Sri.Velayudhan vs State By Kumaraswamy Layout ...
2023 Latest Caselaw 6935 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF OCTOBER, 2023

                         BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.433 OF 2016

BETWEEN:

SRI. VELAYUDHAN,
S/O SRI. S. MANI,
AGED ABOUT 37 YEARS,
DRIVER OF LORRY BEARING
NO.KA-22-A 2980,
RESIDING AT DODDATHORU,
SOMAVARPET TALUK,
MADIKERI DISTRICT.

C/O SHIVAJI ROAD WAYS,
RAGUVANAHALLI,
GOTTIGERE POST,
BENGALURU-560 083.
                                         ....PETITIONER
(BY SMT. ANUPUMA M.V., ADVOCATE (ABSENT))

AND:

STATE BY KUMARASWAMY
LAYOUT POLICE,
BENGALURU,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
                                       ...RESPONDENT
(BY SMT. ANITHA GIRISH, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
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THE JUDGMENT OF CONVICTION AND SENTENCE DATED
07.04.2015 PASSED BY THE LIX ADDL. CITY CIVIL AND S.J.,
AT BENGALURU, IN CRL.A.NO.146/2009 MODIFYING THE
JUDGMENT OF CONVICTION DATED 27.01.2009 PASSED BY
THE M.M.T.C.-II AT BENGALURU IN C.C.NO.1960/2007,
THEREBY ACQUIT THE ACCUSED/PETITIONER FROM THE
CHARGES LEVELLED AGAINST HIM.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 24.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

This revision is filed by the revision

petitioner/accused under Section 397 r/w Section 401 of

Cr.P.C. challenging the judgment of conviction and order

of sentence passed by MMTC-II, Bangalore, in

C.C.No.1960/2007, dated 27.01.2009 and confirmed by

the LIX Additional City Civil & Sessions Judge, Bangalore,

in Crl.A.No.146/2009, vide judgment dated 07.04.2015.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The case of prosecution is that on 18.05.2007

at about 8.00 a.m., on Kanakapura main road, within the

jurisdiction of K.S. Layout, Traffic Police Station in front

of the shop of the complainant, the accused being the

driver of the lorry bearing No.KA 22A-2980 drove it in a

rash and negligent manner, endangering the human life

and public safety and dashed against the Active Honda

two-wheeler bearing registration No.KA51 H 5491. As a

result, the rider suffered fatal injuries and subsequently,

succumbed because of the injuries. The complainant has

lodged a complaint in this regard and on the basis of the

complaint, the Investigating Officer has investigated the

crime and submitted the charge sheet against the

accused for the offences punishable under Section 279 &

304A of IPC.

4. After submission of the charge sheet, as there

are sufficient grounds to proceed against the accused, the

cognizance of alleged offences were taken. The accused

has appeared before the learned Magistrate in pursuance

of the summons and he was enlarged on bail. He was

also provided with the prosecution papers. The plea

under Sections 279 & 304A of IPC was framed against the

accused and same was read over and explained to him.

He pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, the

prosecution has examined in all five witnesses and has

also placed reliance on nine documents marked at Ex.P1

to Ex.P9.

6. After conclusion of the evidence of the

prosecution, the statement of accused under Section 313

Cr.P.C. is recorded to enable the accused to explain the

incriminating evidence appearing against him. His case is

of total denial and he did not lead any oral or

documentary evidence in support of his defence.

7. After having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offence punishable under Section 279 and 304A of IPC by

imposing a sentence of rigorous imprisonment along with

a fine for the offences punishable under Sections 279 and

304A of IPC.

8. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached LIX

Additional City Civil & Sessions Judge, Bangalore, in

Crl.A.No.146/2009. The learned Sessions Judge has

partly allowed the appeal. However, he confirmed the

conviction and sentence portion was modified by

imposing sentence of six months and one year for the

offences punishable under Sections 279 & 304A of IPC

respectively with a fine.

9. Being aggrieved by these concurrent findings,

the accused is before this Court by way of this revision.

10. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned HCGP.

Perused the records.

11. The learned counsel for the revision petitioner

would contend that both the Courts below have failed to

appreciate the oral and documentary evidence in proper

perspective and evidence discloses that there are no

eyewitnesses and the accident is because of actionable

negligence on the part of the deceased. Hence, she would

seek for allowing the revision.

12. Per contra, the learned HCGP would contend

that PW3 & PW4 are the eyewitnesses and admittedly,

the accident, death and identity of the accused including

involvement of the vehicle have been admitted and

hence, it is for the accused to explain as to under what

circumstances the accident has occurred, but his silence

discloses that he has not explained and hence, both the

Courts below are justified in convicting him. Hence, he

would seek for dismissal of the revision.

13. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"Whether the Judgment of conviction and order of sentence passed by both the Courts

below are perverse, arbitrary and erroneous so as to call for any interference by this Court?"

14. In the instant case, PW1 is the Doctor, who

has conducted the postmortem and his evidence is not

challenged. PW2 is the IMV Inspector and he has deposed

regarding examining the vehicles and issued a certificate

as per Ex.P2 and deposed that accident is not because of

any mechanical defect.

