Ravikumar vs The State Of Karnataka
2022 Latest Caselaw 8473 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF JUNE, 2022

                           BEFORE

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

   CRIMINAL REVISION PETITION No.837 OF 2013

BETWEEN:

Ravikumar S/o. Mallappa
Aged about 40 years,
R/o. Bydare Halli,
Kottaya Hobli, Hassan
Presently residing at:
Ponkra Maistry Compound,
Dandakeri, Yeyyadi,
Mangalore - 575 001.
                                                   ..Petitioner

(By Smt. Pooja Kattimani,
For Sri.R.B. Deshpande, Advocate)

AND:

The State of Karnataka
By Police Circle Inspector,
Panambur Circle,
New Mangalore, D.K. 575 001.
                                                 .. Respondent

(By Sri.K. Nageshwarappa, High Court Govt. Pleader )

                                ****
      This Criminal Revision Petition is filed under Section 397
and 401 of the Code of Criminal Procedure, 1973, praying to set
aside the judgment and order dated 18-09-2013 passed by the
IV Additional District and Sessions Judge, Dakshina Kannada,
Mangalore in Cr.A.No.70/2007 and the order dated 22-01-2007
                                                Crl.R.P.No.837/2013
                                2


passed by JMFC (III Court) Mangalore, D.K. in C.C.No.5217/2005
and acquit the petitioner all the charges levelled against him, in
the interest of justice.

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

                           ORDER

The present petitioner was tried by the Court of the

Judicial Magistrate First Class (III Court), Mangalore,

Dakshina Kannada (hereinafter for brevity referred to as

"the Trial Court") in C.C.No.5217/2005, for the offences

punishable under Sections 279, 338 and 304A of the Indian

Penal Code 1860 (hereinafter for brevity referred to as "the

IPC") and was convicted for all the three alleged offences

and sentenced accordingly by its judgment of conviction and

order on sentence dated 22-01-2007.

Challenging the same, the accused preferred an

appeal in Criminal Appeal No.70/2007, before the Court of

the IV Additional District and Sessions Judge, Dakshina

Kannada, Mangalore, (hereinafter for brevity referred to as

"the Sessions Judge's Court") which also, after hearing both

side, by its judgment dated 18-09-2013, dismissed the Crl.R.P.No.837/2013

appeal, confirming the judgment of conviction and order on

sentence passed by the Trial Court in C.C.No.5217/2005,

for the offences punishable under Sections 279, 338 and

304A of the IPC.

It is challenging the said judgments of conviction and

order on sentence, the accused (petitioner) has preferred

the present revision petition.

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

Trial Court was that, on the date 29-06-2005, at about 5:00

p.m., the deceased one Sri. Mohammed Lathif, rider of the

Motor Cycle bearing Registration No.KA-19/U-2379 and

CW-2 - Sri. Sirajuddin, as a pillion rider of the said Motor

Cycle were proceeding from Krishnanagara towards Bondel

Circle. While they were in the Bondel circle, at that time,

the present petitioner (accused), being the driver of a

private passenger Bus bearing Registration No.KA-19/

B-5651, who was proceeding from Mangaluru towards

Bondel circle, came in a high speed and drove the Bus in a

rash and negligent manner and dashed against the Motor Crl.R.P.No.837/2013

Cycle of the deceased rider which resulted in the road traffic

accident in question. Due to the said accident, the

deceased rider of the Motor Cycle, i.e. Mohammed Lathif

and the pillion rider Sirajuddin (CW-2) were thrown out at a

distance and the deceased died on the way to the Hospital.

CW-2 sustained injuries in the accident, however, after

medical treatment, recovered from the injuries.

3. Based upon a complaint registered with them, the

respondent Police registered a Criminal Case against the

accused and after investigation, filed the charge sheet

against the accused for the offences punishable under

Sections 279, 338 and 304A of the IPC.

