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Karnataka High Court

Mr.Rudrappa Irappa Bagevadi vs The State Of Karnataka on 12 January, 2024

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                                                  CRL.RP No. 100189 of 2019




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 12TH DAY OF JANUARY, 2024

                                          BEFORE
                    THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                       CRIMINAL REVISION PETITION NO. 100189 OF 2019


                   BETWEEN:

                   MR. RUDRAPPA IRAPPA
                   BAGEVADI.
                   AGE: 55. OCC: EX-SERVICEMAN,
                   R/O: INCHAL.
                   TQ: BAILHONGAL.
                   DT: BELAGAVI.

                                                              ...PETITIONER
                   (BY SRI.NEELENDRA D. GUNDE. ADVOCATE)

                   AND:

                   THE STATE OF KARNATAKA
                   BY BAILHONGAL POLICE,
                   REPRESENTED BY STATE PUBLIC PROSECUTOR,
Digitally signed
                   HIGH COURT BUILDING,
by
SHIVAKUMAR         BANGALORE-560001.
HIREMATH
Date: 2024.01.22
13:04:50 +0530
                                                             ...RESPONDENT
                   (BY SRI. M.B. GUNDAWADE ADDL. SPP)

                        THIS CRIMINAL REVISION PETITION IS FILED U/S 397
                   R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
                   AND ORDER OF CONVICTION DATED:25.05.2019 PASSED BY
                   THE LEARNED 4TH ADDL DISTRICT AND SESSIONS JUDGE,
                   BELAGAVI IN CRIMINAL APPEAL NO. 55/2019, THEREBY
                   DISMISSING THE APPEAL FILED BY THE PETITIONE AND
                   CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION
                   DATED 07.02.2019 PASSED BY THE LEARNED ADDL. JMFC-
                   BAILHIONGAL IN C.C. NO. 1242/2015 THEREBY CONVICTING
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                                     CRL.RP No. 100189 of 2019




THE PETITIONER FOR THE O/U/S 279, 337 & 304 (A) OF IPC &
SECTION 146 R/W 196 OF MOTOR VEHICLES ACT, IN THE
INTEREST OF JUSTICE.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING, AFTER HAVING HEARD THE MATTER, RESERVED FOR
JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:

                            ORDER

The revision petitioner-accused no.1 on the file of Addl.Civil Judge and JMFC, Bailhongal in CC No.1242/15 being aggrieved by the judgment of his conviction and order of sentence passed in the said Criminal Case dated 7.2.2019 and the said conviction and order of sentence being confirmed by the IV Addl. District and Sessions Judge, Belagavi in Criminal Appeal No.55/19 dated 25.5.2019 has preferred this revision petition.

2. The parties to this revision petition are referred as per their rank before the trial Court for the purpose of convenience.

3. Brief and relevant facts as set out in the FIR are as under:

CRL.RP No. 100189 of 2019

That complainant Savitha Basavaraj Kambar gave her statement before PSI, Bailhongal Police Station when she was taking treatment in the Hospital stating that on 10.11.2014 herself and her father Basavaraj had been to Bailhongal for the purpose of purchase of grocery. After purchasing the grocery and after attending the fair at Bailhongal, they were returning on the scooter bearing Regn.No.GA 01 K 3494. The said scooter was being driven by Basavrajappa the father of the complainant.

Complainant was the pillion rider on the said scooter. When they were moving near the landed property of one Malakajappa Jodannavar from Bailhongal side to Inchal side, at that time, from Inchal side to Bailhongal side one motor bike rider by riding his motor bike in high speed along with the pillion rider in a rash and negligent manner driving his motor bike in a zig zag manner endangering human life, came on the wrong side and dashed against the scooter on which complainant and her father were traveling. Because of this accident, both rider and pillion rider of the scooter fell down. So also, rider of offending -4- CRL.RP No. 100189 of 2019 motor bike as well as pillion rider also fell down. The father of complainant Basavaraj sustained grievous injuries on his person and he died on the spot. Complainant also sustained injuries. The said accident has taken place at 5.00 p.m. on that day. She was shifted to the Hospital. In the hospital she gave a statement. It is further stated in the complainant that the rider of motor bike bearing KA 24 K 1118 was the main cause of causing the accident. Because of his rash and negligent driving of the motorbike endangering human life, the said accident has taken place. On enquiry, the name of the rider of motor bike was reveled as Rudrappa Erappa Bagewadi, a resideint of Inchal. He also sustained injuries on his head as well as chest. So also pillion rider Kateppa Shivappa Jodannavar, resident of Inchal. They were shifted to Hospital in an ambulance. With these allegations, she gave a statement before the PSI in the hospital.

