Karnataka High Court

B. Mahesh vs State Of Karnataka on 26 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                        NC: 2024:KHC:24254
                                                   CRL.RP No. 795 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 26TH DAY OF JUNE, 2024

                                        BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  CRIMINAL REVISION PETITION NO. 795 OF 2016
            BETWEEN:

            B. MAHESH
            S/O BASAVANAYAKA,
            AGED ABOUT 28 YEARS,
            AUTO DRIVER,
            R/AT ERANNA COLONY,
            KAIKERI VILLAGE, GONIKOPPAL
            VIRAJPET TALUK
            KODAGU DISTRICT-571 213.
                                                              ...PETITIONER
            (BY SRI RAGHAVENDRACHAR M, ADVOCATE)
            AND:

            1.    STATE OF KARNATAKA
                  BY GONIKOPPA POLICE
                                                             ...RESPONDENT
            (BY SRI VINAY MAHADEVAIAH, HCGP)
Digitally
signed by          THIS CRL.RP IS FILED UNDER SECTION 397 CR.P.C
MALATESH
KC          PRAYING TO SET ASIDE THE ORDER DATED 17.08.2015
Location:
HIGH        PASSED    BY   THE   C.J.   AND     J.M.F.C.,   PONNEMPET   IN
COURT OF
KARNATAKA   C.C.NO.448/2010 AND THE ORDER DATED 30.05.2016 PASSED
            BY THE II ADDL. DIST. AND S.J., KODAGU, MADIKERI TO SIT
            AT VIRAJPET,IN CRL.A.NO.34/2015.

                   THIS PETITION, COMING ON FOR FINAL HEARING, THIS
            DAY, THE COURT MADE THE FOLLOWING:
                                  -2-
                                                 NC: 2024:KHC:24254
                                            CRL.RP No. 795 of 2016




                              ORDER

Heard Sri M.Raghavendrachar, learned counsel for the

petitioner and Sri Vinay Mahadevaiah, learned High Court

Government Pleader.

2. Accused who suffered an Order of conviction for the

offences punishable under Sections 279, 338 and 304A of the

Indian Penal Code in C.C.No.448/2010 dated 17.08.2015 on

the file of the Civil Judge and JMFC, Ponnampet, confirmed in

Crl.A.No.34/2015 dated 30.05.2016 on the file of the II Addl.

District and Sessions Judge, Kodagu-Madikeri, sitting at

Virajpet, is the revision petitioner.

3. Facts of the case in brief which are utmost necessary for

disposal of the revision petition are as under:

One Sri B.S.Manjunath, filed a complaint with Gonikoppa

Police, Virajpet Taluk, on 05.07.2008 stating that at about 9.00

am on 05.07.2008, when Smt.Sumithra was standing near

Babu Engineering Works waiting for an auto rickshaw, accused

being the drive of another auto rickshaw bearing registration

No.KA-12/ 5065 came in a rash and negligent manner and

dashed against Smt.Sumithra.

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4. Because of the accident, auto rickshaw was turtled and

Sumithra sustained grievous injuries on her head. She was

shifted to the hospital and enroute to hospital, she succumbed

to the injuries. The doctors who examined Sumithra in the

hospital declared as 'brought dead'.

5. Based on the complaint lodged by B.S.Manjunath, police

registered a case against the accused for the offences

punishable under Sections 279, 338, 304A of the Indian Penal

Code and also under Section 146 r/w 196 of the M.V.Act.

6. After thorough investigation, police filed the charge sheet.

7. Learned Trial Magistrate, after securing the presence of

the accused, recorded the charge and accused pleaded not

guilty. Therefore, trial was held.

8. In order to prove the case of the prosecution, in all 14

witnesses were examined by the prosecution as P.Ws.1 to 14,

comprising of complainant, eye witnesses, inquest mahazar

witnesses, doctors and investigation officers.

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9. The prosecution also placed on record eight document

evidences, exhibited and marked as Exs.P.1 to 8, comprising of

complaint, mahazar, wound certificate, inquest report, FIR,

sketch and IMV report. Detailed cross-examination of the

prosecution witnesses did not yield any positive material to

disbelieve the case of the prosecution.

10. On conclusion of recording of prosecution evidence,

accused statement as contemplated under Section 313 of the

Code of Criminal Procedure was recorded, wherein, accused

denied all the incriminating circumstances.

11. Thereafter, learned Trial Magistrate heard the parties and

convicted the accused for the offences punishable under

Sections 279, 338 and 304A of the Indian Penal Code and

sentenced the accused to undergo simple imprisonment for one

year.

12. Being aggrieved by the same, accused preferred an

appeal before the District Court in Crl.A.No.34/2015. Learned

Judge in the First Appellate Court, after securing the records

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and after hearing the parties, dismissed the appeal by the

judgment dated 30.05.2016.

13. Being not satisfied with the judgment passed by the Trial

Court and the First Appellate Court, accused is before this Court

in this revision petition.

14. Sri M.Raghavendrachar, learned counsel for the

petitioner, reiterating the grounds urged in the revision

petition, contended that the accused is an innocent and he has

been falsely implicated in the case and sought for allowing the

petition.

15. Alternatively, learned counsel submitted that in the event

this Court maintaining the conviction, since there is only one

death and incident has occurred without there being any

intention, sentence may be reduced to six months.

16. Per contra, learned High Court Government Pleader

opposes the revision grounds and also opposes the alternative

submission made on behalf of the revision petitioner.

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17. Having heard the parties in detail, this Court perused the

material on record, meticulously.

18. In the case on hand, accused being the driver of the auto

rickshaw and said auto rickshaw dashed against the deceased

on 05.07.2008 at 9.00 am is not in dispute.

19. Eye witnesses who did not nurture any previous enmity

or animosity against the accused have supported the case of

the prosecution.

20. The post mortem report and the wound certificate would

go to show that Sumithra lost her life on account of accidental

injuries sustained by her.

21. Therefore, both the Courts are justified in passing the

impugned Orders convicting the accused for the aforesaid

offences.

22. Having said thus, deceased Sumithra having been waiting

near bus stand for an auto rickshaw has lost her life in the

accident. There is no other antecedents so far as accused is

concerned.

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23. According to the learned counsel for the petitioner,

accused has got a family to maintain and the incident is beyond

human control. He also pointed out that in the month of July,

in Gonikoppa, there will be heavy rain and despite best efforts

made by the accused, auto rickshaw could not stop and

therefore, it is the mitigating circumstance.

24. Taking note of this aspect of the matter and taking note

of the fact that accident has occurred in the main road, the

sentence of imprisonment as ordered by the learned Trial Court

confirmed by the learned Judge in the First Appellate Court for

a period of one year needs to be reduced to six months.

25. At the same time, fine imposed needs to be increased to

Rs.20,000/- for the offence punishable under Section 304A of

the Indian Penal Code.

26. Hence, the following:

ORDER

(i) Revision Petition is allowed in part.

(ii) While maintaining the conviction of the accused for the offence punishable under

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Sections 279, 338 and 304A of the Indian Penal Code, sentence ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court for the offence punishable under Section 304A of the Indian Penal Code is reduced from one year to six months and fine amount is increased to Rs.20,000/-.

(iii) Out of the fine amount recovered, a sum of Rs.15,000/- is ordered to be paid to the husband of the deceased, under due identification.

(iv) Balance sum of Rs.5,000/- is ordered to paid to State towards defraying expenses.

(v) In default to pay the fine amount, accused is sentenced to undergo further imprisonment for a period of three months.

(vi) Time is granted for the accused to pay the amount and surrender before the learned Trial Magistrate for serving the sentence, till 15th July 2024.