Karnataka High Court
N Ganesh vs State Of Karnataka on 29 September, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 1377 OF 2015
BETWEEN:
N. GANESH,
S/O LATE. NARASIMHAIAH,
AGED ABOUT 38 YEARS,
R/O CINEMA ROAD, RAJAJI COLONY,
GANESH NILAYA, NANJANGUD TOWN,
MYSORE DISTRICT - 571 301.
...PETITIONER
(BY SRI. MADHUKESHWARA, ADVOCATE FOR
SRI. SACHIN B S, ADVOCATE)
AND:
STATE OF KARNATAKA,
REPRESENTED BY
Digitally signed
by MYSORE SOUTH POLICE,
RENUKAMBA
KG MYSORE - 570 008.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. JAIRAM SIDDI, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
26.10.2015 IN CRL.A.NO.24/2014 ON THE FILE OF THE I ADDL.
S.J., MYSURU CONFIRMING THE JUDGMENT AND ORDER
DATED 26.12.2013 PASSED IN C.C.NO.233/2006 ON THE FILE
OF THE II CIVIL JUDGE AND JMFC, MYSORE AND
CONSEQUENTLY ALLOW THIS CRL. REV. PETITION.
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the revision petitioner/accused under Section 401 read with Section 397 of Cr.P.C., challenging the judgment of conviction and order of sentence passed by the II Civil Judge and JMFC, Mysuru in C.C.No.233/2006 dated 26.12.2013 and confirmed by the I Additional Sessions Judge, Mysuru in Crl.A.No.24/2014 vide judgment dated 26.10.2015.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that, on 05.02.2006 at about 1.00 pm on Mysuru- Nanjangud Road, near Undabatthi lake within the limits of Mysuru South Police Station, the accused being the driver of tempo bearing No.KA.09/3855 drove it from Mysuru towards Nanjangud in a high speed as well as rash and negligent manner endangering human life and public safety and in the said process, he lost control over the -3- CRL.RP No. 1377 of 2015 NC: 2023:KHC:35415 vehicle. It is further alleged that, as such the tempo fell into 20 feet depth lake and as a result, one of the passenger by name Kempashetty died on the way to the hospital and CW.11 to CW.13 suffered grievous injuries, while CW.1, CW.14 to CW.18 suffered simple injuries. After having caused the accident the accused fled from the spot without even intimating about the accident to the nearest Police station or attending the injured and there by a complaint came to be lodged against him.
4. On the basis of the complaint crime came to be registered against the accused and the investigation officer after investigation of the matter submitted the charge sheet against the accused for the offences punishable under Sections 279, 337, 338, 304(A) of the IPC read with Sections 134(a) and (b) and Section 187 of I.M.V.Act.
5. After submissions of the charge sheet as there are sufficient grounds to proceed against the accused, the cognizance of the said offences were taken by the learned Magistrate, and he has issued process against the accused. The accused has appeared before the learned -4- CRL.RP No. 1377 of 2015 NC: 2023:KHC:35415 Magistrate and was enlarged on bail. The prosecution papers have been furnished to the accused as contemplated under Section 207 of Cr.P.C.
6. Thereafter, the plea under Sections 279, 337, 338, 304(A) of IPC read with Sections 134(a) and 134(b) and Section 187 of I.M.V.Act is framed against the accused and he pleaded not guilty.
7. To prove the guilt of the accused, the prosecution has examined in all 19 witnesses and has also placed reliance on 20 documents marked at Ex.P1 to Ex.P20. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C., is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of the accused is of total denial and he submitted that there were number of pits on the road and the left rear tire burst, as a result, he lost control which has resulted in the accident.
8. After hearing the arguments and after appreciating the oral and documentary evidence, the -5- CRL.RP No. 1377 of 2015 NC: 2023:KHC:35415 learned Magistrate has convicted the accused and imposed imprisonment for a period of one month with a fine of Rs.1,000/- for the offences punishable under Section 279, 337 of IPC and Section 134(A) (B) and read with Section 187 of I.M.V.Act. He has also imposed imprisonment for a period of two months with fine of Rs.500/- for the offence punishable under Section 338 of IPC and he has also imposed imprisonment for a period of six months with a fine of Rs.1,000/- for the offence punishable under Section 304(A) of IPC with default sentence.
