Ansar Pasha vs State By Honnavalli Police
2022 Latest Caselaw 3929 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF MARCH, 2022

                          BEFORE

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

          CRIMINAL REVISION PETITION NO.695/2013

BETWEEN:

ANSAR PASHA,
AGED ABOUT 36 YEARS,
S/O B. BASHEER,
SUBHASH NAGAR,
MASTHAMMA TEMPLE STREET,
K.M. ROAD, KADURU,
CHIKKAMANGALURU DISTRICT.                     ...PETITIONER

            (BY SMT. SHRUTHI B.S., ADVOCATE FOR
              SRI VINAYA KEERTHY M, ADVOCATE)

AND:

STATE BY HONNAVALLI
POLICE, TIPTUR,
TUMAKURU DISTRICT.                          ...RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 07.06.2013 PASSED BY
THE V ADDL. DIST. & S.J., TIPTUR IN CRL.A.NO.17/2012
CONFIRMING THE JUDGMENT DATED 27.12.2011 PASSED BY
THE PRL. C.J. AND J.M.F.C., TIPTUR AND C/C OF ADDL. C.J. AND
J.M.F.C., TIPTUR IN C.C.NO.969/2010.

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

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

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

that on 03.06.2010 at about 5.30 p.m., the petitioner being the

driver of the vehicle bearing registration No.KA-13-6052 of

description Tata 407, drove the same in a rash and negligent

manner on NH 206 in between Madenur Bhovi Colony and

Gollarahatti gate so as to endanger the human life and thereby

caused the death of one Mukundaiah and caused grievous

injuries to P.W.2 and hence the offence punishable under

Sections 279, 338 and 304A of IPC are invoked. The prosecution

in order to prove the case, examined P.W.1 to P.W.10 and got

marked the documents at Exs.P.1 to 10. P.W.1 is the eye

witness and P.W.2 is the injured witness. The Trial Court after

considering both oral and documentary evidence placed on

record, convicted the revision petitioner for the offence

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

maximum sentence of one year is imposed under Section 304A

of IPC and in respect of other two offences, imposed fine of

Rs.1,000/- each. Being aggrieved by the order of the Trial

Court, an appeal is filed in Crl.A.No.17/2012. The Appellate

Court considering the evidence of P.W.1 and P.W.2 and also

taking note of the evidence of P.W.3 though he has been claimed

as eye-witness, he has deposed that he has not seen how the

accident happened and taken note of the said fact into

consideration and comes to the conclusion that he is only a

circumstantial witness and affirmed the conviction and sentence.

Hence, the present revision petition is filed before this Court.

3. The learned counsel for the petitioner would contend

that both the Courts have failed to appreciate the fact that none

of the eye-witnesses deposed that the petitioner drove the

vehicle in a rash and negligent manner and in the absence of

rashness and negligence on the part of the petitioner herein, the

conviction and sentence is not sustainable in the eye of law. The

learned counsel would contend that the sentence imposed by the

Trial Court for a period of one year is harsh and it is an accident,

which took place in 2010 more than a decade ago and this Court

has to take note of the said fact into consideration.

4. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

P.W.1 is the witness who was present at the spot and P.W.2 is

the pillion rider, who sustained injuries and he was taken to the

hospital and he also identified the accused before the Court. The

evidence of P.W.1 and P.W.2 is consistent with each other and

there are no grounds to interfere with the findings of the Trial

Court and the Appellate Court.

5. Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader appearing for

the respondent-State and also on perusal of the material

available on record, the points that arise for the consideration of

this Court are:

(i) Whether both the Courts have committed an error in convicting the revision petitioner for the offence punishable under Sections 279, 338 and 304A of IPC and sentencing him to undergo simple imprisonment for a period of one year.

(ii) What order?

Point No.(i):

6. Having heard the respective learned counsel and also

on perusal of the material available on record, P.W.1 in his

evidence he categorically says that he was proceeding along with

P.W.3 and at around 5.30 p.m., when they were proceeding, a

motorcycle was also proceeding ahead of them and in that

motorcycle the deceased as well as P.W.2 were there and by

that time, Tata 407 vehicle came in opposite direction in a rash

and negligent manner and dashed against the motorcycle, as a

result C.W.2 sustained injuries and fracture to his legs and the

deceased sustained injuries to his head and blood was oozing.

The driver of Tata 407 ran way from the spot and immediately

after securing the ambulance, shifted the injured persons to the

hospital and the deceased died at the spot.

