother of the injured Megha is shown as an eye witness to the incident. The said witness has deposed regarding the accident & has stated that 4 days after the accident the police have shown her the accused. It is submitted that the trial court as well as the lower appellate court have failed to note that this

witness has categorically admitted in the cross examination that at the scene of accident the said witness has not seen the Petitioner. It is submitted that if at all this witness has not seen the Petitioner at the spot the question she identifying the witness does not arise at all. The prosecution has not produced any material to connect the Petitioner to the alleged accident.

x It is respectfully submitted that, admittedly the Petitioner is not the owner of the tempo trax bearing Reg. No. Ka 28 8519. Infact one Ullappa S/o. Rajappa Pattanshetti is the owner of the said vehicle. It is submitted that the prosecution has neither cited him as a witness nor as examined before the court. This witness was the most important witness who was competent person to speak regarding the usage of vehicle by the Petitioner. It is submitted that the Investigation officer Pw-5 atleast in his evidence ought to have deposed regarding the said fact. It is submitted that none examination of this witness is fatal to the prosecution as the prosecution would fail to establish the connection of the Petitioner to the alleged incident.

x It is respectfully submitted that, the witnesses examined by the prosecution do not establish the guilt of the Petitioner. It is submitted that Complainant is not an eye witness to the incident. The mahazar witnesses namely Pw-2 & 3 have admitted in the cross examination regarding they not being aware of the contents of the mahazar. Further Pw-4 is the brother of the complainant & he is also a hearsay witness. It is submitted that Pw-5 is the investigation officer & on perusal of his evidence it is clear that he has failed to connect the

petitioner to the alleged accident. So far as PW.7 the doctor who has examined the injured Megha do not in any manner establish the guilt of the petitioner.

x It is respectfully submitted that, the trial court as well as the lower the appellate court have completely ignored the material fact that the tempo trax jeep which is involved in the accident namely KA 28/8519 has not been produced and marked as material object before the court ln the absence of material object the prosecution case definitely falls short to bring home the guilt.

x It is respectfully submitted that, in consideration to previous ground and as its logical corollary, the MVI Report pertaining to the tempo trax which is marked as Ex. P. 3 will not help the prosecution case. I is submitted that, without the production of material object namely the tempo trax jeep involved in the accident the courts below should not have allowed to be taken on evidence the MVI report pertaining to the said vehicle in question. It is of no importance whatsoever to the case of prosecution.

x It is respectfully submitted that, the trial Court has not put all the incriminating materials which are available against the petitioner in the evidence in the Accused statement recorded U/S. 313 Cr. P.C. namely no question have been put forth regarding injury certificate & MVI report. This also has vitiated the trial.

x Without prejudice to the above noted grounds, it is submitted that the sentence of imprisonment imposed by the trial court & confirmed by the lower appellate court is disproportionate to

the crime involved. It is submitted that the trial court has imposed a higher and harsh sentence of 6 months for the offence punishable U/S. 279 IPC, one year of the offence punishable U/S. 338 IPC & 2 months for the offence punishable U/s. 187 of MV Act which are punishable with fine also. The trial court ought to have taken in account the age of the Petitioner and his involvement in nature of crime, its gravity and the punishment thereof. The trial court as well as the lower appellate court have completely over looked the elementary principle of penology that the punishment should be proportionate to the offence involved. The imposition of sentence of one year where the offence is punishable with fine amount clearly demonstrates the non-application of mind by the courts below.

x The order of conviction passed by the Courts below is not proper and correct in as much as it violates the fundamental principles of appreciation of evidence. The findings of the Courts below are perverse & not sustainable in the eye of law. Hence, the Judgment & Orders of passed by the Courts below are liable to be set aside.

x It is respectfully submitted that viewed from any angle the order of conviction passed by the Courts below are liable to be set aside.

11. Reiterating the above grounds, learned counsel

for the revision petitioner Sri R.S.Lalgali vehemently

contended that the material on record is not properly

appreciated by both the courts while convicting the

accused which has resulted in miscarriage of justice and

sought for allowing the revision petition.

12. He further contended that the important

ingredient namely the revision petitioner was the driver of

the alleged offending vehicle bearing Reg.No.KA-28-8519

is not established by the prosecution by placing cogent and

convincing evidence on record which has not been properly

appreciated by both the courts below resulting in

miscarriage of justice and sought for allowing the revision

petition.

13. Per contra, learned High Court Government

Pleader supported the impugned judgments and sought for

dismissal of the revision petition.

14. He further contended that both the courts

below have recorded a factual finding that accused is guilty

of the offences alleged against him.

15. He also pointed out that the question of

accused being not the driver of the offending vehicle in

question is not seriously contested by the accused and the

suggestions made to the cross-examination are denied by

the prosecution witnesses and therefore, the contentions

urged on behalf of the revision petitioner cannot be

countenanced in law.

16. Alternatively, learned counsel Sri R.S.Lagali

submits that in the event this court is of the opinion that

the conviction is to be maintained the sentence of

imprisonment ordered by the trial court acts harshly

against the revision petitioner and therefore, imprisonment

may be set aside.

