Sri Krishnamurthy vs State Of Karnataka
2023 Latest Caselaw 2125 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF APRIL, 2023

                       BEFORE

        THE HON'BLE MR. JUSTICE R.NATARAJ

   CRIMINAL REVISION PETITION NO.850/2013

BETWEEN:

SRI. KRISHNAMURTHY,
S/O SHIVANNA,
AGED 31 YEARS,
KATLA HOUSE,
KRISHNAPURA CROSS,
IDDYA VILLAGE, SURATHKAL,
MANGALORE-575014.
                                       ...PETITIONER
(BY SMT. P.V.KALPANA, AMICUS CURIAE)

AND:

STATE OF KARNATAKA,
REPRESENTED BY
MANGALORE TRAFFIC POLICE STATION,
D.K., MANGALORE.
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001.
                                       ...RESPONDENT

(BY SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
PLEADER)

     THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE JUDGMENT DATED 09.01.2013 IN
CRIMINAL APPEAL NO.292/2006 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA,
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MANGALORE     AND   ORDER    DATED         31.08.2006   IN
C.C.NO.1136/2005  PASSED  BY   THE        JMFC-III  COURT,
MANGALORE.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 25.01.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-

                          ORDER

This petition is filed challenging the Judgment dated

31.08.2006 passed by the Judicial Magistrate First class

(III Court), Mangalore (henceforth referred to as the 'Trial

Court' for brevity) in C.C.No.1136/2005, by which, the

petitioner was convicted for the offences punishable under

Sections 279, 304A of the Indian Penal Code, 1860 (for

short, 'the IPC') and sentenced to undergo rigorous

imprisonment for one year along with fine of Rs.5,000/-.

The petitioner has also challenged the Judgment passed by

the II Additional District and Session Judge, Dakshina

Kannada, Mangalore, (for short, 'the Appellate Court')

dated 09.01.2013, in Criminal Appeal No.292/2006, by

which, the Judgment of conviction and sentence passed by

the Trial Court was confirmed.

2. The case of the prosecution was that CW1,

furnished information at Wenlock Hospital on 13.01.2005,

he and the deceased Thimmanna were walking on Kadri

Park road on the left side and at about 1.15 p.m., a private

bus bearing registration No.KA-19A-8907 (henceforth

referred to as 'the offending vehicle') being driven in a

rash and negligent manner dashed against the deceased

Thimmanna. As a result, he was thrown away and he

suffered serious injuries on the head and the right

shoulder and other parts of the right side of his body and

he lost consciousness. Immediately, the Police emergency

vehicle reached the spot and shifted the injured to

Wenlock hospital where he was declared brought dead.

CW.1 is the brother-in-law of the deceased and his

statement was recorded at the hospital, which was placed

before CW.15, who registered crime No.8/2005. CW.17

registered an FIR against the accused for the offences

punishable under Sections 279 and 304A of IPC and placed

the hospital memo and the file before CW.18 -

Investigating officer. The investigating officer conducted an

inquest and also recorded a spot mahazar. He also

recorded the further statement of CW.1, the statements of

CW.2, CW.3 and CW.4, and prepared a sketch of the spot

of the accident. He seized the bus on the same day, which

was produced by CW.12, the owner of the bus. The vehicle

was subject to inspection by the motor vehicle inspector

whose report was received. The post mortem report was

also received. The accused appeared before the Police on

15.01.2005 and he was arrested and released. Later, a

chargesheet was filed against the accused for the offences

punishable under Sections 279, 304A of IPC. The Trial

Court took cognizance and issued process to the accused

who appeared before the Trial Court. The substance of

accusation was read over to the accused who denied the

same and claimed to be tried.

3. The prosecution examined a witness to the

spot mahazar as PW1, who turned hostile. The informant

was examined as PW.2, who supported the prosecution.

