Karnataka High Court

N P Mahesh vs State By on 31 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MARCH, 2022

                          BEFORE

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

       CRIMINAL REVISION PETITION NO.327/2013

BETWEEN:

N.P.MAHESH
S/O PUTTASWAMYGOWDA
AGED ABOUT 35 YEARS
R/A DOOR NO. 1942
CHAMALAPURA STREET
NANJANAGUD TOWN-571301
MYSURU DISTRICT.                            ...PETITIONER

            (BY SRI M.K.GIRISHA, AMICUS CURIAE)
AND:

STATE BY
NANJANAGUDU RURAL P.S.-571301
REP. BY STATE PUBLIC PROSECUTOR.
HIGH COURT OF KARNATAKA
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 JUDGMENT AND ORDER OF CONVICTION OF
SENTENCE AND FINE OF RS.10,000/- WITH DEFAULT SENTENCE
DATED 08.06.2012 PASSED BY THE PRL. CIVIL JUDGE & JMFC,
NANJANGUD IN C.C.NO.505/2009 AND JUDGMENT AND ORDER
DATED 23.01.2013 PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT-IV, MYSURU IN CRIMINAL APPEAL NO.98/2012.
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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

08.06.2012 passed by the Prl. Civil Judge and JMFC, Nanjangud

in C.C.No.505/2009 and judgment and order dated 23.01.2013

passed by the Presiding Officer, Fast Track Court-IV, Mysuru in

Criminal Appeal No.98/2012.

2. Heard the Amicus Curie 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

before the Trial Court is that on 09.11.2008 at about 9.30 p.m.

on N.H-212 Highway near SIPM Factory, on the Main Road, while

the deceased Nagaraju along with his wife, who has been

examined as C.W.2-Vanaja were proceeding on the motorcycle

from Thandavapura towards Nanjangudu, at that time, the driver

of the Toyota Qualis, i.e., the petitioner herein drove the vehicle

in a rash and negligent manner and dashed against the

motorcycle which has resulted in death of Nagaraju and grievous

injuries to C.W.2-Vanaja. The petitioner, left the car at the

distance and flee away from the spot without giving any

information. Hence, case has been registered for the offences

under Section 279, 338 and 304-A of IPC read with Section 187

of IMV Act. The police have also investigated the matter and

filed the charge-sheet and the petitioner-accused was secured

before the Trial Court.

4. The prosecution, in order to prove the charges, relied

upon the evidence of P.Ws.1 to 11 and marked the documents

as Exs.P1 to P9. On the other hand, the defence confronted the

document Ex.D1 i.e., statement of P.W.8 and not led any

defence evidence.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the petitioner

for all the offences and imposed substantive sentence of rigorous

imprisonment for two years and imposed fine of Rs.10,000/-. In

default of payment of fine, ordered to undergo simple

imprisonment for a period of six months.

6. Being aggrieved by the said judgment of conviction,

appeal is filed in Crl.A.No.98/2012. The Appellate Court also, on

re-appreciation of both oral and documentary evidence placed on

record, reduced the substantive sentence from two years to six

months and ordered to pay the fine amount. Out of the fine

amount, the Appellate Court, ordered to pay a sum of

Rs.10,000/- to the wife and children of the deceased. Being

aggrieved by the judgment of conviction and sentence, the

present revision petition is filed.

7. The main contention of the Amicus Curie, who was

appointed on behalf of the petitioner is that both the orders of

the Trial Court as well as the Appellate Court is one sided and

not appreciated the material on record in right perspective. He

would also submit that both the Courts have given weightage

only to the evidence of P.W.2 and failed to appreciate the other

material on record and it requires interference of this Court.

8. Per contra, learned High Court Government Pleader

appearing for the respondent-State would submit that, P.W.1 is

the eye witness and the complainant, who supported the case of

the prosecution and nothing is elicited from the mouth of P.W.1.

P.W.2 is an injured witness, who is the wife of the deceased. In

the cross-examination of P.W.2, a suggestion was made that she

was the pillion rider in the said vehicle. The other witness is

P.W.9, who is the D.G.M. in Indus Villa Factory deposed before

the Court that this petitioner was working as driver in the

company and later, he got released the vehicle from the police

and this petitioner was the driver on the date of the accident and

the evidence of P.W.9 is also not discredited in the cross-

examination. Hence, both the Courts have not committed any

error in appreciating both oral and documentary evidence placed

on record. Therefore, it does not require interference of this

Court.

9. Having heard the Amicus Curie for the petitioner and

the learned High Court Government Pleader appearing for the

respondent-State and also on perusal of the material on record,

the points that would arise for consideration of this Court are:

(1) Whether the Trial Court has committed an error in convicting the petitioner for the offences under Sections 279, 338 and 304-A of IPC read with Section 187 of IMV Act?

(2) Whether the Appellate Court has committed an error in modifying the judgment of conviction and sentence passed by the Trial Court and whether this Court can exercise the revisional jurisdiction?

(3) What order?

