Karnataka High Court
Shri.Ganesh Shivanand Gunthkal vs The State Of Karnataka on 8 December, 2023
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CRL.RP No. 100048 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. 100048 OF 2017 (397-)
BETWEEN:
SHRI GANESH SHIVANAND GUNTHKAL,
AGE: 26 YEARS, OCC: DRIVER,
R/O: CHAMUNDESHWARI NAGAR, RAJAJI NAGAR,
2ND CROSS, HUBBALLI, DIST: DHARWAD.
...PETITIONER
(BY SRI. VYAS DESAI FOR SRI. JAGADISH PATIL, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
THROUGH KATKOL P.S.,
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS, DHARWAD.
...RESPONDENT
(BY SRI. M.B GUNDAWADE, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
YASHAVANT SECTION 397 R/W 401 OF THE CRIMINAL PROCEDURE CODE 1973,
NARAYANKAR
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE
II ADDITIONAL SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL
Digitally signed
by YASHAVANT NO. 32/2013 DATED 06.04.2016 AND JUDGMENT AND ORDER
NARAYANKAR
Date:
2023.12.15 PASSED CIVIL JUDGE AND JMFC RAMDURG IN C.C. NO. 125/2011
14:47:50 +0530
DATED 01.02.2013, ACTING UNDER SECTION 255(2), 279, 338,
304(A) IPC 134 R/W 187 BY ALLOWING THIS REVISION PETITION IN
THE INTEREST OF JUSTICE,
THIS PETITION, COMING ON FOR HEARING ON 26.10.2023
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
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CRL.RP No. 100048 of 2017
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner/accused has filed this revision petition
challenging the judgment of his conviction and order of
sentence passed in C.C. No.125/2011 dated 01.02.2013
by the Civil Judge and JMFC, Ramdurg and confirmed by
the II Additional Sessions Judge, Belagavi in Criminal
Appeal No.32/2013 dated 06.04.2016.
2. Parties to this revision petition are referred to
as per the rank before the Trial Court, for the purpose of
convenience.
3. The brief facts of the case are that, one
Somalingappa Shivalingappa Neelakari, the complainant
submitted the complaint when he was taking treatment at
Umrani Hospital, Gokak on 14.04.2010 alleging, that he is
the resident of the address so stated in the complaint. He
states that, on 14.04.2010 at 11.00 a.m., in the morning
hours, resident of his village Siddappa S/o.Bommannavar
@ Sakreppanavar requested the complainant to
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accompany him to Munvalli to purchase a mobile phone.
Accordingly, the complainant and the said Siddappa
together went to Munvalli on a motorcycle bearing
registration No.KA-24/J-2178. After purchase of the
mobile phone at Munvalli, they were returning to their
native place. As they wanted to visit their landed property,
they came to Benakatti and were travelling on Benakatti-
Chunchanur road on the above said motorcycle. It was the
complainant who was riding the motorcycle and Siddappa
was the pillion rider.
4. At about 2.00 p.m., when they came near the
landed property of the complainant, at that time, one
Tavera vehicle came from the opposite direction i.e., from
Chunchanur side in high speed, in rash & negligent
manner and dashed to the motorcycle of the complainant
and caused the accident. Because of this accident, both
complainant and pillion rider fell down and sustained
injuries on their persons.
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5. The complainant sustained injuries on his right
thigh and left forearm and wound over front of right leg.
He also sustained injuries on left side of his head, on chest
and so also to the foot. The pillion rider Siddappa also
sustained injuries on his head, stomach, etc. Because of
injuries sustained in the accident, the complainant could
not notice the registration number of the vehicle which
caused the accident. The said Tavera vehicle's driver
without stopping his vehicle went away from the said
place. These two injured were fallen at the scene of
offence itself. Thereafter, getting knowledge of the
accident, the mother and father of the complainant came
there and called 108 Ambulance and in the Ambulance,
initially they were shifted to Government Hospital,
Yaragatti and thereafter, they were shifted to Umrani
Hospital at Gokak. But on the way to the hospital at about
4.30 p.m., Siddappa succumbed to the accidental injuries.
6. Thus, it is alleged that, because of rash &
negligent driving on the part of the driver of Tavera
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vehicle, the said accident has taken place. He gave his
statement before the police when he was in Umrani
Hosptial at Gokak and same was registered by the A.S.I.,
Katkol Police Station in Crime No.86/2010 and criminal law
was set in motion.
7. The Investigating Officer after completion of the
investigation and after following all the formalities of the
investigation, filed charge sheet against the accused for
the offences punishable under Sections 279, 338 and
304(A) of the Indian Penal Code, 1860 (for short, 'IPC')
and Section 134 read with Section 187 of the Motor
Vehicle Act (for short the 'M.V. Act').
