Karnataka High Court
Mallappa Hanumantappa Talawar vs State Of Karnataka on 30 May, 2023
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CRL.RP No. 100166 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100166 OF 2015
BETWEEN:
MALLAPPA HANUMANTAPPA TALAWAR
AGE: 54 YEARS, OCC: DRIVER,
R/O. ARALIHALLI, TQ: SAVANUR,
DIST: HAVERI.
...PETITIONER
(BY SHRI VYASA DESAI FOR
JAGADISH PATIL, ADVOCATES)
AND:
Digitally
signed by J
J
MAMATHA STATE OF KARNATAKA,
MAMATHA Date: BY HIGH COURT PUBLIC PROSECUTOR,
2023.05.28
02:31:20 DHARWAD.
+0530
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 19.06.2015 PASSED BY THE I-ADDL. DIST.
& SESSIONS JUDGE, HAVERI, IN CRL.A.NO.08/2010 AND THE
JUDGMENT AND ORDER DATED 23.01.2010 PASSED BY THE
CIVIL JUDGE (JR.DN.) & JMFC COURT, HAVERI, IN
C.C.NO.339/2009 AND SET THE PETITIONER AT LIBERTY, FOR
OFFENCE P/U/S 279, 304(A), 134 OF IPC R/W 187 OF M.V.
ACT.
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CRL.RP No. 100166 of 2015
THIS REVISION PETITION COMING ON FOR HEARING
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 21.03.2023, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
Revision petitioner-accused being aggrieved by the judgment of learned I Additional District and Sessions Judge, Haveri (hereinafter referred as 'First Appellate Court' for brevity) in Criminal Appeal No.08/2010 dated 19.06.2015, preferred the present Criminal Revision Petition.
2. Parties to the revision petition are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 20.10.2008 at about 8:15 p.m, accused being the driver of tractor-trailer bearing No.K.A-27/T-7271/72 on P.B. road near Nelogal Railway Station drove the same with high speed in a rash and negligent manner so as to endanger human life. On account of actionable negligence in driving -3- CRL.RP No. 100166 of 2015 the tractor and trailer by accused, the wheels of tractor entered the pot hole on the left side. Due to which, trailer was tilted, further Fakkirappa Erappa Kademani, who was inmate of tractor and trailer fell down and the wheels of the tractor ran over him. As a result of which, he succumbed to the injuries sustained in the accident. It is further alleged by the prosecution that accused has failed to give information about the accident to the nearest police station. On these allegations, the investigating officer after completion of investigation filed the charge- sheet.
4. Accused was secured before the trial Court and the substance of accusation was read over and explained to the accused in the language known to him. Accused pleaded not guilty and claimed to be tried.
5. Prosecution in order to prove the accusation leveled against accused relied on the evidence of PWs.1 to 5 and documents Exs.P.1 to 13. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C, came to be recorded and accused denied all -4- CRL.RP No. 100166 of 2015 the incriminating material evidence appearing against him and claimed that false case is filed. Revision petitioner- accused has not chosen to lead any of his defence. The trial Court after having heard the arguments of both sides and on appreciation of material evidence on record convicted the accused for the offences punishable under Sections 279, 304(A) of Indian Penal Code (hereinafter referred as 'IPC' for brevity) and Section 134 read with Section 187 of Indian Motor Vehicles Act (hereinafter referred as 'M.V.Act' for brevity) and imposed sentence as per order of sentence.
6. The said judgment of conviction and order of sentence was challenged by accused before First Appellate Court in Criminal Appeal No.8/2010 on the file of I Additional District and Sessions Judge, Haveri. The First Appellate Court on re-appreciating the material evidence on record, dismissed the appeal and confirmed the judgment of conviction and order of sentence as ordered by trial Court.
