Lingaraju S/O Basappa vs State Of Karnataka
2022 Latest Caselaw 9881 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF JUNE, 2022

                             BEFORE

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

     CRIMINAL REVISION PETITION No.483 OF 2012

BETWEEN:

Lingaraju
S/o. Basappa
Aged 43 years
Residing at
Chikkanayaka's Street
Kollegal Town
Chamarajanagara District.
                                                    ..Petitioner
(By Sri. Prabhugoud B. Tumbigi, Amicus Curiae)

AND:

State of Karnataka,
By Kolelgala Town P.S.
Rep. by S.P.P.
High Court Buildings
Bangalore - 560 001.
                                                   .. Respondent

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

                                   ****
      This Criminal Revision Petition is filed under Section 397 (II)
of the Code of Criminal Procedure, 1973, praying to set aside the
judgment passed in C.C.No.45/2009 dated 25-11-2010 by Civil
                                                 Crl.R.P.No.483/2012
                                2


Judge (Sr.Dvn.) & JMFC, at Kollegal and confirmed by Appellate
Court in Criminal Appeal No.49/2010 at Kollegal and acquit from all
the charges punishable under Section 279, 304-A IPC awarded by
Civil Judge (Sr.Dvn.) & JMFC at Kollegal in C.C.No.45/2009 dated
25-11-2010 and confirmed by Sessions Judge in Criminal Appeal
No.49/2010 dated 09-03-2012 including the fine amount, 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 accused in C.C.No.45/2009,

in the Court of the learned Senior Civil Judge and Judicial

Magistrate First Class, Kollegala, (hereinafter for brevity

referred to as "the Trial Court"), who, by the judgment of

conviction and order on sentence dated 25-11-2010 of the

Trial Court, was convicted for the offences punishable under

Sections 279 and 304A of the Indian Penal Code, 1860

(hereinafter for brevity referred to as "the IPC") and was

sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.49/2010, in the Court of the learned Crl.R.P.No.483/2012

Sessions Judge and Presiding Officer, Fast Track, Kollegal,

(hereinafter for brevity referred to as the "the Sessions

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

appeal, confirming the impugned judgment of conviction and

order on sentence passed by the Trial Court. It is challenging

the judgments passed by both the Trial Court as well the

Sessions Judge's Court, the accused/revision 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 05-04-2008, at about 6:00

p.m., on Kollegala-Mysore Road, in front of M/s. Anitha Tiles

Depot, within the limits of complainant Police Station, the

Motor Cycle bearing registration No.CKI-4501 being ridden by

the accused in a rash and negligent manner, dashed to the

Motor Cycle bearing registration No.KA-10/J-6470 that was

being ridden by the deceased Rajappa, who was going towards

Mudigunda village and caused the road traffic accident, in Crl.R.P.No.483/2012

which, the deceased Rajappa sustained injuries and

succumbed to it in the Hospital, while under treatment and

thereby has committed the offences punishable under Sections

279 and 304A of the IPC.

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 eleven (11)

witnesses from PW-1 to PW-11 and got marked documents

from Exs.P-1 to P-10. However, neither any witness was

examined nor any documents were got marked on behalf of

the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

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

records were called for and the same are placed before this

Court.

Crl.R.P.No.483/2012

6. In view of the fact that the learned counsel for the

revision petitioner (accused) failed to appear before this Court

on several dates of hearing, this Court by its reasoned order

dated 22-06-2022, appointed learned counsel -

Sri. Prabhugoud B. Tumbigi, as the Amicus Curiae for the

revision petitioner/accused, to represent him in this case.

7. Learned Amicus Curiae for the accused/revision

petitioner and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

8. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

Crl.R.P.No.483/2012

10. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

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

11. Learned Amicus Curiae for the revision

petitioner/accused, in his argument submitted that, he would

not deny or dispute the occurrence of the road traffic accident

on the date, time and place mentioned in the charge, the

involvement of the two Motor Cycles mentioned in the charge,

death of deceased Rajappa, due to the injuries sustained by

him in the road traffic accident and also the fact that the

accused was riding the Motor Cycle bearing registration No.

