Karnataka High Court
Sameer vs State By Thirthahalli P.S on 28 May, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 181 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.181 OF 2021
BETWEEN:
SAMEER
S/O. AMEER SAB,
AGED ABOUT 37 YEARS,
R/AT. SIBINAKERE,
THIRTHAHALLI TOWN AND TALUK - 577134.
...PETITIONER
(BY SRI. ASHWATH C.M., ADVOCATE)
AND:
STATE BY THIRTHAHALLI P.S.
THIRTHAHALLI,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HIGH COURT GOVERNMENT
PLEADER)
Digitally
signed by THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401
MALATESH
KC CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 29.07.2020
Location:
HIGH PASSED BY THE III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN
COURT OF CRL.A.NO.240/2019 AND THE JUDGMENT DATED 13.11.2019
KARNATAKA
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C.,
THIRTHAHALLI IN C.C.NO.114/2015.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 181 of 2021
ORDER
Heard Sri. Ashwath C.M., learned counsel for the revision
petitioner and Sri. Vinay Mahadevaiaha, learned High Court
Government Pleader for respondent.
2. The present revision petition is filed challenging the
concurrent finding of judgment of conviction and order of
sentence passed in C.C.No.114/2015 dated 13.11.2019 by the
Principal Civil Judge and Judicial Magistrate First Class,
Thirthahalli, for the offences punishable under Sections 279,
337, 338, 304A of Indian Penal Code (hereinafter referred to as
'IPC' for short) which is confirmed by the III Additional Sessions
Judge, Shivamogga in Crl.A.No.240/2019 vide judgment dated
29.07.2020.
3. The facts in brief which are utmost necessary for
disposal of the revision petition are as under:
A complaint came to be lodged contending that on
16.04.2015 at about 07:00 p.m., one Ganesh @ Hoovappa
being the pillion rider of TVS Wego motorbike driven by CW.2
on Agumbe - Thirthahalli Main road, lost his life in a road traffic
accident on account of the involvement of Maruti Omni car
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bearing registration No.KA-14-EF-8435. After registering the
complaint, police thoroughly investigated the matter and filed a
charge sheet against the driver of Maruthi Omni car. The
presence of the accused was secured and plea was recorded.
Since the accused pleaded not guilty, trial was held. In order
to prove the case of the prosecution, the prosecution examined
in all 12 witnesses as PWs.1 to 12 and relied on 16
documentary evidence on record which were exhibited and
marked as Exs.P1 to P16 comprising of complaint, photographs,
seizure mahazar, spot mahazar, inquest mahazar, motor
vehicle's accident report, postmortem report, wound certificate,
indemnity bond and rough sketch.
4. On conclusion of the recording of the evidence, the
learned trial judge recorded the statement of the accused under
Section 313 Criminal Procedure Code, all the incriminating
circumstances found in the evidence of the prosecution were
put to the accused and he denied all the incriminating
circumstances and did not place on record any evidence on
behalf of the accused nor placed any written submission as is
contemplated under Section 313(4) of Criminal Procedure
Code.
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5. Thereafter, the learned trial judge heard the parties
and after verifying the material on record, in a judicious
manner, passed an order of conviction convicting the accused
for the aforesaid offences and passed the following sentence:
"The accused is hereby sentenced to under go
S.I. for one month and to pay fine of
Rs.500/- for the offence punishable under
Section 279 of IPC and in default he shall
undergo further S.I. for 15 days.
The accused is hereby further sentenced to
under go S.I. for 3 months and to pay fine of
Rs.3,000/- for the offence punishable under
Section 304-A of IPC and in default he shall
undergo further S.I. for one month.
The accused is hereby further sentenced to
pay fine of Rs.500/- for the offence
punishable under Section 337 of IPC, in
default he shall undergo further S.I. for 15
days.
The accused is hereby further sentenced to
pay fine of Rs.1,000/- for the offence
punishable under Section 338 of IPC, in
default he shall undergo further S.I. for 1
month.
Both the sentences shall run concurrently."
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6. Being aggrieved by the same, the accused preferred
an appeal before the District Court challenging the judgment of
conviction and order of sentence in Crl.A.No.240/2019.
7. The learned judge of the First Appellate Court after
securing the records and hearing the parties in detail, by
judgment dated 29.07.2020 dismissed the appeal of the
revision petitioner and confirmed the judgment of conviction
and order of sentence.
8. Being aggrieved by the same, the accused is before
this Court in this revision petition.
