Karnataka High Court
Sri Abdul Sattar vs The State Of Karnataka on 5 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 688 of 2015
NC: 2023:KHC:36037
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 688 OF 2015
BETWEEN:
SRI. ABDUL SATTAR,
S/O AHAMAAD HUSSAIN,
AGE 41 YEARS, R/O NO.980,
16TH CROSS, 2ND STAGE,
RAJIV NAGAR, MYSORE - 570 003.
...PETITIONER
(BY SRI. S. S. ZULAPI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
DEVARAJA TRAFFIC ZONE MYSORE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
DR. AMBEDKAR VEEDHI,
Digitally signed HIGH COURT OF KARNATAKA
by AT BANGALORE - 560 001.
RENUKAMBA K
G ...RESPONDENT
Location: High (BY SRI. JAIRAMSIDDI, HCGP)
Court of
Karnataka THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENMT AND ORDER DATED
29.4.2015 PASSED BY THE III ADDL. S.J., MYSURU IN
CRL.A.NO.139/2014 AND ALSO SET ASIDE THE JUDGMENT
AND ORDER DATED 10.4.2014 PASSED BY THE J.M.F.C. III,
MYSORE IN C.C.NO.91/2012 AND CONSEQUENTLY ACQUIT THE
PETR./ACCUSED.
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CRL.RP No. 688 of 2015
NC: 2023:KHC:36037
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed under Section 397 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the III Additional Chief Judicial Magistrate, Mysuru in C.C.No.91/2012 and which was confirmed by the III Additional Sessions Judge, Mysuru in Crl.A.No.139/2014 vide judgment dated 29.04.2015.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that, on 17.11.2010 at 2.50 pm complainant was riding motorcycle bearing registration No.KA-55-E-4229 near Nagamma hospital situated by the side of the residential quarters of IGP, South range on Theobald Road, within the limits of Devaraja Traffic Police Station, Mysuru. It is also alleged that, Shashank aged about 13 years and CW.6- Kiran aged about 10 years were Pillion riders and CW.1 -3- CRL.RP No. 688 of 2015 NC: 2023:KHC:36037 was riding the motorcycle on the left side of the road. It is further alleged that, the accused being the driver of the Maruthi Van bearing registration No.KA-01-MC-3606 drove it in a rash and negligent manner endangering human life and dashed to the bike of the complainant from rear end resulting in the accident. As a result, the complainant along with the bike fell down and pillion rider Kiran sustained injuries while Shashank who sustained fatal injuries succumbed in the hospital. In this regard, a complaint came to be lodged and on the basis of the complaint the investigating officer after investigating the crime submitted the charge sheet against the accused for the offences punishable under Sections 279, 337, 338 as well as 304(A) of the IPC and under Section 134(a) and
(b) read with Section 187 of the Motor Vehicle Act.
4. After submission of the charge sheet as there are sufficient grounds to proceed against the accused, the learned Magistrate has taken cognizance of the said offences and has issued process against the accused. The -4- CRL.RP No. 688 of 2015 NC: 2023:KHC:36037 accused has appeared before the learned Magistrate and was enlarged on bail. He denied the plea framed and read over to him.
5. The prosecution has examined 7 witnesses and placed reliance on 8 documents marked at Ex.P1 to Ex.P8. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of the Cr.P.C., came to be recorded. In his 313 Cr.P.C., statement, the accused asserted that, the complainant while along with 2 pillion riders tried to overtake his vehicle from left side and in the said process, he brushed the front left side of the Maruthi Van and fell down, resulting in the accident and disputed his negligence Act.
6. The learned Magistrate after hearing the arguments and after appreciating the oral and documentary evidence, convicted the accused for the said offences by imposing the simple imprisonment with fine. -5- CRL.RP No. 688 of 2015
NC: 2023:KHC:36037
7. Against this judgment of conviction and order of sentence, the accused has approached III Additional Sessions Judge, Mysuru in Crl.A.No.139/2014.
8. Learned Sessions Judge after re-appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
9. Against these concurrent findings, the revision petitioner/accused is before this Court by way of this revision.
10. Heard the arguments advanced by the learned counsel for the revision petitioner as well as learned High Court Government Pleader. Perused the records.
