Karnataka High Court

Sri. Chinnaswamy vs State Of Karnataka on 7 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                       NC: 2024:KHC:45354
                                                 CRL.RP No. 936 of 2016




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 7TH DAY OF NOVEMBER, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 936 OF 2016
            BETWEEN:

            SRI. CHINNASWAMY,
            S/O S. MANIKYAM,
            AGED ABOUT 30 YEARS,
            R/AT 1ST CROSS, GOVINDAPURA,
            TIPTUR TOWN, TUMKUR DISTRICT - 572 201.
                                                              ...PETITIONER
            (BY SRI. R.V. SHIVANANDA REDDY, ADVOCATE)
            AND:

            STATE OF KARNATAKA
            BY NUGGEHALLI POLICE,
            CHANNARAYAPATNA TALUK,
            REPRESENTED BY STATE PUBLIC PROSECUTOR,
            HIGH COURT BUILDING,
            BANGALORE - 560 001.
                                                           ...RESPONDENT
Digitally   (BY SMT. WAHEEDA M.M, HCGP)
signed by
MALATESH           THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
KC
            PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED
Location:
HIGH        BY THE II ADDL. C.J. AND J.M.F.C., CHANNARAYAPATNA IN
COURT OF
KARNATAKA   C.C.NO.1477/2011   ON   06.04.2015   AND    SET    ASIDE   THE
            JUDGMENT AND ORDER PASSED BY THE IV ADDL. DIST. AND
            S.J., HASSAN DIST. (SITTING AT CHANNARAYAPATNA) IN
            CRL.A.NO.72/2015 DATED 01.07.2016.

                 THIS PETITION, COMING ON FOR FURTHER HEARING,
            THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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                                               NC: 2024:KHC:45354
                                           CRL.RP No. 936 of 2016




CORAM:      HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard Sri.R.V.Shivananda Reddy, learned counsel for the

revision petitioner and Smt.Waheeda M. M., learned High Court

Government Pleader for respondent.

2. Accused who suffered an order of conviction in CC

No.1477/2011 for the offences punishable under Section 279,

304A of IPC read with Section 187 of Motor Vehicles Act

confirmed in Crl.A.No.72/2015 has preferred this revision

petition.

3. Brief facts of the case which are utmost necessary

for disposal of the petition are as under:

3.1. A complaint came to be lodged with Nuggehalli

Police contending that on 14.07.2011 at about 5.00 p.m. when

Jagadish was proceeding on his bicycle near Navile

Channagonahalli village and when he reached near Appanna

Rajanna's house, a motorcycle rider came from Navile gate side

and dashed against the bicycle whereby Jagadish being the

rider of the bicycle fell down and suffered grievous injuries.

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Villagers by name Papanna and Appanna shifted Jagadish to

Tiptur Government hospital for treatment.

3.2. Despite best treatment, Jagadish did not survive

and succumbed to injuries at about 12.20 a.m. next day. On

15.07.2011, at about 9.30 a.m., R.Shivakumar lodged a

complaint with regard to the said incident. Police registered

the case in Crime No.163/2011 and investigated the matter

inter alia and seized the motorcycle which was involved in the

accident and filed the charge sheet against the accused.

4. Presence of the accused was secured before the

learned Trial Magistrate. Plea was recorded. Accused pleaded

not guilty and therefore, trial was held.

5. In order prove the case of the prosecution, in all

eleven witnesses were examined as P.W.1 to 11 and as many

as eleven documents were placed on record which were

exhibited and marked as Exs.P.1 to 11 comprising of complaint,

spot mahazar, inquest mahazar, post-mortem report, notice

issued to owner of the motorcycle, IMV report, FIR, spot

sketch, B registrar extract, seizer mahazar.

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6. Among the prosecution witnesses, P.W.8 - Harish

has turned hostile to the case of the prosecution. Complainant

- R.Shivakumar, Pappanna and Appanna who shifted the

injured to the hospital have supported the case of the

prosecution. Detailed cross-examination of those witnesses did

not yield any positive material so as to disbelieve the case of

the prosecution.

