Karnataka High Court
Sri Chowdappa vs State Of Karnataka on 10 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 270 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.270 OF 2018
BETWEEN:
SRI CHOWDAPPA,
S/O MUNIRAJAPPA,
AGED ABOUT 32 YEARS,
R/O SONNENAHALLI,
NARSAPUR HOBLI
TALUK & DISTRICT-563101.
...PETITIONER
(BY SRI. VEERANNA G. TIGADI, ADVOCATE)
AND:
STATE OF KARNATAKA,
REP. BY INSPECTOR OF POLICE,
NANDAGUDI POLICE STATION,
Digitally signed REP. BY STATE PUBLIC PROSECUTOR,
by SHARANYA T
Location: HIGH HON'BLE HIGH COURT OF KARNATAKA,
COURT OF BENGALURU-563101
KARNATAKA
...RESPONDENT
(BY SRI. M. DIVAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 31.10.2014 IN
C.C.NO.622/2012 PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE AND JMFC, HOSKOTE AND JUDGMENT DATED
02.11.2017 IN CRIMINAL APPEAL NO.78/2014 PASSED BY THE
LEARNED VII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 270 of 2018
ORDER
Heard the learned counsel for the petitioner and the
learned High Court Government Pleader appearing for the
respondent State.
2. The factual matrix of the case of the prosecution
before the Trial Court is that on 09.03.2012 at about 9.00 a.m.,
the accused being the driver of the lorry bearing No.KA-02-A-
3232 was driving the lorry in a rash and negligent manner which
was going on NH-4 from Kolar to Bangalore side and he dashed
to one Shashi Kumar, who was standing on the divider for the
purpose of crossing the road by taking the lorry on the divider
and thereby the said Shashi Kumar succumbed to the injuries on
the spot. Hence, case was registered for the offences
punishable under Sections 279, 304(A) read with Section 196 of
IPC and Section 196 of the MV Act. The police have investigated
the matter and filed the charge-sheet against the accused for
the above offences. The accused was secured and he did not
plead guilty and hence the prosecution examined P.W.1 to P.W.7
and got marked the documents at Exd.P.1 to 10(a). The
accused was also examined under Section 313 of Cr.P.C. and
not led any defence evidence. The Trial Court having considered
both oral and documentary evidence placed on record, convicted
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the accused for the above offences and sentenced the accused
to undergo imprisonment for a period of six months and to pay a
fine of Rs.1,000/- and in default, to undergo simple
imprisonment for a period of one month for the offence
punishable under Section 279 of IPC. The accused was also
sentenced to undergo simple imprisonment for a period of two
years and to pay a fine of Rs.1,000/- and in default, to undergo
simple imprisonment for a period of five months for the offence
punishable under Section 304(A) of IPC and sentenced to
undergo simple imprisonment for a period of three months and
to pay a fine of Rs.500/- and in default, to undergo simple
imprisonment for a period of seven days for the offence
punishable under Section 196 of the Motor Vehicles Act.
3. Being aggrieved by the judgment of conviction and
sentence, an appeal is filed in R.A.No.78/2014. The First
Appellate Court having considered the grounds urged in the
appeal memo, formulated the points whether the impugned
judgment of conviction is perverse, capricious and liable to be
set aside and whether it calls for interference by this Court.
Having re-assessed both oral and documentary evidence placed
on record, the First Appellate Court answered the points for
consideration in the negative and confirmed the judgment of the
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Trial Court. Being aggrieved by the conviction and sentence as
well as confirmation, the present revision petition is filed before
this Court.
4. The main contention of the learned counsel for the
petitioner is that the order passed by both the Courts are illegal,
perverse and liable to be set aside. The Courts below have
never called upon the accused to enter the defence nor they
have given him an opportunity to defend, which vitiates the
proceedings before the Courts below. The Trial Court has failed
to see that P.W.1, the alleged eye-witness has not identified the
accused as the driver who was driving the vehicle in question
and P.W.2 and P.W.5 have not supported the case of the
prosecution. The Courts below failed to see that P.W.6, owner
of the lorry, categorically stated that he does not know who was
driving the vehicle at the time of the accident. The 313
statement of the accused was not properly recorded and in
accordance with law. The learned counsel would contend that
P.W.1 and P.W.2 who have been examined as eye-witnesses
have not identified the accused person. Though P.W.7 says that
the accused voluntarily surrendered in the police station and
was arrested and released on bail, the evidence of P.W.7 is not
forthcoming in the 313 statement of the accused. The
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incriminating evidence ought to have been put to the accused.
