Karnataka High Court

The Shivappa @Shivanand Basappa ... vs The State Of Karnataka on 11 March, 2025

Author: V.Srishananda

Bench: V.Srishananda

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                                                                  NC: 2025:KHC-D:4626
                                                            CRL.RP No. 100099 of 2017




                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH

                             DATED THIS THE 11TH DAY OF MARCH, 2025

                                                BEFORE

                             THE HON'BLE MR. JUSTICE V.SRISHANANDA

                        CRIMINAL REVISION PETITION NO.100099 OF 2017
                                   (397(Cr.PC)/438(BNSS))

                      BETWEEN:

                      THE SHIVAPPA @ SHIVANAND BASAPPA HALABAR,
                      AGE: 31 YEARS, OCC. DRIVER,
                      R/O. MANGOLI, TAL. BASAVAN BAGEWADI,
                      DIST. VIJAYAPUR.
                                                                          ...PETITIONER
                      (BY SRI K. H. BAGI, ADVOCATE)

                      AND:

                      THE STATE OF KARNATAKA
                      REPRESENTED BY STATE PUBLIC PROSECUTOR,
                      HIGH COURT, DHARWAD BENCH,
                      DHARWAD.
                                                                        ...RESPONDENT
        Digitally
        signed by V
                      (BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP)
        N
VN      BADIGER
BADIGER Date:
        2025.03.18
        15:25:43
        +0530

                           THIS CRIMINAL REVISION PETITION IS FILED UNDER
                      SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO
                      SET ASIDE THE JUDGMENT DATED 14.02.2017 PASSED BY THE VIII
                      ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI AT BELAGAVI IN
                      CRIMINAL APPEAL NO. 153 OF 2016 DISMISSING THE APPEAL AND
                      CONFIRMING THE JUDGMENT DATED 24.09.2016 PASSED BY THE
                      LEARNED ADDL. CIVIL JUDGE AND JMFC, KHANAPUR AT KHANAPUR,
                      IN CRIMINAL CASE NO. 553 OF 2009 FOR OFFENCE PUNISHABLE
                      UNDER SECTIONS 279, 337, 338, 304-A OF IPC AND ACQUITTE THE
                      RESPONDENT/ACCUSED BY SETTING ASIDE THE ABOVE SAID
                      JUDGMENTS.
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                                                 NC: 2025:KHC-D:4626
                                        CRL.RP No. 100099 of 2017




    THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


                           ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri K.H. Bagi, learned counsel for revision

petitioner and Sri Praveen Y. Devareddiyavara, learned

High Court Government Pleader for respondent.

2. Accused who suffered an order of conviction in

C.C. No.553/2009 for the offence punishable under

Section 279, 337, 338 and 304A of IPC is sentenced as

under:

"Acting U/s 255 (2) of Cr.P.C., accused is convicted for the offences punishable U/s 279, 337, 338, 304A of IPC.

The accused is sentenced to undergo S.I. for a period of six months and to pay a fine of Rs. 1000/- (Rupees one thousand only) for the offence punishable IJ/s 279 of IPC. In default of payment of fine amount, accused shall undergo S.I. for a period of 30 days.

The accused is sentenced to undergo S.I. for a period of two months and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence punishable U/s 337 of IPC. In default

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of payment of fine amount, accused shall undergo S.I. for a period of 15 days.

The accused is sentenced to undergo S.I. for a period of four months and to pay a fine of Rs.1000/- (Rupees one thousand only) for the offence punishable U/s 338 of IPC. In default of payment of fine amount, accused shall undergo S.I. for a period of 30 days.

The accused is sentenced to undergo S.I. for a period of six months and to pay fine of Rs.5000/- (Rupees five thousand only) for the offence punishable U/s 304A of IPC. In default of payment of fine amount, accused shall undergo S.I. for a period of 6 months.

Sentences shall run concurrently.

The bail bond of accused and surety stands cancelled.

Office is directed to supply free certified copy of this judgment to the accused forthwith."

Order of conviction and sentence was confirmed in

Crl.A.No.153/2016. As such, he has preferred the present

revision petition challenging the validity of the conviction

and order of sentence.

3. Facts in the nutshell for disposal of the revision

petition are as under :

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In respect of a road traffic accident occurred on

26.02.2008 at about 15:00 hours in the intervening

midnight, on NH-4A road which is from Khanapur to Londa

near Savargali canal, wherein a truck bearing No.KA-28/A-

5199 said to have dashed against a KSRTC bus bearing

No.KA-28/F-1305 resulting in inmates of the bus injured

and one of the passengers by name Dastgirsab Allisab

Bagwan succumbed to the injuries, a complaint came to be

lodged with jurisdictional police. A case came to be

registered in Crime No.21/2008 and after thorough

investigation charge sheet came to filed.

4. Learned Trial Magistrate took cognizance and

after compliance of Section 207 of Cr.P.C., recorded the

plea and accused pleaded not guilty. Therefore, trail was

held.