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7. Revision petitioner-accused challenged the concurrent findings of both Courts below contending that the trial Court as well as First Appellate Court have not properly appreciated the evidence on record on the core issue of culpable rashness or negligence on the part of accused resulting into the accident in question. The evidence of PWs.1 to 5 who are the inmates of the tractor is totally unreliable in view of their admission in the cross- examination. The spot panchanama-Ex.P.3 and photographs-Exs.P.8 to 11 with sketch map-Ex.P.12 have not been properly appreciated with reference to the evidence of PWs.1 to 5 and as a result both the Courts below erroneously concluded that accident in question occurred due to actionable negligence on the part of accused and Fakkirappa Erappa Kademani succumbed to the injuries sustained in the accident. Therefore, prayed for allowing the revision petition and to set-aside the judgment of conviction and order of sentence passed by trial Court which is confirmed by First Appellate Court. -6- CRL.RP No. 100166 of 2015 Consequently, to acquit the accused from the accusation leveled against him.
8. In response to the notice, learned HCGP has appeared for respondent-State.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that on 20.10.2008 at about 8:15 p.m, accused was driving tractor-trailer bearing No.K.A-27/T-7271/72 with high speed in rash and negligent manner on P.B.road after crossing the Nelogal Railway gate. On account of such actionable negligence, wheels of trailer entered into left side pothole, as a result, trailer was tilted. The inmates of the tractor Fakkirappa fell down to the ground, further the wheels of trailer ran over Fakkirappa Erappa Kademani who succumbed to the injuries sustained in the accident. The material evidence relied by the prosecution to prove that accident in question occurred due to actionable negligence of accused in driving tractor-trailer are PWs.1 -7- CRL.RP No. 100166 of 2015 to 5, the inmates of the tractor. The said evidence is sought to be corroborated by spot panchanama-Ex.P.2, photographs-Exs.P.8 to 11 and sketch map-Ex.P.12. The evidence of PWs.6 to 9 speaks about post incident and their evidence needs to be appreciated with the above referred material evidence on record.
11. On the day of accident, the deceased and five persons were traveling in the tractor and trailer being driven by accused. The tractor and trailer was loaded with cement stones and after unloading the cement stones, the said persons were returning in the said tractor and trailer to Nelogal village. On account of wheels of the tractor entering into the left side pothole on Kachha road, the trailer was tilted and inmate of the tractor Fakkirappa Erappa Kademani fell to the ground. Thereafter, wheels of the trailer ran over on Fakkirappa Erappa Kademani who succumbed to the injuries sustained in the accident are the facts not at all in dispute. The dispute is only with respect to alleged culpable rashness or negligence on the part of the accused leading to the accident in question where one -8- CRL.RP No. 100166 of 2015 of the inmate of trailer namely Fakkirappa Erappa Kademani succumbed to the injuries in the accident.
12. There is a discrepancy regarding place where the deceased Fakkirappa Erappa Kademani was sitting in the tractor driven by accused. The investigating officer- PW.9 admitted in his cross-examination that it was revealed during the course of investigation that deceased Fakkirappa Erappa Kademani was sitting on the left side of accused who was driving the tractor and not sitting in the trailer. Indisputably, the investigating officer-PW-10 is not an eye witness to the accident. The evidence of eye witnesses, who are the inmates of the tractor, PWs.1 to 5 would unmistakably goes to show that deceased Fakkirappa Erappa Kademani was sitting in the trailer. Therefore, the trial Court as well as First Appellate Court was justified in rejecting the admission of PW.9, who is not an eye witness to the accident and relied on the evidence of eye witnesses-PWs.1 to 5 to hold that the deceased Fakkirappa Erappa Kademani was sitting in the trailer at the time of accident. Accused has not offered any -9- CRL.RP No. 100166 of 2015 explanation regarding the above said discrepancies and never claimed that deceased Fakkirappa Erappa Kademani was sitting by his side while driving the tractor.
13. The specific defence of accused which can be made out from the cross-examination of material witnesses-PWs.1 to 5 is that the deceased Fakkirappa Erappa Kademani on his own volition jumped out of moving tractor. Due to which, he fell down and sustained grievous injuries leading to his death. The said defence has not been accepted by any of the prosecution witnesses-PWs.1 to 5.
