Karnataka High Court
A Mahanthesha vs The State Of Banavara Police on 29 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.846 OF 2012
BETWEEN:
A. MAHANTHESHA
S/O. K. ACHANNA, AGE: 46 YEARS,
R/O. BEHIND T.B. SOMAGUDDU ROAD,
OPPOSITE: YELLAMMA TEMPLE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
...PETITIONER
(BY SRI. PANDURANGA G, ADVOCATE FOR
SRI. B.L. KUMAR, ADVOCATE)
AND:
THE STATE OF BANAVARA POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
...RESPONDENT
(BY SRI. K.S. ABHIJITH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 AND 397(1) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 23.12.2010 PASSED BY THE
ADDITIONAL SESSIONS JUDGE, HASSAN IN CRL.APPEAL
NO.185/2008, CONFIRMING THE ORDER OF JUDGMENT
2
AND SENTENCE DATED 26.09.2008 PASSED BY THE
ADDITIONAL JMFC, ARSIKERE IN CC.NO.54/2007
CONVICTING THE PETITIONER/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 279, 337
AND 304A OF IPC AND SECTION 187 AND 66 READ
WITH SECTION 192(A) OF M.V.ACT.
THIS CRIMINAL REVISION PETITION COMING FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Heard Sri. B.L. Kumar, learned counsel appearing for the revision petitioner and Sri. K.S. Abhijith, learned High Court Government Pleader appearing for respondent and perused the records.
2. The present revision petition is filed by the revision petitioner, who has suffered an order of conviction in C.C. No.54/2007 dated 26.09.2008 by the Additional Civil Judge (Jr.Dn) and JMFC at Arsikere, whereby the accused came to be convicted and sentenced as under:
ORDER Accused has been convicted under Section 255(2) of Cr.P.C., for the offence punishable under Section 279, 337, 304(A) IPC. Read with Sections 187 and 66 r/w 192(A) of IMV Act.3
Accused has been sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 279 of IPC. In default he shall undergo simple imprisonment for a period of 3 months.
Accused has been sentenced to pay a fine of Rs.500/- for the offence punishable under Section 337 of IPC. In default, he shall undergo simple imprisonment for a period of two months.
Accused has been sentenced to under go simple imprisonment for the period of one year and to pay a fine of Rs.1,000/- for offence punishable under Section 304(A) I.P.C. In default to pay fine he shall under go further simple imprisonment for a period of 3 months.
Accused has been sentenced to pay a fine of Rs.500/- for the offence punishable under Section 187 I.M.V. In default he shall under go simple imprisonment for a period of 2 months.
Accused has been sentenced to pay a fine of Rs.2,000/- for the offence punishable under Section 66 read with 192(A) I.M.V. In default he shall under go simple imprisonment for a period of 3 months.
Which was confirmed in Crl.A.No.185/2008 by judgment dated 23.12.2010.
3. Brief facts of the case are as under:
4
Upon a complaint lodged by Rajappa, who was one of the inmate of the autorikshaw bearing registration No.KA-16-A-1874, the Arasikere Rural Police registered a case against the accused-revision petitioner for the offence punishable under Sections 279, 337 and 304-A of Indian Penal Code and Sections 187 and 66 read with Section 192(A) of IMV Act. In the complaint, it is contended that the revision petitioner was the driver of the said autorikshaw and he drove the same on Madalu-Metikurke road near Kanakatte Kere and because of his rash and negligent driving, the autorickshaw toppled and the inmates of the autorickshaw fell down sustaining simple and grievous injuries and one of the inmate namely Hanumanthappa died. It is further contended that the driver of the autorickshaw did not had permit to carry five passengers in the autorickshaw. The jurisdictional police after thorough investigation filed charge sheet against the accused-revision petitioner for the offence punishable under Sections 279, 337 and 304-A of Indian Penal Code 5 and Sections 187 and 66 read with Section 192(A) of IMV Act.
4. The presence of the accused was secured and plea was recorded. Since accused pleaded not guilty, trial was held. In order to prove the case, prosecution in all examined twelve witnesses as PWs.1 to 12 and relied upon thirteen documentary evidence which were exhibited and marked as Exs.P1 to P13. Among them Ex.P7 is the post mortem report. Exs.P10-P13 are the wound certificate of the injured persons. After conclusion of the prosecution evidence, accused statement was recorded as contemplated under Section 313 of Cr.P.C., wherein all the incriminating circumstances were denied by him. Accused did not choose to lead any defence evidence on his behalf nor placed his version in writing as contemplated under Section 313(5) of Cr.P.C nor adduced any oral and documentary evidence nor examined himself as witness. Thereafter, learned trial Magistrate heard the matter in detail and after considering the oral and documentary 6 evidence on record especially the oral testimony of the injured eye witnesses coupled with the medical evidence convicted the accused for the aforesaid offences and sentenced him as referred to supra.
