Sri. B K Srinivasa vs State Of Karnataka
2024 Latest Caselaw 15422 Kant

Karnataka High Court

Sri. B K Srinivasa vs State Of Karnataka on 3 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2024:KHC:25115
                                                CRL.RP No. 710 of 2016




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 03RD DAY OF JULY, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                 CRIMINAL REVISION PETITION No.710 OF 2016
             BETWEEN:

             SRI. B K SRINIVASA
             SON OF LATE KENGANNA,
             AGED ABOUT 44 YEARS,
             DRIVER,
             RESIDING AT BANAVARA TOWN,
             BANAVARA HOBLI,
             ARSIKERE TALUK,
             HASSAN DISTRICT- 573 112
                                                         ...PETITIONER

             (BY SRI P.M.GOPI AND SRI SIDDAMALLAPPA P M, ADVOCATES)
             AND:

            STATE OF KARNATAKA
            BY BANAVARA POLICE,
Digitally
signed by R ARSIKERE TALUK
MANJUNATHA HASSAN DISTRICT
Location:                                               ...RESPONDENT
HIGH COURT   (BY SRI VINAY MAHADEVAIAH, HCGP)
OF
KARNATAKA         THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
             CR.P.C PRAYING TO SET ASIDE THE JUDGMENT CONVICTION
             AND    SENTENCE     DATED     07.04.2015   PASSED     IN
             C.C.NO.307/2011 BY THE ADDL. CIVIL JUDGE AND JMFC,
             ARASIKERE AND THE ORDER DATED 01.04.2016 PASSED IN
             CRL.A.NO.68/2015 BY THE III ADDL. DIST. AND S.J., HASSAN
             AND THEREBY ACQUIT THE ACCUSED/PETITIONER BY
             ALLOWING THE ABOVE CRL.RP.

                  THIS PETITION, COMING ON FOR FINAL HEARING, THIS
             DAY, THE COURT MADE THE FOLLOWING:
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                                                   NC: 2024:KHC:25115
                                           CRL.RP No. 710 of 2016




                              ORDER

Heard Sri P.M.Gopi, advocate for Sri P.M. Siddamallappa,

learned counsel for the revision petitioner and Sri Vinay

Mahadevaiah, learned High Court Government Pleader.

2. Accused who has been convicted for the offences

punishable under Sections 279 and 304A of the Indian Penal

Code in C.C No.307/2011 dated 07.04.2015 on the file of the

Addl. Civil Judge and JMFC, Arsikere, confirmed in Criminal

Appeal No.68/2015 dated 01.04.2016 on the file of the III Addl.

District and Sessions Judge, Hassan, has preferred this revision

petition.

3. Facts of the case in brief for disposal of the present

revision petition are asunder.

A complaint came to be lodged on 05.02.2011 with

Banavara Police, Arasikere taluk contending that on 05.02.2011

at about 10:00 AM on Banavara-Shyanegere Road near

A.Mallapura village, when deceased Basavaraju was moving on

Hero Honda Passion Motorcycle bearing registration number

KA-13/R-3038 met with an accident involving the tempo

travelling bearing registration number KA-14/A-7300 on

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account of rash and negligent driving of the driver of the said

vehicle.

4. Based on the said complaint, police registered a case,

investigated the matter and filed charge sheet against the

accused. Charge was framed and accused pleaded not guilty

and therefore trial was held.

5. In order to establish the case of the prosecution, seven

witnesses were examined as P.Ws.1 to 7 and eight

documentary evidence were placed on record exhibited and

marked as Exs.P-1 to 8.

6. Statement of the accused as is contemplated under

Section 313 of the Code of Criminal Procedure was recorded

wherein accused has denied all the incriminatory circumstances

including the accident.

7. Written statement as is contemplated under Section

313(4) of the Code of Criminal Procedure was filed on behalf of

the accused.

8. Thereafter, learned Trial Magistrate heard the parties and

convicted the accused and passed the sentence as under:

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"Acting under Section 255(2) of Cr.P.C., the accused is convicted for the offences punishable under Section 279, 304(A) r/w Section 187 of IMV Act.

The accused is sentenced to undergo simple imprisonment for the period of 6 months and to pay a fine of Rs.1,000/- for the offence punishable under Section 279 of IPC and in default of payment of fine he shall undergo simple imprisonment for a period of 1 month.

The accused is sentenced to undergo simple imprisonment for the period of 1 year and to pay a fine of Rs.1,000/- for the offence punishable under Section 304(A) of IPC and in default of payment of fine he shall undergo simple imprisonment for a period of 1 month.

Further fine of Rs.500/- is imposed on the accused for the offence punishable under Section 187 of IMV Act and in default to pay the fine he shall undergo simple imprisonment for 15 days.

All the sentences shall run concurrently.

Bail bond of the accused and surety stand cancelled.

Supply a free copy of the judgment to the accused."

9. Being aggrieved by the same, accused filed an appeal

before the District Court in Criminal Appeal No.68/2015.

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10. Learned Judge in the first Appellate Court, after securing

the records, heard the parties and dismissed the appeal of the

accused and confirmed the order of conviction and sentence

passed by the learned Trial Magistrate.

11. Being further aggrieved by the same accused is before

this Court in this revision petition.

12. Sri P.M Gopi, learned counsel for the revision petitioner

reiterating the grounds urged in petition vehemently contended

that the case of the prosecution is that, on account of the

ration and negligent driving of the driver of the Tempo

Traveller, accident has occurred. But PW 4 has stated before

the Court that accident has occurred on account of rash and

negligent driving of the rider of the motorcycle, and sought for

allowing the revision petition.

