Karnataka High Court
Ninganagouda S/O Basanagouda Hakkandi vs The State Of Karnataka on 6 August, 2024
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CRL.RP No. 100065 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100065 OF 2023 (397)
BETWEEN:
NINGANAGOUDA S/O. BASANAGOUDA HAKKANDI,
AGE: 43 YEARS, OCC: DRIVER,
R/O: ALWANDI, TQ. AND DISTRICT. KOPPAL.
...PETITIONER
(BY SRI C.R. HIREMATH, ADVOCATE FOR PETITIONER)
AND:
THE STATE OF KARNATAKA,
THROUGH YALBURGA POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI ABHISHEK MALIPATIL, HCGP FOR RESPONDENT)
Digitally signed by THIS CRIMINAL REVISION PETITION IS FILED UNDER
YASHAVANT SECTION 397 R/W 401 OF CR.P.C. SEEKING THAT JUDGMENT AND
NARAYANKAR
Location: HIGH ORDER OF SENTENCE DATED 30.06.2021, PASSED BY THE COURT
COURT OF OF J.M.F.C., YELBURGA IN C.C.NO.84/2012, CONFIRMED BY THE
KARNATAKA
ORDER DATED 22.12.2022, PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE KOPPAL, IN CRIMINAL APPEAL NO.32/2021, FOR
THE OFFENCE P/U/SEC. 279 AND 304A OF IPC AND R/W SEC. 187
AND 192 OF IMV ACT, MAY BE SET ASIDE AND THE PETITIONER MAY
BE ACQUITTED FROM THE CHARGES FRAMED AGAINST HIM IN THE
ENDS OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100065 of 2023
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This petition is filed under Section 397, read with
Section 401 of Cr.P.C., by accused No.1 challenging his
conviction and sentence imposed by the trial court in
C.C.No.84/2012 for the offences punishable under sections
279 and 304A of IPC, which came to be confirmed by the
session court in Crl.A.No.32/2021 by dismissing the appeal
filed by him.
2. For the sake of convenience, parties are
referred to by their ranks before the trial court.
3. A charge sheet came to be filed against accused
No.1 alleging that on 18.01.2012 at around 7:45 p.m.,
accused was the driver of Cruiser Jeep bearing registration
No.KA-36/MA-7861 ('Offending vehicle' for short), plying
on Koppal to Yelaburga Road. While proceeding from
Koppal side towards Yelaburga side, in front of the
stadium, he drove the same in a rash and negligent
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manner and dashed against the Hero Honda splender
motorcycle bearing Engine No.JA05EA99MO6047 and
Chassis No.MBLJAO5EE99MO6675 ('Motorcycle' for short)
coming from opposite direction. As a result of the
accident, Ramanagowda, who was riding the motorcycle
sustained grievous injuries and died on the spot. Accused
ran away from the spot without informing the concerned
police and also without trying to get medical help to the
injured and thereby committed the offences punishable
under Sections 279 and 304A of IPC and Sections 187 and
192 of Motor vehicles Act.
4. The concerned police filed charge sheet only
against accused No.1. However, based on the application
filed under Section 319 Cr.P.C., after issuing notice to the
proposed accused, who is the owner of the motorcycle and
hearing him, vide order dated 26.12.2019, he was
included as accused No.2 for the offences punishable
under Section 190 of IMV Act. On 29.01.2021, he has
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pleaded guilty and he was imposed with fine of ₹2000 with
the default sentence. Accordingly, he has paid the fine.
5. So far as accused No.1 is concerned, he
pleaded not guilty.
6. At the trial, six witnesses are examined on
behalf of the prosecution and Exs.P1 to P19 are marked.
7. During the course of statement under Section
313 of Cr.P.C., accused has denied the incriminating
evidence lead by the prosecution.
8. Accused has not led any defence evidence.
9. The trial court convicted the accused for the
offences punishable under sections 279 and 304A of IPC
and Section 187 of Motor Vehicles Act.
10. The session court has dismissed the appeal filed
by the accused.
11. Challenging the judgment and order passed by
the trial court as well as the sessions court, the accused is
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before the court contending that the same are contrary to
law, facts and circumstances of the case and evidence
placed on record. Except P.W.3, rest of the witnesses are
hearsay witnesses. According to P.W.3, at the time of
accident, he was sitting behind the accused. Therefore, he
was not able to see the road. The prosecution has failed to
prove the speed, with which the accused was driving the
offending vehicle. P.W.3 has not clarified this aspect.
11.1 As per the sketch, the offending vehicle was 12
feet from the left edge of the road, whereas the
motorcycle of the deceased was 18 feet from the right side
of the road. Therefore, it was the rider of the motorcycle
who was responsible for the accident. This aspect is not
examined by the courts below. As per the postmortem
report, the death was not due to the accident. The finding
of the courts below is contrary to the evidence on record
and as such, the same is perverse. Viewed from any
angle, the judgment and order of the courts below are not
sustainable.
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12. Learned HCGP supported the judgment and
order under challenge. He would submit that P.W.3 is the
witness to the incident. He was travelling in the offending
vehicle and identified the accused as its driver. Since he
was sitting right behind the accused, he had clear
opportunity to see the accident and deposed in
unequivocal terms that accident occurred due to the rash
or negligent driving of the offending vehicle by the
accused. The accused is not able to dislodge his
testimony. The trial court as well as the session court on
proper appreciation of the evidence led by the prosecution
has come to a correct conclusion. There is no manifest
illegality or the orders have not resulted in gross
miscarriage of justice calling for interference by this court
and prays to dismiss the petition.
