Karnataka High Court
Sri. Vasu S/O Shekharappa Rampur vs The State Of Karnataka on 8 December, 2023
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CRL.RP No. 100124 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100124 OF 2017 (397)
BETWEEN:
SRI. VASU S/O. SHEKHARAPPA,
RAMPUR, AGED: ABOUT 26 YEARS,
OCC: COOLI/TUMTUM DRIVER,
R/O: NAVANAGAR BAGALKOT,
TQ & DIST: BAGALKOT.
...PETITIONER
(BY SRI. M.C. HUKKERI, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
TRAFFIC P.S.,
BAGALKOT, REPRESENTED BY SPP.,
SAMREEN HIGH COURT DHARWAD.
AYUB ...RESPONDENT
DESHNUR
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
Digitally signed
by SAMREEN
AYUB
DESHNUR THIS CRIMINAL REVISION PETITION IS FILED UNDER
Date: 2023.12.13
10:24:39 +0530 SECTION 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY PASSED IN CRIMINAL
APPEAL NO. 55/2013 DATED 14.03.2017 BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT AND JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE ADDL. CIVIL JUDGE AND
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CRL.RP No. 100124 of 2017
J.M.F.C BAGALKOT, IN C.C.NO. 583/2012 DATED 20/04/2013 ABD
ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER
SECTION 279, 304A, OF IPC AND 183,3R/W 181 OF M.V.ACT. IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR FINAL HEARING ON
30.10.2023 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PASSED
THE FOLLOWING:
ORDER
The revision petitioner/accused has filed this revision
petition being aggrieved by the judgment of his conviction
and order of sentence passed in C.C.No.583/2012 dated
20.04.2013 on the file of Additional Civil Judge and JMFC,
Bagalkot, being confirmed in Criminal Appeal No.55/2013
dated 14.03.2017 by the Principal District and Sessions
Judge, Bagalkot.
2. Parties to this revision petition are referred to
as per their rank before the Trial Court for the purpose of
convenience.
3. The facts leading up to this revision petition are
as under:
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4. That one Sadashiv S/o. Parasappa
Purasottinavar filed a complaint before the P.S.I., Traffic
Police Station of Bagalkot on 24.11.2011 by appearing
before the P.S.I. alleging that, he is the resident of
address so stated in the complaint. He is residing at
Anchekere Colony with his family. He had a son by name
Ganesh. The said Ganesh was working as a electrical
helper at Horticulture University of Bagalkot, Navanagar.
As usual to attend his employment on 24.11.2011, his son
left the house at about 8.00 a.m. At about 9.30 a.m. on
that day, one Raju Kulkarni called the complainant and
informed that at Navanagr Sector No.27 to 30 there was a
toppling down of tumtum auto rickshaw in which his son
Ganesh was traveling and he died on the spot.
Immediately the complainant rushed to the said scene of
accident along with his relative by name Ravindra Pujar.
There he noticed his son Ganesh having sustained
grievous injuries on his head and blood was fallen at the
place of accident. He had sustained injuries on his left
hand, left leg and knee and had died on the spot. The
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complainant also noticed the presence of a tumtum auto
rickshaw bearing registration No.KA-29/7347 which was
topple down. The said Raju Kulkarni was also there.
5. It was informed by Raju Kulkarni to the
complainant that, he was also traveling along with Ganesh
and another one in the said tumtum rickshaw for the
purpose of attending their employment. The driver of the
tumtum rickshaw was driving his vehicle in a high speed
and in rash and negligent manner, near Chandana Talkies
on the road towards Horticulture University in between
Sector No.27 to 30, the said tumtum rickshaw toppled
down. Because of the same Ganesh sustained injuries and
died on the spot. The said accident has taken place at
about 9.20 a.m. on that day. It is alleged that because of
rash and negligent driving of tumtum rickshaw, the said
accident has taken place. With these allegations, a
complaint came to be filed which was registered in Crime
No.65/2011 of Traffic Police Station, Bagalkot and the
criminal law was set in motion for the offences punishable
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under Sections 279 and 304A of Indian Penal Code, 1860
(for short 'IPC') and Section 187 read with Section 181 of
the Motor Vehicles Act, 1988 (for short 'M.V. Act').