The driver of the police emergency vehicle was examined

as PW.3, who identified the accused. A juice vendor and an

eye witness to the accident, was examined as PW.4 and he

supported the prosecution. Another Bhelpuri vendor who

owned a shop near park gate was examined as PW.5, who

turned hostile and did not identify his statement and his

further statement, but identified his signature on the spot

panchanama. PW.6 was the conductor of the bus, who

turned hostile and denied the statement recorded under

Section 161 of the Code of Criminal Procedure (for short,

'the Cr.P.C.') before the police. PW.7 was the IMV

Inspector who deposed that the accident was not due to

any mechanical failure of the offending vehicle. PW.8 was

the wife of the deceased Thimmanna and a hearsay

witness. PW.9 was the witness to the spot mahazar who

turned hostile. PW.10 was the owner of the offending

vehicle and he also turned hostile, but admitted that the

accused used to drive the bus occasionally. PW.11 was the

witness to the seizure mahazar of the bus and he turned

hostile. PW.12 was the head constable who registered FIR

in Crime No.8/2005 while PW.13 was the investigating

officer who conducted the inquest, drew a spot mahazar,

recorded the further statement of CW.1 and the

statements of CWs.2, 3 and 4 and prepared a sketch of the

spot. He was the one who seized the offending vehicle,

secured the report of the IMV inspector and arrested the

accused and after obtaining the post mortem report,

submitted a charge sheet.

4. The Trial Court recorded the statement of the

accused under Section 313 of the Cr.P.C. He however, did

not deny that he was not driving the vehicle on the date of

the accident. He did not lead any evidence in defence.

5. Based on the oral and documentary evidence,

the Trial Court held that the deceased was walking on the

left side of the road, while his brother-in-law was walking

on the other side of the road. It held that the road was 27

feet wide and the accused could have averted the accident

and since the deceased was walking, he could not have

seen the offending vehicle being driven. It held that the

accused must have therefore, exercised due care and

caution while driving the bus on the road. The Trial Court

further held that the evidence of PW.4 clearly established

that the accident was due to the rash and negligent driving

of the bus by the accused. It held that the identity of the

accused was established by PW.3, PW.10 as well as PW.2

and PW.4 and hence convicted the accused for the

offences punishable under Sections 279 and 304A of the

IPC and sentenced him to undergo rigorous imprisonment

for one year and to pay fine Rs.5,000/-.

6. Being aggrieved by the Judgment of conviction

and sentence, the accused filed Crl. Appeal No.292/2006.

The Appellate Court secured the records of the Trial Court,

heard the learned counsel for the parties, framed the

points for consideration and after re-appreciating the

evidence on record, held that the prosecution had indeed

proved the guilt of the accused beyond doubt and

consequently, dismissed the appeal and upheld the

Judgment of conviction and sentence passed by the Trial

Court.

7. Being aggrieved by the Judgments of both the

Courts, the present revision petition is filed.

8. The learned counsel for the accused submitted

that PW.2 and the deceased were walking on either side of

the road. Therefore, PW.2 could not have seen the

accident. He submitted that the Trial Court could not have

relied upon the evidence of PW.2 to return a finding of

guilt of the accused. He further submitted that the only

other eyewitness was PW.4. He invited the attention of the

Court to the deposition of PW.4, where the Court found

that he was carrying a chit which contained the particulars

of the offending vehicle and the date of the accident and

time of the accident and the name of the accused. The

learned counsel submitted that PW.4 was therefore a

planted witness by the Investigating officer. He submitted

that except the evidence of PW.4, there was no evidence

to establish the manner of the accident, and therefore, the

accused cannot be held guilty. He however, did not dispute

the fact that the accused, who was liable to explain how

the accident occurred, did not do so by adducing his

evidence in defence.

9. Learned High Court Government Pleader on the

other hand, submitted that PW.2 and the deceased were

walking alongside the road on either side and accused who

drove the offending vehicle dashed against the deceased

who was walking on the left side of the road. He submits

that if the accused was not responsible for the accident, it

was incumbent upon him to mention the same in his

statement under Section 313 of the Cr.P.C. or by leading

evidence in his defence. He submitted that since the

accused did not explain the same, then the available

evidence had to be taken into consideration to determine

whether the accused was guilty or not. He submits that

PW.2 was the brother-in-aw of the deceased who deposed

that the driver of the bus drove it in a rash and negligent

manner and dashed against the deceased. PW.4, a juice

vendor who had a shop nearby, witnessed the accident and

he deposed before the Court that the accident was due to

the rash and negligent driving by the accused. The owner

of the vehicle was examined as PW.10 and he deposed

that the accused used to drive the vehicle sometimes. The

fact that the accused appeared before the Police and he

was arrested on 15.01.2005 is not in dispute. He

submitted that PW.3, the driver of the ambulance,

identified the accused. Likewise, PW.4 also identified the

accused and therefore, he submits that the prosecution

had proved the commission of offence by the accused

beyond doubt and therefore, the judgments of the Trial

Court and the Appellate Court are just and proper, which

do not call for any interference by this Court in revision.

10. I have considered the submissions made by

the learned amicus curiae for the accused as well as the

learned High Court Government Pleader. I have also

perused the records of the Trial Court, its Judgment as well

as the Judgment of the Appellate Court.

