Santhosh K J vs State Of Karnataka By
2022 Latest Caselaw 10209 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF JULY 2022

                        BEFORE

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

 CRIMINAL REVISION PETITION No.1109 OF 2012

BETWEEN:

SANTHOSH K.J.
S/O K.A.R. JAYAMURTHY
AGED ABOUT 26 YEARS
R/O THUNGA BUILDING
HOUSE NO.4, DAR
BHADRAVATHI-577 301.

                                         ... PETITIONER
(BY SRI C H SRINIVAS, ADVOCATE)

AND:

STATE OF KARNATAKA BY
PAPER TOWN POLICE STATION
BHADRAVATHI - 577 301.
                                       ... RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 AND 401 CR.P.C. PRAYING TO SET ASIDE THE
CONVICTION OF SENTENCE AND ORDER PASSED BY THE
HON'BLE    ADDITIONAL   CIVIL   JUDGE  AND   JUDICIAL
MAGISTRATE      FIRST    CLASS,    BHADRAVATHI,    IN
C.C.NO.3489/2011 DATED 08.12.2011 AND AGAINST THE
ORDER PASSED BY THE HON'BLE FAST TRACK JUDGE,
BHADRAVATHI IN CRIMINAL APPEAL NO.6/2012 DATED
31.08.2012 AND ACQUIT THE PETITIONER.
                                          Crl.RP.No.1109/2012
                              2


     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING AND RESERVED ON 24.06.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:

                          ORDER

The present petitioner was accused in

C.C.No.3489/2009, in the Court of the learned Principal

Civil Judge & J.M.F.C at Bhadravathi, (henceforth for

brevity referred to as the "trial Court"). By its judgment

dated 08.12.2011, the trial Court convicted the accused for

the offence punishable under Sections 279, 304(A) of the

Indian Penal Code, 1860 (henceforth for brevity referred to

as the "IPC") and was sentenced accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.6/2012, before the learned

Presiding Officer, Fast Track Court, Bhadravathi,

(henceforth 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.RP.No.1109/2012

31.08.2012. 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 the date 03.08.2009, at about

7.20 p.m., on a bypass road of NH 206, within the limits of

complaint police station, the accused drove his Maruthi

Omni Van bearing registration No.KA-18-A-1010 in a rash

and negligent manner and dashed to deceased Yesaiah

who was riding his TVS Champ Moped bearing registration

No.KA-14-K-5706, due to which accident, said Yesaiah

sustained injuries and succumbed to it on the spot and

thereby the accused has committed offence punishable

under Sections 279 and 304 of IPC.

3. The accused appeared in the trial Court, pleaded

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

accused, the prosecution got examined in all eight

witnesses from PWs.1 to PW-8 and got marked documents

from Exs.P-1 to P-15. On behalf of the accused, no witness Crl.RP.No.1109/2012

was examined, however, he got produced and marked two

documents from Exs.D-1 and D-2.

4. The learned counsel for the petitioner and

learned High Court Government Pleader for the

respondent-State are physically present in the Court.

5. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court

records.

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

henceforth referred to as per their rankings before the trial

Court.

7. After hearing the learned counsel from both side,

the only point that arises 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 Crl.RP.No.1109/2012

Penal Code, 1860, warrants any interference at the hands of this Court?

8. Learned counsel for the petitioner, in his

arguments, submitted that he is not disputing the

occurrence of the accident, date, time and place mentioned

in the charge sheet, involvement of the alleged vehicles

and also the death of Yesaiah due to the injures sustained

by him in the accident, however, he would dispute that

there was rash and negligent driving on the part of the

accused. He submitted that the prosecution could not able

to prove the alleged rash and negligent driving of the

Maruthi Omni Van by the accused. He, further,

submitted that, the evidence of PW2 does not inspire

confidence to believe since he has stated in his

cross-examination that after hearing the noise of accident,

he rushed there, however, he could not say exactly on

whose fault the accident occurred. He also submitted that

PW3 is a relative, as such, his evidence is highly doubtful.

Further, he has not shown any consistency in his evidence.

