Karnataka High Court
Umeshappa vs The State Of Karnataka on 30 May, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100288 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100288 OF 2016
BETWEEN:
UMESHAPPA
S/O GURULINGAPPA HAVAERI @ AWARI
AGED ABOUT 40 YEARS, OCC: DRIVER
R/O: HAKARI ONI, HUNAGUND,
TQ: HUNAGUND, DIST: BAGALKOT.
...PETITIONER
(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADV.)
Digitally
signed by J AND:
MAMATHA
J
MAMATHA Date:
2023.05.28 THE STATE OF KARNATAKA COMPLAINANT
02:32:52 THROUGH KALAGHATAGI POLICE,
+0530
BY SPP HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET
ASIDE THE JUDGMENT DATED 03.10.2015 PASSED BY THE II
ADDL DISTRICT AND SESSIONS & SPL JUDGE DHARWAD IN
CRIMINAL APPEAL NO. 24 OF 2011 IN SO FOR AS IT RELATES
TO CONFIRMING THE JUDGEMENT PASSED BY THE
LEARNED JMFC KALAGHATAGI AND ALSO THE JUDGMENT
DATED 28.02.2011 PASSED BY THE CIVIL JUDGE AND J.M.F.C.
KALAGHATAGI IN C C NO. 128 /2008.
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CRL.RP No. 100288 of 2016
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 23.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner feeling aggrieved by the judgment of
first Appellate Court on the file of II Addl. District and Sessions
and Special Judge, Dharwad, in Crl.A.No.24/2011 dated
03.10.2015 preferred this appeal.
2. Parties to the revision petition are referred with
their ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
15.06.2008 at about 2.30 a.m., on Hubballi-Karwar road, after
crossing Kalaghatagi, accused being driver of lorry bearing
registration No.CTU 3718 drove the same with high speed in
rash and negligent manner. On account of such actionable
negligence dashed against the car bearing registration No. MFF
7994 coming from the opposite side and as a result caused
injuries to the inmates of the car and Shrikant Chikkodi
succumbed to the injuries sustained in the accident. The
CRL.RP No. 100288 of 2016
prosecution alleges that the accident in question has occurred
due to rash and negligent driving of lorry bearing registration
No.CTU 3718 by accused. On these allegations, the case was
registered against accused. On completion of investigation,
charge-sheet came to be filed.
4. The accused was secured before the trial Court.
The trial Court on being prima facie satisfied framed the
accusation against accused for the offence under Section 279,
337 and 304 (A) of IPC. Accused pleaded not guilty and
claimed to be tried. The prosecution was called upon to prove
accusation leveled against the accused. The prosecution relies
on the oral evidence of PWs-1 to 6 and the documents Ex.P.1
to Ex.P.8.
5. On closure of the prosecution evidence, the
statement of accused under Section 313 Cr.P.C. came to be
recorded. The accused has denied all the incriminating material
evidence appearing against him and claimed that false charge-
sheet is filed. The trial Court after appreciation of evidence on
record has convicted the accused for the aforesaid offences and
imposed sentence as per order of sentence.
CRL.RP No. 100288 of 2016
6. Accused has challenged the said judgment of
conviction and order of sentence before the first Appellate
Court in Crl.A.No.24/2011 on the file of the II Addl. District and
Sessions and Special Judge, Dharwad. The first Appellate Court
by its judgment dated 03.10.2015 has dismissed the appeal
and confirmed the judgment of conviction by modifying the
sentence imposed by trial Court.
7. Revision petitioner/accused is challenging the
concurrent findings of both the Courts below contending that
the material witnesses PWs-1, 4 and 6 have only spoken about
the factum of accident, injuries caused to the inmates of the
car and death of Shrikant due to accidental injuries. But, their
evidence is insufficient to prove the culpable rashness or
negligence on the part of accused in driving the lorry bearing
registration CTU No.3718. It is a head on collision between two
vehicles and no absolute negligence can be attributed only on
the accused being driver of lorry. The driver of the car was
also equally responsible for the accident. The approach and
appreciation of oral and documentary evidence by both the
Courts below cannot be legally sustained. Therefore, prayed
for allowing revision petition and consequently, to set aside the
CRL.RP No. 100288 of 2016
judgment of both the Courts below and to acquit the accused
from the charges leveled against him.
