Karnataka High Court
Gopal S/O Rudrayya Doddamani vs The State on 29 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 200045 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 200045 OF 2019
(397(Cr.PC)/438(BNSS))
BETWEEN:
GOPAL S/O RUDRAYYA DODDAMANI,
NOW AGED: 43 YEARS, OCC: DRIVER,
R/O. BASAVA NAGAR, KALABURAGI
...PETITIONER
(BY SMT. RAJESHWARI JAMADAR AND
SMT. HEMA L. KULAKARNI, ADVOCATES)
AND:
THE STATE THROUGH
ADDL. TRAFFIC POLICE STATION, KALABURAGI,
BY THE ADDL. S.P.P.,
Digitally signed by HIGH COURT OF KARNATAKA,
SHIVAKUMAR KALABURAGI BENCH-585105.
HIREMATH
...RESPONDENT
Location: HIGH
COURT OF (BY SRI VEERANAGOUDA MALIPATIL, HCGP)
KARNATAKA
THIS CRL.RP IS FILED U/S 397 R/W SEC. 401 OF CR.P.C
PRAYING TO, SET ASIDE THE JUDGMENT AND ORDER
DATED:24.04.2019 OF III ADDITIONAL DISTRICT & SESSIONS
JUDGE, KALABURAGI IN CRL.A.NO.6/2016 AND FURTHER BE
PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED:26.12.2015 OF I ADDITIONAL CIVIL
JUDGE & JMFC, KALABURAGI IN C.C.NO.3690/2011, FOR THE
OFFENCES PUNISHABLE U/SEC. 279, 304(A), OF IPC AND 187
OF IMV ACT AND FURTHER BE PLEASED TO ACQUIT THE
PETITIONER OF ALL THE CHARGES FOR WHICH HE WAS
CONVICTED.
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CRL.RP No. 200045 of 2019
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This Criminal Revision Petition under Section 397 read
with Section 401 of Cr.P.C. is filed by the accused assailing the
judgment and order of conviction and sentence dated
29.12.2015 passed by the Court of I Addl. Civil Judge and
JMFC, Kalaburgi, in CC No.3690/2011 and the judgment and
order dated 24.04.2019 passed in Crl.A.No.6/2016 by the Court
of III Addl. District and Sessions Judge, Kalaburagi.
2. Accused was charge sheeted by Additional Traffic Police,
Kalaburagi, for the offences punishable under Sections 279,
304(A) of IPC and Section 187 of Indian Motor Vehicles Act,
1988. The allegation against the accused is that on 20.05.2010
at about 05.00 p.m. in the evening, the accused, who was the
driver of the road roller bearing registration No.AP-29/BD-1959
was driving the said vehicle in reverse direction in a rash and
negligent manner and as a result, minor children of defacto
complainant/Ramesh, who were riding their play bicycle on the
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road which was under repair, came under the wheels of the
offending vehicle and died. Accused had pleaded not guilty
before the Trial Court and clamed to be tried. During the course
of trial, prosecution had examined nine witnesses as PW1 to
PW9 and got marked nine documents as Ex.P1 to P9. No
defence evidence was lead on behalf of the accused nor was
any document got marked in support of the defence. The Trial
Court after hearing both sides vide impugned judgment and
order of conviction and sentence dated 29.12.2015 convicted
the accused for the offences punishable under Sections 279,
304 (A) of IPC and for the offence punishable under Section
187 of the Indian Motor Vehicles Act, 1988 and sentenced him
to pay fine of Rs.1,000/- for the offence punishable under
Section 279 of IPC and in default to undergo simple
imprisonment for a period of one month, for the offence
punishable under Section 304(A) of IPC sentenced him to
undergo simple imprisonment for a period of two years and to
pay find of Rs.5,000/- and in default, to undergo simple
imprisonment for a period of three months and further
sentenced him to pay fine of Rs.1,000/- for the offence
punishable under Section 187 of the M. V. Act and in default, to
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undergo simple imprisonment for a period of one month. The
said judgment and order of conviction and sentence was
unsuccessfully challenged by the petitioner/accused before the
III Addl. District and Sessions Judge, Kalaburagi in
Crl.A.No.6/2016 which was dismissed by judgment and order
dated 24.04.2019. Therefore, accused is before this Court.
