Karnataka High Court
Madivalayya S/O Maralasidayya ... vs The State Of Karnataka on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 200080 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200080 OF 2020 (397)
BETWEEN:
MADIVALAYYA S/O MARALASIDAYYA INDIMATH
AGE: 35 YEARS, OCC: PRIVATE JOB,
R/O DEVARAHIPPARAGI, TALUK SINDAGI,
DISTRICT VIJAYAPUR-586101.
...PETITIONER
(BY SRI G. G. CHAGASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally signed by
SHILPA R BY IT'S STATE PUBLIC PROSECUTOR,
TENIHALLI ADVOCATE GENERAL'S OFFICE,
Location: HIGH
COURT OF HIGH COURT BUILDING, KALABURAGI,
KARNATAKA REPRESENTED BY ITS,
GRAMEENA P.S. KALABURAGI-585102.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP IS FILED U/S 397 R/W SEC.401 OF CR.PC
PRAYING TO, CALL FOR THE RECORDS OF THE COURTS BELOW
AND ALLOW THIS CR.R.P BY SETTING ASIDE THE JUDGMENT
AND ORDER DATED 09.07.2020 PASSED IN CR. APPEAL
NO.87/2018 BY THE LEARNED III ADDITIONAL DISTRICT AND
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CRL.RP No. 200080 of 2020
SESSIONS JUDGE, KALABURAGI DISMISSING THE APPEAL
CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 06.10.2018 IN C.C.NO.3860/2013 PASSED BY THE
LEARNED V ADDITIONAL CIVIL JUDGE AND JMFC, KALABURAGI
FOR THE OFFENCES PUNISHABLE U/SEC.279, 337, 338, AND
304A OF INDIAN PENAL CODE AND ACQUITE THE PETITIONER
OF THE SAID OFFENCES ALLEGED AGAINST HIM.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the revision
petitioner/accused against the judgment of conviction and
order of sentence passed by the learned V Additional Civil
Judge and JMFC, Kalaburagi in C.C.No.3860/2013 dated
06.10.2018 for the offences punishable under Sections
279, 337, 338 and 304-A of the Indian Penal Code, 1860
(for short 'IPC') and confirmed in Criminal Appeal
No.87/2018 by the learned III Additional District and
Sessions Judge, Kalaburagi vide judgment dated
09.07.2020.
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2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The brief factual matrix leading to the case are
as under:
On 24.01.2013, the complainant - Somashekhar, his
wife - Neelamma, daughter - Chaya, daughter-in-law -
Vijayalaxmi, son - Revansidda and other relatives were
returning to Kalaburagi from Swant village in an
unregistered tum-tum vehicle bearing Chassis No.MBX
0000ZBPL609417 and Eng. No.R2L2236226. It is alleged
that at about 0.45 hours in the mid night near Alagud
cross, the accused being the driver of the Skoda car
bearing registration No.KA-28/N-0803, drove the same in
a high speed, negligent manner and dashed to the tum-
tum vehicle from rear end, as a result, CWs.8 to 12 have
suffered simple and grievous injuries while Neelamma
suffered fatal injuries and died on the spot. After having
caused the accident, the accused fled from the spot and
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the complainant, who has lodged the complaint while
undergoing treatment died due to the injuries suffered by
him in the accident.
4. In this regard, the Investigating Officer has
submitted the charge sheet against the accused for the
offences punishable under Sections 279, 337, 338 and
304-A of IPC and under Section 187 of the Motor Vehicles
Act, 1988 (for short 'M. V. Act').
5. After submission of the charge sheet, the
learned Magistrate has taken cognizance of the offences
and issued process against the accused. The accused has
appeared through his counsel and was enlarged on bail.
He was provided with the prosecution papers as
contemplated under Section 207 of Cr.P.C. Then the plea
of the accused was recorded for the offences under
Sections 279, 337, 338 and 304-A of IPC. The accused
pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the
prosecution has examined in all 11 witnesses and has also
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got marked 29 documents as per Exs.P1 to P29. After
conclusion of the evidence of the prosecution, the
statement of the accused under Section 313 of Cr.P.C. was
recorded to enable the accused to explain the
incriminating evidence appearing against him in the case
of the prosecution. The case of the accused was of total
denial and he did not lead any evidence to prove his
defence.