14. The oral evidence of PWs.1 to 5 who are the inmates of the tractor driven by accused at the time of accident would go to show that they have consistently deposed about accused driving the tractor-trailer bearing No.KA.27/T-7271-72 with high speed in rash and negligent manner on Nelogal road after unloading the cement stones. On crossing the Nelogal Railway gate, accused without heeding to the request of them to drive the vehicle slowly continued to drive the same with high speed and in
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CRL.RP No. 100166 of 2015negligent manner. On account of such actionable negligence of accused in driving the tractor, the wheels of the tractor and trailer on the left side went to a pothole causing trailer to tilt. Due to which, Fakkirappa Erappa Kademani who was sitting in the trailer fell down to the ground and the wheels of the tractor ran over him who succumbed to the injuries sustained in the accident.
15. The complaint allegations Ex.P.2 would go to show that inmates of the tractor have asked the accused to drive the vehicle slowly and in spite of it, accused continued to drive the tractor with high speed. All of a sudden, the tractor went to the left side Kachha road and due to wheels of the tractor entered into the pothole, inmate of the tractor and trailer Fakkirappa Erappa Kademani was thrown out of trailer and fell to the ground. The wheels of the tractor ran over his legs and thigh. Due to which, he suffered grievous injuries and subsequently, succumbed to the injuries sustained in the accident.
16. The spot panchanama-Ex.P.3 would reveal that the place of accident runs East to West. There is a kachha
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CRL.RP No. 100166 of 2015road of six feet on the northern side and there is six feet width and ½ feet depth pothole and in the said pothole, tractor bearing No.KA.27/T-7271/72 was halting facing towards Eastern side. The width of the road at the place of accident is 24 feet and kachha road of 6 feet to the northern side and 9 feet to the southern side. If these spot features recorded in the spot panchanama-Ex.P.3 are appreciated with the sketch map-Ex.P.12 and the placement of vehicle as found in Exs.P.8 and 9 photographs are appreciated with the oral evidence of inmates of the tractor PWs.1 to 5, then it would go to show that the tractor and trailer bearing No. No.KA.27/T- 7271/72 driven by accused was moving from Western side to Eastern side prior to the accident. The spot of accident is shown on the Kachcha road of 6 feet situated to the Northern side of the road having tractor entered into the pothole on the Kachcha road. The width of the road is 24 feet. There is no any material evidence that has been brought on record during the cross-examination of PWs.1 to 5 as to the reason why the accused left 24 feet width
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CRL.RP No. 100166 of 2015road which compelled him to enter Kachcha road on the Northern side and as a result, the wheels of the tractor and trailer entered into the pothole on the left side of the road situated at Kachcha road. Indisputably, the inmate of the tractor Fakkirappa who was sitting in the trailer was thrown out of the trailer due to tractor entering into the pothole and the wheels of the tractor ran over him and he succumbed to the injuries sustained in the accident. The tractor and trailer driven by accused was moving on the tar road prior to the accident and it is not the defence of the accused that any one of the inmate of the trailer was supposed to alight from the trailer, due to which he took the tractor and trailer to the left side. Therefore, under these circumstances it is difficult to accept the defence of accused that deceased Fakkirappa on his own volition jumped out of moving tractor. Due to which, he fell down and sustained injuries, as a result succumbed to such injuries. The evidence of inmates of the tractor PWs.1 to 5 who are also of the same village Nelogal and they have no
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CRL.RP No. 100166 of 2015enmity against accused to falsely involve the accused in this case.
17. The evidence of PWs.1 and 2 would go to show that the tractor driven by accused at a speed of 25 to 35 kms. per hour. It is suggested to PW.1 that if a person falls from the tractor moving in 25 to 30 km. per hour, then death will not be caused, but the same is denied by PW.1. The evidence of PWs.1 and 2 and the suggestion as referred above to PW.1 would go to show that defence has accepted that accused was driving the tractor at a speed of 25 to 30 km. per hour. The trial Court as well as First Appellate Court referred to Rule 207 (1) of The Karnataka Motor Vehicles Rules, 1989 which reads as follows:
"No tractor, when fitted for being driven on a public road, shall be driven on such road at a speed exceeding ten kilometers per hour and no such tractor shall take sharp turns on such road. "
This Rule makes it clear that tractor cannot be driven at a speed of more than 10 km. per hour and also cannot
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CRL.RP No. 100166 of 2015take a short turn. In the present case as brought on record in the evidence of PWs.1 and 2 referred above, vehicle was driven by accused with a speed of 25 to 30 km. per hour.