7. Thereafter, learned Trial Magistrate recorded the

accused statement as is contemplated under Section 313 of

Cr.P.C., wherein accused has denied all the incriminatory

circumstances found against him in the prosecution evidence

but did not chose to place any written submission on record as

is contemplated under Section 313(4) of Cr.P.C. nor laid any

defence evidence.

8. Thereafter, learned Trial Magistrate heard the

parties and convicted the accused for the aforesaid offences

and imposed one year imprisonment for the offence under

Section 304A of IPC and four months imprisonment for the

offence under Section 279 of IPC with fine in a sum of

Rs.4,000/- and Rs.1,000/- respectively and for the offence

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under Section 187 of Motor Vehicles Act imposed fine in a sum

of Rs.500/-. Out of the fine amount recovered, sum of

Rs.4,000/- was ordered to be paid as compensation to the

family of the victim.

9. Being aggrieved by the same, accused filed an

appeal before the First Appellate Court in Crl.A.No.72/2015.

10. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and by

judgment dated 01.07.2016, dismissed the appeal filed by the

accused and confirmed the order of conviction and sentence

passed by the learned Trial Magistrate.

11. Being further aggrieved by the same, accused has

preferred the present revision petition.

12. Sri.R.V.Shivananda Reddy, learned counsel for the

revision petitioner reiterating the grounds urged in the revision

petition vehemently contended that both the Courts have not

properly appreciated the material evidence on record and

wrongly convicted the accused and sought for allowing the

revision petition.

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13. He contended that the incident actually occurred on

account of a tractor dashing against the cyclist and for the

purpose of taking advantage in the accidental claim

proceedings, motorcycle has been falsely implicated and

accused has been shown as the rider of the motorcycle.

14. He further contended that accused is a coolie,

working under the owner of motorcycle and he has been falsely

implicated in the case and sought for allowing the revision

petition.

15. Alternately, Sri.R.V.Shivananda Reddy, learned

counsel for the revision petitioner also contended that in the

event, this Court upholding the order of conviction, enhancing

the fine amount, accused may be set at free by setting aside

the imprisonment.

16. Per contra, Smt.Waheeda M.M., learned High Court

Government Pleader supports the impugned orders.

17. She contended that the accused being the rider of

the motorcycle is established by the execution of the indemnity

bond by owner of the motorcycle and in the absence of his

version placed by the accused on record at the time of accused

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recording the accused statement, is significant in appreciating

the case of the parties and sought for dismissal of the revision

petition.

18. Insofar as alternate submission made on behalf of

the revision petitioner is concerned, Smt.Waheeda M.M.,

learned High Court Government Pleader contended that learned

Trial Magistrate has used his discretion while granting one year

imprisonment and same needs to be maintained in view of the

principles of law enunciated by the Hon'ble Apex Court in the

case of State of Punjab v. Saurabh Bakshi reported in

(2015) 5 SCC 182 and sought for dismissal of the revision

petition in toto.

19. Having heard the parties in detail, this Court

perused the material on meticulously.

20. On such perusal of the material on record, following

points would arise for consideration:

1. Whether the prosecution has successfully established all the ingredients to attract the offences punishable under Sections 279, 304A of IPC read with Section 187 of Motor Vehicles Act?

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2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

3. Whether the sentence is excessive?

4. What order?

REGARDING POINT Nos.1 AND 2:

21. In the case on hand, accident that occurred on

14.07.2011 near the house of Navilekere, Appanna Rajjan is

not in dispute. Jagadish who was the rider of the motorcycle

fell down from his motorcycle on account of the impact of the

accident involving motorcycle KA.06.EC.5540. Injured was

shifted by Appanna and Papanna to the Tiptur Government

Hospital. Having regard to the grievous injuries sustained by

Jagadish in the said accident, despite best treatment, injured

did not survive. He died on next day earlier morning at 12.20

a.m. Incident was reported to the police next day at about

9.30 a.m. by R.Shivakumar.

22. After registering the case, police investigated the

matter inter alia and seized the motorcycle which was involved

in the accident. Owner of the motorcycle got released the

motorcycle in pursuance of the notice issued vide Ex.P.5. IMV

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report would go to show that the there was no mechanical

defect involved but damages caused to the motorcycle.