7. The learned Magistrate after hearing the
arguments and after appreciating the oral and
documentary evidence convicted the accused for the
offences punishable under Section 279, 337, 338 and 304-
A of IPC. For the offences punishable under Sections 279,
337 and 338 of IPC, he sentenced the accused to undergo
simple imprisonment for a period of three months with fine
of Rs.500/-. Further, for the offence under Section 304-A
of IPC, he sentenced the accused to undergo simple
imprisonment for a period of six months with fine of
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Rs.5,000/- along with default clause and further directed
that all the sentences shall run concurrently.
8. Being aggrieved by this judgment of conviction
and order of sentence, the accused has approached the
learned III Additional Sessions Judge, Kalaburagi in
Criminal Appeal No.87/2018. 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/accused is before this Court by way of the
revision.
9. Heard the arguments advanced by the learned
counsel for the revision petitioner/accused and the learned
High Court Government Pleader for the respondent -
State. Perused the records.
10. The learned counsel for the revision petitioner
would submit that the documents and photographs
produced do not corroborate the evidence on record. She
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would contend that the accused in order to avoid collision
with on-coming lorry, was unable to control his vehicle and
hit the on-going tum-tum vehicle and the tum-tum vehicle
was loaded with number of passengers, which is an
unregistered and since it is a goods vehicle, there was no
provision for carrying the passengers. Hence, she would
contend that the contributory negligence is required to be
considered and seeks for allowing the revision.
11. Per contra, the learned High Court Government
Pleader would contend that the revision petitioner has hit
the on-going tum-tum vehicle from rear end and hence, he
is required to explain as to what has compelled him to hit
the on-going tum-tum vehicle from rear end, but he did
not give any explanation in this regard and his statement
under Section 313 of Cr.P.C. is also silent. She would also
contend that all the material witnesses have supported the
case of the prosecution and under Section 106 of the
Evidence Act, it is for the accused to explain the fact
within his knowledge, which he has failed to do so. Hence,
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she would contend that both the Courts below have
appreciated the oral and documentary evidence in a
proper perspective and have reasonably sentenced the
accused, which does not call for any interference. Hence,
she seeks for dismissal of the revision.
12. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration is:
"Whether the judgment of conviction and
order of sentence passed by the Trial Court and
confirmed by the First Appellate Court are
perverse, arbitrary and erroneous so as to call
for any interference by this Court?"
13. It is the specific case of the prosecution that on
24.01.2013 at 00-45 hours, the accused being the driver
of the Skoda car bearing No.KA-28/N-0803, drove it in a
rash and negligent manner and in intoxicated state of
mind and smashed on-going tum-tum vehicle bearing
Chassis No.MBX 0000ZBPL609417 and Engine
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No.R2L2236226. As a result, two persons succumbed to
the injuries and 4-5 persons suffered simple as well as
grievous injuries. In the instant case, the accident is not
in dispute. It is also admitted fact that both the vehicles
involved in the accident and the Skoda car hit the tum-
tum vehicle from back side when it was moving forward.
Further, it is also undisputed fact that the accused was the
driver of the offending car.
14. It is further admitted fact that two persons by
name, Somashekhar and Neelamma succumbed because
of the injuries sustained and other 4-5 persons suffered
simple and grievous injuries. The nature of injuries and
the death are undisputed facts.
15. The accused has simply disputed the rash and
negligent driving on his part. Though the accused was
prosecuted for the offence under Section 187 of the IMV
Act, he was acquitted by the Trial and the said finding was
not challenged. However, on perusal of the MVI report
marked at Ex.P.12 and photographs of both the vehicles
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marked at Exs.P.19 to P.26, it is evident that both the
vehicles were damaged considerably. Further, the major
damage was caused to the front side of the Skoda driven
by the accused. The rear portion of the tum-tum vehicle
was damaged considerably and since it was overturned,
the front portion was also damaged, but the car hit the
rear portion of the tum-tum vehicle and this aspect is also
undisputed.
