Karnataka High Court
Kotresh H S/O. Late Lokappa vs State Of Karnataka on 28 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:4000
CRL.RP No. 100279 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100279 OF 2023
[397(CR.PC)/438(BNSS)]
BETWEEN:
KOTRESH H. S/O. LATE LOKAPPA,
AGE: 37 YEARS, OCC. DRIVER,
R/O. K. AYYANAHALLI, KUDLIGI,
BALLARI-583134.
...PETITIONER
(BY SRI R.M. JAVED, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH CHIGATERI P.S., HOSPETE,
Digitally
signed by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA
KALMATH
KALMATH
Date:
2025.02.28
REPRESENTED BY STATE PUBLIC PROSECUTOR,
16:30:00
+0530
HIGH COURT OF KARNATAKA, DHARWAD-580001.
...RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING
TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, HARPANAHALLI IN C.C.NO. 518/2016 DATED 26.09.2018,
THEREBY CONVICTING THE REVISION PETITIONER/ACCUSED AND
SENTENCING HIM TO UNDERGO S.I. FOR A PERIOD OF 6 MONTHS
AND FINE OF RS. 2000/- FOR THE OFFENCE PUNISHABLE UNDER
SECTION 279 OF IPC IN DEFAULT OF PAYMENT OF FINE, FURTHER
UNDERGO SI FOR ONE MONTH AND, SENTENCING HIM TO UNDERGO
SI FOR A PERIOD OF 3 MONTHS AND FINE OF RS.1000/- FOR THE
OFFENCE PUNISHABLE UNDER SECTION 337 OF IPC IN DEFAULT OF
PAYMENT OF FINE, FURTHER UNDERGO SI FOR ONE MONTH AND
SENTENCING HIM TO UNDERGO SI FOR A PERIOD OF 6 MONTHS
AND FINE OF RS.2000/- FOR THE OFFENCE PUNISHABLE UNDER
SECTION 338 IPC IN DEFAULT OF PAYMENT OF FINE, FURTHER
UNDERGO SI FOR ONE MONTH AND 338 IPC, AND WHICH IS PARTLY
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NC: 2025:KHC-D:4000
CRL.RP No. 100279 of 2023
ALLOWED BY III ADDL. DIST. AND SESSIONS JUDGE, BALLARI
SITTING AT HOSPETE IN CRL.A NO. 5021/2020 DATED 09.06.2023
AND ACCUSED IS DIRECTED TO UNDERGO SI FOR A PERIOD OF 3
MONTHS AND TO PAY FINE OF RS.1000/- IN DEFAULT TO UNDERGO
SI FOR 15 DAYS FOR OFFENCE PUNISHABLE UNDER SECTION 279
IPC AND ACCUSED IS DIRECTED TO UNDERGO SI FOR A PERIOD OF
1 MONTHS AND TO PAY FINE OF RS. 500/- IN DEFAULT TO
UNDERGO SI FOR 07 DAYS FOR OFFENCE PUNISHABLE UNDER
SECTION 337 OF IPC AND ACCUSED IS DIRECTED TO UNDERGO SI
FOR A PERIOD OF 3 MONTHS AND TO PAY FINE OF RS.1000/- IN
DEFAULT TO UNDERGO SI FOR 15 DAYS FOR OFFENCE PUNISHABLE
UNDER SECTION 338 OF IPC, AND CONSEQUENTLY, ACQUIT THE
REVISION PETITIONER/ACCUSED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment of conviction and order of sentence dated 09.06.2023 passed by III Additional District and Sessions Judge, Ballari (sitting at Hospete) in Crl.A.no.5021/2020 and judgment of conviction and order of sentence dated 26.09.2018 passed by Senior Civil Judge and JMFC., Harapanahalli in C.C.no.518/2016, this revision petition is filed by accused (petitioner).
2. Sri RM Javed, learned counsel for petitioner submitted prosecution case was based on complaint dated 29.08.2016 filed by G. Basavaraj (complainant) stating he was resident of Loleshwara village earning livelihood driving his Goods Auto bearing Regn.no.KA-16-B-2660. On 29.08.2016, -3- NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 Halappa Poojar and Dafedar Fakirappa had hired complainant's auto for transporting groceries from Loleshwara village to Harapanahalli. Enroute at 6:15 a.m., when it was near Morarji Desai Residential School, a Mahendra Maxi Cab Goods vehicle driven in rash and negligent manner collided with complainant's Auto. Due to entangling of rear view mirror, Auto overturned. In said incident, complainant sustained injuries on his right shoulder and below knee. Both hirers also sustained injuries. At that time, Basavaraj and Prasanna from complainant's village arrived there and took care of victims. On enquiry, they told them offending vehicle was bearing regn.no.KA-17-B-3266 and driven by Kotresh (petitioner), resident of Aiyanahalli village. Injured were taken to Government Hospital at Harapanahalli. While complainant was treated as outpatient, Halappa Poojar and Dafedar Fakirappa were taken to CJ Hospital at Davanagere for higher treatment. It was alleged that by his rash and negligent driving so as to endanger life or personal safety of others, petitioner had committed offences. Complaint was registered as Crime no.64/2016 by Chigateri Police Station for offences punishable under Sections 279 and 337 of Indian Penal Code, 1860 ('IPC' for short).