6. The Investigating Officer on completion of the
investigation and after completing all the formalities of the
investigation filed the charge sheet against the driver of
said tumtum rickshaw i.e., accused.
7. Before the learned Magistrate, to bring home
the guilty of the accused, the prosecution examined in all
6 witnesses in the shape of PW.1 to PW.6 and got marked
Ex.P.1 to P.9 and closed the prosecution evidence.
8. After closure of the evidence of the prosecution
witness, on hearing the arguments and on perusal of the
record and after assessing the evidence, the learned Trial
Court found the accused guilty of committing the offences
under Sections 279, 304A of IPC and Sections 187 and 3
read with Section 181 of M.V. Act and sentenced the
accused as under:
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"(a) For the offence punishable U/Sec. 279 of
Indian Penal Code, an accused shall undergo simple
imprisonment for three months and shall liable to
pay fine amount of Rs.1,000/-(Rupees one
thousand). In default of payment of fine amount, he
shall undergo simple imprisonment for a period of 45
days.
(b) For the offence punishable U/Sec.304(A)
of Indian Penal Code, an accused shall undergo
simple imprisonment for fix months and shall liable
to pay fine amount of Rs.5,000/-(Rupees five
thousand). In default of payment of fine amount, he
shall undergo simple imprisonment for a period of
three months.
(c) For the offence punishable U/Sec.187 of
Indian Motor Vehicle Act, an accused shall undergo
simple imprisonment for 45 days and shall liable to
pay fine amount of Rs.500/-(Rupees five hundred).
In default of payment of fine amount, he shall
undergo simple imprisonment for a period of 30
days.
(d) For the offence punishable U/Sec.3 r/w
Sec.181 of Indian Motor Vehicle Act, an accused shall
undergo simple imprisonment for two moths and
shall liable to pay fine amount of Rs.500/-(rupees
five hundred). In default of payment of fine amount,
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he shall undergo simple imprisonment for a period of
30 days.
As per the provisions of Sec.357(c) of Criminal
Procedure Code, accused shall liable to pay
compensation amount of Rs.50,000/- to the
complainant who is father of deceased Ganesh.
It is further ordered that, office is to pay 50%
of the fine amount to be deposited as compensation
to the complainant who is none other than the father
of deceased Ganesh and balance fine amount is to be
forfeited to the State towards expenditure of
prosecution.
All the sentence shall run concurrently."
9. The said judgment of conviction and order of
sentence was challenged by the accused before the
Principal District and Sessions Judge, Bagalkot in Criminal
Appeal No.55/2013. The learned first appellate Court vide
judgment dated 14.03.2017 dismissed the appeal of the
accused. This is how the revision petitioner/accused is
before this Court challenging both the judgments of the
Courts below.
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10. It is submitted by learned counsel for the
revision petitioner/accused Shri. M.C. Hukkeri that, the
learned Trial Court and the first appellate Court have mis-
guided by the evidence placed on record. There is no
proper appreciation of the evidence placed on record by
the prosecution. Though the alleged accident has taken
place on 24.11.2011, but the statement of witnesses was
recorded after lapse of four months i.e., on 15.03.2012.
The Courts below have lost sight that, there is a false
implication of the accused in the commission of the alleged
crime. The judgments of both the Courts require
interference by this Court and the accused is entitled for
acquittal. A serious doubt arises in the case of the
prosecution with regard to the recording of statements
after lapse of four months. Except Raju Kulkarni no other
witness has supported the case of the prosecution. But
even then the Trial Court convicted the accused and
confirmed by first appellate Court.
