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Karnataka High Court

Faridkhan Asadkhan Pathan vs The State Of Karnataka on 22 February, 2023

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

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                                 CRL.RP No. 100252 of 2014




         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

     DATED THIS THE 22ND DAY OF FEBRUARY, 2023

                       BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
 CRIMINAL REVISION PETITION NO. 100252 OF 2014
BETWEEN:

1.    FARIDKHAN ASADKHAN PATHAN,
      AGE: 29 YEARS,
      OCC: DRIVER,
      R/O. HUNSHYAL CHAL,
      TAL: HUKKERI, DIST: BELGAUM

                                           ...PETITIONER

(BY SRI. M.J.PEERJADE, ADVOCATE)

AND:

1.    THE STATE OF KARNATAKA,
      R/BY SPP, DHARWAD

                                          ...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 JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE PASSED BY THE
CIVIL JUDGE & JMFC COURT, HUKKERI, CONVICTING THE
PETITIONER OF THE OFFENCES UNDER SECTIONS 279 &
304-A OF IPC IN C.C.NO.458/2012 ON 13.01.2014 AND
CONFIRMED BY THE VII-ADDL. DIST. & SESIONS JUDGE,
BELAGAVI AT CHIKKODI, IN CRL.A.NO.16/2014 ON
12.11.2014, BE SET ASIDE AND THE PETITIONER BE
ACQUITTED OF THE SAID CHAGES.
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                                      CRL.RP No. 100252 of 2014




     THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

This revision is filed under Section 397 read with Section 401 of Cr.P.C., challenging the judgment of conviction and order of sentence dated 13.01.2014 passed by the Civil Judge and JMFC, Hukkeri ('trial Court' for short) in C.C. No.458/2012 for the offences punishable under Sections 279 and 304-A of IPC, which was confirmed by the VII Additional District and Sessions Judge, Belgaum, sitting at Chikkodi (Sessions Court/Judge) in Criminal Appeal No.16/2014 vide judgment and order dated 12.11.2014, with modification regarding sentence of imprisonment.

2. For the sake of convenience, the parties herein are referred with the ranks occupied by them before the trial Court.

CRL.RP No. 100252 of 2014

3. The brief factual matrix leading to the case are that, the accused was the driver of tanker bearing Registration KA.23/A.7958. It is alleged that, on 06.07.2012 at about 8.45 p.m., near the land of one Mallappa Kotagi of Rakshi Village, on Ghataprabha- Hukkeri public road, the accused drove his tanker in rash and negligent manner endangering human life and public safety, and dashed the Indigo Car bearing No.KA.49/M.2398 coming from opposite direction. Due to the said impact, the driver of the car by name Murugesh @ Murudhendra Hiremath and one inmate of the car Sri,. Shivaputraswami Sidharudhmath have sustained fatal injuries and succumbed at the spot. In this regard, a complaint came to be lodged and on the basis of the complaint, the Investigating Officer investigated the crime and submitted the charge sheet against the revision petitioner/accused for the offences punishable under Sections 279 and 304-A of IPC. -4- CRL.RP No. 100252 of 2014

4. In pursuance of the summons issued to the accused, he appeared before the learned Magistrate and later on he was enlarged on bail. The accused was provided with prosecution papers and the plea was read-over and explained to him, and he pleaded not guilty.

5. To prove the guilt of the accused, the prosecution has examined in all Nine witnesses as PWs. 1 to 9 and got marked Eighteen documents as per Exs. P1 to P18 and also marked two material objects as per MOs. 1 & 2. After conclusion of the evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial and he did not choose to lead any defence evidence. However, during cross-examination of prosecution witnesses, he has taken inconsistent and contrary defences.

CRL.RP No. 100252 of 2014

6. After hearing arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offences punishable under Sections 279 and 304-A of IPC and imposed sentence of fine of Rs.1,000/- for the offence under Section 279 of IPC and also imposed imprisonment for six months with fine of Rs.1,000/- for the offence punishable under Section 304-A of IPC.

