Karnataka High Court
Govindappa vs The State Of Karnataka on 10 April, 2024
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NC: 2024:KHC:14585
CRL.RP No. 187 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 187 OF 2019
BETWEEN:
GOVINDAPPA
S/O BELURAPPA,
AGED ABOUT 40 YEARS,
OCC:DRIVER,
R/O PADMENAHALLI VILLAGE,
HOLEHONNUR HOBLI,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT-577 227.
...PETITIONER
(BY SRI.P.B.UMESH, ADVOCATE FOR
SRI.RAVINDRA B.DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally BY TARIKERE POLICE STATION,
signed by CHIKKAMAGALURU DISTRICT-577 228
SUMITHRA R
Location: (REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT
OF HIGH COURT BUILDINGS,
KARNATAKA BENGALURU-560 001)
...RESPONDENT
(BY SRI.M.R.PATIL, HCGP)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE DATED 01.06.2017 PASSED BY THE SENIOR
CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST
CLASS, TARIKERE IN C.C.NO.235/2015 CONFIRMED BY THE
JUDGMENT AND ORDER DATED 11.01.2019 PASSED BY THE
I ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU IN
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NC: 2024:KHC:14585
CRL.RP No. 187 of 2019
CRL.A.NO.85/2017 (CONVICTED FOR THE OFFENCE P/U/S.279,
340-A OF IPC AND SEC.134(b) R/W SEC.187 OF MOTOR
VEHICLE ACT) AND ACQUIT THE PETITIONER OF THE CHARGE
LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by judgment of First Appellate Court on the file of I Additional Sessions Judge, Chikkamagaluru in Crl.A.No.85/2017 dated 11.01.2019, confirming the judgment of Trial Court on the file of Senior Civil Judge and JMFC, Tarikere in C.C.NO.235/2015 dated 01.06.2017 preferred this 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. Heard the arguments of both sides.
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019
4. After hearing the arguments of both sides and on perusal of Trial Court records, so also the impugned judgment under appeal, the following points arise for consideration:
1) Whether the impugned judgment under appeal passed by the First Appellate Court in confirming the judgment of Trial Court for the offence punishable under Section 279, 304A of IPC and Section 134(b) r/w 187 of MV Act is perverse, capricious and legally not sustainable?
2) Whether interference of this Court is required?
5. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that, on 30.01.2015 at about 7.45 p.m. near Girija Farm situated between the village of Belenahalli and Gantekanive on Tarikere Bhadravathi NH-206 road, accused being the driver of lorry bearing registration No.KA-12-5625 driven with high speed in rash and negligent manner from -4- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 Tarikere to Bhadravathi and dashed against motor cycle bearing registration No.KA-16-K-6354 ridden by Bheemappa from back side. Due to such culpable rashness or negligence of accused in driving lorry bearing registration No.KA-12-5625, the rider of motorcycle Bheemappa sustained injuries over his head, legs, hands and succumbed to the injuries sustained in the accident. The prosecution further alleges that accused immediately after the accident fled away from the place without giving any information about the accident to the nearest Police Station. On these allegations made in the complaint, Investigating Officer having completed the investigation filed the charge sheet.
6. The prosecution to prove the allegations made against accused relied on the oral testimony of PWs.1 to 13 and the documents Exs.P.1 to 17. Accused has denied all the incriminating material evidence appearing against him and claimed that false case is filed. The Trial Court after hearing the arguments of both sides and on -5- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 appreciation of oral and documentary evidence placed before it has convicted the accused for the offences alleged against him.
7. Accused has challenged the said judgment of conviction and order of sentence passed by the Trial Court before the First Appellate Court in Crl.A.No.85/2017. The First Appellate Court after hearing arguments of both sides and on re-appreciation of evidence has dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the Trial Court.
8. Revision petitioner/accused is challenging the concurrent finding of both the Courts below. The learned counsel for revision petitioner has argued that the oral testimony of PW.1 N Ravi, PW.2 Ramappa and PW.11 Keshavamurthy are unreliable in view of their admission in the cross-examination regarding the culpable rashness or negligence of accused in driving the lorry bearing registration No.KA-12-5625 leading to the accident in -6- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 question. The prosecution has failed to establish the identity of accused and looking to the damages found on both the vehicles vide M.V. report Ex.P.12, the lorry driven by accused having dashed to the back side of motor cycle ridden by deceased Bheemappa is doubtful. The spot features at the place of accident has also not been proved by the prosecution. The observations and the findings recorded by both the Courts below are against the material evidence on record and the same cannot be legally sustained which requires interference by this Court.