He has also stated that the Motor Vehicle Inspector was Crl.RP.No.1109/2012

not examined and that the trial Court has committed error

in relying on Section 106 of the Evidence Act,1872. With

this, he submitted that the judgment of conviction

deserves to be set aside.

9. The learned High Court Government Pleader, in

his arguments, submitted that PWs.2 and 4 are the main

supporting witnesses, who have clearly narrated the

accident and rash and negligent driving of the Maruthi

Omni Van by the accused. He has also submitted that

Ex.P14 confirms that the accused was the driver. With this,

he submits that the impugned judgment does not warrant

interference at the hands of this Court.

10. Among the eight witnesses examined by the

prosecution, admittedly PW1-Abhilash, who is the son of

the deceased Yesaiah is not an eye witness to the incident,

but he is the first informant. He has only informed the

police about the occurrence of the road traffic accident and

also involvement the two vehicles including the alleged Crl.RP.No.1109/2012

vehicle Maruthi Omni Van bearing registration

No.KA-18-A-1010, still this witness has stated in his

evidence that from the scene of offence, he could arrive at

a conclusion that the accident has occurred solely due to

the fault of the driver of the Maruthi Omni Van. Apart from

identifying his complaint at Ex.P1, he has also identified

the photographs of the accident including the vehicles

therein at Exs.P2 to P5. Though he has stated that the

accused was the driver of the Maruthi Omni Van but

admittedly it was a hearsay.

11. PW2-Yesu son of Bakkaiah, has stated that he

was the eyewitness to the incident. He has categorically

stated that the accident in question has occurred on a

bypass road on 03.08.2009 at about

7.15 pm or 7.20 pm., while the deceased Yesaiah was

going on his TVS Champ Moped bearing registration

No.KA-14-K-5706 from Krishnappa Circle towards

Ujjainipura road. At that time, a Maruthi Omni Van

bearing registration No.KA-18-A-1010 coming from Crl.RP.No.1109/2012

Ujjainipura side in high speed, dashed to the TVS Champ

Moped of Yesaiah. Due to which accident, the TVS Champ

Moped fell in a ditch on the left side of road and the

Maruthi Omni Van proceeded and fell in a ditch on the right

side of the road. He has also stated that having sustained

injuries to his head, chest and hand, the rider of the TVS

Champ Moped Yesaiah died on the spot. Stating so, the

witness has identified the accused in the Court stating that

he had seen the driver of the said Maruthi Omni Van at the

time of accident, however, he fled away from the scene by

leaving his vehicle in the spot immediately after the

accident. He has specifically stated that the accident has

occurred solely due to the fault of the accused, it is

because of his rash and reckless driving of the vehicle. He

even went to the extent of saying that at the time of

accident the speed of the Maruthi Omni Van bearing

registration No.KA-18-A-1010 was more than 80 Kms. per

hour. He too has identified the dead body of the Yesaiah

in the photographs from Exs.P3 to 5. This witness was Crl.RP.No.1109/2012

subjected to a detailed examination from the accused side

wherein he has adhered to his original version. Though an

attempt was made in his cross-examination that the road

was wide enough, as such, it was not possible to occur an

accident as narrated by him, but the witness has not

admitted the same as true. Further, even this witness has

stated that there was no street lamp in the spot, however,

he has stated that it was not dark at that time and still

some light was there.

12. PW3-Solomon also has stated that he too was

an eyewitness to the incident and has seen the road traffic

accident which had involved Maruthi Omni Van and a TVS

Champ Moped. However, he has stated that he has not

seen the driver of the Maruthi Omni Van vehicle since he

had already ran away from the place. He has also stated

that though the Maruthi Omni Van came speedily on the

road, however, he cannot say at whose fault the accident

has occurred.

Crl.RP.No.1109/2012

13. PW.4-Ravikumar has stated that at the time of

accident he was coming from Ujjainipura side to HUDCO

colony, at that time, a Maruthi Omni Van bearing

registration No.KA-18-A-1010 overtook him and going

forward dashed to TVS Champ Moped bearing registration

No.KA-14-K-5706 coming from the opposite direction, the

rider-Yesaiah of the said TVS Champ Moped sustained

injures and died. He has also stated that after causing

accident, the Maruthi Omni Van also went on the side of

the road and fell in a ditch. He has identified the accused

in the Court catagorically stating that he was the driver of

the offending Maruthi Omni Van. Even in his cross-

examination, he adhered to his original version though he

has told that the deceased was a person known to him but

stated that the deceased was not his relative.

