Karnataka High Court

Govindappa vs The State Of Karnataka on 10 April, 2024

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                                                     NC: 2024:KHC:14585
                                                 CRL.RP No. 187 of 2019




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 10TH DAY OF APRIL, 2024

                                        BEFORE
                     THE HON'BLE MR JUSTICE ANIL B KATTI
               CRIMINAL REVISION PETITION NO. 187 OF 2019
             BETWEEN:

                 GOVINDAPPA
                 S/O BELURAPPA,
                 AGED ABOUT 40 YEARS,
                 OCC:DRIVER,
                 R/O PADMENAHALLI VILLAGE,
                 HOLEHONNUR HOBLI,
                 BHADRAVATHI TALUK,
                 SHIVAMOGGA DISTRICT-577 227.
                                                          ...PETITIONER
             (BY SRI.P.B.UMESH, ADVOCATE FOR
                 SRI.RAVINDRA B.DESHPANDE, ADVOCATE)

             AND:

                 THE STATE OF KARNATAKA
Digitally        BY TARIKERE POLICE STATION,
signed by        CHIKKAMAGALURU DISTRICT-577 228
SUMITHRA R
Location:        (REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT
OF               HIGH COURT BUILDINGS,
KARNATAKA        BENGALURU-560 001)
                                                         ...RESPONDENT
             (BY SRI.M.R.PATIL, HCGP)

                  THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING
             TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
             AND SENTENCE DATED 01.06.2017 PASSED BY THE SENIOR
             CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST
             CLASS, TARIKERE IN C.C.NO.235/2015 CONFIRMED BY THE
             JUDGMENT AND ORDER DATED 11.01.2019 PASSED BY THE
             I ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU IN
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                                            NC: 2024:KHC:14585
                                      CRL.RP No. 187 of 2019




CRL.A.NO.85/2017 (CONVICTED FOR THE OFFENCE P/U/S.279,
340-A OF IPC AND SEC.134(b) R/W SEC.187 OF MOTOR
VEHICLE ACT) AND ACQUIT THE PETITIONER OF THE CHARGE
LEVELED AGAINST HIM.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Revision petitioner/accused feeling aggrieved by

judgment of First Appellate Court on the file of I Additional

Sessions Judge, Chikkamagaluru in Crl.A.No.85/2017

dated 11.01.2019, confirming the judgment of Trial Court

on the file of Senior Civil Judge and JMFC, Tarikere in

C.C.NO.235/2015 dated 01.06.2017 preferred this 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. Heard the arguments of both sides.

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4. After hearing the arguments of both sides and

on perusal of Trial Court records, so also the impugned

judgment under appeal, the following points arise for

consideration:

1) Whether the impugned judgment under appeal passed by the First Appellate Court in confirming the judgment of Trial Court for the offence punishable under Section 279, 304A of IPC and Section 134(b) r/w 187 of MV Act is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that, on

30.01.2015 at about 7.45 p.m. near Girija Farm situated

between the village of Belenahalli and Gantekanive on

Tarikere Bhadravathi NH-206 road, accused being the

driver of lorry bearing registration No.KA-12-5625 driven

with high speed in rash and negligent manner from

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Tarikere to Bhadravathi and dashed against motor cycle

bearing registration No.KA-16-K-6354 ridden by

Bheemappa from back side. Due to such culpable

rashness or negligence of accused in driving lorry bearing

registration No.KA-12-5625, the rider of motorcycle

Bheemappa sustained injuries over his head, legs, hands

and succumbed to the injuries sustained in the accident.

The prosecution further alleges that accused immediately

after the accident fled away from the place without giving

any information about the accident to the nearest Police

Station. On these allegations made in the complaint,

Investigating Officer having completed the investigation

filed the charge sheet.

6. The prosecution to prove the allegations made

against accused relied on the oral testimony of PWs.1 to

13 and the documents Exs.P.1 to 17. Accused has denied

all the incriminating material evidence appearing against

him and claimed that false case is filed. The Trial Court

after hearing the arguments of both sides and on

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appreciation of oral and documentary evidence placed

before it has convicted the accused for the offences

alleged against him.

