Praveen S/O Bharmappa Gunger vs The State Of Karnataka
2023 Latest Caselaw 607 Kant

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                                                         CRL.RP No. 100055 of 2016


                                IN THE HIGH COURT OF KARNATAKA
                                        DHARWAD BENCH

                           DATED THIS THE 10TH DAY OF JANUARY, 2023

                                              BEFORE

                          THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

                       CRIMINAL REVISION PETITION NO. 100055 OF 2016

                   BETWEEN:

                   PRAVEEN S/O BHARMAPPA GUNGER,
                   AGE: 26 YEARS,
                   R/O: AREMALLAPUR,
                   TALUK: RANEBENNUR,
                   DISTRICT: HAVERI.

                                                                      ...PETITIONER
                   (BY SRI K.S.PATIL, ADVOCATE.)

                   AND:

                   THE STATE OF KARNATAKA,
                   BY PSI, RURAL POLICE STATION,
                   RENEBENNUR, TQ: RANEBENNUR,
                   THROUGH ADDITIONAL S.P.P.,
                   OFFICE OF THE ADVOCATE GENERAL,
                   HIGH COURT BUILDING, DHARWD.

                                                                     ...RESPONDENT
                   (BY SRI RAMESH CHIGARI, HCGP.)
Digitally signed
by SUJATA
SUBHASH
PAMMAR
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
BENCH,
DHARWAD.
                        THIS CRIMINAL REVISION PETITION IS FILED UNDER
                   SECTION 397(1) READ WITH SECTION 401 OF THE CODE OF
                   CRIMINAL PROCEDURE, 1973, SEEKING TO SET ASIDE THE
                   JUDGMENT AND ORDER OF SENTENCE DATED 05.12.2015, PASSED
                   IN CRL.A.NO.36/2011, BY THE II ADDL. DISRICT AND SESSIONS
                   JUDGE, AT HAVERI (SITTING AT RANEBENNUR), WHEREBY
                   DISMISSING THE APPEAL AND MODIFYING THE SENTENCE BY
                   REDUCING IMPRISONMENT ONLY FOR OFFENCE PUNISHABLE UNDER
                   SECTION 304(A) OF IPC TO 3 MONTHS INSTEAD OF 6 MONTHS
                   THEREBY UPHOLDING AND CONFIRMING THE JUDGMENT DATED
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                                      CRL.RP No. 100055 of 2016


24.06.2011, IN C.C.NO.191/2009, ON THE FILE OF PRL. SENIOR
CIVIL JUDGE AND JMFC, RANEBENNUR, ETC.,.

     THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:


                             ORDER

This revision petition is filed against the judgment of

conviction and order of sentence passed by Prl. Senior

Civil Judge and JMFC, Ranebennur, in C.C.No.191/2009

and confirmed with certain modification regarding

sentence portion by II Addl. District and Sessions Judge,

Haveri, sitting at Ranebennur, in Crl.A.No.36/2011, for the

offence punishable under sections 279, 337, 338 and

304(A) of IPC.

2. For the sake of convenience, the parties herein

are referred with the original rankings occupied by them

before the Trial Court.

3. The brief factual matrix leading to the case are

that:

CRL.RP No. 100055 of 2016

(a) On 20.07.2009 at 11.15 a.m., the accused

being the driver of TATA Ace vehicle bearing No.KA-27/A-

2360, drove it in a rash and negligent manner from

Aremallapur village towards Ranebennur, in a rash manner

and in speed endangering human life and personal safety

with excess passengers, as a result the vehicle overturned

by the side of the road resulting in simple injuries to

CWs.7 to 10, grievous injuries to CW.6 and causing death

of one Nissarahammed Irani. In this regard a complaint

came to be lodged by the complainant at about 03.30 p.m.

on the same day. On the basis of the complaint, a crime

was registered. The Investigating Officer visited the spot

and drawn mahazar. He has also recorded the statements

of witnesses and it is noticed that one person i.e.,

Nissarahammed on the way to hospital succumbed

because of the injuries sustained by him and after

completing the investigation, the Investigating Officer has

submitted the charge sheet for the offence punishable

under sections 279, 337, 338 and 304(A) of IPC.

