Karnataka High Court
Mallappa Hanumantappa Talawar vs State Of Karnataka on 30 May, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100166 of 2015
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. 100166 OF 2015
BETWEEN:
MALLAPPA HANUMANTAPPA TALAWAR
AGE: 54 YEARS, OCC: DRIVER,
R/O. ARALIHALLI, TQ: SAVANUR,
DIST: HAVERI.
...PETITIONER
(BY SHRI VYASA DESAI FOR
JAGADISH PATIL, ADVOCATES)
AND:
Digitally
signed by J
J
MAMATHA STATE OF KARNATAKA,
MAMATHA Date: BY HIGH COURT PUBLIC PROSECUTOR,
2023.05.28
02:31:20 DHARWAD.
+0530
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 19.06.2015 PASSED BY THE I-ADDL. DIST.
& SESSIONS JUDGE, HAVERI, IN CRL.A.NO.08/2010 AND THE
JUDGMENT AND ORDER DATED 23.01.2010 PASSED BY THE
CIVIL JUDGE (JR.DN.) & JMFC COURT, HAVERI, IN
C.C.NO.339/2009 AND SET THE PETITIONER AT LIBERTY, FOR
OFFENCE P/U/S 279, 304(A), 134 OF IPC R/W 187 OF M.V.
ACT.
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CRL.RP No. 100166 of 2015
THIS REVISION PETITION COMING ON FOR HEARING
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 21.03.2023, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
Revision petitioner-accused being aggrieved by the
judgment of learned I Additional District and Sessions
Judge, Haveri (hereinafter referred as 'First Appellate
Court' for brevity) in Criminal Appeal No.08/2010 dated
19.06.2015, preferred the present Criminal Revision
Petition.
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
20.10.2008 at about 8:15 p.m, accused being the driver of
tractor-trailer bearing No.K.A-27/T-7271/72 on P.B. road
near Nelogal Railway Station drove the same with high
speed in a rash and negligent manner so as to endanger
human life. On account of actionable negligence in driving
CRL.RP No. 100166 of 2015
the tractor and trailer by accused, the wheels of tractor
entered the pot hole on the left side. Due to which, trailer
was tilted, further Fakkirappa Erappa Kademani, who was
inmate of tractor and trailer fell down and the wheels of
the tractor ran over him. As a result of which, he
succumbed to the injuries sustained in the accident. It is
further alleged by the prosecution that accused has failed
to give information about the accident to the nearest
police station. On these allegations, the investigating
officer after completion of investigation filed the charge-
sheet.
4. Accused was secured before the trial Court and
the substance of accusation was read over and explained
to the accused in the language known to him. Accused
pleaded not guilty and claimed to be tried.
5. Prosecution in order to prove the accusation
leveled against accused relied on the evidence of PWs.1 to
5 and documents Exs.P.1 to 13. On closure of the
prosecution evidence, statement of accused under Section
313 of Cr.P.C, came to be recorded and accused denied all
CRL.RP No. 100166 of 2015
the incriminating material evidence appearing against him
and claimed that false case is filed. Revision petitioner-
accused has not chosen to lead any of his defence. The
trial Court after having heard the arguments of both sides
and on appreciation of material evidence on record
convicted the accused for the offences punishable under
Sections 279, 304(A) of Indian Penal Code (hereinafter
referred as 'IPC' for brevity) and Section 134 read with
Section 187 of Indian Motor Vehicles Act (hereinafter
referred as 'M.V.Act' for brevity) and imposed sentence as
per order of sentence.
6. The said judgment of conviction and order of
sentence was challenged by accused before First Appellate
Court in Criminal Appeal No.8/2010 on the file of
I Additional District and Sessions Judge, Haveri. The First
Appellate Court on re-appreciating the material evidence
on record, dismissed the appeal and confirmed the
judgment of conviction and order of sentence as ordered
by trial Court.
CRL.RP No. 100166 of 2015
7. Revision petitioner-accused challenged the
concurrent findings of both Courts below contending that
the trial Court as well as First Appellate Court have not
properly appreciated the evidence on record on the core
issue of culpable rashness or negligence on the part of
accused resulting into the accident in question. The
evidence of PWs.1 to 5 who are the inmates of the tractor
is totally unreliable in view of their admission in the cross-
examination. The spot panchanama-Ex.P.3 and
photographs-Exs.P.8 to 11 with sketch map-Ex.P.12 have
not been properly appreciated with reference to the
evidence of PWs.1 to 5 and as a result both the Courts
below erroneously concluded that accident in question
occurred due to actionable negligence on the part of
accused and Fakkirappa Erappa Kademani succumbed to
the injuries sustained in the accident. Therefore, prayed
for allowing the revision petition and to set-aside the
judgment of conviction and order of sentence passed by
trial Court which is confirmed by First Appellate Court.