7. Accused has challenged the said judgment of

conviction and order of sentence passed by the Trial Court

before the First Appellate Court in Crl.A.No.85/2017. The

First Appellate Court after hearing arguments of both sides

and on re-appreciation of evidence has dismissed the

appeal and confirmed the judgment of conviction and

order of sentence passed by the Trial Court.

8. Revision petitioner/accused is challenging the

concurrent finding of both the Courts below. The learned

counsel for revision petitioner has argued that the oral

testimony of PW.1 N Ravi, PW.2 Ramappa and PW.11

Keshavamurthy are unreliable in view of their admission in

the cross-examination regarding the culpable rashness or

negligence of accused in driving the lorry bearing

registration No.KA-12-5625 leading to the accident in

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question. The prosecution has failed to establish the

identity of accused and looking to the damages found on

both the vehicles vide M.V. report Ex.P.12, the lorry driven

by accused having dashed to the back side of motor cycle

ridden by deceased Bheemappa is doubtful. The spot

features at the place of accident has also not been proved

by the prosecution. The observations and the findings

recorded by both the Courts below are against the

material evidence on record and the same cannot be

legally sustained which requires interference by this Court.

9. Per contra, learned High Court Government

Pleader has argued that there is no reason to disbelieve

the evidence of eye witness PW.1 N Ravi, PW.2 Ramappa

and PW.11 Keshavamurthy. The identity of the accused

being driver of lorry bearing registration No.KA-12-5625 at

the time of accident is substantiated by the oral testimony

of the owner of vehicle PW.9 Shivalingaiah. PW.9

Shivalingaiah admitted that notice issued to him by

Investigating Officer Ex.P.9 is duly served and he has

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replied to the same Ex.P.10. Therefore, the prosecution

out of the said evidence on record has established the

identity of accused and there is no worth material

evidence that has been brought on record in the cross-

examination of PW.1 N Ravi, PW.2 Ramappa and PW.11

Keshavamurthy. The place of accident as per the spot

panchanama Ex.P.2 is supported by the oral testimony of

PW.3 Marabovi and PW.4 Manjunatha. The said evidence is

further corroborated by the evidence of Investigating

Officer PW.12 S Basavaraju. The Courts below have rightly

appreciated the oral and documentary evidence placed on

record and the findings recorded are based on proper

appreciation of evidence and as such the same does not

call for any interference by this Court.

10. PW.1 N Ravi has deposed to the effect that on

30.01.2014 he had been to Chakkanahalli for attending

function of in-laws of his sister, whose marriage was

performed on 29.01.2014. After the function, he was

returning at 7 p.m. on his motorcycle bearing registration

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No.KA-14-EH-4441 along with PW.11 Keshavamurthy. The

deceased Bheemappa was proceeding on his motorcycle in

front of his vehicle, at that time a lorry came from

Tarikere towards Bhadravathi with high speed from back

side and dashed against the motorcycle ridden by

Bheemappa, due to which Bheemappa died on the spot

and accused without stopping the lorry fled away from the

place.

11. PW.2 Ramappa has deposed to the effect that

deceased Bheemappa is his relative and his sister's

daughter Shantakumari marriage was performed at

Ramanagar. He had gone to the in-laws house for

attending the function. After the function is over, he was

returning to his village and deceased Bheemappa was

proceeding on his motor cycle, PW.1 N Ravi and PW.11

Keshavamurthy were proceeding on another motorcycle.

Accused being driver of lorry bearing registration No.KA-

12-5625 dashed to the back side of the motorcycle ridden

by Bheemappa and due to which he died on the spot. He

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further deposed to the effect that the accident in question

has occurred due to fault of accused who was driving lorry

bearing registration No.KA-12-5625 and further he

identifies the lorry and motorcycle involved in the

accident.