4. Based upon that statement as per Ex.P1, the PSI, Bailhongal Police Station registered the crime in -5- CRL.RP No. 100189 of 2019 Crime No.262/2014 for the offences punishable under Section 279, 337, 304A of IPC and set the criminal law in motion.

5. The Investigation Officer after completion of the investigation and after compliance of all the formalities of the investigation filed charge sheet against accused for the offences punishable under Section 279, 337, 304A of IPC and Section 3 and Sec,181 and 146 and read with section 196 of MV Act.

6. Before the learned trial Court, prosecution to bring home the guilt of the accused examined in all six witnesses and got marked Ex.P1 to P17 and closed prosecution evidence. The learned trial Judge on hearing the arguments and on evaluation of the evidence found the accused guilty of committing the offence 279 and 337 and 304 A of IPC AAND SEC.146 read with Sec.196 of MV Act.

7. The learned trial Judge sentenced the accused for the offence under Section 304A of IPC directing the -6- CRL.RP No. 100189 of 2019 accused to undergo simple imprisonment for a period of six months and pay a fine of Rs.10,000/- with default sentence. So also, the accused was sentenced to pay a fine of Rs.500/- for the offence under Section 337 of IPC with default sentence and also sentenced to pay a fine of rs.1000/- for the offence punishable under Section 146 read with Section 196 of MV Act with the default sentence.

8. The charge sheet was filed by the IO against two accused i.e., one against the present petitioner as well as rider of the scooter i.e., Father of the complainant. As charge sheet was filed against the dead person, the case against him stood abated.

9. Being aggrieved by the judgment of his conviction and sentenced passed by the Addl.JMFC, Bailhongal, the accused preferred Crl.A.No.55/2019 on the file of IV Addl. District and Sessions Judge, Belagavi. The learned first Appellate Court having heard the arguments of both the side, dismissed the said appeal filed by the accused no.1 vide judgment dated 25.5.2019 confirming -7- CRL.RP No. 100189 of 2019 the judgment and order of sentence against accused no.1.

10. This is how the petitioner is before this Court challenging both judgments of his conviction and order of sentence by preferring this revision petition.

11. Learned counsel for the accused Sri Neelendra D. Gunde, with all vehemence submits that, the impugned judgments and orders passed by the Courts below are contrary to law and facts and evidence placed on record by both the side. He submits that, there is no proper appreciation of evidence by both the Courts below which has resulted in substantial miscarriage of justice. The evidence of PWs 1 to 3 have not been properly assessed by the Courts below. Complainant is an eye witness as per the case of the prosecution but she has not identified the accused as well as the motor bike which has caused the accident. She only came to know about the name of the accused no.1 when she was in the hospital. He further submits that, the offending vehicle was fifteen years old -8- CRL.RP No. 100189 of 2019 and even the deceased was not possessing effective driving license and Insurance. This it self clarifies that, deceased himself was not having driving knowledge. Even charge sheet was filed against him. This fact was not properly assessed by the trial Court as well the first appellate Court. It is further submitted that, PW.1 who is claiming to be eye witness to the accident has clearly admitted in her evidence that, she became unconscious after the accident. Therefore, her evidence cannot be accepted as truthful evidence. Even if the prosecution story is accepted, there is contributory negligence on the part of the deceased also. Therefore, as there is no proper appreciation of evidence by the courts below, he submits that the revision petition deserves to be allowed.

