Sri.Dharmoji @ Dharmarav Kadam vs State Of Karnataka
2022 Latest Caselaw 10180 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JULY 2022

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.816 OF 2021

BETWEEN:

Sri Dharmoji @ Dharmarav Kadam,
S/o Pandu Kadam,
(Age about 50 years),
Kaveri Nagar Shaha Bajar,
Gulbarga-585 101.                           .. Petitioner

 ( By Sri Lokanatha R., Advocate )

AND:

State of Karnataka
R/by East Traffic Police Station,
Shivamogga-577 201.                         .. Respondent

 ( By Sri K.Nageshwarappa, HCGP)

     This Criminal Revision Petition is filed under Section
397(1) read with Section 401 of Cr.P.C. with the following
prayer:

    Wherefore, it is prayed that this Hon'ble Court may be
pleased to allow this appeal and set aside both the judgment
and order dated 03.02.2021 passed by the learned
I Addl.Sessions Judge at Shivamogga in Criminal Appeal No.89
of 2019 and also the judgment and order 11.03.2019 passed by
the learned III Addl.Civil Judge and J.M.F.C. Shivamogga in
C.C.No.2322 of 2015, in the interest of justice and equity.
                                                    Crl.R.P.No.816/2021
                                    2


      This Criminal Revision Petition coming on for Admission
through Physical Hearing/Video Conferencing Hearing this day,
the Court made the following:

                                 ORDER

The present petitioner was tried as accused by the

Court of learned III Addl.Civil Judge & J.M.F.C.,

Shivamogga, (hereinafter for brevity referred to as the

`trial Court') in C.C.No.2322/2015, for the offences

punishable under Sections 279, 304-A of Indian Penal

Code, 1860 (hereinafter for brevity referred to as the

`IPC') and was convicted by its judgment of conviction and

order on sentence dated 11.03.2019 and was sentenced

accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.89/2019, before the learned

I Addl.District and Sessions Judge, Shivamogga,

(hereinafter for brevity referred to as the `Sessions

Judge's Court'), which after hearing both side, dismissed

the appeal filed by the accused by its judgment dated Crl.R.P.No.816/2021

03.02.2021. Being aggrieved by the same, the accused

has preferred the present revision petition.

2. The summary of the case of the prosecution in the

trial Court was that on 13.02.2015, at 5.30 p.m., when

deceased Chandrashekar was proceeding towards a village

called Harige from Shivamogga in Hero Honda Splendor

motorcycle bearing registration No.KA-14-ED-0495 along

with his friend by name Kumar as a pillion rider, the motor

vehicle Lorry being driven by the accused and bearing

registration No.KA-28-A-3279 coming from the back side

of the motorcycle in a rash and negligent manner

endangering the human life, dashed against the motor bike

on its hind portion and ran over the bike, as a result of

which, the pillion rider Kumar sustained fatal injuries and

succumbed to the injuries on the spot and the rider

Chandrashekar also sustained injuries and while he was

being shifted to hospital, he succumbed to the injuries on

the way and thus, the accused has committed the offences

punishable under Sections 279 and 304-A of IPC.

Crl.R.P.No.816/2021

3. The accused appeared in the trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the guilt

against the accused, the prosecution got examined in all

eight witnesses from PW-1 to PW-8 and got marked

documents from Exs.P-1 to P-17. However, neither any

witness was examined nor any documents were got

marked on behalf of the accused.

4. The learned counsel for the petitioner and learned

High Court Government Pleader for the respondent-State

are physically present in the Court.

5. Though this matter is listed for admission, with the

consent from both parties, the matter was taken up for

arguments on main on merits.

6. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court

and Sessions Judge's Court's records.

Crl.R.P.No.816/2021

7. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

8. After hearing the learned counsel from both side,

the only point that arise for my consideration in this

revision petition is:

Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 279, 304-A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

9. The learned counsel for the petitioner in his

argument submits that he would not deny or dispute the

occurrence of the road traffic accident on the date, time

and place as mentioned in the charge sheet and also the

involvement of the motorcycle and Lorry shown in the

charge sheet. He further submits that he would not deny

or dispute the death of pillion rider Kumar on the spot and

the death of Chandrashekar, the rider of the motorcycle Crl.R.P.No.816/2021

while taking him to hospital and that their death was due

to the road traffic accident. He also submits that he would

not deny that accused was the driver of the alleged

offending Lorry at the time of accident. However, he

submits that admittedly there were thirteen to fifteen road

humps on the road, as such, driving the Lorry in a rash

and negligent manner would not arise. He also submitted

that about timings of the accident, PW-2 has given two

different versions, as such, his evidence is not trustworthy.