CKI-4501 at that time. He submits that, however, he strongly Crl.R.P.No.483/2012

disputes that there was any rash and negligent riding of the

Motor Cycle on the part of the accused and that the

prosecution has proved the alleged guilt against the accused.

He further submits that the presence of PW-2, the sole eye

witness to the incident, at the spot of the accident, is highly

doubtful. He also submits that the non-examination of the

Motor Vehicle Inspector is also fatal to the case of the

prosecution.

12. Per contra, learned High Court Government Pleader

for the respondent submits that, no doubt, PW-2 alone is the

eye witness, who has supported the case of the prosecution

regarding the involvement of the accused in the commission of

the alleged offences. He submits that, however, the evidence

of PW-2 is trustworthy and has withstood the successful cross-

examination, as such, inspires confidence to believe the same.

He also submits that the undisputed fact like occurrence of

road traffic accident, involvement of two Motor Cycles as Crl.R.P.No.483/2012

mentioned in the charge sheet and the death of deceased

Rajappa having been corroborated by the evidence of PW-2

proves the alleged guilt against the accused, beyond all

reasonable doubts.

13. Among the eleven witnesses examined by the

prosecution, PW-4, the wife of the deceased Rajappa, PW-6 -

mother of the deceased are admittedly hear-say witnesses.

However, their evidence that the deceased Rajappa died in

the road traffic accident which took place on the date

05-04-2008, near Anitha Tiles Depot, is not in dispute.

14. PW-8 - Umesh, the brother-in-law of the deceased

Rajappa, though has spoken about the death of Rajappa in the

road traffic accident, however, he too is a hear-say witness

and has spoken nothing about the involvement of the accused

in the occurrence of the said road traffic accident.

15. PW-9 - Shantharaju was also projected as an eye

witness to the incident and also as the person shifting the Crl.R.P.No.483/2012

injured to the Hospital, however, except stating that he has

seen the dead body of deceased Rajappa who died in the road

traffic accident, the witness has not supported the case of the

prosecution any further.

16. PW-1 - Kumara is a pancha for the scene of offence

panchanama. Though he has supported the case of the

prosecution in his examination-in-chief and got marked the

scene of offence panchanama at Ex.P-1, however, in his cross-

examination, he has stated that he does not know the

contents of the said panchanama to which he has signed in

the Police Station.

17. The other two witnesses, i.e. PW-3 - Shanmukha

and PW-5 -Shivakumar were projected as the panchas to the

inquest panchanama at Ex.P-3. Among them, PW-3 has fully

supported the case of the prosecution, whereas PW-5 has not.

PW-3 has stated that according to panchanama, the death of

the deceased was due to the road traffic accident. Since Crl.R.P.No.483/2012

PW-3 was not cross-examined from the accused's side, his

evidence has remained un-denied.

18. After the above witnesses who have marginally

supported the case of the prosecution, the main witness upon

whom the prosecution mainly banked upon was, PW-2 - the

complainant. The said witness, in his examination-in-chief has

stated that on the date of the alleged incident, he was present

at the place of accident, which was in front of Anitha Tiles

Depot, on a National High Way, and at that time, he saw a

Motor Cycle coming from Mudigunda side towards Kollegala

and the rider of the motor cycle was riding it in high speed and

with negligence. Having come in such a manner, the said

vehicle dashed to the motor bike in which the deceased

Rajappa was travelling. Immediately, he shifted Rajappa to

Government Hospital, where he died. In that connection, he

has lodged a complaint with the Police, which he has identified

at Ex.P-2. He has identified the accused in the Court, stating Crl.R.P.No.483/2012

that he was the rider of the offending Motor Cycle, which

dashed against the Motor Cycle of the deceased Rajappa.