7. Against the said judgment of conviction and order of sentence, the accused has approached the learned VII Additional District and Sessions Judge, Belgaum Sitting at Chikodi, in Criminal Appeal No.16/2014. The learned Sessions Judge after re- appreciating the oral and documentary evidence, has confirmed the judgment of conviction. However, regarding the offence under Section 304-A of IPC, the learned Sessions Judge has modified the sentence of imprisonment and reduced the same from Six months to -6- CRL.RP No. 100252 of 2014 Three months, by enhancing fine amount from Rs.1,000/- to Rs.5,000/-, with default clause.

8. Being aggrieved by the concurrent findings of conviction and impugned sentence of imprisonment, the revision petitioner/accused has preferred this appeal.

9. Heard the learned counsel for the revision petitioner/accused and the learned High Court Government Pleader (HCGP) appearing for the Respondent-State. Perused the records.

10. Learned counsel for the revision petitioner/accused would contend that the judgment of conviction passed by the trial Court and affirmed by the Sessions Court, is perverse. He would contend that the prosecution has relied on the evidence of PWs. 1 & 2 alone, who are not eyewitnesses, as the said fact has been elicited in their cross-examination itself. He would also contend that there is collision between the Indigo -7- CRL.RP No. 100252 of 2014 Car and the Tanker in question and the driver of the Indigo Car was under intoxicated state of mind. He would also contend that there is inconsistency in the evidence of PWs.1 & 2 regarding they seeing the dead bodies in the light of mobile and torch. Further, the learned counsel has invited the attention of the Court to the cross-examination of Motor Vehicle Inspector, wherein it is elicited that fuel tank of the Tanker was damaged. He has also invited the attention of the Court to the Inquest Mahazar and according to him, the entire burden is on the prosecution to prove the guilt of accused beyond all reasonable doubt and the accused need not to give any explanation in this regard. He would also contend that, inconsistent defences taken before the Trial Court will not come to the assistance of the prosecution. Hence, he would contend that the judgment of conviction and order of sentence passed by both the courts below are erroneous, arbitrary and capricious and as such, he would seek for indulgence -8- CRL.RP No. 100252 of 2014 by this Court by setting aside the impugned judgment by acquitting the accused.

11. Per contra, the learned HCGP would contend that, on perusal of entire defences, it is not in dispute that the accused was the driver of the offending tanker. He would also contend that initially the aspect of negligence was disputed, but subsequently, the involvement of the accused in the accident being driver of the offending vehicle came to be disputed and same was denied by the owner of the offending vehicle (PW.8), who specifically asserts that the accused himself was the driver of the offending vehicle at the relevant time. He would also contend that Ex.P3 and Ex.P15 are not disputed and even ignoring the entire evidence of eyewitnesses, since the accident is admitted, it is for the accused to explain as to under what circumstances, the accident has occurred. But, the conduct of accused discloses that he is simply disputing the claim, without giving any explanation -9- CRL.RP No. 100252 of 2014 under Section 106 of the Indian Evidence Act. Hence, the HCGP would contend that both the Courts below have properly appreciated the oral and documentary evidence and rightly convicted the accused, which does not call for any interference by this Court. Hence, he would seek for rejection of the revision petition.

12. Having heard the arguments and on perusing the records, now the following point would arise for my consideration:-

"Whether the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge with certain modification pertaining to the sentence portion, are erroneous, arbitrary and suffers from any infirmity so as to call for any interference by this Court?"

13. The revision petitioner/accused was prosecuted for the offences punishable under Sections 279 and 304-A of IPC. The specific case of prosecution is that, on 06.07.2012 at about 8.45 p.m., near the land

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of one Mallappa Kotagi of Rakshi Village on Ghataprabha-Hukkeri Road, the accused being the driver of the Tanker bearing No.KA.23/A.7958 drove it in rash and negligent manner and dashed against the Indigo Car coming from opposite direction resulting in accident and death of two inmates of the Indigo Car. On perusal of entire evidence, it is evident that, collision between Tanker bearing No.KA.23/A.7958 and Indigo Car bearing No.KA.49/M.2398 is undisputed. Further, the MVI report also clearly establishes that the front portion of Tanker as well as fuel tank of the Tanker were damaged, while Indigo Car was damaged completely. It is also an undisputed fact that the driver of the Indigo Car Mr. Murugesh @ Murudhendra Hiremath as well as other inmate of the Car Sri. Shivaputraswami Sidharudhmath have sustained fatal injuries and died at the spot. The evidence also establishes that the accused was the driver of the offending Tanker. It is important to note here that, during cross-examination of prosecution witnesses, the

