Karnataka High Court
Sri Rahamathulla vs State By Dibburahalli Police on 19 September, 2023
Bench: Rajendra Badamikar
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CRL.RP No. 485 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 485 OF 2016
BETWEEN:
SRI. RAHAMATHULLA,
S/O NABISAB,
AGEDA BOUT 50 YEARS,
RESIDING AT DIBBURAHALLI VILLAGE,
SHIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT-562 101.
...PETITIONER
(BY SRI. B.M. LOKESH, ADVOCATE)
AND:
STATE BY DIBBURAHALLI POLICE,
SHIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT-562 101
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BENGALURU-01.
...RESPONDENT
Digitally (BY SRI. VINAY MAHADEVAIAH, HCGP)
signed by THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
RENUKAMBA PRAYING TO SET-ASIDE THE ORDER OF CONVICTION
KG SENTENCE DATED 17.02.2016 PASSED BY THE II ADDL.
Location: DISTRICT AND S.J., AT CHIKKABALLAPURA, (SITTING AT
High Court of CHINTAMANI) IN CRL.A.NO.82/2013, WHICH IS CONFIRMING
Karnataka JUDGMENT OF CONVICTION DATED 21.06.2013, PASSED BY
THE ADDL. CIVIL JUDGE AND JMFC, AT SIDLAGHATTA, IN
C.C.NO.320/2008, BY ALLOWING THIS CRL.REV.PETITION
FILED BY THE PETITIONER.
THIS PETITION COMING ON FOR ARGUMENTS THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 485 of 2016
ORDER
This revision is filed by the accused / revision petitioner
under Section 397 read with Section 401 of Criminal
Procedure Code, 1973 (hereinafter referred to as 'the
Cr.P.C.' for short) challenging the judgment of conviction and
order of sentence passed by Additional Civil Judge and JMFC
at Sidlaghatta in C.C.No.320/2008 and confirmed by II
Additional District and Sessions Judge, Chickballapur sitting
at Chintamani in Crl.A.No.82/2013 vide judgment dated
17.02.2016.
2. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before the
trial Court.
3. The brief factual matrix leading to the case are
that on 12.10.2008 at about 7.30 p.m., the accused being
the driver of Sapthagiri private bus bearing registration
No.KA-20-5425 drove it in a rash and negligent manner
endangering human life and public safety while proceeding
from Dibburahalli towards Chintamani and near Marihalli
Cross, he dashed against a two wheeler bearing registration
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CRL.RP No. 485 of 2016
No.KA-40-J-9111 driven by one Lakshmipathi along with
pillion rider viz., Harish from opposite direction. As a result,
Lakshmipathi sustained fatal injuries on his head and
accordingly, Harish has also sustained injuries. Both of these
persons were immediately shifted to government hospital in
Siddlaghatta in the same bus and later on, Lakshmipathi was
shifted to Bangalore Hospital, but on the way to Bangalore,
near Devanahalli he breathed his last at 9.40 a.m. On the
basis of the complaint, the crime was registered against the
accused for the offences punishable under Sections 279, 337
and 304A of Indian Penal Code, 1860 (hereinafter referred to
as the 'IPC' for short) and after investigation, the
Investigating Officer submitted the charge sheet against the
accused.
4. After submission of the charge sheet, as there are
sufficient grounds to proceed against the accused, the
cognizance of the alleged offences are taken. The accused
has appeared in pursuance of the summons issued to him
and he was enlarged on bail. The prosecution papers were
furnished to him as contemplated under Section 207 of the
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Cr.P.C. The plea under Section 279, 337 and 304A of IPC is
framed against him and he pleaded not guilty and claimed to
be tried.
5. To prove the guilt of the accused, the prosecution
has examined in all 14 witnesses and also placed reliance on
19 documents. After conclusion of the evidence of the
prosecution, the statement of the accused under Section 313
of the Cr.P.C is recorded to enable him to explain the
incriminating evidence appearing against him in the case of
the prosecution. The case of the accused is of total denial.
He did not choose to lead any oral and documentary
evidence in support of his defence.
6. 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, 337 and 304A of IPC. He has
sentenced the accused for a period of six months for the
offence under Section 279 of IPC and one and half years for
the offence under Section 304A of IPC along with fine and
default sentence.