The very purpose of 313 statement is defeated. The learned
counsel would contend that while recording 313 statement, no
incriminating evidence is put to the accused and in view of non-
putting of the appropriate question, there will be no any effect.
5. The learned counsel for the petitioner relied upon
the judgment of the Apex Court in the case of SHAIKH
MAQSOOD v. STATE OF MAHARASHTRA reported in (2009)
6 SCC 583, wherein it is held that the appellant convicted under
Section 302 of IPC, however in the examination under Section
313, no question was put to the accused which established that
he was the author of the crime. Conviction cannot be
maintained and the same is liable to be set aside. The learned
counsel brought to the notice of this Court paragraph Nos.7 and
8, wherein discussed with regard to the purpose of Section 313
is set out in its opening words 'for the purpose of enabling the
accused personally to explain any circumstances appearing in
the evidence against him. The object of examination under this
Sections is to give the accused an opportunity to explain the
case made against him. In the case on hand, no such
incriminating evidence is put to his mouth to explain the said
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circumstances and hence the said judgment is aptly applicable
to the facts of the case on hand.
6. Per contra, the learned High Court Government
Pleader would submit that the evidence of P.W.1 and P.W.2 is
clear that both of them witnessed the accident and categorical
deposition was made that the driver of the lorry drove the lorry
in a rash and negligent manner and dashed against the victim
who was standing on the divider and as a result, he succumbed
to the injuries. The learned counsel brought to the notice of this
Court the document of Ex.P.6, which clearly discloses the
manner in which the accident was taken place. Ex.P.6
corroborates the evidence of P.W.1 and P.W.2, who have spoken
about the manner in which the vehicle was driven and though
photographs are not marked before the Trial Court, the same is
evident with regard to the incident itself. The principle of res
ipsa loquitur is applicable to the facts of the case on hand. The
learned counsel brought to the notice of this Court Ex.P.7
indemnity bond executed by the owner of the lorry and Ex.P.9
IMV report. The learned counsel contend that P.W.1 and P.W.2
have not identified the driver as immediately after the accident,
he ran away from the spot and hence they could not identify the
driver at the spot. P.W.1 also categorically says that he had
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noted the vehicle number and the same was given to the police
when the police came to the spot. P.W.6 owner of the vehicle
was examined and he says that he entrusted the vehicle to one
Rajappa and in order to prove the fact that the vehicle was
entrusted to Rajappa, on hire basis, no document is placed
before the Court record and the same has been considered by
the Trial Court and First Appellate Court on appreciation of
evidence and hence it does not require interference of this
Court.
7. Having heard the respective learned counsel and
also on perusal of the material available on record, the
prosecution relies upon the evidence of P.W.1 to P.W.7. P.W.1
and P.W.2 are the eye-witnesses according to the prosecution.
On perusal of evidence of P.W.1, it is specific that he gave the
complaint in terms of Ex.P.1, wherein specific averment is made
that the driver of the lorry came from Kolar to Bangalore with
load of stones and drove the same in a rash and negligent
manner and he could not control the lorry due to high speed and
dashed against the right side road divider and caused the
accident to the victim Shashi Kumar and thereafter the lorry was
parked on the road divider itself facing towards Hosakote.
Immediately, he himself and Krishnegowda, who is P.W.2 went
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to the spot and found the injuries on the head of Shashi Kumar
and he died at the spot and the driver of the lorry left the lorry
at the spot and ran away. The lorry number is KA-02-A-3232.
8. Having perused the contents of Ex.P.1 and also the
evidence of P.W.1, the evidence of P.W.1 is corollary to the
contents of the complaint. P.W.1 deposed before the Court that
the accident was due to negligence on the part of the driver of
the lorry and he says that he noted the vehicle number and
given to the police, but now he does not remember the vehicle
number. The police also seized the lorry. In the cross-
examination, it is elicited that on the either side of the road
divider, there are roads. Immediately after the accident, he
rushed to the spot within five minutes and he gave the
complaint at the spot and the deceased is the son of his friend.