8. Before the Trial Court, to substantiate the case
of the prosecution, in all, the prosecution examined 15
witnesses in the shape of PW.1 to PW.15 and got marked
documents at Exs.P.1 to P.19 and M.O. Nos.1 to 3 and
closed the prosecution evidence. During the course of
evidence on behalf of the defence, Ex.D.1 came to be
marked.
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9. The learned Trial Court on hearing the
arguments and on perusal of the records, found the
accused guilty for commission of the offences punishable
under Sections 279, 338, 304(A) of IPC and Section 134
read with Section 187 of M.V. Act. The order of sentence
passed by the Trial Court reads as under:
"ORDER
Action U/Section/255(2) Cr.P.C., accused
is convicted for the offences punishable
U/Sections-279, 338, 304(A) of IPC and 134
R/w. 187 of M.V. Act.
Accused is sentenced to pay a fine of
Rs.1,000/- for the offence punishable
U/Sec.338 IPC in default to undergo SI for one
month.
Accused is sentenced to undergo SI for
one year for the offence punishable
U/Sec.304(A) of IPC.
Accused is sentenced to pay a fine of
Rs.200/- for the offence punishable U/Sec.134
R/w. 187 of M.V. Act, in default to undergo SI
for seven days."
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10. This judgment of conviction and order of
sentence was challenged by the accused before the II
Additional Sessions Judge, Belagavi in Criminal Appeal
No.32/2013. The learned first appellate Court on hearing
the arguments on both the sides, confirmed the judgment
of conviction and order of sentence passed against the
accused and dismissed the appeal. This is how the revision
petitioner/accused is before this Court challenging both
the judgments by filing this revision petition.
11. The learned counsel for the petitioner submits
before the Court that, both the learned Trial Court and the
first appellate Court have committed grave error in
convicting the accused. Registration numbers of vehicles
have not been properly observed by the Courts below.
There is no proper evidence being led by the prosecution.
Even the complainant was not possessing valid driving
license at the time of the accident and this fact is revealed
from the evidence of PW.15-CPI before the Trial Court.
This accused/revision petitioner has been falsely
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implicated in this case. Both the Courts below have failed
to note that panch witnesses to the alleged panchanama in
recovery of number plates of the vehicles have not
supported the case of the prosecution. The witnesses so
examined are interested witnesses. Only based on the
interested witnesses, the conviction was ordered by the
Trial Court and affirmed by the first appellate Court. The
evidence of PWs.2, 3 and 4 are not corroborative in
nature.
12. He submits that, as there is lacuna in the case
of the prosecution, the learned Trial Court ought not to
have given findings against the accused. So also the
appellate Court would have taken into consideration the
said inconsistent evidence of witnesses. Therefore, it is
prayed by the learned counsel for the revision
petitioner/accused to allow the revision petition and set
aside the impugned judgments and consequently, it is
prayed to acquit the accused.
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13. As against this submission, the learned
Additional State Public Prosecutor, Shri. M. B. Gundawade
appearing for the State supported the reasons being
assigned by the Trial Court in convicting the accused. Even
the first appellate Court on re-appreciation has come to
the conclusion that the Trial Court is right in convicting the
accused. He submits that evidence of witnesses especially
PW.1-injured being the complainant has supported the
case of the prosecution. Therefore, there is no room for
interference into the judgments of both the Courts below.
14. In support of their respective submissions, both
the respective counsel relied upon various evidence
adduced by the prosecution.
15. I have given my anxious consideration to the
arguments on both the sides. The points that would arise
for my consideration are:
i) Whether the learned Trial Court and the
first appellate Court have committed any
illegality in finding the accused guilty of the
offences alleged against him?
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ii) If so, whether the judgment of
conviction and order of sentence passed by the
Trial Court and affirmed by the first appellate
Court requires interference by this Court?
iii) What order?
16. Before adverting to the other aspects of the
case, let me analyze admitted facts in this case.
17. There was an accident on 14.04.2010 in
between the motorcycle bearing registration No.KA-24/J-
2178 and Tavera vehicle bearing registration No.KA-24/J-
2178 driven by the accused. In the said accident, the
complainant-Somalingappa sustained injuries as shown in
Ex.P.9- wound certificate. In the said accident, Siddappa
died and inquest panchanama to that effect was conducted
by the Investigating Officer as per Ex.P.5 to show that
Siddappa died because of accidental injuries. The
prosecution relies upon Ex.P.10 - post mortem report. It is
also not in dispute that, the said accident has taken place
not because of any mechanical defects in both the vehicles
i.e., motorcycle and Tavera vehicle bearing registration
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Nos.KA-24/J-2178 and KA-25/N-8941 respectively, have
sustained damages as shown in Ex.P.16-MVI Report
prepared by the Senior Vehicle Inspector, ARTO,
Bailhongal. These are all admitted facts which need not be
proved.
