Addam vs State Of Karnataka
2022 Latest Caselaw 5154 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.688/2013

BETWEEN:

ADDAM,
S/O LATE MOHAMMED BYARI,
AGED ABOUT 56 YEARS,
R/AT KUKKAJI GERU ,
PADAPUMANE, BANTWAL TALUK,
D.K DISTRICT-574 211.                          ...PETITIONER

              (BY SRI ROHITH B.J., ADVOCATE)

AND:

STATE OF KARNATAKA,
REP BY HOLENARSIPURA TOWN POLICE ,
HOLENARSIPURA,
HASSAN DISTRICT-573 211.                   ...RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 09.09.2011 PASSED BY THE C.J., AND JMFC.,
HOLENARASIPURA IN C.C.NO.369/2008 AND THE ORDER DATED
31.07.2013 PASSED BY THE II ADDL.DIST., AND S.J., HASSAN,
IN CRL.A NO.106/2011.

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

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

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

that on 16.11.2007 at about 1.00 p.m. near Karaganahally bus

stop on Sabbanahally - Malali Road, this petitioner being the

driver of the mini lorry drove the same in a rash and negligent

manner and dashed against the children of C.W.5 by name

Pallavi, Pavithra and also against C.W.8 Suresh and C.W.9

Manjula. As a result, they have sustained simple injuries and

one child Pallavi succumbed to injuries. Based on the complaint

lodged by P.W.1, case has been registered, matter has been

investigated and filed the charge-sheet for the offence

punishable under Sections 279, 337, 338 and 304A of IPC. The

prosecution in order to prove the case examined P.W.1 to

P.W.16 and got marked the documents at Exs.P.1 to 8(a). On

the other hand, the petitioner did not lead any defence evidence.

The Trial Court after considering both oral and documentary

evidence placed on record, convicted the petitioner for all the

offences and substantive sentence is for one year for the offence

punishable under Section 304A and to pay fine of Rs.1,000/-.

For the offence under Sections 279 and 338 of IPC, the

petitioner was sentenced to undergo simple imprisonment for a

period of six months and to pay fine of Rs.1,000/- and Rs.500/-

respectively. For the offence punishable under Section 337 of

IPC, the petitioner was sentenced to undergo simple

imprisonment for a period of two months and to pay a fine of

Rs.500/-. Being aggrieved by the judgment of conviction and

sentence, an appeal was filed in Crl.A.No.106/2011 and the

Appellate Court on re-appreciation of the material on record,

confirmed the judgment of the Trial Court. Being aggrieved by

the judgment of the Trial Court as well as the confirmation order

passed in the appeal by the Appellate Court, the present revision

petition is filed.

3. The learned counsel for the petitioner would contend

that P.W.8 has categorically admitted in the cross-examination

that the accident road is a upgradient road. The learned counsel

submits that the witnesses are all relatives and they are

interested witnesses and the evidence of these witnesses has not

been considered by the Trial Court as well as the Appellate Court

in a right perspective. The interested witnesses evidence has

been relied upon by the Trial Court and the Appellate Court. The

learned counsel submits that the injured and also the victim

were standing on the dambar road and they were not sitting in

the bus stand and admittedly the bus was about to come at

around 1.00 p.m. and accident occurred prior to that. These are

the aspects which have not been considered by the Trial Court

and the Appellate Court.

4. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

P.W.6 and P.W.11 are the injured witnesses and P.W.7 to P.W.9

are the eye-witnesses and P.W.12, who is an eye-witness also

reiterated the manner of accident. The learned counsel submits

that the place of accident, which is shown in the document

Ex.P.3 spot mahazar is also not disputed and the same clearly

depicts that the accident was occurred on the edge of the road

and this petitioner took the vehicle to the extreme side of the

road and caused the accident against the persons who were

waiting near the bus stop to board the bus and hence both the

Trial Court and the Appellate Court have not committed any

error in convicting and confirming the order of conviction.

5. Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader appearing for

the respondent-State and looking into both oral and

documentary evidence placed on record, the points that arise for

the consideration of this Court are:

(i) Whether the Trial Court has committed an error in convicting the petitioner relying upon the prosecution witnesses and the very finding is contrary to the evidence available on record?

(ii) Whether the Appellate Court committed an error in accepting the evidence of the prosecution witnesses and failed to re-

appreciate the material available on record and committed an error in confirming the order of the Trial Court?

(iii) Whether the petitioner has made out a ground to invoke the revisional jurisdiction in coming to the conclusion that the findings given by the Trial Court and the Appellate Court is not based on the evidence available of record and the same is contrary to the material on record?

      (iv)    What order?