8. In response to notice, learned High Court
Government Pleader has appeared for respondent.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary
evidence placed on record by the prosecution it would go to
show that on 15.06.2008 at 2.30 a.m., on Hubballi-Karwar road
after crossing Kalaghatagi, accused being the driver of lorry
bearing registration No.CTU 3718 drove the same with high
speed in rash and negligent manner and dashed against the car
bearing registration No. MFF 7994 coming from opposite side
and as a result, inmates of the car suffered injuries and one of
the inmates Shrikant succumbed to the injuries sustained in the
accident. The prosecution to prove the said allegations mainly
relies on the oral evidence of PWs-1, 4 and 6 who were inmates
of the car and eye-witnesses to the accident. PW-1 - Nagpal
Nachiketh Mokashi and PW-4 - Sachin Hanumanthgouda Patil,
suffered simple injuries as per the wound certificate Ex.P.6 and
Ex.P.5 respectively. Another inmate of the car Shrikant
succumbed to the injuries sustained in the accident. The
CRL.RP No. 100288 of 2016
prosecution also relies on the spot mahazar Ex.P.1 and sketch
map Ex.P.8 coupled with the evidence of Investigating Officer
PW-6-Gopalakrishna Thimmanna Naik.
11. Accused was driver of lorry bearing registration
No.CTU-3718, the date, time and place of accident, so also
death of Shrikant in the said accident and PWs-1 and 4 suffered
injuries in the accident as per wound certificate Ex.P.6 and
Ex.P.5 are the facts not at all in dispute and the same can be
borne out from material evidence placed on record. The only
question now remains is that whether the prosecution proves
beyond reasonable doubt that the accident in question occurred
due to actionable negligence of accused in driving lorry bearing
registration No.CTU-3718.
12. The oral evidence of PWs-1, 4 and PW-6-
complainant who filed the complaint as per Ex.P.7 would go to
show that they have consistently deposed about the fact that
they were proceeding in the car bearing registration No. MFF
7994 along with deceased Shrikant to Gokarna and PW-4 was
driving the car. After crossing Kalaghatagi at about 1.30 a.m.,
the lorry bearing registration No.CTU-3718 came from opposite
side with high speed and dashed against the car due to which
CRL.RP No. 100288 of 2016
lorry was toppled and inmates of car were thrown out of the
car. On account of such negligence of accused in driving the
lorry, inmates of the car PW-1 - Nagpal Nachiketh Mokashi and
PW-4 - Sachin Hanumanthgouda Patil suffered simple injuries
as per wound certificate Ex.P.6 and Ex.P.5 respectively. The
another inmate of the car Shrikant succumbed to the injuries
sustained in the accident. These 3 material witnesses of
prosecution though have been subjected to lengthy cross-
examination nothing worth material has been brought on
record so as to discredit their evidence.
13. It is true that the panch witnesses PWs-2 and 3 to
the spot panchanama Ex.P.1, have not supported the case of
prosecution. However, the evidence of Investigating Officer-
PW-5 would go to show that on the date of accident at 7 a.m.
prepared the spot panchanama as shown by complainant-PW-1
and prepared the sketch map as per Ex.P.8. Accused has not
denied the place of accident. Therefore, the evidence of
Investigating Officer-PW-5 and the spot panchanama Ex.P.1, so
also the sketch map Ex.P.8 will have to be taken into
consideration while appreciating the oral evidence of PWs-1, 4
and 6 with reference to the place of accident and in deciding
CRL.RP No. 100288 of 2016
actionable negligence on the part of driver of lorry leading to
the accident in question.
14. The spot features recorded in the spot panchanama
in Ex.P.1 and in the sketch map prepared by PW-5 as per
Ex.P.8, it would go to show that the driver of lorry was coming
from Karwar and proceeding towards Hubballi. PW-4 was
driving car bearing registration No. MFF - 7994 and proceeding
from Hubballi towards Karwar. It means that both the vehicles
were moving in opposite direction prior to the accident. The
road at the place of accident runs from South to North and the
width of road at the place of accident is 24 feet having 6 feet
kachha road on either side of the tar road. The lorry was found
toppled towards northern side at a distance of 34 feet after
causing the accident. The car bearing registration No. MFF
7994 was found stationed at eastern side. Indisputably, the
car driven by PW-4 was proceeding from North to South i.e.,
from the side of Hubballi towards Karwar by keeping left side.
The lorry driven by the accused was proceeding from South to
North i.e., Karwar side towards Hubballi and the accused was
supposed to keep left side of the road while driving the vehicle.