4. Since the accused pleaded not guilty and claimed

to be tried in the Trial Court, the prosecution, in order to

prove the alleged guilt against the accused, examined in all

ten witnesses from PW-1 to PW-10 and got marked

documents from Exs.P-1 to P-13(a) and closed its side. On

behalf of the accused, neither any witness was examined

nor any documents were marked.

Crl.R.P.No.837/2013

5. After hearing the arguments from both side, the

Trial Court convicted the accused for all the three alleged

offences, i.e. for the offences punishable under Sections

279, 338 and 304A of the IPC. It sentenced the accused to

undergo simple imprisonment for a period of one year and

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

of the said fine, to undergo further simple imprisonment for

one month for all the three offences alleged against him.

6. As observed above, the accused preferred an

appeal before the learned Sessions Judge's Court, which

after hearing both side, dismissed the appeal, confirming

the judgment of conviction and order on sentence passed

by the Trial Court. Challenging the judgments of both the

Trial Court as well the Sessions Judge's Court, the accused

is before this Court, in the present revision petition.

7. The respondent - State is represented by the

learned High Court Government Pleader.

Crl.R.P.No.837/2013

8. The Trial Court and the Sessions Judge's Court's

records were called for and the same are placed before this

Court.

9. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court

and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

11. After hearing the learned counsel for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the order on sentence ordered by the Trial Court and confirmed by the learned Sessions Judge's Court for the offences punishable under Sections 279, 338 and 304A of the Indian Penal Code, 1860, is excessive compared to the gravity of the proven guilt of the accused under the facts and circumstances of the present case?

12. Learned counsel for the petitioner(accused) in her

brief argument submitted that, since there is a concurrent Crl.R.P.No.837/2013

finding about the occurrence of the road traffic accident and

the alleged rash and negligent driving of the Bus by its

driver (the present petitioner), she would not deny or

dispute the occurrence of the accident on the date, time and

place of the road traffic accident mentioned in the charge

sheet and also the involvement of the private passenger

Bus bearing Registration No.KA-19/B-5651 and the Motor

Cycle bearing Registration No.KA-19/U-2379. She further

submitted that she would also not deny or dispute the fact

of CW-2 - Sirajuddin, as a pillion rider, sustaining injuries in

the accident and Sri. Mohammed Lathif, being the rider of

the Motor Cycle sustaining injuries and succumbing to it in

the Hospital.

Learned counsel for the petitioner (accused) further

submits that, she would only bring to the notice of the Court

that, the deceased as well the prosecution witnesses from

PW-1 to PW-5 all hail from the same village and that no

independent witness was examined by the prosecution to

prove the alleged rash and negligent driving on the part of Crl.R.P.No.837/2013

the accused. She further submitted that the very fact that

the accident has occurred in a big circle called Bondel Circle

in Mangaluru, itself would go to show that the heavy vehicle

like the Bus or Lorry cannot go either at a high speed or in a

rash and negligent manner, as such, any rash and

negligent act on the part of the petitioner, being the driver

of the passenger Bus, is highly doubtful.

Further, learned counsel for the accused submitted

that, since the accident has taken place about seventeen

years back and that the accused, apart from growing older

in his age has also incurred several of the family

commitments, the Court may modify and reduce the

sentence to the maximum possible extent.

13. Learned High Court Government Pleader for the

respondent - State, in his argument submitted that, all the

prosecution witnesses have supported the case of the

prosecution, more importantly, PW-1 to PW-5, being the

eye witnesses, have, in unequivocal terms, given the details

of the accident, which clearly establishes the rash and Crl.R.P.No.837/2013

negligent driving on the part of the driver of the passenger

Bus, who is the accused/petitioner herein. He further

submitted that the Bondel Circle at Mangalore, admittedly,

being a very large circle, there is all the possibility of even

heavy vehicles also passing through the said circle in a high

speed. However, he submits that, he would leave it to the

Court regarding the modification or variation in the

sentence ordered by the Trial Court in this matter.