9. Against this judgment of conviction and order of sentence, the accused has approached the learned I Additional Sessions Judge, Mysuru in Crl.A.No.24/2014.
10. The learned sessions Judge after re- appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
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11. Against these concurrent findings, the revision petitioner/accused is before this Court by way of this revision.
12. Heard the arguments advanced by the learned counsel for the revision petitioner and learned High Court Government Pleader. Perused the records.
13. Learned counsel for the revision petitioner would contend that the speed itself is not a criteria for determining rash and negligent manner. He would also contend that the evidence of witnesses, complaint and admission given by PW.17 discloses that due to puncture of the front wheel, the accident has occurred as the accused has lost control over the vehicle. He would further asserts that when for the offence under Section 304(A) there is a conviction, question of again imposing sentence for the offence under Section 279 does not arise at all. Accordingly, when sentence is imposed for the offence under Section 338 of IPC, question of passing any independent sentence under Section 337 of IPC does not arise at all. In this context, he invited the attention to -7- CRL.RP No. 1377 of 2015 NC: 2023:KHC:35415 Section 71 of the IPC. He would also contend that before passing the sentence, no hearing was made on sentence as contemplated under Section 248 of Cr.P.C. Hence, he would seek for allowing the revision by setting aside the impugned judgment of conviction and order of sentence passed by both the Courts below.
14. Per contra, the learned High Court Government Pleader would contend that, all the witnesses have supported the case of the prosecution. He would contend that the evidence on record clearly establish that the accused was the driver of the offending vehicle and the vehicle over turned while moving on public road and it is for the accused to explain as to under what circumstances the vehicle overturned. He would also contend that the defence raised by the accused is inconsistent and hence, he would assert that both the Courts below have rightly convicted the accused by imposing a reasonable sentence. Hence, he would seek for dismissal of the revision. -8- CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415
15. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration.
1. Whether the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge are perverse, arbitrary and erroneous so as to call for any interference by this Court?
16. It is the specific contention of the prosecution that on 05.02.2006 the accused being the driver of tempo bearing No.KA.09/3855, drove it from Mysuru towards Nanjangud at about 1.00 pm, in a rash and negligent manner and near Undabatthi lake he lost control. As a result, the vehicle toppled in the lake resulting in a death of one of the passenger and simple as well as grievous injuries to number of passengers traveling in the tempo. There is no dispute of the fact that the tempo bearing No.KA.09/3855 met with an accident, when it toppled in the lake on Mysuru-Nanjangud Road. There is no serious dispute of the fact that CW.11 to CW.13 have suffered grievous injuries and CW.1 and CW.14 to CW.18 suffered -9- CRL.RP No. 1377 of 2015 NC: 2023:KHC:35415 simple injuries. It is also undisputed fact that the one of the passenger by name Kempashetty died on the way to the hospital due to injuries suffered by him. Initially, the accused tried to raise a defence that the accused was not the driver of the offending vehicle. However, subsequently the accused has given up that defence and admitted that he was the driver of the offending vehicle. Later on, the accused has set up a defence that as the tempo tyre bursts, he lost the control and the accident has occurred.
17. PW.4-Puttasiddamma, PW.5-Choudaiah, PW.6- Cheluvaraju, PW.7-Sulochana, PW.8-Shylaja, PW.9-Rekha, PW.10-Basamma are inmates of the tempo and all these witnesses have deposed that the accident was because of actionable negligence on the part of the driver of the offending vehicle who drove the vehicle in high speed, as a result, the driver lost control over the same.
18. PW.11-Kantharaj is the investigating officer, while PW.12-Dr.Y.Udayashankar as deposed regarding conducting post mortem on the dead body of the
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 deceased. PW.13-Kenchegowda is another eye witness and he has also supported the case of the prosecution.