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11. It is his further submission that, the judgment
of conviction and order of sentence passed by the Trial
Court and confirmed by the first appellate Court suffers
from illegality and is erroneous and not sustainable in the
eyes of law. It is his further submission that, there was a
speed breaker near the place of accident and one cannot
drive the vehicle in a high speed when there is speed
breaker (road hump). This fact is lost sight by the Trial
Court as well as by the first appellate Court. Without
considering the said fact, the Courts below have believed
the evidence of prosecution witnesses which according to
him, in a mechanical manner. There is no proper
appreciation of evidence by both the Courts below.
Therefore, relying upon the evidence placed by the
prosecution, it is prayed to acquit the accused by allowing
this revision petition.
12. As against this submission, learned Additional
State Public Prosecutor Shri. M. B. Gundawade appearing
for respondent-State submits that, the quality of the
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evidence spoken to by Raju Kulkarni proves that because
of rash and negligent driving of tumtum rickshaw by the
accused, said accident has taken place. He was inmate of
the said tumtum rickshaw and he has given evidence with
regard to the nature of driving of the said vehicle by the
accused. He identified the accused who was the driver of
the said vehicle at the time of accident. He submits that
prosecution has proved its case beyond all reasonable
doubt. There is proper appreciation of the evidence by
both the Courts below. It was accused who drove his
vehicle in rash and negligent manner.
13. He further submits that, the Trial Court and the
first appellate Court have not committed any factual or
legal error in finding the accused guilty for the commission
of offences. He prays to dismiss the revision petition.
14. I have given my anxious consideration to the
submission of both counsels and perused the records
meticulously. The points that would arise for my
consideration are as under:
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i) Whether the findings of the Trial Court
confirmed by the first appellate Court with
regard to the finding the accused guilty for
commission of offences, suffers from infirmity,
illegality and requires interference by this Court?
ii) What order?
15. As could be seen from the complaint allegations
filed by the father of the deceased after arriving at the
scene of accident, he noticed the accident and filed a
complaint as per Ex.P.1 as per the information given by
Raju Kulkarni inmate of the offending vehicle. As he is not
an eyewitness to the accident, evidence of the complaint
can be accepted to the extent that, he lodged the
complaint before the P.S.I., Traffic Police Station, Bagalkot
on 24.11.2011.
16. According to his complaint, because of rash and
negligent driving of tumtum rickshaw by its driver, the
said accident has taken place. He also has given his
further statement as per Ex.P.2 and states that it was the
accused who was driving the said vehicle at the time of
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accident who was identified by the said Raju Kulkarni.
Ex.P.3 is the scene of offence panchanama conducted by
the police in the presence of witnesses by name Basavaraj
Hakari and Basangouda Patil. The articles which are
avaialbe at the scene of offence have been incorporated in
this Ex.P.3 by the Investigating Officer. The factum of
preparation of the panchanama have been spoken to by
the CPI. Thus, through the evidence of Investigating
Officer, the contents of Ex.P.3 are proved and more so the
contents of Ex.P.3 are not denied by the defence.
17. So far as death of Ganesh in the said accident is
concerned, the prosecution relies upon the contents of
Ex.P.4 Inquest panchanama and Ex.P.5 Post mortem
report. These documents are not disputed by the defence.
18. On scrupulous reading of these two documents,
it is proved that, the said Ganesh died because of
accidental injuries on his person in the said accident.
When contents of these two documents are not denied by
the defence, it can be stated that, the because of
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accidental injuries the said Ganesh died. It is also opined
by the doctor at the time of conducting post mortem that,
death of Ganesh was due to head injury sustained in the
accident. The factum of death of Ganesh in the said
accident is not disputed by the defence.
19. Based upon Ex.P.1, crime was registered
against the accused for the offences punishable under
Sections 279, 304A of IPC and Section 187 and 3 read
with Section 181 of MV Act.
