Karnataka High Court

Shivaraj Kumar vs State Of Karnataka on 28 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

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

       CRIMINAL REVISION PETITION NO.1168/2012

BETWEEN:

SHIVARAJ KUMAR
S/O. NARAYANAPPA,
AGED ABOUT 23 YEARS,
GULGANJAN HALLI,
KENGERI HOBLI,
BENGALURU-560 026.                            ...PETITIONER

        (BY SRI DINESH KUMAR K. RAO, ADVOCATE FOR
               SRI R.B.DESHPANDE, ADVOCATE)
AND:

STATE OF KARNATAKA
BY BYATARAYANAPURA POLICE-560026,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BENGALURU-560 001.                      ...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 ORDER OF CONVICTION OF SENTENCE AND
FINE IMPOSED DATED 29.09.2011 PASSED BY THE MMTC-II,
BENGALURU IN C.C.NO.826/2010 AND JUDGMENT AND ORDER
OF CONVICTION AND FINE DATED 09.10.2012, PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-IV, BENGALURU, IN
CRIMINAL APPEAL NO.733/2011.
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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 of conviction and sentence dated

29.09.2011 passed by the Metropolitan Magistrate Traffic

Court-II, Bengaluru in C.C.No.826/2010 and also to set aside the

judgment and order of conviction dated 09.10.2012, passed by

the Presiding Officer, Fast Track Court-IV, Bengaluru, in Criminal

Appeal No.733/2011.

2. Heard the learned counsel for the petitioner and

learned High Court Government Pleader appearing for the State

3. The factual matrix of the case of the prosecution

before the Trial Court is that on 31.07.2010 around 9.55 a.m.,

this petitioner being the driver of the tipper lorry bearing No.KA-

416217 drove the vehicle in a rash and negligent manner

through Mysore Road and dashed against the motorcycle. As a

result, both the rider and the pillion rider of the motorcycle have

fell down and the rider of the motorcycle had sustained simple

injuries and the pillion rider, who also sustained injuries

succumbed to the same, since the lorry ran over the head of the

pillion rider.

4. Based on the complaint, the police have registered

the case for the offences punishable under Sections 279, 337

and 304-A of IPC, Section 134 (a) and (b) read with Section 187

of IMV Act and Section 146 read with Section 196 of IMV Act.

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

examined P.Ws.1 to 8 and marked the documents as Exs.P1 to

P13. The petitioner has not led any evidence against the

evidence of the prosecution.

6. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the petitioner

for all the offences invoked against him and substantive

sentence of 6 months is awarded for the offence punishable

under Section 304-A of IPC and imposed a fine of Rs.3,000/-. In

default of payment of fine, ordered to undergo simple

imprisonment for three months. The Trial Court also imposed

sentence as well as fine in respect of other offences.

7. Being aggrieved by the judgment and conviction, an

appeal is filed before the Appellate Court in Crl.A.No.733/2011

and the Appellate Court, on re-appreciation of both oral and

documentary evidence placed on record, confirmed the judgment

of conviction and sentence passed by the Trial Court. Being

aggrieved by the judgment of conviction and sentence and

confirmation by the Appellate Court, the present revision petition

is filed.

8. The main contention of the learned counsel for the

petitioner before this Court is that, though P.W.3 claims that he

is an eye witness to the accident, he categorically admitted in

the cross-examination that he could not identify the petitioner

and the only evidence that remains before this Court is P.W.1.

The counsel would submit that P.W.1 also in his evidence not

specifically deposed with regard to the identification of this

petitioner and brought to the notice of this Court that in the

cross-examination, he admitted that the spot of accident is a

busy road in the morning hours and the said road has got 40

feet width and the same is a two way traffic road.