12. PW.11 Keshavamurthy has deposed to the

effect that on 30.01.2015 at 7.15 p.m. he was proceeding

from Chatnahalli to Bhadra colony on his motorcycle. The

deceased Bheemappa was proceeding on his motorcycle

near Girija Farm. At that time lorry came with high speed

while proceeding towards Bhadravathi and dashed to the

back side of the motorcycle ridden by Bheemappa, due to

which the accident in question has occurred. He further

deposed to the effect that accused did not stop the vehicle

after the accident, he chased the vehicle and made to stop

the lorry driven by accused. Accused after stopping the

lorry fled away from the place. The rider of the motorcycle

Bheemappa has sustained grievous injuries over head and

died on the spot. After informing about the incident in the

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house of injured Bheemappa, he has filed the complaint

Ex.P.14. On the next day, he showed the place of accident

to the police and accordingly spot panchanama Ex.P.2 is

prepared.

13. The evidence of Investigating Officer PW.12

S Basavaraju would go to show that on 30.01.2015 he has

received the complaint filed by PW.11 Keshavamurthy and

registered the case. On the next day he has visited to the

place of accident and drawn the panchanama of the place

of accident as shown by PW.11 Keshavamurthy and

prepared the sketch map, so also taken the photographs

of the place of accident. PW.13 G Devaraja has taken up

further investigation from PW.12 S Basavaraju and after

completing the investigation filed charge sheet.

14. Learned counsel for the accused has

vehemently argued that prosecution has failed to prove

the identity of accused and drew the attention of the Court

to the admission of PW.1 in his examination-in-chief that

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he has not seen the driver of the lorry, so also PW.2

Ramappa has stated in his cross-examination that by that

time he reached to the spot, the driver of the lorry has

fled away from the place. The cross-examination of PW.1

N Ravi and PW.2 Ramappa would go to show that they

have spoken about the lorry dashed against the

motorcycle ridden by Bheemappa from it's back side. It is

the case of prosecution that accused after the accident,

tried to escape from the place. However, PW.11

Keshavamurthy chased on his motorcycle and made the

accused to stop the lorry. Accused after stopping the lorry

fled away from the place. In this regard, if the evidence of

PW.11 Keshavamurthy is perused, then it would go to

show that he has specifically deposed by identifying

accused before the Court as the person who was driving

lorry and fled away from the lorry after stopping the same.

14(a) It is the evidence of PW.13 G Devaraja

that he has given notice to PW.9 Shivalingaiah Ex.P.9 and

has given reply to the notice Ex.P.10 and also produced

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the accused before him. PW.9 Shivalingaiah being owner

of the lorry bearing registration No.KA-12-5625 admits

about the Investigating Officer having issued notice to him

Ex.P.9 and also he has given reply Ex.P.10. If the notice

Ex.P.9 and the reply given by PW.9 Shivalingaiah vide

Ex.P.10 are perused, then it would go to show that

accused was the driver of the lorry at the relevant point of

time when the accident occurred. The evidence of PW.9

Shivalingaiah is not challenged by the defence counsel and

never claimed that accused was not driver of the lorry at

the time of accident in question. The lorry bearing

registration No.KA-12-5625 which caused the accident was

very much available at the place of accident and thereafter

it was brought to the Police Station. If the aforementioned

evidence of PW.9 Shivalingaiah and that of Investigating

Officer PW.13 G Devaraja and the notice issued to PW.9

Shivalingaiah Ex.P.9 and the reply given by him Ex.P.10

would go to show that accused was the driver of the lorry

bearing registration No.KA-12-5625 at the time of

accident. The said person has been unmistakably identified

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by PW.11 Keshavamurthy as a person who after stopping

the lorry fled away from the place while giving evidence in

the open Court. Therefore, in view of the aforementioned

evidence on record, the contention of the learned counsel

for the accused that prosecution has failed to establish the

identity of driver of the lorry bearing registration

No. KA-12-5625 involved in the accident cannot be legally

sustained.

15. Learned counsel for the accused has also

argued that the damages noted on both the vehicles in

view of the MV report Ex.P.12 remained unexplained in

view of the case made out by prosecution is to be

accepted that the lorry bearing registration No.KA-12-

5625 driven by accused came from backside and dashed

against motorcycle ridden by deceased Bheemappa.

