D.C. Vijayakumar @ Kumar vs State By S H O
2023 Latest Caselaw 942 Kant

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                                                     CRL.RP No. 899 of 2013




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 16TH DAY OF JANUARY, 2023

                                        BEFORE
                        THE HON'BLE MR JUSTICE R. NATARAJ
                 CRIMINAL REVISION PETITION NO. 899 OF 2013
             BETWEEN:

             D.C. VIJAYAKUMAR @ KUMAR
             S/O CHINNASWAMY,
             AGED 27 YEARS,
             R/O DEVIPURA VILLAGE,
             MALAVALLI TALUK,
             MYSORE DISTRICT-571413.

                                                                   ...PETITIONER
             (BY SRI. SREENIVASAN M.Y., ADVOCATE)

             AND:

             STATE BY S.H.O.
             RURAL POLICE STATION, MALAVALLI,
             MYSORE DISTRICT-571413.

                                                                 ...RESPONDENT
             (BY SRI. KRISHNA     KUMAR   K.K.,   HIGH   COURT     GOVERNMENT
             PLEADER)
Digitally
signed by           THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SUMA
Location:    SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
HIGH COURT
OF
KARNATAKA    PRAYING TO SET ASIDE THE JUDGMENT DATED 12.12.2012 PASSED
             BY THE ADDL. S.J., MANDYA IN CRL.A.NO.60/2011 AND SET ASIDE
             THE JUDGMENT OF CONVICTION DATED 23.07.2011 PASSED BY THE
             SR. C.J. AND J.M.F.C., MALAVALLI IN C.C.NO.34/2007.

                    THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
             THE COURT MADE THE FOLLOWING:
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                                        CRL.RP No. 899 of 2013




                            ORDER

The petitioner has called in question the correctness of

the judgment of conviction dated 23.07.2011 passed by the

Senior Civil Judge and JMFC, Malavalli (henceforth referred to

as 'Trial Court' for short) in C.C.No.34/2007 convicting him for

the offences punishable under Sections 279, 304A of IPC and

Section 3 read with Sections 187 and 181 of Indian Motor

Vehicles Act, 1988 (henceforth referred to as 'IMV Act' for

short) and the consequent sentence. He has also challenged

the judgment dated 12.12.2012 passed by the Addl. Sessions

Judge, Mandya (henceforth referred to as 'Appellate Court' for

short) in Crl.A.No.60/2011 by which, the judgment of the Trial

Court was upheld.

2. The case of the prosecution was that on 10.03.2007

at about 12.30 p.m., CW.1, CW.13 and the mother of CW.1

were walking on the left side of the road from K.K. Halli

towards Jayachamarajapura. At that time, a motorcyclist who

was riding a motorcycle bearing registration No.KA-09/E-

8520/2006-07, in a rash and negligent manner, dashed against

the mother of CW.1 Smt. Ningamma. As a result, she suffered

CRL.RP No. 899 of 2013

injuries and was shifted to Government Hospital, Malavalli,

where she died. Based on a complaint lodged on 10.03.2007 at

5.00 p.m., the jurisdictional police registered Crime

No.17/2007 for the offences punishable under Sections 279,

304A of IPC read with Section 187 of IMV Act. An inquest was

conducted on the deceased on 11.03.2007. A spot mahazar

was drawn by CW.18 in the presence of CW.1, CW.2 and CW.3.

A post-mortem was conducted, which indicated that the death

was due to hemorrhagic shock as a result of the head injury.

The offending vehicle was inspected by the Motor Vehicles

Inspector, who reported that the accident was not due to any

mechanical defects. The vehicle was seized in terms of the

mahazar that was drawn by CW.19. After recording the

statement under Section 161 of Cr.P.C., the prosecution filed a

final report for the offences punishable under Sections 279,

304A of IPC read with Sections 3 and 187 of IMV Act.

3. The Trial Court took cognizance of the offences

punishable under Sections 279, 304A of IPC read with Sections

3 and 187 of IMV Act and issued summons to the petitioner in

C.C.No.34/2007. After the petitioner entered appearance, he

was enlarged on bail. The plea of the petitioner was recorded,

CRL.RP No. 899 of 2013

who pleaded not guilty and claimed to be tried. The prosecution

examined PW.1 (CW.1), PW.2 (CW.2), PW.3 (CW.3), PW.4

(CW.19), PW.5 (CW.13) and PW.6 (CW.18) and marked Exs.P1

to P8. The statement of the petitioner/accused was recorded

under Section 313 of Cr.P.C., who denied the incriminating

evidence against him.

4. Based on the oral and documentary evidence, the

Trial Court held that the evidence of PW.1 and PW.2

demonstrated beyond doubt that the petitioner/accused was

riding his motorcycle in a rash and negligent manner. It also

held that the evidence of PW.5 established beyond doubt that

the accident was caused by the petitioner/accused resulting in

the death of Smt. Ningamma. It further held that the spot

mahazar was proved by PW.3 and his evidence corroborated

the evidence of PW.1 and PW.2. The evidence of the

investigating officers namely, PW.4 and PW.6 also established

the crime committed by the petitioner/accused. Therefore, it

held that the prosecution had successfully proved that the

petitioner was guilty of commission of the offences punishable

under Sections 279, 304A of IPC and Section 3 read with

Sections 181 and 187 of IMV Act and consequently, convicted

CRL.RP No. 899 of 2013

him for the said offences and sentenced him to pay fine of

Rs.1,000/- and undergo simple imprisonment for six months for

the offence punishable under Section 279 of IPC and to pay

fine of Rs.1,000/- and undergo simple imprisonment for six

months for the offence punishable under Section 304A of IPC

and to pay fine of Rs.250/- for the offence punishable under

Section 3 read with Sections 187 and 181 of IMV Act.

