Karnataka High Court
Sri. Nijaguna S/O Govindappa Horakeri vs The State Of Karantaka on 10 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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CRL.RP No. 100163 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100163 OF 2017
(397(CR.PC)/438(BNSS))
BETWEEN:
SRI NIJAGUNA
S/O. GOVINDAPPA HORAKERI,
AGE: 40 YEARS, OCC. NIL, R/O. KADADI, TQ. GADAG,
NOW R/AT: HUBBALLI RAILWAY QUARTERS OFFICE COLONY,
HUBBALLI, DIST. DHARWAD.
...PETITIONER
(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
THE STATE OF KARANTAKA
CIRCLE POLICE INSPECTOR, TRAFFIC POLICE STATION,
RANEBENNUR, DIST. HAVERI,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
Digitally ...RESPONDENT
signed by
VN
VN
BADIGER
(BY SRI PRAVENA Y. DEVAREDDIYAVARA, HCGP)
BADIGER Date:
2025.03.14
15:18:25
+0530 THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SEC. 401 OF CR.P.C., SEEKING TO SET
ASIDE THE JUDGMENT DATED 03.02.2016 IN CRL.A. NO.2/2011
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AT
HAVERI SITTING AT RANEBENNUR CONFIRMING THE JUDGMENT
AND ORDER OF SENTENCE DATED 16.12.2008 IN C.C.NO. 148 OF
2008 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND I ADDL.
JMFC, RANEBENNUR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 304-A OF IPC AND 279, 338 OF IPC BY ALLOWING THE
REVISION PETITION.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100163 of 2017
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri Hanumanthreddy Sahukar, learned counsel
for petitioner and Sri Praveena Y. Devareddiyavara,
learned High Court Government Pleader for respondent.
2. The accused who suffered an order of
conviction in C.C.No.148/2008 confirmed in
Crl.A.No.2/2011 for the offence punishable under Sections
279, 304A and 338 of IPC and ordered to undergo simple
imprisonment for a period of six months, is the revision
petitioner.
3. Facts in the nutshell which are utmost
necessary for disposal of the petition are as under:
3.1 A complaint came to be lodged with
Ranebennur Traffic police alleging that on 28.11.2007 at
about 3.45 a.m., the accused being the driver of Indica car
bearing No.KA-25/7140 from Harihar towards Haveri in a
rash and negligent manner and when he passed the place
of incident, which is in front of shop of S.M. Adiveppanavar
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at Kurubageri cross of Ranebennur, in the process of
overtaking a lorry, dashed against a lorry, which was
coming from opposite side bearing No.KA-01/B-8175.
3.2 In the said accident, inmates of the car namely
Prakash Deshpande and Aruna Deshpande sustained
grievous injuries. Yet another inmate by name Vimala
also sustained grievous injuries and she succumbed to the
injuries on the spot.
3.3 It is also alleged that accused did not have
driving licence and therefore, a case came to be registered
against him for the offence punishable under Sections 279,
338 and 304A of IPC and under Section 3 read with
Section 181 of Motor Vehicles Act.
4. On registration of the case, police thoroughly
invested the matter and filed charge sheet against the
accused. Learned Trial Judge took cognizance, secured
the presence of the accused and recorded the plea.
Accused pleaded not guilty. Therefore, trial was held.
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5. In order to prove the case of the prosecution, in
all 9 witnesses were examined. Among them, PW-3 to
PW-5 who are eyewitnesses to the case of the prosecution
have turned hostile to the case of the prosecution.
However, 2 injured witnesses namely, Prakash and Aruna
who have examined as PW-2 and PW-6 have supported
the case of the prosecution so also the complainant who is
the lorry driver.
6. The prosecution in all placed twelve documents
which were exhibited and marked as Exs.P-1 to P-12.
Among them, Ex.P-3 is the spot mahazar, Ex.P-2 is the
complaint, Ex.P-4 is the sketch of the place of incident,
Ex.P-6 is inquest mahazar, Ex.P-7 is the postmortem
report, Ex.P-8 and 10 are the wound certificates wherein
even the accused was injured. Ex.P-11 is the IMV report
and Ex.P-12 is the FIR.