Point Nos.(1) and (2)

10. Having heard the respective counsel and also on

perusal of the material on record, P.W.1 is the eye witness and

the complainant, who speaks that the deceased was proceeding

at a distance of 100 meters and he saw the dead body and this

petitioner drove the vehicle in a rash and negligent manner and

vehicle also came in the wrong side. He would also submit that,

after the accident, he ran away from the spot. This witness was

cross-examined and in the cross-examination, it is elicited that

more number of vehicles move in the said road. It is elicited

that there was a curve road and hence, if any vehicle comes in

the opposite direction, the same cannot be seen and also admits

that at a very little distance, there is a barricade. But, he says

that the driver of the Qualis vehicle went on wrong side and

dashed against the motorcycle.

11. The other witness is P.W.2, who is the wife of the

deceased and she also reiterates regarding negligence on the

part of the petitioner. In the cross-examination, it is suggested

that she was the pillion rider of the said vehicle and also she

categorically says in the cross-examination that this petitioner,

after the accident escaped from the spot.

12. The other witness is P.W.9, who is the D.G.M. of

Indus Villa Factory categorically says that this petitioner was the

driver of the offending vehicle which has involved in the accident

and he also identifies the petitioner before the Trial Court and he

also says that he only got released the vehicle but, admits that

he does not know anything about the accident.

13. Having considered the evidence on record, P.W.9

identifies this petitioner that he was the driver. No doubt, it is

elicited that he has not witnessed the accident, P.W.1 is the eye

witness and P.W.2 is an injured eye witness, who is the wife of

the deceased. In the cross-examination, it is suggested to her

that she was the pillion rider in the said vehicle. Apart from

that, she categorically says that the petitioner has absconded

from the spot, immediately after the accident.

14. Having considered the evidence of P.W.1, coupled

with the evidence of P.W.2 as well as with regard to the

identification of the petitioner is concerned, P.W.9 categorically

deposed that he was the driver on the date of the accident and

specific allegation is made against the petitioner in terms of

Ex.P1-complaint. Apart from that, Ex.P9-sketch clearly depicts

that the petitioner went on wrong side and dashed against the

two wheeler and the total width of the road is 22 feet and

accident has occurred on the edge of the left side of the road in

which the deceased and P.W.2 were proceeding and they were in

the edge of 5 feet from the road. Hence, the document Ex.P9-

sketch also corroborates the oral evidence of P.Ws.1 and 2, who

have spoken that this petitioner went on wrong side and dashed

against the motorcycle.

15. Having considered both oral and documentary

evidence placed on record and also the findings of the Trial

Court, the Trial Court in para Nos.9 to 17 discussed the evidence

of prosecution witnesses. In para No.18, discussed with regard

to Ex.P1-complaint and other documentary evidence and relying

upon both oral and documentary evidence placed on record, in

para No.21, comes to the conclusion that identity of the accused

is not at all disputed by the defence and also taking note of 313

statement, particularly, Ex.P11-sketch, comes to the conclusion

that accident was on account of negligence on part of the

petitioner.

16. The Appellate Court also, on re-appreciation of

evidence available on record, in para Nos.30 to 32, taken note of

the evidence of P.W.1 as well as the evidence of P.W.2, who has

also sustained grievous injuries and in para No.31 also, taken

note of the fact that as per Exs.P2 and P9, the width of the road

is 22 feet and comes to the conclusion that, vehicle went on

wrong side and caused the accident. Regarding sentence is also

concerned, in para No.36 discussed the same and exercised its

discretion reducing the sentence of rigorous imprisonment from

two years to six months.

17. When both the Courts have applied their mind and

given anxious consideration to both oral and documentary

evidence placed on record, I do not find any perversity in the

judgment of the Trial Court as well as the Appellate Court. Both

the Courts have considered the oral and documentary evidence

placed on record and rightly comes to the conclusion that the

accident was on account of negligence on the part of the

petitioner herein. Hence, I do not find any grounds to invoke

revisional jurisdiction.

18. However, the Appellate Court has sentenced the

petitioner to pay a fine of Rs.1000/- for the offence under

Section 279 of IPC and in default of payment of fine, ordered to

undergo simple imprisonment for one month. When the offence

under Section 279 of IPC merges with the serious offence of

Section 304-A of IPC, the Appellate Court, ought not to have

imposed fine of Rs.1,000/-. Hence, it requires interference of

this Court. Accordingly, I answer point Nos.(1) and (2) as 'partly

affirmative'. The Appellate Court has already reduced the

sentence from two years to six months in respect of the offence

under Section 304-A of IPC and the same is a minimum sentence

and the same does not require any interference again and the

Appellate Court has already taken a lenient view.

Point No.(3)

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

following:

ORDER

(i) The criminal revision petition is allowed in part. The judgment of conviction and sentence in respect of offence under Section 279 of IPC is hereby set aside.

(ii) If any fine amount is deposited by the petitioner for the offence under Section 279 of IPC, the same shall be refunded to him on proper identification.