Rudresh S/O Hanumanthappa vs The State By
2022 Latest Caselaw 4986 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.510/2013

BETWEEN:

RUDRESH
S/O HANUMANTHAPPA
AGED ABOUT 41 YEARS
DRIVER OF TRACTOR & TRAILER
NO.KA-14/3410-3411
R/O MACHANAYAKANAHALLI VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577 201.              ... PETITIONER

            (BY SRI SIDDESWARA N.K., ADVOCATE)
AND:

THE STATE BY
CHANNAGIRI POLICE, CHANNAGIRI,
REPRESENTED BY THE
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 OF CONVICTION AND SENTENCE DATED
09.12.2011 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C.,
CHANNAGIRI IN C.C.NO.9/2011 AND SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 26.04.2013 PASSED BY
                                  2



THE II ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE
IN CRIMINAL APPEAL NO.167/2011 BY ALLOWING THIS
REVISION PETITION AND ACQUIT THE PETITIONER FOR THE
OFFENCES ALLEGED AGAINST HIM.

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


                            ORDER

This petition is filed under Section 397 read with Section

401 of Cr.P.C., praying to call for records, set aside the

judgment of conviction and order on sentence dated 09.12.2011

passed in C.C.No.9/2011 on the file of the Senior Civil Judge &

JMFC., Channagiri, and the judgment of conviction and order on

sentence dated 26.04.2013 passed in Crl.A.No.167/2011 by the

II Additional District and Sessions Judge, Davanagere and also

acquit the petitioner.

2. Heard the learned counsel appearing for the

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 14.12.2006 around 9:30 p.m., the accused being the

driver of the Tractor-Trailer drove the same with full of

passengers in the trailer in a rash and negligent manner on a

public road near Lakshmi Ranganathaswamy Temple of

Devarahalli Village and as a result of such driving the offending

vehicle run over on seven sheeps tied in front of the house of

Gudadappa and dashed against the bullock cart as a result the

offending tractor toppled down on the road and met with an

accident. It is also the case of the prosecution that two persons

died at the spot and one died in the hospital and several other

persons have sustained grievous injuries and simple injuries.

Hence, a case has been registered. The police have investigated

the matter and filed the charge sheet for the offences punishable

under Sections 279, 337, 338 and 304-A of IPC and Section 3 of

the MV Act and as against accused No.2 for the offences

punishable under Sections 5, 196, 192(A) read with Section 177

of MV Act.

4. The prosecution relied upon the evidence of P.Ws.1

to 25 and got marked the documents as Exs.P1 to P46. The

defense got marked a portion of the statement as Ex.D1. The

driver has not been examined before the Trial Court.

5. The trial Judge after considering both oral and

documentary evidence convicted the petitioner for the offence

punishable under Section 304(A) of IPC and sentenced him to

undergo simple imprisonment for a period of one year and fine

of Rs.5,000/- in default two months simple imprisonment and for

the offence punishable under Section 3 of the MV Act and

sentenced to undergo simple imprisonment for a period of one

month and fine of Rs.500/-, in default, ten days simple

imprisonment and the sentences passed against the petitioner

shall run concurrently.

6. Being aggrieved by the judgment of conviction and

order on sentence, an appeal in Crl.A.No.167/2011 is filed before

the Appellate Court. The Appellate Court on re-appreciation of

both oral and documentary evidence placed on record, confirmed

the judgment of the Trial Court. Hence, the present revision

petition is filed before this Court.

7. The learned counsel appearing for the petitioner

before this Court would vehemently contend that there was a

mechanical defect in the vehicle which caused the accident and

gear lever was also broken. Hence, he could not control the

vehicle, as a result, the accident was occurred and the same has

not been considered by the Trial Court as well as the Appellate

Court. The learned counsel also would submit that non-

examination of the accused before the Trial Court drawn an

adverse inference and the said approach is not correct. It is left

to the accused to examine before the Trial Court and not bound

to examine himself as defense witness. The learned counsel also

would submit that the evidence of P.W.1, P.Ws.3 to 5 and P.W.9

to 14 not corroborates the case of the prosecution and the

material contradictions are not considered by the respective

Courts.

8. Per contra, learned High Court Government Pleader

appearing for the respondent - State would submit that the

evidence available before the Court, particularly, the evidence of

P.W.1, P.Ws.3 to 5 and P.W.9 to 14, corroborates the case of the

prosecution and those witnesses are the material witnesses and

they have sustained the injuries and the same has been

appreciated by the Trial Court. The learned High Court

Government Pleader appearing for the State also would submit

that the other independent witnesses have also supported the

case of the prosecution.

9. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

would arise for the consideration of this Court are:

(i) Whether the Trial Court as well as the Appellate Court have committed an error in not appreciating the material available on record and passed any perverse order. Whether it requires an interference of this Court by exercising the revisional jurisdiction?

      (ii)    What order?

Point No.(i):

10. Having heard the respective counsel and on perusal

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

prosecution that this petitioner drove the tractor in a rash and

negligent manner and dashed against the sheeps as well as the

bullock cart, as a result, the vehicle was toppled and the

accident was occurred. Two persons died at the spot and one

died at the hospital and other persons sustained severe grievous

injuries and some persons with the simple injuries. The fact that

the accident is not disputed and witnesses, who have been

examined before the Trial Court particularly P.W.1, P.Ws.3 to 5

and P.W.9 to 14, are the injured witnesses and the prosecution

also mainly relied upon the documentary evidence i.e., Wound

Certificates of the injured persons, who had sustained the

injuries i.e., Exs.P8-27.

11. The main contention of the petitioner before the Trial

Court is that due to the mechanical defect, the petitioner could

not control the vehicle. In order to substantiate the same, the

document - Ex.P36-IMV report does not disclose any mechanical

defect. The IMV Inspector examined as P.W.24. In his cross-

examination also nothing is elicited with regard to the

mechanical defect is concerned. Only he says that with regard

to the gear box is concerned, he has not given any opinion and

not giving any opinion cannot be a ground to interfere with the

findings of the Trial Court. It is the duty cast upon the petitioner

to explain for what reason, the accident was occurred. He did not

choose to enter into the witness box. When he claims that on

account of the mechanical defect, an accident was occurred, he

has to explain the same by adducing the defense evidence and

no such defense evidence is placed before the Trial Court. When

such being the factual aspects of the case, I do not find any

error committed by the Trial Court in considering particularly,

the evidence of P.W.1, P.Ws.3 to 5 and P.W.9 to 14. No doubt,

P.W.15, P.W.17 and P.W.20, are the hostile witnesses and their

evidence no way affect the case of the prosecution. The evidence

given by the injured witnesses is cogent, consistent and

corroborative with each other. The complainant - P.W.6 deposes

about the accident as narrated in the complaint.

12. I have already pointed out that the oral evidence of

the injured witnesses and P.W.16 - eye witness is sufficient since

P.W.16, supported the case of the prosecution, who is an

eyewitness. When such material is considered by the Trial Court

and the Trial Court in detail discussed the evidence of

prosecution witnesses and particularly the injured witnesses

evidence and P.W.16 evidence, who were an eyewitness to the

incident. Hence, I do not find any error committed by the Trial

Court in appreciating both oral and documentary evidence placed

on record. The Appellate Court in paragraph Nos.13, 14 and 15

taken note of the evidence of prosecution witnesses, particularly,

the injured witnesses, who are traveling in the Tractor and also

taken note of the evidence of P.Ws.3 to 5 and P.W.9 to 14, apart

from other inmates evidence and also taken note of the evidence

of police witnesses, who have been examined as P.Ws.21 to 23

and 25 and also taken note of the evidence of IMV Inspector,

who has been examined as P.W.24, in detail discussed the

evidence of the prosecution and comes to the conclusion that the

Trial Court has not committed any error.

13. Having considered the judgment of conviction and

order on sentence of both Trial Court and Appellate Court and

also considering the eyewitness evidence - P.W.16, and apart

from the injured witnesses evidence i.e., P.W.1, P.Ws.3 to 5 and

P.W.9 to 14 and particularly, the evidence of IMV Inspector,

P.W.24 and IMV report does not discloses any mechanical defect.

When such being the factual aspects, it is not a fit case to

exercise the revisional jurisdiction unless the Trial Court and the

Appellate Court not considered the cogent evidence available on

record, the question of revisional jurisdiction does not arise.

Hence, I answer point No.(i) as 'negative'.

14. The learned counsel appearing for the petitioner

would submit that this Court to reduce the sentence to six

months instead of one year. Having considered the factual

aspects in this case, three persons have lost their life, apart from

that five persons have sustained the grievous injuries and other

persons have sustained the simple injures. Having taken note of

the gravity of the offences and the nature of allegations made in

the complaint and also taking into note of the number of persons

have lost their life; it is not a fit case to reduce the sentence to

six months as contended by the learned counsel for the

petitioner.

Point No.(ii):

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

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

cp*