Karnataka High Court
Mr Srikanth vs The State Of Karnataka on 21 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 873 of 2021
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. 873 OF 2021
BETWEEN:
1. MR SRIKANTH
S/O SHEKAR NAIK,
AGED ABOUT 45 YEARS,
R/O "ANNAPOORNESHWARI NILAYA",
KEMMANNU, PADUTHONSE VILLAGE,
UDUPI DISTRICT-576101
...PETITIONER
(BY SRI JAYANTHA POOJARY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY CPI OF KAUP CIRCLE,
UDUPI DISTRICT,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
Digitally BANGALORE-560001
signed by
MALATESH ...RESPONDENT
KC (BY SMT.WAHEEDA.M.M, ADVOCATE)
Location: THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
HIGH CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
COURT OF 25.07.2016 MADE IN C.C.NO.650/2011 PASSED BY THE II
KARNATAKA
ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI AND CONFIRMED
IN JUDGMENT DATED 29.01.2021 MADE IN CRL.A.NO.67/2016
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE
UDUPI AND TO ACQUIT THE PETITIONER FOR THE OFFENCE
P/U/S.279 AND 304(A) OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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CRL.RP No. 873 of 2021
ORAL ORDER
Heard Sri Jayantha Poojari, learned counsel for the
revision petitioner and Smt Waheeda M.M., learned High Court
Government Pleader for the respondent/State.
2. Accused who suffered an order of conviction in
C.C.No.650/2011, on the file of II Additional Civil Judge and
JMFC., Udupi, for the offence punishable under Section 279 and
304-A IPC, confirmed in Crl.A.No.67/2016, on the file of
Principal District and Sessions Judge, Udupi, is the revision
petitioner.
3. Facts in brief which are utmost necessary for
disposal of the present revision petition are as under:
Harish Suvarna S/o Krishnappa Suvarna, lodged a
complaint with Kapu police Station, stating that on 01.12.2010
he was informed that Sanki Poojari @ Sanki Kotian, met with a
road accident and died. Immediately police registered the case
and took up the investigation.
4. During the course of investigation recorded the
statement of P.W.2 who is an independent eye witness and
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based on the Regional Transport Officer report and such other
materials collected by the Investigation Officer filed the charge
sheet for the aforesaid offences.
5. Presence of the accused was secured and plea was
recorded. Accused pleaded not guilty. As such, appeared
before the Trial Court and trial was held.
6. In order to prove the case of the prosecution, in all
seven witnesses were examined as P.Ws.1 to 7 and placed on
record thirteen documents to substantiate the case of the
prosecution which were exhibited and marked as Exs.P.1 to
P.13.
7. Among them, P.W.1 is the complainant and P.W.2 is
the eye witness. P.W.1 got the information and reached the
spot within 15 minutes from his house and noticed 15 to 16
persons were gathered there and he also noticed that the bus
bearing registration No.K.A.19-AB-5299, had hit the pedestrian
Sanki Poojari @ Sanki Kotian.
8. In the cross-examination of P.W.2 it has been
suggested that he was on the right side of the road and the
accident had occurred on the left side of the road and
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therefore, he was unable to witness the accident. Same is
denied by the P.W.2.
9. Admittedly P.W.2 is an eye witness who did not
nurture any previous enmity or animosity as against the
accused nor extra affinity towards the deceased.
10. P.W.3 is the Regional Transport Officer, P.W.4 is the
other witness, P.Ws.5 to 7 are the Investigation Officers.
11. On conclusion of recording of evidence, accused
statement as contemplated under Section 313 Cr.P.C., was
recorded, wherein accused has denied all the incriminating
materials including the accident.
12. Thereafter learned Trial Magistrate heard the
parties and convicted the accused and passed the order of
conviction. Operative portion of the order reads as under.
"Heard learned APP and accused on sentence.
Learned APP prays to impose maximum sentence
provided to the offence. On the other hand, accused
submitted that he is the sole bread earner of his family
and having deep routes in the society and prays to show
lenience to awarding sentence.
It is to be noted here that Sec.279 of I.P.C.,
provided for punishment for imprisonment of either
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description for a term which may extend to 6 months or
with fine which may extend to Rs.1000/- or with both.