5. In order to bring home the guilt of the accused,

6 witnesses were examined as PW-1 to PW-6. Among

them PW-1, PW-2 and PW-4 are the injured eyewitnesses

being the inmates of KSRTC bus. Prosecution placed on

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record 9 documents comprising of complaint, spot

mahazer, inquest mahazar, wound certificate, postmortem

report, IMV report as Exs.P-1 to P-9.

6. On conclusion of recording of evidence, accused

statement as is contemplated under Section 313 of Cr.P.C.

was recorded wherein accused has denied all the

incriminating circumstances including the accident.

7. Thereafter, learned Trial Judge heard the

parties in detail and on cumulative consideration of oral

and documentary evidence placed on record, convicted the

accused and sentenced as referred to supra.

8. Being aggrieved by the same, an appeal came

to be filed before the District Court in Crl.A.No.153/2016.

9. Learned Judge in the First Appellate Court after

securing the records, heard the arguments of the parties

in detail and on re-appreciation of the material evidence

on record, dismissed the appeal and confirmed the order

of the conviction and sentence.

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10. Being further aggrieved by the same, accused is

before this Court in this revision petition.

11. Sri K.H. Bagi, learned counsel for revision

petitioner, reiterating in the grounds urged in the revision

petition contended that there was a contributory

negligence on the part of the driver of the bus as well and

also taking note of the fact that the accident has occurred

in the midnight, there was error of judgment on the part

of the driver of the bus. As a result, the margin in between

the vehicles could not be maintained resulting in the

accident and for which, the entire negligence is thrusted

upon the driver of the lorry in order to save the rigours of

law insofar as the driver of the bus. Said aspect of the

matter is not appreciated by both the Courts and thus

sought for allowing the revision petition.

12. He further contended that learned Trial Judge

failed to note the effect of cross-examination of

prosecution witnesses, especially, when they are cited as

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injured witnesses resulting in miscarriage of justice and

sought for allowing the revision petition.

13. Alternatively, Sri Bagi would contend that in the

event this Court maintaining the conviction, taking note of

the fact that there was a contributory negligence

attributable to the driver of the bus, by enhancing the fine

amount, sentence of imprisonment may be set aside.

14. Per contra, Sri Praveena Devareddiyavara,

learned High Court Government Pleader for respondent

supports the impugned orders.

15. He would further contend that accused failed to

challenge the charge sheet. Therefore, it is too late for the

accused contend, that too, before the revisional Court that

there was a contributory negligence on the part of the

driver of the bus.

16. He would further contend that material on

record is sufficient enough to maintain the conviction

especially PW-1, PW-2 and PW-4 are injured eyewitnesses

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being the inmates of the bus, have specifically deposed

about the negligence on the part of the driver of the

offending lorry. Therefore, conviction of the accused and

sentence ordered by the learned Trial Magistrate needs no

interference in this revision and sought for dismissal of the

revision petition.

17. Having heard the arguments of both the sides

in detail, this Court perused the material on record

meticulously.

18. On such perusal of the material on record,

following points would arise for consideration:

1) Whether the accused-revision petitioner makes out a case that the impugned judgments are suffering from legal infirmity and perversity and thus calls for interference?

2) Whether the sentence needs modification?

3) What order?

20. In the case on hand, death of one of the

inmates of the bus by name Dastagirsab Allisab Bagwan

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having succumbed to the injuries sustained in the road

traffic accident is not in dispute. Postmortem report

makes it clear that Dastagirsab Allisab Bagwan died

because of the injuries sustained in the road traffic

accident.

21. PW-1, PW-2 and PW-4 being the inmates of the

same bus, are also injured witnesses. It is settled

principles of law and requires no emphasis that testimony

of the injured-eyewitnesses has to be kept on high

pedestal. Suggestions made to the prosecution witnesses

did not yield any positive material so as to disbelieve the

case of the prosecution.

22. Crowning all these aspects of the matter,

accused did not offer any explanation to the incriminatory

materials at the time of recording the accused statement.

He went to the extent of even denying the accident itself.

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23. In a matter of this nature, recording of accused

statement is not an empty formality. On the contrary, it is

of dual purpose.

24. Firstly, it would afford a sufficient opportunity

for the accused to explain the incriminatory circumstances.

Recording of accused statement is thus mandatory on the

part of a Magistrate.

25. Secondly, at the time of recording the accused

statement, it is always scope for the accused to place on

record his version about the incident. If the accused

deliberately fails to utilize the said opportunity,

consequence in law has to follow.

26. View of this Court in this regard is fortified by

the judgment of the Hon'ble Apex Court in the case of

Ravi Kapur Vs. State of Rajasthan1. In paragraph

No.39 of the said judgment, it has been held as under :

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the

(2012) 9 SCC 284

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provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

27. Keeping in background the above principles

when the material evidence on record is appreciated

especially in the light of arguments put forth on behalf

revision petitioner by Sri Bagi, it is to be seen that accused

was bound to place on record his version about the

incident especially the contributory negligence on the part

of the driver of KSRTC bus. But in the case on hand,

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accused did not open his mouth except denying the

incriminatory circumstances.

28. Under such circumstances, having regard to the