12. In support of his submission, in addition to the facts of the case, he took me to the grounds so mentioned in the petition, and the evidence placed on record by both the side. It is prayed to allow the revision petition and acquit the accused from the aforesaid offences. -9- CRL.RP No. 100189 of 2019

13. As against this submission, the counsel for the State i.e. Addl.SPP Sri M.B.Gundawade submits that, in view of the facts of the case and findings of the Courts below that the accused no.1 was rash and negligent in driving the motor bike and because of the same, the said accident has taken place, is duly proved in accordance with law. There was a proper assessment of evidence by both the Courts. No interference is required. The learned counsel for the State submits that the trial Court has passed a considered judgment and it has been affirmed by the first appellate court. In view of the findings of the learned trial Court as well as the first appellate court, as, the prosecution was able to establish the guilt of the accused beyond all reasonable doubt in revision there is no scope for any interference by this Court.

14. In support of his submission, learned Addl. SPP relies upon the material placed on record by the prosecution. Thus, it is submitted that the revision petition by the petitioner is liable to be dismissed.

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15. I have given my anxious consideration to the arguments of both the side and perused the record. The point that would arise for my consideration are:

"Whether the findings of the trial Court affirmed by the first appellate Court finding accused guilty of commission of the offence under Section 279, 304A, 337 of IPC and Section 146 read with Sec.196 of MV Act is erroneous and requires interference by this Court?"

16. It is specific case of the prosecution that because of the rash and negligent riding of the motor bike by the accused, the said accident has taken place. It is an admitted fact between both the sides that, the Investigation Officer, after competition of the investigation filed charge sheet against two accused person's i.e against the present revision petitioner-accused no.1 and also the deceased the father of the complainant.

17. In view of death of father of the complainant being the rider of the scooter, the case against him stood abated.

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18. It is grievance of accused no.1 that, the said deceased was not possessing the effective driving licence and possessing insurance to the said scooter. He has contributed in the commission of the crime. It is his submission that, if at all court comes to the conclusion that, there is negligence on the part of accused no.1, equally there is negligence on the part of the deceased also. Thus, according to him, because of contributory negligence on the both riders of motor bike and scooter, the said accident has taken place. Thereby, accused, no.1 admits the said accident.

19. To prove that in the said accident, Basavaraj Rudrappa Kambar, the father of the complainant died, prosecution relies upon inquest report as per Ex.P2. This Ex.P2 shows that the deceased had sustained accidental injuries on his person. This fact is corroborated by the contents of PM report ExP.14 produced by the prosecution. On reading of inquest report as well as the PM report, it shows that, because of accidental injuries, Basavaraj died.

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This fact of death of Basavaraj in the said accident is not disputed by the accused no.1.

20. It is also admitted fact between both the sides that, the said accident has taken place not because of any mechanical defects in both the vehicles. To buttress the said fact, the prosecution relies upon ExP.15 the motor vehicle report. It shows that, the said accident has taken place not because of any mechanical defects in both the vehicles. Accused no.1. has given his voluntary statement as per Ex.P16 stating that the said accident has taken place on 20.11.2014 on Bailhongal-Inchal road near the land of Jodannavar. In the said accident, the complainant also sustained injuries as noticed Ex.P17 the wound certificate. These are all admitted facts which need not be proved.

21. The further statement of complainant ExP. 3 is relied upon by the prosecution. This further statement of the complainant shows that she gave a statement as per Ex.P3 which is corroborative nature with that of her

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statement before the police as per Ex.P1. Ex.P4 is the FIR being registered by the Police in Crime No.26/2014. The prosecution also relies upon the photographs produced at Ex.P5, P6 and P8. These photographs show that where exactly the said accident had taken place. It reveals that immediately after the accident, Basavaraj fell down and sustained injuries on his head. He died on the spot itself because of profuse bleeding from his head injury. Ex.P10 is the scene of occurrence panchanama. It shows that where exactly the said accident has taken place. At the time of panchanama, IO has prepared the sketch of the scene of offence. It is marked at ExP.11. While marking these documents no objection was raised by the defence. At the time of preparing panchanama, the photographs have been snapped by the IO as per ExP.12 and ExP. 13. The scene of offence was shown to the panchas to the said panchanama. The contents of the photographs is also not denied by the defence.

