Karnataka High Court
Jayanna vs State Of Karnataka on 25 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.548/2012
BETWEEN:
JAYANNA
S/O THIMMEGOWDA,
AGED ABOUT 36 YEARS,
DRIVER OF GOODS VEHICLE
RESIDING AT HALEPALYA
TIPTUR TALUK
TUMKUR DISTRICT 572202
... PETITIONER
(BY SRI. AMIT ANAND DESHPANDE, AMICUS CURIAE)
AND:
STATE OF KARNATAKA
BY TIPTUR RURAL POLICE REPRESENTED BY STATE
PUBLIC PROSECUTORHIGH COURT
BUILDING,BANGALOORU
...RESPONDENT
(BY SRI. V.S. VINAYAKA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT DATED:7.5.10
PASSED BY THE PRL.CJ AND JMFC, TIPTUR IN
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C.C.NO.308/09 FOR THE ALLEGED OFFENCES P/U/SEC.279
AND 304-A IPC AND FURTHER TO SET ASIDE THE
JUDGMENT DATED:3.4.12 PASSED BY THE PO, FTC,
TIPTUR IN CRL.A.NO.59/10 AND ACQUIT THE PETITIONER
BY ALLOWING THE THIS PETITION.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Heard Sri. Amit Anand Deshpande, learned Amicus Curiae appearing for the revision petitioner and Sri. V. S. Vinayaka, learned High Court Government Pleader appearing for respondent and perused the records.
2. The revision petition is filed by the accused, who has been convicted for the offences punishable under Sections 279 and 304A of IPC and confirmed by the First Appellate Court whereby, the accused is sentenced to undergo simple imprisonment of three months for the offence punishable under Section 279 of IPC and six months simple imprisonment for the offence punishable under Section 304A of IPC and ordered to pay fine of Rs.500/- and Rs.3,000/- respectively.
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3. Brief facts of the case are as under:
That on 25.11.2008 at about 7.20 a.m., near Ramaiah of Manjunathanagar situated at Tiptur-Halkurike Road, accused - revision petitioner being the driver of the mini lorry bearing No.KA-06-9183 came in a rash and negligent manner and dashed against Srinivas, who was proceeding on his Hero Honda Splender Motor Cycle bearing No.KA-05-EP-3816 whereby the said Srinivas suffered grievous and fatal injuries and he was shifted to Sanjay Gandhi Hospital, Bengaluru when he succumbed to the injuries. Hence, the dependants of the deceased sought for awarding suitable compensaion.
4. The Tipturu Rural jurisdictional police have registered a case based on the said complaint, investigated the matter and laid a charge sheet against the accused for the offences punishable under Sections 279 and 304A of IPC and under Section 134(a) and (b) of the Indian Motor Vehicles Act, 1988.
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5. After taking the cognizance, the presence of the accused was secured by the learned Magistrate and plea was recorded. Accused pleaded not guilty, therefore, the trial was held. In order to prove the case of the prosecution, the prosecution in all examined eleven witnesses and relied on documentary evidences, which were exhibited and marked at Exs.P1 to P11. On conclusion of the prosecution evidence, the accused statement as contemplated under Section 313 of Cr.P.C. was recorded wherein the accused denied all the incriminatory materials. However, the accused did not choose to place his version about the incident on record by examining himself or by filing a written submission as is contemplated under Section 313(5) of Cr.P.C. Learned Magistrate thereafter heard the matter in detail and by order dated 07.05.2020 convicted the accused for the offence punishable under Section 134(a) and (b) of the Indian Motor Vehicles Act, 1988 and under Sections 279 and 304A of IPC and has ordered a fine of Rs.1,000/- and Rs.3,000/- respectively with default sentences. Being 5 aggrieved by the same, the accused preferred an appeal in Crl.A. No.59/2010.
6. Learned judge after securing the records and hearing the parties in detail, modified the sentence passed by the learned Magistrate as under:
"ORDER Appeal filed U/s. 374 Cr.P.C. is partly allowed by confirming the Judgment and altering the order of sentence passed in C.C. No.308/09 dated 07.05.2010 on the file of Prl. Civil Judge & JMFC, Tiptur as follows:
The accused is sentenced to undergo simple imprisonment of three months and fine of RS.500/-; in default of payment of fine to undergo simple imprisonment for further period of 15 days for the offence p/u/s 279 IPC; to undergo simple imprisonment of six months and fine of Rs.3,000/-; in default of payment of fine to undergo simple imprisonment for further period of 1 month for the offence p/u/s.304-A IPC."6
Being aggrieved by the same, the accused is before this Court in the revision.
7. This Court by order dated 19.08.2021, appointed Sri. Amit Anand Deshpande as amicus curiae noting that the learned counsel appearing for the revision petitioner was consistently absent before the Court.
8. Sri. Amit Anand Deshpande, learned Amicus Curiae contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in mis-carriage of justice. He pointed out that PW.1 is the owner of the vehicle and PWs.4 and 5 have turned hostile to the case of the prosecution. Exs.P4 and P5 are the mahazar witnesses to Ex.P3. PW.1 is the owner of the vehicle and also turned hostile to the case of the prosecution. The trial Magistrate has relied on the oral testimony of PWs.2 and 3 and investigation Officers PWs.9 and 11 and convicted the accused and there are material contradictions available on record even in the evidence of PWs.2 and 3 and the same 7 is not properly appreciated by the trial Magistrate and ignored by the learned judge in the First Appellate Court and sought for allowing the revision petition.