14. Though the petitioner (accused) has taken several

grounds in his memorandum of revision petition, however,

the learned counsel for the petitioner fairly concedes that, in

view of the fact of the prosecution witnesses supporting the

case of the prosecution and by virtue of a concurrent finding

recorded by both the Trial Court as well the Sessions

Judge's Court, she would not press the concurrent finding of

both those Courts holding the accused guilty for the

offences punishable under Sections 279, 338 and 304A of

the IPC.

Crl.R.P.No.837/2013

15. Independent of the above submission made by

the learned counsel for the petitioner (accused), if the

materials placed before this Court in the form of evidence

are perused, it is seen that PW-1 (CW-1) - Mohammed

Mustaf S/o.Abdul Hameed, who is the complainant in this

case claims himself to be an eye witness to the incident. He

says that at the time of accident, he was sitting in his

autorickshaw as an autorickshaw driver in Bondel Circle

itself and has seen the accident by himself. He has stated

that, as was seen by him, the deceased rider of the Motor

Cycle along with the pillion rider (CW-2) - Sirajuddin was

going slowly towards Bondel Circle. At that time, the

offending passenger Bus, in its attempt to take a turn in the

Circle dashed to the Motor Cycle, due to which, the accident

in question has occurred and that both the riders in the

Motor Cycle sustained injuries. He has further stated that

immediately, the injured persons were shifted to the

Hospital and he lodged a complaint before the Police, which

he has identified at Ex.P-1. He has also stated that the Crl.R.P.No.837/2013

scene of offence panchanama as per Ex.P-2 was also drawn

in his presence.

16. PW-2 (CW-3)- Shekhabba claiming himself to be

one of the passengers travelling in the alleged offending

Bus has stated that he was sitting in the second seat in the

Bus, as such, he could able to see the driving of the Bus by

its driver and also the manner as to how the accident in

question has occurred. He too has specifically stated that,

the Bus was being driven at the time of accident by its

driver in high speed even though the Bus had left the tar

road and moving in the mud road (negotiating) in the

Circle. It is in the said process, the Bus dashed against the

Motor Cycle causing injuries to both the riders of the Motor

Cycle. He has specifically averred that the accident in

question has occurred due to the rash and negligent driving

on the part of the driver of the offending Bus.

17. PW-3 (CW-4) - Mohammed Mustaf,

S/o. Umarabba also claiming himself to be an eye witness

present near the Bondel Circle and selling fish at the time Crl.R.P.No.837/2013

of accident, has given a similar statement regarding the

cause of accident as to what PW-1 has stated in his

evidence that, the accident has occurred solely due to the

rash and negligent driving by the driver of the Bus.

18. PW-4 (CW-5) - Arif, S/o. Umarabba, claiming

himself as one more eye witness and present near the

Circle selling fish has blamed the driver of the Bus, alleging

that he was not only in high speed at the time of

negotiating in the Circle, but also rash and negligent in his

manner, which resulted in the Bus dashing against the

Motor Cycle, causing injuries to both its rider and pillion

rider.

Thus, PW-1 to PW-4 have uniformly stated that they

were the eye witnesses to the alleged accident and the

incident in question has occurred solely due to the rash and

negligent driving of the Bus by its driver. Their evidence

given in their examination-in-chief could not be shaken in

their cross-examination.

Crl.R.P.No.837/2013

19. PW-5 (CW-8) - Abdul Basheer and PW-6 (CW-9) -

Badramuneer have spoken about the Police drawing the

scene of panchanama as per Ex.P-2 and the Investigating

Officer drawing the rough sketch of the spot of the accident

as per Ex.P-4, in their presence.

