Karnataka High Court
Mr Dinesh Devadiga vs The State Of Karnataka on 14 December, 2023
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CRL.RP No. 904 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 904 OF 2014
BETWEEN:
MR.DINESH DEVADIGA
AGED 40 YEARS,
S/O DHARNAPPA DEVADIGA,
R/O UGRANI HITHLU HOUSE,
KAVALPADOOR VILLAGE,
KARINJE POST,
BANTWAL TALUK-577 201.
...PETITIONER
(BY MR.P.P.HEGDE. SENIOR COUNSEL ALONG WITH
MR.VENKATESH SOMAREDDI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH THE CIRCLE INSPECTOR OF POLICE,
Digitally BELTHANGADY CIRCLE,
signed by BELTHANGADY-
SUMITHRA R REPRESENTED BY
Location: THE STATE PUBLIC PROSECUTOR,
HIGH COURT HIGH COURT OF KARNATAKA
OF
KARNATAKA BANGALORE-560 001.
...RESPONDENT
(BY MRS.N.ANITHA GIRISH, HCGP)
THIS CRL.RP FILED U/S.397 AND 401 CR.P.C., PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED:11.01.2010 PASSED BY THE ADDL.C.J. (JR.DN.) AND
JMFC, BANTWAL, D.K., IN C.C.NO.685/2005 AND ALSO THE
JUDGMENT DATED:23.10.2014 PASSED BY THE VI ADDL. DIST.
AND S.J., MANGALORE C/C IN CRL.A.NO.33/10 AND ACQUIT
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CRL.RP No. 904 of 2014
THE PETITIONER HEREIN IN C.C.NO.685/2005 ON THE FILE OF
THE ADDL.C.J. (JR.DN.) AND JMFC, BANTWAL, D.K.
THIS PETITION, COMING ON FOR ARGUMENTS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioner/accused feeling aggrieved by the
judgment of First Appellate Court on the file of IV
Addl.District and Sessions Judge, D.K., Mangaluru in
Crl.A.No.33/2010, dated 23.10.2014, in confirming the
judgment of Trial Court on the file of II Addl.Civil
Judge(Junior Division) and JMFC, Bantawala in
C.C.No.685/2005, dated 11.01.2010 preferred this
Revision Petition.
2. Parties to the Revision Petition are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing both the sides and on perusal of Trial
Court Records with judgment of both the Courts below,
the following points arise for consideration:
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1) Whether the impugned judgment of the First
Appellate Court under revision in confirming the
judgment of Trial Court for the offence punishable
under Section 279, 337, 338, 304-A of IPC is
perverse capricious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of the oral and documentary
evidence placed on record by the prosecution, it would go
to show that on 06.05.2005 in the evening at about 5.15
p.m. complainant Vasanth Sundara Poojary and family
members after performing pooja at Dharmastala they
were proceeding to Mangaluru in Maruthi Omni car bearing
registration No.KA-19-P-2687. While they were proceeding
on Belthangady to Bantwal state highway road in the said
Maruthi omni car bearing registration No.KA-19-P-2687
driven by Kishore Poojary, the bus bearing registration
No.KA-19-A-2844 driven by accused came from Bantwal
side on the way to Belthangady with high speed in rash
and negligent manner, so as to endanger human life and
dashed against the Maruthi Omni car bearing registration
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No.KA-19-P-2687 due to which CWs.2 to 5 sustained
simple injuries, CWs.6 to 8 sustained grievous injuries.
The driver of the Maruthi Omni car bearing registration
No.KA-19-P-2687 Kishor Poojary and another inmate
Sudhakshi died in the accident on the spot. The
prosecution alleges that on account of culpable rashness
or negligence in driving the bus bearing registration
No.KA-19-A-2844 by accused, the accident in question has
occurred leading to the injuries to CWs.2 to 8 and death of
driver of Maruthi Omni car Kishor Poojary and another
inmate Smt.Sudhakshi.