9. Learned counsel for the petitioner reiterating the
grounds urged in the revision petition, vehemently contended
that both the Courts have not properly appreciated the material
evidence on record in its proper perspective and have convicted
the accused, resulting in miscarriage of justice.
10. He also argued that the contradictions obtained in
the oral evidence of PWs.2 and 3 are totally ignored by the
learned trial magistrate as minor contradictions, which is highly
incorrect and sought for allowing the revision petition.
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11. He also pointed out that the oral evidence of PWs.2
and 3 do not tally with the documentary evidence placed on
record by the prosecution itself in the form of spot mahazar
and rough sketch and therefore, inconsistency in the case of
the prosecution should enure to the benefit of revision
petitioner and sought for allowing the revision petition.
12. Per contra, the learned HCGP supported the
impugned judgments by contending that the learned trial
magistrate was justified in properly appreciating the testimony
of the injured eye witnesses who are examined before the trial
magistrate as PWs.2 and 3 and sought for dismissal of the
revision petition.
13. He also pointed out that the discrepancies pointed
out in the oral evidence of PWs.2 and 3 and the material
documents namely spot mahazaar and rough sketch did not
cause any serious dent to the case of the prosecution and in
the absence of any proper explanation offered by the accused
while recording the accused statement, the learned trial
magistrate was justified in convicting the accused for the
aforesaid offences.
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14. He further argued that learned judge in the First
Appellate Court has rightly re-appreciated the material on
record and therefore, having regard to the scope of revision,
cannot upset the findings recorded by the learned trial
magistrate and learned judge in the First Appellate Court and
sought for dismissal of the revision petition.
15. Having heard the learned counsel for the parties in
detail, this Court perused the record meticulously and on such
perusal of the material on record, following points would arise
for consideration:
(i) Whether the prosecution has successfully
established that the accused is liable for the
offences punishable under Sections 279,
337, 338 and 304A of IPC?
(ii) Whether the impugned judgments are
suffering from legal infirmity or perversity
and thus calls for interference?
(iii) Whether the sentence is excessive?
16. Regarding point Nos.1 and 2: In the case on
hand, the prosecution has placed on record the testimony of
the eye witnesses namely PWs.2 and 3. Among them, PW.2 is a
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person who was also working with the deceased and was
proceeding near the place of the accident, by walk and PW.3 is
the rider of the scooty in question. The deceased was the pillion
rider in the scooty.
17. Both PWS.2 and 3 have supported the case of the
prosecution in toto.
18. No doubt, in the cross-examination of PWs.2 and 3
minor contradictions were elicited by the counsel for the
defence. However, as rightly opined by the learned trial
magistrate in paragraph No.42 of the impugned judgment, the
contradictions pointed out by the defence is minor in nature
and did not cause any serious dent to the case of the
prosecution.
19. Crowning the above aspects of the matter, the
accused has gone to the extent of denying the very accident
itself while recording the accused statement. In the absence of
any contra evidence placed on record by the accused, at the
time of recording the statement of accused, following the
dictum of the Hon'ble Apex Court in the cases of Ravi Kapur
Vs. State of Rajasthan - (2012) 9 SCC 284, Prahalad Vs.
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State of Rajasthan - (2019) 4 SCC 438 and State of
Punjab Vs. Saurabh Bakshi - (2015) 5 SCC 182, this Court
is of the considered opinion that the prosecution has
successfully established the ingredients to attract the aforesaid
offences and has successfully proved its case which has been
rightly appreciated by the Courts below in the impugned
judgments. Under such circumstances, point Nos.1 and 2 are
answered in the affirmative and negative respectively.
20. Regarding point No.3: The learned trial
magistrate has imposed three months simple imprisonment for
the offences under Section 304A IPC and has also imposed
imprisonment for the other offences and directed that both the
sentences should run concurrently as referred supra.
21. The State for the reasons best known to it, did not
challenge the quantum of awarding sentence of three months
for the offence under Section 304A of IPC.
22. It is now settled principles of law that in a matter of
this nature, minimum sentence should have been six months.
Under such circumstances, the sentence imposed by the
learned trial magistrate in the absence of any challenge to the
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same, in the considered opinion of this Court, is just and
proper. Accordingly point No.3 is answered in the negative.
23. In view of the findings of this Court on point nos.1
to 3 as above, the following:
ORDER
(i) Revision petition is meritless and hereby
dismissed.
(ii) Revision petitioner is directed to surrender before
the Trial Court on or before 15.06.2024 for serving
the sentence.
Sd/-
JUDGE
HJ