20. So far as place of accident is concerned,
prosecution relies upon Ex.P.8 hand sketch of scene of
offence. Wherein, the said rickshaw was moving near
Chandana Talkies on the highway towards Horticulture
University. When the said rickshaw was moving in the
middle of the road, it toppled down. There we find the
width of the road is 20 feet. What made the driver of said
tumtum rickshaw to drive the said vehicle in a high speed
is not properly explained. So at a distance of 10 feet away
from the western side of the road, the said accident has
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taken place as per Ex.P.8. It is also not in dispute that,
the said accident has taken place not because of any
mechanical defects. The Motor Vehicle Inspector of RTO
Office, Bagalkot has inspected the said vehicle and has
given opinion that, the said accident is not because of any
mechanical defects. The said report is marked at Ex.P.9.
Thus, it is proved that, the said accident has taken place
not because of any mechanical defects.
21. So far as oral evidence of PW.1 is concerned,
the complainant came before the Trial Court and deposed
that he came to know about the said accident from one
Raju Kulkarni. According to his evidence on getting
information from the said Raju Kulkarni, he lodged the
complaint as per Ex.P.1. As he is not an eyewitness to the
said accident, therefore, the evidence of PW.1 can be
accepted to the extent that, he has got information about
the accident, rushed to the scene of offence and noticed
his son Ganesh died on the spot.
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22. PW.2 - Basavaraj Mahadevappa Hakari is
pancha to Ex.P.3. According to his evidence, in his
presence, spot panchanama was conducted by the police
in between 12.00 noon and 1.00 p.m. He put his
signature on the said panchanama. Except the denial
nothing has been elicited from his mouth to disbelieve his
evidence spoken in examination-in-chief.
23. PW.3 - Raju Hanamanth Kulkarni, is material
witness who was an eyewitness to the said accident as
well as inmate of the said tumtum rickshaw along with the
deceased Ganesh and another. According to his evidence,
on the day of accident i.e., on 24.11.2011 at about 9.00
a.m. himself, Ganesh and another person were traveling in
the said offending vehicle at Sector No.27 to 30 at
Navanagar, Bagalkot. When the said vehicle was moving
towards Chandana Talkies, the driver of said rickshaw by
lost his control and toppled down the vehicle. In the said
accident, one Ganesh died on the spot. He does not know
what had happened to other passenger. The accident has
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taken place at 9.20 a.m., on that day. The driver of the
said vehicle ran away from the spot. He says that,
accident has occurred because of rash and negligent
driving of the driver of the said vehicle. This witness was
declared hostile in part. Though he has been cross
examined at length by the defence, but he is consistent
that, at the time of accident, there were three passengers
traveling in the said tumtum rickshaw on that day. He was
called by the police and he has given his statement before
the police.
24. He being the inmate states that, driver of the
offending vehicle was driving the vehicle in a high speed,
in rash and negligent manner. When the driver of the said
vehicle lost his control over the vehicle, the said accident
has taken place. The accused has not taken any
precautions at the time of driving the vehicle. Nothing is
explained by the accused to that effect or in his statement
recorded under Section 313 of Cr.P.C. He was quite
adamant to answer any thing in his statement except
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answering as false to the incriminating circumstances
brought against him.
25. In a case of present nature, it was the accused
who has to give proper explanation that, what was the
reason for toppling down the said rickshaw by him at the
time of accident. Evidentially, the said accident has taken
place not because of any mechanical defects.
26. PW.4-Shivanna Hanamayya, is the Investigating
Officer at the relevant time and he speaks with regard to
conducting the panchanama. He came to know that, the
driver of the vehicle ran away from the spot. Except this
nothing has been stated by him.
27. PW.5 - Basavaraj Nayakodi is the owner of said
rickshaw. He deposed ignorance that, who was traveling in
the said vehicle at the time of accident. Evidentially he
being the owner of said rickshaw is not an eyewitness to
the said accident and got released his vehicle from the
Police Station. Nothing has been elicited from the mouth
of this witness to disbelieve his evidence.
