Manjunath J M S/O Muniyallappa vs The State Of Karnataka
2022 Latest Caselaw 4798 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF MARCH, 2022

                          BEFORE

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

       CRIMINAL REVISION PETITION NO.269/2013

BETWEEN:

MANJUNATH J.M.
S/O MUNIYALLAPPA
AGED ABOUT 31 YEARS
OCC: DRIVER, T.NO.4507,
BMTC 11TH DEPOT,
PUTTENAHALLI
BENGALURU-560 001.                         ...PETITIONER

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

THE STATE OF KARNATAKA
BY YELAHANKA POLICE
STATION-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 JUDGMENT AND ORDER DATED 27.08.2012, PASSED
BY THE PRESIDING OFFICER, FAST TRACK COURT-XVII,
BENGALURU CITY, IN CRIMINAL APPEAL NO.225/2012 AND THE
JUDGMENT AND ORDER DATED 13.03.2012, PASSED BY THE
MMTC-III,      BENGALURU       IN      C.C.NO.4661/2009
(C.C.NO.600/2009) AND ACQUIT THE PETITIONER FOR THE
CHARGES LEVELED AGAINST HIM.
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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

judgment and order dated 27.08.2012, passed by the Presiding

Officer, Fast Track Sessions Court-XVII, Bengaluru City, in

Criminal Appeal No.225/2012 and the judgment and order dated

13.03.2012, passed by the Metropolitan Magistrate, Traffic

Court-III, Bengaluru in C.C.No.4661/2009 (C.C.No.600/2009)

and 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 this petitioner being the driver of BMTC bus drove the

vehicle in a rash and negligent manner and dashed against the

motorcycle in which the injured P.W.6 and victim were

proceeding. As a result, the injured sustained injuries and

succumbed to the same. P.W.6 also sustained grievous injuries,

including fracture. Based on the complaint, the police have

investigated the matter and filed the charge-sheet for the

offence punishable under Sections 279, 338 and 304-A of IPC.

4. The prosecution, in order to prove the case,

examined the witnesses as P.Ws.1 to 7 and got marked the

documents as Exs.P1 to P12. The petitioner also examined

himself as D.W.1.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the accused

for maximum substantive sentence for a period of six months

and imposed fine of Rs.5000/- for the offence punishable under

Section 304-A of IPC.

6. Being aggrieved by the said judgment and sentence,

the petitioner has filed the appeal in Crl.A.No.225/2012. The

Appellate Court, on re-appreciation of both oral and

documentary evidence placed on record, not accepted the

evidence of D.W.1 which has not been accepted by the Trial

Court also and the Appellate Court confirmed the judgment of

conviction and sentence passed by the Trial Court. Hence, the

present revision petition is filed.

7. Learned counsel for the petitioner in his argument

vehemently contend that both the Courts have committed an

error and passed an illegal order and the judgments of both the

Courts are illegal, arbitrary and capricious. Both the Courts

committed serious error relying on the evidence of interested

witnesses, whose evidence suffers from legal infirmities and the

Trial Court committed an error in not accepting the evidence of

D.W.1 which clearly disclose that accident has taken place due to

the negligence on the part of P.W.6 and also failed to take note

of the IMV report which is marked as Ex.P5 which clearly

discloses damage near the rear wheel of the bus. This aspect

has not been considered by the Trial Court. Hence, it requires

interference of this Court.

8. Per contra, learned High Court Government Pleader

for the State would submit that, P.W.6 is an injured and eye

witness to the accident. He categorically deposed that the driver

of the bus drove the vehicle in a rash and negligent manner.

Apart from that, the evidence of Investigating Officer is very

clear that he had prepared the sketch in terms of Ex.P10 and the

same discloses that the driver of the bus went in a high speed

and dashed against the motorcycle and it is head on collusion

between the two vehicles. Though, the learned counsel for the

petitioner would contend that it is not a head on collusion and

the driver of the motorcycle went and dashed against the road

divider and thereafter, hit the rear portion of the motorcycle, the

same is not supported by any material. It is not the case of the

D.W.1 also that he went and hit the divider and thereafter, hit

the bus. Hence, the defence theory cannot be accepted.

9. 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 Courts have committed an error in not appreciating both oral and documentary evidence placed on record and passed any perverse order against the evidence available on record and whether it requires interference of this Court to exercise the revisional jurisdiction?

(ii) What order?

Point No.(i)

10. Having heard the respective counsel and also on

perusal of the material on material, the prosecution examined

P.Ws.1 to 7. The prosecution mainly relied upon the evidence of

P.W.6, who was riding the motorcycle along with the deceased.

It is the specific evidence that around 9.15 p.m., when they

were going in front of Jakkur Aerodrum Petrol Bunk, the driver of

BMTC, who came in the opposite direction in a rash and

negligent manner dashed against the motorcycle. As a result,

both of them fell down and sustained injuries and immediately,

they were taken to Columbia Asia Hospital. P.W.6 also identifies

the petitioner. This witness was subjected to cross-examination.

In the cross-examination, except eliciting the answer that when

the bus goes towards Yelahanka, vehicle moves in service road,

nothing is elicited in the cross-examination of P.W.6 that he was

not riding the motorcycle. It is suggested that he himself went

and dashed against the road divider and as a result, both of

them fell down and the said suggestion was denied.