Finally stating that the accused had tried to avoid the

accident which was humanly impossible, learned counsel

for the petitioner prays to the allow the revision petition.

10. Learned High Court Government Pleader in his

argument submitted that evidence of PW-2 and PW-3, who

are eye witnesses to the incident, has clearly established

the guilt of the accused. Both of them have given detailed

account of manner of occurrence of the accident and have

identified the accused in the Court as the driver of the

offending vehicle.

Crl.R.P.No.816/2021

11. Among the eight witnesses examined by the

prosecution, PW-1 - Praveen Kumar, is the complainant.

Admittedly, he is a hearsay witness. He has stated that

after hearing about the occurrence of the accident and

coming to know that his colleague was also an injured in

the accident on 13.02.2015, he, joined by his staff, rushed

to the spot, where he saw the dead body of the deceased

Kumar and a motorcycle and a Lorry, however, the injured

Chandrashekar was shifted to hospital. He has given the

registration number of the Lorry as KA-28-3279. He has

stated that he also went to the hospital where the doctor

declared Chandrashekar as dead. He has identified his

complaint at Ex.P-1.

The witness has further stated that on 17.02.2015,

the police had summoned him to the police station, where

he was shown the driver of the Lorry and about his

identity. The witness has identified the Lorry in the

photograph at Ex.P-2 and a photo showing the injured

fallen in the spot of the accident at Ex.P-3.

Crl.R.P.No.816/2021

In his cross-examination, he admitted that he is only

a hearsay witness and that it is only through the police, he

came to know that accused had committed the accident.

12. PW-2 - Chayabba and PW-3 - Madhu were

examined by the prosecution projecting them as eye

witnesses to the incident. Both these witnesses in their

evidence have supported the case of the prosecution.

PW-2- Chayabba has stated that, in Harige village, he

runs a canteen. On 13.02.2015, at about 5.30 p.m. he

had closed his canteen and was sitting in front of the

same. At that time, he saw the motorcycle coming from

Shivamogga direction on the left side of the road and a

Lorry coming in a high speed behind the said motorcycle,

dashed to it while the motorcycle was going slowly near a

road hump. After dashing to the motorcycle, the said

Lorry dashed to the compound wall of Krishnegowda and

compound wall of his house, due to which, 200 tiles of his

house were damaged. The witness has stated that among

the two motorcyclists, one died on the spot and Lorry was Crl.R.P.No.816/2021

run over on the abdomen of the other rider and as he was

still breathing, he sprinkled water on his head. The

injured was shifted to the hospital, however, he came to

know that he too died later.

The witness has identified the Lorry at Ex.P-2 and

has identified the accused as the driver of the Lorry in the

Court. He has stated that in the spot, he has seen the

driver who ran away from the place of the accident

immediately after the accident. He has specifically stated

that it was due to the fault of driver of the Lorry, the

accident has occurred. He also stated that, as per the spot

shown by him to the police, they drew a scene of offence

panchanama as per Ex.P-4 and a photograph was also

taken at the spot as per Ex.P-5. He stated that, as told to

him by the police, the name of the accused was Dharmoji.

The witness has further admitted in his

cross-examination from the prosecution side that on

17.02.2015, as summoned by the police, he went to the Crl.R.P.No.816/2021

police station and identified the accused in the police

station.

PW-2 adhered to his original version even in his

cross-examination. He admitted a suggestion as true that

there were fourteen to fifteen small humps on the road

before Harige village. He also stated that his house was at

a distance of about 15 to 20 ft. from the hump and about

200 ft. away from the place of the accident, there was a

small circle. He has given further description as to the

height of compound wall of Krishnegowda's house.

He denied a suggestion that the road at the place of

accident was curvy and stated that the road was straight.

He stated that he had come to the canteen at 4.00 p.m. on

the date of the accident. He denied a suggestion that it is

only after hearing the sound of the accident, he rushed to

the spot. However, he has stated that he has seen that

Lorry before it dashed to the compound wall and also

stated that the Lorry was at a speed of 80 KM.

