Karnataka High Court
Sri Shivu Alias Shivakumar Naik vs State Of Karnataka on 7 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:10247
CRL.RP No. 1094 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1094 OF 2017
BETWEEN:
1. SRI SHIVU ALIAS SHIVAKUMAR NAIK
S/O SRI PURYA NAIK
AGED ABOUT 26 YEARS
R/O HANUMANASAGARA TANDA
HONNALLI TALUK
DAVANAGERE-577017
...PETITIONER
(BY SRI. S.JAVEEDM, AMICUS CRUIAE)
AND:
1. STATE OF KARNATAKA
BY HONNALLI POLICE STATION,
Digitally signed REPRESENTED BY SPP
by SHARANYA T HONNALLI TALUK
Location: HIGH DAVANAGERE-577017
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI RAHUL RAI K., HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 26.08.2017
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DAVANAGERE IN CRL.A.NO.153/2014 AND SET ASIDE
THE CONSEQUENTIAL JUDGMENT DATED 22.11.2014 PASSED
BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., HONNALLI IN
C.C.NO.603/2013.
-2-
NC: 2024:KHC:10247
CRL.RP No. 1094 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for revision petitioner and
also the counsel appearing for the respondent-State.
2. This revision petition is filed against the
concurrent finding of Trial Court and also the First
Appellate Court.
3. The factual matrix of case of prosecution that
on 24.07.2013, the accused being the rider of the motor
cycle bearing registration No. KA 17 EJ 0601 drove it at
around 4.30 p.m., on the Honnali Thumminakatte road
from Thumminakatte towards Honnali in a high speed rash
and negligent manner so as to endanger human life and
personal safety of others. CW16-Mr.Vasanthanaik was a
pillion rider of the motor cycle ridden by the accused.
When the motor cycle came near Srinidhi Daba the
accused dashed to another motor cycle bearing
registration No.KA 17 EG 0076 which was coming from the
opposite direction from Honnali towards Thumminakatte.
NC: 2024:KHC:10247
Due to the impact of the accident between two motor
cyclists, both the motor cyclists fell down and sustained
injuries. The rider of the motor cycle bearing registration
No. KA 17 EG 0076 Mr.Annappa sustained grievous
injuries on his head hands and cheek. CW16 also
sustained grievous injuries. Both the injured were taken to
government hospital at Honnali and later to Nimhans
hospital and Shivamoga. Mr.Annappa did not respond to
the treatment and victim died on 25.07.2013. The police
have investigated the matter and filed charge sheet
against the present revision petitioner invoking the offence
punishable under Section 279, 338 and 304(A) of Indian
Penal Code.
3. The prosecution mainly relies upon the evidence
of PW2 who is an eye witness and PW6 also is an eye
witness. Both of them given the evidence that the revision
petitioner who came in the opposite direction came in a
rash and negligent manner and dashed against the victim,
as a result both of them sustained injuries. No doubt the
PW5 who has been examined before the Trial Court who is
NC: 2024:KHC:10247
also the occupant of vehicle depose that the accident is an
account of negligence of the victim.
4. Having perused the evidence of PW2 and PW6
and they have re-iterated with regard to the manner in
which an accident has taken place. In the cross-
examination of PW2 and PW6, nothing is elicited.
However, the counsel appearing for the revision petitioner
would vehemently contend that the evidence of PW2 and
PW6 cannot be believed. Both the Courts have committed
an error in convicting the revision petitioner and it requires
interference.
5. The counsel appearing for the State would
submits that PW2 and PW6 evidence is consistent with
regard to the accident is concerned. Nothing is elicited
from their to disbelieve the case of the prosecution. The
Trial Court also taken note of Ex.P5 IMV report. Both the
vehicles have sustained damages. Hence, it does not
requires any interference. The counsel also submits that
even appellate Court also assessed the evidence available
on record and considering the evidence of PW2 and PW6
NC: 2024:KHC:10247
and also the IMV report which is marked as Ex.P5 and
particularly in paragraph No.25 discussed the same that
IMV report discloses that the said accident was not due to
the mechanical defect of the vehicles and also noticed the
damages caused the vehicle.
6. Having heard the counsel for revision petitioner
and also the counsel appearing for the respondent-State
and also looking into the evidence of PW2 and PW6 who
are the eye witnesses and also their evidence is also very
clear that immediately after the accident, both the injured
i.e., PW5 and also the victim are shifted to hospital. Taking
into note of evidence of PW2 and PW6, nothing is elicited
from the mouth of these two witnesses to disbelieve the
evidence of them and revisional scope of the Court is very
limited and only material evidence is not considered and
then Court can exercise revision jurisdiction, whether the
order impugned suffers from any legality and its
correctness. Apart from that documentary evidence of
Ex.P5 -IMV report is also very clear that both the vehicles
are sustained damages. No doubt the PW5 has not
NC: 2024:KHC:10247
supported the case of prosecution and gave evidence in
favour of revision petitioner herein with whom he was
traveling. The Court has to take note of the accident was
occurred on 24.07.2013 and immediately, after the
accident complaint was given. Both the Courts have taken
note of particularly the evidence of PW2 and PW6 who
were independent eye witnesses. The PW5 and PW6
witnesses who were also proceeding at the time of the
accident. Hence, I do not find any material to interfere
with the findings of the Trial Court. However, the Trial
Court convicted the accused for the offences punishable
under Section 279 of IPC also. When the offence under
Section 304A of IPC is invoked, offence under Section 279
of IPC merges with the offence under Section 304A of IPC.
When such being the case, the Trial Court ought not to
have convicted the accused for the offence punishable
under Section 279 of IPC. Hence, it requires modification
of the judgment of the Trial Court with regard to the
conviction under Section 279 of IPC. Apart from that no
NC: 2024:KHC:10247
other grounds are found to set-aside the order passed by
the Trial Court.
7. In view of the discussions made above, I pass
the following:
ORDER
i. The Criminal Revision Petition is allowed in part.
ii. The judgment and conviction and sentence for
the offence punishable under Section 279 of IPC
is set-aside. Remaining offences under Section
338 and also Section 304A of IPC is confirmed.
iii. The Trial Court sentenced for six months for the
offence punishable under Section 304A of IPC
and the same is also commensurate with the
charges of causing of an accident and the death
was taken place in the accident.
iv. The Trial Court is directed to refund the amount
of fine imposed to revision petitioner for the
offence punishable under Section 279 of IPC.
NC: 2024:KHC:10247
v. The Registry is directed to pay an amount of
Rs.5,000/- to the Amicus Curie.
Sd/-
JUDGE
RHS