13. Heard arguments of both sides and perused the
records.
14. P.W.3-Totanagowda is an eye-witness to the
accident. He was travelling in the offending vehicle when
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the accident took place. Consequently, he was able to
identify the accused as the one who was driving the
offending vehicle when the accident took place. P.W.3 has
stated that before the police, he did not give the
description of the accused, but on 25th, when he visited
the police station, he identified the accused who was
present there. It is relevant to note that the offending
vehicle was being used to ferrying passengers and in all
probabilities, accused being the driver was known to the
persons who were regularly travelling in the said vehicle.
Even otherwise, since P.W.3 was traveling in the offending
vehicle, he was able to identify the accused.
15. The evidence of P.W.3 reveals that when the
accident took place, he was sitting behind the accused and
was able to see the road. When the accident took place, it
was 7:45 p.m. While the offending vehicle was moving
from Koppal side towards Yelaburga side, the motorcycle
was coming from the opposite side. It is suggested to
P.W.3 that since it was dark, he was not able to see the
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road and how the accident took place. Of course, he has
denied the said suggestion. Even though it was night, the
headlights of the offending vehicle were on. Since P.W.3
was sitting on the seat behind the accused, he was able to
see the road.
16. It is submitted by the learned counsel for
accused that as per the sketch, which is part of spot
mahazar, the spot where the accident took place is at a
distance of 12 feet from the left side of the road and 18
feet from the right edge of the road. Therefore, the
deceased was responsible for the accident. The testimony
of P.W.3 clearly establishes the fact that it was the
accused, who driving the offending vehicle in a rash or
negligent manner and caused the accident. Except
suggesting that accident occurred due to the negligence of
the deceased, nothing is elicited in the cross-examination
of P.W.3, which would support the defence of the accused.
It is not the case of the accused that deceased rushed his
motorcycle towards the offending vehicle, and even
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though he tried to stir the offending vehicle away from the
motorcycle, the deceased came and dashed against it. The
spot mahazar and the sketch does not indicate any marks
on the road to show that it is the deceased who rode the
motorcycle in a negligent manner and dashed against the
offending vehicle and accused tried to avoid it.
17. Accused being the driver of offending vehicle
and present when the accident took place is the best
person to depose how exactly the accident took place. He
has not chosen to step to the witness box and to give
evidence on oath to counter the testimony of P.W.3.
Consequently, he has failed to demonstrate that accident
occurred due to the rash or negligent driving of the
motorcycle by the deceased and he was not responsible
for the same. In Thakur Singh Vs State of Punjab
reported in (2003) 9 SCC 208, the Hon'ble Supreme
Court held that in view of the doctrine of res ipsa loquitur,
the burden is on the accused to prove that accident was
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caused other than the negligence on his part. This decision
is also relied upon by the trial court.
18. The postmortem report revealed the injury
sustained by the deceased on account of the accident, and
based on the said injuries, the medical officer has given
opinion that death was due to Cardiovascular failure, as a
result of massive hemorrhage, secondary to the injury
sustained by the deceased. Therefore, the argument of the
accused that death was not on account of the injuries
sustained by the deceased cannot be accepted.
19. Both trial court as well as the sessions court
have examined the entire oral and documentary evidence
on record and come to a correct conclusion that the
allegations made against the accused are beyond
reasonable doubt. The findings of the courts below are
consistent with the evidence led by the prosecution.
Absolutely, there is no manifest illegality committed by the
courts below, so as to say that there is gross miscarriage
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of justice calling for interference in exercise of revisional
jurisdiction.
20. The trial court has sentenced the accused to
undergo simple imprisonment for two years insofar as the
offence punishable under section 304A IPC is concerned.
The maximum punishment prescribed for the said offence
is imprisonment of either description for a term which may
extend to 2 years or with fine or with both. Having regard
to the facts and circumstances of the case, this court has
come to the conclusion that the allegations against
accused are proved beyond reasonable doubt and this is
not a fit case to interfere with the conclusions arrived at
by the trial court as well as the sessions court. However,
this court is of the considered opinion that the punishment
imposed is little on the higher side. Therefore, the justice
would be served, if the accused is sentenced to undergo
rigorous imprisonment for six months. To this extent, the
petition filed by the accused deserves to be allowed in part
and accordingly the following;
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ORDER
i) The petition filed by the accused is allowed
in part.
(i) The judgment and order of the trial court
dated 30.06.2021 in C.C.No.84/2012 on
the file of the JMFC, Yelburga, which is
confirmed by the Sessions Court vide order
dated 22.12.2022 in Crl.A.No.32/2021 on
the file of the Principal District and Sessions
Judge, Koppal are here by confirmed.
(ii) However, the accused is sentenced to
undergo rigorous imprisonment for six
months for the offence punishable under
section 304A of IPC. The fine imposed is
maintained.
(iii) The punishment imposed for the other
offences is maintained.
(iv) As directed by the trial court, the
substantial sentences shall run currently.
(v) Registry is directed to send back the trial
court and session court records along with
copy of this Order.
Sd/-
(J.M.KHAZI)
JUDGE
MBS, CT: UMD