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CRL.RP No. 485 of 2016
7. Being aggrieved by this judgment of conviction
and order of sentence, the accused approached the II
Additional District and Sessions Judge, Chickballapur sitting
at Chintamani in Crl.A.No.82/2013. The learned Sessions
Judge after re-appreciating the oral and documentary
evidence has dismissed the appeal by confirming the
judgment of conviction and order of sentence passed by the
learned Magistrate. Against these concurrent findings, the
revision petitioner is before this court by way of this revision.
8. Heard the arguments advanced by the learned
counsel for the revision petitioner / accused and the learned
High Court Government Pleader for State. Perused the
records.
9. The learned counsel for the revision petitioner
would contend that the evidence led by the prosecution is
inconsistent and contrary. He has also asserted that none of
the witnesses were able to identify the accused and
considering the inconsistency both the courts have
committed an error in convicting the accused. He would also
alternatively contend that in case of conviction, the sentence
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of imprisonment may be modified by enhancing the fine and
restricting the same to the fine alone.
10. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and order
of sentence passed by the trial Court and affirmed by the
lower appellate court. He would also assert that both the
courts below have appreciated the oral and documentary
evidence in its proper perspective and identity of the accused
is undisputed and the accused in the statement recorded
under Section 313 of the Cr.P.C. did not explain as to how
the accident has occurred. Hence, he would assert that no
grounds are forthcoming for interference with the judgment
of conviction and order of sentence passed by both the
courts below and sought for dismissal of the revision.
11. Having heard the arguments and appreciating the
oral and documentary evidence, now the following point
would arise for my consideration:
"Whether the judgment of
conviction and order of sentence
passed by the trial court and affirmed
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CRL.RP No. 485 of 2016
by the learned Sessions Judge are
perverse, arbitrary and illegal so as to
call for any interference by this court?
12. It is the specific contention of the prosecution
that on 12.10.2008, the accused being the driver of
Sapthagiri Private bus bearing registration No.KA-20-5425
drove it in a rash and negligent manner at 7.30 a.m. from
Dibburahalli towards Chintamani and near Marihalli Cross
dashed against on coming Hero Honda Splendor bearing
registration No.KA-40-J-9111 resulting in simple injuries to
the pillion rider viz., Harish and death of the rider of the
motor cycle viz., Lakshmipathi. In the instant case, the
accused has not disputed that he was the driver of the
offending vehicle.
13. PW1 is the complainant and he is not an eye
witness. He simply set the law in motion and hence, his
evidence cannot be given much importance.
14. PW2 viz., Harish is the pillion rider and in his
evidence, he deposed that when he and deceased were
proceeding to their village near Marihalli Cross, the accused
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drove the bus in a rash and negligent manner and dashed
against the two wheeler, as a result, he suffered simple
injuries and Lakshmipathi suffered fatal injuries. Though this
witness was cross examined at length, nothing was elicited
to as to impeach his evidence.
15. PW3 viz., Chalapathi is an inmate of the vehicle
and he has also specifically deposed regarding actionable
negligence on the part of the accused being the driver of the
offending vehicle.
16. PW4 viz., Murthy is another inmate of the bus
and he has also supported the case of the prosecution.
17. PW7 viz., C.H.Munishamappa is the spot mahazar
witness and in the cross-examination it is elicited that at the
accident spot, the width of the road is of 16 feet. PW8 is also
a spot mahazar witness and he has depsosed regarding this
aspect.
18. PW12 viz., K.N.Devendranatha is the owner of the
offending bus bearing registration No.KA-20-5425 and he
deposed that the accused was the driver of the offending bus
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and when he received the message that bus met with an
accident, he went to the police station and by executing the
indemnity bond, he got released the bus and he also
asserted that he himself has produced the accused before
the police station and accused was the driver of the
offending vehicle when the accident has occurred. This
assertion was not disputed or challenged.
19. PW13 viz., Nagarjun is the Inspector of Motor
Vehicle and his evidence discloses that the accident is not
due to any mechanical defect of the vehicle. PW14 is the
Investigating Officer.
20. In the instant case, the evidence of PW1 to PW4
clearly establish the accident has occurred due to actionable
negligence on the part of the accused. The accused has
admitted the accident and has further admitted the death of
Lakshmipathi and he was the driver of the offending vehicle.
He did not give any explanation as to how the accident has
occurred.
