Shaik Showkathaulla vs The State Of Karnataka
2022 Latest Caselaw 13172 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                             BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.405 OF 2013

BETWEEN:

Shaik Showkathaulla,
S/o. Late Shaikh Ahmed,
Aged about 60 years,
R/o. Ambikapura,
Near Ramapura,
Kollegala Taluk,
District - Chamarajanagar,
Pin code - 571 313
                                                    ..Petitioner
(By Sri. Nikhil S.K. for
Sri. Somashekhar Kashimath, Advocate)

AND:

The State of Karnataka
Through Ramapura Police
District Chamarajanagar,
Pin code - 571313.
                                                  .. Respondent

(By Smt. Rashmi Jadhav, High Court Govt. Pleader)

                                   ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to call for the entire records and set aside the judgment
and order of conviction and sentence passed by the District &
Sessions Judge, Chamarajanagar in Criminal Appeal No.3/2010,
dated 15-02-2013 and thereby confirming the order of conviction
                                                 Crl.R.P.No.405/2013
                                2


and sentence passed by the Senior Civil Judge and J.M.F.C.
Kollegal in C.C.No.91/2009, dated 20-01-2010 and acquit the
petitioner in the interest of justice and equity.

      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day,
the Court made the following:

                          ORDER

The present petitioner was accused in

C.C.No.91/2009, in the Court of the Civil Judge (Sr.Dn.) and

Judicial Magistrate First Class, Kollegala, (hereinafter for

brevity referred to as "the Trial Court"), who, by the

judgment of conviction and order on sentence dated 20-01-

2010 of the Trial Court, was convicted for the offences

punishable under Sections 279, 337 and 304A of the Indian

Penal Code, 1860 (hereinafter for brevity referred to as "the

IPC") and was sentenced accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.3/2010, in the Court of the

District and Sessions Judge at Chamarajanagara,

(hereinafter for brevity referred to as the "the Sessions

Judge's Court"), which, after hearing both side, dismissed Crl.R.P.No.405/2013

the appeal, by confirming the judgment of conviction and

order on sentence dated 20-01-2010, passed by the Trial

Court for the offences punishable under Sections 279, 337

and 304A of the IPC. It is challenging the judgments

passed by both the Trial Court as well the Sessions Judge's

Court, the accused/revision petitioner has preferred the

present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 16-06-2006, at about

1:30 p.m., when the complainant PW-1 (CW-1) - M. Kumar,

S/o.Madanaika, was going on Dinnalli -Ramapura Road to

Ramapura Village, along with his brother-in-law by name

Sri. Kumar, S/o. Muniswamy, as a pillion rider, in a TVS

Victor Motor Cycle bearing registration No.KA-10/H-4265, a

Goods Autorickshaw bearing registration No.KA-09/A-4830

coming from the opposite direction, i.e. from Ramapura side

to Dinnalli, dashed to the Motor Cycle of the complainant

near the garden land of one Sri. Noor Saheb, in the turning,

due to which road traffic accident, the pillion rider -

Crl.R.P.No.405/2013

Sri.M. Kumar S/o. Muniswamy sustained multiple injuries to

his head, face and other parts of the body and succumbed

to the injuries on the date 22-06-2006 and thereby, the

accused has committed the offences punishable under

Sections 279, 337, and 304A of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty and claimed to be tried, as such, in order

to prove the guilt against the accused, the prosecution got

examined in all thirteen (13) witnesses from PW-1 to PW-

13, got marked documents from Exs.P-1 to P-10 and also

produced a Goods Autorickshaw as a Material Object.

However, neither any witness was examined nor any

documents were got marked on behalf of the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the Sessions Judge's Court's

records were called for and the same are placed before this

Court.

Crl.R.P.No.405/2013

6. Learned counsel for the accused/revision

petitioner and learned High Court Government Pleader for

the respondent - State are physically appearing in the

Court.

7. Heard the learned counsels from both side.

Perused the materials placed before this Court including the

impugned judgments passed by both the Courts and also

the Trial Court and Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judge's Court, holding the accused guilty for the alleged offences punishable under Sections 279, 337 and 304A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

Crl.R.P.No.405/2013

10. Learned counsel for the revision petitioner

(accused) in his argument submitted that, he would not

deny or dispute the occurrence of the road traffic accident

on the date, time and place mentioned in the charge sheet.