11. The accident is stated to have occurred at 1.15

p.m. on 13.01.2005 on the road leading from Santhoor to

Circuit House in Mangalore City, which was a one way,

meaning vehicles were allowed to move from Santhoor

circle towards circuit house. The deceased was shifted to

Wenlock Hospital in the emergency vehicle driven by PW.3.

The identity of the accused is established, as PW.3

identified the accused. PW.4 was a juice vendor who had

his shop near Kadri park by the side of the road and he

deposed of having seen the accident. PW.2 was the

brother-in-law of the deceased who deposed that he and

the deceased were walking on either side of the road and

the bus was driven from Santhoor circle towards circuit

house in a rash and negligent manner and dashed against

the deceased. The sketch at Ex.P17 shows that the road

was a 27 feet wide plain level road and that a channel ran

alongside the road on the left side from Santhoor circle to

circuit house, compelling the road users to walk on the

road. The deceased was walking by the side of the road.

The accused unmindful of the pedestrians using the road,

drove the offending vehicle in a rash and negligent manner

which dashed against the deceased. There is no negligence

attributed to the deceased in the course of cross-

examination of PW.2 or PW.4. The accused did not explain

the circumstances under which the accident occurred. The

conductor (PW.6) of the bus who recorded his statement

under Section 161 of the Cr.P.C., stated that the driver of

the bus drove it in a rash and negligent manner but he

turned hostile. The motor vehicle inspector (PW.7)

deposed that the accident was not due to any mechanical

failure of the offending vehicle. However, the IMV report

indicated that the front left side indicator light of the

offending vehicle was damaged, and the shape in the front

on the left side was dented inwards. Therefore, the

involvement of the accused and the offending vehicle and

the death of the deceased are all proved beyond doubt. If

the deceased was walking on the left side of the road at

1.15 p.m. on the date of the accident, he could not have

gone unnoticed by the accused. If the deceased was

negligent and / or contributed to the accident, the accused

must have said so in his statement under Section 313 of

the Cr.P.C. Since he failed to do so, it is the circumstances

and the evidence that have to be assessed to determine

the guilt of the accused. The post mortem report indicated

that the deceased had suffered a fissured fracture of his

skull involving the right anterior cranial fossa, left middle

cranial fossa and multiple fissured fractures with

displacement of bone pieces in the posterior cranial fossa

and diffused subdural and subarachnoid haemorrhages

were found in membranes. These injuries cannot be

suffered by merely slipping on a road but must have

inflicted by the offending vehicle, and the damages on the

front left side of the offending vehicle establishes that the

accused was responsible for it. Therefore, there is ample

evidence to show that the accused was responsible for the

accident and though he had the opportunity to avoid the

accident, failed to do so.

12. In that view of the matter, the Trial Court and

the Appellate Court were justified in convicting the accused

for the offences punishable under Sections 279 and 304A

of the IPC. However, the Trial Court has sentenced the

accused to undergo rigorous imprisonment for one year

along with fine of Rs.5,000/-. However, having regard to

the age of the accused, this Court considers it appropriate

to modify the sentence to one of simple imprisonment for

six months and with fine of Rs.50,000/- payable to the

legal heirs of the deceased Thimmanna. In the event of

default of payment of fine within three months from today,

the accused shall undergo simple imprisonment for three

months.

13. In view of the above, the revision petition is

allowed in part. The Judgment of conviction dated

31.08.2006 passed by the Judicial Magistrate First class

(III Court), Mangaluru in C.C.No.1136/2005 by which the

petitioner was convicted for the offences punishable under

Sections 279 and 304A of the IPC and the affirming

Judgment dated 09.01.2013 passed by the II Additional

District and Session Judge, Dakshina Kannada, Mangalore,

in Criminal Appeal No.292/2006 are confirmed. However,

the impugned Order of sentence passed by the Trial Court

which was upheld by the Appellate Court is modified and

the accused is sentenced to undergo simple imprisonment

for six months and to pay fine of Rs.50,000/- (Rupees Fifty

Thousand only) within three months from today, failing

which, he shall undergo simple imprisonment for three

months, for the aforesaid offences. On payment of fine,

the same shall be paid to the legal heirs of the deceased

Thimmanna.

The services rendered by Smt. P.V. Kalpana, learned

amicus curiae, is appreciated and her fee is fixed at

Rs.5,000/- (Rupees Five Thousand only) which is payable

by the Registry.

Sd/-

JUDGE

sma