Sangayya S/O Gurunath Hiremath vs The State Of Karnataka
2022 Latest Caselaw 61 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 4TH DAY OF JANUARY, 2022

                          BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200063/2015


BETWEEN:

Sangayya S/o Gurunath Hiremath,
Age : 36 years, Occ: Driver,
R/o Bannatti P.A., Tq : Sindagi,
Dist : Vijayapur.
                                             ... Petitioner

(By Sri R.S.Lagali &
    Sri Sanganagouda V.Biradar, Advocates)


AND:

The State of Karnataka,
Rep. by the PSI,
Sindagi P.S.
                                         ... Respondent

(By Sri Sharanabasappa M. Patil, HCGP)

      This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C praying to
set-aside the judgment and order dated 19.09.2015
passed in Criminal Appeal No.25/2014 by III Additional
Sessions Judge, Vijayapur thereby confirming the
judgment and order of conviction dated 24.07.2014 passed
in Criminal Case No.85/2011 by the Senior Civil Judge and
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JMFC Court, Sindagi and consequently 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 present revision petition is filed by the accused

Sangayya who faced the trial for the offences punishable

under Sections 279 and 304A of Indian Penal Code (for

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

short, 'M.V.Act.') in C.C.No.85/2011 and convicted for the

aforesaid offences by judgment dated 24.07.2014 which

was confirmed in Criminal Appeal No.25/2014 by judgment

dated 19.09.2015 has preferred this revision petition.

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

Smt.Rasulabi W/o Modinsab Mulla, resident of Tellur,

Afzalpur Taluk, Kalaburagi district lodged a complaint

stating that Lalesab Rajasab Mulla, resident of Byakod

Village, Sindagi Taluk had been to Sindagi for medical

treatment pn 01.02.2011. At about 4.30 p.m. Lalesab was

proceeding in a passenger auto rickshaw bearing

Reg.No.KA-33-7803 from Byakod to Sindagi to see the

Rasulabi who was ill. In the said auto rickshaw, Yeshwant

Bhimappa Harijan, Hemareddi, Nandappa Harnal were also

travelling as passengers. When the said auto rickshaw

reached near the agricultural land of Sreeshail Gadagi, a

goods auto rickshaw bearing Reg.No.KA-28-A-8853 came

from Sindagi side in a rash and negligent manner and

dashed against the passenger auto rickshaw in which

Lalesab and others were travelling. Due to the impact of

the accident, passenger auto rickshaw turtled to the right

side of the road gutter and Lalesab sustained fatal injuries

apart other passengers sustaining injuries. He was shifted

to the Government Hospital, Sindagi in an ambulance.

However, en-route to the hospital Lalesab succumbed to

the injuries. On receipt of the said complaint, police

investigated the matter and laid charge-sheet against the

driver of the passenger auto rickshaw as well as the driver

of the goods auto rickshaw. Both the charge-sheets were

taken note of by the jurisdictional Magistrate and the

drivers of both the auto rickshaws were tried in C.C.Nos.85

and 86 of 2011.

3. Presence of the revision petitioner and the

driver of another auto rickshaw was secured and plea was

recorded. Since the accused persons pleaded not guilty

trial was held. It is submitted that both the matters ended

in conviction of the drivers of both the auto rickshaws in

the aforesaid cases. Being aggrieved by the judgment of

conviction passed in both the cases, driver of the auto

rickshaw preferred an appeal in Criminal Appeal

No.25/2014 by the present revision petitioner and so also

the driver of the another auto rickshaw by name Md.Rafiq

filed an appeal in Criminal Appeal No.26/2014.

4. The learned Judge in the first Appellate Court

heard the appeals by securing the trial court records in

detail and by judgment dated 19.09.2015, the appeal filed

by the present revision petitioner came to be dismissed

and the appeal filed by Sri Md.Rafiq who was the driver of

the goods auto rickshaw in Criminal Appeal No.26/2014

came to be allowed. The State did not choose to file any

further appeal against the acquittal of Sri Md.Rafiq

whereas the accused Sangayya has preferred this revision

petition.