5. Being aggrieved by the same, the accused preferred an appeal before the Sessions Court in Crl.A. No.185/2008.
6. Learned judge in the First Appellate Court on re-examination of the entire materials on record, not only confirmed the findings recorded by the trial Magistrate but also supplemented the reason for maintaining the order of conviction and sentence. Being aggrieved by the same, the accused has preferred this revision petition.
7. Sri. B.L. Kumar, learned counsel appearing for the revision petitioner has challenged the impugned judgment on the following grounds:-
• The judgment of the both lower courts for convicting the petitioner/accused for under Section 279, 337 and 304-A of Indian Penal Code and Section 187 and 7 66 read with Section 192(A) of Motor Vehicle Act, in questioning is capricious, perverse and is illegal liable to be set aside, in the natural of justice.
• The Trial Court is failed to appreciate the material available on record, erroneously convict the petitioner under Section 279, 337 and 304-A of Indian Penal Code and Section 187 and 66 read with Section 192(A) of Motor Vehicle Act, without properly consider the oral and documentary evidence available on record.
• The learned JMFC, Arsikere as well as District and Sessions Judge, Hassan both the Courts have erred in not believing the corroborated evidence of eye witnesses of PW-5 Venkatesh, PW-9 Pradeep and the Panch Witness PW-7 Mallikarjunappa and hence this Hon'ble Court is liable to be interfered by setting aside the sentence orders of both Courts below, in the interest of natural justice.
• The trial Court as well as sessions courts have erroneously relied and believing the corroborated evidence of eye witnesses of PW-1 to 4, and arbitrarily came to the conclusion that the accident occurred due to negligence of the petitioner and convict the petitioner/accused, under the above said offence is not proper and correct, and hence this Hon'ble Court is liable to be interfered by setting aside the orders of both Courts below, in the natural of justice.
• The trial Court as well as sessions courts have erroneously relied and believing the evidence of PW- 6, Chandrashekar owner of the vehicle, PW-7 8 Kempegowda seizure Mahazar witness, PW-10 Jagadish spot mahazar witness and evidence of investigation officers PW-11 Rajshekar and PW-12 T. Kumar and erroneously held that the evidence of eye witness, Mahazar witnesses and evidence of vehicle owner are all supported the case of prosecution. • There is delay in lodging the complaint and also there is delay in dispatching the FIR, both this aspects have been not considering by the lower courts.
• It is pertinent to mentioned that, at the time of lodging the complaint, the accused name has not been mentioned in the said complaint as well as in the F.I.R., and there is serious doubt about the involvement of the petitioner/accused in the aforesaid alleged offence.
• There are serious doubts and infirmities in the prosecution case. The said doubts and infirmities are not extended to the petitioner/accused. • Accused is innocent of the offence he has been falsely implicated in the offence, he has been not previously prosecuted in any crime, and this is the first offender. He is permanently resident of Challakere Taluk, Chitradurga District and he is peace loving person in the locality.
8. Reiterating the above grounds in the oral arguments, learned counsel for the revision petitioner sought for allowing the revision petition. He also alternatively contended that accused is now aged 55 years 9 and therefore leniency may be shown by granting probation.
9. Per contra, learned High Court Government Pleader while supporting the impugned judgment contended that both the Courts have rightly concluded that the accused is guilty of the offence, whereby four inmates of the autorikshaw got injured and one of the inmate by name Hanumanthappa died and therefore, the material evidence on record did establish conclusively that accused is responsible for the accidental death of Hanumanthappa and injuries sustained by the other four inmates of the autorikshaw. He also contended that the trial Magistrate and learned judge in the First Appellate Court took note of the fact that there is no other vehicle involved and in the absence of any plausible explanation offered by the accused for the incriminating material found in the prosecution evidence, both the courts were justified in holding that the accused is guilty of the offence and is convicted and sought for dismissal of the revision petition. 10
10. In so far as alternative plea is concerned, there is no material circumstances placed on record that the accused is now aged 55 years itself would not be a ground to reduce the punishment and sought for dismissal of the revision petition.
