Karnataka High Court
Yamanappa S/O. Shivappa Halaki vs The State Of Karnataka, on 2 August, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.RP.NO.2075/2012
BETWEEN:
YAMANAPPA S/O SHIVAPPA HALAKI,
AGED ABOUT 38 YEARS,
R/AT KALLOLLI, NOW AT MAREGUDDI,
TQ.JAMKHANDI, DIST: BAGALKOTE.
...PETITIONER
(BY SRI.MAHANTESH S.MATHAD, ADV. FOR
SRI.MRUTYUNJAYA TATA BANGI, ADV.)
AND:
THE STATE OF KARNATAKA,
REP.BY SUB-INSPECTOR OF POLICE,
RURAL POLICE STATIN, JAMKHANDI,
DIST: BAGALKOTE.
...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W SECTION 401 OF CR.P.C. TO SET ASIDE
THE ORDER OF CONVICTION PASSED BY THE ADDL.CIVIL
JUDGE AND JMFC, JAMKHANDI DATED 18.07.2011 PASSED IN
C.C.NO.282/2009 CONFIRMED BY THE COURT OF FAST TRACK,
JAMKHANDI DATED 31.01.2012 PASSED IN CRL.A.NO.62/2011
CONVICTING THE PETITONER FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 279 AND 338 OF IPC R/W SECTION 187 OF
M.V.ACT AND ACQUIT THE PETITIONER BY ALLOWING THE
PRESENT REVISION PETITION.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This revision petition is filed against the judgment and order of conviction passed by the Fast Track Court, Jamkhandi in Crl.A.No.62/2011 dated 31.01.2012 whereby the learned Sessions Judge has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the Additional Civil Judge & JMFC, Jamkhandi in C.C.No.282/2009 dated 18.07.2011.
2. The facts leading to the case care that, on 19.03.2009 at about 3.00 p.m, within the limits of Jamkhandi Rural Police Station, on Mareguddi-Kallusallu country side road, the accused being the driver of the Tractor & Trailer bearing Reg.No.KA-48/T-4248-4249, drove it in a rash and negligent manner endangering human life and public safety from Mareguddi village towards Kallusallu and while P.W.1 was walking by the side of the road, the accused knock down P.W.1 causing grievous injuries to her and thereafter fled from the spot without intimating the accident to the nearest police 3 station and without attending the injured. The victim was admitted in KLE Hospital, Belagavi and she filed a complaint in crime No.32/2009 of Rural Police Station and thereafter, Investigating Officer has submitted charge sheet against the accused for the offences punishable under Sections 279 and 338 of IPC and Section 187 of M.V.Act. The case was registered in C.C.No.282/2009 and the learned Magistrate after taking cognizance issued process to the accused. The accused appeared and was enlarged on bail. The plea was framed and read over to the accused and he pleaded not guilty.
3. The prosecution has examined 15 witnesses and got marked 12 documents as per Exs.P1 to P12. The learned Magistrate recorded the statement of the accused under Section 313 of Cr.P.C. to enable him to explain the incriminating evidence appearing against him. However, the case of the accused is total denial, but he has not put forward any defence evidence. Then, the learned Magistrate after hearing the arguments convicted the 4 accused under Section 255(2) of Cr.P.C. for the offences punishable under Sections 279 and 338 of IPC as well as under Section 187 of M.V.Act. He has imposed sentence of simple imprisonment for a period of three months with fine of Rs.1,000/- for the offence punishable under Section 279 of IPC and simple imprisonment for a period of six months with fine of Rs.1,000/- for the offence punishable under Section 338 of IPC and fine of Rs.500/- for the offence punishable under Section 187 of M.V.Act.
4. This order is being challenged before the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi in Crl.A.No.62/2011 and the learned Sessions Judge by judgment dated 31.01.2012 dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Hence, the revision petitioner has approached this court by filing this revision petition. 5
5. Heard the arguments of the learned counsel for the revision petitioner and the learned HCGP for the respondent-State. Perused the records.
6. Learned counsel for the revision petitioner would argue that the judgment of the courts below are contrary to law and both the courts below have failed to appreciate the evidence and relied the sole evidence of the complainant, which is not trustworthy. He would also contend that, for the offence under Section 338 of IPC, there is no material placed in the form of x-rays and the complainant instead of getting admitted in the Government Hospital at Jamkhandi got admitted in Belagavi, which is at a distance of 180 k.m. which creates doubt regarding conduct of the complainant. Alternatively, he would also submit that the sentence of imprisonment may be set aside by restricting the conviction only to the extent of fine.