19. PW.14-Ravindrakumar is the owner of the offending vehicle and he is specifically asserts that, the accused was the driver of the offending vehicle and on the date of accident, the accused was driving the vehicle at the time of accident. Very interestingly, in his cross- examination a suggestion was made to him that, the accused was not driver of the offending vehicle but he was driver of an another vehicle belonging to PW.14 himself. This is a new stand taken by the accused which is completely inconsistent. Apart from that PW.14 is denied the said suggestion, and specifically asserts that the accused himself was driving the offending vehicle.
20. PW.15 and PW.16 are the doctors, who have treated injured and PW.17 has deposed regarding registration of the crime, issuing FIR, visiting the spot and seizure of the vehicle. In the cross-examination a suggestion was made to him that, when he was first time seen the tempo in the spot, there was a puncture in left
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 front tyre and he admitted the said suggestions. A similar suggestion was made to the other witnesses also.
21. PW.18 is the Motor Vehicle Inspector and he specifically deposed that the accident is not because of any mechanical defect in the vehicle and a suggestion was made in his cross-examination that during the movement, if the front tyre bursts, there is possibility of driver loosing the control over the vehicle. He admitted this suggestion. However, in the entire cross-examination of this witness PW.18, nothing was elicited regarding there was any puncture either the front left wheel or left rear wheel. He was the best witness as he has examined the vehicle and though a suggestion was made as to what happens if the front wheel bursts, but it was not elicited from his mouth that the front wheel was burst in the instant case when he examined the vehicle.
22. PW.19 is the complainant and he has also supported the case of the prosecution to some extent and turned hostile partially. However, his evidence discloses
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 that the vehicle met with an accident and he suffered with injury.
23. On perusal of EX.P7 Motor Vehicle Inspector report, it is evident that sufficient damage has been caused to the vehicle and there is no reference of any wheel of the vehicle being punctured or there was burst of the tyre. Even during the cross-examination of Motor Vehicle Inspector, no such suggestions have been made so as to elicit the said aspect. Arguments has been advanced regarding PW.17, admitting this aspect, but the IMV inspector i.e. PW.18 is the best witness in the given circumstances but no such suggestion were made to him.
24. Even otherwise all along it is the specific defence of the accused that the left front wheel of the vehicle was punctured or bursts which has resulted in the accident. But in the 313 statement, a inconsistent defence was setup by the accused to Question No.23 asserting that left rear wheel was burst and was burnt, as a result the control was lost, which has resulted in the accident. A statement of accused reads as under:
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NC: 2023:KHC:35415 gÀ¸ÉÛAiÀÄ ªÉÄÃˉÉ ºÉÆAqÀUÀ½zÀÄÝ, ªÁºÀ£ÀzÀ »A¢£À mÉÊgï ¸ÀÄlÄÖ (Burst) DV, ªÁºÀ£À ¤AiÀÄAvÀætPÉÌ ¹UÀ°®è
25. But this defence is completely inconsistent and contrary to the defence setup in the evidence wherein all along it is asserted that front left rear was burst which has resulted in the accident, but in 313 statement a different defence was setup.
26. Interestingly, accused has not entered into witness box and led any defence evidence. However, considering his inconsistent defence he would have been the best witness in given circumstances to explain as to what exactly happened at the time of the accident, since all these facts were within his knowledge and he is required to explain them under Section 106 of the Evidence Act. But he did not attempted to explain it, but taken inconsistent defences. Hence the defence raised by the accused cannot be said to be probable and that too when such defence is not put forward to PW.18 Motor Vehicle Inspector. Admittedly the vehicle while moving on a public road over turned and fell in a tank by the side of
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 the road and it is evident from the sketch of the scene of offence which is marked at Ex.P20. Sketch also discloses that the vehicle fell in a tank which is situated nearly 20 feet away and that itself discloses the speed of the vehicle.
27. No doubt speed of the vehicle itself is not the criteria and in this regard the learned counsel for the revision petitioner placed reliance and on a decision reported in (2012) 9 Supreme Court Cases 284 - Ravi Kapur Vs. State of Rajasthan. Absolutely there is no dispute regarding the proposition of law laid on in the said decision. But the Hon'ble Apex Court in the said decision itself observed and laid guidelines regarding principles of reasonable care and concept of culpable rashness and culpable negligence. The Hon'ble Apex Court has also observed that the speed itself is not a criteria for deciding rash and negligent manner act in all the matters, but sometimes slow driving coupled with other comparing circumstances also prove rash and negligent act.