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21. Ex.P14 is the sketch of scene of offence. And at
the accident spot, road is running from North towards South
and there is a small curve. The bus was moving from North
towards South and the two wheeler was moving from South
towards North. The accident has occurred at a distance of 3
feet from the western edge and there is sufficient space
towards eastern side of the road. It is for the accused to
explain as to why he moved on the western side of the road
as he is required to move on the eastern side of the road
i.e., the left side of the road since, he was driving the bus
from North towards South. But, there is no explanation
offered by the accused. The case of the accused is simple
denial and his statement recorded under Section 313 of
Cr.P.C. is also silent in this regard.
22. Under Section 106 of the Indian Evidence Act,
1872, the burden of proving a fact especially within the
knowledge is on him and if he fails to prove the same,
adverse inference is required to be drawn against him.
23. In the instant case, the accused could have been
the best witness to explain how accident has occurred and
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what precautions he has taken to avoid the accident, but he
did not bother to explain anything. The evidence of PW1 to
PW4 supports the case of the prosecution and the oral and
documentary evidence clearly establish that accident in
question is due to actionable negligence on the part of the
accused who was the driver of the offending bus. The death
is undisputed and it is evident by Ex.P17.
24. Ex.P18 is the wound certificate, which discloses
the simple injuries caused to PW2 viz., Harish. Both the
courts below have appreciated the oral and documentary
evidence in its proper perspective and they have rightly
convicted the accused for the offence under Section 279, 337
and 304A of IPC. Hence, the judgment of conviction cannot
be said to be perverse or arbitrary so as to call for any
interference by this court.
25. Since, the offence alleged are under Section 279,
337 and 304 A and when there is a conviction under Section
304A of IPC, question of imposing separate sentence for the
offence under Section 279 of IPC does not arise at all. The
offence under Section 279 of IPC merges with other offences
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under Section 337 and 304A of IPC. Hence, question of
sentencing the accused again for the offence under Section
279 of IPC is unwarranted.
26. The learned Magistrate has convicted the accused
and sentenced him to pay a fine of Rs.500/- for the offence
under Section 337 of IPC, which is a reasonable one and
does not call for any interference.
27. For the offence under Section 304A of IPC, the
learned Magistrate has sentenced the accused imprisonment
for a period of one and half years with fine of Rs.10,000/-
with default sentence of two months. The accused was aged
about 48 years when the accident has occurred. He is having
number of dependants and much water has flown in
between. Further, there are no compelling circumstances to
impose maximum punishment upto one and half years. The
evidence disclose that the accused himself immediately
shifted the injured to the hospital in the same bus itself,
which disclose that he has taken immediate action in this
regard.
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28. Looking to these facts and circumstances, the
sentence of imprisonment for a period of one and half year
appears to be on the higher side and in my considered
opinion, considering the nature and gravity of the offence
and conduct of the accused / revision petitioner, it is just and
proper to impose sentence of imprisonment for a period of
six months with enhanced fine of Rs.15,000/-, which would
meet the ends of justice. Considering these aspects, the
revision petition needs to be allowed so far as it relates to
sentence portion is concerned. Accordingly, the point under
consideration is partly answered in the affirmative.
Accordingly, I proceed to pass the following:
ORDER
(i) The revision petition is allowed in part so far
as it relates to sentence portion is concerned.
(ii) The judgment of conviction passed by
Additional Civil Judge and JMFC Sidlaghatta
in C.C.No.320/2008 and confirmed by II
Additional Sessions Judge, Chickballapur
sitting at Chintamani in Crl.A.No.82/2013
vide judgment dated 17.02.2016 stands
confirmed.
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(iii) However, the sentence passed for the
offence under Section 279 of IPC is set aside.
(iv) The sentence for the offence under Section
337 of IPC stands confirmed.
(v) The sentence imposed for the offence under
Section 304A of IPC is modified and the
accused / revision petition is directed to
undergo sentence of Simple Imprisonment
for a period of six months with fine of
Rs.15,000/-, in default, to undergo further
Simple Imprisonment for a period of one
month.
(vi) Send back the TCRs to the trial Court along
with a copy of this order with a direction to
secure the presence of revision petitioner /
accused for serving the sentence and for
recovery of balance fine amount.
Sd/-
JUDGE
SS