CRL.RP No. 100166 of 2015
Consequently, to acquit the accused from the accusation
leveled against him.
8. In response to the notice, learned HCGP has
appeared for respondent-State.
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 20.10.2008 at about 8:15 p.m, accused
was driving tractor-trailer bearing No.K.A-27/T-7271/72
with high speed in rash and negligent manner on P.B.road
after crossing the Nelogal Railway gate. On account of
such actionable negligence, wheels of trailer entered into
left side pothole, as a result, trailer was tilted. The inmates
of the tractor Fakkirappa fell down to the ground, further
the wheels of trailer ran over Fakkirappa Erappa Kademani
who succumbed to the injuries sustained in the accident.
The material evidence relied by the prosecution to prove
that accident in question occurred due to actionable
negligence of accused in driving tractor-trailer are PWs.1
CRL.RP No. 100166 of 2015
to 5, the inmates of the tractor. The said evidence is
sought to be corroborated by spot panchanama-Ex.P.2,
photographs-Exs.P.8 to 11 and sketch map-Ex.P.12. The
evidence of PWs.6 to 9 speaks about post incident and
their evidence needs to be appreciated with the above
referred material evidence on record.
11. On the day of accident, the deceased and five
persons were traveling in the tractor and trailer being
driven by accused. The tractor and trailer was loaded with
cement stones and after unloading the cement stones, the
said persons were returning in the said tractor and trailer
to Nelogal village. On account of wheels of the tractor
entering into the left side pothole on Kachha road, the
trailer was tilted and inmate of the tractor Fakkirappa
Erappa Kademani fell to the ground. Thereafter, wheels of
the trailer ran over on Fakkirappa Erappa Kademani who
succumbed to the injuries sustained in the accident are the
facts not at all in dispute. The dispute is only with respect
to alleged culpable rashness or negligence on the part of
the accused leading to the accident in question where one
CRL.RP No. 100166 of 2015
of the inmate of trailer namely Fakkirappa Erappa
Kademani succumbed to the injuries in the accident.
12. There is a discrepancy regarding place where
the deceased Fakkirappa Erappa Kademani was sitting in
the tractor driven by accused. The investigating officer-
PW.9 admitted in his cross-examination that it was
revealed during the course of investigation that deceased
Fakkirappa Erappa Kademani was sitting on the left side of
accused who was driving the tractor and not sitting in the
trailer. Indisputably, the investigating officer-PW-10 is not
an eye witness to the accident. The evidence of eye
witnesses, who are the inmates of the tractor, PWs.1 to 5
would unmistakably goes to show that deceased
Fakkirappa Erappa Kademani was sitting in the trailer.
Therefore, the trial Court as well as First Appellate Court
was justified in rejecting the admission of PW.9, who is not
an eye witness to the accident and relied on the evidence
of eye witnesses-PWs.1 to 5 to hold that the deceased
Fakkirappa Erappa Kademani was sitting in the trailer at
the time of accident. Accused has not offered any
CRL.RP No. 100166 of 2015
explanation regarding the above said discrepancies and
never claimed that deceased Fakkirappa Erappa Kademani
was sitting by his side while driving the tractor.
13. The specific defence of accused which can be
made out from the cross-examination of material
witnesses-PWs.1 to 5 is that the deceased Fakkirappa
Erappa Kademani on his own volition jumped out of
moving tractor. Due to which, he fell down and sustained
grievous injuries leading to his death. The said defence
has not been accepted by any of the prosecution
witnesses-PWs.1 to 5.
14. The oral evidence of PWs.1 to 5 who are the
inmates of the tractor driven by accused at the time of
accident would go to show that they have consistently
deposed about accused driving the tractor-trailer bearing
No.KA.27/T-7271-72 with high speed in rash and negligent
manner on Nelogal road after unloading the cement
stones. On crossing the Nelogal Railway gate, accused
without heeding to the request of them to drive the vehicle
slowly continued to drive the same with high speed and in
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CRL.RP No. 100166 of 2015
negligent manner. On account of such actionable
negligence of accused in driving the tractor, the wheels of
the tractor and trailer on the left side went to a pothole
causing trailer to tilt. Due to which, Fakkirappa Erappa
Kademani who was sitting in the trailer fell down to the
ground and the wheels of the tractor ran over him who
succumbed to the injuries sustained in the accident.