6. The Trial Court after hearing the arguments of
both side and on perusal of oral and documentary
evidence placed on record convicted the accused for the
offences alleged against him and imposed sentence as per
the order of sentence. The First Appellate Court after re-
appreciation of material evidence on record has record has
dismissed the appeal and confirmed the judgment of
conviction and order of sentence passed by the Trial Court.
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7. Learned counsel for the Revision Petitioner has
argued that there were ten persons travelling in the
Maruthi Omni car bearing registration No.KA-19-P-2687
driven by Kishore Poojary and due to the negligence of the
driver of the Maruthi Omni car the accident in question has
occurred. The evidence of PW.6 Prashanth injured witness
in this case is contrary to the evidence of other witnesses
and it was intended only to suppress the true facts. The
evidence of injured witnesses PWs.1 to 6 with reference
to the manner in which accident has occurred due to
culpable rashness and negligence in driving the bus
bearing No.KA.19-A-2844 has not been spoken by them.
The mere factum of accident and death of two persons and
injuries to remaining inmates of the Maruthi Omni car
cannot by itself said as sufficient evidence to prove the
culpable rashness or negligence on the part of accused
leading to the accident in question. The prosecution has
also failed to establish the identity of the accused who was
driving the bus bearing registration No.KA-19-A-2844 at
the time of accident in question. The findings recorded by
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both the Courts below are contrary to the evidence on
record and such interference of this Court is required.
8. Per contra learned High Court Government Pleader
for respondent has argued that the identity of accused
being the driver of bus bearing registration No.KA-19-A-
2844 has been established by the evidence of injured
witnesses PWs.1 to 6. They have identified the accused
before the Court as person who was driving the bus at the
time of accident. The spot features recorded in the spot
panchanama Ex.P.15 is further corroborated by the sketch
map Ex.P.21. The independent panch witness PW.8
Hemanth Kumar and PW.10 Abdul Shukoor though have
not supported the case of prosecution, the evidence of
Investigating Officer PW.12 Y Gangi Reddy can be relied to
prove the correctness of the spot features recorded in the
spot panchanama Ex.P.15. The place of accident is not in
dispute by the accused. On the contrary it is the defence
of the accused that the accident has occurred due to
negligence of Kishor Poojary, driver of Maruthi Omni car
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bearing registration No.KA-19-P-2687. The findings
recorded by both the Courts below are based on legal
evidence on record and the same does not call for any
interference by this Court.
9. PW.1 Vasanth Poojary has deposed to the effect
that on 06.05.2005 himself and the family members
CWs.2 to 8 were traveling in Maruthi Omni car bearing
registration No.KA-19-P-2687 driven by Kishore Poojary
towards Mangaluru at about 5.15 p.m. At that time Jain
Travel bus bearing registration No.KA-19-A-2844 came
from opposite side and dashed against their Maruthi Omni
car due to impact the Maruthi Omni car was turned to its
back and stopped. Accident in question has occurred due
to rashness and negligent driving of the bus bearing
registration No.KA-19-A-2844 by accused. Further, he
identifies accused before the Court as person who was
driving the bus bearing registration No.KA-19-A-2844
involved in the accident.
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10. The evidence of PW.2 Purushotham Poojary,
PW.3 Thulasi w/o PW.1, PW.4 Harish Poojary brother of
deceased Sudakshi, PW.5 Smt.Vasanthi and PW.6
Prashanth would go to show that they were also the
inmates of the Maruthi Omni car bearing registration
No.KA-19-P-2687 and in the accident they sustained
injuries is more or less on the same line as deposed by
PW.1. They have also identified the accused before the
Court as the person who was driving the bus bearing
registration No.KA-19-A-2844 at the time of accident.