He would also admit the involvement of the Motor Cycle

bearing registration No.KA-10/A-4265 and the pillion rider

of the said Motor Cycle i.e. Sri.Kumar, S/o. Muniswamy,

sustaining injuries in the road traffic accident and

succumbing to the same on the date 22-06-2006 in the

Hospital, while under treatment. However, he would deny

the involvement of the Goods Autorickshaw bearing

registration No.KA-09/A-4830 in the accident and also the

act that the accused was driving the said Goods

Autorickshaw and caused the accident in question.

11. Among the thirteen (13) witnesses examined by

the prosecution, PW-1 (CW-1) - Sri. M. Kumar, S/o.

Madanaika, PW-6 - Kaleem Pasha, PW-9 (CW-10) - Sri.

Baddu and PW-10, have spoken about the accident as the

eye witnesses to the incident.

Crl.R.P.No.405/2013

PW-1 (CW-1) - Sri.M. Kumar, S/o. Madanaika has

stated that, at the time of the accident, he was the rider of

the Motor Cycle bearing Registration No.KA-10/A-4265 and

that the accused was the driver of the Goods Autorickshaw

bearing registration No.KA-09/A-4830. He stated that the

said Goods Autorickshaw which was coming from the

opposite direction came and dashed to the Motor Cycle

which he was riding, due to which, both himself and the

pillion rider Sri. Kumar fell down, among whom, the pillion

rider Sri. Kumar sustained injuries and succumbed to it later

in the Hospital on the date 22-06-2006. He has identified

the accused in the Court as the driver of the Goods

Autorickshaw. He has also stated that the Police drew the

scene of offence panchanama as per Ex.P-2 in his presence.

PW-6 - Sri. Kaleem Pasha, though was projected as

one of the passengers in the alleged offending Goods

Autorickshaw, but the witness though stated that he was

travelling in the Goods Autorickshaw with the goods of the

groundnut bag, however, he stated that near Ramapura Crl.R.P.No.405/2013

Cross, a Scooter rider coming from the opposite direction

fell down and sustained injuries on his head and the pillion

rider died. He categorically stated that the Goods

Autorickshaw did not touch the Scooter. Further, he stated

that it was the accused who was driving the Goods

Autorickshaw at the time of the accident. He denied that he

has stated before the Police that the Goods Autorickshaw

was being driven in a high speed by its driver at the time of

the accident.

PW-9 (CW-10) - Sri. Baddu and PW-10- Smt. Bainobai

have stated that they were the eye witnesses to the

incident.

PW-9 (CW-10) - Baddu has stated that while going

from Ramapura side to his village, a Goods Autorickshaw

was passing in front of him, at a high speed and dashed to

a Motor Cycle, causing the road traffic accident. He has

stated that the pillion rider of the Goods Autorickshaw

sustained injuries and it was him, who, joined by others,

shifted the injured to the Hospital and ensured the medical Crl.R.P.No.405/2013

treatment to him. He also stated that the injured pillion

rider succumbed to the injuries two days after he was

admitted to the Hospital.

PW-10 - Smt. Bainobai also has stated that she too

was travelling in the very same Goods Autorickshaw vehicle.

The driver of the Goods Autorickshaw dashed to the Motor

Cycle coming from the opposite direction. She stated that

the injured in the Motor Cycle was shifted to the Hospital,

however, he died in the Hospital.

PW-5 (CW-8) - Sri. Muniswamy, the father of the

deceased M.Kumar, though has stated about the

occurrence of the accident, but, admittedly, he is an hear-

say witness. He has only stated about the manner of

occurrence of the accident based upon the information said

to have been given to him by the other persons.

The above evidence of these witnesses would go to

show the involvement of the Goods Autorickshaw bearing

registration No.KA-09/A-4830 in the accident and the

occurrence of the accident on the date, time and place Crl.R.P.No.405/2013

mentioned in the charge sheet involving the Motor Cycle

bearing registration No.KA-10/A-4265 and the Goods

Autorickshaw.

