Karnataka High Court
Sri Ganeshan K vs The State on 21 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 74 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 74 OF 2023
BETWEEN:
SRI. GANESHAN K,
S/O LATE KULANDAISAMY,
AGED ABOUT 56 YEARS,
R/A NO. 38, PERIYA, THATHAMPALAYM,
PALLA MURUTHAPPATTI POST,
KARUR TALUK AND DISTRICT, TAMILNADU.
...PETITIONER
(BY SRI. DENNY M.R, ADVOCATE)
AND:
THE STATE THROUGH TRAFFIC EAST P.S.,
MANGALURU, NOW REPRESENTED BY SPP,
HIGH COURT BUILDING, BANGALORE.
...RESPONDENT
Digitally (BY SRI. VINAY MAHADEVAIAH, HCGP)
signed by
MALATESH
KC THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE AND
Location:
HIGH ORDER DATED 20.12.2022 PASSED AND SENTENCE IN
COURT OF CRL.A.NO.187/2021 (ANNEXURE-A) AFFIRMING THE
KARNATAKA CONVICTION IMPOSED BY THE COURT OF JMFC III COURT,
MANGALURU IN C.C.NO.3470/2017 (ANNEXURE-B) BY
JUDGMENT DATED 25.11.2021 FOR THE OFFENCE P/U/S.279,
337, 304-A OF IPC AND OFFENCE P/U/S.134(A)(b) R/W
SEC.187 OF IMV ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 74 of 2023
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard learned counsel for the revision petitioner and
learned High Court Government Pleader for the
State/respondent.
2. The present revision petition is filed by the
revision petitioner/accused challenging the order of
conviction and sentence passed in C.C.No.3470/2017
dated 25.11.2021 on the file of JMFC (III) Court,
Mangaluru for the offence punishable under Sections 279,
337, 304A of IPC and Sections 134(a)(b) read with Section
187 of IMV Act which was confirmed in Criminal Appeal
No.187/2021 dated 20.12.2022 on the file of I Addl.
District and Sessions Judge, Mangaluru.
3. The order of conviction and sentence passed by
the learned Trial Magistrate reads as under:
"Acting under Section 255(2) of Cr.P.C. the
accused is convicted for the offences punishable
under Sections 279,337 and 304(A) of IPC and for
the offence punishable under Section 134(a)(b)
read with Section 187 of IMV Act.
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For the offence punishable under Section 279 of
IPC, the accused is sentenced to pay fine of
Rs.1,000/- and in default of payment of fine he
shall undergo SI for a period of 15 days.
For the offence punishable under Section 337 of
IPC, the accused is sentenced to pay fine of
Rs.500/- and in default of payment of fine he shall
undergo SI for a period of 15 days.
For the offence punishable under Section 304(A) of
IPC the accused is sentenced to undergo SI for a
period of 6 months and shall also pay fine of
Rs.5,000/- and in default of payment of fine he
shall undergo further SI for a period of 3 months.
For the offence punishable under Section
134(a)(b) read with Sec.187 of IMV Act the
accused is sentenced to pay fine of Rs.500/- and in
default of payment of fine he shall undergo SI for
a period of 10 days.
The bail bond of the accused stands canceelled
and the cash security amount deposited by him
stands forfeited to state.
Office to supply free copy of the judgment to the
accused forthwith in compliance of Section 363 of
Cr.P.C."
4. Brief facts of the case which are utmost
necessary for disposal of the revision petition are as
under:
4.1. Upon the complaint lodged by Sri.Nowfal, traffic
East Police, Mangalore registered a case against the
accused for the offence punishable under Sections 279,
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337, 304A of IPC and Sections 134(a)(b) read with Section
187 of IMV Act.
4.2. Complaint averments reveal that on 12.04.2017
around 2.30 p.m., accused being the driver of the lorry
bearing No.TN.47.T.9832 drove the same in rash and
negligent manner from KPT towards Kottara Chowki.
While driving the vehicle, dashed against the motorcycle
bearing No.KA.19.EP3506 which was ridden by
Sri.T.A.Abdul Ajij and as a result of said collusion, the rider
of the motorcycle fell down on the left side of the road and
pillion rider fell down on the right side of the road and
lorry driver ran over the pillion rider whereby pillion rider
by name Smt.Kamrunnisa died on the spot.