16. P.W.1 is the spot mahazar witness and he has
deposed regarding drawing spot mahazar and seizure of
the vehicle. Since the accident is admitted, the evidence of
P.W.1 does not have much relevancy. P.W.2 Chaya is an
eyewitness. P.W.3 Vijayalaxmi, P.W.4 Ashok and P.W.5
Revansiddappa are eyewitnesses and all these witnesses
have fully supported the case of the prosecution. Though
these witnesses are cross-examined at length, nothing
was elicited and their evidence clearly disclose that the
tum-tum vehicle was hit from rear end by the Skoda car
driven by the accused.
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17. P.W.6 has deposed regarding giving treatment
to the injured. Further, the evidence of P.W.6 discloses
that the accused who was arrested on 24.01.2013 was
found to be under intoxicated state of mind and his blood
report also establish this aspect which is marked at
Ex.P.12.
18. PW-8 has deposed regarding examining the
blood sample of accused and he has deposed that the
blood sample was containing 66.67 mg of ethanol alcohol
and deposed regarding issuance of Ex.P-15. This discloses
that the accused was under intoxicated state of mind.
PW-9 is circumstantial witness police officer, while PW-10
and 11 are investigating officers.
19. The Motor Vehicle Inspector as well as the Post
Mortem Examination reports are marked by consent in the
evidence of investigating officer. Since there is no serious
dispute regarding the death and damage to both the
vehicles, non-examination of the person who has
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conducted the autopsy and MVI, who examined the
vehicles are not fatal to the case of the prosecution.
20. Admittedly, the tum-tum was going infront and
the Skoda car, driven by the accused hit the vehicle from
rear end. At the accident spot, the road is running from
south to north. The Kalaburagi is situated towards south,
while Humanabad is situated towards north. The width of
the road is more that 60 feet. Tum-tum as well as car
were moving from north i.e., Humanabad towards south
i.e., Kalaburagi. Both the vehicles were required to move
on the left side of the road and admittedly the tum-tum
was on the left side of the road and on the right side of the
road 60 feet vacant space was available and thereafter the
western edge of the road was situated. When the accused
was having more than 60 feet width road available, it is
for him to explain why he hit the tum-tum moving infront
of him from rear end and why he did not use the vacant
space of the road. Admittedly, the tum-tum was on the
left side of the road and all these aspects are required to
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be explained by the accused. But the accused did not
make attempts to explain any of these aspects. The
simple case of the accused is of denial and under Section
106 of the Evidence Act, the facts within the knowledge of
the accused are required to be explained by him.
Admittedly, the accused was driving the offending vehicle
and he is the best witness in the given circumstances to
explain as to how the accident occurred. But, his defense
is completely silent and even in 313 Cr.P.C. statement he
did not disclose as to how the accident as occurred. Under
such circumstances adverse inference is required to be
drawn against him.
21. Both the Courts below have appreciated the
oral and documentary evidence, made appropriate
observations and have rightly convicted the accused. No
illegality or infirmity is found in the judgment of
conviction. Apart from that for the offences punishable
under Sections 279, 337 and 338 of IPC imprisonment for
three months with a fine of Rs.500/- came to be imposed
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and for the offence punishable under Section 304 (a) of
IPC imprisonment for 6 months with fine of Rs.5,000/-
came to be imposed.
22. Learned counsel for the petitioner would
contend that the fine may be enhanced by reducing the
sentence of imprisonment. However, it is required to be
noted here that the accused was under intoxicated state of
mind and he hit a moving vehicle from back side, which
has resulted in death of two persons. Such act cannot be
taken in a lighter way, as due to the negligence by the
accused two persons have succumbed because of the
accidental injuries. Under such circumstances the
sentence itself is on the lower side and as such the
question of reducing it does not arise at all. Hence, the
judgment of conviction and order of sentence do not suffer
from any perversity, so as to call for any interference by
this Court. Hence, Criminal Revision Petition being devoid
of merits does not survive for consideration. Accordingly,
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the point under consideration is answered in negative. As
such, I pass the following orders.
ORDER
I. The Criminal Revision Petition stands
dismissed.
II. Send the TCR's back to the Trial
Court along with a copy of this Order
with direction to secure the presence
of the accused for serving the balance
sentence.
Sd/-
JUDGE
SRT,RSP,NJ