Crl.R.P.No.816/2021

13. PW-3 - Madhu has stated that he was working as

a Cashier in Sreenidhi Wine shop in Harige village. One

Sri Satish was his colleague. On the date of the accident,

while he was standing outside the Wine shop talking to

one Sri Gajendra, he saw the accident. He stated that a

motorcycle was coming from Shivamogga side on the left

side of the road, however, a Lorry coming from the back

side with speed, ran over the said bike and dashed to the

compound gate of Krishnegowda and then to the house of

uncle Chayabba. Consequently, the compound wall of

Krishnegowda and wall of house of Chayabba sustained

damages. The driver of the Lorry got down from the Lorry

and ran away.

The witness has further stated that due to the

accident, one of the rider of the motor bike died on the

spot and the intestine from the abdomen of another

injured had come out. The injured was shifted to hospital.

He specifically stated that the accident had taken place at

the fault of driver of the Lorry. Though this witness stated Crl.R.P.No.816/2021

that he could not identify the accused, however, he stated

that the he had seen the driver of the Lorry in the Police

Station on 17.02.2015 and had identified him. Later, he

identified the accused in the Court.

In his cross-examination, he adhered to his original

version and denied that at the place of accident, the road

was curvy and stated that the road was straight. An

attempt was made to show that he would be busy with the

customers, however, the witness has stated that he would

be busy only after 6.00 O'Clock in the evening. He further

stated that from the place near his shop, where he was

standing, the place of accident, as well as the house of

Chayabba were visible. He has given more description

about the accident stating that left front side of the Lorry

dashed to the hind side of the motorcycle. He denied a

suggestion that it was only after hearing the noise of the

accident, he has seen the accident.

Crl.R.P.No.816/2021

14. PW-4 Satish has stated that the scene of offence

panchanama in the matter has been drawn in his presence

as per Ex.P-4.

15. PW-7 - Gurumurthy and PW-8 - Solaman Raj

have stated that, by showing them the vehicles involved in

the accident, a panchanama as per Ex.P-13 was drawn in

their presence.

16. PW-5 - Chandrashekar, then Police Sub-Inspector

in the complainant-Police Station, has stated about he

receiving the information from the complainant and

registering Crime No.29/2015 in their station for the

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

after submitting FIR to the Court as per Ex.P-10,

conducting inquest panchanama on the dead body of the

deceased as per Ex.P-5 and after identifying the

photograph of the dead body at Ex.P-11, he got the post

mortem examination of the dead body done and handed

over further investigation to CW-29.

Crl.R.P.No.816/2021

17. PW-6 (CW-29) Deepak, has stated about he

continuing the investigation in the matter and drawing of

scene of offence panchanama in the presence of panchas

as per Ex.P-4 and also preparing the rough sketch of the

spot of the accident as per Ex.P-12. Stating that a

photograph was taken at the time of panchanama, the

witness has identified the same at Ex.P-5. He has also

stated that he got the inspection of both the vehicles done

by the Inspector of Motor Vehicles and drawing a seizure

panchanama of the vehicles as per Ex.P-13. He has also

stated that he received the post mortem report as per

Exs.P-8 and P-9 and the Motor Vehicles Inspection report

as per Ex.P-15 and recorded further statements of some of

the charge sheet witnesses. He has also stated that after

completing the investigation, he filed the charge sheet in

the matter on 04.06.2015.

18. From the above evidence of PW-2 and PW-3, the

first point that is clear is that, by making a suggestion to

both the witnesses from the accused side that it was after Crl.R.P.No.816/2021

hearing the noise of the accident, both witnesses saw the

accident and went to the place, the accused has admitted

the presence of PW-2 and PW-3 near the place of the

accident and at the time of the accident. However, both

the witnesses have denied the said suggestion that it was

after hearing the noise of the accident, they saw it, but,

stated that they have seen the occurrence of the accident

while it was occurring.

Though an attempt was made in the

cross-examination of PW-2 that at the time of accident, he

should have gone for namaz to the mosque, the witness

has not stated that he had been to the mosque at the time

of the accident. He has stated about the timings of

namaz, but, he has not stated that he had been to the

mosque to offer prayer. On the other hand, he has stated

that, after closing the canteen at 5.30 p.m., he was sitting

in front of the canteen and that the place of accident which

was hardly 12 to 15 ft. away from his canteen was clearly

visible to him. The sketch of the spot of the offence, which is at Crl.R.P.No.816/2021

Ex.P-12, also shows that both, canteen of Chayabba and

Wine shop, where PW-3 was working, were very near to

the place of the accident and there was no obstruction like

tree or other structure between their canteen and Wine

shop to the place of the accident, as such, they could able

to see the place of the accident from being near to their

canteen and Wine shop.

