Karnataka High Court

Sri. Prashanth vs State Of Karnataka on 19 April, 2024

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 19TH DAY OF APRIL, 2024

                          BEFORE

           THE HON'BLE MR. JUSTICE G. BASAVARAJA

   CRIMINAL REVISION PETITION NO.1303 OF 2023

Between:

  1. Sri Prashanth
     S/o Late Ramachandra Acharya
     Aged about 23 years
     r/at Durgaparameshwari House
     Near Kavadi Primary School
     Kavadi Post and village
     Brahmavara Taluk
     Udupi District 576 210

  2. Sri Sharath
     S/o Late Ramachandra Acharya
     Aged about 23 years
     r/at Durgaparameshwari House
     Near Kavadi Primary School
     Kavadi Post and village
     Brahmavara Taluk
     Udupi District 576 210
                                              ...Petitioners
(by Sri Pavan H.K. Advocate)

And:

State of Karnataka
By Hebri Police Station
Through the
State Public Prosecutor
High Court Complex
Dr. Ambedkar Veedhi
Bengaluu - 560 001
                                             ...Respondent
(by Sri Rajat Subramanyam, HCGP)
                                  2




      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to set aside the
judgment dated 12.01.2023 passed by the Principal Civil
Judge and JMFC at Udupi in CC No.3834 of 2020 and
confirmed by the II Additional District and Sessions Judge at
Udupi dated 10.08.2023 in Crl.A.No.25 of 2023.

     In this Criminal Revision Petition, arguments being
heard, judgment reserved, coming on "Pronouncement of
Orders" this day, the Court made the following:

                          ORDER

This Revision Petition is preferred against the judgment of

conviction and order on sentence dated 12th January, 2023

passed in Criminal Case No.3834 of 2020 by the Principal Civil

Judge and JMFC at Udupi (for brevity hereinafter referred to

as the "trial Court"), which is confirmed by the II Additional

District and Sessions Judge, Udupi in Criminal Appeal No.25 of

2023 vide judgment dated 10th August 2023.

2. For the sake of convenience, the parties in this

Revision Petition are referred to as per their rank and status

before the trial Court.

3. The brief facts of the prosecution case are that on

03rd October, 2020 at about 10.15 pm, the accused No.1 was

riding the motorcycle bearing Registration No.KA.20-EU.4847

owned by accused No.2-Sri Sharath, along with CW4-Sri

Krishnappa Valmiki as a pillion rider from the side of

Santekatte towards Brahmavara, in a rash and negligent

manner, and when the motorcycle reached Ganesha Kalyana

Mantapa at Kalathuru village, it was dashed to another

motorcycle bearing registration No.KA.20/EC.9303 driven by

CW1-Sri Harish Naik, which was proceeding from Brahmavara

towards Santekatte, resultantly both the motorcycles fell

along with riders and pillion rider and CW4 and CW1 sustained

fracture to their left leg; CW1 also sustained head injuries and

accused No.1 also sustained grievous injuries. The accused

No.2 has given his motorcycle to accused No.1 who do not

possess valid driving licence, so also the motorcycle was not

having emission certificate. Thus the accused committed the

offence punishable under Sections 279, 337 and 338 of Indian

Penal Code and under Section 3(1) read with 181, Section

5(1) read with Section 180 of Indian Motor Vehicles Act and

under Rule 115 of Central Motor Vehicle Rules read with

Section 190(2) of the Indian Motor Vehicles Act.

4. After filing of charge sheet, cognizance was taken by

the jurisdictional magistrate and a case was registered in CC

No.3834 of 2020 and summons was issued. In response to

summons, accused 1 and 2 appeared before the Court and

substance of accusation was recorded and having understood

the same, accused pleaded not guilty and claimed to be tried.

5. To prove the case, the prosecution has examined

eight witnesses as PWs1 to 8 and got marked 19 documents

as Exhibits P1 to P19. On closure of the prosecution side

evidence, statement of the accused under Section 313 of Code

of Criminal Procedure was recorded. Accused have totally

denied the evidence of prosecution witnesses, but have not

chosen to lead any defence evidence on their behalf. Having

heard both the parties, the trial Court has convicted both the

accused.

6. Accused No.1 was sentenced to undergo simple

imprisonment for a period of two months for the offence

punishable under Section 279 of Indian Penal Code; He was

further sentenced to undergo simple imprisonment for a

period of one month for the offence punishable under Section

337 of Indian Penal Code; further sentenced to undergo

simple imprisonment for a period of one month for the offence

punishable under Section 338 of Indian Penal Code. Further,

the accused No.1 was sentenced to pay a fine amount of

Rs.5,000/- for the offence punishable under Section 3(1) read

with Section 181 of Indian Motor Vehicle Act, in default o

undergo simple imprisonment for a period of ten days.