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22. Sofar as oral evidence spoken to by the witnesses is concerned, PW.1, complainant Savitha Basappa Kumbar has reiterated the contents of the complainant in her evidence on oath. It is her evidence that, when herself and her father were moving on the scooter from Bailhongal towards Inchal at 5.00 p.m. on that day, when they were moving near Jodannavars landed property, from the opposite side a motor bike come and dashed against the scooter. Because of that they fell down and sustained injures. Her father died at the spot itself. She sustained grievous injuries on her right leg and also injury on her eyes. She identifies the motorbike no. as KA 24 K 1118. She identified accused no.1. as the rider of said offending motor bike. CW.5 was sitting as pillion rider on the offending motor bike.

23. It is elicited in the cross-examination that on that day when they came to Bailhongal, there was a Jatra of Maradi Basaveshwara temple. She admits that usually there is a traffic on Bailhongal-Inchal road. Further, she

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has stated that on that day, when the accident has taken place there was no much traffic. There is no further denial of this evidence by the defence. Though she has been directed with severe cross-examination, but, nothing worth is elicited from her mouth. Throughout her evidence she is consistent that, because of rash and negligent riding of motor bike by accusedno.1, the said accident has taken place.

24. PW.2 Shettappa Shivappa Junjannavar, is CW.5 being the pillion rider of offending motor bike. He admits that, himself and accused no.1. were moving on moor bike to Bailhongal on 10.11.2014. Accused No.1. was riding the said motorbike. He states that when they were nearing Bailhongal, one bike came from the opposite side there was a head-on collision. He sustained head injury. Even accused no.1. had sustained injuries. But, deposed that he does not know how the said accident has taken place. He has been declared as hostile but, nothing worth is elicited.

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25. One fact is brought on record through the evidence of PW.2 that, he was also pillion rider on the offending motor bike being driven accused no.1 on that day and sustained injuries in the said accident. To that extent, evidence of PW.2 is to be accepted.

26. PW.3. Sidramappa Nagappa Shiroor was an eye witness to the said accident. According to his evidence, about 2 ½ years prior to giving of his evidence, he was moving in a Scorpio vehicle. According to him, the complainant was travelling along with her father in a scooter from Bailhongal to Inchal side. At the same, accused No.1 and CW.5 were moving towards Bailhongal to Inchal on splendor motor bike KA P 24 1118. Accused no.1. was riding the motor bike. Because of rash and negligent driving of the said motor bike by the accused no.1. near the Jogannavar landed property, he dashed against the scooter driven by Basavaraj. The said Basavaraj Kambar was driving his scooter in a slow manner. It his evidence that, because of rash and

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negligent driving of motorbike by accused no.1. the said accident has taken place. He has been cross-examined intensively by the counsel for accused no1. But, nothing worth is elicited. Throughout his cross-examination, he is consistent that, it is because of the rash and negligent driving of the motor bike by the accused no.1. the said accident has taken place. He has denied all the suggestions directed to him.

27. P.W.5 Sanjeev Shivananada Balegar is the Police Inspector recorded the statement of complainant who was admitted in the Malaprabha hospital. Based upon that he registered the crime and set the criminal law in motion. Except denial no cross-examination directed to him.

28. PW.5 Gopal D.Jogin, Police Inspector at the relevant time, is IO. As per his evidence, he has conducted the investigation and filed the charge sheet. Except denial in the cross-examination, nothing is elicited from his mouth.

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29. PW. 6 Rausab Balasahaeb Desai is pancha to Ex.P7 and P10. He has been declared hostile witness nothing worth is elicited.

30. On reading the entire evidence placed on record by the prosecution, the eye witnesses PW1 and PW.3 are very much consistent in their evidence that because of rash and negligent driving of motor bike only, the said accident has taken place. Though accused no1. has taken up a defence that, there is contributory negligence on the part of the deceased in causing the accident, but, this defence is falsified by the contents of Ex.P8 the scene of occurrence sketch.