20. PW-7 (CW-7) - Devappa Bhandari, has stated

that he was the Conductor of the offending Bus at the time

of the accident. Though he has not attributed any specific

overt act of rash and negligent driving on the part of the

driver of the offending Bus, but has stated that when the

driver of the Bus was turning the Bus in the Circle, the

Motor Cycle hit the Bus and the riders fell down. It is only

his sole evidence, who has stated that the Motor Cycle hit

the Bus. However, the fact cannot be ignored that, being a

Conductor of the Bus, he was supposed to be and expected

to be inside the Bus and is presumed to be inside the Bus at

the time of accident. Whereas PW-1 to PW-4, being

outsiders and independent witnesses have stated about

the possibility of their presence in the spot as an Crl.R.P.No.837/2013

autorickshaw driver waiting for customers an inmate in the

bus and two vendors of the fish being present in the Circle

as sellers of the fish. That being the case, the presence of

PW-1 to PW-4 in the spot and they witnessing the

occurrence of the accident and the manner of occurrence of

the accident stated by them appears to be more nearer to

the truth than PW-7 being the Conductor of the Bus who

was expected to remain inside the Bus telling that the Motor

Cycle itself came and hit the Bus.

21. A perusal of the rough sketch at Ex.P-4 also

would go to show that, the two wheeler Motor Cycle was

going from North to South side whereas the Bus while

taking turn in Bondel Circle, appears to have come nearer

to the center of the circle thus causing dashing of the Bus to

the Motor Cycle. Thus the evidence of PW-1, PW-2,

PW-3 and PW-4, who are the eye witnesses to the

occurrence of accident corroborates the manner of the

occurrence of the accident as shown in the rough sketch at

Ex.P-4 and goes to show that the accident in question has Crl.R.P.No.837/2013

occurred due to the rash and negligent driving by the driver

of the offence Bus.

22. The Motor Vehicles Inspector's report which is at

Ex.P-10 speaks about the damages caused to both the

vehicles, wherein he has noticed a small dent on the front

radiator grill of the Bus and press of the front side bumper

at the center of the Bus and the damage to the headlight

and 2" dent on right side of the petrol tank of the two

wheeler. The same leads to an inference that, the Bus has

dashed to the Motor Cycle from its front side, which

corroborates the manner of occurrence of accident as

mentioned by PW-1 to PW-4. Therefore, it is not just a

faulty driving of the Bus by its driver but it is also a rash

and negligent driving on the part of the petitioner, being

driver of the Bus, which has stood proved beyond all

reasonable doubts.

23. It is not in dispute that CW-2- Sirajuddin has

sustained injuries in the accident. The deceased

Mohammed Lathif, apart from sustaining injuries in the road

traffic accident later succumbed to the same. The Wound Crl.R.P.No.837/2013

Certificate of CW-2 at Ex.P-11 shows that the said injured

Sirajuddin was treated at the A.J. Hospital and Research

Centre, Kuntikana, Mangalore, where he was admitted with

the history of a road traffic accident at Bondel Circle,

Mangaluru, on 29-06-2005 at around 5:00 p.m. The Doctor

has noticed five simple injuries and two grievous injuries on

the person of the injured CW-2. The grievous injuries

includes a fracture of left temporal bone. Thus, the offence

punishable under Section 338 of the IPC also stands proved

as against the accused.

24. The inquest panchanama at Ex.P-5 shows that the

panchas have opined that the deceased had sustained

injuries in the accident and succumbed to the same.

Further, the Post-Mortem examination report at Ex.P-6

shows that the deceased had sustained several injuries on

his head and corresponding depressed fracture and there

was protruding brain matter from his skull. Right knee was

also severely injured, there was lacerated wound over front

and inner aspect of the right leg below knee, exposing the Crl.R.P.No.837/2013

muscle and there was fracture of tibia and fibula. Thus, it

shows that the deceased had sustained multiple grievous

injuries including head injury. The Doctor has opined that

the deceased died due to complications arising as a result of

the head injury. Thus, it is established that it is because of

the road traffic accident, the deceased sustained multiple

grievous injuries and on account of the said multiple

grievous injuries, he died.

Thus, both the Trial Court as well the Sessions

Judge's Court, after appreciating these aspects have rightly

held the accused guilty of the alleged offences punishable

under Sections 279, 338 and 304A of the IPC.

