Karnataka High Court
Rukum Patel S/O Chand Patel vs The State on 31 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1168
CRL.RP No. 200072 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200072 OF 2020 (397)
BETWEEN:
RUKUM PATEL S/O CHAND PATEL
AGE: 34 YEARS, OCC: LORRY DRIVER,
R/O BILALABAD ROZA, KALABURGI.
...PETITIONER
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
AND:
THE STATE THROUGH
FARAHATABAD POLICE STATION,
Digitally signed REPRESENTED BY PUBLIC PROSECUTOR,
by SHILPA R HIGH COURT KALABURGI.
TENIHALLI
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRL.RP IS FILED U/S 397 READ WITH SEC.401 OF
CR.P.C PRAYING TO, CALL FOR THE RECORDS, AND TO ALLOW
THE ABOVE CRIMINAL REVISION BY SETTING ASIDE THE
JUDGMENT AND ORDER DATED 14.09.2020 PASSED BY THE
COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE
AT KALABURAGI, IN CRIMINAL APPEAL NO.15/2018, WHEREBY
THE LOWER APPELLANT COURT HAS CONFIRMED THE
JUDGMENT AND ORDER DATED 06.02.2018 PASSED BY THE II
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NC: 2024:KHC-K:1168
CRL.RP No. 200072 of 2020
ADDITIONAL JUDICIAL MAGISTRATE AT KALABURAGI IN
CRIMINAL CASE NO.324/2014.
THIS PETITION COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the revision petitioner/accused under Section 397 read with Section 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the learned II Additional JMFC, Kalaburagi in C.C.No.324/2014 for the offences punishable under Sections 279, 304-A, 337 and 338 of the Indian Penal Code, 1860 (for short 'IPC') and Section 187 of the Motor Vehicles Act, 1988 (for short 'M. V. Act'), which was confirmed by the learned III Additional Sessions Judge, Kalaburagi in Criminal Appeal No.15/2018 vide judgment dated 14.09.2020.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020
3. Brief factual matrix leading to the case are as under:
That on 11.05.2013, the complainant with his family members had been to Shahapur for attending the marriage ceremony of his relative and after attending the marriage, they were returning in Bolero vehicle bearing registration No.KA-32/M-9067 on NH-218 i.e., Jewargi - Saradagi road. It is further alleged that when the vehicle was proceeding near Saradagi cross opposite to Ganesh petrol bunk, a lorry bearing registration No.KA-32/B-2702 driven by the accused, came in a rash and negligent manner from the opposite end and dashed to the Bolero vehicle by moving in a wrong side, as a result, some of the inmates of the Bolero vehicle sustained grievous injuries and some of them have suffered minor injuries. It is further asserted that immediately the injured were shifted to Basaveshwar hospital in an ambulance and one person by name Ankita sustained multiple grievous injuries and -4- NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 ultimately she succumbed to the injuries while undergoing treatment.
4. It is further alleged that the accused after having caused the accident fled from the spot without providing medical aid to the injured persons and without intimating the accident to the nearest police station. In this regard, the complaint was lodged by the complainant and on the basis of the complaint the Investigating Officer visited the scene of offence and drawn the mahazar. Later on, he recorded the statement of the witnesses and then submitted the charge sheet against the accused for the aforesaid offences.
5. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Magistrate has taken cognizance of the offences and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He was provided with prosecution papers as contemplated under Section 207 of Cr.P.C.
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6. The plea under Section 279, 337, 338 and 304- A of IPC and Section 187 of the M. V. Act was recorded and accused denied the same. Then to prove the guilt of the accused, the prosecution has examined in all 12 witnesses as PWs.1 to 12 and placed reliance on 18 documents marked at Exs.P1 to P18. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial and he did not lead any oral or documentary evidence in support of his defence.
7. Then, the learned Magistrate after hearing the arguments and after appreciating the oral and documentary evidence, convicted the accused for the aforesaid offences by imposing the sentence of imprisonment as well as fine.
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020
8. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned III Additional Sessions Judge, Kalaburagi in Criminal Appeal No.15/2018. The learned Sessions Judge after re-appreciating the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
9. Being aggrieved by these concurrent findings, the revision petitioner/accused is before this Court by way of revision.
10. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and the learned High Court Government Pleader for the respondent - State. Perused the records.