7. Accused No.2 was sentenced to pay a fine of

Rs.5,000/- for the offence punishable under Section 5(1) read

with Section 180 of Indian Motor Vehicles Act, in default to

under simple imprisonment for a period of ten days. Accused

No.2 was sentenced to pay a fine amount of Rs.2,000/- for

the offence punishable under Rule 115 read with Section

190(2) of Indian Motor Vehicles Act, in default to pay the fine,

shall undergo simple imprisonment for a period of ten days.

8. Being aggrieved by the judgment of conviction and

order on sentence passed by the trial Court, accused preferred

appeal before the II Additional District and Sessions Judge,

Udupi in Criminal Appeal No.25 of 2023 which came to be

dismissed by judgment dated 10th August, 2023, by

confirming the judgment of conviction and order on sentence

passed by the trial Court.

9. Feeling aggrieved by the impugned judgment of

conviction and order of sentence passed by the trial Court,

which is confirmed by the appellate Court, Revision

petitioners/Accused have preferred this Revision Petition.

Submission of the learned Counsel appearing for Revision Petitioners/accused:

10. Sri Pavan H.K., learned Counsel appearing for the

revision petitioners submitted that the impugned judgment of

conviction and order on sentence passed by the learned

Principal Civil Judge and JMFC is illegal, erroneous and against

to the material evidence on record. He further submitted that

the judgment of appellate Court is opposed to law, facts,

circumstances and probabilities of the case. He submits that

both the Courts have failed to appreciate the evidence on

record in accordance with law and facts. It is also submitted

that the evidence of PW7 is not considered by both the courts

below in its right perspective. PW1 has stated that on the

date of alleged accident there were no persons in and around

the place of incident, but PWs2 and 3 are shown are eye-

witnesses to the accident. The fact is that PWs1 to 3 are

known to each other and are friends and, as such, it is

doubtful as to whether PWs2 and 3 were even present at the

time of accident as alleged by PW1 and the same also creates

a serious doubt as to the veracity of the prosecution case.

The learned counsel further submits that PW3, who was a

pillion rider along with PW2 arrayed as eye-witnesses to the

incident, in his cross-examination, has clearly admitted that

he has not witnessed the alleged incident and stated that

when they were proceeding on that road, they have come

across the incident. This admission by witness is not

considered by the court below. It is further submitted that

PWs2 and 3 are interested witnesses and planted only to suit

the case of the prosecution. There is no cogent, corroborative

and trustworthy evidence before the Courts below to prove

the guilt of the accused. It is further submitted that the trial

Court has imposed the fine beyond the statutory limits

prescribed under the Motor Vehicles Act and Rules, and the

same is not sustainable under law. On all these grounds the

learned Counsel sought to allow the revision petition.

11. On the other hand, Sri. Rajat Subramanyam,

learned High Court Government Pleader, appearing for the

respondent-State submitted that the judgment of conviction

and order on sentence passed by the trial Court which is

confirmed by the Appellate Court are in accordance with law

and facts and there are no grounds to interfere with the same

and accordingly, sought for dismissal of revision petition.

12. Having heard the arguments on both sides, the

following points would arise for my consideration:

1. Whether the revision petitioner has made out a

ground to interfere with the impugned judgment

of conviction and order on sentence passed by

the trial Court which is confirmed by the

appellate Court?

2. Whether the Revision Petitioner has made out a

ground to modify the sentence passed by the

trial Court, which is confirmed by the appellate

Court?

3. What order?

13. My answer to the above points is as under:

Point No.1: in the negative;

Point No.2: partly in the affirmative;

Point No.3: as per final order

Regarding Point No.1:

14. I have carefully examined the materials placed

before this Court. It is the case of the prosecution that on

03rd October, 2020 at about 10.15 pm the accused No.1 along

with one Krishnappa Valmiki as a pillion rider, rode the

motorcycle from the side of Santekatte towards Brahmavara

in a rash and negligent manner and when the motorcycle

reached Ganesha Kalyana Mantapa at Kalthuru village, the

motorcycle dashed to another motorcycle bearing registration

No.KA.20/EC.9303 driven by CW1-Sri Harish Naik, proceeding

from Brahmavara towards Santekatte which resulted in fall of

motorcycles along with its riders and pillion riders. CW4 and

CW1 sustained fractured to their left leg; CW1 also sustained

head injuries and accused No.1 also sustained grievous

injuries. Thus the accused committed the offence punishable

under Sections 279, 337 and 338 of Indian Penal Code and

under Section 3(1) read with 181, Section 5(1) read with

Section 180 of Indian Motor Vehicles Act and under Rule 115

of Central Motor Vehicle Rules read with Section 190(2) of the

Indian Motor Vehicles Act.

