Karnataka High Court
Tippanna Kareppa Halli vs State Of Karnataka on 20 October, 2022
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CRL.RP No. 2005 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 2005 OF 2013
BETWEEN:
TIPPANNA KAREPPA HALLI
AGE: 40 YEARS, OCC: DRIVERR/O. HANABARAHATTI, TQ:
BAILHONGAL, DIST: BELGAUM
.....PETITIONER
(BY SRI. M B GUNDAWADE, ADV. &
SRI ABHINANDAN GUNDAWADE, ADV.)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR HIGH COURT OF
KARNATAKA CIRCUIT BENCH, DHARWADTHROUGH
TRAFFIC NORTH POLICEBELGAUM
.....RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING THAT THE JUDGEMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED IN C.C.NO.215/2008 BY THE
JMFC-II COURT, BELGAUM, DATED 02.09.2009 & JUDGEMENT OF
CONFIRMATION PASSED IN CRL.A.NO.176/2009, DATED 08.11.2012
BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELGAUM, AND
CONVICTING THE PRESENT REVISION PETITIONER FOR THE
OFFENCES P/U/S 304-A, 338 OF IPC AND PASSING AN ORDER OF
SENTENCE FOR THE SAID OFFENCES BE SET ASIDE.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT, MADE THE FOLLOWING:
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CRL.RP No. 2005 of 2013
ORDER
This Criminal Revision Petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 02.09.2009 in C.C.No.215/2008 on the file of the JMFC II Court at Belgaum and the order dated 08.11.2012 in Crl.A.No.176/2009 on the file of the II Additional District and Sessions Judge at Belgaum.
2. For the sake of convenience, the parties are referred to as per the rankings before the Trial Court.
3. Briefly stated facts of the case are as under:-
The accused was the driver of the passenger tempo bearing registration No.KA-26/A-2468. On 13.11.2007 at about 11.00 am, when the victim and PW1 were moving in a motorcycle bearing registration No.MH-7/J-8719 in a road, the said passenger tempo coming from opposite direction in the manner so as to endanger the human life and public safety dashed against the motorcycle resulted in the death of the rider of the motorcycle and caused injuries to the pillion rider. Based on the complaint of PW1, the police have registered the case and conducted the investigation and submitted charge sheet.-3- CRL.RP No. 2005 of 2013
4. The prosecution in order to prove the case, examined PW-1 to PW-9 and got marked Ex.P1 to Ex.P11 and identified material objects MOs.1 to 3. On the other hand, the accused has got marked Ex.D1 to D(b).
5. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offence under Section 304(A) of Indian Penal Code and sentenced him to undergo six months rigorous imprisonment and also directed him to pay fine of Rs.5,000/-. In default, he shall undergo 30 days simple imprisonment. Further, the Trial Court sentenced him to undergo six months rigorous imprisonment for the offence punishable under Section 338 of IPC and shall pay fine of Rs.500/- and in default, he has to undergo 30 days simple imprisonment.
6. Being aggrieved by the said judgment of conviction, the accused preferred an appeal before the Sessions Court. The Sessions Court confirmed the judgment of conviction and order of sentence passed by the trial Court. Being aggrieved by the concurrent findings of both the Courts, the accused preferred this petition seeking to set aside the concurrent finding.
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7. Heard Sri. M.B.Gundawade, learned counsel for the petitioner and Sri. Ramesh Chigari, learned HCGP appearing on behalf of the respondent.
8. Sri. M.B.Gundawade, learned counsel for the petitioner submits that the concurrent findings of both the Courts are perverse and erroneous and not tenable under law. Therefore, requires to be set aside.
9. It is the further submission of the learned counsel for the petitioner that, the Trial Court as well as the First Appellate Court failed to appreciate the evidence of PW1, PW3 to PW5. There are inconsistencies between these witnesses, same has not been considered properly by the subordinate Courts which has resulted in miscarriage of justice. It is further submitted that, the identification of the accused has not been proved. Though, PW6 has stated that, the accused was driving the vehicle as per Ex.P6, that is not a conclusive proof to say that the accused was driving the said vehicle as on the date of accident. Further, learned counsel submits that, the prosecution failed to examine the inmates of the tempo trax as witnesses in the charge sheet. These points are crucial and not appreciated properly. Though, the Trial Court failed to appreciate the above -5- CRL.RP No. 2005 of 2013 mentioned points for consideration properly, the Appellate Court also committed an error in appreciating the same. Therefore, it requires reconsideration and the concurrent findings of conviction is liable to be set aside.
10. Per contra, the learned HCGP submits that the evidence of PW1 and PW6 are relevant to the case, PW6 being the owner of the vehicle is right person to mention the name of the accused. Accordingly, in EX.P6 he has mentioned the name of the accused. Thereafter, Investigation Officer arrested the accused and produced before the Court. In the complaint and FIR, the name of the accused has not mentioned. During the investigation, Investigation Officer after having served the notice under Section 133 of the M.V.Act, came to know that the accused was a driver as on the date of incident. Further, the learned HCGP submits that the Trial Court as well as the First Appellate Court rightly convicted the accused and the scope of the revision jurisdiction is very limited. The interference with the concurrent findings is not warranted. Learned HCGP relied on the judgment of the Hon'ble Supreme Court in the case of Ravi Kapoor Vs. State of Rajasthan reported in (2012) 9 -6- CRL.RP No. 2005 of 2013 SCC 284. Having said thus, the learned HCGP prays to dismiss the petition.