11. The learned counsel for the revision petitioner would contend that though 12 witnesses have been examined, none of the witnesses have deposed regarding rash and negligent driving on the part of the accused and -7- NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 the Trial Court has failed to appreciate the oral and documentary evidence in a proper perspective. It is further asserted that the evidence on record disclose that the driver of the Bolero vehicle has driven the same with excess passengers, as a result, he was unable to control the vehicle and he caused the accident. Hence, he would contend that both the Courts below have committed an error in convicting the accused. As such, he would seek for allowing the revision by setting aside the impugned judgment of conviction and order of sentence passed by the Courts below by acquitting the accused. Alternatively, he would submit that considering the age of the accused and number of dependents, the sentence of imprisonment may be set aside by restricting sentence to the fine alone.
12. Per contra, the learned High Court Government Pleader would contend that the evidence of the prosecution clearly establish that seven persons suffered simple injuries, five persons suffered grievous injuries and one of them, succumbed because of the accident. She -8- NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 would contend that all the witnesses have supported the case of the prosecution and the evidence on record disclose that the accused has moved on the wrong side and in 313 Cr.P.C. statement, the accused did not give any explanation as to how the accident has occurred. He would also contend that considering the gravity of the offences and the death of the inmate of the bolero vehicle, the learned Magistrate has imposed reasonable sentence which does not call for any interference and sought for dismissal of the revision.
13. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by the learned II Additional Civil Judge and JMFC at Kalaburagi in Criminal Case No.324/2014 dated 06.02.2018 and confirmed by the III Additional Sessions Judge, Kalaburagi in Criminal Appeal -9- NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 No.15/2018 dated 14.09.2020 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"
14. The prosecution examined in all 12 witnesses to substantiate the case. There is no serious dispute of the fact that there was collision between the lorry bearing registration No.KA-32/B-2702 and bolero vehicle bearing No.KA-32/M-9067 near Saradagi-B cross. It is also not in serious dispute that the accused was the driver of the offending lorry. It is also admitted fact that seven persons suffered simple injuries and five persons suffered grievous injuries and in of them, one Ankita succumbed to the injuries sustained in the accident. Even the accused has not set up any defence that immediately after the accident, he attended the injured or reported the matter to the nearest police station. In view of these aspects, as regards the offence under Section 187 of IPC, there is
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 absolutely no denial and what is denied is only rash and negligent act.
15. P.W.1 Gorakhnath is the complainant and he has testified on 11.05.2013, wherein he asserted that on 11.05.2013, he was along with C.W.4 to 7, had been to Shahapur for attending marriage and while returning towards Kalaburagi in a bolero vehicle near Saradagi cross, a lorry came from opposite direction and dashed their vehicle, resulting in injuries to him and others. He also specifically stated that Ankita his sister's daughter who was travelling in the bolero had suffered grievous injuries and succumbed in the hospital. He has also specifically asserted that the accused fled away from the spot. Though he was cross-examined at length, nothing was elicited so as to impeach his evidence and a simple suggestion was made that he was carrying excess passengers and because of his negligent act, the accident has occurred, but he denied the said suggestion.
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16. P.W.3 Ramrao is also an inmate of the bolero vehicle and he has also deposed in terms of case of the prosecution. A simple suggestion regarding formal denial and reading over the statement recorded was elicited, but it does not have any much relevancy as no contradictions and omissions were got marked. P.W.4 Suresh is also inmate of the vehicle and he has also specifically deposed regarding the accident because of actionable negligent on the part of the accused. P.W.5 Anjana, P.W.6 Muktabai and P.W.7 Rajendra are also eyewitness and their evidence is also in consonance with the evidence of complainant and the case of the prosecution. Though all these witnesses were cross-examined, nothing was elicited so as to discard their evidence in view of any contradictions or omissions or improvements. P.W.9 is the father of the injured and admittedly, he is not eyewitness.
17. P.W.2 is the spot mahazar witness and in his evidence he deposed that on 13.05.2013 he was summoned along with C.W.3 to Saradagi cross and spot
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 mahazar was drawn, wherein bolero vehicle and lorry were seized from the spot and Ex.P.4 was drafted. He has also deposed that on the same day, he was summoned to Basaveshwar Hospital, wherein inquest mahazar as per Ex.P.5 was drawn on the dead body of the child Ankita. This witness was also cross-examined, but however, he stood the test of the cross-examination. A simple elicitation is that he do not know what was loaded in the lorry, but that is not criteria to consider the defence of the accused to prove that the accident is because of the actionable negligence on the part of the driver of the bolero i.e., P.W.1.