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3. After investigation, charge-sheet was filed on 28.11.2016 by including offence under Section 338 of IPC also. On issuance of summons, petitioner appeared, denied charges and chose to be tried. During trial, prosecution examined 10 witnesses as PW.1 to PW.10 and got marked Exs.P1 to Ex.P12. Thereafter, petitioner was apprised of incriminating material and his statement recorded under Section 313 of CrPC. Petitioner denied material as false and did not choose to lead rebuttal evidence.
4. On consideration, trial Court passed impugned judgment convicting petitioner for offences punishable under Sections 279, 337 and 338 of IPC and sentencing him to undergo simple imprisonment for six months with fine of Rs.2,000/- for offence under Section 279 of IPC; to undergo simple imprisonment for three months with fine of Rs.1,000/- for offence under Section 337 of IPC; and to undergo simple imprisonment for three months with fine of Rs.2,000/- for offence under Section 338 of IPC and default thereof to undergo simple imprisonment for one month each. Aggrieved thereby, petitioner filed Crl.A.no.5021/2020.
5. On consideration, Appellate Court confirmed conviction for all offences, however, allowed appeal in part -5- NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 reducing sentences - to simple imprisonment of three months with fine of Rs.2,000/- for offence under Section 279 of IPC; simple imprisonment of one month with fine of Rs.500/- for offence under Section 337 of IPC and simple imprisonment of three months with fine of Rs.1,000/- for offence under Section 338 of IPC and default of payment of fine amounts, to undergo further period of simple imprisonment for 15 days and 7 days respectively. Aggrieved thereby, revision was filed.
6. It was submitted both Courts failed to appreciate evidence and assign cogent reasons for convicting petitioner. It was submitted trial Court erred in accepting complaint's version even though it was not supported by evidence. It overlooked that deposition of witness contradicted each other and also suffered from material omissions. It was submitted, both Courts failed to appreciate fact that prosecution failed to establish offences beyond reasonable doubt. It was submitted, there was observation about Auto overturning due to entanglement of petitioner's vehicle with Auto. Moreover, accident in question did not result in death of any person and injuries sustained by victim were not severe. Under above circumstances, learned counsel sought for acquitting petitioner or in alternative for modification/reduction of sentence. -6-
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7. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent - State opposed petition. It was submitted, finding of conviction was concurrent, leaving no scope for interference. It was submitted, complaint was filed alleging rash and negligent driving by petitioner resulting in injuries to complainant and hirers. It was submitted, order of conviction was based on deposition of injured eye-witnesses. Therefore was due appreciation of material on record for convicting petitioner for offences alleged.
8. Heard learned counsel, perused impugned judgments/orders and record.
9. From above, only point that would arise for consideration is :
"Whether impugned judgments/orders passed by trial and Appellate Court call for interference?
10. This revision petition is filed under Section 397 read with Section 401 (1) of CrPC, against concurrent findings. Hon'ble Supreme Court in case of Amit Kapoor v. Ramesh Chander, reported in (2012) 9 SCC 460 has held scope for interference in revision would be extremely limited normally only to questions of law and not finding of fact. It held: -7-
NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own merits."
11. Petitioner herein is aggrieved by his conviction for offences under Sections 279, 337 and 338 of IPC. Though, Appellate Court allowed appeal in part, same was only insofar as sentence, finding of conviction is concurrent.
12. Main ground urged is non-consideration of material on record and improper conclusions based on material on record.
13. It is seen, prosecution examined PWs-1 to 10 and got marked Exs.P1 to P12, to substantiate it's case. PWs-1 to 3 are complainant and injured victims, PWs-4 to 6 - mahazar -8- NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 witnesses, PW-7 - eyewitness, PW-8 - Doctor, PWs-9 and 10 being Investigating Officer and RTO.
14. PW-1 deposed that at time and date of incident, when he was driving his Goods Auto on Morarji Desai Residential School road to go to Harapanahalli, petitioner drove his Maxicab Goods vehicle in rash and negligent manner endangering human life and his vehicle dashed against Auto from backside causing it to overturn. But, in complaint, he had stated that accident had occurred due to brushing of petitioner's vehicle against complainant's vehicle on its right side and when its mirror got stuck in right side door of Auto. On confrontation, PW-1, denies stating so in complaint.