15. The complaint allegations Ex.P.2 would go to
show that inmates of the tractor have asked the accused
to drive the vehicle slowly and in spite of it, accused
continued to drive the tractor with high speed. All of a
sudden, the tractor went to the left side Kachha road and
due to wheels of the tractor entered into the pothole,
inmate of the tractor and trailer Fakkirappa Erappa
Kademani was thrown out of trailer and fell to the ground.
The wheels of the tractor ran over his legs and thigh. Due
to which, he suffered grievous injuries and subsequently,
succumbed to the injuries sustained in the accident.
16. The spot panchanama-Ex.P.3 would reveal that
the place of accident runs East to West. There is a kachha
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CRL.RP No. 100166 of 2015
road of six feet on the northern side and there is six feet
width and ½ feet depth pothole and in the said pothole,
tractor bearing No.KA.27/T-7271/72 was halting facing
towards Eastern side. The width of the road at the place of
accident is 24 feet and kachha road of 6 feet to the
northern side and 9 feet to the southern side. If these
spot features recorded in the spot panchanama-Ex.P.3 are
appreciated with the sketch map-Ex.P.12 and the
placement of vehicle as found in Exs.P.8 and 9
photographs are appreciated with the oral evidence of
inmates of the tractor PWs.1 to 5, then it would go to
show that the tractor and trailer bearing No. No.KA.27/T-
7271/72 driven by accused was moving from Western side
to Eastern side prior to the accident. The spot of accident
is shown on the Kachcha road of 6 feet situated to the
Northern side of the road having tractor entered into the
pothole on the Kachcha road. The width of the road is 24
feet. There is no any material evidence that has been
brought on record during the cross-examination of PWs.1
to 5 as to the reason why the accused left 24 feet width
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CRL.RP No. 100166 of 2015
road which compelled him to enter Kachcha road on the
Northern side and as a result, the wheels of the tractor
and trailer entered into the pothole on the left side of the
road situated at Kachcha road. Indisputably, the inmate of
the tractor Fakkirappa who was sitting in the trailer was
thrown out of the trailer due to tractor entering into the
pothole and the wheels of the tractor ran over him and he
succumbed to the injuries sustained in the accident. The
tractor and trailer driven by accused was moving on the
tar road prior to the accident and it is not the defence of
the accused that any one of the inmate of the trailer was
supposed to alight from the trailer, due to which he took
the tractor and trailer to the left side. Therefore, under
these circumstances it is difficult to accept the defence of
accused that deceased Fakkirappa on his own volition
jumped out of moving tractor. Due to which, he fell down
and sustained injuries, as a result succumbed to such
injuries. The evidence of inmates of the tractor PWs.1 to 5
who are also of the same village Nelogal and they have no
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CRL.RP No. 100166 of 2015
enmity against accused to falsely involve the accused in
this case.
17. The evidence of PWs.1 and 2 would go to show
that the tractor driven by accused at a speed of 25 to 35
kms. per hour. It is suggested to PW.1 that if a person
falls from the tractor moving in 25 to 30 km. per hour,
then death will not be caused, but the same is denied by
PW.1. The evidence of PWs.1 and 2 and the suggestion as
referred above to PW.1 would go to show that defence has
accepted that accused was driving the tractor at a speed
of 25 to 30 km. per hour. The trial Court as well as First
Appellate Court referred to Rule 207 (1) of The Karnataka
Motor Vehicles Rules, 1989 which reads as follows:
"No tractor, when fitted for being driven on a
public road, shall be driven on such road at a
speed exceeding ten kilometers per hour and
no such tractor shall take sharp turns on such
road. "
This Rule makes it clear that tractor cannot be driven
at a speed of more than 10 km. per hour and also cannot
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CRL.RP No. 100166 of 2015
take a short turn. In the present case as brought on
record in the evidence of PWs.1 and 2 referred above,
vehicle was driven by accused with a speed of 25 to 30
km. per hour.