11. Learned counsel for the revision petitioner would contend that there is no actionable negligence on the part of the revision petitioner as the complainant with 2 Pillion riders drove the vehicle from the left side and in the process of overtaking from a wrong end brushed his front left portion of the vehicle and fell down resulting in -6- CRL.RP No. 688 of 2015 NC: 2023:KHC:36037 the accident. He would further contend that, the sketch produced by the investigating officer also substantiate his defence and hence, he would contend that both the Courts below have committed an error in convicting him. Alternatively, he would pray for remission of the sentence of imprisonment by restricting the conviction by imposition of the fine alone.
12. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by the both the Courts below. He would contend that all the eye witnesses have fully supported the case of the prosecution and nothing was elicited so as to impeach their evidence. He would also assert that, the inconsistents stands were taken and both the Courts below have rightly convicted the accused and the judgment of conviction and order of sentence does not call for any interference.
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13. Having heard the arguments and perusing the records, now the following point would arise for my consideration.
1. Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the learned Sessions Judge suffers from any perversity or illegality so as to call for any interference by this Court?
14. It is an undisputed fact that, the accused/revision petitioner was the driver of offending Maruthi Van bearing registration No.KA-01-MC-3606. It is also an undisputed fact that, the complainant was the rider of motor cycle No.KA-55-E-4229 and he sustained simple injury in the said accident. Further it is not under series of dispute that CW.6-Kiran has also sustained grievous injuries and Shashank having suffered fatal injuries succumbed because of the injuries sustained by him. All these aspects have been admitted.
15. It is also admitted fact that, the complainant was riding the vehicle along with two kids i.e Shashank -8- CRL.RP No. 688 of 2015 NC: 2023:KHC:36037 and Kiran as pillion riders. The complainant is examined as PW.1 and in his evidence, he has deposed that, when he was proceeding on the left side of the road, the Maruthi Van came from his backside and hit the rear end of his 2 wheeler, as a result he along with pillion riders fell and Shashank was unconscious while Kiran has sustained injuries. His evidence further discloses that, the accused was the driver of the Maruthi Van who fled from this spot immediately after the accident and Shashank succumbed because of the injuries. In the cross-examination of this witness, the accused has disputed the very accident itself suggesting that the complainant was riding the vehicle in high speed and suddenly try to take right turn as a result he fell down and sustained injuries. It is also suggested that no other vehicle was involved in the accident but the said suggestions came to be denied.
16. PW.4-Mohan is an eye witness and he deposed that, when he was returning to his house at 3.00 pm from S.P.Kacheri Road, in front of him the complainant was -9- CRL.RP No. 688 of 2015 NC: 2023:KHC:36037 proceeding and the Maruthi van hit the bike of the complainant from back side resulting in the accident. He has also asserted that, the accused was on wrong side of the road. In the cross-examination of this witness a simple suggestion was made that, he is known to the complainant since beginning and he is not an eye witness but he denied the said suggestion. The involvement of the vehicle in the accident was not disputed or denied in the cross-examination of PW.4.
17. PW.6-Padmanabha is another eye witness and he is also deposed that the accused drove the Maruthi omni Van in a rash and negligent manner and hitting the rear end of the two wheeler from back side causing the accident. At the time of recording the evidence of PW.6 accused was absent and exemption was sought and identity was not disputed. In his cross-examination also, the accident was also not disputed and a simple suggestion was made that the accident has occurred due to actionable negligence on the part of the rider of the
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CRL.RP No. 688 of 2015
NC: 2023:KHC:36037 Motor cycle. The Cross-examination of PW.1, PW.4 and PW.6 disclosed that the accused has taken inconsistent defences.
18. Interestingly when his 313 statement was recorded, he denied the entire case of the prosecution and further submitted that, the rider of the motor bike tried to overtake his vehicle from left side and in the said process he brushed the left front portion of the car and fell down resulting in the accident. However, this statement submitted at the time of recording 313 statement was not suggested in the cross-examination either PW.1, PW.4 or PW.6. Even accused did not enter to witness box to substantiate his defence. The burden is on the accused under Section 106 of the Indian Evidence Act, to substantiate the fact within his knowledge, but he went on taking inconsistence stands.