9. The counsel also brought to the notice of this Court,

suggestions are made that this petitioner has not involved in any

accident and the same was denied. The counsel also would

submit that P.W.5 has also not spoken anything about

involvement of this petitioner, except stating that the name

Shivaraj Kumar mentioned in Ex.P8 is the accused before the

Court. The counsel also would submit that the vehicle number

mentioned in the complaint is different from the charge-sheet

and these are the contradictions which are not considered by

both the Trial Court as well as the Appellate Court. Hence, the

judgment of conviction and sentence may be set aside.

10. Per contra, learned High Court Government Pleader

appearing for the respondent-State would submit that the lorry

owner, who has been examined before the Court as P.W.5

categorically stated that, in Ex.P8, the name of this petitioner is

specifically mentioned and his signature is also marked, wherein

he categorically deposed that the name Shivaraj Kumar

mentioned in Ex.P8-reply is the accused before the Court.

Hence, the very contention of the learned counsel for the

petitioner that the witnesses have not identified the petitioner

cannot be accepted and the owner of the lorry, who has been

examined as P.W.5 has admitted that this petitioner was the

driver of the vehicle which has involved in the accident in terms

of Ex.P8.

11. Learned High Court Government Pleader appearing

for the respondent-State would also submit that, P.W.1 in his

evidence categorically deposed before the Court that lorry came

from the rear side and dashed against the motorcycle from the

left side and thereby, both of them fell down and the pillion rider

fell down on the left side and at that time, the lorry ran over the

head of the pillion rider. It is also his evidence that the accident

has occurred due to the negligence on part of the petitioner.

The counsel would also submit that, except mentioning that the

road is a busy road having 40 feet width, nothing is elicited in

the cross-examination of P.W.1 to discredit the evidence of

P.W.1.

12. She would further submit that, P.W.3 also

categorically deposed before the Court that there was an

accident at Ring Road of Kengeri Upanagar near Ganesha temple

and at that time, the lorry came from the rear side and dashed

against the motorcycle and thereafter, the rider and the pillion

rider fell down on the road. His evidence is also clear that the

lorry driver drove the vehicle in a rash and negligent manner.

Regarding identification is concerned, he was treated as hostile

and cross-examined by the Additional Public Prosecutor and

suggestion was made that he had seen the driver of the tipper

lorry and the said suggestion was denied. But, in the cross-

examination by the defence counsel, it is elicited that he was at

a distance of 20 feet from the accident and immediately after

hearing the sound, he saw the accident and went to the spot

but, he denied the suggestion that lorry did not cause the

accident and it is also elicited that the deceased was not known

to him. It is suggested that he never witnessed the accident and

he denied the said suggestion. When these are the material on

record before the Court, the Trial Court, taking note of the

document at Ex.P1 and the sketch as well as the IMV report,

rightly comes to the conclusion that the accident was on account

of negligence on the part of the petitioner. Hence, it does not

require any interference.

13. Having heard the respective counsel and also on

perusal of the material on record i.e., both oral and documentary

evidence, the points that would arise for consideration of this

Court are:

(1) Whether the Trial Court has committed an error in accepting the evidence of P.W.1 and also the evidence of P.W.3 and other documentary evidence and committed an

error in convicting the petitioner for the offences invoked against him?

(2) Whether the Appellate Court has committed an error in not properly re-appreciating the evidence on record and confirming the judgment of conviction and sentence and whether this Court can exercise the powers under Section 397 read with Section 401 of Cr.P.C.?

(3) What order?

Point Nos.(1) and (2)

14. Having heard the respective counsel and also on

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

prosecution that this petitioner drove the vehicle in a rash and

negligent manner and dashed against the motorcycle which was

proceeding on the left side of the road. As a result, P.W.1, who

is the rider of the motorcycle has sustained injuries and the

pillion rider succumbed to the injuries and there is no dispute

with regard to the accident and the death of the pillion rider in

the accident. However, the only dispute is that this petitioner

was not the driver of the vehicle and he did not cause any

accident as deposed by the prosecution witnesses.