7. On conclusion of recording of the prosecution
evidence, learned Trial Magistrate recorded the accused
statement. In the accused statement for the last question,
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the accused has answered that since the date of accident
was fag end of November, visibility of the road was poor
as in the place of incident there was fog and all of a
sudden, his vision got blackened out. Therefore, he was
not negligent in driving and he is not responsible for the
accident.
8. Thereafter learned Trial Judge heard the
arguments of the parties and on cumulative consideration
of the oral and documentary evidence placed on record by
the prosecution, convicted the accused for the aforesaid
offence and ordered six months imprisonment for the
offence punishable under Section 304-A of IPC and fine for
other offences. Sentences were also ordered to run
concurrently.
9. Being aggrieved by the same, accused filed an
appeal before the District Court in Crl.A.No.2/2011.
10. Learned Judge in the First Appellate Court after
securing the records, heard the arguments of the parties
in detail and by a considered judgment dated 03.02.2016,
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dismissed the appeal of the accused confirming the
judgment of conviction and order of sentence.
11. Being further aggrieved by the same, accused
is before this Court in this revision petition.
12. Sri Hanumanthreddy Sahukar, learned counsel
for petitioner reiterating the grounds urged in the petition
contended that the incident is beyond the control of a
normal prudent driver of an automobile inasmuch as
taking note of the fact that the incident has occurred on
28.11.2007, the explanation offered by the accused is
plausible explanation which has not been properly
considered by the learned Trial Magistrate and learned
Judge in the First Appellate Court resulting in miscarriage
of justice and sought for allowing the revision petition.
13. He would further contend that in the very same
accident, accused is also injured. No normal person would
venture to pledge his life for the sake of driving a car
being the driver of Indica car bearing No.KA-25/7140.
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Therefore, no negligence can be attributed to the revision
petitioner.
14. He would further contend that there was
sufficient space and margin for the revision petitioner to
overtake the lorry but upcoming lorry driver did not apply
the break and accident has occurred. If the upcoming
lorry driver had applied the break, accident would not
have occurred and car would have easily passed through
the road. Therefore, police filing the charge sheet against
the driver of the car who is also injured in the incident is
incorrect which has not been properly appreciated by both
the Courts and sought for allowing the revision petition.
15. Lastly, as an alternate submission, Sri
Hanumanthreddy Sahukar contended that in the event this
Court were to uphold the conviction, the Court may
consider reducing the imprisonment period by enhancing
the fine amount reasonably inasmuch as in the very same
accident, revision petitioner has also sustained injuries and
sought for allowing the revision petition to that extent.
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16. Per contra, Sri Praveena Y. Devareddiyavara,
learned High Court Government Pleader for respondent
supports the impugned judgments.
17. He would contend that very fact that accused
decided to overtake the lorry especially when he has
parted an upcoming vehicle itself establishes negligence
on the part of the accused-revision petitioner. If the road
visibility was not there, accused should have taken extra
care and caution especially overtaking a vehicle.
18. He would further contend that having regard to
the width of the road as could be seen that there was
sufficient margin for the 3 vehicles to pass through and
the driver of the car has moved to the extreme right side.
In the process of overtaking the lorry, dashed against the
opposite lorry which was moving in the opposite direction
resulting in accident. Because of the impact of the
accident, one of the inmates viz., Vimala having sustained
grievous injuries, died. The other three injured including
the revision petitioner were shifted to the hospital and
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driver of the lorry which was moving on the left side
bearing No.KA-01/B-8175 lodged the complaint with the
Ranebennur Police.
19. He points out that spot sketch coupled with the
explanation offered by the accused would go to show that
who is the negligent and it is rash driving of the car by
accused which has resulted in the accident and thus
sought for dismissal of the revision petition.
20. Having heard the parties in detail, this Court
perused the material on record meticulously.