11. The first contention of learned counsel for
accused is that the prosecution has not established the
identity of accused as a driver of bus bearing registration
No.KA-19-A-2844 involved in the accident. The
prosecution has examined PW.11 Chandrashekar Shetty
owner of the bus bearing registration No.KA-19-A-2844
and has deposed to the effect that he is the owner of the
bus bearing registration No.KA-19-A-2844 and the bus
was seized by the police. The Investigating Officer has
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issued notice to him to produce the vehicle documents and
to give the particulars of the person who was driving the
bus and he has received the notice Ex.P.19 and given the
reply Ex.P.20. The evidence of Investigating Officer PW.12
Y.Gangi Reddy would go to show that he has issued notice
to the owner of bus bearing registration No.KA-19-A-2844
Ex.P.19 and the owner PW.11 Chandrashekar Shetty has
produced particulars of accused and documents of the
vehicle along with Ex.P.20. The said evidence of PW.11
Chandrashekar Shetty and PW.12 Investigating Officer Y
Gangi Reddy regarding accused being the driver of bus
bearing registration No.KA-19A-2844 has not been
seriously challenged by the defence in their cross-
examination. Therefore, it will have to be held that
prosecution by the above referred evidence on record has
proved that accused was the driver of bus bearing
registration No.KA-19-A-2844 at the time of accident in
question. Thus the defence taken by accused in disputing
the identity of accused cannot be legally sustained.
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12. The evidence of PWs.1 to 6 and that of
Investigating Officer PW.12 Y Gangi Reddy with the
recitals of the spot panchanama Ex.P.15 and the sketch
map Ex.P.21 would go to show that prior to the accident
both the vehicles were moving in an opposite direction.
The prosecution to prove the spot features under the spot
panchanama Ex.P.15 relies on the evidence of PW.8
Hemanth Kumar and PW.10 Abdul Shukoor. However, they
have not supported the case of prosecution. The
prosecution relied on the evidence of Investigating Officer
PW.12 Y Gangi Reddy who is the author of spot
panchanama Ex.P.15 and the sketch map Ex.P.21. PW.12
Y Gangi Reddy during the course of evidence has deposed
to the effect that he has visited to the place of accident
and seized the bus and Maruthi Omni car involved in the
accident and prepared the panchanama Ex.P.15 and also
prepared the sketch map Ex.P.21 and identifies his
signature Ex.P.21(a). It is suggested to PW.12
Investigating Officer that he has not visited the spot and
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prepared spot panchanama Ex.P.15 in the Police Station
itself and the same has been denied by the witness.
13. Learned counsel for the accused has argued that
PW.12 Y Gangi Reddy has prepared the spot panchanama
Ex.P.15 as shown by eye witness CW.9 and he has not
been examined by the prosecution. Therefore, the place of
accident and the spot features recorded in the spot
panchanama Ex.P.15 has not been proved by the
prosecution. It is the defence of accused as could be made
out from the cross-examination of PWs.1 to 6 that
accident in question has occurred due to negligence in
driving the Maruthi Omni car driven by deceased Kishor
Poojary. Therefore, looking to the said defence and the
material elicited in the cross-examination of PWs.1 to 6, it
would go to show that the place of accident is not disputed
by the accused. On the contrary, he claimed that accident
has occurred due to negligence in driving the Maruthi
Omni car bearing registration No.KA-19-P-2687 by it's
driver. Therefore, spot features recorded in the spot
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panchanama Ex.P.15 and the sketch map Ex.P.21 can be
looked into, since the author of the said documents PW.12
Y Gangi Reddy has been examined by the prosecution.