CRL.RP No. 100055 of 2016

(b) After submission of the charge sheet, as there

are sufficient grounds to proceed against the accused, the

learned Magistrate has taken cognizance of the offences.

The summons have been issued to the accused and

accused appeared through his counsel and was enlarged

on bail. The prosecution papers were also furnished to

him. The plea under section 279, 337, 338 and 304(A) of

IPC was recorded and the accused denied the same.

(c) Then the prosecution has examined in all nine

witnesses as PW.1 to PW.9 and also placed reliance on 24

documents, which are marked at Ex.P.1 to P.24. After

conclusion of the evidence of the prosecution, the

statement of accused under section 313 of Cr.P.C. was

recorded to enable the accused to explain the

incriminating evidence appearing against him in the case

of prosecution. The case of accused is of total denial and

he did not choose to lead any oral or documentary

evidence in support of his defence.

CRL.RP No. 100055 of 2016

(d) After having heard the arguments, the learned

Magistrate has convicted the accused for the offence

punishable under sections 279, 337, 338 and 304(A) of

IPC and imposed fine of Rs.1,000/-, each for the offence

under section 279, 338 of IPC and fine of Rs.500/- for the

offence under section 337 of IPC. Further accused was

also imposed sentence of simple imprisonment for a period

of six months with a fine of Rs.1,000/- for the offence

punishable under section 304(A) of IPC with default

clause.

(e) Being aggrieved by the judgment of conviction

and order of sentence, the accused-revision petitioner has

filed Crl.A.No.36/2011, on the file of II Addl. District and

Sessions Judge, Haveri, sitting at Ranebennur and the

learned Sessions Judge by judgment dated 05.12.2015,

upheld the conviction order. However the sentence so far

as it relates to the offence under section 304(A) of IPC

was modified by reducing the same from six months to

three months and rest of the order stands confirmed.

CRL.RP No. 100055 of 2016

Being aggrieved by these concurrent findings, this revision

petition is filed.

4. Heard the learned counsel appearing for

revision petitioner and learned HCGP appearing for

respondent State. Perused the records.

5. The learned counsel for revision petitioner

would contend that there is no serious dispute regarding

the accident. Both the Trial Court and the First Appellate

Court have failed to note of the fact that it was raining on

that day and due to unavoidable circumstances, the

accident has occurred, since suddenly cattle came across

the road, which compelled the accused to apply brake,

which has resulted in the accident. Hence, he would

contend that the Trial Court as well as the First Appellate

Court are not justified in imposing sentence of

imprisonment and sought for indulgence by this Court by

setting aside the sentence of imprisonment.

CRL.RP No. 100055 of 2016

6. Per contra, the learned HCGP would support the

judgment of conviction and order of sentence passed by

the First Appellate Court and argued that all the witnesses

have fully supported the case of prosecution and the

accused has not led any evidence to show his innocence or

precautions taken by him in avoiding the accident. Hence,

he would submit that the judgment of conviction and order

of sentence passed by the First Appellate Court does not

call for any interference. As such he would seek for

rejection of the revision petition.

7. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration.

"Whether the judgment of conviction

passed by the Trial Court and modified order of

sentence passed by the First Appellate Court

are erroneous, arbitrary and capricious, so as

to call for any interference in this revision?"

CRL.RP No. 100055 of 2016

8. On a perusal of the records it is not in dispute

that the accident has occurred on 20.07.2009 at about

11.15 a.m. on Aremallapur-Ranebennur road involving

TATA Ace vehicle bearing No.KA-27/A-2360. It is also not

in serious dispute that the accused was the driver of the

TATA Ace vehicle. It is further an admitted fact that the

vehicle overturned on the right side of the road resulting

in simple injuries to CWs.7 to 10 and grievous injuries to

CW.6 as well as resulting in death of one Nissarahammed.