Sec.304A of I.P.C., provided for punishment for
imprisonment of either description for a term which may
extend to 2 years , or with fine, or both.
However, since the accused is sole bread earner
of this family and having deep route in the society by
keeping this in view accused is hereby sentenced as
follows:
The accused is sentenced to pay fine of Rs.1000/-
for the offence u/s.279 of I.P.C., and in default to pay a
fine, accused shall undergo S.I, for 15 days.
Further accused is sentenced to undergo S.I, for
a period of 6 months and to pay fine of Rs.1,000/- for the
offence u/s.304A of I.P.C., in default of payment of fine,
accused shall undergo S.I. for 15 days.
13. Being aggrieved by the same, accused filed an
appeal before the District Court in Crl.A.No.67/2015.
14. Learned Judge in the First Appellate Court after
securing the records, heard the parties in detail and by
judgment dated 29.01.2021 dismissed the appeal, confirmed
the order of conviction and sentence passed by the learned
Trial Magistrate.
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15. Being further aggrieved by the same, accused is
before this Court in this revision on the following grounds:
The judgement and order of conviction and sentence
passed by the trial court and lower appellate court are
illegal, invalid, contrary to law, facts and evidence on
record. Hence it is liable to be set aside.
That both the courts have committed serious error in
convicting the petitioner relying on the evidence of
interested witnesses i.e PW 1 and 2. They are none other
than the friends of deceased son. Hence the presence of
the PW 1 to PW 2 are in the spot of accident is doubtful.
Their evidence suffers from full of material inconsistency
with regard to the seeing the incident is concerned. Hence
their evidence cannot be believed as reliable or trust
worthy.
That both the courts have committed serious error in
convicting the petitioner relying on the evidence of highly
interested witnesses PW 1 to PW 2 because the
prosecution has not made any independent witnesses who
are travelling in the said bus, the nearby shop owners.
The PW 1 to PW4 have specifically admitted that they
have not aware of the speed of the bus.
It is submitted that none of the witnesses are depose
regarding the negligent driving of the petitioner. In the
place of accident there is a deep curve hence the driver of
the vehicle on speed does not arise. Further, at the time
of accident bus was just moved from the bus stand.
The evidence of PW1, PW2 the mahazer witness are also
contrary to each other. The spot mahazer was not proved
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by the prosecution. The PW2 says he signed the Mahazer
in the police station and at time PW1 also signed the
same in the police station. Without considering the same
the courts below have drawn an adverse inference against
the appellant.
It is admitted that the learned Judges have failed to
understand the case of the prosecution while appreciating
the witnesses and accepted the case of the prosecution
and not given much importance to the defense version.
It is submitted that the prosecution has suppressed the
genesis of the actual incident and come with false
version. The learned Judges have accepted the same and
arrived wrong conclusion on convicting the petitioner
without assigning the proper and cogent reasons, which is
against the well settled principle of law.
It is submitted that the prosecution has failed to prove
the case beyond reasonable doubt by producing cogent
and reliable evidence. Hence, the learned Judges have
passed erroneous order assigning the unjust reasons in
the judgement. Therefore, the order is incorrect and
perverse.
The entire approach of the case by the trial judges are
illegal, invalid, erroneous, perverse and the same has
resulted in miscarriage of justice to the appellant."
16. Sri Jayantha Poojari, learned counsel for the
revision petitioner reiterating the grounds urged in the revision
petition vehemently contended that both the Courts have not
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properly appreciated the material evidence on record, resulting
in miscarriage of justice and sought for allowing the revision
petition.
17. He further pointed out that P.W.1 is a person who
came to know about the incident through somebody and
therefore, he cannot be treated as eye witness.
18. P.W.2 is an eye witness as stated by the
prosecution. Admittedly, PW.2 was on the other side of the
road and he could not witnessed the accident and he has
specifically stated that near the place of accident the road is
very narrow and two vehicles cannot pass easily and therefore,
no materials could be attributed to the driver of the bus and
thus sought for allowing the revision petition.
19. Alternatively, he sought for setting aside the
sentence of six months by enhancing the fine amount.
20. Per contra, Smt. Waheeda M.M., learned High Court
Government Pleader supports the impugned judgment. She
further contended that the material evidence on record would
be sufficient enough in establish the case of the prosecution.