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accused nowhere disputed the fact that, he was the driver of the offending vehicle. However, he raised a defence that the accident was on account of negligence on the part of the driver of Indigo Car, as he was under

intoxicated state of mind. But, interestingly, during cross-examination of PW.8, who was the owner of offending Tanker, for the first time, the accused has disputed the fact that, at the time of accident, he was driving the offending vehicle.

14. The evidence of PW.8, the owner of offending vehicle clearly establish that the accused was the driver of the offending vehicle. If at all the accused is taking a defence that he was not driving the offending Tanker at the relevant time of accident, it is for him to explain as to who was driving the vehicle and to whom he had handed-over the vehicle. But, there is no explanation and his entire defence is silent in this regard.

15. Even on perusal of cross-examination of PWs. 1 & 2, who claims to be eyewitnesses, it is evident

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that inconsistent defence was taken. One defence was regarding actionable negligence on the part of the driver of Indigo Car, being under intoxicated state of mind, hitting the Tanker. However, the second defence was, the driver of the Indigo Car drove it in rash and negligent manner and he being unable to control the vehicle, it over-turned and then hit the fuel tank of the Tanker. No doubt, the accused is at liberty take inconsistent defences. But, however when he is supposed to explain certain aspects within his knowledge under Section 106 of Indian Evidence Act, he is required to explain the same, and otherwise, he is not supposed to take inconsistent defences in this regard.

16. PWs. 1 & 2 have deposed regarding actionable negligence on the part of the accused and they also identified the accused as the driver of the offending vehicle at the time of accident. The statement of PWs. 1 & 2 that the accused being driver of the

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offending vehicle was not disputed or denied. They claim that the car over-took them and subsequently, there was head on collision, as the Tanker moved on wrong side. This is again evident from Ex.P15, which is the sketch of scene of offence. On perusal of sketch of scene of offence, it is evident that, at the accident spot, road is running from East towards West and the Indigo Car was moving towards Ghataprabha, while Tanker was moving towards Hukkeri. Collision was on the Northern side of the road and it is for the accused to explain as to why he moved the Tanker on wrong side. No doubt, the accused is not supposed to prove his defence beyond all reasonable doubt. But, he is required to prove his defence on the basis of preponderance of probabilities. But, interestingly, the accused is taking inconsistent defences and he did not explain as to how the accident has occurred and what precautions he has taken to avoid the accident.

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17. Under Section 106 of Indian Evidence Act, the fact within the knowledge of person is required to be proved by him alone. In the instant case, admittedly, the accident has occurred at 8.45 in the night. The prosecution has relied on the evidence of PWs.1 & 2 as eyewitnesses. Learned counsel for revision petitioner would contend that, the evidence of PWs. 1 & 2 is inconsistent regarding they seeing dead bodies in the torch light of their mobile. Hence, according to him, PWs. 1 & 2 cannot be termed as eyewitnesses since they are devotees of Math, wherein the deceased was a Pontiff. But, merely because the witnesses are devotees of the Math, their evidence cannot be ignored merely on the ground that there is inconsistency regarding using torch light of their mobile. Even ignoring their evidence, then also it is for the accused to explain as to how the accident has occurred, as he is the best witness in the given circumstances. Admittedly two witnesses who were travelling in the car have succumbed because of accident in question and remaining is only revision

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petitioner/accused. But, he is not prepared to explain anything in this regard. Under such circumstances, adverse inference is required to be drawn as against accused regarding his conduct.