15. To prove the guilt of the accused, the prosecution,

in all examined eight witnesses as PWs1 to 8 and marked 19

documents Exhibits P1 to P19. The accident is not in dispute.

It is also not in dispute that the accident is not due to

mechanical defect of motorcycles. To prove the rash and

negligent act on the part of the accused No.1, the prosecution

has examined PWs1 to 8.

16. PW1 who is the complaint as well as the eye-witness

to the incident, has clearly deposed as to the case of the

prosecution as stated in Exhibit P1-Complaint. Photographs

are also marked as Exhibits P2 to P5.

17. PW2 who is said to the eye-witness to the incident,

has deposed in his evidence that on the date of accident, he

along with PW3 were proceeding from Brahmavara towards

Hebri. PW1 was proceeding in front of his vehicle and when

he reached Ganesha Kalyana Mantapa, one motorcycle along

with pillion rider, ridden by its rider in a high speed, dashed to

the vehicle which was proceeding on the left side of the road

and as a consequence, both the riders of the motorcycles fell

along with motorcycle and PW1 sustained head injury and the

person who caused the accident and the pillion rider of the

said motorcycle also sustained injuries. He had further

deposed that the said accident caused because of the fault of

the accused No.1. He has further deposed as to the mahazar

conducted by the Police and the rough sketch prepared by the

Investigating Officer.

18. PW3 is the pillion rider who was proceeding on

another motorcycle, has clearly stated as to the accident.

19. PW4-Pradeep, spot mahazar witness, has deposed

as to the mahazar-Exhibit P6, Sketch-Exhibit P7 and Seizure

mahazar.

20. PW7-Krishnappa, who is the pillion rider of the

accused vehicle, has deposed in his evidence that the accused

No.1 is his friend; about one and a half years back when he

was proceeding towards from Kundapura to Shivamogga on

the left side of the road at a moderate speed, one motorcycle

driven by its rider in a speed, rash and negligent manner,

dashed to the motorcycle, resultantly driver and himself fall

on the road and PW7 lost his conscious.

21. At paragraphs 37 and 38 of the judgment, the trial

court has observed as under:

"37. On perusal of entire material placed on record, it is clear that, the prosecution has established that the guilt of the accused beyond all reasonable doubt not only by producing material documents but also examining the injured and eye-witness to the incident, who are fully supported to the case of prosecution. Further the accused has not produced any material to show that there was no rash or negligent driving on his part as stated by the learned App and also not explained anything in the 313 statement. Though the eye-witnesses and injured witness are belongs to same village, that itself is not sufficient to disbelieve that the their evidence as the accident occurred near the place of P.W.1 and P.W.2 and P.W.3 were present at the time of accident. Further the defense taken by the accused is not sufficient to disprove the case of the prosecution. Minor discrepancies in the evidence of P.W.1 to 3 are not fatal to the case of the prosecution, as they are clearly stated what they saw on the date of accident. The court cannot expect, witness should be deposed each and everything, as they were facing worst situation after occurrence of the accident. Under these circumstances, I am of the opinion that prosecution has established the rash and negligent driving of the vehicle by the accused No.1 which is caused Injuries.

38. Further the accused No.1 has not produced license to show that, he is holding the valid Driving license at the time of accident. Further the prosecution ably proved that, the accused No.2 who is being the owner of the Motor cycle bearing No.KA 20 EU 4847 has given his Motor Cycle who was not holding the Driving

license. The accused No.2 has also not produced Emission certificate before the court. Hence Accused No. 1 and 2 are liable for conviction. Thus the prosecution has also ably proved that the accused No.1 and 2 have committed an offence punishable U/s 279, 337, 338 of IPC and Sec. 3(1) r/w 181, Sec. 5(1) r/w 180 of IMV Act and CMV Rule 115 r/w 190(2) of IMV Act. Accordingly, I answer point no.1 to 6 in the Affirmative."

22. On re-appreciation of the evidence, the Appellate

Court has held that the prosecution has proved the guilt of the

accused beyond all reasonable doubt. Upon careful

examination/evaluation of the evidence and appreciation

made by both the Courts below, I do not find any

illegality/infirmity in the impugned judgment of conviction and

order on sentence passed by the trial Court, which is

confirmed by the appellate Court. Hence, I answer point No.1

in the negative.

Regarding Point No.2:

23. With regard to imposition of sentence is concerned,

the trial Court has convicted the accused and passed the

sentence as under:

"The accused No.1 is hereby sentenced to undergo S.I for a period of two months for the offence punishable U/s. 279 of IPC.

Further the accused No.1 is hereby sentenced to undergo S.I for a period of one month for the offence punishable U/s. 337 of IPC.