15. PW3-Venkatesh son of Puttaswamy is an

eyewitness and he is the complainant. He has specifically

deposed that on 18.05.2007 at 8.00 a.m., he was in front

of his shop in sarakki, Kanakapura Main road in

Gangadharnagar and at that time, the offending lorry

coming from Kanakapura and proceeding towards

Bangalore was driven in high speed and in the said

process, it touched the on going two-wheeler. As a result,

the rider fell down and wheel ran over the head of the

victim and he succumbed on the spot. He has also

deposed the vehicle number and he further asserts that

he could not observe the driver but claims that he lodged

a complaint. Though this witness was cross-examined at

length, nothing was elicited so as to impeach his

evidence. In the cross-examination, it is suggested that

lorry was coming in the middle of the road and beside the

road divider. A suggestion was made that if the two-

wheeler had it moved by the side of the road, as the lorry

was going near the divider, the accident would not have

occurred. But the witness specifically answers that the

vehicle was in high speed, which has resulted in the

accident. His evidence and assertions clearly disclose that

the vehicle was driven in high speed and the driver is

unable to control the same and dashed the on going two-

wheeler resulting in the accident.

16. PW4-Basavaraj is another eyewitness. In his

evidence, he had also deposed that on 18.05.2007 at

8.00 a.m., he went to tiffin in Sindoor Complex and when

he was standing in front of the complex, the Hero Honda

Pleasure vehicle came from Kanakapura side moving

towards city and at the same time, the tipper lorry

bearing KA22 A 2980 came from Kanakapura side moving

towards Bangalore, dashed the two-wheeler from the

back side and the rider fell down and tipper lorry front

wheel ran over the head of the deceased, resulting in

death. This witness was also cross-examined at length,

but his evidence is also not impeached. There is no

reason for discarding his evidence and he has no

animosity as against the accused. The medical evidence

by PW1 and Ex.P1 is corroborative to the evidence of

PW3 and PW4. PW5 is the investigating officer and he has

deposed regarding the investigation done by him.

17. Ex.P7 is the rough sketch of the scene of

offence and it clearly disclose that that the driver drove

the vehicle in a rash and negligent manner and he hit the

two-wheeler from rear end, which has resulted in

accident. Looking to these facts and circumstances, the

negligence act is required to be presumed.

18. In the instant case, the accused has not

denied the accident nor the identity of the accused is

denied. Further, death is also admitted. It is for the

accused to explain as to under what circumstances, the

accident has occurred, but he did not give any

explanation. There was sufficient space for accused to

drive his lorry but he hit the on going two-wheeler from

rear end which discloses the rash and negligent act on

the part of the accused. Hence, the judgment of

conviction passed by the trial Court and confirmed by the

appellate Court cannot be said to be arbitrary or

erroneous so as to call for any interference.

19. The learned counsel for the revision petitioner

alternatively would contend that the sentence imposed by

both the Courts below is little excess and sought for some

remission.

20. The offence under Section 279 of IPC is

regarding rash and negligent driving and offence under

Section 304A of IPC is causing death because of rash and

negligent act. When the accused is already convicted and

sentenced for offence under Section 304A of IPC there is

no need for again sentencing him for the offence under

Section 279 of IPC as it merges with larger offence under

Section 304A of IPC.

21. The learned Magistrate has imposed a

sentence of imprisonment for a period of one and a half

years with a fine of Rs.3,000/- and the learned Sessions

Judge has modified it by reducing it for one year with the

same fine. But considering the place wherein the accident

has occurred and considering the fact that matter is

pending since more than fifteen years, in my considered

opinion the imprisonment for a period of one year

appears to be little high. Considering the submission of

the learned counsel for the petitioner, in my considered

opinion, the imprisonment can be reduced to six months

by enhancing a fine to Rs.10,000/- which would serve the

purpose. As such, the point under consideration is partly

answered in the affirmative so far as it relates to

sentence portion. Accordingly, the revision petition needs

to be allowed in part. Hence, I proceed to pass the

following:

ORDER

(i) The revision petition is allowed in part so far as it relates to the sentence portion is concerned.

(ii) The judgment of conviction passed by MMTC-

II, Bangalore, in C.C.No.1960/2007, dated 27.01.2009 and confirmed by the LIX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.146/2009, vide judgment dated 07.04.2015, stands confirmed.

(iii) However, the sentence imposed for the offence under Section 279 of IPC is set aside as it merges with larger offence under Section 304A of IPC.

     (iv)    The sentence imposed for the offence under
             Section    304A      of     IPC    is    modified        and
             accused/revision         petitioner     is    directed     to

undergo simple imprisonment for a period of six months with a fine of Rs.10,000/- in default he is required to undergo further, imprisonment for a period of one month.

Send back the records to the trial Court with copy of

this order, with a direction to secure the presence of

accused for serving the sentence and collection of the

additional fine.

Sd/-

JUDGE

DS