18. So far as scene of offence panchanama is
concerned, the prosecution relied upon Ex.P.2-Spot
panchanama. This panchanama shows that, the said
accident has taken place on the Chunchanur- Benakatti
road by the side of the landed property of the
complainant. On either side of the said road there was a
kaccha road. The features of the road has been mentioned
in Ex.P.2. Ex.P.3 is the number plate pieces seizure
panchanama prepared by the police at the time of
recovering the number plate pieces. Ex.P.4 is a seizure
panchanama of the offending vehicle. These documents
are not denied by the defence.
19. In a case of present nature, it is a duty of the
prosecution to prove the guilt of the accused beyond all
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reasonable doubts. There is as distinction between the
rash and negligent driving. Rash is one thing and negligent
is another thing. There must be direct involvement of the
accused in causing the accident.
20. PW.1 the complainant-injured has reiterated the
contents of the complaint in his evidence. It is his
evidence that, when he was riding his motorcycle on the
left side of the road near his landed property, a Tavera
vehicle came from the opposite direction and dashed to
the motorcycle of the complainant. The said accident has
taken place at about 2.00 p.m., on 14.04.2010. At about
4.30 p.m., Siddappa the pillion rider died. Katkol police
has recorded his statement as per Ex.P.1.
21. This PW.1 has been directed with severe cross
examination. It is suggested to PW.1 that, the said road is
consisting of ditches. He had purchased the motorcycle
about two years back prior to the accident. He states that,
said road was about 20-25 feet in width. At the place of
accident there exists no curve road. Though this PW.1 is
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directed with severe cross examination, he is consistent in
his evidence that, because of rash and negligent driving of
the offending Tavera vehicle, the said accident has taken
place.
22. PW.2-Rudrappa Jalageri is an eye witness to the
said accident. He speaks before the Trial Court that, on
the day of accident he was returning to his landed
property on Chunchanur road. At that time, he noticed
two persons moving on the motorcycle i.e., rider and
pillion rider, it was PW.1 who was riding the motorcycle. At
the same time, one green color Tavera vehicle came from
Chunchanur side and dashed to the motorcycle. PW.2 is an
eyewitness to the said accident as per his evidence. He
stated that, the said Tavera vehicle driver has caused the
accident and without stopping the vehicle went away from
the said place. He has been cross examined at length by
the defence but he is specifically deposed before the Court
that, because of rash and negligent driving of the Tavera
vehicle by its driver the said accident has taken place.
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23. PW.3 - Shivappa Ganapati Badiger is also
eyewitness to the said accident. He also speaks in similar
terms as that of PW.2. It was PW.3 who shifted the
injured to the hospital. He also deposed that because of
rash and negligent driving of the driver of Tavera vehicle
the said accident has taken place. He admits that, there is
ditch on the road. When the said road consists of ditches,
it was the duty of the drivers of the vehicle to take all
available precautions to avoid any accident. No effective
cross examination is directed to disbelieve the evidence of
PWs.2 and 3.
24. PW.4 - Pundalik Yallappa Myagedi is panch
witness to Ex.P.2 have been turned hostile. Nothing worth
is elicited from his mouth. Therefore, his evidence would
not help the case of the prosecution.
25. PW.5-Basu Siddappa Singarkopp is also an
eyewitness to the said accident. According to him, he saw
the said accident when he was in a landed property.
Tavera vehicle was driven in high speed and dashed to the
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motorcycle of the complainant. He identified both accused
as well as PW.1-complainant. He too has been cross
examined by the defence. But nothing worth is elicited
from his mouth.
26. PW.6-Gadigeppa Rudrappa Hanji is also
eyewitness and he also speaks in similar terms as that of
PW.5. He speaks with regard to the accident and deposed
that because of rash and negligent driving of Tavera
vehicle the said accident has taken place. He too has been
cross examined by the defence. But nothing worth is
elicited from his mouth.
27. PW.7-Basappa Kallappa Ganiger is panch
witness to Ex.P.3 who has been turned hostile. So also
PW.8-Mallappa Yallappa Dodamani. The evidence of
PWs.7 and 8 would not help the case of the prosecution.
28. PW.9- Shivalingappa Dundappa Neelakari is the
father of PW.1 and he speaks before the Court with regard
to said accident and death of Siddappa in the said
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accident. He is not an eyewitness to the said accident and
came to the spot after getting information and shifted the
injured to the hospital. In his presence, the panchanama
at Ex.P.3 was prepared and M.O. Nos.1 to 3 were seized
by the police. No effective cross examination is directed to
disbelieve his evidence.
29. PW.11 - Anandrao Pandurang Mokashi is the
panch witness to Ex.P.4 turned hostile. His evidence will
not help the case of the prosecution.
