Mr C Nagaraja vs State By Sho
2022 Latest Caselaw 4019 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

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

       CRIMINAL REVISION PETITION NO.645/2013

BETWEEN:

MR.C. NAGARAJA
S/O SRI K.CHANDRAPPA SHETTY
AGED ABOUT 30 YEARS
AUTO RICKSHAW DRIVER
R/O KOTEKARITIMMARAYAN BEEDI
BEHIND DEEPA TAILOR
HOLENARASIPUR TOWN
HASSAN DISTRICT-573 211.                      ...PETITIONER

              (BY MS.VIDYA H., ADVOCATE FOR
             SRI K.M.SOMASHEKARA, ADVOCATE)
AND:

STATE BY SHO
HOLENARASIPUR TOWN POLICE
HOLENARASIPUR
REPRESENTED BY STATE PUBLIC PROSECUTOR
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 15.10.2011 PASSED BY THE CIVIL
JUDGE AND JMFC, HOLENARASIPURA IN C.C.NO.786/2008 AND
ORDER DATED 03.11.2012 PASSED BY THE ADDITIONAL
SESSIONS AND FTC-II, HASSAN IN CRIMINAL APPEAL
NO.126/2011 CONSEQUENTLY ACQUIT THE PETITIONER.
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     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 15.10.2011 passed by the Civil Judge and JMFC,

Holenarasipura in C.C.No.786/2008 and the order dated

03.11.2012 passed by the Additional Sessions and FTC-II,

Hassan in Criminal Appeal No.126/2011 and consequently acquit

the petitioner.

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 25.08.2008 at 10.15 a.m. near K.P.T.C.L. Power

Substation in Marashetty Hally-Agrahara gate road, the

petitioner-accused being a driver of auto rickshaw bearing

No.KA-18-8550 drove the auto rickshaw in a rash and negligent

manner from Marashetty Hally towards Agrahara gate and

dashed against one M.M. Thanuja, who was walking on the side

of the road to the school. As a result, she succumbed to the

injuries at the spot. Based on the complaint of C.W.1, the police

have registered the case, investigated the matter and filed the

charge-sheet for the offences punishable under Sections 279 and

304-A of IPC and accused was secured before the Trial Court and

he did not plead guilty.

4. The prosecution, in order to prove the charges

leveled against the petitioner, examined 15 witnesses as P.Ws.1

to 15 and got marked 8 documents as Exs.P1 to P8. The

petitioner-accused herein has not led any defence evidence.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, particularly the

evidence of P.Ws.1, 8, 9 and 11, who are the eye witnesses

comes to the conclusion that the evidence of these eye

witnesses are consistent and it corroborates the case of the

prosecution and there is no discrepancy with regard to the fact

that they have witnessed the accident which is discussed in

paragraph No.17. Hence, the Trial Court comes to the conclusion

that the petitioner has committed the offences punishable under

Sections 279 and 304-A of IPC. Hence, convicted and sentenced

the petitioner-accused to undergo simple imprisonment for a

period of six months and imposed a fine of Rs.1,000/-for the

offence under Section 279 of IPC and for the offence under

Section 304-A of IPC, ordered to undergo simple imprisonment

for a period of one year and imposed a fine of Rs.3,000/-.

6. Being aggrieved by the judgment and order of

conviction and sentence, an appeal is filed before the Appellate

Court which is numbered as Crl.A.No.126/2011 and the

Appellate Court, after reconsidering both oral and documentary

evidence placed on record, in paragraph No.10 discussed the

evidence of P.W.1 and also considered the evidence of eye

witnesses i.e., P.Ws.1, 8, 9 and 11. Further, in paragraph

No.11, taken note of the fact that the vehicle involved in the

accident i.e., auto rickshaw and on re-appreciation, arrived at a

definite finding in paragraph Nos.10 and 11 that the Trial Court

has rightly considered the material available on record and

confirmed the judgment and order of conviction and sentence.

7. Being aggrieved by the judgment and order of

conviction and affirmation made by the Appellate Court, the

petitioner has filed the present revision petition.