12. The evidence of PW-3 (CW-2) - Sri. Munigowda

that the scene of offence panchanama was drawn in his

presence by the Police corroborates the evidence of PW-1,

PW-6, PW-9, and PW-10 about the place of the accident. In

turn, the evidence of all these witnesses corroborates the

evidence of PW-11 and PW-12 the Investigating Officers

about the occurrence of the road traffic accident between

the TVS Victor Motor Cycle bearing registration No. KA-

10/A-4265 and the Goods Autorickshaw bearing registration

No.KA-09/A-4830 near the Ramapura Cross on Dinnalli -

Ramapura Road, within the limits of the complainant Police

Station on the date 16-06-2006, in the afternoon at about

1:30 p.m.

13. The evidence of PW-2 (CW-4) - Sri. Abdul Arif

about the seizure of the alleged offending vehicle (Goods Crl.R.P.No.405/2013

Autorickshaw) and the evidence of PW-4 (CW-3) - M. Balu

Nayak, on the similar line would corroborate the evidence of

the eye witnesses about the involvement of the Goods

Autorickshaw in the alleged accident, which in turn

corroborates the evidence of PW-11 - the Investigating

Officer in the matter.

14. The learned counsel for the petitioner has

contended in his argument that, the registration number of

the Goods Autorickshaw is at variance in the complaint at

Ex.P-1, evidence of the complainant as PW-1 and also in the

Motor Vehicle Inspector's report at Ex.P-10.

No doubt the complaint at Ex.P-1 shows the

registration number of the offending Goods Autorickshaw as

'KA-09/H-4830'; the evidence of the complainant (PW-1)

mentions the offending Goods Autorickshaw's registration

number as 'KA-09/K-4830'; and the Motor Vehicle

Inspector's report at Ex.P-10 mentions the registration

number of the alleged offending Goods Autorickshaw's

registration number as 'KA-09/A-4830', however, the serial Crl.R.P.No.405/2013

number of the registration as '4830', the alphabets for the

State and the Office of the registration are identical in all

these three places, i.e. in the complaint, evidence of PW-1

and also the Motor Vehicle Inspector's report at Ex.P-10.

Thus, the variance in an alphabet in the registration number

as 'H' 'K' and 'A' is too minor, which cannot be magnified to

suspect or doubt the case of the prosecution. In addition to

the above, the evidence of PW-6 that he was travelling in

the Goods Autorickshaw which was involved in the accident

and that the accused was the driver of the said Goods

Autorickshaw has not been denied or disputed from the

accused's side, since they did not cross-examine the said

witness. Therefore, the said un-denied evidence of PW-6 on

the point of the involvement of the Goods Autorickshaw

vehicle and the fact that the accused was the driver of the

said vehicle establishes that the Goods Autorickshaw was

involved in the accident and that the accused was the driver

of the said Goods Autorickshaw vehicle, which caused the

accident in question.

Crl.R.P.No.405/2013

15. The evidence of PW-1, PW-5, PW-9 and PW-10

that in the said accident, the deceased M. Kumar,

S/o. Muniswamy, sustained injuries and succumbed to it,

has not been seriously denied or disputed from the

accused's side. Apart from the evidence of these witnesses,

even the evidence of PW-12 that he drew an inquest

panchanama as per Ex.P-4 which has not been disputed

from the accused's side also gives the description of the

injuries sustained by the deceased in the accident and also

the deceased succumbing to the injuries while under

treatment in the Hospital.

16. The Post-Mortem report at Ex.P-9 gives the list of

injuries sustained by the deceased M. Kumar,

S/o. Muniswamy, including the injury to the head portion

involving the depressed fracture in the skull and finally

opined that the cause of death was due to coma, as a result

of head injuries sustained. Thus the injuries sustained by

the pillion rider M. Kumar and the said deceased M. Kumar Crl.R.P.No.405/2013

succumbing to the said injuries also has been established by

the prosecution.

17. Though the learned counsel for the petitioner

contended that, the Doctor who conducted autopsy over

the dead body of the deceased Kumar and issued the Post-

Mortem report has not been examined, however, no where

the accused has disputed the Post-Mortem report at Ex.P-9,

so also the evidence of the eye witnesses that the pillion

rider in the Motor Cycle, a boy by name M. Kumar sustained

injuries in the accident and succumbed to the same.

Therefore, sustaining of injuries by the deceased M. Kumar

and succumbing to the same on the date 22-06-2006 while

under treatment in the Hospital also has stood established

by the prosecution.