In his cross-examination, he adhered to his original

version and has given more details as to why he was near the

place of the accident, at the time of accident.

19. Since the witness has stated that there were no

shops nearby the Anitha Tiles Depot, the learned Amicus

Curiae for the petitioner/accused submitted in his argument

that there was no reason for PW-2 to be present near the

place of the accident. Since the witness (PW-2) knows the

deceased, he has come and given a false evidence, as such,

his evidence is not trustworthy.

No doubt, PW-2, in his cross-examination has stated that

there were no shops nearby the place of the accident, but, by

that itself, it cannot be disbelieved that PW-2 ought not to

have been there. It is not necessary that a person's presence Crl.R.P.No.483/2012

can be inferred only when there are shops nearby a particular

place which he has visited.

In the instant case, PW-2, has, in his cross-examination,

made it clear that, he was not near the spot of the accident,

waiting for his friend, but he has stated to the Police that he

had been there for his personal work. The said statement of

PW-2 was not further denied or disputed in his cross-

examination. Therefore, the witness, apart from stating in his

examination-in-chief that, he was there at the spot of the

accident, has also shown the reason for his presence at the

spot of the accident, which reason given by him has remained

un-denied, as such, the argument of the learned Amicus

Curiae for the petitioner (accused) that the presence of PW-2

in the spot of the accident, is doubtful, is not acceptable.

20. PW-2, in his evidence has stated that, the Motor

Cycle that was being ridden by the accused was coming in

high speed and in a negligent manner. He has specifically Crl.R.P.No.483/2012

attributed both speed and negligence on the part of the rider

of the Motor Cycle (accused). In his cross-examination, the

said evidence of the witness that the accused was riding the

Motor Cycle at high speed and in a negligent manner, has not

been specifically denied. A general suggestion to the effect

that the accident has occurred not at the fault of the accused,

was made to the witness, however, the witness has not

admitted the same as true. Thus, the specific statement of

attributing some overt act on the part of the accused that he

was riding the Motor Cycle in a rash and negligent manner,

has remained specifically un-denied and un-disputed.

21. The Motor Vehicles Accident Report which is marked

at Ex.P-10 shows that, the front wheel mud guard, right side

foot rest and the crash guard of the two wheeler of the

deceased were got damaged, where as, the right side foot

rest, hand bar, crash guard and front indicators of the Motor

Cycle of the accused were damaged, which means, the right Crl.R.P.No.483/2012

side front portion of the offending vehicle has got damaged, so

also, the right side front portion of the deceased's vehicle also

has got damaged. According to PW-2, the Motor Cycle of

accused dashed to the Motor Cycle of the deceased, which

vehicle was coming from the opposite direction.

According to the rough sketch prepared by the

Investigating Officer, which is at Ex.P-9, the accident in

question has taken place at a spot which was 27 ft. away

from left side of the road on the direction in which the Motor

Cycle of the accused was going towards Kollegala. The

distance between the side of the road and the spot of

accident on the other side of the road was only 3 feet where

the Motor Cycle of the deceased was moving from Kollegala

towards Chamarajanagar side. This sketch corroborates the

evidence of PW-2 that the Motor Cycle coming from

Chamarajanagara direction and moving towards Kollegala,

dashed to the Motor Cycle of the deceased which was coming

from opposite direction. It is for the said reason, the vehicle Crl.R.P.No.483/2012

of the accused is shown to have gone to its extreme right,

crossing the mid line of the road, thus there is 27 ft. distance

from the side of the road to the place of accident in the

direction towards Kollegala, in which direction the accused was

riding on his Motor Cycle. Thus, on the road which was of

30 ft. width, the deceased was going on its extreme left side,

leaving 3 ft. distance on his left side.