7. In the cross-examination, except eliciting the answer

that the same is National Highway and more number of vehicle

moves in that road, nothing is elicited. He says that accident

occurred in front of him and he witnessed the same and the

distance between their motorcycle and accident spot is only 15

feet. It is suggested that the accident occurred on the right side

of the road and the same was denied, and the witness says that

it was on the left side of the road. It is elicited that the vehicle,

which was involved in the accident was parked by the side of the

place of the accident. It is suggested that the deceased and

C.W.2 were proceeding in a rash and negligent manner and

hence accident occurred and the same was denied. P.W.2 says

that he was proceeding along with the deceased and on account

of rash and negligent driving of the TATA 407 vehicle, the

accident was occurred and after the accident, he lost conscious

and thereafter he regained conscious in the hospital, however he

identified the petitioner. He admits that he is not aware when

he gave the statement, but he categorically says that he had

seen the petitioner at the time of the accident. The deceased

was riding the motorcycle and he was pillion rider and the same

is not disputed by the learned counsel for the petitioner.

However, it is elicited that when he heard the accident sound, he

came to know about the accident.

8. The other witness P.W.3 says that he has not

witnessed the accident. The Trial Court taking note of the

evidence of P.W.1 and P.W.2, convicted the petitioner and apart

from that also taken note of the contents of the complaint and

also the wound certificate, which discloses the injuries sustained

by P.W.2 and also the sketch which is marked as Ex.P.9 and it

discloses that the width of the road is 17 feet and the accident

was occurred on the left side of the road i.e., in between 5 feet

distance from the edge of the road. Hence, it is clear that the

prosecution witnesses speaks in corroboration with the

documents of Ex.P.9 sketch. Though it is suggested that the

accident was occurred on the right side of the road, the same

categorically denied by P.W.1. No doubt, in the cross-

examination P.W.2 says that only after hearing the accident

sound, he came to know about the accident. The material

placed by the prosecution Ex.P.10 IMV report also clearly

discloses the damages caused to the motorcycle as well as

offending vehicle, which was involved in the accident.

9. Having considered both oral and documentary

evidence placed on record, the Trial Court appreciated the

material on record. The Appellate Court in its judgment

discussed in detail the evidence of P.W.1 and P.W.2 and also

considered the documentary evidence available on record and

taken note of the evidence of P.W.3 in paragraph No.18 and in

paragraph No.19 considered the evidence of particularly the eye-

witness P.W.1 and also the injured witness P.W.2 and affirmed

the order of the Trial Court. Having considered the order

passed by the Trial Court and the Appellate Court, both the

Courts have considered oral and documentary evidence placed

on record. The accident is witnessed by P.W.1 and his evidence

is very consistent that he only witnessed the accident and in

front of him only the accident occurred and the deceased and the

injured P.W.2 were proceeding ahead of their vehicle and at a

distance of only 15 feet they were moving and the offending

vehicle came in opposite direction and it is not disputed by the

petitioner that he was not riding the vehicle at the time of the

accident. No doubt, the evidence of P.W.2 is clear that he had

sustained the injures and lost conscious after the accident and

he is not sure about the statement as to when he gave, but he

categorically identified the petitioner before the Trial Court and

also it is his evidence that accident was occurred due to

negligence on the part of the petitioner. When such being the

material available on record, I do not find any error committed

by the Trial Court and the Appellate Court in appreciating both

oral and documentary evidence placed on record and the orders

also not suffers from any illegality and incorrectness and hence

the question of exercising revisional jurisdiction does not arise.

10. The Trial Court convicted the petitioner for the

offence punishable under Section 279 of IPC and only fine has

been imposed and when the ingredients of the offence under

Section 279 of IPC merges with the serious offence of Section

304A of IPC, the question of convicting the accused under

Section 279 of IPC does not arise. The other offence with regard

to Section 338 of IPC is concerned, the same is unaltered and

only fine amount has been imposed. The contention of the

learned counsel for the petitioner is that the punishment of one

year awarded by the Trial Court year is very harsh and it is an

accident and the same was taken place in 2010, almost a decade

ago. The Apex Court in its judgment in the case of STATE OF

PUNJAB v. SAURABH BAKSHI reported in (2015) 5 SCC 182,

has discussed regarding imposing of fine and instead of imposing

the fine, reduced the sentence from one year to six months.

Having taken note of the principles laid down in the judgment

referred supra, the sentence imposed by the Trial Court is

reduced to six months.

Point No.(ii):

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

following:

ORDER

The petition is allowed in part. The impugned order dated

27.12.2011 passed by the Trial Court in C.C.No.969/2010

convicting and sentencing the petitioner for the offence

punishable under Section 279 of IPC is set aside. The sentence

of one year is reduced to six months for the offence punishable

under Section 304A of IPC. The fine imposed in respect of

Sections 304A and 338 of IPC is unaltered. The Trial Court is

directed to refund the fine amount to the petitioner deposited in

respect of the offence under Section 279 of IPC, on proper

identification.

Sd/-

JUDGE

MD