18. It was well within the knowledge of accused
that the trailer attached to the tractor was being carried
with deceased Fakkirappa and 5 other persons and it was
returning to the Nelogal village after unloading the cement
stones. The accused first of all would not have allowed any
persons to travel either in the tractor or trailer. Secondly,
he should have been extra cautious in driving the vehicle
so as to avoid any probable jumps or jerks which may
result endangering to the life of inmates of tractor.
However, in spite of that accused has allowed deceased
Fakkirappa and 5 others to travel in the trailer attached to
the tractor. The evidence of PWs.1 to 5 would go to show
that in spite of inmates of the tractor having cautioned
accused to drive tractor slowly, continued to drive the
same with high speed.
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CRL.RP No. 100166 of 2015
19. On account of such actionable negligence on the
part of accused, wheels of the tractor by leaving main tar
road of 24 feet entered into the extreme left side on
Kachcha road, further wheels of the tractor entered the
potholes. Due to which, Fakkirappa was thrown out from
the trailer. As a result, wheels of the trailer ran over
Fakkirappa and succumbed to such injuries sustained in
the accident. Accused neither has brought any material
evidence in the cross-examination of PWs.1 to 5 nor
offered any explanation as to the compelling
circumstances which made him to take tractor and trailer
to the extreme left side and entering to the left side
pothole. Due to which, Fakkirappa succumbed to the
injuries sustained in the accident or chosen to lead any of
his evidence to substantiate his defence that deceased
Fakkirappa on his own volition jumped out of a moving
tractor and succumbed to the injuries sustained in the
accident. Looking to the above referred evidence on
record, the trail Court as well as First Appellate Court was
justified in holding that accident in question has occurred
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CRL.RP No. 100166 of 2015
due to actionable negligence of accused in driving the
tractor and as a result, Fakkirappa-inmate of the trailer
was thrown out of the trailer, further wheels of the tractor
ran over him and he succumbed to the injuries sustained
in the accident.
20. The question now remains as to imposition of
sentence as ordered by the trail Court which is confirmed
by the First Appellate Court. The trial Court has sentenced
accused to undergo 6 months imprisonment and fine of
Rs.1,000/-. In default to pay fine, simple imprisonment
for one week for the offence punishable under Section 279
of IPC. Accused further was sentenced to undergo
imprisonment of one year and fine of Rs.1,000/-, in
default to pay fine, to undergo simple imprisonment for
one week for the offence punishable under Section 304-A
of IPC, further simple imprisonment for a period of 3
months and fine of Rs.500/-, in default to pay fine simple
imprisonment for 3 days for the offence punishable under
Section 187 of IMV Act. The sentence of imprisonment are
ordered to run concurrently.
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CRL.RP No. 100166 of 2015
21. Looking to the facts and circumstances of the
case and the nature of evidence placed on record by
prosecution, the imposition of sentence of imprisonment
appears to be too harsh and needs to interfered with by
modifying the sentence as ordered by the trial Court which
is confirmed by the first Appellate Court. If the sentence is
reduced to one month for the offence under Section 279 of
IPC and 6 months for the offence under Section 304-A IPC
and the sentence of imprisonment for the offence under
Section 187 of the IMV Act is set-aside by maintaining fine
amount as ordered is maintained will meet the ends of
justice. Consequently, proceed to pass the following:
ORDER
Criminal Revision Petition filed by the revision
petitioner is hereby partly allowed.
The judgment of first Appellate Court on the file of
the I Addl. District and Sessions Judge, Haveri, in
Crl.A.No.8/2010 dated 19.06.2015 confirming the judgment
of conviction and sentence order passed by the trial Court in
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CRL.RP No. 100166 of 2015
C.C.No.339/2009 on the file of the Prl. JMFC, Haveri,
dated 23.01.2010 is modified as under:
Accused is sentenced to undergo simple
imprisonment for one month and pay fine of Rs.1,000/- in
default to pay fine shall under simple imprisonment for
one week for the offence under Section 279 of IPC.
Accused is sentenced to undergo simple
imprisonment for 6 months and to pay a fine of Rs.1,000/-
in default to pay fine, undergo simple imprisonment for
one month for the offence under Section 304-A IPC.
Accused is sentenced to pay a fine of Rs.500/- in
default to pay amount to undergo simple imprisonment for
3 days for the offence under Section 187 of the IMV Act.
The sentence of imprisonment are ordered to run
concurrently.
Registry to send back records with judgment to
Courts below.
(Sd/-)
JUDGE
AM/-