9. He also pointed out that though the learned judge in the First Appellate Court modified the sentence, ordering separate sentence for the offence punishable under Section 279 of IPC is incorrect in as much as the offence punishable under Section 279 of IPC merges with Section 304A of IPC. Having regard to the fact that there is only one death in the accident, he also pointed out that since the accused is a first time offender, leniency be shown and probation be granted for the revision petitioner.
10. Per contra, learned High Court Government Pleader supported the impugned judgments and contended that mere fact that PWs.1, 4 and 5 turning hostile to the case of the prosecution did not cause any serious dent to the case of the prosecution in as much as the oral testimony of PWs.2 and 3 coupled with the oral testimony of investigation agency and also material evidence on 8 record especially sketch and mahazar and non -placing his version of the case by the accused has been taken note off by the learned trial Magistrate and rightly convicted the accused for the offence punishable under Sections 279 and 304A of IPC which has been re-appreciated by the learned judge in the First Appellate Court and pass the appropriate order and therefore, sought for dismissal of the revision petition.
11. Insofar as the alternate plea that leniency be shown to the accused, the learned High Court Government Pleader opposed the same contending that the Motor Vehicles have become death traps and the galloping trend of the road traffic accident must be curbed by passing appropriate sentence whereby the Court convicted the accused for the offences punishable under Sections 279 and 304A of IPC and thus sought for dismissal of the revision petition.
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12. In view of the rival contentions and having regard to the scope of the Revision Petition, the following points would arise for consideration:
1. Whether the findings recorded by the learned trial Magistrate that the accused is guilty of the offence under Section 304A of IPC, which is confirmed by the First Appellate Court in Crl.A. No.59/2010 is suffering from legal infirmity or error of jurisdiction and thus calls for interference?
2. Whether the sentence is excessive?
13. In the case on hand, the material evidence on record thus indicate that the accused was the driver of the mini lorry bearing No.KA-06-9183 and he dashed against the Hero Honda Splender motor cycle bearing No.KA-05- EP-3816 on 25.11.2008 at about 7.20 a.m., near Ramaiah of Manjunathanagar situated at Tiptur - Halkurike Road. It is also found from the material evidence on record that Sri. Srinivas sustained fatal injuries and ultimately she succumbed to the injuries in Sanjay Gandhi Hospital. The 10 material evidence on record also indicate that there is a oral testimony of PWs.2 and 3, who are supported the case of the prosecution. No doubt, some minor contradictions are found from the evidence. It is now settled principles of law that in the absence of any previous enmity or animosity nurtured by PWs.2 and 3 against the accused, there is no scope for falsely implicating the accused in the incident.
14. Further, minor contradictions in the testimony of PWs.2 and 3 would only prove that there are natural witnesses and not tutored witnesses.
15. Further, in a matter of this nature, accused is expected to place his version on record by examining himself or placing written submissions as is contemplated under Section 313(5) of Cr.P.C. but the accused has deliberately failed to utilize this opportunity and therefore, consequences in law has been followed. In this regard, this Court gainfully places its reliance on the judgments of the Hon'ble Apex Court in the case of RAVI KAPUR Vs. 11 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 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."
16. Applying the legal principles enunciated in the aforesaid decision to the case on record, in the absence of any contra material placed by the accused, believing oral testimony of PWs.2 and 3 and the Investigation Officers coupled with other documentary evidences on record, has rightly convicted the accused for the offences punishable under Sections 279 and 304A of IPC which has been rightly 12 upheld by the learned judge in the First Appellate Court. Even after re-appreciation of the entire materials on record and in the light of the arguments putforth on behalf of the revision petitioner, this Court is of the considered opinion that there is no legal infirmity or perversity in the findings recorded by the trial Magistrate which is upheld by the learned judge in the First Appellate Court. Accordingly, point No.1 is answered in negative.
17. Insofar as sentence is concerned, the trial Magistrate had granted nine months simple imprisonment for the offences punishable under Sections 279 and 304A of IPC, learned Judge in the First Appellate Court however modified the same to three months simple imprisonment for the offence punishable under Section 279 of IPC and six months simple imprisonment for the offence punishable under Section 304A of IPC.
18. It is a settled principles of law that the offence punishable under Section 279 of IPC merges with the offence punishable under Section 304A of IPC and 13 therefore, no separate sentence need to be imposed for the offence punishable under Section 279 of IPC by following the dictum of the Hon'ble Apex Court in the case of Guru Basavaraj Vs. State of Karnataka reported in (2012)8 SCC 734. Accordingly, separate sentence is ordered by the trial Magistrate and modified by the learned judge in the First Appellate Court needs to be set aside.
19. Insofar as the plea of leniency, following dictum of the Hon'ble Apex Court in the case of STATE OF PUNJAB Vs. SAURABH BAKSHI reported in (2012) 5 SCC 182, this Court is of the considered opinion that no leniency can be shown to the accused and the said plea is to be rejected and accordingly, point No.2 is answered and pass the following:
ORDER i. The Criminal Revision Petition is allowed-
in-part.14
ii. While maintaining the conviction for the offences punishable under Sections 279 and 304A of IPC, separate sentence of three months simple imprisonment ordered by the learned judge in the First Appellate Court is hereby set aside. iii. Rest of the sentences modified by the learned judge in the First Appellate Court stands unaltered.
iv. Time is granted till 31.12.2021 for the accused to surrender before the Court for serving remaining part of the sentence.
v. The service rendered by the Amicus
Curiae is placed on record with
appreciation and honorarium is fixed at Rs.5,000/-.15
vi. Office is directed to return the trial Court records with a copy of this order, forthwith.
Sd/-
JUDGE VBS