8. The learned counsel appearing for the petitioner

mainly contend that the evidence of P.Ws.1, 8, 9 and 11 are not

consistent and there are discrepancies in the evidence but, the

Trial Court as well as the Appellate Court have not considered

the discrepancies. It is also contended that no witnesses have

identified the petitioner nor the vehicle during the course of the

trial. The counsel would also contend that specific defence was

taken that road was not in a proper condition at the time of the

accident. Hence, the vehicle could not move fast as contended

by the prosecution. The counsel also would vehemently contend

that the sentence imposed by the Trial Court is very harsh and

severe and it is an accident which has taken place in the year

2008 and almost 1½ decade is over and the same would have

been taken into consideration.

9. Per contra, learned High Court Government Pleader

for the State would submit that the prosecution mainly relied

upon the evidence of P.Ws.1, 8, 9 and 11, who are the eye

witnesses to the accident and all of them have consistently

deposed before the Court that they have witnessed the accident

and this petitioner himself caused the accident against the school

going girl, who succumbed to the injuries at the spot. She would

also submit that these witnesses have identified the petitioner

and the very contention of the learned counsel for the petitioner

that the witnesses have not identified the petitioner cannot be

accepted.

10. Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader for the State

and also on considering both oral and documentary evidence

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

this Court are:

(i) Whether both the Courts have committed an error in not properly appreciating the evidence available on record and also not taken note of the discrepancies as contended by the learned counsel for the petitioner and any perverse order is passed and whether it is a fit case to exercise the revisional jurisdiction to set aside the order passed by both the Courts?

(ii) What order?

Point No.(i)

11. Having heard the respective counsel and also on

perusal of the material on record, it is the case of the

prosecution that the present petitioner drove the auto rickshaw

in a rash and negligent manner and caused accident against the

school going girl, who was proceeding on the left side of the road

and in order to prove the said charges, the prosecution mainly

relied upon the evidence eye witnesses i.e., P.Ws.1, 8, 9 and 11.

The Trial Court also considering both oral and documentary

evidence placed on record, particularly in paragraph No.12

discussed the evidence of P.W.1 and also taken note of the

cross-examination of P.W.1 in paragraph No.13. Apart from

that, the Trial Court also in paragraph No.14, relied upon the

evidence of P.W.8, who is also an eye witness and similarly

relied upon the evidence of P.Ws.9 and 11 in paragraph Nos.15

and 16. Thereafter, considering the evidence of eye witnesses in

paragraph No.17 comes to the conclusion that these eye

witnesses have clearly supported the case of the prosecution and

nothing is elicited from them during the course of cross-

examination to disbelieve their evidence.

12. The Appellate Court also, in paragraph Nos.10 and

11 discussed the evidence of P.W.1 and taken note of the fact

that Ex.P2 is marked through P.W.1 i.e., spot mahazar and also

taken note of the evidence of other eye witnesses i.e., P.Ws.8

and 9 and reasoning was given in paragraph No.11.

13. Having considered the reasoning given by the Trial

Court as well as the Appellate Court and also looking into the

material available on record, particularly the evidence of P.Ws.1,

8, 9 and 11, who are the eye witnesses, in the cross-

examination of P.W.1, he categorically says that immediately

after the accident, the petitioner ran away from the spot.

However, he categorically says that he has identified the

petitioner and suggestion was made that the victim while

proceeding on the road she turned back and abruptly she fell

down on the road and the said suggestion was denied.

14. P.W.8 also reiterated the evidence of P.W.1 and he

categorically identifies this petitioner that he was driving the

vehicle. In the cross-examination, the defence itself elicited that

the accident has occurred in the place where two roads join and

not disputes the accident. It is also elicited that he made the

statement before the Court how the accident has occurred. It is

suggested that road was not in a proper condition and the same

was denied.

15. P.W.9 also identifies this petitioner that he drove the

vehicle in a rash and negligent manner. In the cross-

examination also, he categorically says that he himself and one

Mahesh were there at the spot at the time of the accident. He

also admits that, number of people move in the said road and

suggestion was made that road was not in a proper condition

and the said suggestion was also denied. But, he volunteers to

state that the petitioner has not driven the vehicle in a slow

manner.

16. The other witness is P.W.11. In his evidence also,

he says that accident has occurred in front of him and he noticed

the fact that blood was oozing from the ear of the victim and she

succumbed to the injuries at the spot. The police came and

drew the mahazar. In the cross-examination, he reiterates that

he witnessed the accident within the distance of 10 meters and

he also categorically state that the petitioner ran away from the

spot. However, he had seen the auto rickshaw but, not seen the

name in the auto rickshaw.