5. After registering the case, police thoroughly
investigated the case and filed charge sheet against the
accused. Presence of the accused was secured and plea
was recorded. Accused pleaded not guilty and therefore,
trial was held.
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6. In order to prove the case of the prosecution, in
all thirteen witnesses were examined by the prosecution
as P.W.1 to P.W.13. Prosecution placed reliance on twenty
seven documents on record, which were exhibited and
marked as Exs.P.1 to Ex.P.27 comprising of spot mahazar,
spot sketch, seizure mahazar, inquest mahazar,
P.M.report, lorry and bike photos, IMV report, notice under
Section 133 of the IMV Act, reply to the notice, indemnity
bond, wound certificate and FIR.
7. Detailed cross-examination of material
witnesses i.e., P.W.1, 2 and 4 did not yield positive
material on record so as to disclose the case of
prosecution.
8. In the cross-examination of P.W.1, 2 and 4, it
was suggested that accident has occurred on account of
negligence of the rider of the motorcycle which were
denied by them. P.W.1 has specifically stated in his cross-
examination that he was coming from the opposite side
and he has witnessed the accident. P.W.2 also supported
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the case of the cross-examination in toto. P.W.4 to 6 have
also deposed in corroboration with the version of the
complainant and other eye witnesses.
9. Thereafter, the learned Trial Magistrate
recorded the accused statement as is contemplated under
Section 313 of Cr.P.C., wherein accused has denied all the
incriminatory materials and did not chose to place on
record any written submissions as is contemplated under
Section 313(4) of Cr.P.C. nor placed any defence evidence
on record.
10. Subsequent there to, learned Trial Magistrate
heard the arguments of the parties in detail and after
considering the oral and documentary evidence placed on
record, convicted the accused for the aforesaid offences
and sentenced as referred to supra.
11. Being aggrieved by the same, accused
preferred an appeal before the First Appellate Court in
Criminal Appeal No.187/2021.
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12. The learned Judge in the First Appellate Court
after securing the records and hearing the arguments of
both the sides, vide judgment dated 20.12.2022,
dismissed the appeal of the accused.
13. Being further aggrieved by the same, accused is
before this Court, in this revision on following grounds:
The impugned order is opposed to law, facts and
evidence in the case. The courts below have
acted illegally and with material irregularity in
passing the impugned judgments convicting the
petitioner for the offence punishable u/s 304 A of
IPC.
The conviction and sentence are contrary to law,
weight of evidence on facts of the case and
against the principles of natural Justice.
The First appellate court has failed to consider
the fact that, the Trial court has grossly failed to
appreciate the evidence on record and as a
wrong connotation proceeded to convict the
Petitioner for the alleged offences.
The Appellate Court and the trial court erred on
placing reliance on the evidence of PW.1 to
PW.13 for convicting the appellant, particularly in
view of the material contradiction brought out on
the records. The trial court erred in closely
scrutinizing the evidence of PW.1 and PW.13.
The trial court failed to observe that the injury to
the child was to the chest, but in the evidence
PW.1 deposed that due to accident the tyre of the
accused vehicle was passed over the body of the
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pillion rider by name Kamarunnisa. That the PW.1
to PW.13 are interested witnesses and they
suppressed the true fact of the accident. The
evidence of PW.1 to PW.13 are not corroborated
by any other independent witnesses.
The trial court ought to have held that the
accident occurred only due to rash and negligent
driving of the PW.1. But the learned magistrate
has lost sight of these facts and not even
discussed as to how the Hon'ble Court come to
the conclusion that the accused is rash and
negligent in driving the same.
The trial court ought to have held that the PW.1
to PW.3 are the interested witnesses. All the
witnesses admitted that the place of incident is
busy locality there are several residential house
shops bank etc., but prosecution not examined
independent witness.
The place of incident is busy traffic area of
Mangalore City. There was no chance to drive the
lorry with high speed by the appellant.
The appellant in the above case from Tamil Nadu
State. he knows only Tamil Language. Hence at
the time of 313 statement appellant have not
given explanation regarding the prosecution case.
The trial court ought to have held that the
prosecution failed to prove that the accused
vehicle was not in moving condition at the time
and date of alleged accident as per prosecution
case. Moreover it is not the case of the
prosecution that due to the said accident the
front wheel of the accused vehicle detached it is
not revealed in IMV report.