14. On careful reading of the spot features recorded
in the spot panchanama Ex.P.15, it would go to show that
the road at the place of accident runs South to North. The
width of the tar road is 18ft. The road at the place of
accident is down gradient from South to North. The
placement of vehicle immediately after the accident shown
that bus bearing registration No.KA-19-A-2844 halted
towards the Western side and the Maruthi Omni car
bearing registration No.KA-19-P-2687 due to impact of the
accident turned to it's back and stationed facing towards
Northern side. The drivers of both the vehicle were
expected to keep their left side. While proceeding the
driver of Maruthi Omni car bearing registration No.KA-19-
P-2687 was supposed to keep left side i.e., towards the
Eastern side and the driver of the bus bearing registration
No.KA-19-A-2844 was supposed to keep left side i.e.,
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towards Western side. The place of accident is shown at
the distance of 4 ft. from Eastern side. It will be left side
to the driver of Maruthi Omni car bearing registration
No.KA-19-P-2687. There was distance about 18 ft. road
towards Western side for the driver of the bus bearing
registration No.KA-19-A-2844. It means that accused
being the driver of bus bearing registration No.KA-19-A-
2844 has exceeded his way of limit and came to the
extreme right side i.e., towards Eastern side, due to which
dashed against Maruthi Omni car bearing registration
No.KA-19-P-2687. On account of impact of accident, the
said Maruthi Omni car turns to it's back and stationed
facing towards the Northern side. It has been elicited in
the cross-examination of injured witnesses of PWs.1 to 6
and some of them have admitted that the road from South
to North is down gradient and it will be up gradient to the
driver of Maruthi Omni car bearing registration No.KA-19-
P-2687. The recitals in the spot panchanama Ex.P.15 also
speaks about the road from South to North is down
gradient. It necessarily mean that road would be up
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gradient to the driver of Maruthi Omni car bearing
registration No.KA-19-P-2687 and down gradient to the
driver of bus bearing No.KA-19-A-2844. When that is the
position of the road at the place of accident, accused being
the driver of bus bearing registration No.KA-19-A-2844
should have exercised more care and caution in driving the
bus bearing registration No.KA-19-A-2844, so as to avoid
the vehicle coming in contact to the vehicle coming from
opposite side. The said diligence has not been exercised by
the accused and as a result, the bus bearing registration
No.KA-19-A-2844 travelled to the extreme right side and
dashed against Maruthi Omni car bearing registration
No.KA-19-P-2687 leading to the accident in question.
Further, due to the impact of accident Maruthi Omni car
bearing registration No.KA-19-P-2687 turned to it's back
and stationed facing towards Northern side. It is pertinent
to note that even after the impact of accident, if at all the
driver of Maruthi Omni car bearing registration No.KA-19-
P-2687 was negligent in driving the vehicle, his vehicle
would have naturally travelled towards either Southern
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side or to the Western side. However, as could be seen
from the evidence of PWs.1 to 6, the Maruthi Omni car
bearing registration No.KA-19-P-2687 due to impact
turned to it's back and stationed facing towards the
Northern side. Therefore, looking to the above referred
evidence on record, it is evident that the accident in
question has occurred due to failure of accused in
exercising due diligence in driving bus bearing registration
No.KA-19-A-2844 while proceeding from South to North
on the down gradient road and failed to keep sufficient
distance in between the vehicle, so as to avoid in coming
in to contact with the vehicle coming from opposite side.
On account of such culpable rashness or negligence, the
accident in question has occurred. The prosecution has
proved the culpable rashness and negligence of accused in
driving the bus bearing registration No.KA-19-A-2844
leading to the accident in question and as a result two of
the inmates i.e., driver of the Maruthi Omni car Kishor
Poojary and Sudhakshi died on the spot at the place of
accident.
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15. Learned counsel for the accused has vehemently
argued that recording of 313 Cr.P.C. statement has caused
serious prejudice to the case of accused and he could not
understand any questions, so as to put forth his defence
properly and to explain the circumstances appearing
against him. The compounding sentences have been
formed as one question and to which accused could not
properly answer. In support of such contention reliance is
placed on the judgment of Hon'ble Apex Court in Lallu
Manjhi and another Vs. State of Jharkand. Secondly,
the judgment in Ranvir Yadav Vs. State of Bihar
reported in 2009(6) SCC 595 and lastly the co-ordinate
bench judgment of this Court in Hyderkhan Vs. State of
Karnataka, reported in 2006 Cri.L.J.3143. I have
carefully gone through the principles enunciated in all
these decisions, wherein it has been emphasized the duty
of Trial Court to record the statement under Section 313 of
Cr.P.C. by putting each circumstances separately and
record the answer given by the accused. Further,
recording of statement of accused under Section 313 of
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Cr.P.C. is not an empty formality. On going through the
313 Cr.P.C. statement recorded by the Trial Court, it
would go to show that the incriminating circumstances
appearing against accused have been put. However, the
question were not split and compound sentence has been
formed. It is pertinent to note that accused while
answering to question No.16 has not offered any
explanation. It was the opportunity for the accused to
explain that he did not understand the questions put forth
to him and also offered no any explanation regarding the
manner in which the accident has taken place. The learned
counsel for the accused has not demonstrated as to how
serious prejudice has been caused to the accused and
prevented the accused from offering any explanation even
to question No.16. Accused has not availed the
opportunity given by Trial Court and did not choose to
offer any explanation. Therefore in the absence of any
serious prejudice being caused to the accused, the
contention of accused that the forming of compounding
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sentence has caused prejudice to the accused cannot be
legally sustained.