Point Nos.(i) to (iii):

6. Having heard the respective learned counsel and also

on perusal of the material on record, the very charges levelled

against this petitioner is that he drove the lorry in a rash and

negligent manner and dashed against the persons, who were

waiting near the bus stop to board the bus. It is the case of the

prosecution that one Pallavi died on account of the injuries

sustained by her and others have also sustained injuries. Having

considered both oral and documentary evidence placed on

record, P.W.6 is the injured witness Suresh and P.W.11 Manjula

is also the injured witness. Apart from that, P.W.7 to P.W.9 are

the eye-witnesses, who were there at the spot. The very

contention of the learned counsel for the petitioner is that P.W.8

admits in the cross-examination that the accident place is

upgradient road and in the cross-examination he admits that

there were potholes in the said road. The learned counsel

contend that when there were potholes in the road, the

petitioner cannot drive the vehicle in a rash and negligent

manner as deposed by the prosecution witnesses. The learned

counsel also brought to the notice of this Court Ex.P.3 spot

mahazar and on perusal of Ex.P.3, it is clear that the place of

accident is a public road and the accident was occurred on the

edge of the western portion of tar road and also in terms of

Ex.P.3, blood stains are found at the spot of the accident and it

also shows that there is a 3 feet mud road on the edge of the

road and width of the tar road is 12 feet.

7. The learned counsel for the petitioner tried to

convince this Court that other vehicles were coming at the time

of the accident and hence the petitioner went to the extreme left

side of the road. But, no such material is available before the

Court and the petitioner has not examined himself explaining

what made him to go to the extreme side of the road, wherein

nearby bus stand is also situated. The fact is that the injured

persons and victim were standing to board the bus near the bus

stand and Ex.P.5 IMV report discloses that due to the impact,

damage was caused to the motor vehicle and the inspection

report shows damage caused to wind shield and both door

glasses were damaged. It is important to note that the

witnesses have identified the petitioner. Merely because an

admission is elicited that road is upgradient, the very contention

of the learned counsel for the petitioner that no chances of

accident cannot be accepted. Having considered the contents of

Exs.P.3 and 5, the evidence of P.W.6 and P.W.11, who have

sustained injures in the said accident and also the wound

certificate of P.W.16 and P.W.11 marked as Exs.P.7 and 8 and

also taking note of when there is a direct evidence against the

petitioner and witnesses have identified the petitioner, the very

contention of the learned counsel for the petitioner that both the

Courts have committed an error and not considered both oral

and documentary evidence placed on record in a right

perspective cannot be accepted. The Trial Court and the

Appellate Court have considered the evidence of the eye-

witnesses as well as documentary evidence particularly Ex.P.3

spot mahazar as well as IMV report and hence I do not find any

force in the contention of the learned counsel for the petitioner

to reverse the finding of the Trial Court and the Appellate Court.

8. Now coming to the aspect of conviction in respect of

all the offences is concerned, the prosecution invoked the

offence under Section 279 of IPC and when the ingredients of

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

of IPC, the Trial Court ought not to have convicted and

sentenced the petitioner for the offence punishable under

Section 279 of IPC and hence it requires interference of this

Court to set aside the conviction and sentence for the offence

under Section 279 of IPC.

9. Now coming to the substantive sentence of one year

in respect of offence under Section 304A of IPC is concerned.

Considering the fact that the accident was occurred in 2007 and

almost 1½ decade has been elapsed and in view of the judgment

of the Apex Court in the case of STATE OF PUNJAB v.

SAURABH BAKSHI reported in (2015) 5 SCC 182, wherein in

paragraph No.24 it is pointed out that payment of compensation

is a factor for reduction of sentence to 24 days is not correct and

the same is misplaced sympathy and it is observed that it is in a

way of mockery to justice and reduced the sentence from one

year to six months. In the case on hand, taking note of the age

of the petitioner as well as the incident was taken place more

than 1½ decade ago, it is appropriate to reduce the sentence

from one year to six months and the same is minimum sentence.

Hence, I answer point Nos.(i) and (ii) as negative and point

No.(iii) as partly affirmative.

Point No.(iv):

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

following:

ORDER

The revision petition is allowed in part setting aside the

judgment of conviction and sentence for the offence punishable

under Section 279 of IPC. If any amount in deposit before the

Trial Court in respect of the said offence is ordered to be

refunded in favour of the petitioner, on proper identification.

The substantive sentence imposed on the petitioner for the

offence punishable under Section 304A of IPC is reduced to six

months instead of one year. In respect of other offences is

concerned, the sentence is confirmed.

Sd/-

JUDGE

MD