17. Having considered the evidence available before the

Court, particularly the evidence of eye witnesses i.e., P.Ws.1, 8,

9 and 11. Though these witnesses are cross-examined by the

defence counsel, nothing worthy is elicited to disbelieve the

prosecution witnesses and the learned counsel for the petitioner

also contend that there were discrepancies in the evidence of the

eye witnesses. However, I do not find any material

contradictions in the evidence of the eye witnesses which goes to

the very root of the case of the prosecution and the

contradictions are also not pointed out by the witnesses

specifically and these witnesses identified the petitioner before

the Court that he was the driver of the auto rickshaw. The

sketch which is marked as Ex.P7-rough sketch also clearly

disclose that the accident has not occurred on the main road and

the same has occurred by the side of the road. The IMV report

which is marked as Ex.P5 also disclose damages to the vehicle

i.e., front wind screen glass damaged with frames, top hood

damaged with all the starting anglers, left side body shape

damaged and flat left indicator was damaged and the vehicle

was also seized at the spot.

18. When such being the material available on record,

the very contention of the learned counsel for the petitioner that

the Trial Court has passed perverse order and the material

contradictions in the evidence of eye witnesses goes to the root

of the prosecution case cannot be accepted. I do not find any

discrepancies in the evidence of the eye witnesses i.e., P.Ws.1,

8, 9 and 11.

19. The other contention is that the petitioner is not

identified by the eye witnesses also cannot be accepted, since

those witnesses have categorically stated that they identified the

petitioner. Hence, I do not find any merit in the revision petition

to come to an other conclusion that there was a perversity in the

order passed by the Trial Court as well as the Appellate Court.

20. However, taking note of the offences invoked against

the petitioner for the offences punishable under Sections 279

and 304-A of IPC, the ingredients of the offence under Section

279 of IPC merges with the serious offence under Section 304-A

of IPC. Hence, the Trial Court ought not to have sentenced the

petitioner to undergo simple imprisonment for a period of six

months, imposing a fine of Rs.1,000/-. Hence, it requires

interference of this Court. Regarding the conviction and

sentence in respect of 304-A is concerned, it is an accident of

the year 2008 and almost 1½ decade has elapsed.

21. Taking into consideration the judgment of the Apex

Court in the case of State of Punjab v. Saurabh Bakshi

reported in (2015) 5 SCC 182, in paragraph No.13, the Apex

Court has held that, it cannot be said as a proposition of law that

whenever an accused offers acceptable compensation for

rehabilitation of a victim, regardless of the gravity of the crime

under Section 304-A IPC, there can be reduction of sentence.

The Apex Court also discussed different judgments in paragraph

Nos.14, 15, 16 and 17. Having discussed the principles laid

down in the judgments referred supra and also considering the

material on record in paragraph No.23, the Court comes to the

conclusion that the factum of rash and negligent driving has

been established. Further observed that the Apex Court has been

constantly noticing the increase in number of road accidents and

has also noticed how the vehicle drivers have been totally rash

and negligent. It is also observed that it seems to us driving in a

drunken state, in a rash and negligent manner or driving with

youthful adventurous enthusiasm as if there are no traffic rules

or no discipline of law has come to the centre stage. Having

observed this in paragraph No.24, the Apex Court held that

needless to say, the principle of sentencing recognizes the

corrective measures but there are occasions when the

deterrence is an imperative necessity depending upon the facts

of the case. Having considered the material on record and

considering the mercy in applying the principle that payment of

compensation is a factor for reduction of sentence to 24 days. It

is observed that, the sentence of one year as imposed by the

trial Magistrate which has been affirmed by the appellate court

should be reduced to six months.

22. Hence, it is appropriate to reduce the sentence for

the offence under Section 304-A of IPC from one year to six

months. Regarding the fine of Rs.3,000/- is concerned, the

same stands unaltered.

Point No.(ii)

23. 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 order of conviction and sentence for the offence under Section 279 of IPC is hereby set aside.

(iii) The order of conviction and sentence for the offence under Section 304-A of IPC stands confirmed. However, the sentence is reduced from one year to six months without altering the fine amount.

(iv) If the petitioner has deposited any fine amount in respect of the offence under Section 279 of IPC, the same shall be refunded to him on proper identification.

Sd/-

JUDGE

ST