18. The learned counsel for the petitioner also stated

that, the details about the damages sustained to the vehicle

in the accident creates a doubt in the case of the

prosecution. The learned counsel drew the attention of the Crl.R.P.No.405/2013

Court to the Motor Vehicles Accident Report at Ex.P-10,

where the alleged offending Goods Autorickshaw is shown

to have sustained damage of breaking of left side mirror

and damage to front right side panel board and the Motor

Cycle is shown to have sustained damage to the rider's foot

rest on the left side and the head light unit shield. However,

PW-11 - the Investigating Officer, in his cross-examination,

at the concluding sentence, has stated that, the back

portion of the Goods Autorickshaw was damaged. The said

stray sentence in the evidence of PW-11 would not take

away the evidentiary value of the Motor Vehicle Inspector's

Report at Ex.P-10. The narration about the occurrence of

the accident by the eye witnesses i.e. PW-1, PW-9, and PW-

10 is also that the accident was due to head-on collision

between the Goods Autorickshaw and the Motor Cycle. The

damages noticed by the Motor Vehicle Inspector in both the

vehicles are also on their front side. Therefore, the

evidence of the eye witnesses that the accident was due to

head-on collision stands established with the technical

report of the Motor Vehicle Inspector at Ex.P-10.

Crl.R.P.No.405/2013

19. The other question that remains for consideration

is about the involvement of the accused as a driver of the

alleged offending Goods Autorickshaw at the time of the

accident.

The learned counsel for the petitioner vehemently

contended that there is no convincing evidence to show

that the accused was the driver of the offending Goods

Autorickshaw at the time of the accident. However, the

said argument of the learned counsel would not hold good

for the reason that, as already observed above, PW-1, PW-

6, PW-9 and PW-10 have clearly and categorically stated

that, the accused was the driver of the offending Goods

Autorickshaw at the time of the accident. All these

witnesses claim themselves to be the eye witnesses to the

accident. They have identified the accused in the Court as

the driver of the offending Goods Autorickshaw. Though

PW-6 has categorically stated that, there was no fault of the

driver of the Goods Autorickshaw in the accident, but he

himself has stated in his evidence that, the accused was the Crl.R.P.No.405/2013

driver of the Goods Autorickshaw at the time of the

accident. Thus, the evidence of all these prosecution

witnesses establishes beyond reasonable doubt that, it was

the accused and accused alone who was the driver of the

offending Goods Autorickshaw at the time of the accident.

20. The last question that remains for consideration is

as to whether the driving of the Goods Autorickshaw by its

driver, i.e. the accused was rash and negligent ? and

whether the said driving of the driver has caused the

injuries to the injured M. Kumar, S/o. Madanaika and death

of the deceased M. Kumar, S/o. Muniswamy ?.

To find out the answer to the above questions, once

again, the evidence of PW-1, PW-6, PW-9 and PW-10 has to

be considered and analysed.

PW-1, PW-9 and PW-10 have categorically and

specifically stated that, the accused was riding his Goods

Autorickshaw in high speed and he came from the opposite

direction and dashed to the Motor Cycle.

Crl.R.P.No.405/2013

PW-1, the eye witness, who himself claims to be a

rider of the Motor Cycle, has stated that he was riding his

Motor Cycle at a speed of about 30 to 40 Kms. per hour,

whereas the Goods Autorickshaw was being driven by its

driver (the accused) at a speed of 50 to 60 Kms. per hour.

The witness has also stated that the said Goods

Autorickshaw came to the side where his (of this witness)

two wheeler was going and dashed to the said two wheeler.

The witness has also stated that, in the said Goods

Autorickshaw, two passengers were there including the

passenger by name Smt. Bainobai. Thus this witness has

stated that, it was the Goods Autorickshaw coming from the

opposite direction which came to the side where the Motor

Cycle was going and dashed to it and caused the accident in

question.

