Sri Mahadeva Swamy vs State Of Karnataka
2022 Latest Caselaw 4022 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.623/2012

BETWEEN:

SRI MAHADEVA SWAMY
S/O LATE KYATHAIAH
AGED 28 YEARS
R/AT MALAVALLI TALUK
MANDYA DISTRICT.                          ... PETITIONER

               (BY SRI K.S.HARISH, ADVOCATE)
AND:

STATE OF KARNATAKA
REPRESENTED BY
KOLLEGAL RURAL POLICE.                   ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND SENTENCE DATED 30.10.2010 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, KOLLEGAL IN C.C.NO.96/2008
AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED
24.09.2011 IN CRIMINAL APPEAL NO.48/2010 PASSED BY THE
SESSIONS JUDGE AND PRESIDING OFFICER, FAST TRACK
COURT, KOLLEGAL.

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

This revision petition is filed under Section 397 of Cr.P.C.,

praying to call for the records from the Trial Courts, set aside the

judgment and sentence dated 30.10.2010 in C.C.No.96/2008 on

the file of Senior Civil Judge and JMFC., at Kollegal and also set

aside the judgment and order dated 24.09.2011 in Criminal

Appeal No.48/2010 passed by the Sessions Judge (Fast Track

Court), Kollegal and grant such other order as deems fit in the

facts and circumstances of the case.

2. Heard the learned counsel appearing for the revision

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 31.05.2005 at 3:30 p.m, when Rachanayaka Dhanageri

was riding his bicycle left side of the road over the pond of

Anemathanakere at Dhanageri, this petitioner drove the mini bus

in a rash and negligent manner and dashed against the cyclist.

As a result, he fell down and succumbed to the injuries and was

resulted in the death on the spot itself. Consequent upon the

accident, the passengers, who were traveling in the minibus

CWs.11 and 12 had sustained grievous injuries and CWs.13 to

26 had sustained simple injuries. Hence, a complaint has been

registered, the police have investigated the matter and filed the

charge-sheet for the offences punishable under Sections 279,

337, 338 and 304A of IPC read with Section 187 of the IMV Act.

4. The prosecution in order to prove the case examined

PWs.1 to 28 and got marked the documents as Exs.P1 to P32.

The petitioner/accused has not led any evidence and no

documents are marked before the Trial Court. The trial Judge

after considering the material available on record both oral and

documentary evidence sentenced the petitioner for all the

offences. Hence, an appeal is filed before the Appellate Court in

Crl.A.No.48/2010.

5. The Appellate Court vide order dated 24.09.2011,

taking note of the revisional provision was invoked instead of

filing the appeal and also taken note of the said legal lacuna as

observed by the Appellate Court comes to the conclusion that

there are absolutely no grounds to disbelieve the prosecution

case i.e., as observed in paragraph No.10. The general

statement is made that on perusal of the judgment of the Senior

Civil Judge and JMFC., at Kollegal, the Trial Court has properly

appreciated the evidence of the prosecution witnesses and held

that this revision petitioner has committed the offences. It is

also observed in paragraph No.11 that the counsel during the

course of the arguments failed to brought out the lacunas in the

prosecution evidence. Hence, he is unable to accept the

contentions of the appellant. It is observed that viewed from

any angle, conviction and sentence passed by the Trial Court is

just and proper. The learned counsel would submit that the

Appellate Court has not re-appreciated the evidence available on

record, PWs.1 to 28's evidence and the same has not been

considered, only on the general observation, the appeal was

disposed of and the appeal is a statutory appeal and the

Appellate Court has to re-consider the material available on

record and on analyzing the evidence available on record only

passed the orders on merits, the same has not been done.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that in

paragraph Nos.10 and 11 of the judgment, the Appellate Court

has assigned the reasons while confirming the order of the Trial

Court. Hence, it does not require any interference of this Court.

7. Having heard the respective counsel and on perusal

of the order passed by the Appellate Court though observed that

an erroneous provision is invoked and the same is not a lacuna

as observed by the Appellate Court but the Court should not

venture to consider the technicalities in the matter when an

appeal is filed. Apart from that, while observing the same as

legal lacuna without considering the evidence in the first para

itself in paragraph No.10 comes to the conclusion that absolutely

there are no grounds to disbelieve the prosecution case in this

case. This observation is made without considering the evidence

available on record. Apart from that, in paragraph No.11 also a

general observation is made that the learned counsel failed to

bring out the lacuna in the prosecution evidence, wherein also

nowhere discussed both oral and documentary evidence placed

on record before the Trial Court to consider the matter on merits

on re-appreciation. It appears that, the Appellate Court

forgotten to consider the scope of the appeal and the scope of

the appeal is for re-evaluating both oral and documentary

evidence placed on record and the same has not been done and

without considering the material on record comes to the

conclusion that the conviction and sentence passed by the Trial

Court is just and proper and not analyzed the evidence available

on record. Hence, it requires an interference of this Court and

the matter requires to be remanded to the Appellate Court for

fresh consideration and evaluate both oral and documentary

evidence and pass the order exercising the appellate jurisdiction.

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

following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned judgment and order dated 24.09.2011 in Criminal Appeal No.48/2010 passed by the Sessions Judge (Fast Track Court), Kollegal, is hereby set aside and the

matter is remanded to the Appellate Court to reconsider the order as observed by this Court.

(iii) The Revision Petitioner is directed to appear before the Appellate Court on 28.03.2022 without expecting any notice again from the Appellate Court.

      (v)     The Appellate Court is directed to dispose of
              the   matter   within   two   months    from
              28.03.2022.



                                                      Sd/-
                                                     JUDGE

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