Furthermore, eye witnesses have supported the case except

PW.8 - Harish who has turned hostile to the case of the

prosecution. Complainant and the persons who shifted

Jagadish to the hospital having supported the case of the

prosecution, taking note of other material evidence on record

namely IMV report, inquest mahazar, post-mortem report, spot

sketch, B register extract and spot mahazar, learned Trial

Magistrate convicted the accused for the aforesaid offences. No

explanation is forthcoming from accused about the

incriminatory materials. He failed to place his version on

record. Hence, principles of law enunciated in the case of Ravi

Kapur v. State of Rajasthan reported in AIR 2012 SC 2986

come into play.

23. The theory that was put forward by the accused

remained only in the form of suggestions to the prosecution

witness without there being any plausible proof thereof.

Therefore, conviction of the accused for the aforesaid offences

cannot be faulted with.

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24. Learned Judge in the First Appellate Court on

reappreciation of the material evidence on record, concurred

with the findings recorded by the learned Trial Magistrate.

25. This Court, that too in the revisional jurisdiction

cannot revisit into the factual aspects of the matter so as to

upset the finding recorded by the learned Trial Magistrate.

Accordingly, in view of the foregoing discussions, point No.1 is

answered in positive and point No.2 is answered in negative.

REGARDING POINT No.3:

26. Learned Trial Magistrate has imposed simple

imprisonment for a period of four months for the offence

punishable under Section 279 of IPC and one year

imprisonment for the offence punishable under Section 304A of

IPC apart from imposing the fine. Since, in the incident, only

one person is injured and later he died, separate sentence of

imprisonment under Section 279 of IPC is impermissible as it

merges with the higher offence under Section 304A of IPC.

Therefore, imposing simple imprisonment for a period of four

months independently for the offence under Section 279 of IPC

needs to be set aside by applying the Doctrine of Merger.

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27. Accused has not placed any mitigating

circumstances before the Trial Court or before the First

Appellate Court for seeking reduction of sentence.

28. Before this Court, Sri.R.V.Shivananda Reddy,

learned counsel however strenuously contended about the

mitigating circumstances that the accused is facing inasmuch

as he worked as coolie under the owner of the motorcycle and

he has got a family to maintain and if he is imprisoned for a

period one year, accused would be put to untold hardship and

bread earner of the family will be behind the bars whereby

entire family would be left in lurch. That would be the usual

consequences if a person is imprisoned.

29. However, taking note of the fact that no special

reasons are assigned by learned Trial Magistrate for awarding

one year imprisonment for the offence under Section 304A of

IPC following the dictum of Hon'ble Apex Court in the case of

State of Punjab v. Saurabh Bakshi reported in (2015) 5

SCC 182, this Court is of the considered opinion that reducing

the imprisonment from one year to six months by enhancing

the fine amount by Rs.10,000/- taking note of financial

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condition of the revision petitioner, would meet the ends of

justice and enhanced fine amount of Rs.10,000/- is ordered to

be paid as compensation to the victim family, ends of justice

would be met. Accordingly, point No.3 is answered partly in

affirmative.

REGARDING POINT No.4:

30. In view of the foregoing discussions of this Court on

point Nos.1 to 3 as above, following:

ORDER

i. Revision petition is allowed in part.

ii. While maintaining the order of conviction of the accused

for the offence punishable under Section 279, 304A of

IPC read with Section 187 of the Motor Vehicles Act,

sentence of imprisonment ordered by the learned Trial

Magistrate confirmed by the First Appellate Court is

modified as under:

a) Accused is convicted for the offence punishable

under Section 279 of IPC and ordered to pay fine

in a sum of Rs.500/- with default sentence of 15

days.

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b) Accused is convicted for the offence punishable

under Section 304A of IPC and ordered to

undergo simple imprisonment for a period of six

months and to pay fine in a sum of Rs.14,000/-

(Rs.4,000/- imposed by learned Trial Magistrate

and enhanced by Rs.10,000/- by this Court) with

default sentence of two months.

c) Imposing fine amount of Rs.500/- for the

offence punishable under Section 187 of the

Motor Vehicles Act is maintained.