All these facts are admitted. The accused has simply

disputed the actionable negligence on his part.

9. The main contention of the learned counsel for

accused is that since it was raining, certain cattle suddenly

came on the road which has compelled the accused to

apply brake to his vehicle. But the evidence disclose that it

was only drizzling and the witnesses have supported the

case of the prosecution. The complainant is an eye witness

who set the law in motion and while PW.2 is spot mahazar

witness and PW.3 is an eye witness. Further, PW.4 and

CRL.RP No. 100055 of 2016

PW.5 are also eye witnesses. Though in the cross-

examination of these witnesses it is elicited that it was

raining, but the evidence also disclose that the vehicle was

being driven with around 20 passengers. The evidence

further disclose that some of the passengers were sitting

on the top of the cabin. This aspect itself clearly

establishes that the vehicle was overloaded and revision

petitioner-accused was negligent in driving the vehicle

with overloaded passengers that too when it was

drizzling/raining.

10. The sketch of the scene of offence is available

at Ex.P.3 while Ex.P.2 is the spot mahazar. Ex.P.3 disclose

that at the accident spot, road is straight and there were

no trees planted by either side of the road. The accident

has occurred in the morning at 11.15 a.m. In that event

even if it is drizzling, the petitioner being the driver was

able to see the cattle grazing by the side of the road and

he should have anticipated regarding their movements.

But that is not forthcoming though the accused all along

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CRL.RP No. 100055 of 2016

taken a defence that cattle suddenly came across the

road. The evidence disclose that none of the cattles have

suffered any injuries. The principles of res ipsa loquitur are

directly applicable to the facts and circumstances of the

case in hand.

11. Apart from that, under section 106 of the Indian

Evidence Act, the accused is required to explain the

specific facts within his knowledge, but he did not venture

to explain as to how the accident has occurred. His

statement recorded under section 313 of Cr.P.C. discloses

that it is a formal denial. Looking to these facts and

circumstances it is evident that the accused drove his

vehicle in a rash and negligent manner with overloaded

passengers and was unable to control the vehicle which

has resulted in overturning the vehicle as a result certain

persons suffered simple and grievous injuries and one

person succumbed because of the injuries.

12. The facts clearly establish that the accident is

because of actionable negligence on the part of the

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CRL.RP No. 100055 of 2016

revision petitioner-accused and he has committed offence

punishable under section 279, 337, 338 and 304A of IPC.

Both the Trial Court and the First Appellate Court have

properly analyzed the evidence and concurrently found

that the accused has committed the offences and have

rightly convicted him. Further, though the Trial Court has

imposed sentence of simple imprisonment of six months

for the offence punishable under section 304(A) of IPC, the

First Appellate Court has modified the said portion of the

sentence by imposing sentence of imprisonment for a

period of only three months by retaining the fine, which is

not challenged by the State.

13. Looking to these facts and circumstances, it is

evident that the First Appellate Court has already shown

leniency towards accused. Under these circumstances,

considering the nature and gravity of the offence,

extending further leniency in favour of the petitioner-

accused does not arise at all. The judgments of conviction

and orders of sentence do not suffer from any infirmity or

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CRL.RP No. 100055 of 2016

arbitrariness so as to call for interference by this court.

Under such circumstances, the point for consideration is

answered in the negative and as such the revision petition

being devoid of merits, does not survive for consideration.

Accordingly, I proceed to pass the following:

ORDER

The revision petition is dismissed, by confirming the

judgment of conviction dated 24.06.2011, passed by the

Prl. Senior Civil Judge and JMFC, Ranebennur, in

C.C.No.191/2009 and the modified order of sentence

dated 05.12.2015, passed by the II Addl. District and

Sessions Judge, Haveri, sitting at Ranbennur, in

Crl.A.No.36/2011.

Send back the TCRs to Trial Court with a direction to

secure the presence of accused for serving the sentence.

Sd/-

JUDGE MRK