21. On perusal of the material on record, following
points would arise for consideration:
1) Whether the revision petitioner has made out a
case that the impugned orders are suffering from
legal infirmity, perversity and patent factual error
so as to interfere in the revisional jurisdiction?
2) Whether the sentence is excessive?
3) What order?
Regarding point No.1 and 2:
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22. In the case on hand, the accident is not in
dispute, though for question No.2 accused has denied the
accident. But his explanation to the last question referred
to supra would go to show that the accident has occurred
according to the accused, because of the poor visibility on
account of fog situation in the place of incident.
23. One cannot be rule out possibility of the poor
visibility having regard to the date of incident being
28.11.2007. If it is so, it was the bounden duty of the
accused-revision petitioner to take extra care and caution
in driving the car.
24. Admittedly, the incident has occurred while the
accused-revision petitioner has tried to overtake the lorry
which was moving in the same direction and he failed to
completely overtake the lorry, he dashed against the
upcoming lorry driven by the complainant. Admittedly,
accused is also injured in the said incident and out of the
three inmates of the car, one Vimala who sustained
grievous injuries, succumbed to the spot whereas two
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others who were also inmates of the car viz., Prakash
Deshpande and his wife Aruna Deshpande who have
examined as PW-2 and PW-6 sustained grievous injuries.
All the injured persons were shifted to hospital.
25. No doubt, in the case on hand, PW-3 and PW-5
who are also cited eyewitnesses to the incident have
turned hostile to the case of the prosecution. However,
only on the ground that independent eyewitnesses having
turned hostile to the case of the prosecution would not
result in doubting the case of the prosecution in toto
inasmuch as the testimony of the injured eyewitnesses
cannot be brushed aside as they are to be kept on higher
pedestal. In the absence of previous enmity as against
the revision petitioner, why would PW-2 and PW-6 and the
complainant depose against the accused is the question
that remains unanswered.
26. Moreover, in a matter of this nature, accused is
bound to place his version on record. In the case on hand,
accused has placed his version on record as referred to
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supra by contending that because of the fact that the
incident has taken place in the fag end of November, there
was a fog situation in the place of incident and all of a
sudden his visibility has blackened out and therefore, the
accident has occurred. What was the reason for blackening
the vision is not explained by the accused except stating
that it is a fog situation. If it is a fog situation, not only
the headlights of the car were there but also the
headlights of the lorry which was coming from the
opposite side were also there. Even assuming that there
was a dense fog, the headlights of both the vehicles were
sufficient enough to spot that there is an upcoming
vehicle. If it is so, being the professional driver, accused
was bound to exercise extra care and caution in driving
the car.
27. Such amount of care and caution having been
exercised by the revision petitioner in the case on hand is
not forthcoming. Therefore, argument put forward on
behalf of the accused-revision petitioner that too, in the
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revisional jurisdiction about the factual aspects cannot be
countenanced in law.
28. Insofar as sentence is concerned, both the
Courts have taken into consideration the explanation
offered by the accused, granted minimum punishment of
six months for the offence punishable under Section 304-A
of IPC though the punishment prescribed is on the higher
side.
29. Further, no mitigating circumstances are placed
on record except that accused also sustained injuries in
the very same accident, this Court is of the considered
opinion that the matter does not require further
indulgence in this revision petition by this Court in further
reducing the sentence.
30. In a matter of this nature, Probation of
Offenders Act, 1958 is not applicable as is held by the
Hon'ble Apex Court in the case of State of Punjab Vs.
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Saurabh Bakshi1. Thus, viewed from any angle, there is
no merit in any one of the contentions urged on behalf of
the revision petitioner. Accordingly, points No.1 and 2 are
answered in the negative.
Regarding Point No.3:
31. In view of the finding of this Court on points
No.1 and 2, as above, following order is passed.
ORDER
Revision petition is meritless and hereby
dismissed.
Time is granted for the revision petitioner to
surrender before the Trial Court till 15.04.2025.
SD/-
(V.SRISHANANDA)
JUDGE
NAA
CT:PA
(2015) 5 SCC 182