5. In the revision petition following grounds have

been raised :-

x The Judgment & 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 and 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, the procedure adopted by the trial court as well as the appellate court is completely erroneous. It is submitted that the endeavor of the trial court as well as the appellate court ought to have been the ascertainment as to which of the drivers were rash & negligent. It is submitted that investigation officer had filed charge-sheet in 2 parts against both the drivers and 2 different case numbers were given to them. The trial court could very well club the matter & could have passed common judgment & order with proper ascertainment of rash &

negligence of the driver since both the matter pertains to the very same accident. The trial court ought to have taken up the said matter together so that it could have clearly ascertained the fact of rash & negligent driving of the drivers. It is submitted that, the trial court during the recording of evidence in Petitioner's case namely C. C No. 85/ 2011 permits the counsel for driver of goods auto rickshaw viz. the accused in C. C. No. 86/2011 to cross examine the witnesses. The mode of recording of evidence has been erroneous and has caused serious prejudice to the Petitioners. The same has resulted in the miscarriage of justice.

x It is respectfully submitted that even the appellate court failed to adopt correct procedure to hear the appeal. It is submitted that, the lower appellate court ought to have transferred the appeal to Principal Sessions Judge, Vijaypur which was also hearing Criminal Appeal No.86/2011 or requested the Principal Sessions Judge to transfer Criminal Appeal No.86/2011 to the appellate court so that it could have taken up both the matters as both the appeal pertaining one accident. The assessment of evidence by one single court would have effective ascertained as to which of the drivers was at fault. Since both the appeals were pertaining to one & the same accident they were to be heard by one judge and this procedure not being followed as resulted in contradictory & incorrect findings.

x It is respectfully submitted that, so far as the Petitioner is concerned Pw-3 Yashwant S/o. Bheemappa Harijan who

being the inmate of the vehicle has specifically deposed in examination in chief that the driver of the goods auto rickshaw was rash & negligent & the resulted in the accident. Further, the evidence of Pw-4 the Complainant Rasulabi in her cross examination admits that the driver of the goods auto rickshaw bearing Reg. No. KA 28/ A 8853 coming from the opposite directions was rash & negligent. So, considering the evidence of these 2 important witnesses there is no specific material to the Petitioner guilty of the offences U/S. 279, 304A IPC & S. 187 MV Act.

x It is respectfully submitted that, spot mahazar recitals also do not show as to which of the driver was rash & negligent. On perusal of spot mahazar the exact place of the accident is not forth coming. Further there is discrepancy between the width of the road as mentioned in spot mahazar namely Ex. P. 1 & the rough sketch of the spot Ex. P. 7. It is specifically mentioned in the spot mahazar Ex. P. 1 that the width of road is 14 feet, whereas, in hand sketch map of the spot Ex. P. 7 the width of the road is shown to be 24 feet. So, the prosecution case is riddled with several discrepancies which go to the root of the matter rendering it unsafe to be acted upon.

x It is respectfully submitted that, the investigation officer has filed the charge sheet in 2 parts for having found sufficient material against both the drivers. Essentially the case which is made out is a case of contributory negligence against both the drivers. 1t is submitted that the Petitioner cannot be convicted on the count of contributory negligence under the

criminal prosecution as the said type of negligence consists of absence of ordinary care. Now in the present case such evaluation of evidence has not been undertaken either by the trial court as well as the lower appellate court.

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 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 o months for the offence punishable U/S. 279 IPC, two years of the offence punishable US. 338 IPC & 3 months for the offence punishable US. 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 maximum prescribed sentence 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.

x The Petitioner seeks the leave of this Hon'ble Court to urge other grounds at the time of hearing of the matter.

6. Sri R.S.Lagali, learned counsel for the revision

petitioner reiterating the above grounds contended that in

a matter of this nature when the investigation agency

themselves have found that the accident has occurred on

account of the involvement of both the vehicles and filed

charge-sheet, the action on the part of the State that in

not challenging the order of acquittal passed in Criminal

Appeal No.26/2014 by judgment dated 29.04.2015 has

resulted in grave injustice and caused serious prejudice to

the rights of the present revision petitioner and sought for

allowing the revision petition in-toto.

7. He also pointed out that when the accident has

occurred in the middle of the road, attributing the

negligence only to the driver of the passenger auto

rickshaw is in correct which has not been properly

appreciated by both the courts below and therefore sought

for allowing the revision petition.