15. The prosecution mainly relies upon the evidence of

P.W.1. The P.W.1 is the complainant and also an injured

witness. In order to prove the fact that P.W.1 had sustained

injuries in the accident, the prosecution relied upon the

document at Ex.P5-wound certificate and it discloses that P.W.1

has sustained simple injuries. Hence, it is clear that he had

sustained injuries in the accident and whether the evidence of

P.W.1 inspires the confidence of the Court to come to a

conclusion that this petitioner has caused the accident. On

perusal of the evidence of P.W.1, he categorically deposed

before the Court that lorry came behind and dashed against the

motorcycle which was proceeding on the left side of the road and

due to the said impact, both of them fell down and sustained

injuries.

16. I have already pointed out that, there is no dispute

with regard to the accident is concerned. The P.W.1 in his

evidence categorically deposed the manner in which the accident

has taken place. It is also important to note that the owner of

the vehicle has given reply in terms of Ex.P8, wherein he has

specifically mentioned that when the accident took place, the

petitioner was the driver of the said vehicle. The same has been

questioned, when he was examined as P.W.5. He also

categorically deposed before the Court that the document shown

to him bears his signature i.e., Exs.P7 and P8. Ex.P7 is the copy

of notice given to him and Ex.P8 is the reply given by him. He

also categorically admits that, in Ex.P8, the name of Shivaraj

Kumar is mentioned, who is the accused before the Court. The

owner of the vehicle identifies that he gave the details in terms

of Ex.P8 and in terms of Ex.P8, this petitioner was the driver of

the vehicle at the time of the accident.

17. No doubt, in the evidence of P.W.3, he speaks with

regard to the accident is concerned and how the accident has

taken place, but did not identify the petitioner. Hence, cross-

examination was made by the prosecution. In the cross-

examination, he categorically says that he was at a distance of

20 feet from the accident spot and after hearing the sound, he

saw the accident and went to the spot and suggestion was made

that the lorry has not caused the accident and the same was

denied and also denied the suggestion that he did not witness

the accident. Hence, it is clear that he witnessed the accident

but, not specifically mentioned the name of the petitioner.

18. P.W.1 also in his evidence categorically deposed that

the lorry driver drove the vehicle in a rash and negligent manner

and in the cross-examination, he admits that he was proceeding

on the left side of the road at a distance of 5-10 feet from the

edge of the road.

19. When such evidence is available before the Court,

the evidence of P.Ws.1, 3 and 5 corroborates with each other

with regard to the accident is concerned. The sketch at Ex.P12

also discloses that both the vehicles were moving in the same

direction and the tipper lorry came from behind and dashed

against the motorcycle which was on the left side of the road.

When such material is placed on record and the same is

appreciated by both the Trial Court and the Appellate Court, the

question of invoking revisional jurisdiction does not arise. The

Trial Court also, while appreciating the material on record, taken

note of the evidence, particularly the evidence of P.Ws.1, 3 and

5 and observed in para No.15 that though P.W.3 turned hostile

in respect of the identification of the accused as driver, taken

note of the evidence of P.Ws.1 and 5 with regard to the accident

is concerned. The Trial Court also in para No.16, taken note of

combined reading of evidence of P.Ws.1, 3, 5 and 8 and also

taken note of IMV report as well as the sketch and in detail

discussed the same from para Nos.14 to 17 and arrived at a

finding.

20. The Appellate Court also, in the judgment,

reassessing both oral and documentary evidence placed on

record, taken note of Ex.P7-copy of notice and also the reply

given by the owner of the vehicle and the same is discussed in

para No.16. The Appellate Court also observed regarding the

identity of the petitioner is concerned and also taken note of the

evidence of other witnesses, particularly the evidence of P.Ws.1,

3 and 5 and considered Ex.P13-mahazar regarding place of

accident is concerned and having considered the documentary

evidence Exs.P7, P8 and also Ex.P13, discussed the same in para

No.17. The Appellate Court has also discussed with regard to

the discrepancy in the vehicle is concerned and also observed

that either the accused or P.W.5 have taken any legal recourse

against the complainant or police for falsely involving the

accused and the vehicle in the accident and also mentioning of

the vehicle number which has involved in the accident and the

discrepancy with regard to mentioning the vehicle number is also

discussed by the Appellate Court.

