Karnataka High Court

Nataraju vs State By on 25 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 25TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.860/2013

BETWEEN:

NATARAJU
S/O SOME GOWDA
AGED ABOUT 32 YEARS
R/AT KOMMEGOWDANA
KOPPLU VILLAGE
HUNSUR TALUK
MYSURU DISTRICT-571 107.                  ... PETITIONER

              (BY SRI ROOPESHA B, ADVOCATE)
AND:

STATE BY
BILEKERE POLICE
HUNSUR TALUK
MYSURU DISTRICT-571 107.                 ... 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 IMPUGNED ORDER DATED 07.06.2012 PASSED BY
THE F.T.C., HUNSUR IN CRL.A.NO.39/2009 AND THE ORDER
DATED 17.03.2009 PASSED BY THE CIVIL JUDGE (JR. DN.) AND
J.M.F.C., HUNSUR IN C.C.NO.354/2007 AND ACQUIT THE
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 279, 337, 338, 304(A) OF IPC AND R/W SECTIONS
134 AND 187 OF IMV ACT.
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     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 the records and set aside the

judgment of conviction and order on sentence dated 07.06.2012

in Crl.A.No.39/2009 passed by the Fast Track Court, Hunsur and

the order dated 17.03.2009 passed in C.C.No.354/2007 on the

file of Civil Judge (Jr.Dn.) & JMFC., Hunsur and 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 21.03.2007 at about 6:30 p.m., this petitioner drove the

tractor-trailer in a rash and negligent manner and dashed

against the autorickshaw, as a result, the passengers, who were

travelled in the autorickshaw have sustained the injuries. One of

the inmates of the autorickshaw died at the spot. Based on the

complaint, the police have registered a case, investigated the

mater and filed the charge-sheet for the offences punishable

under Sections 279, 337, 338, 304-A of IPC and also an offence

under Section 134 read with Section 187 of the IMV Act.

4. The prosecution in order to prove the charges

leveled against the petitioner examined PWs.1 to 12 and got

marked the documents - Exs.P1 to 11. The accused/petitioner

has not led any defense evidence before the Trial Court.

5. The Trial Court after considering both oral and

documentary evidence placed on record, particularly, the

evidence of P.W.1, 3, 4, 5, 7 and 9, who are the eyewitnesses

and the injured witnesses and referring the documents of Wound

Certificates viz., Exs.P5, 6 and 7 and also the sketch-Ex.P8 and

Ex.P10-IMV report, convicted the petitioner herein and

sentenced for a period of one year as substantive sentence for

an offence punishable Section 304-A of IPC. Being aggrieved by

the judgment of conviction and the order on sentence, an appeal

was filed before the Appellate Court in Crl.A.No.39/2009. The

Appellate Court on re-appreciation of both oral and documentary

evidence placed on record, confirmed the judgment of the Trial

Court. Being aggrieved by the confirmation and conviction, the

present revision petition is filed before this Court.

6. The main contention of the learned counsel

appearing for the revision petitioner before this Court is that

there are material contradictions in the evidence of prosecution

witnesses. Though the prosecution witnesses claim that there

are eyewitnesses and the injured witnesses, P.W.3 says that

there were three persons in the autorickshaw. P.W.7 says that

there were four persons in the autorickshaw. This aspect has

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

Court. The prosecution has not proved the case beyond all

reasonable doubt. In spite of it, the Trial Court has committed

an error relying on the evidence of the prosecution witnesses.

The learned counsel also would submit that when an

autorickshaw while driving in the down gradient went and hit the

rear portion of the tractor-trailer and this petitioner has not

drove the vehicle in a rash and negligent manner as contended.

Hence, it requires an interference of this Court.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that

the Trial Court has taken note of the eyewitnesses evidence and

injured witnesses i.e., PWs.1, 3, 4, 5, 7 and 9. Apart from that,

the Trial Court also taken note of the sketch, which clearly

depicts that the accident was taken place at the edge of the road

and in that area autorickshaw was proceeding on the left side of

the road. The driver of the tractor, who came in the opposite

direction, went towards right side and dashed against the

autorickshaw and the sketch-Ex.P8 is not disputed by the

petitioner herein. Learned High Court Government Pleader

appearing for the State also would submit that the IMV report

also clearly discloses that the rear portion of the trailer was

damaged since the rear portion came in contact with the

autorickshaw while driving the same in a rash and negligent

manner. Hence, there are no reasons to interfere with the

findings of the Trial Court as well as the Appellate Court.

8. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

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

Court are:

(i) Whether both the Courts have committed an error in convicting and confirming the conviction and the same amounts to a perverse order and whether this Court can exercise the revisional jurisdiction?

(ii) What order?

Point No.(i):

9. Having heard the respective counsel and also on

perusal of the material available on record, Ex.P10-IMV report

discloses the damages only to the trailer portion of the tractor

and more damages is caused to the autorickshaw. It is also the

case of the prosecution that the driver of the tractor-trailer i.e.,

the petitioner drove the vehicle in a rash and negligent manner

and dashed against the autorickshaw, as a result, autorickshaw

also sustained more damages. In order to substantiate the

same, the prosecution mainly relied upon the evidence of P.W.1

as well as the other witnesses - PWs.3, 4, 5, 7 and 9. P.W.1,

categorically deposed that the autorickshaw was proceeding on

the left side of the road and he was an inmate of the said

autorickshaw. The tractor-trailer came in a rash and negligent

manner and dashed against the autorickshaw, as a result,

Lokesha died at the spot and others have sustained the injuries.

