Prabhakar S/O Havappa Bhuya vs The State Through
2022 Latest Caselaw 795 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 18TH DAY OF JANUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION No.200007/2016


BETWEEN

PRABHAKAR S/O HAVAPPA BHUYA
NOW AGED 26 YEARS, OCC:DRIVER
R/O MARKHAL VILLAGE
TQ & DIST:BIDAR
                                         ...PETITIONER

(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)

AND

THE STATE THROUGH
JANWADA POLICE STATION
TQ & DIST: BIDAR
                                      ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

    THIS CRL.RP IS FILED U/S 397 R/W SEC.401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
03.11.2015 OF PRL. DIST. & SESSIONS JUDGE, BIDAR IN
CRL. APPEAL NO.13/2012 AND FURTHER BE PLEASED TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 03.03.2012 OF I ADDL. CIVIL JUDGE
AND JMFC-II, BIDAR IN C.C. NO.2066/2010, FOR THE
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OFFENCES PUNISHABLE U/SEC.279 AND 304 (A) OF IPC,
IN THE INTEREST OF JUSTICE.

     THIS PETITION COMING ON FOR 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 - State and perused the records.

2. The present revision petition is filed by the

accused, who has suffered an order of conviction in

C.C.No.2066/2010 on the file of I Additional JMFC, Bidar

and sentenced as under:

Default Offence Imprisonment Fine sentence Section 279 Three months `500/- Simple of IPC imprisonment for ten days Section 304-A Six months `1,000/ Simple of IPC - imprisonment for twenty days

3. The said judgment was confirmed in Criminal

Appeal No.13/2012 by judgment dated 03.11.2015 on the

file of Principal District and Sessions Court, Bidar.

4. Brief facts of the case are as under:

On 09.04.2010, at about 1.00 p.m., a complaint

came to be lodged on the file of Janawada police station

alleging that on 09.04.2010, at about 1.00 p.m.,

Prabhakar being the driver of Tata Indica Car bearing

No.H-04/CD-8996 on Bidar - Janawada road dashed

against Sachin S/o. Laxman and said Sachin sustained

grievous injuries and he was shifted to Government

Hospital, Bidar. In hospital, despite best treatment,

Sachin succumbed to the injuries and therefore, police

registered a case against the accused for the offences

punishable under Sections 279 and 304-A of IPC. After

registering the case, the police investigated the matter,

seized the car and ordered for interim custody of the car to

the owner of the car after getting the indemnity bond

executed and laid a charge sheet against the

accused/revision petitioner for the aforesaid offences.

5. Thereafter, the learned trial Magistrate after

securing the presence of the accused framed charges. The

accused pleaded not guilty and therefore, trial was held.

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

in all six witnesses were examined as PWs.1 to 6 and eight

documents have been relied on by the prosecution, which

were exhibited and marked as Exs.P1 to P8.

7. On conclusion of the evidence of the

prosecution, accused statement as is contemplated under

Section 313 of Cr.P.C. was recorded, wherein, the accused

denied all the incriminatory materials. However, the

accused did not place his version on record about the

incident either by examining himself or by placing written

submission as is contemplated under Section 313(5) of

Cr.P.C.

8. Thereafter, the learned trial Judge appreciating

the material evidence on record and hearing the parties,

passed an order of conviction, convicting the accused for

the offences punishable under Section 279 and 304-A of

IPC as stated supra.

9. Being aggrieved by the said conviction

judgment, the accused preferred an appeal before the

District Court at Bidar in Criminal Appeal No.13/2012. The

learned Judge in the first appellate Court after securing the

records and hearing the parties in detail, by judgment

dated 03.11.2015 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.

10. In the revision petition, following grounds have

been raised:

1. The Judgments of conviction passed by the courts below are manifestly illegal, arbitrary and against the facts and evidence on record and also against the well established principles governing the criminal law and hence deserve to be set aside.

2. That, the courts below have failed to appreciate that, the prosecution case and the evidence adduced on behalf of it is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there1s not even an iota of evidence, let alone prima-facie evidence to connect the petitioner with the alleged accident and both the courts below have failed to appreciate the evidence in its right perspective and hence the Judgments of courts below has resulted in grave miscarriage of justice.