28. In the instant case, the vehicle while moving on the public road over turned and the accused has taken two
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 inconsistent defences regarding puncture of front wheel or rear wheel, but he did not enter into witness box and he would have been the best witness in the given circumstances. Hence, as observed by the Apex Court in the said decision itself, the doctrine of Res Ipsa loquitur is applicable to the facts and circumstances of the case in hand and infact the principles elicited in the above cited decision, would assist the prosecution rather than the defence.
29. Learned counsel for the revision petitioner has further placed reliance on an unreported decision of this Court in Crl.RP.682/2015 dated 09.06.2023 "Sri.Vijay Vs. State of Karnataka". But the facts and circumstances are entirely different and there two vehicles were involved in the said case, as KSRTC bus dashed against mini goods lorry. But in the instant case the tempo while moving over turned / toppled resulting in the accident. Hence, the said principles will not come to the aid of the revision petitioner in any way.
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CRL.RP No. 1377 of 2015
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30. The oral and documentary evidence led by the prosecution clearly establish that, the accident in question is because of actionable negligence on the part of the accused, who was the driver of the offending vehicle. Both the Courts below are justified in convicting the accused and no perversity or illegality is found in this regard. Hence, question of interference with conviction order of both the Courts below does not arise at all.
31. Learned Magistrate has convicted the accused for the offence punishable under Sections 279 as well as 304(A) of IPC. He has imposed independent sentences. The learned counsel for the revision petitioner in this regard invites the attention to Section 71 of the IPC. There is some force in the arguments advanced by the learned counsel for the revision petitioner in this regard as 304 (A) IPC is a larger offence and the offence under Section 279 of IPC merges with 304(A) of IPC. Hence, both the Courts have committed an error in sentencing the accused for the offence under Section 279 of the IPC also.
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32. The learned counsel for the revision petitioner further contends that the same rule is also applicable to the offence under Sections 337 and 338 of the IPC. But Section 337 is attracted pertaining to the simple injuries being caused to the complainant and CW.14 to CW.18 while offence under Section 338 pertaining to grievous injuries sustained by CW.11 to CW.13. Under such circumstances same rule cannot be made applicable and arguments of the learned counsel for the revision petitioner in this regard holds no water.
33. Apart from that, after having caused the accident, the accused/revision petitioner did not attend the injured by providing medical aid to them and did not report the matter to the nearest Police station and fled from the spot. Hence, he was rightly convicted for the offence under Section 134 (A and B) and Section 187 of the I.M.V. Act.
34. Looking to these facts and circumstances the revision petition needs to be allowed so far as it relates to the sentencing portion pertaining to the offence under
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CRL.RP No. 1377 of 2015
NC: 2023:KHC:35415 Section 279 of IPC only. Accordingly, the point under consideration is partly answered in the affirmative. Hence, I proceed to pass the following:
ORDER
1. The revision petition is allowed in part so far as it relates to the sentence imposed for the offence under Section 279 of the IPC.
2. The judgment of conviction passed by the II Civil Judge and JMFC, Mysuru in C.C.No.233/2006 dated 26.12.2013 and confirmed by the I Additional Sessions Judge, Mysuru in Crl.A.No.24/2014 vide judgment dated 26.10.2015 stands confirmed.
3. The sentence imposed for the offence under Section 279 of the IPC is set aside as it merges with larger offence under Section 304(A) of the IPC.
4. However, the sentences imposed for the other offences stand confirmed.
5. Send back the TCR's to the trial Court along with copy of this order with a direction to the learned Magistrate to secure in presence of the revision Petitioner/accused for serving
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NC: 2023:KHC:35415 the sentence. All the sentences shall run concurrently.
Sd/-
JUDGE URN List No.: 1 Sl No.: 4 CT: BHK