10. In the cross-examination, he admits that there were

three passengers and nobody was sitting by the side of the

driver of the autorickshaw. However, he admits that the

autorickshaw was proceeding in the down gradient and moving

in a speed and also he admits that two persons were proceeding

on the said road as pedestrians. The autorickshaw was taken to

right turn in order to avoid dashing against those pedestrians

consequent upon, the tractor hit the autorickshaw. No doubt,

this petitioner also admits that the autorickshaw belongs to their

village and the driver also known to them. This answer is also

elicited from the mouth of P.W.3 that the autorickshaw belongs

to their village. He categorically says that the tractor right

portion dashed against the autorickshaw and the same is evident

on perusal of the document Ex.P10 - IMV report.

11. It is also important to note that on perusal of the

sketch, which is marked before the Trial Court as Ex.P8, which

clearly depicts that the autorickshaw on the left side of the road

i.e., on the left direction and the tractor-trailer, which came in

the opposite direction went to the right side and the sketch-

Ex.P8 is not disputed. Having taken note of both oral and

documentary evidence placed on record, the evidence of eye

witnesses and also the injured witnesses and also the sketch-

Ex.P8 and Ex.P10-IMV report, the oral evidence is corroborated

by the documentary evidence i.e., Ex.P10 since the right side

two hooks of the trailer was dented except that no damages

were to the tractor and the Autorickshaw's windshield and head

light were damaged and the front shape was dented. Hence, it is

clear that the trailer portion came in contact with the front

portion of the autorickshaw. When such material is available

before the Court both oral and documentary evidence placed on

record corroborates the case of the prosecution. The Trial Court

and the Appellate Court both have considered the material

evidence particularly the oral evidence of PWs.1, 3, 4, 5, 7 and 9

as well as the documentary evidence Ex.P8-sketch and

particularly Ex.P10-IMV report and given a finding that the

accident was occurred due to the negligence on the part of the

present petitioner.

12. Having considered the material available on record, I

do not find any error committed by the Trial Court as well as the

Appellate Court on re-appreciation of both oral and documentary

evidence placed on record and the very contention of the learned

counsel for the petitioner is that there are contradictions in the

prosecution witnesses and P.W.1 says that there were three

passengers, P.W.7 says that there were 4 passengers and the

same will not goes to the very route of the case of the

prosecution. The learned counsel for the petitioner would submit

that there were 10 to 12 persons in the autorickshaw and in

order to substantiate the same, nothing is elicited from the

witnesses except eliciting that 3 and 4 passengers i.e., the minor

discrepancy. Hence, the very contention cannot be accepted.

The prosecution mainly relied upon the evidence of injured

witnesses, who have also sustained the injuries. Exs.P5, P6 and

P7 clearly disclose the injuries sustained by other witnesses who

have been deposed before the Court. Hence, I do not find any

force in the contention of the learned counsel for the petitioner

that this Court can exercise the revisional jurisdiction. This Court

can exercise the revisional jurisdiction if only perversity is find in

considering the evidence available on record. Both the Trial

Court as well as the Appellate Court relied upon the evidence of

injured witnesses and also the eyewitnesses to the accident.

Hence, I do not find any ground to invoke the revisional

jurisdiction and not found any error in considering the material

available on record and not found any illegality and incorrectness

in the judgment and order of the Trial Court.

13. However, the Trial Court has convicted the petitioner

for an offence punishable under Sections 279 of IPC and

imposed fine amount. When the ingredients of an offence

punishable under Sections 279 of IPC merges with the serious

offence punishable under Section 304-A of IPC, the Trial Court

ought not to have convicted for the offence under Section 279 of

IPC and the Appellate Court also not considered this aspect and

blindly accepted the case of the Trial Court. Hence, it requires an

interference of this Court and the same has to be set aside. If

any fine amount is deposited in respect of an offence under

Section 279 of IPC is ordered to be refunded.

14. Now coming to the aspect of the sentence is

concerned, one year sentence is imposed. Having considered

the gravity of the offences, no doubt, one person lost his life at

the spot and others have sustained the injuries and the wound

certificates are marked as Exs.P5, P6 and P7. Taking into note

of the gravity of the offences and the accident was taken place in

the year 2007 almost one and a half decade was lapsed. At this

juncture, this Court would like to rely upon the judgment of the

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

reported in (2015) 5 SCC 182, wherein, the Apex Court

discussed in different paragraphs regarding awarding of

compensation. In paragraph No.24, the Apex Court came to the

conclusion that 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. Hence, the Apex Court set aside the awarding of

payment of compensation is a factor for reduction of sentence.

Further observed that, it is, in a way mockery of justice. Because

justice is "the crowning glory", "the sovereign mistress" and

"queen of virtue" as Cicero had said. Such a crime blights not

only the lives of the victims but of many others around them. It

ultimately shatters the faith of the public in judicial system.

Hence, setting aside the order of the High Court sentenced the

appellant to undergo sentence for a period of six months for an

offence punishable under Section 304A of IPC. Hence, it is

appropriate to reduce the sentence from one year to six months

for an offence punishable under Section 304A of IPC.

Point No.(ii):

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

following:

ORDER

(i) The revision petition is allowed in part.

(ii) The impugned judgment of conviction and order on sentence for an offence punishable under Section 279 of IPC, is hereby set aside.

(iii) If any fine amount is deposited by the petitioner is ordered to be refunded to him on proper identification in respect of an offence punishable under Section 279 of IPC.