30. PW.12-R.L. Sangam - the then ARTO Bailhongal
has come before the Trial Court and stated that, said
accident has taken place, not because of any mechanical
defects in both the vehicles. To disbelieve the evidence of
PW.12 except one line cross examination, nothing is
elicited from his mouth. Thus, from the evidence of
PW.12, it is proved that said accident has taken place not
because of any mechanical defects.
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31. PW.13-B. S. Ghanabasappanavar - ASI has
recorded the statement of PW.1 and based upon that he
has registered the crime and set the criminal law in
motion. He has done part of investigation.
32. PW.14-V.B. Badiger is the Investigating Officer
in this case. PW.-15-Prakash Babu Naidu is the CPI filed
the charge sheet against the accused after completion of
investigation.
33. On cumulative reading of all the evidence of
witnesses examined in this case, they do demonstrate
that, the said accident has taken place because of rash
and negligent driving of the driver of Tavera vehicle. On
reading Ex.P.19 sketch which is the main document do
establish that, this PW.1 and deceased were moving on
the motorcycle towards Chunchanur from Munvalli and at
that time from Chunchanur side offending vehicle Tavera
came on wrong side of the road. Though there was
sufficient road on the left side, driver came to the right
side and dashed to the motorcycle. There is no
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explanation either directed to the eyewitness or during the
course of statement recorded under Section 313 of Cr.P.C.
that, what made the accused to drive the vehicle towards
the right side of the road. Nothing is stated by the
accused.
34. Under the provisions of the Indian Evidence Act,
the burden is on the accused to explain that, what made
him to drive his Tavera vehicle towards the right side of
the road. But in this case, no such explanation is offered
by the accused.
35. The learned Trial Court has appreciated the
evidence placed on record and has come to the definite
conclusion that, because of rash and negligent driving of
the Tavera vehicle by the accused, the said accident has
taken place. While re-appreciating the evidence, the first
appellate Court also concluded that, the evidence of the
prosecution witnesses do establish that, the accused drove
his vehicle in high speed and dashed to the motorcycle.
The evidence of PWs.1, 2, 3, 4 and 5 is corroborated with
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each other. The eyewitness and injured witness have
specifically spoken about the manner in which the said
accident has taken place and also stated about the speed
of the vehicle. Ex.P.19 sketch do establish, the rash and
negligent driving of the offending vehicle by the accused.
Therefore, I do not find any illegality being committed by
both the Courts below in finding the accused guilty in
committing the offence under Section 279, 338, 304(A) of
IPC and Section 134 read with Section 187 of M.V. Act.
36. Coming to the sentence being imposed by the
Trial Court as stated supra. So far as offence under
Section 338 of IPC, the Trial Court has imposed the
sentence of Rs.1,000/- with default sentence to undergo
simple imprisonment for one month and for the offence
under Section 134 read with Section 187 of M.V. Act
imposed fine of Rs.200/- with default sentence to undergo
simple imprisonment for seven days. It is submitted by the
counsel for the accused that, the imposition of sentence
for the offence under Section 304(A) of IPC is exorbitant.
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The Trial Court has imposed sentence for the offence
under Section 304(A) to undergo simple imprisonment for
one year. It is submitted that, accused is the only bread
earner in his family. Therefore, it is submitted that, the
sentence of imprisonment be set aside and accused be
directed to pay fine only.
37. In support of submission of the counsel for the
accused, relied upon the unreported judgments of Co-
ordinate Bench of this Court passed in Criminal Revisions
Petition No.2272/2013 dated 13.07.2022. I have perused
the said judgment. The facts of the case and the facts of
the case on hand are different. In this case it is found
that, driver of the vehicle drove the vehicle in a high speed
on the right side of the road and dashed to PW.1's
motorcycle because of which, rider/complainant fell down
and pillion rider Siddappa died.
38. In the judgment of Hon'ble Apex Court in State
of Karnataka Vs. Krishna @ Raju1, it is observed as under;
AIR 1987 SCC 861
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" 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.
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
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undergo R.I. for two months. We leave undistrubed
the other convictions and sentences."
39. So in view of the judgment of Hon'ble Apex
Court and also the manner in which the said accident has
taken place, if the sentence of imprisonment is to be
imposed and reduced to six month it would meet the ends
of justice.
40. With this view, the points stated above are
answered in the negative.
41. Resultantly, I pass the following:
ORDER
(i) Criminal Revision Petition filed by the
revision petitioner is allowed in part.
(ii) Accused is sentenced to undergo
simple imprisonment for a period of six months
and pay fine of Rs.1,000/-. In default of
payment of fine he is further to undergo simple
imprisonment for two months.
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(iii) So far as sentence with regard to
other offences is concerned, they are
undisturbed.
(iv) Bail bonds of the accused stands
cancelled.
(v) Accused shall surrender before the
Trial Court 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.
(vii) The Trial Court to secure the
presence of the accused in accordance with law
and commit him to prison.
Sd/-
JUDGE
SMM