19. Learned counsel for the petitioner submitted that

about the occurrence of the accident, PW-2 has given

different timings i.e., at one place, he has stated that it

was at 5.30 p.m., but, at the other place, in his

cross-examination, he has stated that it is at 4.00 p.m.

A thorough reading of the evidence of PW-2 does not

show any such confusion. The witness has specifically and

clearly stated that on the date of the accident, he closed

his canteen at 5.30 p.m. and sat in front of his canteen.

Later, in his cross-examination, he has stated that on

the date of accident, he came to the canteen at 4.00 p.m.

and sat. These two timings are for two different acts. The Crl.R.P.No.816/2021

witness stated the timings as 4.00 p.m. is not the time of

the accident, but, that is the time of he going to the

canteen on the date of accident and sitting in the canteen.

The timings as 5.30 p.m. what the witness has stated in

his examination-in-chief is the timing of he closing the

canteen and sitting in front of the canteen. It was at that

time when he had closed the canteen and sitting in front of

the canteen, the road traffic accident had taken place.

The evidence of PW-2 itself shows that he was

running the canteen which was attached to his house

where he was residing. Therefore, the canteen and his

house being attached to each other, he coming from house

to the canteen and sitting there in the evening at

4.00 p.m. and closing the canteen at 5.30 p.m. on the

same evening and sitting in front of the canteen cannot be

called as a discrepancy in the timings stated by the

witness. As such, the argument of learned counsel for the

petitioner that there was discrepancy in the evidence of

PW-2 regarding the timings is not acceptable.

Crl.R.P.No.816/2021

20. Both PW-2 and PW-3 have stated that the

accused was driving the Lorry in a high speed and in a

rash and negligent manner. No doubt, PW-2 in his cross-

examination has admitted a suggestion that there are

about fourteen to fifteen small humps on the road before

reaching Harige village, but, it does not mean that those

humps were very much nearer to the spot of the accident.

No details in that regard were elicited from any of the

witnesses from the accused side. No details of existence

of such number of humps near the place of the accident is

shown in the sketch at Ex.P-12. Before Harige village,

the length of the road can be of any length and the

locations of those fourteen to fifteen humps on the said

road may be at any distance which admittedly are prior to

Harige village. As such, it cannot be imagined that all

those fourteen to fifteen humps were there much nearer to

the place of the accident which had prevented the accused

from driving his Lorry in a rash and negligent manner.

Therefore, the said point of argument of learned counsel Crl.R.P.No.816/2021

for the petitioner that due to the existence of fourteen to

fifteen humps, the Lorry could not have been driven in a

rash and negligent manner is not acceptable.

On the other hand, the evidence of PW-2 makes it

very clear that in the spot of the accident, there was a

hump. The deceased was riding his motorcycle very slowly

to cross that hump. It was at that time, the Lorry which

was coming with a high speed in the same direction, but,

on the back side of the motorcycle, dashed to the said

motorcycle on its rear side.

The said description given by PW-2, which was

further corroborated by the evidence of PW-3, the other

eye witness, go to show that the motorcycle rider had

noticed the hump, as such, he was very slow in

attempting to cross the said road hump. On the contrary,

the driver of the Lorry probably had not noticed the hump,

as such, he continued to maintain the very same high

speed of the Lorry and since a road hump was there in the

spot, it was unnoticed by him and he dashed to the Crl.R.P.No.816/2021

motorcycle. Thus, the very description of the manner of

occurrence of the accident as given by PW-2 and PW-3

that the driver of the offending Lorry was driving it in a

very high speed and he himself dashed to the rear side of

the motorcycle which was going on the extreme left side of

the road, would go to show that the driver of the Lorry was

rash and negligent in his driving.