3. It is a cardinal principle of criminal law that to prove the guilt of an accused, the prosecution must first establish and fix the identity of the accused and both the courts below have failed to appreciate the fact that the prosecution has miserably failed to establish the identity of the accused in this particular case i.e., that the present petitioner was the person who caused the accident, firstly, in view of the admitted and very specific case of the prosecution according to FIR that after the accident the driver of the vehicle stopped his vehicle a little distance away from the accident spot and he was caught red handed by the eye witnesses and on enquiry he revealed his identity, but whereas the eye witnesses account is totally contradictory to this case that was projected in the FIR and the eye witnesses categorically have given

evidence to the effect that the driver of the vehicle drove away with his vehicle and could not be stopped and in this background, the courts below lost sight of the fact that identity of the accused driver ought to have been fixed by the prosecution in the first place. Secondly, it is humbly submitted that in view of the clear admissions given by the star witnesses of the prosecution PW's 1, 3 & 4 that they are identifying the driver for the first time in the Court during the course of trial is not a substantive identification and in view of the fact that no TI. Parade was conducted during the course of investigation, the courts below should have acquitted the petitioner on this ground itself.

4. That, it is humbly submitted that both the courts below committed a grave error in law by equating speed with rashness and negligence. Even there is no evidence whatsoever to show the approximate speed of the vehicle. In the absence of such evidence, the testimonies of PW:1, 3 & 4 cannot be taken into consideration to convict the accused.

5. That, the courts below have given a complete goby on a vital point of non examination of medical officer who conducted the P.M.E. of the deceased and issued the wound certificate, the motor vehicle inspector and the owner of the

vehicle involved in the instant case. It is humbly submitted that the prosecution is guilty of suppressing material evidence and non examination of important and material witnesses is fatal to the case of the prosecution and has resulted in prejudice to the petitioner herein as he was denied of proving his defence and hence the interference of this court is sought for.

             6.      That,     the       courts     below      have
      proceeded       on     assumptions,         surmises         and

conjectures to base their judgments and the both the courts below have given a complete goby to the basic concept of proof beyond the reasonable doubt and this has resulted in grave miscarriage of justice.

7. Some other grounds will be urged at the time of arguments.

11. Reiterating the above grounds, the learned

counsel for the revision petitioner vehemently contended

that both the Courts have not properly appreciated the

material evidence on record and sought for allowing the

revision petition.

12. He also pointed out that the moot question

that was to be decided by both Courts was whether the car

bearing No.MH-04/CD-8996 was really involved in the

incident, inasmuch as, oral testimony of PW.3 clearly

shows that he is an eyewitness to the incident, after hitting

to Sachin, the driver of the car ran from the spot along

with the car and therefore, there is no clinching evidence

on record to show that the car bearing No.MH-04/CD-8996

was involved in the incident and accused/revision

petitioner was the driver of the said car. He also

alternatively contended that the sentence is excessive and

sought for taking lenient view.

13. Per contra, learned High Court Government

Pleader supports the impugned judgments and contended

that both the Courts have rightly appreciated the material

evidence on record and sought for dismissal of the revision

petition in toto.

14. 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/revision petitioner is guilty of the offences punishable under Sections 279 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?

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

Sachin on account of the injuries sustained by him in a

road traffic accident that occurred on 09.04.2010, at about

1.00 p.m. on Bidar - Janawada road is established by the

prosecution by placing oral and documentary evidence on

record.

16. After registering the case, the police

investigated the matter and during the course of

investigation, seized car bearing No.MH-04/CD-8996. The

owner of the vehicle approached the jurisdictional police.

The jurisdictional police have taken interim custody of the

car in question. At that juncture, he has executed an

indemnity bond vide Ex.P7, wherein, it has been

mentioned that car bearing No.MH-04/CD-8996 was

involved in the incident and he has also mentioned as

follows:

"»ÃVgÀĪÁUÀ ¢£ÁAPÀ 09-04-2010 gÀAzÀÄ £ÀªÀÄä PÁj£À ZÁ®PÀ£ÀÄ ©ÃzÀgÀ¤AzÀ J£ï.J£ï.J¸ï.PÉ ¥sÁåPÀÖjUÉ ºÉÆÃUÀÄwÛgÀĪÁUÀ ©ÃzÀgÀ OgÁzÀ (©) gÀ¸ÉÛ, ªÀÄgÀP¯ À ï ¹ÃªÀiÁzÀ°è ªÀÄzsÁåºÀß ¸ÀĪÀiÁgÀÄ 1300 UÀAmÉUÉ ºÉÆÃUÀÄwÛgÀĪÁUÀ gÀ¸ÉÛ §¢¬ÄAzÀ JzÀÄjUÉ §gÀÄwÛzÀÝ ªÀ£ª À ÁgÀ¥½ À î UÁæªÀÄzÀ ¸Àaãï vÀAzÉ ®PÀëöät ªÁWÀªÉÆgÉ FvÀ¤UÉ rQÌAiÀiÁV ¨sÁj UÁAiÀÄUÉÆAqÀÄ ©ÃzÀgÀ f¯Áè D¸ÀàvA Éæ iÀÄ°è G¥ÀZÁgÀ ¥ÀqA É iÀÄĪÁUÀ C°è ¥s® À PÁjAiÀiÁUÀzÉ CzÉà ¢£À 2-45 UÀAmÉUÉ ªÀÄÈvÀ ¥ÀnÖzÀÄÝ EzÀgÀ §UÉÎ ©ÃzÀgÀ UÁæ«ÄÃt ¥Éưøï oÁuÉAiÀÄ°è UÀÄ£Éß £ÀA.58/2010 PÀ®A 279 304 (J) L¦¹ ¥ÀPæ ÁgÀ PÉøï zÁR¯ÁVzÀÄÝ."

17. The said statement came to be recorded by the

police at an undisputed point of time. It is a voluntary

statement given by the owner of the car in question.

Therefore, the main thrust of the argument putforth on

behalf of the revision petitioner that the car bearing

No.MH-04/CD-8996 is not involved and the revision

petitioner is not the driver of the said car cannot be

countenanced in law. Further, the cross examination of

the prosecution witnesses also does not indicate that such

a contention was raised on behalf of the accused before

the trial Court.

18. Further, the eyewitness - PW.3 has specifically

stated about the rash and negligent driving of the revision

petitioner, which resulted in Sachin sustaining fatal injuries

and he succumbed to the injuries, which occurred in a road

traffic accident. All these factors have been rightly

appreciated by the trial Court while recording the order of

conviction against the accused/revision petitioner.

Moreover, in a matter of this nature, the accused is bound

to have his version placed on record so as to visualize the

scene of offence by the trial Magistrate.

19. In this regard, this Court gainfully places its

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. 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."

20. Applying the above legal principles enunciated

to the case hand, it is seen that the accused/revision

petitioner has failed to place his version on record and

therefore, the trial Magistrate followed the consequences in

law in convicting the accused.

21. The learned Judge in the first appellate Court

on re-appreciation of the material evidence on record, has

not only confirmed the finding recorded by the trial

Magistrate, but, also supplemented the reasons for said

conclusion.

22. This Court having regard to the limited scope

of revisional jurisdiction reconsidered the material

evidence on record. This Court on such reconsideration

does not find any legal infirmity or perversity or patent

factual defect in the finding recorded by the trial Court or

by the learned Judge in the first appellate Court.

Inasmuch, there is no version at all placed by the

accused/revision petitioner to take a different view in the

matter. Accordingly, point No.1 is answered in the

negative.

23. Regarding point No.2: The Trial Magistrate has

passed an order of conviction and sentence as referred to

supra. The State has not preferred any appeal in seeking

enhancement of the sentence. However, whenever, there

is a single death in a given case, the separate punishment

of imprisonment is not permissible for the offence under

Section 279 of IPC.

24. In this regard, it is worth to quote the

judgment of the Hon'ble Apex Court in the case of

Gurubasavaraj @ Bennishettappa .vs. State of

Karnataka, reported in (2012) 8 Supreme Court

Cases Page 734.

25. Applying the principles of law enunciated in the

said case to the case on hand, the separate sentence of

three months ordered by the trial Magistrate confirmed by

the first appellate Court for the offence punishable under

Section 279 of IPC cannot be countenanced in law, as the

same would merge with the higher offence under Section

304-A of IPC. Accordingly, point No.2 is answered partly

in the affirmative and following:

ORDER

Revision petition is allowed in part.

While maintaining the order of conviction for the

offence under Sections 279 and 304-A of IPC against the

accused/revision petitioner, the separate sentence of three

months simple imprisonment ordered by the trial

Magistrate for the offence under Section 279 of IPC is

hereby set aside. Rest of the sentence and fine stands

unaltered.

The accused/revision petitioner is given time till

15.02.2022 to surrender before the trial Court for serving

remaining part of the sentence.

Office is directed to return the trial Court records

with a copy of this order forthwith to facilitate the trial

Magistrate to issue modified conviction warrant/order.

Sd/-

JUDGE

Srt