3. Learned counsel for the accused/petitioner submits that
the Trial Court and the Appellate Court have erred in convicting
the accused for the charge sheeted offences. The material on
record do not show that accused was driving the offending
vehicle in a rash and negligent manner. Undisputedly, road in
which the accident in question had taken place was under
repair and the children had strayed to the said road while
playing and as a result, there was an accident. The Trial Court
and the Appellate Court have failed to appreciate that accident
in question had taken place as a result of negligence by the
children and their parents, who had allowed the children to play
in the under repair road. She submits that the sentence
imposed on the accused by the Trial Court and the Appellate
Court is harsh and disproportionate. Accordingly, she prays to
allow the petition.
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4. Per contra, learned HCGP has opposed the prayer made
in the petition and submits that two minor children have died in
the road traffic accident which was caused as a result of the
rash and negligent driving of the offending vehicle by the
petitioner. Since the deceased are children, it cannot be said
that there was contributory negligence. Considering the fact
that two minor children have died in the road traffic accident,
the Trial Court was justified in sentencing the petitioner for a
period of two years for the offence punishable under Section
304 (A) of IPC. Accordingly, he prays to dismiss the petition.
5. The prosecution in order to prove its case has examined
nine witnesses and got marked nine documents in the present
case. PW1 - Ramesh, is the father of the victim children, who
have died in the accident. PW2 and PW3 are the panchas to the
inquest panchanama/Ex.P2 and both these witnesses have not
supported the case of the prosecution and therefore, they were
treated as hostile witnesses.
6. PW4, PW5 and PW6 are said to be the eye witnesses to
the accident in question and PW7 is the Manager of the
Company to which the contract of road repair was awarded.
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PW8 is the Police Sub-Inspector, who had received the
complaint and registered the FIR in the present case. PW9,
Circle Inspector of Police is the Investigation Officer in the
present case, who has filed the charge sheet against accused
after completing the investigation. Ex.P1 is the original of the
complaint and Ex.P2 and P4 are the inquest panchanama of the
deceased children. Ex.P3 is the spot panchanama and Ex.P5
and P6 are the Post Mortem Report of the deceased children.
Ex.P7 is the M.V. Report and Ex.P8 is the Indemnity Bond.
Ex.P9 is the copy of the FIR registered in the present case.
7. PW1, who is the father of the victim children has stated
that on the date of incident when he was in the tea shop owned
by his wife, his minor children Mamatha and Akshay were
playing outside. The road in front of the tea shop was under
repair and the road roller, which was driven by accused dashed
against the children, who were playing on the road and as a
result, his daughter Mamatha died at the spot and son Akshay,
who suffered grievous injuries to his legs was immediately
shifted in an auto to Hospital but he succumbed to the injuries
in the Hospital. He has identified the accused as the driver of
the offending vehicle and his complaint submitted to the police
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was marked as Ex.P1. A reading of the deposition of this
witness reveals that he was inside the tea shop when the
accident in question had taken place and he had not actually
seen the accident. PW4 and PW6 are the brothers of wife of
PW1. These witnesses have stated that when they were near
the tea shop of PW1, the minor children of PW1 were playing
on the road under repair and they were riding their play
bicycle. At that time, offending vehicle road roller, which was
driven in the reverse direction by accused in a rash and
negligent manner dashed against the play bicycle of the
children and as a result, children fell down on the road and they
came under the wheels of the offending vehicle.