7. Per contra, learned High Court Government Pleader appearing for the respondent-State supported the 6 judgment of conviction and order of sentence passed by the trial court. He would contend that both the courts below have appreciated the oral and documentary evidence meticulously and arrived at a just decision. Hence, he seeks dismissal of the revision petition.
8. Having heard the arguments and perusing the records, it is evident that the revision petitioner is a driver of a Tractor and Trailer bearing Reg.No.KA-48/T-4248- 4249. Though the revision petitioner has made a halfhearted attempt to dispute his status as driver, the evidence clearly discloses that he was driver of the offending vehicle. Further, involvement of the offending Tractor and Trailer in the accident is also undisputed. The learned counsel for the revision petitioner has also admitted these aspects before this court during the course of his arguments. There is no serious dispute of the fact that the complainant has suffered grievous injuries. Ex.P9 clearly establishes this aspect. The contention of the learned counsel for the petitioner that, 'X-rays are not 7 produced', cannot be a ground to discard the wound certificate issued by the Medical Officer, when the x-ray number and other details were referred there. The medical certificate clearly discloses that the injuries are grievous in nature and no contrary evidence is also produced by the revision petitioner. The owner of the vehicle was also examined and though he has turned hostile, he has categorically stated that the accused was the driver of the offending vehicle and he did not dispute the involvement of his vehicle in the accident. He got released the vehicle by executing an indemnity bond.
9. The accused being the driver has seen the complainant-Smt.Shobha while she was moving on the road and caused the accident by hitting from back side. How the accident has occurred is within the knowledge of the accused and hence, he would have been the best person in the given circumstances to explain these aspects. Section 106 of the Indian Evidence Act casts burden on the person to establish the facts specifically 8 within his knowledge. In the instant case, admittedly it is within the knowledge of the accused as to how the accident has occurred. But, he is not prepared to give any explanation in this regard. His statement under Section 313 of Cr.P.C. is also a formal denial. Hence, adverse inference is required to be drawn and admittedly the complainant has suffered grievous injuries. The trial Court and the appellate Court have appreciated the evidence and are justified in convicting the accused for the offences punishable under Sections 279 and 338 of IPC and under Section 187 of M.V.Act. In these circumstances, question of interference of this Court with the judgment of conviction passed by the trial court is un-warranted.
10. Learned counsel for the accused/revision petitioner would argue that there are lot of dependents on the petitioner and he is aged more than 45 years and the accident has occurred at 12½ years earlier and as such, looking to the long pending dispute, sought for leniency against accused by imposing only fine by setting aside the 9 part of sentence of imprisonment. In this context, he has placed reliance on a decision of the Hon'ble Apex Court in Criminal Appeal No. 536/2021 arising out of SLP (Crl.) No.5985/2016, wherein the Hon'ble Apex Court has substituted the sentence only by way of fine of Rs.1,000/- for the offences punishable under Sections 279 and 338 of IPC by modifying the sentence of imprisonment of six months. The offence under Section 279 is punishable with imprisonment for a period of six months or fine of Rs.1,000/- or both. The offence under Section 338 of IPC is punishable with imprisonment for two years or fine of Rs.1,000/- or both. It is evident that maximum fine prescribed is Rs.1,000/- in respect of both the offences. As regards the offence under Section 187 of M.V.Act, only fine has been imposed. In the instant case also, the accident has occurred about 12 years back. Further, the revision petitioner hails from the rural area and he is a rustic agriculturist. Lot of water has been flown in this 12 years period. The principles of the above cited case are 10 similar to the case in hand and are applicable to present case.
11. Looking to these facts and circumstances, in my considered opinion, by confirming the conviction, the sentence can be modified by setting aside the sentence of imprisonment by restricting it to fine of Rs.1,000/- for each of the offences under Section 279 and 338 of IPC, which will meet the ends of justice. Accordingly, I proceed to pass the following:-
ORDER The criminal revision petition is allowed partly. The conviction order dated 18.07.2011 passed by the Additional Civil Judge and JMFC, Jamkhandi in Criminal Case No.282/2009 which is confirmed by the Court of Fast Track, Jamkhandi, vide judgment dated 31.01.2012 passed in Criminal Appeal No.62 of 2011 convicting the accused/revision petitioner for the offences punishable under Sections 279 and 338 of IPC read with Section 187 of M.V. Act, are confirmed.11
However, the sentence of imprisonment for the offence under Sections 279 and 338 of IPC is set aside and it is restricted only to fine portion by confirming fine portion with default clause as imposed by the trial court.
The fine if not deposited by the accused/revision petitioner, the same shall be deposited within one month from today.
Sd/-
JUDGE MBS/KGR*