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28. PW.6 - Basangouda Shivangouda Patil was the
Investigating Officer in this case. He states before the
Court that, the driver of the said vehicle was found driving
his vehicle without any driving license. Therefore, accused
has also been charge sheeted for the offences of violation
of provisions of Section 3 of the M.V. Act. When the driver
of the said vehicle was not possessing any license and
found driving the vehicle on public road, it amounts to
violation of provisions of M.V. Act and amounts to rash
and negligent driving of the vehicle by the accused. So
the very act of the accused in driving the vehicle without
any driving license, attracts the provisions of rash and
negligent driving of the vehicle.
29. Therefore, if all these features are put together
as rightly observed by the Trial Court and the first
appellate Court, there is proof of rash and negligent
driving of the vehicle by the accused. Because of this he
lost his control over the vehicle and toppled it down. As a
result Ganesh died on the spot. PW.3 has given the
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graphic account of accident. The Trial Court as well as the
first appellate Court have rightly come to the conclusion
that, because of rash and negligent driving of the vehicle,
said accident has taken place. I do not find any factual or
legal error being committed by the Trial Court in finding
the accused guilty.
30. The learned counsel for the revision
petitioner/accused submits that, first of all the offences
alleged against the accused are not proved in accordance
with law. He submit before the Court that, in view of the
judgments of Co-Ordinate Bench of this Court in Criminal
Revision Petition No.2272/2013 and Criminal Revision
Petition No.100253/2016, the accused to be levied with
payment of fine and as the accident has taken place about
13 years back. He submits to show leniency in imposing
the fine against the accused.
31. I have gone through the said judgments. The
facts of this case are different from the facts of above said
judgments. It is laid down in the case of State of
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Karnataka Vs. Krishna @ Raju1, that no leniency has to be
shown and minimum sentence is to be imposed.
32. It is laid down in the aforesaid judgment as
under:
"Criminal P.C. (2 of 1974), S.377-
Enhancement of sentence - Driver convicted for
killing one person and injuring another for offences
under S.304A and under other provisions -
Sentence of fine of Rs.250/- - Refusal of High Court
to enhance sentence - Not proper, Criminal Appeal
No.451 of 1981, D/- 31-1-1983 (Kant), Reversed.
(Penal Code, (1860), S.304A).
Where the driver had not only driven his bus
in a reckless manner and caused the death of one
person and injuries to another but he had also
attempted to escape prosecution by failing to report
the accident to the police authorities and the driver
was guilty of offence under S.304A and other
offences, it was not proper for the High Court not to
enhance the sentence of fine of Rs.250/- for all
offences.
AIR 1987 SCC 861
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8. We are, therefore, constrained to do what
the High Court should have done but failed to do
viz., enhance the sentence in the interests of
justice. We, however, feel that the ends of justice
would be met by enhancing g the sentence for the
most serious of the charges for which the
respondent has been convicted viz., the charge
under S.304-A, I.P.C. Accordingly we enhance the
sentence for the conviction under S.304-A, I.P.C. to
six months R.I. and fine of Rs.1,000/- in default to
undergo R.I. for two months. We leave undistrubed
the other convictions and sentences."
33. With regard to the finding the accused guilty
and imposition of sentence against him, I do not find any
factual or legal error being committed by the Trial Court.
An offence of present nature, a minimum sentence has to
be imposed as laid down by the Hon'ble Apex Court in the
case of Krishna @ Raju (supra). Therefore, points for
consideration stated above are answered in negative.
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34. Resultantly, I pass the following:
ORDER
(i) Criminal Revision Petition is dismissed.
(ii) The judgment of conviction and order of
sentence passed by the Trial Court in
C.C.No.583/2012 dated 20.04.2013 and
confirmed by the first appellate Court in
Criminal Appeal No.55/2013 dated
14.03.2017 are affirmed.
(iii) Accused shall surrender before the Trial
Court within 15 days from today to undergo
sentence forthwith.
(vi) Send the order portion of this judgment to
the Trial Court as well as the first appellate
Court, through mail.
(v) The Trial Court to secure the presence of the
accused in accordance with law and commit
him to prison.
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(vi) Send back the Trail Court as well as the first
appellate Court records forthwith.
Sd/-
JUDGE
SMM