11. In view of the rival contentions and having regard to the limited scope of revisional jurisdiction, the following points would arise for consideration:
i. Whether the finding recorded by the trial Court that the accused has been convicted under Section 255(2) of Cr.P.C for the offences punishable under Sections 279, 337 and 304-A of Indian Penal Code r/w Sections 187 and 66 r/w 192(A) of IMV Act, which is confirmed by the Additional Sessions Judge, Hassan in Crl.A.No.185/2008 is suffering from legal infirmity or perversity and thus calls for interference?
ii. Whether the sentence is excessive ?
12. In the case on hand, the Arasikere Rural Police registered a case against the driver of the autorikshow * Page No.10 is retyped and replaced vide Court Order dated 04.03.2022.
11bearing registration No. 16-A-1874, for the offence punishable under Sections 279, 337 and 304-A of Indian Penal Code and Sections 187 and 66 read with Section 192(A) of IMV Act. In the complaint it is contended that the revision petitioner was the driver of the said autorickshaw and he drove the same on Madalu-Metikurke road near Kanakatte Kere and because of his rash and negligent driving, the autorickshaw toppled and the inmates fell down sustaining simple and grievous injuries and one of the inmate namely Hanumanthappa died. If the accused had driven the autorickshaw properly, then there would not have been any scope for toppling down of the autorickshaw as on the date of the incident. Admittedly, there are five inmates in autorickshaw and permit was only for three persons. The oral testimony of the injured eye witness can be kept on higher pedestal and the same has been done by the trial Magistrate and confirmed by the learned judge in the First Appellate Court. The death of Hanumanthappa in the very same incident is not in dispute and the same is properly 12 recorded by the inquest Mahazar as well as the post mortem report issued by the doctor. The evidence of the injured eye witness clearly establish the accidental injury sustained by PW-1 and others and death of one Hanumanthappa is only on account of rash and negligent driving of the driver of the autorikshaw bearing registration No. KA-16-A-1874. This aspect of the matter has been rightly appreciated by the trial Magistrate. Further, it is seen that accused did not offer any explanation as to the accident nor examined himself to place his version on record as comtemplated under Section 313(5) of Cr.P.C.
13. In this regard, this Court places reliance on the judgment of the Hon'ble Apex Court in the case of RAVI KAPUR Vs. STATE OF RAJASTHAN reported in (2012) 9 SCC 284, wherein at Paragraph No.39 it has been held as under:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They 13 have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
14. Applying the legal principles enunciated in the aforesaid decision to the case on hand and in the absence of any explanation offered by the accused before the trial Magistrate or at least placing his version about the incident, the trial Magistrate was justified in recording the evidence that the accused is guilty of the offence alleged against him and so also it has been rightly re-appreciated by the learned judge in the first appellate Court.
15. In view of fore going discussion and in the light of the grounds urged by the revision petitioner, this Court is of considered opinion, that none of the grounds 14 urged by the revision petitioner holds merit and accordingly the point is answered in the 'Negative'.
16. In so far as the sentence is concerned, the accused has been sentenced as referred to supra. Learned counsel for revision petitioner vehemently contended that accused is now aged 55 years and therefore mercy should be shown by granting probation. In a matter of this nature, appropriate sentence is no longer res integra.
17. In view of legal principles enunciated in the case of the STATE OF PUNJAB Vs. SAURABH BAKSHI reported in (2012) 5 SCC 182 which reads as under:-
"14. In Alister Anthony Pareira v. State of Maharashtra[15] while emphasizing on the inherent danger the Court observed thus:-
"39. Like Section 304-A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. The scheme of Sections 279, 304-A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of 15 knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life".
18. Regarding point No.2, the accused has been convicted and sentenced as referred to supra. Accused is now aged around 55 years. Taking note of the fact that there are four injured and one death has occurred in the incident, sentencing the accused at this stage is on the slight higher side. Accordingly, the accused is convicted and sentenced for the aforesaid offences is hereby reduced from one year to nine months.
19. It is needless to emphasize that the sentence ordered by the trial Magistrate and confirmed by the First Appellate Court if modified by this Court would come into existence only after completion of the *imprisonment period.
Accordingly, the point No.2 is answered partly in affirmative and pass the following:
* Corrected vide Court Order dated 04.03.2022.16
ORDER i. The revision petition is allowed in part.
ii. While maintaining the sentence, the revision petitioner is granted time till 31.03.2022 to pay the fine amount and to surrender before the learned Trial Judge for serving the remaining part of sentence.
iii. Office is directed to return the trial Court Records with a copy of this order forthwith.
iv. It is made clear that the petitioner is entitled for the benefit of set of under Section 428 of Cr.PC.
Sd/-
JUDGE AG/SSD * Page No.16 is retyped and replaced vide Court Order dated 04.03.2022.