The above is further corroborated by the Motor Vehicles

Accident Report, which also, as analysed and observed above,

shows that the right side of both the Motor Cycles, more

particularly of the accused, has sustained damages. This also

corroborates the evidence of PW-2 that the accused's Motor

Cycle went to its extreme right and dashed to the Motor Cycle

of the deceased coming from the opposite side. Thus, it has

resulted in damage to the right front portion of the vehicle of

the accused so also that of the deceased.

Crl.R.P.No.483/2012

22. No doubt, the learned Amicus Curiae for the

petitioner (accused) has contended that the Motor Vehicle

Inspector was not examined in the case by the prosecution.

But, Ex.P-10 marked on behalf of the prosecution in the

evidence of the Investigating Officer, has not been denied or

disputed and the contents of Ex.P-10 also have not been

denied or disputed.

In such a circumstance, merely because of the Motor

Vehicle Inspector is not examined would not prevent from

accepting Ex.P-10, the contents of which are also not

disputed. Therefore, the argument of the learned Amicus

Curiae for the petitioner (accused) on the point, is also not

acceptable.

23. Lastly, the learned Amicus Curiae for the petitioner

contended that, the rash and negligent driving on the part of

the accused has not been proved beyond reasonable doubt by

the prosecution.

Crl.R.P.No.483/2012

As already observed above, PW-2 has specifically stated

that the accused was riding his Motor Cycle at a high speed

and in a negligent manner. The said statement of PW-2 has

remained un-denied and un-disputed. Further, Ex.P-10 - the

Motor Vehicles Accident Report shows that the right side of the

vehicle of the accused has sustained damages. The sketch at

Ex.P-9 shows that the vehicle of the accused has gone to its

extreme right almost nearer to the right side margin of the

road just 3 ft. away from it. Thus from the spot of the

accident itself, it shows that the accused had no reason to go

upto a stretch of 27 ft. from the left side of the road and dash

to another Motor Cycle coming from the opposite direction.

Had the accused been not in high speed or riding the vehicle

in a negligent manner, the accident in question would not

have happened. Thus the evidence of

PW-2 that the accused was riding his Motor Cycle at a high

speed and in a negligent manner stands corroborated by the Crl.R.P.No.483/2012

documentary evidence at Ex.P-9 and Ex.P-10 and establishes

rash and negligent driving on the part of the accused.

24. The death of deceased Rajappa was due to the

injuries sustained by him in the road traffic accident, is not

denied or disputed. PW-7 - Doctor, who conducted autopsy of

deceased Rajappa, has also stated in his evidence that, after

conducting the Post-Mortem Examination, he issued a report

as per Ex.P-5. The said Post-Mortem Examination Report

which has remained un-denied and un-disputed would go to

show that the deceased Rajappa among other injures had also

sustained a comminuted fracture of the right parietal bone

which was depressed into the brain matter. The Doctor has

opined that the death of the deceased was due to

haemorrhage and shock as a result of head injury sustained

consequent upon the road traffic accident. Therefore, it is

clearly established that the death of deceased Rajappa was Crl.R.P.No.483/2012

due to the injuries sustained by him in the road traffic

accident, as narrated by PW-2.

25. It is considering these aspects and appreciating and

analysing the materials placed before them in their proper

perspective, since both the Trial Court and Sessions Judge's

Court have held the accused guilty of the alleged offences and

have prescribed the sentence proportionate to the gravity of

the proven guilt, I do not find any reason to interfere in the

impugned judgments of conviction and order on sentence

passed by both the courts.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

dismissed as devoid of merits.

[ii] The revision petitioner/accused to

surrender before the Senior Civil Judge and Judicial

Magistrate First Class, Kollegala, within forty-five

(45) days from today and to serve the sentence.

Crl.R.P.No.483/2012

The Court, while acknowledging the services rendered by

Sri. Prabhugoud B. Tumbigi - the learned Amicus Curiae for

the revision petitioner (accused), recommends honorarium of

a sum of not less than `4,000/- payable to him by the

Registry.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records, forthwith, for doing needful in the matter.

Sd/-

JUDGE

BMV*