The testimony of the witnesses is highly
inconsistent and untrustworthy that being so the
trial court ought to have acquitted the appellant.
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The trial court appears to have laboured more to
convict the appellant that acquitting him. Hence
prayed to allow the appeal and to set aside the
judgment of conviction and order of sentence
passed by the trial court.
The Trial judge has failed to observe the cardinal
principle of criminal jurisprudence that is the guilt
of the accused must prove beyond reasonable
doubt.
The trial judge has wrongly interpreted the
decision cited by the Complainant and convicted
the appellants/Accused's without there being any
incriminating evidence and the trial judge has in
a casual manner arrived at a conclusion basing
on presumptions and sumarises that, the
Petitioner/Accused has committed an offence
punishable U/s 279, 337 & 304 (A) of IPC and
offences punishable under section 134(a)(b) R/w
Section 187 of IMV Act.
The Trial judge has failed to take note of the fact
that, the Respondents has utterly failed to
produce convincing cogent evidence to bring
home the guilt of the Petitioner.
The Hon'ble Trial Court has failed to give its
findings in the disputed facts and the documents
related to the alleged transactions.
The Hon'ble Trial court and the Session Court
have erroneously relied upon the evidence of the
PW1 which is inconsistent with the complaint and
the entire transactions pleaded in the Complaint.
14. Reiterating the grounds urged in the revision
petition, learned counsel for the revision petitioner
vehemently contended that both the Courts have not
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properly appreciated the material evidence on record and
wrongly convicted the accused resulting in miscarriage of
justice and sought for admitting the revision petition for
further consideration.
15. Per contra, learned High Court Government
Pleader supports the impugned judgment by contending
that P.W.1, 2 and 4 were totally strangers to the deceased
and injured and they did not nurture any previous enmity
or animosity as against the accused or extra affinity
towards the deceased and rider of the motorcycle.
Therefore, their testimony cannot be an treated as
interested testimony which has been rightly appreciated
by the learned Trial Magistrate in the impugned judgment
and rightly reappreciated by the learned Judge in the First
Appellate Court. As such, this Court having regard to the
scope of the revisional jurisdiction, cannot upset the
finding recorded by both the Courts and sought for
dismissal of the revision petition.
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16. Having heard the parties in detail, this Court
perused the material on record meticulously.
17. On such perusal of the material on record, loss
of life of Kamrunnisa in the road traffic accident that
occurred on 12.04.2017 near KPT circle, involving the
motorcycle bearing No.KA.19.EP.3506 and lorry bearing
No.TN.47.T.9832 has been established by the prosecution
by placing cogent and convincing evidence on record.
18. After registration of the complaint, police have
thoroughly investigated the matter and filed charge sheet
against the driver of the lorry which remains unchallenged.
Suggestion made to the prosecution witnesses is to the
effect that accident has occurred on account of the
negligent riding of the motorcycle by the rider of the
motorcycle. Same is not established by placing material
evidence on record. Atleast cleaner of the lorry could have
been examined to establish that it is on account of the
negligent riding by the rider of the motorcycle resulted in
accident. No such effort is made by the accused.
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19. Thus, following the principles of law enunciated
in various judgments and also having regard to the
principles of law enunciated in the case of Ravi Kapur
V/s. State of Rajasthan reported in 2012 (9) SC 284,
this Court is of the considered opinion that the order of
conviction passed by the learned Trial Magistrate
confirmed by the First Appellate Court needs no
interference.
20. Insofar as the, sentence is concerned, learned
Trial Magistrate using the discretion, has granted six
months imprisonment and same is not challenged by the
State.
21. Having regard to the principles of law
enunciated by the Hon'ble Apex Court in the case of State
of Punjab V/s. Saurabh Bakshi reported in (2015) 5
SCC 182, this Court is of the considered opinion that six
months imprisonment for the aforesaid offences is just and
proper and thus, requires no interference.
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22. Accordingly, following:
ORDER
i. Grounds urged in the revision petition are
meritless. Accordingly, admission declined.
Consequently, revision petition is dismissed.
ii. Time is granted for the revision petitioner to
surrender before the Trial Court for remaining
part of the sentence till 10.11.2024.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