Further the accused No.1 is hereby sentenced to undergo S.I for a period of one month for the offence punishable U/s 338 of IPC.

Further the accused No.1 is hereby sentenced to pay a fine amount of Rs.5,000/- for the offence punishable U/s Sec.3(1) r/w Sec.181 of IMV Act. In default, the accused shall undergo S.I for a period of 10 days.

The Accused No.2 is hereby sentenced to pay a fine amount of Rs.5,000/- for the offence punishable under Sec.5(1) r/w 180 of IMV Act. In default, the accused No.2 shall undergo S.I. for a a period of 10 days.

Further the accused No.2 is hereby sentenced to pay a fine amount of Rs.2,000/- for the offence punishable under CMV Rule 26115 r/w 190(2) of IMV Act. In default the accused No.2 shall undergo simple imprisonment for the period of 10 days.

The bail bond and surety bond of the accused stands cancelled. All the sentences shall run concurrently."

24. The alleged commission of offence under Section

279 of Indian Penal Code is punishable with imprisonment of

either description for a term which may extend to six months,

or with fine which may extend to one thousand rupees or with

both.

25. The Offence under Section 337 of Indian Penal

Code is punishable with imprisonment of either description for

term which may extend to six months, or with fine which may

extend to five hundred rupees, or with both.

26. The Offence under Section 338 of Indian Penal

Code is punishable with imprisonment of either description for

a term which may extend to two years, or with fine which may

extend to one thousand rupees, or with both.

27. The Offence under Section 181 of Motor Vehicles

Act, 1988 is punishable with imprisonment for a term which

may extend to three months or with fine of Rs.500/- or with

both.

28. The Offence under Section 180 of the Motor Vehicles

Act, 1988 is punishable with imprisonment for a term which

may extend to three months or with a fine of Rs.500/- or with

both.

29. The Offence under Section 190(2) of the Motor

Vehicles Act, 1988, for the first offence, shall be punishable

with imprisonment for a term which may extend to three

months, or with fine which may extend to ten thousand

rupees or with both.

30. At the time of accident, the age of the accused

were 21 and 22 years respectively and are not convicted for

any offence prior to the commission of the abovesaid offence.

The trial Court, so also, the Appellate Court have not assigned

any reasons for imposing sentence of simple imprisonment for

a period of two months for commission of offence under

Section 279 Indian Penal Code, to undergo simple

imprisonment for one month for offence punishable under

Section 337 of Indian Penal Code; and to undergo simple

imprisonment for a period of one month under Section 338

Indian Penal Code to accused No.1-Prashanth. Both courts

have not considered the provisions of Section 6 of Probation of

Offenders Act, 1958.

31. The learned counsel for the Revision Petitioners

submits that if the Court comes to the conclusion that the

accused No.1 has committed the offence as alleged,

considering the age and occupation of the accused No.1, so

also, considering the fact that the offence committed by the

accused No.1 is the first offence, this Court can modify the

sentence only to extent of imposition of fine. He also submits

that the alleged commission of offences are not punishable

with imprisonment for more than two years and all the

offences are punishable with fine or the aforesaid sentence or

both. It is not in dispute that the accused has committed the

abovesaid offence is the first offence. Prior to this, the

accused is not convicted for any offence. It is also not in

dispute that the accused No.1 was aged 21 years at the time

of commission of offence. In that view of the matter,

considering the nature and gravity of offence, age and

occupation of the accused and also provisions of Section 6 of

Probation of Offenders Act, 1958, it is just and proper to

modify the sentence only to the extent of imposition of fine as

imposed by the trial Court. Accordingly, I answer point No.2

partly in the affirmative.

Regarding Point No.3:

32. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

1. Revision Petition is partly allowed:

2. The judgment of conviction dated 12th January,

2023 passed in Criminal Case No.3834 of 2020

by the Principal Civil Judge and JMFC at Udupi

which is confirmed by the II Additional District

and Sessions Judge, Udupi in Criminal Appeal

No.25 of 2023 vide judgment dated 10th August

2023, is modified as under:

i) Accused No.1 shall pay fine of

Rs.1,000/- for offence punishable under

Section 279 of Indian Penal Code in

default of payment of fine, accused

shall undergo simple imprisonment for a

period of fifteen days;

ii) Accused No.1 shall pay fine of Rs.500/-

for offence punishable under Section

337 of Indian Penal Code, in default of

payment of fine, shall under simple

imprisonment for a period of fifteen

days;

iii) Accused No.1 shall pay a fine of

Rs.1,000/- for commission of offence

punishable under Section 338 of Indian

Penal Code, in default of payment of

fine, shall under simple imprisonment

for a period of one month;