14. PW5-Immanual, has stated that at the time of

accident, he was going on the motorcycle on the same

road, at that time, he has seen the occurrence of the

accident involving the alleged vehicles. He too has stated Crl.RP.No.1109/2012

that the Maruthi Omni Van dashed to the TVS Champ

Moped, which was coming from the opposite side. The

witness has identified the photographs of the accident.

He has stated that the rider of the TVS Champ Moped-

Yesaiah sustained injuries in the accident and succumbed

to it. He catagorically stated that the accident in question

has occurred due to the fault of the driver of the Maruthi

Omni Van.

15. PW6-Abdul Munaf, has stated that the deceased

Yesaiah died due to the road traffic accident occurred on

03.08.2009 about 7.30 pm. He came to know about the

accident while he was in his office. Immediately, he rushed to

the place and noticed that Yesaiah was dead. A Maruthi

Omni Van and TVS Champ Moped were found on the either

side of the road. Though he has stated that the accident

has occurred due to the fault of the Maruthi Omni Van

vehicle, but, has also stated that he has not seen the

driver of the said vehicle. Even in the cross-examination,

he adhered to his original version.

Crl.RP.No.1109/2012

16. PW7-Umapathi, Police Inspector of the

complaint police station has stated that after receiving the

complaint as per Ex.P1 he submitted First Information

Report to the Court.

17. PW8-K.M.Basavaraja, Circle Inspector of Police

has stated about he conducting the investigation in the

matter and filing the charge sheet.

18. The evidence of prosecution witnesses, more

particularly, PWs.1, 2, 3, 4 and 5 mentions about the

involvement of the Maruthi Omni Van bearing registration

No.KA-18-A-1010 and a TVS Champ Moped bearing

registration No.KA-14-K-5706 in the road traffic accident,

has occurred on 03.08.2009 at about 7.20 pm. The evidence

of PWs.1 to 6, further mentions that in the said accident,

Yesaiah was the rider of two wheeler and he sustained

injuries in the accident and succumbed to it. The place of

accident as narrated by these witnesses has been further Crl.RP.No.1109/2012

corroborated in the scene of offence panchanama at Ex.P7.

The death of Yesaiah, in the accident is corroborated not

only by the evidence of PWs.1 to 6 but also by the inquest

panchanama at Ex.P8 and the post mortem report at

Ex.P9. The Doctor, apart from giving detailed account of

injuries noticed on the body of the deceased, has also

opined that death was due to hemorrhage shock, as a

result of injuries to vital organs like lungs and brain.

19. The IMV report at Ex.P15 gives a detailed

description of the damages sustained by the vehicles. The

damages caused to Maruthi Omni Van bearing registration

No.KA-18-A-1010 are on its front side including wind screen

frame, front both doors, front suspension arms etc., and

damages caused to TVS Champ Moped are on front wheel

assembly, shock absorber, fuel tank and head

lights etc.

The evidence of PWs.2 to 5 coupled with Exs.7, 8, 9

and 15, establishes that the accident in question has

occurred on the date, time and place mentioned in the

charge sheet involving the vehicles Maruthi Omni Van Crl.RP.No.1109/2012

bearing registration No.KA-18-A-1010 and TVS Champ

Moped bearing registration No.KA-14-K-5706. The said

evidence and exhibits further establishes that, in the said

accident, the rider of the TVS Champ Moped-Yesaiah

sustained injuries and succumbed to it on the spot.

The evidence of PWs.2 and 4, further shows that, it

was the accused, who was the driver of the offending

vehicle. In the cross-examination of these witnesses, it

was not specifically denied that the accused was the driver

of the offending vehicle. However, it was denied that

there was rash and negligent driving on the part of the

driver of the Maruthi Omni Van.