18. It was well within the knowledge of accused that the trailer attached to the tractor was being carried with deceased Fakkirappa and 5 other persons and it was returning to the Nelogal village after unloading the cement stones. The accused first of all would not have allowed any persons to travel either in the tractor or trailer. Secondly, he should have been extra cautious in driving the vehicle so as to avoid any probable jumps or jerks which may result endangering to the life of inmates of tractor. However, in spite of that accused has allowed deceased Fakkirappa and 5 others to travel in the trailer attached to the tractor. The evidence of PWs.1 to 5 would go to show that in spite of inmates of the tractor having cautioned accused to drive tractor slowly, continued to drive the same with high speed.
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CRL.RP No. 100166 of 2015
19. On account of such actionable negligence on the part of accused, wheels of the tractor by leaving main tar road of 24 feet entered into the extreme left side on Kachcha road, further wheels of the tractor entered the potholes. Due to which, Fakkirappa was thrown out from the trailer. As a result, wheels of the trailer ran over Fakkirappa and succumbed to such injuries sustained in the accident. Accused neither has brought any material evidence in the cross-examination of PWs.1 to 5 nor offered any explanation as to the compelling circumstances which made him to take tractor and trailer to the extreme left side and entering to the left side pothole. Due to which, Fakkirappa succumbed to the injuries sustained in the accident or chosen to lead any of his evidence to substantiate his defence that deceased Fakkirappa on his own volition jumped out of a moving tractor and succumbed to the injuries sustained in the accident. Looking to the above referred evidence on record, the trail Court as well as First Appellate Court was justified in holding that accident in question has occurred
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CRL.RP No. 100166 of 2015due to actionable negligence of accused in driving the tractor and as a result, Fakkirappa-inmate of the trailer was thrown out of the trailer, further wheels of the tractor ran over him and he succumbed to the injuries sustained in the accident.
20. The question now remains as to imposition of sentence as ordered by the trail Court which is confirmed by the First Appellate Court. The trial Court has sentenced accused to undergo 6 months imprisonment and fine of Rs.1,000/-. In default to pay fine, simple imprisonment for one week for the offence punishable under Section 279 of IPC. Accused further was sentenced to undergo imprisonment of one year and fine of Rs.1,000/-, in default to pay fine, to undergo simple imprisonment for one week for the offence punishable under Section 304-A of IPC, further simple imprisonment for a period of 3 months and fine of Rs.500/-, in default to pay fine simple imprisonment for 3 days for the offence punishable under Section 187 of IMV Act. The sentence of imprisonment are ordered to run concurrently.
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CRL.RP No. 100166 of 2015
21. Looking to the facts and circumstances of the case and the nature of evidence placed on record by prosecution, the imposition of sentence of imprisonment appears to be too harsh and needs to interfered with by modifying the sentence as ordered by the trial Court which is confirmed by the first Appellate Court. If the sentence is reduced to one month for the offence under Section 279 of IPC and 6 months for the offence under Section 304-A IPC and the sentence of imprisonment for the offence under Section 187 of the IMV Act is set-aside by maintaining fine amount as ordered is maintained will meet the ends of justice. Consequently, proceed to pass the following:
ORDER Criminal Revision Petition filed by the revision petitioner is hereby partly allowed.
The judgment of first Appellate Court on the file of the I Addl. District and Sessions Judge, Haveri, in Crl.A.No.8/2010 dated 19.06.2015 confirming the judgment of conviction and sentence order passed by the trial Court in
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C.C.No.339/2009 on the file of the Prl. JMFC, Haveri, dated 23.01.2010 is modified as under:
Accused is sentenced to undergo simple imprisonment for one month and pay fine of Rs.1,000/- in default to pay fine shall under simple imprisonment for one week for the offence under Section 279 of IPC.
Accused is sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,000/- in default to pay fine, undergo simple imprisonment for one month for the offence under Section 304-A IPC.
Accused is sentenced to pay a fine of Rs.500/- in default to pay amount to undergo simple imprisonment for 3 days for the offence under Section 187 of the IMV Act.
The sentence of imprisonment are ordered to run concurrently.
Registry to send back records with judgment to Courts below.
(Sd/-) JUDGE AM/-