8. In this regard, he relies on the judgment of the

Hon'ble Apex Court in the case of Mohammed Aynuddin

Alias Miyam vs. State A.P reported in 2000 Supreme

Court Cases (Cri) 1281 and drew the attention of this

Court to para 8 of the judgment, wherein, it is held as

under:-

"8. The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer"

9. Alternatively, Sri R.S.Lagali, submits that in

the event this Court is of the opinion that the conviction is

to be maintained, having regard to the peculiar facts and

circumstances of this case, this Court may consider by

imposing only reasonable fine and set-aside the order of

imprisonment.

10. Per contra, learned High Court Government

Pleader supports the impugned judgments by contending

that the mere fact that the State has not challenged the

judgment passed in Criminal Appeal No.26/2014 could not

come in the way of this court in exercising its revisional

jurisdiction in appreciating the validity of the impugned

judgments involved in the above present case and sought

for dismissal of the revision petition.

11. He further argued that the material on record

also indicate that the revision petitioner was also negligent

and therefore, his negligence cannot be washed away by

the State's in action in not filing the further appeal or

revision against the order passed by the learned Judge in

the first Appellate Court in Criminal Appeal No.26/2014

and sought for dismissal of the revision petition.

12. Insofar as the alternate submission is

concerned, learned High Court Government Pleader

contends that in the wake of the raise in the road traffic

accident resulting in death of human being, courts cannot

take a lenient view and sought for dismissal of revision

petition in-toto.

13. In view of the rival contentions raised and

having regard to the limited revisional jurisdiction, the

following points would arise for consecration are :

1. Whether the finding recorded by the trial Magistrate and confirmed by the first Appellate Court that accused/revision petitioner is guilty of the offences punishable under Sections 279 and 304A of IPC and Section 187 of the M.V.Act is suffering from legal infirmity, patent factual defect, error of jurisdiction and thus call for interference ?

2. Whether the sentence is excessive ?

Regarding Point No.1 :-

14. In the case on hand, the revision petitioner

being the driver of the passenger auto rickshaw bearing

Reg.No.KA-33-7803 on 01.02.2011 at about 5.00 p.m.

which met with an accident with another goods auto

rickshaw bearing Reg.No.KA.No.28-A-8853 is not in

dispute. Due to the impact of the accident, one of the

passengers of the passenger auto rickshaw namely

Lalesab, having lost his life who is the father of Rasulbi

who is examined as PW.4 is also not in dispute.

15. Admittedly, the panchanama contents clearly

depict that the accident has taken place in the middle of

the road. Police after receipt of the complaint, laid charge-

sheet against the driver of the passenger auto rickshaw as

well as goods auto rickshaw. The learned Magistrate took

cognizance of the offences alleged against both the drivers

in the respective charge-sheets and proceeded with the

trial in C.C.Nos.85 and 86 of 2011.

16. However, there is a procedural error

committed by the learned Magistrate while dealing with the

case in C.C.No.85/2011 inasmuch as he has permitted the

defence counsel of Mr.Md.Rafiq driver of the goods auto

rickshaw bearing Reg.No.KA-28-A-8853 to cross-examine

PW.3 who has been partly treated as hostile by the

Additional Public Prosecutor. However, in such cross-

examination, an answer is elicited that the accident has

occurred due to the negligence of the driver of the

passenger auto rickshaw. The same has prejudiced the

right of the accused in C.C.No.85/2011 who is the revision

petitioner. Such a procedure is totally alien to the criminal

jurisprudence inasmuch it is between the prosecution and

the defence counsel the trial has to take place and non

party or a third party to the case could not have been

permitted to cross-examine the witness.

17. It is also elicited in the evidence of PW.3 that

he does not know how the accident has taken place. Since

PW.3 has been treated as partly hostile by the prosecution

and he has specifically answered that he does not know

how the accident has occurred, the same has not seriously

affected the rights of the revision petitioner.

18. The fact remains that the investigating agency

having filed charge-sheet against the both drivers, it

should be presumed that the accident is occurred on

account of negligence of both the drivers.

19. The same has been rightly appreciated by the

learned Magistrate while recording an order of conviction

against the both the drivers in C.C.Nos.85/2011 and

86/2011. It is also undisputed fact that both the drivers

had preferred an appeal before the first Appellate Court in

Criminal Appeal Nos.25 and 26 of 2014. However, while on

re-appreciation of material on record the learned Judge in

the first Appellate Court confirmed the order of conviction

passed against the revision petitioner in Criminal Appeal

No.25/2014 whereas set-aside the order passed by the

learned Magistrate as against the driver of the goods auto

rickshaw in Crl.A.No.26/2014. The first Appellate Court

allowed the appeal filed by the driver of the goods auto

rickshaw. It is also pertinent to note that the appeal filed

by the revision petitioner and the appeal filed by the driver

of the goods vehicle were dealt by two different Judges in

the first Appellate Court. However, there was no objection

either by the State or by the revision petitioner all along in

this regard. Therefore, the argument that is put-forth on

behalf of the revision petitioner that the procedural lapses

has vitiated entire trial that cannot be countenanced in

law.