11. After having heard both the learned counsel for the parties and after perusing the documents available on record, the points which arise for my consideration are:
(1) Whether the concurrent findings of conviction passed by the Trial Court and First Appellate Court are justifiable?
(2) Whether the order of sentence passed by the Trial Court and confirmed by the Appellant Court is justifiable?
12. Now, it is relevant to refer the findings recorded by the Trial Court as well as the First Appellate Court in order to arrive at a conclusion as to whether any illegality or irregularity committed by both the Courts. The evidence of PW1 has been appreciated by the Trial Court that, he is the eye witness as well as the injured witness and his evidence is cogent and inspired the confidence of the Court, though he was cross examined at length, he withstood the cross-examination and supported the case of the prosecution. Of course, there were minor discrepancies in his evidence, however, that discrepancies may not affect the case of the prosecution. PW1 -7- CRL.RP No. 2005 of 2013 in his evidence has clearly deposed that, he has seen the accused as on the date of incident and secondly, when he came before the Court as witness, he identified the accused in the Court. Therefore, the identification of the accused in the Court can be considered.
13. PW6 is the owner of the offending vehicle, has deposed that, after receiving the notice from the police regarding the accident he went to the Police Station and gave an undertaking and also informed about the details of the driver, thereafter took the vehicle to his custody. In the cross examination, though he denied the averments made in Ex.P6, he admitted the signature. Merely because he denied the averments made in Ex.P6, it does not take away the contents of Ex.P6. Therefore, the contents of Ex.P6 can be looked into on its marking.
14. As regards, the rash and negligent driving is concerned, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of Ravi Kapoor Vs. State of Rajasthan1 held in para 12, 13, 14 and 15 as under:-
"(A) Rash and negligent driving 1 (2012) 9 SCC 284 -8- CRL.RP No. 2005 of 2013
12. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.
13. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar -9- CRL.RP No. 2005 of 2013 considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
14. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence.
The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res
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CRL.RP No. 2005 of 2013 ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and
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CRL.RP No. 2005 of 2013 mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]." (SIC)
15. The principles laid down by the Hon'ble Supreme Court in the above case are squarely applicable to the case. It is relevant to refer the evidence of PW1, PW.3 to PW.5 and PW6. PWs.3 to 5 are the independent witnesses who are consistent in their evidence that the accident had occurred due to negligence of the accused. Though, they could not identify the accused, but there evidence is consistent with regard to the negligence of the driver. The evidence of PW.6 with regard to identity of the driver and documentary evidence such as Ex.P.6
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CRL.RP No. 2005 of 2013 discloses that, the accused was the driver as on the date of alleged accident. However, they have supported the case of the prosecution. PW2 who is the panch witness and supported the case of the prosecution. Therefore, considering the evidence of all the witnesses and also findings recorded by the Trial Court, and the Appellate Court, I find no error or perversity in the findings recorded by both the Courts. Hearing on sentence
16. The learned counsel for the petitioner submits that, the petitioner is the only earning member of the family and there were dependents depending on his avocation, if this Court do not show any leniency, it would be great injustice to the family members and also the accused. The alleged date of incident had taken place on 13.11.2007 and today, the matter is listed for final hearing and disposed off by this Court.
17. Considering the submission made by the learned counsel for petitioner and also considering the judgment of Hon'ble Supreme Court in the case of Paul
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CRL.RP No. 2005 of 2013 George Vs. State of Delhi2 and also the decision of the Coordinate Bench of this Court in Crl.RP.No.2272/2013 dated 13.07.2022, it is stated that by considering the age of the accused and his avocation and family dependants, and also age of the case, the Hon'ble Supreme Court extended leniency by invoking Probation of Offenders Act. In this case, the accused has committed a blunder and heinous offence for which he is not deserves to be shown any leniency, however, considering the family of the accused and his avocation and also length of his service, it is appropriate to modify the sentence passed by the Trial Court. This leniency cannot be applicable to all the cases but, it depends on the circumstances and also background of the case.
18. In the light of the observations made above, the points which arose for my consideration are answered as follows;
Point No.1 in the 'affirmative' 2 (2008) 2 SCC 768
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CRL.RP No. 2005 of 2013 Point No.2 in the 'partly in the affirmative' Hence, I proceed to pass the following:
ORDER The Petition is allowed in part.
The judgment of conviction dated 02.09.2009 in C.C.No.215/2008 on the file of the JMFC-II, Belagavi and its confirmation order dated 08.11.2012 in Crl.A.No.176/2009 on the file of II Additional District and Sessions Judge, Belgavi, is confirmed and order of sentence is modified accordingly.
The petitioner is sentenced to pay a fine of Rs.75,000/- instead of undergoing sentence of six months. In default of payment of fine, he shall undergo simple imprisonment for six months.
The Trial Court is directed to pay a sum of Rs.70,000/- to the parents of the victim or his legal representatives on proper identification. The remaining Rs.5,000/- will be adjusted to the State
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Exchequer. The said compensation is deemed to be paid in terms of Section 357-A of Cr.P.C.
Sd/-
JUDGE VMB/Naa /Pj