19. Hence, both the Courts below after appreciating the oral and documentary evidence have rightly convicted the accused. No illegality or perversity is found in the judgment of conviction so as to call for interference.
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20. The learned counsel for the revision petitioner has invited the attention of the Court to discrepancy kept in the sketch Ex.P3 asserting that the different vehicle number was shown but it is not the case of the accused that his vehicle is not involved in the accident. Further in Ex.P3, while showing the course by arrow marks of the two wheeler, the vehicle number is properly mentioned. But, while recording the vehicle in the sketch it was shown with different number. No cross-examination was made in this regard and hence, the said arguments does not have any relevancy.
21. The Trial Court has imposed fine of Rs.500/- each for the offences punishable under Sections 279, 337 and under Section 134(a) (b) read with Section 187 of IMV Act, with default clause and for the offence under Section 338, a fine of Rs.1,000/- was imposed with default clause. Looking to these facts and circumstances the said sentences does not call for any interference.
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CRL.RP No. 688 of 2015
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22. Learned counsel for the revision petitioner would contend that the sentence of imprisonment of six months is too high, and hence would contend that it may be remitted by enhancing the fine and granting compensation. The awarding of the compensation does not arise as PW.1 complainant has already admitted in his evidence that the compensation is already received in the claim petition. The learned counsel has placed a unreported decision of the Apex Court in ELANGOVAN Vs. STATE REP. BY INSPECTOR OF POLICE in Crl.A.No.2719/2023 arising out of SLP(Crl.)No.5084/2022 dated 5th September, 2023. In the said case, the Hon'ble Apex Court released the petitioner on due admonition by exercising the powers under Sections 3, 5 and 11 of PO Act, by making observation that the conviction/admonition does not in any effect on appellants service and he was also cautioned to be diligent in future. But that was a discretion exercised by the Apex Court and a discretion exercised cannot be a precedent. Further, what are the basis of what are the facts and circumstances of the said
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CRL.RP No. 688 of 2015
NC: 2023:KHC:36037 case are not at all forthcoming and hence, the said principles cannot be made directly applicable to the present case in hand.
23. Further, it is fact that the complainant was riding the vehicle with two pillion riders though they are the kids. He was required to take proper precautions to provide helmet to the pillion riders but that was also not done. But at the same time, the conduct of the accused is required to be considered as he went on taking inconsistent and contrary defences and hence, he cannot now seek remission of the sentence looking to his conduct. However, looking to the triple riding by the complainant some leniency can be shown to the accused and considering the facts and circumstances, sentence of imprisonment for the offence under Section 304(A) of IPC can be reduced from 6 months to 3 months but the fine requires to be enhanced from Rs.5,000/- to Rs.10,000/-. Accordingly, the point under consideration is partly answered in the Affirmative so for as it pertains to
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CRL.RP No. 688 of 2015
NC: 2023:KHC:36037 sentence portion pertaining to offence under Section 304(A) of IPC only. As such I proceed to pass the following:
ORDER
1. The revision petition is allowed in part so far as it relates to the sentence imposed for the offence under Section 304(A) of the IPC.
2. The judgment of conviction passed by the III Additional Senior Civil Judge & CJM, Mysuru in C.C.No.91/2012 dated 10.04.2014 and affirmed by the III Additional Sessions Judge, Mysuru in Crl.A.No.139/2014 vide judgment dated 29.04.2015 stands confirmed.
3. The sentence imposed for the offences punishable under sections 279, 337 and 338 of the IPC as well as for the offence under Section 134(a) and (b) read with Section 187 of IMV Act also stand confirmed.
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4. However, the sentence for the offence punishable under Section 304(A) of IPC is modified and the accused/revision petitioner is directed to undergo simple imprisonment for a period of three months with fine of Rs.10,000/- in default his required to undergo for further simple imprisonment for 15 days.
5. Sent back the records to the Trial Court along with the copy of this order with a direction to secure the presence of the revision petitioner/accused for serving the sentence and for collection of the enhanced fine amount.
Sd/-
JUDGE URN List No.: 1 Sl No.: 10 CT: BHK