25. Though the accused was found guilty of all the

three offences punishable under Sections 279, 338, 304A of

the IPC, the Trial Court, considering the fact that among

these three offences, Section 304A being the greater one,

has sentenced the accused in general without any

bifurcation to each of the offences. It has sentenced the

accused to undergo a simple imprisonment for a period of one Crl.R.P.No.837/2013

year and also to pay a fine of a sum of `5,000/- and in

default of payment of the said fine, to undergo further

simple imprisonment for one month.

26. The learned counsel for the petitioner (accused)

in her argument submitted that the sentence ordered by the

Trial Court which was further confirmed by the learned

Sessions Judge's Court is on the higher side. The offence

being nearly seventeen years' old and the accused also

since has grown older and also incurred several

commitments towards his family and dependents, her

request to this Court is to take a lenient view in the matter

preferably confining the sentence of imprisonment only to

the quantum of fine.

27. Learned High Court Government Pleader while

opposing the said submission regarding the sentence made

by the learned counsel for the petitioner (accused)

submitted that, considering the nature of the offences

proved against the accused and the death of an individual Crl.R.P.No.837/2013

and injuries to an injured person, the circumstances

warrants that maximum punishment be imposed against the

accused. However, he submitted that since the Trial Court

has already shown some consideration, the circumstance

does not warrant showing any further relaxation.

28. 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, which becomes disproportionate to the gravity of

the proven guilt against the accused.

29. In the instant case, two persons though are said

to be injured in the accident, however, one among them

later succumbed to the injuries sustained by him in the road

traffic accident. The accused is said to be the driver, who is

shown to have been aged about 32 years as on the date of

the accident which comes to about 49 years as on date.

30. Learned counsel for the petitioner (accused)

submits that, the petitioner has aged dependent parents and Crl.R.P.No.837/2013

children whose education and health of the parents are to

be taken care of by himself. She also further contends that

the petitioner being the driver of private Bus, does not

even have any security of his job also.

31. In the light of all the above mitigating

circumstances, which the learned counsel for the petitioner

(accused) has placed before the Court and also after

analysis and weighing the circumstances of the case, I am

of the view that the sentence of imprisonment though

cannot be taken away, however, considering the special

circumstances of the case, a slight modification in the

sentence can be considered. It is only to that limited

extent, interference in the impugned judgments is

warranted.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition is allowed in

part;

Crl.R.P.No.837/2013

[ii] While confirming the judgment of conviction

passed by the Court of the Judicial Magistrate First

Class (III Court), Mangalore, Dakshina Kannada, in

C.C.No.5217/2005 dated 22-01-2007, holding the

accused (petitioner herein) guilty for the offences

punishable under Sections 279, 338 and 304-A of the

IPC, which was further confirmed by the IV Additional

District and Sessions Judge, Dakshina Kannada,

Mangalore, in Criminal Appeal No.70/2007, dated

18-09-2013, the order on sentence passed by the

Trial Court and confirmed by the Sessions Judge's

Court alone stands modified as below:

(a) The sentence of imprisonment ordered

by the Trial Court is reduced and confined to six

months' simple imprisonment. The amount of fine

imposed and the default sentence remains intact.

Crl.R.P.No.837/2013

(b) The sentence modified is common to the

proven guilt for all the three offences punishable

under Sections 279, 338 and 304A of the Indian

Penal Code, 1860.

(c) The revision petitioner(accused) - Ravi

Kumar, resident of Dandakeri, Yeyyadi,

Mangalore, to surrender before the Court of the

Judicial Magistrate First Class (III Court),

Mangalore, Dakshina Kannada, within forty-five

(45) days from today and serve the sentence

imposed upon him.

(d) Barring the above, there are no other

modifications carried out in the impugned

judgments passed by the Trial Court as well the

Sessions Judge's Court.

The petitioner (accused ) be furnished with a free copy

of this order, immediately.

Crl.R.P.No.837/2013

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, immediately.

Sd/-

JUDGE

BMV*