The oral testimony of P.W.2 who has got nothing to do with the
incident, completely supports the case of the prosecution
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except to the fact that he has signed the mahazar in the police
station and to that extent he has been treated as hostile
witness and cross-examined by the prosecution.
21. She further pointed out that the material evidence
on record especially, no explanation being forthcoming on
behalf of the accused while recording the accused statement
under Section 313 of Cr.P.C., order of conviction recorded by
the learned Trial Magistrate, confirmed by the First Appellate
Court needs no interference. So also the period of sentence,
inasmuch as only simple imprisonment of six months has been
granted by the learned Trial Magistrate and confirmed by the
First Appellate Court.
22. Having heard the parties in detail, this Court
perused the material on record meticulously.
23. On such perusal of the material on record, following
points would arise for consideration:
1) Whether the petitioner makes out a case that the
impugned judgment is suffering from patent legal
error or legal infirmity or error of jurisdiction and
perversity and thus calls for interference?
2) Whether the sentence is excessive?
3) What order ?
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24. Regarding point Nos.1 and 2 : In the case on the
hand, death of Sanki Poojari @ Sanki Kotian in the road traffic
accident involved in the bus bearing registration No.K.A.19-AB-
5299 is not in dispute. The driver of the bus is also not in
dispute inasmuch as P.W.4 while executing the indemnity bond
has stated that it the accused who was the driver of the bus.
Moreover, P.W.2 has identified the driver of the bus before the
Court.
25. Further, according to the prosecution case, the
deceased was moving on the left side of the road. At that
juncture, it is the negligent driving of the accused, resulted in
dashing against the accused from the hind side, resulting in
death of the accused.
26. Post mortem report clearly indicates the nature of
the injuries and the death of the deceased which is on account
of the accidental injury sustained by him.
27. Thus, oral testimony of P.W.2 assumes greater
importance in establishing the case of prosecution as he is the
eye witness to the incident.
28. It has been suggested in his cross-examination that
he was on the right side of the road and the incident occurred
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on the left side of the road. Same was occurred on the left side
of the road. Same is admitted by P.W.2.
29. It was also suggested to him since he was on the
other side of the road, he could not witness the accident, but
the witness has denied the same. Therefore, the presence of
P.W.2 in the spot who has seen the incident at the distance of
10 to 15 feet is established by the prosecution.
30. In the case on hand, even though an opportunity
was provided by the learned Trial Judge while recording the
accused statement to explain his version of incident, the
accused deliberately failed to make use of such an opportunity.
31. These aspects of the matter has been rightly
appreciated by the learned Trial Magistrate.
32. It is now settled principles of law and requires no
emphasis that recording of accused statement as is
contemplated under Section 313 of Code of Criminal procedure
is not an empty formality and it serves dual purpose.
33. Firstly, an opportunity would be given by the
learned Trial Judge to explain the incriminatory evidence
available in the prosecution case. Such a duty is a mandatory
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duty. Secondly, it provides an opportunity for the accused to
place his version about the incident.
34. In the case on hand, accused was given such an
opportunity, but he did not make use of the same by offering
his version of the incident.
35. When accused failed to utilize the opportunity
granted by the learned Trial Magistrate, the consequences in
law should follow as is held in the case of Ravi Kapur vs.
State of Rajasthan reported in (2012) 9 SCC 284.
36. Accordingly, recording of order of conviction for the
offence under Section 304-A IPC needs no interference.
37. Having regard to the nature of the offence, the
principles of law enunciated in the case of State of Punjab v.
Saurabh Bakshi reported in (2015) 5 SCC 182,
imprisonment of six months ordered by the learned Trial
Magistrate confirmed by the learned Judge in the First Appellate
Court needs no interference by this Court considering the
regional jurisdiction, especially in the absence of any mitigating
circumstances.
Accordingly, point Nos.1 and 2 are answered in the
negative.
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38. Regarding Point No.3: In view of findings of this
Court on point Nos.1 and 2, following order is passed:
ORDER
(i) Revision petition is meritless and hereby
dismissed.
(ii) Time is granted for the accused to
surrender before the Trial Court for serving
the remaining part of sentence till 15th
November 2024.
(iii) Office is directed to return the Trial Court
records with copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
MR
