R Nagaraj vs The State Of Karnataka
2022 Latest Caselaw 3577 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.321/2013

BETWEEN:

R.NAGARAJ S/O RUDRAPPA
AGED ABOUT 34 YEARS
OCC: AGRICULTURIST
R/O SIDDAMAJI HOSUR
SHIVAMOGGA TALUKA
AND DISTRICT-577 201.                     ... PETITIONER

             (BY SRI P.B.UMESH, ADVOCATE FOR
              SRI R.B.DESHPANDE, ADVOCATE)
AND:

THE STATE OF KARNATAKA
BY TUNGA NAGAR POLICE
SHIVAMOGGA-577 201.                      ... RESPONDENT

               (BY SMT.RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 28.01.2013 PASSED
BY THE P.O., FTC-III, SHIVAMOGGA IN CRL.A.NO.101/2012 AND
JUDGMENT AND ORDER DATED 21.03.2012 PASSED BY THE III
ADDL. C.J. AND JMFC, SHIVAMOGGA IN C.C.NO.1241/2010 AND
ACQUIT THE PETITIONER.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                            ORDER

This petition is filed under Sections 397 and 401 of Cr.P.C.,

praying to set aside the judgment and order dated 28.01.2013

passed by the Presiding Officer, Fast Track Court-II, Shivamogga

in Crl.A.No.101/2012 and the judgment and order dated

21.03.2012 passed by the III Additional Civil Judge and JMFC.,

at Shivamogga in C.C.No.1241/2010 and acquit the petitioner

for the charges leveled against him.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The factual matrix of the case of the prosecution is

that on 21.04.2009 at about 5:30 a.m, on Shivamogga-

Bhadravathi By-pass road at Nanjappa Layout, while Ganesh

Naika was driving the Tractor-trailer by loading the mud, this

petitioner being the driver of the Durgamba Bus, drove the same

in a rash and negligent manner and endanger to human life and

dashed against the hind side of the trailer, as a result, an

accident was occurred and the driver of the tractor had sustained

the grievous injuries. Immediately, he was shifted to the hospital

and succumbed to the grievous injuries on the same day.

4. The prosecution in order to prove its case, mainly

relied upon the evidence of P.Ws.2 to 4, who are the

eyewitnesses and also examined the other witnesses PWs.1, 5

and 6 and got marked the documents as Exs.P1 to 7(a). The

defence has not led any evidence. The Trial Court after

considering both oral and documentary evidence, convicted the

accused for the offences punishable under Sections 279 and

304-A of IPC and imposed separate sentence. Hence, an appeal

was filed before the Appellate Court in Crl.A.No.101/2012. The

Appellate Court on re-appreciation of the material available on

record, confirmed the judgment of conviction and sentence and

rejected the appeal. Hence, the present revision petition is filed

before this Court.

5. The main contention of the revision petitioner before

this Court is that, PWs.3 and 4, who have been examined have

not identified the petitioner was driving the bus and mainly relies

upon the evidence of P.W.2, who is the cleaner of the bus. His

evidence suffers from serious legal infirmities and omissions. In

his evidence, it is elicited that no cleaner is appointed to the

Durgamba Bus. Hence, the very presence of P.W.2 is doubtful.

Regarding the alleged incident, the Spot Mahazar - Ex.P1 and

the rough sketch - Ex.P7 are contrary to the evidence of PW.5,

Investigating Officer. Hence, it requires an interference of this

Court.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that,

the Trial Court while considering the evidence particularly, the

evidence of PW.2, who is also the cleaner of the very same bus,

he identified this petitioner. The very contention of the learned

counsel for the petitioner is that this petitioner has not been

identified and the evidence of PWs.3 and 4, do not support the

case of the prosecution and also not comes to the aid of the

petitioner, since there is a specific identification by the cleaner

himself, he has been examined as P.W.2. The very contention of

the sketch and mahazar are contrary to each other also cannot

be accepted.

7. The very case of the prosecution is that he drove the

vehicle in a rash and negligent manner and dashed against the

tractor, as a result, the driver of the tractor was succumbed to

the injures and this incident was also taken place near Mythri

College, in front of the bus, one Tractor was going. He drove the

same in a rash and negligent manner. The learned High Court

Government Pleader for the State also brought to the notice of

this Court paragraph No.16, wherein, the Trial Court has

discussed in detail the material available against the petitioner.

8. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record, the points that would arise for consideration of this

Court are:

(i) Whether both the Courts have committed an error and passed any perverse order and the

order suffers from any legality, correctness and propriety to invoke the revisional jurisdiction?

(ii) What order?

Point No.(i):

9. Having heard the respective counsel and also on

perusal of the material available on record, I have already point

out that the allegation made against this petitioner is that he

drove the vehicle in a rash and negligent manner and hit the

tractor, as a result, the driver of the tractor sustained the

injuries. Immediately, he was shifted to the hospital and he

succumbed to the injuries on the very same day at Wen Lock

Hospital, Mangaluru. The prosecution mainly relies upon the

evidence of PWs.2 to 4, who are the eyewitnesses and the very

contention of the learned counsel for the petitioner is that PWs.3

and 4 have not identified this petitioner that he was the driver of

the Bus. But the fact is that P.W.2, who was working as a

cleaner in the very same bus; he identified the petitioner and

also deposed before the Court that the accident is on account of

the negligence on the part of this petitioner. On account of the

accident, the driver of the Tractor has lost his life and this has

been re-considered by the Appellate Court. The Appellate Court

also taking note of the discussion made by the Trial Court in

paragraph No.16 and also the evidence available on record,

particularly, in paragraph No.22, taken note of the sketch and

place of occurrence. The sketch clearly establishes that the

accident has taken place due to the negligent driving of the bus

and taken note of the evidence of P.W.2, who supported the

evidence of prosecution case. The contents of Exs.P1 and P4

also supported the evidence of P.W.2, particularly, relied upon

the oral evidence of P.W.2 and also the contents of IMV report

and Spot Mahazar, which depicts the damages caused to the bus

as well as the Tractor and comes to the conclusion that the Trial

Court, particularly, considering the material on record, confirmed

the order of conviction and sentence.

10. Having considered the reasoning given by the Trial

Court in paragraph No.16 as well as in paragraph Nos.22, 23 and

24 in the order of the Appellate Court and also looking into the

contents of the grounds urged in the petition and also the

learned counsel for the petitioner urged before this Court that

there was no any identification of this petitioner, cannot be

accepted. P.W.2, who is a cleaner of the bus has categorically

deposed that the accident was occurred due to the negligence on

the part of this petitioner. Apart from that, Exs.P1 and P4

corroborate the oral evidence of P.W.2. When such being the

case, the very contention of the learned counsel for the

petitioner cannot be accepted. On perusal of the material also,

the order of the Trial Court as well as the Appellate Court do not

suffer from any legality, correctness and propriety.

11. The learned counsel for the petitioner would submit

that the sentence imposed for an offence punishable under

Section 279 of IPC., for a period of six months and fine of

Rs.1,000/-, requires to be modified. There is a force in the

contention of the learned counsel for the petitioner that when an

offence under Section 304-A of IPC is invoked, an offence

punishable under Section 279 of IPC merges with a serious

offence punishable under Section 304-A of IPC. Hence, it

requires to be modified and set aside.

12. The learned counsel for the petitioner brought to the

notice of this Court that the judgment of the Apex Court in the

case of State of Punjab v. Saurabh Bakshi reported in

(2015) 5 SCC 182, wherein, the Apex Court regarding

imposing of compensation elaborate discussion was made and in

that case, the Apex Court reduced the sentence from one year to

six months. In the case on hand also, the sentence imposed is

for one year and also fine of Rs.5,000/-. Regarding sentence of

one year, it has to be reduced to six months and regarding fine

is concerned, this Court has not touched the same. Hence, it

requires to be allowed in part.

Point No.(ii):

13. In view of the discussions made above, I pass the

following:

ORDER

The Revision Petition is allowed in part.

The judgment of conviction and order on sentence for an

offence punishable under Section 279 of IPC is hereby set aside.

The judgment and order dated 21.03.2012 passed by the III

Additional Civil Judge and JMFC., at Shivamogga in

C.C.No.1241/2010 for an offence punishable under Section 304-

A of IPC is confirmed and sentence is reduced to six months

instead of one year.

The remaining fine amount is unaltered.

Sd/-

JUDGE

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