8. PW5 is another independent eye witness, who also has
spoken about the manner in which the accident in question has
taken place. The deposition of PW4 to PW6 corroborates with
each other and is consistent with regard to the manner in which
the accident in question had taken place. All these witnesses
have stated that when they were in front of the tea shop of
PW1, they saw the children playing on the road, riding their
play bicycle and they also saw the accused driving the
offending vehicle in a reverse direction in a rash and negligent
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manner and though they raised a cry, accused did not hear
them and after the accident in question took place, accused
immediately stopped his vehicle and ran away from the spot.
The Trial Court as well as the Appellate Court having
appreciated the oral and documentary evidence available on
record, therefore, have rightly convicted the petitioner/accused
for the alleged offences and I do not see any irregularity or
illegality committed by the Trial Court and the Appellate Court
while convicting the petitioner/accused for the charge sheeted
offences.
9. Insofar as sentence passed by the Trial Court as against
the petitioner/accused for the charge sheeted offences is
concerned, the material on record would go to show that the
accident in question had taken place on the road which was
under repair. The tea shop of PW1 and his wife is at a distance
of about 100 meters from the spot of accident. The deceased
children of PW1 were playing on the road under repair and they
had come under the wheels of the road roller which was
undisputedly driven by the accused in a reverse direction. Rare
wheel of the road roller is much bigger in size and the driver of
the road roller, in normal circumstances, will not be in a
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position to see the other side of the rare wheel when he is
seated on the seat of the road roller. Though PW1, who is the
father of the deceased children and PW4 and PW6, who are the
maternal uncles of the deceased children were very much
present near the tea shop and the said witnesses had seen the
children playing on the road which was under repair, they had
not bothered to call back the children, who were playing on the
road which was under repair and on the other hand, they had
allowed the children to play on the road under repair. PW4 and
PW6 have stated that they had seen the children playing on the
road under repair and they also had seen the accused driving
the offending vehicle in a reverse direction which was coming
towards the playing children and though they raised a cry,
accused did not hear them and as a result, the accident in
question had taken place. From the aforesaid, it appears that
accused was not in a position to see the children, who were
playing on the road under repair when he was driving the
offending vehicle in a reverse direction. Undisputedly, offending
vehicle was being used for the purpose of road repair and while
the road repair work is under progress, in normal
circumstances, road roller is not driven in a high speed.
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Therefore, it cannot be said that the accident in question had
taken place solely because of the negligence of the accused and
on the other hand, it appears that there was contributory
negligence on the part of the parents and relatives of the
deceased minor children, who had not taken sufficient care
inspite of seeing that the minor children were playing in play
bicycle on a road which was under repair. The material on
record would also go to show that petitioner/accused is a
married man having family and children. The accident is of the
year 2011 and almost 14 years have lapsed from the date of
accident. Under the circumstances, I am of the pinion that if
the sentence imposed by the Trial Court on the
accused/petitioner is modified, the same would serve the ends
of justice. Accordingly, the following:-
ORDER
(i) Criminal Revision Petition is partly allowed.
(ii) The judgment and order of conviction dated
29.12.2015 passed by the Court of I Addl. Civil
Judge and JMFC, Kalaburgi, in CC
No.3690/2011, confirmed by the Court of III
Addl. District and Sessions Judge, Kalaburagi in
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Crl.A.No.6/2016 by judgment and order dated
24.04.2019 is hereby confirmed.
(iii) However, the order on sentence dated
29.12.2015 passed by the Trial Court and
confirmed by the Appellate Court against the
petitioner/accused for the offence punishable
under Section 304(A) of IPC is modified, while
the said order of sentence passed against the
petitioner/accused for the offence punishable
under Section 279 of IPC and for the offence
punishable under Section 187 of M.V. Act is
hereby confirmed.
(iv) For the offence punishable under Section
304(A) of IPC, accused/petitioner is sentenced
to undergo simple imprisonment for a period of
six months and to pay fine of Rs.5,000/- and in
default, to undergo simple imprisonment for a
period of two months.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
DN
CT:PK