13. He also pointed out that except P.W.1, there is no other

evidence on record which would establish the guilt of the

accused which has not been properly appreciated by the

learned Trial Magistrate and the learned Judge in the first

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Appellate Court and thus, sought for allowing the revision

petition.

14. He further pointed out that material on record is not

properly appreciated by both the Courts in recording the order

of conviction, especially taking note of the fact that PW 1 is an

influential person and relative of the deceased and, sought for

the allowing revision petition.

15. Per contra, learned High Court Government Pleader

supports the impugned judgment.

16. Having heard the learned counsel for the parties, this

Court perused the material on record meticulously.

17. On such perusal of the material on record, it is crystal

clear that the vehicle bearing number KA-14/A-7300 was

involved in the road traffic accident on 05.02.2011 at 10:00

AM. The postmortem report shows that deceased Basavaraju

died on account of the head and spine injury.

18. Cross-examination of P.W.1 would go to show that

suggestions were made that revision petitioner is not the driver

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of the tempo traveller. But, indemnity bond executed by owner

of the Tempo Traveller would go to show that it is the revision

petitioner who is the driver of the Tempo Traveller. Further, the

IMV report does not show any mechanical defect in the tempo

traveller bearing registration No.KA-14/A-7300.

19. Further, the petitioner has contended before this Court by

placing reliance on the evidence of P.W.4, that it is because of

the rash and negligent driving of the motorcycle, Basavaraju

died.

20. In fact, P.W-4 has been treated as hostile witness and

cross examined by the prosecution and therefore his version

cannot be believed.

21. Moreover, it was for the accused to say that accident has

occurred on account of rash and negligent driving of the rider of

the motorcycle and not P.W-4.

22. In the accused statement recorded under Section 313 of

the Code of Criminal Procedure, accused has gone to the extent

of denying the accident itself. He did not place on record any

material so as to disbelieve the version of the prosecution.

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23. In a matter of this nature, it is incumbent on the part of

the accused to have his version placed on record so as to

appreciate the contention raised by the prosecution as well as

accused.

24. When an accused deliberately fails to utilise such an

opportunity, especially while recording the accused statement,

consequences in law has to be followed by the learned trial

Magistrate.

25. In this regard this Court places reliance on the principles

of law enunciated in the case of Ravi Kapur vs. State of

Rajasthan reported in (2012)9 SCC 284, wherein at

paragraph 39, it is held us under.

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of

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the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

26. Applying the principles of law enunciated in the said

decision to the case on hand, since accused has failed to offer

any explanation whatsoever to the incident and has gone to the

extent of denying the very accident itself, the learned Trial

Magistrate is justified in recording an order of conviction for the

offenses punishable under Sections 279 and 304A of the Indian

Penal Code as a natural consequence.

27. Learned Judge in the first appellate Court has rightly re-

appreciated the material evidence on record and only on the

ground of PW-1 is a relative of deceased, his evidence cannot

be discarded in toto.

28. It is well settled principles of law and requires no

emphasis that the interested testimony cannot be discarded in

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toto unless it is established that there is an ulterior motive in

falsely implicating the accused in a criminal case.

29. In the case on hand, admittedly the complaint did not

possess any previous enmity or animosity so as to falsely

implicate the accused in the accident.

30. Accordingly, merely on the ground that P.W.1 is a relative

and termed as interested witness, evidence of PW-1 cannot be

discarded. Further, other material evidence on record, viz.,

indemnity bond executed by the owner of the vehicle as well as

postmortem report and IMV report would indicate that the

accident has occurred on the place of incident.

31. Even the sketch marked in the evidence would go to show

that because of the impact of the accident an electric pole got

broken.

32. Therefore, version of the prosecution has been held to be

proved and conviction order came to be passed by the learned

trial Magistrate confirmed by the learned Judge in the first

Appellate Court needs no interference by this Court, that too, in

the revisional jurisdiction.

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33. Having said thus, this Court has noticed that for the

offence punishable under Section 279 of the IPC also simple

imprisonment of six months has been awarded by the learned

Trial Magistrate, so also for the offence punishable under

Section 304A of the Indian Penal Code.

34. State has not preferred any revision seeking

enhancement of sentence.

35. When once for the higher offence, imprisonment is

awarded, no separate imprisonment can be ordered for the

lower offence in the very same incident, unless there are other

injured persons involved in the incident.

36. Accordingly approach of the learned Trial Magistrate in

granting the imprisonment for the offence punishable under

Section 279 IPC needs to be set aside as it merges with

imprisonment period awarded for the offence punishable under

Section 304A of the Indian Penal Code by applying doctrine of

merger.

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37. To that extent, the impugned orders need interference by

this court.

38. Accordingly, the following:

ORDER

(i) Revision petition is allowed in part.

(ii) While maintaining the conviction of the accused for the offences punishable under section 279 and 304A of the Indian Penal Code, separate imprisonment ordered by the learned Trial Magistrate for the offence punishable under Section 279 IPC is hereby set aside.

(iii) Rest of the sentence is unaltered.

(iv) Accused is granted time till 25th July 2024 to surrender before they learned trial Magistrate for serving the sentence failing which learned trial magistrate is at liberty to secure the presence of the accused in accordance with law and send him to the prison.

Sd/-

JUDGE

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