PW-6, though has stated about the accident, but he

has not attributed any fault to the driver of the Goods

Autorickshaw vehicle. Incidentally, he has not stated about

the Goods Autorickshaw and the Motor Cycle coming in Crl.R.P.No.405/2013

contact with each other and according to this witness, the

rider of the Motor Cycle fell down himself along with the

Motor Cycle. The said stray sentence in the evidence of

PW-6 creates a serious doubt in believing his version that

the Motor Cycle rider skid by himself, for the reason that,

no where, he has given any answer as to, how come the

offending Goods Autorickshaw could go to its extreme right

side where the Motor Cycle was coming. The answer to the

same can be found in the evidence of PW-10 - Smt.

Bainobai, who was also travelling in the very same

offending Goods Autorickshaw. She has categorically stated

that, she has seen the occurrence of the accident while she

was travelling in the Goods Autorickshaw. She has stated

that the said Goods Autorickshaw was going in a speed and

it dashed to the Motor Cycle coming from the opposite

direction. The said evidence of PW-10 is further

corroborated by the evidence of PW-9 - Sri. Baddu, who

has also stated that, as an eye witness, he has witnessed

the accident since he was going on the same road towards

his village at the time of the accident. He has categorically Crl.R.P.No.405/2013

stated that the Goods Autorickshaw came and dashed to the

Motor Cycle. These aspects have been further shown in a

big manner in the rough sketch drawn by the Investigating

Officer, which is at Ex.P-6.

21. As rightly submitted by the learned High Court

Government Pleader for the respondent - State, the said

rough sketch shows that the Goods Autorickshaw, which

was coming from the Ramapura side towards Dinnalli side

has gone to its extreme right and dashed to the Motor Cycle

coming from the opposite direction. Thus, the evidence of

the eye witnesses, i.e. PW-1, PW-9, PW-10 corroborates

the rough sketch at Ex.P-6 and the charge sheet filed by

PW-10 and PW-11 that, the driving of the offending Goods

Autorickshaw bearing registration No.KA-09/A-4830 by its

driver, i.e. the accused was not only rash, but also was

negligent, since it went to its extreme right and dashed to

the Motor Cycle, which was coming from the opposite

direction, which has resulted in the pillion rider the minor Crl.R.P.No.405/2013

boy by name M. Kumar, S/o. Muniswamy, sustaining

injuries and succumbing to the same thereafter.

22. Since it is appreciating these aspects in their

proper perspective, both the Trial Court and the Sessions

Judge's Court have found the accused guilty of the alleged

offence and convicted him and confirmed the conviction of

the accused respectively for the offences punishable under

Sections 279, 337 and 304A of the IPC, I do not find any

infirmity, illegality or perversity, warranting any

interference in the impugned judgments of conviction

passed by them.

23. With respect to the sentence of imprisonment

ordered for the proven guilt is concerned, it can be seen

that, the Trial Court has sentenced the accused to undergo

three months' Simple Imprisonment and to pay a fine of

`1,000/- and in default of payment of fine, to undergo

Simple Imprisonment for a further period of one month, for

the offence punishable under Section 279 of the IPC; for Crl.R.P.No.405/2013

the offence punishable under Section 337 of the IPC, it has

ordered to pay a fine of `500/-, in default of payment of

fine, to undergo simple imprisonment for a period of fifteen

days; and for the offence punishable under Section 304A of

the IPC, it has ordered to pay a fine of `1,000/- and in

default of payment of fine, to undergo simple imprisonment

for a period of one month. It further ordered that all the

sentences shall run concurrently.

24. It is the sentencing policy that, the sentence

ordered for the proven guilt must be proportionate to the

gravity of the proven guilt against the accused. It must not

be exorbitant or for namesake.

25. In the instant case, considering the facts and

circumstances of the case and also in view of the fact that,

the Trial Court has considered all the mitigating factors

while passing the order on sentence also, I do not find any

reason even to interfere in the order on sentence passed by

both the Courts.

Crl.R.P.No.405/2013

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

dismissed.

[ii] The revision petitioner/accused -

Sri. Shaik Showkathaulla S/o. Late Shaikh

Ahmed is directed to surrender before the Court

of the Civil Judge (Sr.Dn.) and Judicial

Magistrate First Class, Kollegala, in

C.C.No.91/2009, within forty-five (45) days from

today and to serve the sentence.

Registry to transmit a copy of this order to both the

Trial Court and also the Sessions Judge's Court along with

their respective records, forthwith, for doing needful in the

matter.

Sd/-

JUDGE BMV*