He identifies his signature in the complaint Ex.P.1. A suggestion
was made that he did not witness the accident and the same
was denied.
9. P.W.2 also deposed before the Court in the same
manner of P.W.1 and he says that the driver of the lorry left the
lorry at the spot and ran away, but he did not observe the driver
of the lorry being afraid of the accident. This witness was
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subjected to cross-examination. In the cross-examination he
admits that there are plants on the road divider and he rushed
to the spot within 2-3 minutes of the accident. It is suggested
that if lorry was pulled, it was in the lying posture and the same
was denied but he says that it was parked. He denies the
suggestion that the lorry cannot proceed on the road divider.
He admits that Shashi Kumar's father and he himself belong to
the same village.
10. P.W.3 says that police came and conducted the
mahazar, but his signature was taken in the police station. It is
suggested that he had signed the mahazar on the spot and the
same was denied.
11. The other witness is P.W.4, who is the Sub-
Inspector. He had received the complaint in terms of Ex.P.1 and
issued FIR in terms of Ex.P.5 and mahazar was conducted and
vehicle was seized by drawing mahazar in terms of Ex.P.2. He
was subjected to cross-examination. In the cross-examination,
a suggestion was made that the witnesses have signed the
mahazar at the police station and the same was denied. It is
elicited from the mouth of P.W.4 that the lorry was loaded with
stones. He admits that in Ex.P.6 sketch they have not shown
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any damages to the road divider. But he volunteers that in the
photographs damages are found. It is suggested that he has
not conducted any spot mahazar and falsely deposing the same
and the same was denied.
12. P.W.5 is the witness to the incident and he has not
supported the case of the prosecution, but this witness was
cross-examined by treating him as hostile and suggestion was
made that he gave statement in terms of Ex.P.6 and the same
was denied.
13. P.W.6 is the owner of the lorry and he identified his
signature in terms of Ex.P.7 indemnity bond executed by him.
He says that he had given the vehicle to one Rajappa and he
cannot tell who was driving the lorry on the date of the
accident. The accused has not worked as driver with him. He
was subjected to cross-examination. A suggestion was made
that the police gave notice to him on 16.03.2012 and based on
the said notice he executed the document Ex.P.7 and the same
was denied. It is suggested that he is falsely deposing even
though he gave the statement in terms of Ex.P.8 and executed
the document in terms of Ex.P.7 and the same was denied.
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14. P.W.7 is the Investigating Officer and he says that
he took up the further investigation in the case. Ex.P.3 is
marked through this witness and also subjected the vehicle for
IMV test. On 16.03.2012, the accused appeared before him and
he arrested him and released him. He also recorded the
statement of C.W.5, 2 and 4 and IMV report is marked as Ex.P.9
through this witness. Post mortem report is marked as Ex.P.4.
This witness was subjected to cross-examination. In the cross-
examination, he admits that he did not visit the spot, but IMV
inspection was made in the police station premises. During the
investigation he has verified the photographs and CD of the said
photographs is not produced before the Court. He admits that
there are no damages to the road divider in terms of the
photographs. It is suggested that the accused is nowhere
connected to the accident and the same was denied. A
suggestion was made that the accused had parked his lorry on
the road divider along with stone in connection with Lanco road
repair and he did not cause any accident and the same was
denied. He says that left side headlight of the lorry was
damaged. He admits that if rod is used for damaging the
headlight, the same would cause the damage. It is suggested
that if vehicle passes over the divider, there are no chances of
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causing of headlight damage and the same was denied, but he
says it depends upon the circumstances. He admits that they
have not seized the glass pieces while conducting the mahazar.
