Sri B G Basavaraj vs The Police Sub-Inspector
2022 Latest Caselaw 3931 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.704/2013

BETWEEN:

SRI B.G.BASAVARAJ
S/O B.GANGADHARAPPA
AGED ABOUT 42 YEARS
OCC: DRIVER
CARE OF N.SRINIVAS
RESIDING AT NO.2486/1,
9TH MAIN, 9TH CROSS,
M.C.C. 'A' BLOCK,
DAVANAGERE-577 002.                        ...PETITIONER

             (BY SRI SHEKARAPPA B., ADVOCATE)

AND:

THE POLICE SUB-INSPECTOR
HONNALI POLICE STATION,
HONNALI, HONNALI TALUK
DAVANAGERE DISTRICT

REPRESENTED BY
STATE PUBLIC PROSECUTOR
KARNATAKA HIGH COURT BUILDING
BENGALURU - 560 001.                       ...RESPONDENT

              (BY SMT.RASHMI JADHAV, HCGP )

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 31.12.2008 PASSED BY THE
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ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II,
DAVANAGERE, IN CRIMINAL APPEAL NO.101/2006 AND THE
ORDER DATED 13.07.2006, PASSED BY CIVIL JUDGE (JR. DN.)
AND J.M.F.C., HONNALI, IN C.C.NO.293/2003 AND DIRECT THAT
THE PETITIONER BE ACQUITTED OF THE OFFENCES ALLEGED
AND CHARGED AGAINST HIM.

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

                             ORDER

This Criminal Revision Petition is filed to set aside the

order dated 31.12.2008 passed by the Additional Sessions

Judge, Fast Track Court II, Davanagere in Criminal Appeal

No.101/2006 and the order dated 13.07.2006 passed by the

Civil Judge (Jr. Dn.) & J.M.F.C., Honnali in C.C.No.293/2003 and

direct that the petitioner be acquitted of the offences alleged and

charged against him.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader for the State.

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

that on 09.03.2003 at about 5.40 a.m. to 6.45 P.M. at Honnali at

AMPC Yard Tar Road, while Kum. S. Dakshayani and

Sri Vamadevappa were going towards Hirekalmath. At that

time, this petitioner drove the Tempo Trax vehicle in rash and

negligent manner from Nyamati side and dashed against Kum.

Dakshayani and Sri Vamadevappa from behind. As a result,

both of them died at the spot. Hence, the police have registered

a case for the offences punishable under Sections 279 and

304(A) of IPC read with Sections 134-A and B of Indian Motor

Vehicles Act.

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

14 witnesses as P.Ws.1 to 14 and got marked the documents as

Exs.P1 to P12 and the material objects as M.Os.1 to 13. The

accused has not led any evidence and did not mark any

documents.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, particularly, the

evidence of P.W.1, P.Ws.4 and 5 and also P.W.10, who is the

owner of Tempo Trax categorically deposed that on the date of

the accident, this petitioner was the driver and after the

accident, he himself brought the vehicle and parked the vehicle

in front of his house.

6. Having considered the evidence, the Trial Court has

convicted the petitioner for all the offences and maximum

sentence of simple imprisonment for a period of six months is

awarded along with a fine of Rs.3,000/- and in default, to

undergo simple imprisonment for a period of three months for

the offence punishable under Section 304-A of IPC and simple

imprisonment for a period of six months for the offence

punishable under Section 279 of IPC along with a fine of

Rs.1000/- and in default, to undergo simple imprisonment for a

period of 30 days and also ordered to pay a fine of Rs.100/- for

the offences punishable under Sections 134-A and B of Indian

Motor Vehicles Act.

7. Being aggrieved by the judgment and order of

conviction, appeal is filed in Crl.A.No.101/2006 and the Appellate

Court also, on re-appreciation of the material available on

record, confirmed the judgment and order of conviction and

sentence in coming to the conclusion that the prosecution has

proved that this petitioner was the driver of the Tempo Trax at

the time of the accident, who drove the vehicle in rash and

negligent manner. Apart from that, the Appellate Court also

considered the evidence of other eye witnesses, particularly,

P.Ws.4 and 5, who have witnessed the accident and also

observed that, in 313 statement, except denying the prosecution

case, the petitioner has not stated anything and also not denied

the fact that he was the driver of the Tempo Traxs at the time of

the accident. Hence, the Appellate Court confirmed the

judgment of the Trial Court.

8. Learned counsel appearing for the petitioner would

vehemently contend that both the Courts have committed an

error in appreciating the evidence available on record i.e., both

oral and documentary evidence placed on record. Both the

Courts have lost sight of the evidence of P.Ws.4 and 5 that both

of them have not stated in their evidence that the vehicle was

bring run by the petitioner in rash and negligent manner, but

they have only stated that the vehicle was being run fast. In

their cross-examination, according to P.W.4, it was at the speed

of 90 to 100 Kilometers fast. But, P.W.5 says that sit was at the

speed of 60 to 70 Kilometers fast.

9. He would further contend that the prosecution relies

upon the evidence of P.W.5, who is the nephew of complainant

and the father of Kumari Dakshayani. P.W.4 is the friend of

P.W.5 and the evidence of the interested witnesses has been

considered by the Trial Court and the same has been affirmed by

the Appellate Court. The prosecution also mainly relied upon the

evidence of P.W.10. The counsel would also submit that the

accident took place in the year 2003 and ten years have elapsed

from the date of the accident. Hence, the imposition of sentence

on the petitioner is improper and the Trial Court as well as the

Appellate Court ought to have invoked the provisions of

Probation of Offenders Act, 1958.