18. P.W.10 Basavaraj and P.W.11 Goudappa are the investigating officer. P.W.12 is a medical officer and he has deposed regarding issuing certificates as per Exs.P.10 to P.18. In his cross-examination, nature of injuries were not challenged, but it is simply elicited that in wound certificates of P.W.1, 5 and 6, there is no reference to as to how many days they were treated as
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 inpatients, but these wound certificates are only disclosing the nature of the injuries. A suggestion was made to doctor that the injuries referred in Exs.P.10 to P.18 can also be caused if a vehicle overturns and doctor admits this aspect. But it is not the case of the accused that the bolero vehicle overturned resulting in the accident. A further suggestion was made that in collision between two vehicles, such injuries cannot be caused, but he denied the said suggestion. Hence, the oral and documentary evidence clearly establish that the accident is because of actionable negligence on the part of the accused.
19. In this regard, Ex.P.5 plays vital role which is a scene of offence mahazar coupled with the sketch of the scene of offence. Admittedly, the bolero vehicle was moving from Jewargi towards Kalaburagi and the lorry was moving from Kalaburagi to Jewargi. At the accident spot, the road is situated in north-south direction and Kalaburagi is situated in northern side and accused was driving lorry towards southern side. The bolero was
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 moving from south to north and it is required to move on the western side of the road and accordingly, it was found to be on the western side. The lorry was moving from northern towards southern and it is required to move on the eastern side of the road. The mahazar as well as sketch disclose that the lorry moved on the wrong side i.e., western side instead of moving on the eastern side by crossing the medial line and hit on coming bolero. The sketch coupled with the evidence of the eyewitnesses 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 lorry Ex.P.6 is the post mortem report and it is undisputed fact that the death of Ankita is as a result of accidental injuries.
20. Ex.P.7 is the IMV report and it discloses that front side corner of the offending lorry was damaged along with the front side headlight and indicator, front side mudguard and rear side mirror came to be damaged. These documents clearly establish that both the vehicles
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 collided and the vehicle of the accused moved on the wrong side and hit the on coming bolero. It is for the accused to explain as to what compel him to move wrong side when the road is of width by 30' at the accident spot. It is a High Way having sufficient width and divided by medial line, but instead of that, the accused drove his vehicle on a wrong side and hit on coming vehicle. He did not explain how the accident has occurred and under Section 106 of Indian Evidence Act, burden is on him to explain the fact within his knowledge and he is the best witness in the given circumstances to explain how the accident has occurred, but his silence speaks lot of the things and hence, adverse inference is required to be drawn as against him.
21. The oral and documentary evidence on record clearly establish that the accident was as a result of actionable negligence on the part of the accused, who was the driver of the offending lorry which has resulted in death of Anikta and simple as well as grievous injuries to
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 C.W.1 and 4 to 10. He has also not reported the accident and did not attend the injured though the accident is admitted by the accused. Further, the learned Magistrate has also considered that the offence under Section 279 of IPC merges with larger offence under Section 304A of IPC and there is no requirement of imposing the separate sentence for Section 279 of IPC. Hence, it is evident that the learned Magistrate has elaborately considered each and every aspect and has analyzed the oral and documentary evidence in detail and has rightly convicted the accused.
22. He has also imposed imprisonment of six months for the offence punishable under Section 304A of IPC and for the other offence, he imposed lesser imprisonment, but there was a direction that all the sentences shall run concurrently. The sentence should be reformative sentence and the sentence cannot be either rigid or flea bite sentence and accused is also required to feel the heat since he is responsible for the death of 15
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 years child by name, Ankita and he has also caused simple and grievous injuries to the other inmates. Looking to these facts and circumstances and gravity of the offences, the sentence imposed by the learned Magistrate itself is on lower side though he is empowered to impose sentence extending up to two years, but he has restricted to sentence for only six months and the fine imposed was in fact a meager i.e., Rs.10,000/-. Considering these facts and circumstances, the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge cannot be said to be perverse or arbitrary so as to call for any interference by this Court. Looking to these facts and circumstances, I am constrained to answer point under consideration in the Negative. As such, the revision petition being devoid of any merits, does not survive for consideration. Accordingly, I proceed to pass the following:
ORDER The revision petition stands dismissed.
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NC: 2024:KHC-K:1168 CRL.RP No. 200072 of 2020 Send back the records to the Trial Court along with a copy of this order with a direction to the learned Magistrate to secure the presence of the accused for serving sentence.
Sd/-
JUDGE SRT/RSP List No.: 1 Sl No.: 11