16. The Trial Court and the First Appellate Court have
rightly appreciated the oral and documentary evidence
placed on record and arrived to the proper conclusion in
holding that prosecution has proved the guilt against
accused beyond all reasonable doubt. The said finding
recorded by both the Courts below are based on the
material evidence on record and the same does not call for
any interference by this Court.
17. Now coming to the question of imposition of
sentence is concerned. The Trial Court has imposed
sentence of imprisonment and fine for all the offences with
default sentence, further sentenced the accused to
undergo sentence of imprisonment for a period of one year
for the offence under Section 304-A of IPC.
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18. Learned counsel for the accused who is present
before the Court while dictating the judgment submits that
imposition of sentence of imprisonment for a period of one
year for the offence under Section 304A of IPC is
unwarranted and interference of this Court for necessary
modification of sentence is required. Learned Counsel for
accused filed certificate issued by Medical Officer, Bantwal,
D.K. stating that accused is suffering from diabetes and he
is under medication for the last 5 years. The mother of
accused Girija is 70 years and she is required to be taken
care by accused.
19. Learned counsel for accused in support of such
contention relied on the judgment of Hon'ble Apex Court
in Sagar Lolienkar Vs. State of Goa and Another in
Crl.A.No. 1415/2021 wherein the Hon'ble Apex Court
looking to the facts and circumstances of the said case and
by accepting the affidavit of widow of victim, awarded
compensation of Rs.3,00,000/- and modified the sentence
of imprisonment. In the present case, there are no such
circumstances which can warrant to award only fine
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amount as exceptional case. Other than accused having
diabetes and the age old mother is required to be looked
after, there are no any other grounds. The imposition of
only compensation in all the accident cases will send a
wrong signal to the society. Hence, under these
circumstances, looking to the evidence on record and the
mitigating factors, imposition of sentence for a period of
one year for the offence under Section 304A of IPC and to
pay a fine of Rs.3,000/- in default to undergo S.I. for 6
months is disproportionate to the proved offences alleged
against the accused. In the facts and circumstances of the
case, if the accused is sentenced to undergo S.I. for 6
months and ordered to pay fine of Rs.3,000/-, in default of
payment of fine, to undergo S.I. for 3 months by
maintaining the sentence for the remaining offences is
ordered, will meet the ends of justice. Consequently,
proceed to pass the following :
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ORDER
Revision Petition filed by the Revision Petitioner/
accused is partly allowed;
The judgment of the First Appellate Court on the file
of IV Addl.District and Sessions Judge, D.K., Mangaluru in
Crl.A.No.33/2010, dated 23.10.2014, in confirming the
judgment of Trial Court on the file of II Addl.Civil
Judge(Junior Division) and JMFC, Bantawala in
C.C.No.685/2005, dated 11.01.2010 is ordered to be
modified as under :
Accused is sentenced to undergo S.I. for a period of 6
months for the offence under Section 304A of IPC and to
pay fine of Rs.3,000/- in default to undergo S.I. for 3
months for the offence under Section 304A of IPC.
The imposition of sentence with default sentence and
fine amount for the remaining offence and the sentence of
imprisonment to run concurrently is ordered to be
maintained.
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In exercise of power under Section 428 of Cr.P.C.,
accused is entitled for set-off for the period spent in
judicial custody, if any, in the matter.
Accused shall surrender before Trial Court within
a period of 1 month from today.
Registry to send back the records to Trial Court
with a copy of this order.
SD/-
JUDGE
GSR