20. Having appreciated the material evidence

available on record insofar revision petitioner, the trial

Magistrate rightly recorded an order of conviction which on

re-appreciation by the first Appellate Court came to be

confirmed by the learned Judge in the first Appellate Court.

21. However, the fact that the charge-sheet being

filed against the opposite vehicle i.e., goods auto rickshaw

cannot be lost sight of by this Court while appreciating the

case of the revision petitioner in the light of the judgment

relied on by the learned counsel for the revision petitioner

in Mohammed Aynuddin's case referred to supra.

22. Further, in the matter of this nature, the law

expects the revision petitioner to have his version placed

on record either by examining himself or filing a written

submission as is contemplated under Section 313(5) of

Cr.P.C. In the case on hand, the accused/revision

petitioner has simply denied all the incriminatory

circumstances including the accident while recording the

accused statement. Therefore, the consequences in law

has been rightly followed by the learned trial Magistrate

and re-appreciated by the learned Judge in the first

Appellate Court. The view of this Court in this regard is

supported by the judgment of the Hon'ble 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."

23. Applying the legal principles enunciated in the

above decision in the absence of any version placed by the

revision petitioner about the incident on record any version

of his placed on record, this Court is of the considered

opinion that there is no legal infirmity or perversity or

patient factual defect which would facilitate this Court to

interfere with the finding recorded by the learned trial

Magistrate insofar as the offences punishable under

Sections 279 and 304 of IPC and Section 187 of M.V.Act.

Accordingly, in view of the foregoing discussion, point No.1

is answered in the negative.

Regarding point No.2 :

24. Insofar as the sentence is concerned, the

inaction of the trial Magistrate has passed the following

sentences ;-

Default Offence Imprisonment Fine sentence Section 279 Six months `1,000/- Simple of IPC imprisonment for two months Section 304A Two years `2,000/- Simple of IPC imprisonment for four months Section 187 Three months `500/- Simple of M.V.Act imprisonment for one month

Said sentence is confirmed by the first Appellate Court.

25. In the case on hand, since the State did not

prefer any appeal against the order of acquittal passed by

the first Appellate Court against the driver of the goods

auto rickshaw bearing Reg.No.KA-28-A-8853 and the

investigation agency was of the considered opinion that

the accident has occurred on account of negligence of both

the vehicles, penalizing the driver of the passenger auto

rickshaw alone and imprisoning him cannot be

countenanced in the peculiar facts and circumstances of

the case.

26. However, since the negligence of the

passenger auto rickshaw has also contributed in death of

Lalesab who was passenger in the auto rickshaw of the

revision petitioner, this Court is of the considered opinion

that if the fine is enhanced to `50,000/- on all counts

inclusive of the fine imposed by the trial Magistrate and

out of the fine amount a same `45,000/- is ordered to be

paid as compensation to the Rasulbi who is the daughter of

the complainant, by setting aside the imprisonment taking

note of the peculiar facts and circumstances ends of justice

would be met. Accordingly, point No.2 is answered and

following order is passed ;-

ORDER

Criminal Revision Petition is allowed in part.

While maintaining the order of the conviction of the

accused/revision petitioner for the offences punishable

under Sections 279 and 304A of IPC and Section 187 of

M.V.Act, the revision petitioner is directed to pay a fine of

`50,000/- in all for the aforesaid offences by setting aside

the imprisonment ordered by the trial Magistrate confirmed

by the first Appellate Court.

Out of the fine amount recovered, a sum of

`45,000/- be paid as compensation to the daughter of the

deceased Lalesab, Smt.Rasulbi who is examined as PW.4

under due identification.

The time is granted for the revision petitioner to

deposit the balance fine amount till 15.02.2022.

Office is directed to return the trial court records

along with the copy of this order forthwith.

Ordered accordingly.

Sd/-

JUDGE sn