21. Having considered the judgment of the Trial Court as

well as the judgment of the Appellate Court, the prosecution

mainly relied upon the evidence of P.W.1, who is an injured

witness, who had sustained injuries in the accident and also in

order to prove the fact that he had sustained injuries, wound

certificate is also marked. Apart from that, Ex.P12-sketch is

taken note of to evidence the fact the vehicles were moving in

the same direction and the evidence of P.W.1 is also that, when

he was proceeding along with the deceased on the left side of

the road, the driver of the lorry dashed against the motorcycle

and due to the impact, both of them fell down and the pillion

rider succumbed to the injuries since, lorry ran over his head.

22. When such materials are available on record and also

the same is accepted by the Trial Court and the Appellate Court

also on re-appreciation in Crl.A.No.733/2011 in para No.21

discussed in detail the evidence of P.W.1, who categorically

deposed that at a distance of 5 feet from the left side edge of

the road, he was driving the motorcycle and also taken note of

the documents at Ex.P2-spot mahazar as well as Ex.P12-sketch.

The Appellate Court also, in para No.12, on re-appreciation of

evidence, comes to the conclusion that on account of negligence

on the part of the petitioner, the accident has occurred.

23. When such definite finding is given by the Trial Court

as well as the Appellate Court on re-appreciation, I do not find

any error committed by both the Courts in re-appreciation of

evidence on record. Hence, it is not a fit case to exercise the

discretion invoking the provisions under Section 397 read with

Section 401 of Cr.P.C. to interfere with the findings of both the

Courts. This Court can exercise the revisional jurisdiction, if the

material on record is not considered by both the Courts and

when there is a perverse order and both the Courts not looked

into the cogent material on record. In such circumstances, the

Court can invoke revisional jurisdiction and the same is not

warranted in the case on hand. Hence, I answer point Nos.(1)

and (2) as 'negative'.

24. Now, coming to the aspect of the offences which

have been invoked against the petitioner, including the offence

under Section 279 of IPC, the Trial Court ought not to have

invoked the offence under Section 279 of IPC, when the

ingredients of Section 279 of IPC merges with the serious

offence of Section 304-A of IPC. Hence, it requires interference

of this Court and to set aside the order passed by the Trial Court

for the offence under Section 279 of IPC and the Appellate Court

also not considered the said fact.

25. In respect of the sentence is concerned with regard

to Section 304-A of IPC, learned counsel for the petitioner would

submit that the petitioner was aged about 23 years at the time

of the accident and now, almost, 12 years have elapsed and it is

an accident and no purpose would be served in sending him to

jail. Hence, monetary compensation can be given to the family

of the victim. The said submission cannot be accepted, 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 of the said judgment, the Apex

Court comes 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. In the said case, the Apex Court, reduced the

sentence from one year to six months for the offence under

Section 304-A of IPC.

26. When such being the facts and circumstances, it is

not a fit case even to reduce the sentence and the sentence of

six months is minimum sentence for the offence under Section

304-A of IPC. Hence, the contention of the learned counsel for

the petitioner that the petitioner was aged about 23 years at the

time of the accident and now, almost, 12 years have elapsed and

it is an accident and no purpose would be served in sending him

to jail cannot be accepted.

Point No.(3)

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

following:

ORDER

(i) The Criminal revision petition is allowed in part.

(ii) The judgment of conviction and sentence for the offence under Section 279 of IPC is hereby set aside. If any fine is deposited before the Trial Court for the said offence, the same shall be refunded to the petitioner on proper identification.