16. It is true that Motor Vehicle report Ex.P.12

speaks about the damages to right and left side of the

lorry bearing registration No.KA-12-5625. The mere

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damages noted on both sides itself cannot be a ground to

disbelieve that the lorry bearing registration No.KA-12-

5625 driven by accused did not hit from the backside of

the motorcycle ridden by Bheemappa. The oral testimony

of PW.1 N Ravi, PW.2 Ramappa and PW.11

Keshavamurthy is consistent with regard to the manner in

which the accident took place. They have deposed to the

effect that the lorry bearing registration No.KA-12-5625

driven by accused came from Tarikere side while

proceeding towards Bhadravathi and dashed against the

backside of the motorcycle ridden by Bheemappa.

The multiple damages found on the motorcycle noted in

Ex.P.12 MV report must have been caused after

motorcycle is being carried to some distance and those

damages cannot ruled out, since the lorry bearing

registration No.KA-12-5625 driven by accused carried the

motorcycle to some distance. Therefore, the contention

of learned counsel for the accused that the

damages found on both the vehicles do not correspond

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with the manner in which the accident took place creates

serious doubt cannot be legally sustained.

17. The learned counsel for accused has also

argued that the spot panchanama where the accident took

place has also not been proved by the prosecution. The

oral testimony of PW.3 Marabovi, PW.4 Manjunatha would

go to show that they have deposed about the

Investigating Officer having prepared the spot

panchanama in their presence at the place of accident

Ex.P.2 and also the sketch map as per Ex.P.2(e). The said

evidence is further corroborated by the evidence of PW.12

S Basavaraju who has deposed to the effect that after

visiting place of accident prepared the spot panchanama

Ex.P.2 and taken the photographs Exs.P.4 and 5, so also

prepared sketch map Ex.P.2(e).

18. The defence counsel though has subjected all

these three witnesses to cross-examination, nothing worth

material has been brought on record, so as to disbelieve

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their evidence regarding the preparation of panchanama

Ex.P.2 in their presence. Therefore, the recitals of the spot

panchanama Ex.P.2 and the sketch map Ex.P.2(e) can be

looked into in appreciating the oral testimony of PW.1 N

Ravi, PW.2 Ramappa and PW.11 Keshavamurthy.

19. On perusal of the spot panchanama Ex.P.2, it

would go to show that the spot panchanama was prepared

on 31.01.2015 from 12.30 p.m. to 1.30 p.m. The accident

in question occurred on 7.45 p.m. on 30.01.2015. The

place of accident is shown by one of the eye witness i.e.,

PW.11 Keshavamurthy. The road at the place of accident

runs from South to North from Tarikere to Bhadravathi of

NH-206, the width of the road is about 20 feet having 5

feet kachcha road on either side of the road. The place of

accident is shown from Northern side edge towards

Eastern side and the distance from Northern side to the

place of accident is about 8 feet. The rubbing mark of

motorcycle on road was found towards the Northern side

about 20 feet from the place of accident and the blood

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stains were also found on the tar road. The motorcycle

was stuck in the wheels of the lorry and it was dragged to

some distance and then stopped. The driver of the lorry

stopped the vehicle and fled away from the place. If the

said recitals of the spot panchanama are appreciated with

the sketch map Ex.P.2(e), then it would go to show that

accused being driver of bearing registration No.KA-12-

5625 was supposed to take note of the vehicle proceeding

in front of him and keep sufficient gap in between both the

vehicles, so as to avoid any probable danger of coming in

contact with the vehicle. The failure of accused to exercise

such diligence has resulted in dashing to the backside of

the motorcycle ridden by deceased Bheemappa, due to

which he succumbed to the injuries on the spot itself. The

recitals of the spot panchanama would also goes to show

that the motorcycle was stucked in front wheel of the lorry

and thereafter it was dragged to some extent. The

evidence of PW.11 Keshavamurthy would go to show that

accused did not stop the vehicle immediately after the

accident and then proceeded about 500 feet, he was

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chased by him and then accused stopped the vehicle,

thereafter fled away from the place. The said evidence

would go to show that accused was not only rash and

negligent in driving the lorry bearing registration No.KA-

12-5625 at the time of accident, but also did not stop the

vehicle immediately after the accident and then allowed

the vehicle to drag the motorcycle to further extent for

about 500 feet is nothing but negligence in driving lorry

bearing registration No.KA-12-5625.