15. Manner of occurrence of accident is reiterated by PWs-2 and 3 also. In fact, by treating PWs-2 and 3 as hostile, they were subjected to cross-examination by Public Prosecutor, wherein admission is elicited about occurrence of accident as stated in complaint. In cross-examination by petitioner, nothing material is elicited.
16. PW-4 is witness to Ex.P2 - Accident spot panchanama. In cross-examination, he admits he is relative of complainant. PWs-5 and 6, pancha witnesses to Ex.P5 - Vehicle -9- NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 seizure panchanama turned hostile and did not support prosecution.
17. PW-7 examined as eye-witness to accident states that he was informed accident by complainant over phone. In cross-examination, he admits he had not witnessed accident and was deposing about negligence of petitioner on basis of information given by complainant. He also stated as petitioner was stated to have been driving his vehicle in speed, he stated that petitioner was rash and negligent.
18. PW-8 - Doctor deposed about injuries sustained by complainant/victims. His deposition would not be material insofar as manner of occurrence of accident. PW-9 - Investigating Officer, who deposed about investigation conducted and about collection of prosecution material. PW-10
- RTO stated about inspection of vehicle involved in accident and noting following damages:
a) the vehicle of the complainant i.e., Vehicle bearing Reg.No.KA-16-B-2660, has sustained following damages;
i) Front wind shield glass broken;
ii) Right side rare view mirror damaged;
iii) Front body shape, right side scratched;
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b) the vehicle of the Accused i.e., Mahendra Maxi Cab Goods bearing Reg.No.KA-17-B-
3266, has sustained following injuries:
i) Front wind shield glass broken;
ii) Left side rare view mirror damaged;
iii) Front body shape left side scratched;
Thus, no damages are noted on back side of complainant's vehicle.
19. While passing impugned judgment, trial Court noted that there was no dispute about occurrence of accident and damages of vehicles noted by PW-10 in Ex.P10 corroborated prosecution version that petitioner's vehicle dashed against complainant's vehicle on its front right side. It observed, petitioner had driven his vehicle and dashed against complainant's vehicle on its backside and there was failure on part of petitioner to maintain sufficient gap between vehicles, which amounted to rash and negligent driving. Trial Court failed to notice discrepancies elicited in manner of occurrence of accident.
20. Appellate Court however referred to entire material on record. It takes note of discrepancy between complainant's version in Ex.P1 - complaint and his deposition. But, concludes that they were minor contradictions by referring to Exs.P2 to P4
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- spot mahazar and accident spot sketch. In this regard, it relies on deposition of PW-4 in support of its conclusion. Main basis for confirming finding of trial court on conviction is reference to principle of law that deposition of injured witness stands on higher pedestal and that material on record was consistent insofar as occurrence of accident in question involving petitioner's vehicle and complainant's vehicle. It observes, since petitioner's vehicle was moving on right side of complainant's vehicle and collided with it, it was due to rash and negligent driving by petitioner.
21. From above material, it would indeed appear that there is no dispute about occurrence of accident due to collision between petitioner's Maxi Cab and complainant's Goods auto. But, there is material discrepancy about manner of occurrence of accident. While there would appear insufficient material to conclude that accident was solely due to rash and negligent driving of motor vehicle by petitioner. Despite, no cross- examination of PW-1 on Exs.P2 to P4 and nothing material elicited to discredit - Ex.P10 during cross examination of PWs-9 and 10, even conclusion that accident occurred when complainant's Auto was moving slowly on left side of road, and petitioner's Maxi Cab was moving from right side of Auto, would
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NC: 2025:KHC-D:4000 CRL.RP No. 100279 of 2023 not by itself be sufficient to conclude that accident was due to rash and negligent driving by petitioner. For lack of conclusive material, petitioner would be entitled for benefit of doubt, since primary principle in criminal law is that prosecution is required to establish commission of offences by accused beyond reasonable doubt.
22. Thus, while conviction by trial Court would suffer infirmity for failing to appreciate discrepancies elicited about manner of occurrence of accident that of Appellate Court would call for interference on ground of its conclusion being based on insufficient if not unacceptable evidence. For said reasons, point for consideration is answered in affirmative.
ORDER
1. Revision petition is allowed; judgment of conviction and order of sentence dated 26.09.2018 passed by Senior Civil Judge and JMFC., Harapanahalli in C.C.no.518/2016 and confirmed by judgment dated 09.06.2023 passed by III Additional District and Sessions Judge, Ballari (sitting at Hospete) in Crl.A.no.5021/2020, are set aside.
2. Petitioner/accused is acquitted of offences punishable under Sections 279, 337 and 338 of IPC.
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3. Bail/sureties bonds, if any, shall stand cancelled.
SD/-
(RAVI V.HOSMANI) JUDGE GRD CT:PA LIST NO.: 1 SL NO.: 16