17. In respect of alternate submission, learned

High Court Government Pleader submits that accused has

no respect towards the law or the injured and he has ran

away from the place and he has been convicted for the

offence punishable under Section 187 of M.V.Act and

therefore he does not deserve any leniency or mercy and

sought for dismissal of the revision petition in toto.

18. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points that would arise for consideration are:

1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 279 and 338 of IPC and Section 187 of M.V.Act which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

Regarding point No.1 :-

19. In the case on hand, the accidental injuries

sustained by Megha who is the grand daughter of the

complainant on 04.10.2008 at about 4.30 p.m. in Salotagi

village near Navali Vasti road involving a tempo trax jeep

bearing Reg.No.KA-28/8519 stands established by placing

necessary oral and documentary evidences on record.

20. The main contention of the revision petitioner

before this Court is that accused is not the driver of the

tempo trax jeep bearing Reg. No.KA-28/8519.

21. Before the trial Court, the accused did not

strongly plead that he is not the driver of the offending

vehicle. In the cross-examination to PW.1 who is an

independent witness a suggestion is made that he is

deposing falsely that accused is running a jeep from Indi to

Salotagi on a daily basis. The said suggestion is denied. So

also PW.4 and PW.5, similar suggestions are made. PW.4

and 5 have also denied the suggestions made to them that

accused is not the driver of the offending vehicle. PW.6

who is the mother of the injured however answered in the

cross-examination that she has not seen the accused on

the spot. Taking the advantage of the said admission, it is

argued that the prosecution has not established that

accused is not the driver of the offending jeep.

22. In order to substantiate that accused is the

driver, learned High Court Government Pleader pointed out

that in Ex.P.5 which is the indemnity bond executed by the

owner of the offending vehicle there is a mention that the

accused is the driver of the vehicle as on the date of the

accident.

23. To counter said argument Sri.R.S.Lagali,

argued that it is pertinent to note that the executant of

Ex.P.5 namely Ullappa has not been cited as witness and

examined by the prosecution.

24. However, it is to be noted that at an

undisputed point of time the owner of the vehicle while

getting the interim custody of the vehicle from the police,

has executed the indemnity bond which is marked as

Ex.P.5. The same is marked through the Investigating

Officer. In the cross-examination of the Investigating

Officer, there is no challenge to veracity of Ex.P.5.

Therefore, the contentions urged on behalf of the accused

that he is not the driver of the offending temp trax jeep as

on the date of the accident cannot be countenanced in law.

25. Further, in a matter of this nature, it is

expected that accused must place his version on record

and when he fails to do so the consequence of law would

automatically follow. 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:

"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."

26. Applying the legal principles enunciated in the

above decision to the facts of this case, when accused has

taken a specific stand that he is not the driver of the

offending vehicle, and when incriminatory materials are

produced before the court which would establish that the

accused is the driver of the offending vehicle, law expects

that accused stood step into the witness box and places his

version on record.

27. In the case on hand, accused having failed to

examine himself to place his version on record or submit

any written submission as is contemplated under Section

313(5) of Cr.P.C,, the consequences in law has been

followed by the learned trial Judge which has been rightly

reappreciated by the first appellate Court.

28. Further, the prosecution witnesses and the

Investigating Officer do not nurture any previous enmity or

animosity against the accused so as to falsely implicate

him in the case.

29. All these factors have been rightly appreciated

by both the courts while passing the impugned judgment.

30. This court having regard to the limited scope of

revisional jurisdiction reconsidered the material on record

and does not find any legal infirmity, patient factual defect

or error of jurisdiction or perversity in reaching finding

recorded by the trial Court and confirmed by the first

appellate court that accused is the driver of the offending

vehicle and he is responsible for the accidental injuries

sustained by Megha on 04.10.2008 and accordingly, point

No.1 is answered in the negative.

Regarding point No.2.

31. The trial Magistrate has passed an order of

sentence as referred to supra. The offence committed by

accused is not compulsorily to be punished with

imprisonment.

32. Since the injured has been cured and

necessary compensation would have been obtained from

the Motor Accident Claims Tribunal, this is a case where

this court is of the considered opinion that the ordering

imprisonment to the accused would act as harsh and

enhancing the fine amount the sentence of imprisonment

needs to be set-aside.

33. Accordingly, following order is passed :-

ORDER

Revision petition is allowed in part.

While maintaining the order of conviction for the

offences punishable under Sections 279 and 338 of IPC

and Section 187 of M.V.Act accused is ordered to pay fine

amount of `10,000/- in all inclusive of the fine amount

imposed by the trial court for all the aforesaid offences by

setting aside the period of imprisonment ordered by the

learned trial Magistrate and confirmed by the first

appellate court.

Time is granted to the revision petitioner/accused to

pay the fine amount till 15.02.2022.

Out of the fine amount recovered, a sum of `7,500/-

is ordered to be paid as compensation to the injured

Megha under due identification.

Ordered accordingly.

Sd/-

JUDGE

sn