20. The last contention of learned counsel for the

accused is that accused was drunk in the function and due

to his mistake the accident has occurred. In this regard,

the learned counsel for the accused has invited the

attention of this Court regarding the suggestions made to

PW.2 Ramappa by the learned APP that all of them were

drunk in the function. The eye witnesses have denied the

same. The mere inadvertent suggestion made to PW.2

Ramappa that all of them were drunk in the function does

not mean that Bheemappa was drunk and proceeding on

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his motorcycle at the time of accident. On careful perusal

of the PM report, it does not disclose anything that the

stomach of deceased Bheemappa contains any contents of

alcohol. Therefore, without there being any cogent

evidence, the contention of learned counsel for accused

that rider of the motorcycle Bheemappa was drunk at the

time of accident and due to his fault the accident in

question has occurred also cannot be accepted.

21. The Courts below have rightly appreciated the

oral and documentary evidence placed on record and had

arrived to a just and proper conclusion in holding that the

accident in question has occurred due to culpable rashness

or negligence in driving the lorry bearing registration

No.KA-12-5625 and as a result accident in questioin has

occurred leading to the death of rider of motorcycle

Bheemappa. The Courts below were also justified in

holding that accused has failed to give any information

about the accident to the nearest Police Station within 24

hours of the occurrence of accident in terms of Section

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134(b) of MV Act. Accused has also not offered any

explanation for his failure to discharge the duty in terms of

Section 134(b) of MV Act by taking available defence and

the circumstances which prevented him from not giving

information to the nearest Police Station. The findings

recorded by both the Courts below in holding the accused

guilty for the offence punishable under Section 279, 304A

of IPC and Section 134(b) r/w Section 187 of MV Act is

based on material evidence on record and the same does

not warrant any interference by this Court.

22. Now question that remains is the imposition of

sentence. The Trial Court has sentenced the accused to

undergo simple imprisonment of six months for the

offence punishable under Section 279 of IPC and further

sentenced the accused to undergo simple imprisonment

for a period of one year and to pay fine of Rs.5,000/- for

the offence punishable under Section 304A of IPC and in

default of payment of fine shall undergo simple

imprisonment for two months. Accused is also sentenced

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to pay a fine of Rs.500/- for the offence punishable under

Section 134(b) r/w Section 187 of MV Act.

23. Looking to the nature of evidence placed on

record by the prosecution, the facts and circumstances

involved in this case and the other attending

circumstances, the imposition of sentence of imprisonment

for both the offences under Section 279 and 304A of IPC is

too harsh and the same needs to be interfered with.

24. In view of the facts and circumstances of the

case, if the accused is sentenced to undergo simple

imprisonment for three months for the offence punishable

under Section 279 of IPC and further sentenced to

undergo simple imprisonment for six months for the

offence punishable under Section 304A of IPC by retaining

the fine amount as ordered by the Trial Court for the

offence punishable under Section 304 A and 134(b) r/w

Section 187 of MV Act is ordered to be maintained will

meet the ends of justice. Consequently, proceed to pass

the following:

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ORDER

Revision Petition filed by the revision petitioner is

hereby partly allowed.

The judgment of the First Appellate Court on the file

of I Additional Sessions Judge, Chikkamagaluru in

Crl.A.No.85/2017 dated 11.01.2019, confirming the

judgment of Trial Court on the file of Senior Civil Judge

and JMFC, Tarikere in C.C.NO.235/2015 dated 01.06.2017

is hereby ordered to be modified as under:

The accused is sentenced to undergo simple

imprisonment for three months for the offence punishable

under Section 279 of IPC and further sentenced to

undergo simple imprisonment for six months for the

offence punishable under Section 304A of IPC.