21. The sketch at Ex.P-12 drawn by the Investigating

Officer also shows that the place of accident was road with

a divider. On each side of the road, the width of the road

was 25 ft. On the extreme left side of the road, the place

of accident is marked. The distance between the said spot

of the accident to the canteen of PW-2 is shown as 15 ft.

and the property of Krishnegowda is shown at a distance of

10 ft. and Sreenidhi Wine shop, where PW-3 was working,

as 30 ft. distance. Therefore, it is crystal clear that

deceased were going on the extreme left side of the road

on motorcycle. The Lorry dashed to the said motorcycle

from its rear side and thereafter, dashed to the properties Crl.R.P.No.816/2021

of Krishnegowda and Chayabba causing damages to their

properties. The said accident could be able to be seen

clearly by both PW-2 and PW-3 who were only at a

distance of 15 ft. and 30 ft. respectively from the place of

the accident. Thus, it is established clearly that it was the

accused who was driving the Lorry and he was driving the

Lorry in a rash and negligent manner.

22. It is not in dispute that both the deceased Kumar

and Chandrashekar were rider and pillion rider respectively

of the motorcycle and both of them sustained injuries in

the accident. The said Kumar died on the spot, whereas,

Chandrashekar while was being shifted to the hospital,

succumbed to the injuries. The evidence of PW-1, PW-2

and PW-3 regarding the death of Kumar on the spot and

death of Chandrashekar succumbing to the injuries while

being shifted to the hospital has not been denied or

disputed. The inquest panchanama at Exs.P-7 and P-8,

which are not been disputed, also shows that the panchas

have opined the death of both the deceased as due to the Crl.R.P.No.816/2021

injuries sustained by them in the road traffic accident

involved in the case.

23. The post mortem report of Kumar B. and

Chandrashekar, which are at Exs.P-8 and P-9 gives a

detailed description of the injuries found on the body of the

persons, including fracture of 2nd to 8th ribs in both the

cases and fracture of skull at multiple sites with respect to

deceased Kumar B. The doctor has opined in both the

cases that the cause of death was due to shock and

haemorrhage as a result of multiple injuries sustained.

Thus, the evidence of PW-1, PW-2 and PW-3, coupled with

inquest panchanama and the post mortem report could

establish that in the said road traffic accident, both Kumar

and Chandrashekar sustained injuries and succumbed to it.

24. The Motor Vehicle Inspector's report, which is at

Ex.P-15, shows that the Lorry had sustained damages on

its front side and the motorcycle had sustained overall

damages. The Motor Vehicle Inspector has opined that the

occurrence of the accident was not due to any mechanical Crl.R.P.No.816/2021

defect of both the vehicles. Thus, it clearly establishes

that the accident in question was not due to any

mechanical defect with the vehicles and in the said

accident, both Kumar and Chandrashekar, the riders of the

motorcycle sustained injuries and succumbed to it.

25. The learned counsel for the petitioner though

contends that the accident was inevitable and the driver of

the Lorry had made his human effort to avoid the accident,

but, there is nothing on record to show the same. None of

the witnesses have spoken about the same in their

evidence nor any documents were produced and marked

as exhibits supporting the said contention. On the other

hand, as observed above, the evidence of PW-2 and PW-3,

who are the eye witnesses to the accident, makes it amply

clear that it was solely due to the rash and negligent

driving of the driver of the Lorry, the accident in question

has taken place.

26. Thus, it is appreciating these evidence, both oral

and documentary, in their proper perspective, both the Crl.R.P.No.816/2021

trial Court, as well the Sessions Judge's Court have rightly

held the accused guilty of the alleged offences.

27. It is the sentencing policy that the sentence

ordered must be proportionate to the gravity of the proven

guilt of the accused. It must not be either exorbitant or

for namesake.

28. In the instant case, the present

petitioner/accused was sentenced to pay a fine of `600/-

for the offence punishable under Section 279 of IPC and to

undergo simple imprisonment for a period of one year and

to pay a fine of `5,000/-, in default of payment of fine, to

undergo simple imprisonment for further period of three

months for the offence punishable under Section 304-A of

IPC. Since in the light of the facts and circumstances of

the case, the sentence ordered by the trial Court and

confirmed by the Sessions Judge's Court being

proportionate to the gravity of the proven guilt against the

accused, I do not find any perversity, illegality or error in Crl.R.P.No.816/2021

the impugned judgments warranting any interference at

the hands of this Court.

21. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition is dismissed as

devoid of merits.

Petitioner/accused to surrender before the trial Court

within 45 days from today and to serve the sentence.

In view of disposal of the main petition itself, the

pending IA.No.1/2021 does not survive for consideration.

Registry to transmit a copy of this order to both the

trial Court and also to the Sessions Judge's Court along

with their respective records forthwith to enable them to

proceed further in accordance with law.

Sd/-

JUDGE

bk/