20. Regarding the alleged rash and negligent

driving on the part of the driver of the Maruthi Omni Van

vehicle, the argument of the learned counsel for the

petitioner was that the evidence of PWs.2, 3 and 4 was not

established that there was any rash and negligent driving

on the part of the driver. PW3, though denies that he was

the relative of the deceased but has stated that the Crl.RP.No.1109/2012

deceased was known to him. However, the said witness,

in his cross-examination from the prosecution side, has

stated that at the time of accident he was going near

HUDCO colony side. However, in his cross-examination,

from the accused side, he has stated that he was going

towards west from Krishnappa Circle. The rough sketch

of scene of offence at Ex.P13 shows that the alleged

HUDCO colony cross is on the eastern side of the said

Krishnappa Circle. Thus, if the witness was going towards

west from Krishnappa Circle, possibility of he seeing the

accident which has taken place on the eastern side of the

said circle near HUDCO colony would not arise. As such,

his evidence that, he was the eyewitness to the incident

does not inspire confidence to believe. However, the

evidence of other witnesses namely PWs.2 and 4 apart

from establishing that they were the eyewitnesses to the

incident, has also established that the accident in question

occurred solely due to the fault of the driver of the Maruthi

Omni Van. They have specifically stated that the said Crl.RP.No.1109/2012

vehicle was coming in a high speed and dashed to TVS

Champ Moped of the deceased Yesaiah, who was coming

from the opposite direction. They have also given

description that after the accident, the TVS Champ Moped

of Yesaiah fell to the ditch of the left side of the road

whereas the offending vehicle Maruthi Omni Van after

dashing proceeded a little further and fell in a ditch on the

right side of the road. The rough sketch of the scene of

offence at Ex.P13 also shows that the place of accident is

on the extreme left side of the road from Krishnappa Circle

towards a Barandooru on the eastern side of the Circle.

The Maruthi Omni Van shown to have moved from

Barandooru to Krishnappa Circle i.e., towards west, while

moving it is shown to have come to the extreme right side

and dashed to the TVS Champ Moped and then proceeded to

its extreme left side and fell into the ditch.

The scene of offence panchanama at Ex.P7 mentions that

the accident has occurred on a bye pass road, which is of 24 feet

wide from the spot of accident. The tyre mark of Maruthi Omni Crl.RP.No.1109/2012

Van has been printed towards southern side for about a

distance of 150 feet, which itself corroborates the evidence of

eyewitnesses to the incident, more particularly, PWs.2 and 4,

that the Maruthi Omni Van was going in a high speed, which

according to PW1 was at a speed of 80 Kms. per hour. The

said Maruthi Omni Van since was going in such a high

speed remained uncontrollable even after dashing against the

TVS Champ Moped, otherwise there would not have been

imprint of tyre mark for not less than 150 feet on the road.

It is for the said reason, the vehicle which was not

controllable due to its speed and rash and negligent driving,

ultimately went on the other side of the road and fell to a

ditch.

The damages found by the Motor Vehicle Inspector in

his report at Ex.P15 and the photographs of the

damaged vehicle at Ex.P2 also corroborates the evidence of

PWs.2 and 4 and clearly establishes that the accident in

question has occurred solely due to rash and negligent

driving of the Maruthi Omni Van by its driver. As such,

the arguments of the learned counsel for the Crl.RP.No.1109/2012

petitioner that rash and negligent driving of the vehicle by

the accused is not established is not acceptable. On the

other hand, both the trial Court and the Session Judge's

Court, after notifying the evidence placed before them in

their proper perspective, have rightly arrived at a

conclusion holding that the accused is guilty of the offence.

Since the finding of both the Courts holding the accused is

guilty of the offence punishable under Sections 279 and

304A of the IPC are based upon proper appreciation of the

evidence placed before them, I do not find any reason to

interfere in the said finding.

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.

20. In the instant case, the present

petitioner/accused was sentenced to pay a fine of `1,000/-

, in default, to undergo simple imprisonment for a period

of one month for the offence punishable under Section 279 Crl.RP.No.1109/2012

of IPC and to undergo simple imprisonment for a period of

six months for the offence punishable under Section 304-A

of IPC, in default, to pay a fine of `2,000/-. 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

reason to interfere in it.

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.

Registry to transmit a copy of this order to both the

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

with the records immediately.

Sd/-

JUDGE TL