31. On scrupulous reading this Ex.P10 scene of pachanama and Ex.P11 the sketch, it shows that, the road at the scene of offence is having width of 18 ft. It is the case of the prosecution that, deceased Basavaraj was moving towards Inchal from Bailhongal side on the left side of the road. At that time, the motor bike driven by accused no..1 was coming from Inchal side to Bailhongal

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side. Near the landed property of Malakajappa Jogannavar, the said accident has taken place. On reading these two documents, it shows that, the said Mallikarjuna was riding his scooter at a distance of 5 ft. from the left side of the road. There was 16 ft. road available to the opposite vehicle to go on the left side of the road. But, even then, though 16 ft. road was very much available to accused no.1. to ride his motor bike towards Bailhongal, but, he came towards the right side which is a wrong side of the road and dashed against the scooter. It is the evidence of PW.1 that accused No.1. found driving his motor bike in a zig zag manner and lost control and came on the right side of the road and dashed against the scooter driven by her father. So this scene of sketch depicts how far accused no.1. was rash and negligent in riding his motor bike and in causing the accident.

32. The evidence of PW. 1 as well PW.3 is consistent about rashness and negligent riding of motorbike by accused no.1. Though it is argued by the counsel for the

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revision petitioner that, the PW.1's evidence cannot be accepted. But, the defence of the accused no.1. cannot be accepted. As rightly observed by the trial Court, as well as by the first appellate court, merely because Basavaraj Kambar was not possessing effective driving licence, is not a ground to disbelieve the evidence of the prosecution.

33. The said fact is nothing to do with the offence committed by accused. The manner in which accised No.1 has caused the accident, this itself goes to establish that, the accused no.1. was very much rash and negligent in riding the motorbike. When 16 ft. road was very much available to the accused no.1. to drive his motor bike towards Bailhongal, he has not ridden the same. That means there is omission on the part of accused no.1. in riding his motorbike towards Bailhongal side though about 16 ft. road was very much available to him.

34. Taking into consideration of this fact, it shows that the standard of care which the accused no.1. was expected to take while driving the moor bike is not being

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taken by the accused no.1. It resulted in criminal rashness in hazardous manner which was dangerous and it was a wanton act of driving motorbike in a zig zag manner with a knowledge that it will cause an injury to the opposite vehicle and the persons who were travelling on the said vehicle.

35. Thus, the very conduct of the accused goes to establish that, it is a sheer negligence on the part of the accused and it was culpable negligence on his part in driving motor bike though 16 ft. road was available on his left side of the road. He would have taken proper care but, he has not taken. This itself goes to establish that, motor bike rider was rash and negligent in riding the motor bike. It has caused head injury because of the said accident and Basavaraj died on the spot itself because of the head injury. PW.1 sustained simple injuries on her person. The learned trial Court as well as first appellate have rightly come to the conclusion that the accused no.1. was guilty

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of commission of the offences under Sec.279, 337 and 304 A of IPC and Sec.146 read with Sec.196 of MV Act.

36. The learned appellate Court has relied upon the judgment of Hon'ble Supreme Court in Dalveer Singh vs. State of Haryana.1 In the said judgment, the Hon'ble Supreme Court has clearly held that. "if the appellant is convicted for offence under Sec.304A he is not entitled to the relief under the Probation of Offenders Act." So, the said principle is rightly applied by the learned trial Court as well as the first appellate Court.

37. I do not find any factual or legal error in finding the accused guilty of the commission of the offence alleged against him.

38. Both the learned trial court as well first appellate have given well-reasoned judgment of conviction and order of sentence. Therefore, there is no merit in this revision petition and the revision petition is liable to be dismissed.

AIR 2000 SC 1677

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39. Accordingly, the point for consideration is answered in the negative.

40. Resultantly, I pass the following:

ORDER

(i) Revision petition filed by the petitioner is dismissed.

(ii) The judgment of conviction and order of sentence dated 07.02.2019 passed by the learned Addl. JMFC, Bailhongal in C.C.No. 1242/2015 confirmed by the learned IV Addl.

District and Sessions Judge, Belagavi in Criminal Appeal No.55/2019 dated 25.05.2019 are hereby confirmed.

(iii) The accused shall surrender before the trial Court within fifteen days from the date of this order to undergo the sentence.

(iv) Send back the trial Court as well as first appellate court records along with copy of this judgment forthwith.

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(v) Send the final order portion by mail to trial Court as well as the first appellate Court.

Sd/-

JUDGE SK/-