5. Being aggrieved by the said judgment of conviction,

the petitioner/accused filed Crl.A.No.60/2011. The Appellate

Court secured the records of the Trial Court, heard the learned

counsel for the petitioner and the Public Prosecutor

representing the State and after framing points for

consideration, it held that the prosecution had proved the

offences beyond reasonable doubt and that there were no

grounds to disbelieve the evidence of PW.1, PW.2 and PW.4 as

well as the investigating officer. Hence, it dismissed the appeal.

6. Being aggrieved by the aforesaid judgments, the

present revision petition is filed.

CRL.RP No. 899 of 2013

7. The learned counsel for the petitioner submitted

that the Trial Court and the Appellate Court failed to consider

that the prosecution had failed to prove the spot mahazar at

Ex.P2 as PW.3 had turned hostile since he did not know the

contents of the spot mahazar. He invited the attention of the

Court to the spot sketch and claimed that there was a trough in

the road marked in red line and therefore, the accident could

have occurred after the petitioner lost control while moving

over the trough and hence, he contended that the accident

occurred not due to the negligence of the petitioner but due to

a reason beyond his control.

8. Per contra, the learned High Court Government

Pleader for the respondent/State submitted that the accident

occurred at 12.30 p.m. and that the petitioner/accused dashed

against the deceased resulting in she falling on the road and

suffering serious head injuries. He invited the attention of the

Court to the post-mortem report, which shows that the

deceased had suffered fracture of the occipital bone and

cervical vertebra. He therefore, contended that the accident

was caused due to the negligence on the part of the petitioner.

He submitted that the prosecution had rightly filed a charge-

CRL.RP No. 899 of 2013

sheet for the offences punishable under Sections 279, 304A of

IPC and as the petitioner did not possess a licence, he was

charge-sheeted for the offences punishable under Section 3

read with Sections 181, 187 of IMV Act. He submitted that

PW.1, PW.2 and PW.5 were eye-witnesses, who have testified

that the accident was caused due to the rash and negligent

riding by the petitioner, while PW.3 and PW.6 had proved the

spot mahazar. He submitted that PW.4 being the investigating

officer had seized the vehicle in question and Motor Vehicle

Inspection report indicated that the accident was not due to

any mechanical failure. Therefore, he contends that the

prosecution had proved the offences committed by the

petitioner punishable under Sections 279, 304A of IPC and

Sections 3 read with Sections 187, 181 of IMV Act. He

submitted that there is no procedural error in the trial of the

case warranting interference by this Court in a revision petition

under Section 397 of Cr.P.C.

9. I have considered the submissions made by the

learned counsel for the petitioner as well as the learned High

Court Government Pleader for the respondent-State.

CRL.RP No. 899 of 2013

10. As rightly contended by the learned High Court

Government Pleader, the power of the High Court under

Section 397 of Cr.P.C. is only limited to examine whether there

is any illegality in the procedure adopted by the Courts and

whether the Courts have failed to apply itself to the facts and

circumstances and whether any finding recorded is without any

basis and also whether the order of sentence passed by the

courts is just and proper. The power under Section 397 of

Cr.P.C. is not similar to the power of an Appellate Court and a

revision petition is certainly not a second appeal, where the

Court has to examine the facts deeply. Having stated thus, this

Court did not find any procedural error in the conduct of the

trial by the Trial Court. The petitioner was provided with ample

opportunity to defend his case and to adduce his evidence in

defense. Therefore, the impugned judgment of conviction and

the order of sentence is procedurally valid.

11. Now coming to the question whether the judgment

of conviction passed by the Trial Court was based on the

sufficient evidence or not, it is seen from the records that

PW.1, the complainant and an eye-witness had identified the

complaint and also deposed before the Court about the

CRL.RP No. 899 of 2013

negligence of the petitioner and the accident caused by the

petitioner involving the motorcycle bearing registration No.KA-

09/E-8520/2006-07. This evidence of PW.1 is corroborated by

PW.2 and PW.5. PW.5 was the daughter-in-law of the

deceased, who was walking along with the deceased at the

time of the accident. She deposed that they were walking on

the left side of the road and that the petitioner/accused rode

his motorcycle in a rash and negligent manner and dashed

against her, resulting in fatal injuries. The post-mortem report

at Ex.P4 indicates that the deceased had suffered fracture of

occipital bone and cervical vertebra and that the death was due

to hemorrhagic shock as a result of the injuries. PW.4 seized

the vehicle in question. The petitioner was identified by PW.1

and PW.2. The petitioner did not cite any circumstance that

contributed to the accident which was beyond his control. On

the contrary, he completely denied the occurrence of the

accident itself. Even in his statement under Section 313 of

Cr.P.C., he did not explain the circumstances under which the

accident occurred. Therefore, the Trial Court and Appellate

Court were justified in returning the finding that the

prosecution had proved the commission of the offences under

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CRL.RP No. 899 of 2013

Sections 279, 304A of IPC and Section 3 read with Sections 187

and 181 of IMV Act.

12. In so far as the quantum of sentence is concerned,

the petitioner had caused a death of a person by his rash and

negligent riding of a motorcycle. There is no mitigating

circumstance to reduce the punishment imposed. The Trial

Court was therefore justified in sentencing the petitioner to pay

a fine of Rs.1,000/- and undergo simple imprisonment for six

months for the offence punishable under Section 279 of IPC

and to pay a fine of Rs.1,000/- and undergo simple

imprisonment for six months for the offence punishable under

Section 304A of IPC and to pay a fine of Rs.250/- for the

offence punishable under Section 3 read with Sections 187 and

181 of IMV Act.

13. In view of the above, there is no merit in this

revision petition and the same is dismissed.

Sd/-

JUDGE PMR