15. Having considered the evidence available on record,
though photographs are not marked, during the course of cross-
examination of prosecution witnesses, a suggestion was made to
the witness that no damages to the road divider and the same is
also admitted by P.W.7. Having perused the photographs, there
are marks on the road divider as well as on the road there were
tyre marks and the lorry is also on the road divider. It is
important to note that a suggestion was made to the witnesses
that the driver of the lorry had parked the lorry on the road
divider. The very admission is very clear with regard to the fact
that the driver was very much present at the spot and
photographs available on record discloses that the lorry is on the
road divider and there are plants on the road divider and the
same is not a place for parking of the lorry and the road divider
is in middle of the two way road. It is also the specific
contention of the learned counsel for the petitioner that
incriminating evidence spoken by P.W.7 was not put to the
mouth of the accused with regard to the accused. No doubt, on
perusal of 313 statement of the accused, not put the evidence of
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P.W.7 to the accused, but the evidence of P.W.1 and P.W.2 was
specifically put to the accused that the accident was occurred in
view of the rash and negligent driving on the part of the driver.
No doubt, P.W.1 and P.W.2 have not identified the driver of the
lorry and their evidence is very clear that immediately after
causing the accident, leaving the lorry at the spot he ran away.
The evidence of P.W.7 is that on 16.03.2012, the accused
appeared before him in the police station and he arrested him
and enlarged him on bail. This evidence was not put to the
accused while examining him under Section 313 of Cr.P.C. On
perusal of evidence of P.W.7, even not denied the same in the
cross-examination of P.W.7 wherein he categorically speaks that
the accused appeared before him on 16.03.2012 in the police
station and he conducted the procedure of arrest and enlarged
him on bail and there is no denial with regard to the arrest and
appearance before him in the police station and also releasing
him on bail. When the same was not denied, the Court has to
take note of the very intent of examining the prosecution
witnesses. Even though not putforth the said incriminating
evidence against the accused in 313 statement, but the very
evidence of P.W.7 has not been denied in the cross-examination
of P.W.7 with regard to the arrest and voluntarily surrendering
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before P.W.7 and even not denied the procedure of arrest and
releasing and no explanation with regard to taking of bail by the
accused.
16. The learned High Court Government Pleader brought
to the notice of this Court that the Court has to take note of the
maxim "res ipsa loquitur" when the things itself speaks about
the accident. P.W.1 and P.W.2, who are the eye-witnesses
deposed before the Court that the driver of the lorry though not
identified by them, that he is the driver of the lorry and with
regard to other procedure is concerned for arresting him and
releasing him after following the procedure, no denial. P.W.6 in
an ingenious method deposed before the Court that he had
entrusted the vehicle to one Rajappa, but no such statement
was made before the police when it was recorded and during the
course of evidence, he says that he entrusted the vehicle to the
Rajappa, but no such document is placed before the Court that
the vehicle was entrusted to Rajappa. He says that he was not
aware of who was the driver of the lorry and the said fact is also
taken note of by the Trial Court and the First Appellate Court
while appreciating the evidence available on record. When such
materials are available on record, the maxim "res ipsa loquitur"
is applicable to the case on hand, when the things itself speaks
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about the accident and how an accident occurred. P.W.1 and
P.W.2 are the eye-witnesses to the incident and deposed before
the Court that they have witnessed the accident and the manner
in which the accident was taken place and in a reckless manner
the lorry was driven by the petitioner and hence, I do not find
any force in the contention of the learned counsel for the
petitioner that the findings of the Trial Court and the First
Appellate Court requires to be interfered with. However, taking
note of this is an accident and the Court cannot find any mens
rea and the document Ex.P.6 is also clear that driver of the lorry
lost control and dashed against the road divider and the person
who was standing on the road divider lost his life and sentence
for two years is on the higher side. When there was no any
mens rea and intention in causing the accident, it is appropriate
to reduce the sentence from two years to one year. With regard
to the other sentence in respect of other offences and fine is
concerned, it is not on the higher side. Hence, it does not
require any interference, except reducing of the sentence for the
offence punishable under Section 304(A) of IPC.
17. In view of the discussions made above, I pass the
following:
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ORDER
(i) The criminal revision petition is allowed in part.
(ii) The judgment of conviction is confirmed and
sentence is reduced from two years to one
year for the offence punishable under Section
304(A) of IPC and other sentence is unaltered.
Sd/-
JUDGE
MD