11. The prosecution also relied upon the evidence of

P.W.7, who conducted the investigation and filed the charge-

sheet. In the chief evidence also, he reiterated regarding

issuance of FIR and statement in terms of Ex.P8 and also

Ex.P10-Sketch and statement of witnesses C.Ws.4 and 5. In the

cross-examination, again suggestion was made that motorcycle

went and dashed against the road divider and accident has

occurred and the said suggestion was denied. In the cross-

examination, except eliciting that Ex.P10 was prepared as per

the instructions given by him, nothing worthy is elicited. No

doubt, the petitioner himself, who was examined as D.W.1 in his

evidence says that motorcyclist was about to take the vehicle

towards left side, but he came and dashed the rear portion of

the bus and he fell down. He further says that he sent the

injured to Columbia Asia Hospital and claims that police told him

to come and give complaint in the police station. He claims that

he did not hit the motorcycle in an opposite direction and also he

says that the motorcyclist also not dashed against his vehicle.

But the accident was occurred due to rash and negligence on the

part of the rider of the motorcycle. In the cross-examination, it

is suggested that the accident was occurred due to his

negligence and the same was denied. It is also suggested that

the injured persons were taken to Columbia Asia Hospital and

the same was denied. Having taken note of the material

available on record, particularly, the evidence of P.W.6 and also

in the cross-examination of P.W.7, a categorical suggestion was

made that P.W.6 himself went and dashed against the road

divider and both victim as well as injured-P.W.6, fell down. But

in the evidence of D.W.1, the evidence is contrary and D.W.1

says that the motorcyclist came from rear side and dashed

against the rear portion of the bus. No doubt, in the IMV report

damages was shown to the bus on the rear side of the bus. But

it is the case of the prosecution that the accident is head-on

collision. P.W.6 also reiterates the same. P.W.7 prepared the

sketch-Ex.P10, which also discloses that it is an accident

between the two vehicles i.e., head-on collision. In the cross-

examination of P.W.7, nothing is suggested in respect of Ex.P10.

Except eliciting that the same was prepared by his staff on his

instructions and not disputed the sketch - Ex.P10. It appears,

taking the advantage of MV report-Ex.P5, damages on the rear

portion of the bus. D.W.1 has been examined before the Court

but through out in the cross-examination of prosecution

witnesses, no where it is suggested that the motorcyclist himself

went on the rear side of the bus and dashed against the bus and

an after thought the said evidence is adduced and throughout

the defence is that the motorcyclist went and dashed against the

road divider.

12. When such being factual aspects of the case, when

sketch - Ex.P10 is not been disputed and also clearly depicts that

the accident is head-on collision between the motorcyclist as well

as the driver of the bus. The accident was also taken place,

when the motorcycle was coming in the opposite direction and

throughout in the cross-examination of prosecution witnesses, it

is not the case that P.W.6 went himself and dashed against the

rear side of the bus. On the other hand, it is the contrary

defense that he himself went and dashed against the road

divider and as a result, he fell down. Hence, the theory of D.W.1

has not been accepted by both the Trial Court as well as the

Appellate Court. The very contention of the learned counsel for

the petitioner is that document - Ex.P5 clearly discloses that he

himself went and dashed against the rear side of the motorcycle

cannot be accepted only on the entries found in Ex.P5. No such

defense was taken before the Trial Court while cross-examining

the prosecution witnesses. Hence, I do not find any merit in the

revision petition to come to other conclusion that both the Courts

have not been property appreciated both oral and documentary

evidence available on record. Hence, I do not find any merit in

the revision petition.

13. However, taking into note of the conviction and

sentence for an offence punishable under Section 279 of IPC,

when the serious offence under Section 304-A has been invoked

and the said negligence and rashness merge with the serious

offence under Section 304-A of IPC. Hence, the conviction and

sentence for the offence punishable under Section 279 of IPC

has to be set aside.

14. The other offence under Section 338 of IPC is

concerned only a fine of Rs.1,000/- had been awarded and no

substantive sentence is imposed against the petitioner. Hence,

the same cannot be interfered and unaltered.

15. Regarding sentence of six months is concerned,

minimum sentence of six months is awarded for an offence

under Section 304-A of IPC, the same is not harsh as contended

by the learned counsel for the petitioner. Hence, I do not find

any reasons to interfere with the finding of the Trial Court

regarding sentence of six months.

Point No.(ii):

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

following:

ORDER

(i) The revision petition is allowed in part.

     (ii)    The impugned judgment and order dated
             27.08.2012,      passed         by   the     Presiding
             Officer, Fast Track Sessions Court-XVII,
             Bengaluru      City,       in     Criminal        Appeal
             No.225/2012 and the judgment and order
             dated      13.03.2012,           passed      by      the

Metropolitan Magistrate, Traffic Court-III, Bengaluru in C.C.No.4661/2009 (C.C.No.600/2009), are hereby set aside in respect of offence under Section 279 of IPC.

(iii) The conviction and sentence for other offences i.e., Sections 338 and 304-A of IPC are unaltered.

(iv) If any amount is deposited for the offence punishable under Section 279 of IPC as fine and the same has to be refunded in favour of the petitioner on proper identification.

Sd/-

JUDGE

ST/cp*