18. In the decision reported in (2012) 9 SCC 284 (Ravi Kapur Vs. State of Rajasthan), the Hon'ble Apex Court has laid down certain guidelines and held that, provisions of Section 313 of Cr.P.C. are not mere formality or purposeless. It is further observed that, the purpose of said provision is to provide an opportunity to the accused, which is mandatory duty of the Court to explain the circumstances. This 313 statement assumes more importance especially in accident cases when the burden is casted on accused under Section 106 of the Indian Evidence Act, as he has to explain the facts within his knowledge. But, in the instant case, the accused is not prepared to explain as to how the accident has occurred. But, on the contrary, he went on taking inconsistent defences. Though the

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learned counsel for revision petitioner argued that, the learned advocate, who was prosecuting the case on behalf of accused before the trial Court has committed error in taking inconsistent defences, but that would go to the very root of the case. Even otherwise, the accused could have put-forward his specific defence and he would have placed some material to show as to how the accident has occurred. But he is not prepared to explain anything this regard. Ex.P15 which is the sketch of spot of accident discloses that, the impact was on wrong side of the road and there is no explanation from accused as to why he moved on wrong side. The MVI report at Ex.P8 clearly discloses that, the front portion of the Tanker was damaged and as regards Indigo Car, major damage was caused to it. Hence, it is prima facie evident that there was head on collision between two vehicles and accused was not prepared to explain as to under what circumstances the accident has occurred. Both the Courts below have appreciated the

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oral and documentary evidence in detail and arrived at just decision.

19. The learned counsel all along contended that the deceased was driving the Car under intoxicated state of mind. But, what is the base for such a defence is not at all forthcoming and the Post-mortem Report produced at Ex.P16 is completely silent regarding alcohol being traced in the body of the deceased. Admittedly the accused was not traveling with the deceased and as such, the question of he taking defence regarding the deceased driving the car was under

intoxicated state of mind, does not arise at all. Both learned Magistrate as well as learned Sessions Judge have appreciated all these factual aspects in detail and rightly convicted the accused for the offences punishable under Sections 279 and 304-A of IPC.

20. Learned counsel for the revision petitioner would submit that the provisions of PO Act or the provisions of Section 360 of Cr.P.C. can be made

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applicable, considering the lengthy period of litigation. However, the said argument holds no water since the revision petitioner/accused went on taking inconsistent and contrary defences by putting blame on the driver of the Car. Further, the First Appellate Court has already shown leniency by reducing the sentence. Because of actionable negligence on the part of the accused, two deaths have occurred. The sentence is to be deterrent and it should not be a moral booster considering the large number of accidents taking place due to negligence of drivers. Further, the punishment should be a lesson to the drivers. Hence, the arguments regarding applying the provisions of P.O. Act or the provisions of Section 360 of Cr.P.C. cannot be considered and accordingly, it is rejected.

21. Considering the evidence on record, the judgment of conviction cannot be said to be erroneous or arbitrary. Apart from that, the learned Sessions Judge has reduced the sentence of imprisonment from

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six months to three months, though there was death of two persons. However, the said reduction of sentence was not challenged by the prosecution. This clearly discloses that the First Appellate Court has already shown sufficient leniency and now once again showing leniency to the accused by reducing sentence of imprisonment does not arise at all. The judgment of conviction and order of sentence do not suffer from any infirmity so as to call for any interference by this Court. As such, considering the facts and circumstances, the point under consideration is answered in the negative and as such, the appeal being devoid of any merits, does not survive for consideration and needs to be dismissed. Accordingly, I proceed to pass the following:-

ORDER

i) The revision petition is dismissed.

ii) The judgment of conviction and order of sentence dated 13.01.2014 passed by the Civil Judge and JMFC, Hukkeri, in C.C.

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              No.458/2012       and      affirmed   by    the   VII
              Additional     District    and   Sessions    Judge,
              Belgaum, sitting at Chikkodi          in Criminal

Appeal No.16/2014 vide judgment and order dated 12.11.2014, is confirmed.

The Registry is hereby directed to send back the TCRs to the concerned trial Court and First Appellate Court with a copy of this judgment, with a direction to the learned Magistrate to secure the presence of revision petitioner/accused for the purpose of serving sentence and collection of fine amount, if not yet paid.

Sd/-

JUDGE KGR* List No.: 1 Sl No.: 16