However, the accused has exceeded the way of left side and
proceeded to the extreme right side and dashed against right
CRL.RP No. 100288 of 2016
side portion of the car bearing registration No. MFF 7994 driven
by PW-4. The Motor Vehicle Report as per Ex.P.3 would go to
show that the car suffered damages to the front right side
portion. The lorry driven by accused suffered damages and the
said damages are due to lorry driven by accused dashing
against the car. The actionable negligence on the part of
accused which can be borne out from the above referred
evidence on record is that accused did not keep sufficient
distance in between the two vehicles passing from the opposite
side, further exceeded his way from the left side and proceeded
to extreme right side and dashed against the car driven by
PW-4 which was coming from its front side due to which
accident in question has occurred. If accused was to be a
prudent man in driving the lorry at the place of accident, then
he would have been expected to keep driving the vehicle to the
left side of the road and would have exercised due diligence in
keeping sufficient distance in between the two vehicles passing
from the opposite side. The accused has not explained the
compelling circumstances to proceed to the extreme right side
to dash against the car coming from the opposite side to its
right side. The accused has failed to exercise the above
referred due diligence in driving the lorry bearing registration
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CRL.RP No. 100288 of 2016
No.CTU 3718 at the place of accident and as a result the
accident in question has occurred.
15. Learned counsel for revision petitioner has argued
that it is a case of contributory negligence and PW-4 was
equally responsible for the accident and absolute blame cannot
be made against the accused of his actionable negligence
leading to the accident in question. On perusal of the entire
records and the oral evidence of PWs-1, 4 and 6, no any such
evidence of contributory negligence was taken during their
cross-examination. Looking to the spot features recorded in
the spot panchanama Ex.P.1 and the sketch map Ex.P.8, the
placement of car after accident and also the lorry driven by
accused, the possibility of PW-4 contributing to the accident is
totally ruled out. Accused has not made out any defence of
contributory negligence of PW-4 who was driving the car
leading to the accident in question. Further, offers no any
explanation as to the compelling circumstances which forced
the accused to proceed to the extreme right side and dashed
against the car driven by PW-4. On the other hand, material
evidence on record would go to show that the car was
proceeding by keeping its left side while proceeding from
Hubballi to Karwar. The car after accident was stationed to its
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CRL.RP No. 100288 of 2016
left side, the way on which side it was proceeding. Therefore,
the contention of learned counsel for revision
petitioner/accused that it is a case of contributory negligence
cannot be legally sustained.
16. Looking to the oral evidence of PWs-1, 4 and 6,
spot features recorded in the spot panchanama at Ex.P.1 and
the sketch map as per Ex.P.8 coupled with the damages found
on both the vehicles recorded in Motor Vehicle's report Ex.P.3
and the evidence of Investigating Officer - PW-5 would go to
show that accident in question has occurred due to actionable
negligence of accused in driving lorry bearing registration No.
CTU 3718 and as a result inmates of the car PWs-1 and 4
suffered simple injuries recorded in wound certificate Ex.P.6
and Ex.P.5 respectively. Further, one of the inmate of the car
Shrikant succumbed to the injuries sustained in the accident.
The Courts below have rightly appreciated the oral and
documentary evidence and justified in recording finding that
the accident in question occurred due to actionable negligence
of accused in driving the lorry bearing registration No.CTU
3718. The said finding recorded by both the Courts below are
based on the material evidence placed on record. I find
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CRL.RP No. 100288 of 2016
absolutely no any valid reasons to deviate from the finding of
guilt recorded by both the Courts below.
17. The question now remains is imposition of sentence.
The trial Court has convicted the accused to undergo RI and
fine for the offence punishable under Sections 279, 337 and
304 (A) IPC. The said sentence are ordered to run
concurrently. The first Appellate Court for valid reasons
recorded in paragraph 18 of its judgment has modified the
judgment and was justified in reducing the sentence for the
offence under Section 304 (A) IPC. The State has not
challenged the judgment of first Appellate Court in modifying
the sentence. Therefore, modification of sentence imposed by
the first Appellate Court does not call for any interference.
Consequently, proceed to pass the following:
ORDER
Criminal Revision Petition filed by accused is hereby
dismissed.
The judgment of the first Appellate Court on the file of
the II Addl. District and Sessions and Special Judge, Dharwad,
in Crl.A.No.24/2011 dated 03.10.2015 is hereby confirmed.
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CRL.RP No. 100288 of 2016
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