10. Per contra, learned High Court Government Pleader

appearing for the State would submit that the prosecution not

only relies upon the evidence of P.Ws.4 and 5, who are eye

witnesses witnessing the accident but, also relied upon the

evidence of other witnesses, particularly P.W.10, the owner of

the vehicle, who categorically deposed that on the date of the

accident, this petitioner was the driver of the Tempo Trax and he

drove the vehicle and thereafter, parked the same in front of the

house after the accident and both the Courts have appreciated

the material on record in proper perspective.

11. Having heard the respective counsel and also on

perusal of the material on record, the points that would arise for

consideration of this Court are:

(i) Whether both the Trial Court and the Appellate Court have committed an error in convicting the petitioner for the offences punishable under Sections 279 and 304-A of IPC and Sections 134-A and B of Indian Motor Vehciles Act and whether it is a fit case to exercise the revisional jurisdiction?

(ii) What order?

Point No.(i)

12. Having heard the respective counsel and also on

perusal of the material on record, particularly the evidence of

P.Ws.4 and 5, who are the eye witnesses, the learned counsel

for the petitioner mainly contend that these two witnesses are

not the eye witnesses to the accident and their evidence is not

credible.

13. Having perused the evidence of P.Ws.4 and 5, they

have categorically deposed that they witnessed the accident. In

the evidence of P.W.4, he categorically says that the driver of

the Tempo Trax drove the vehicle in a rash and negligent

manner and dashed against Kumari Dakshayani and Sri

Vamadevappa. As a result, both of them were thrown at 5 to 6

feet height from the road and thereafter, they fell down and

succumbed to the injuries. The driver of the Temp Trax not

even stopped the vehicle and they chased the petitioner in a car

and ultimately, the car in which they chased was also not in

order and however, they identified the petitioner before the Trial

Court. In the cross-examination of P.W.4, except eliciting the

answer that he was having acquaintance with the complainant

and he is cordial with the complainant, nothing is elicited from

the mouth of P.W.4.

14. The evidence of P.W.5 is similar to the evidence of

P.W.4. But, in the cross-examination of P.W.5, he denies that

complainant is not his relative but, he is having acquaintance

with him. Both of them have categorically deposed that they

were walking on the date of the accident.

15. Apart from that, P.W.10, who is the owner of the

vehicle categorically deposed that on the date of the accident,

this petitioner was the driver of the Tempo Trax and after the

accident, he parked the vehicle in front of his house. In the

cross-examination of P.W.10 also, nothing is elicited, but he

claims that he took the vehicle and produced the same before

the Circle Inspector and vehicle was also inspected and he

enquired the petitioner. He also admits that the vehicle was

used to distribute Vijaya Karnataka newspaper in the early

morning and after that the petitioner used to bring and park the

vehicle at 9.30 a.m. and again at 2.30 in the afternoon, he used

to take the vehicle to the press.

16. Having perused the evidence of P.Ws.4 and 5, they

have categorically stated that there was a marking of the press

in the vehicle and the P.W.10 also corroborates with the

evidence of P.Ws.4 and 5 that in the early morning, this

petitioner used to take the vehicle for distribution of Vijaya

Karnataka newspaper and thereafter, again at 2.30 in the

afternoon, he used to take the vehicle to the press.

17. When such being the material available on record,

the very contention of the learned counsel for the petitioner that

the witnesses P.Ws.4 and 5 are not the eye witnesses to the

accident cannot be accepted. The Trial Court also considered the

evidence of P.W.10, who categorically deposed that this

petitioner was the driver of the vehicle on the date of the

accident and after the accident, he himself has parked the

vehicle in front of his house and also on the date of the accident,

this petitioner took the vehicle in the early morning for

distribution of Vijaya Karnataka newspaper.

18. P.W.1 is the complainant, who has been examined

before the Trial Court and the Trial Court also taking note of

death of two persons in the accident and Ex.P7-sketch of the

accident spot and also considering the IMV Report which is

marked as Ex.P8, wherein damages are also found in respect of

the offending vehicle, rightly comes to the conclusion that the

accident has occurred on account of rash and negligent driving

on the part of the petitioner herein.

19. When such being the material available on record, I

do not find any ground to invoke the revisional jurisdiction to

come to an other conclusion that the order passed by the Trial

Court as well as the Appellate Court suffers from illegality and its

correctness and no grounds are made out to set aside the

judgment and order of conviction and sentence.

20. However, the Trial Court, while convicting the

petitioner herein, convicted the petitioner even for the offence

punishable under Section 279 of IPC for a period of six months

and imposed a fine of Rs.1,000/-. When, the offence punishable

under Section 304-A of IPC is invoked, the very ingredients of

rash driving and negligence merges with the serious offence

under Section 304-A of IPC. Hence, it requires interference and

the same has to be set aside. Regarding the sentence and

imposition of fine in respect of the offence under Section 304-A

of IPC is concerned, the same does not require any interference

of this Court, since two deaths have occurred in the accident on

account of negligence on the part of the petitioner herein.

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

following:

ORDER

(i) The Criminal Revision Petition is allowed in part.

(ii) The impugned judgment and the order of conviction and sentence for the offence punishable under Section 279 of IPC is hereby set aside. The sentence and

imposition of fine in respect of the other offences under Section 304-A of IPC and Sections 134-A and B of the Indian Motor Vehicles Act remains unaltered.

Sd/-

JUDGE

ST