9. Per contra, learned High Court Government Pleader has argued that there is no reason to disbelieve the evidence of eye witness PW.1 N Ravi, PW.2 Ramappa and PW.11 Keshavamurthy. The identity of the accused being driver of lorry bearing registration No.KA-12-5625 at the time of accident is substantiated by the oral testimony of the owner of vehicle PW.9 Shivalingaiah. PW.9 Shivalingaiah admitted that notice issued to him by Investigating Officer Ex.P.9 is duly served and he has -7- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 replied to the same Ex.P.10. Therefore, the prosecution out of the said evidence on record has established the identity of accused and there is no worth material evidence that has been brought on record in the cross- examination of PW.1 N Ravi, PW.2 Ramappa and PW.11 Keshavamurthy. The place of accident as per the spot panchanama Ex.P.2 is supported by the oral testimony of PW.3 Marabovi and PW.4 Manjunatha. The said evidence is further corroborated by the evidence of Investigating Officer PW.12 S Basavaraju. The Courts below have rightly appreciated the oral and documentary evidence placed on record and the findings recorded are based on proper appreciation of evidence and as such the same does not call for any interference by this Court.
10. PW.1 N Ravi has deposed to the effect that on 30.01.2014 he had been to Chakkanahalli for attending function of in-laws of his sister, whose marriage was performed on 29.01.2014. After the function, he was returning at 7 p.m. on his motorcycle bearing registration -8- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 No.KA-14-EH-4441 along with PW.11 Keshavamurthy. The deceased Bheemappa was proceeding on his motorcycle in front of his vehicle, at that time a lorry came from Tarikere towards Bhadravathi with high speed from back side and dashed against the motorcycle ridden by Bheemappa, due to which Bheemappa died on the spot and accused without stopping the lorry fled away from the place.
11. PW.2 Ramappa has deposed to the effect that deceased Bheemappa is his relative and his sister's daughter Shantakumari marriage was performed at Ramanagar. He had gone to the in-laws house for attending the function. After the function is over, he was returning to his village and deceased Bheemappa was proceeding on his motor cycle, PW.1 N Ravi and PW.11 Keshavamurthy were proceeding on another motorcycle. Accused being driver of lorry bearing registration No.KA- 12-5625 dashed to the back side of the motorcycle ridden by Bheemappa and due to which he died on the spot. He -9- NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 further deposed to the effect that the accident in question has occurred due to fault of accused who was driving lorry bearing registration No.KA-12-5625 and further he identifies the lorry and motorcycle involved in the accident.
12. PW.11 Keshavamurthy has deposed to the effect that on 30.01.2015 at 7.15 p.m. he was proceeding from Chatnahalli to Bhadra colony on his motorcycle. The deceased Bheemappa was proceeding on his motorcycle near Girija Farm. At that time lorry came with high speed while proceeding towards Bhadravathi and dashed to the back side of the motorcycle ridden by Bheemappa, due to which the accident in question has occurred. He further deposed to the effect that accused did not stop the vehicle after the accident, he chased the vehicle and made to stop the lorry driven by accused. Accused after stopping the lorry fled away from the place. The rider of the motorcycle Bheemappa has sustained grievous injuries over head and died on the spot. After informing about the incident in the
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 house of injured Bheemappa, he has filed the complaint Ex.P.14. On the next day, he showed the place of accident to the police and accordingly spot panchanama Ex.P.2 is prepared.
13. The evidence of Investigating Officer PW.12 S Basavaraju would go to show that on 30.01.2015 he has received the complaint filed by PW.11 Keshavamurthy and registered the case. On the next day he has visited to the place of accident and drawn the panchanama of the place of accident as shown by PW.11 Keshavamurthy and prepared the sketch map, so also taken the photographs of the place of accident. PW.13 G Devaraja has taken up further investigation from PW.12 S Basavaraju and after completing the investigation filed charge sheet.
14. Learned counsel for the accused has vehemently argued that prosecution has failed to prove the identity of accused and drew the attention of the Court to the admission of PW.1 in his examination-in-chief that
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 he has not seen the driver of the lorry, so also PW.2 Ramappa has stated in his cross-examination that by that time he reached to the spot, the driver of the lorry has fled away from the place. The cross-examination of PW.1 N Ravi and PW.2 Ramappa would go to show that they have spoken about the lorry dashed against the motorcycle ridden by Bheemappa from it's back side. It is the case of prosecution that accused after the accident, tried to escape from the place. However, PW.11 Keshavamurthy chased on his motorcycle and made the accused to stop the lorry. Accused after stopping the lorry fled away from the place. In this regard, if the evidence of PW.11 Keshavamurthy is perused, then it would go to show that he has specifically deposed by identifying accused before the Court as the person who was driving lorry and fled away from the lorry after stopping the same.
14(a) It is the evidence of PW.13 G Devaraja that he has given notice to PW.9 Shivalingaiah Ex.P.9 and has given reply to the notice Ex.P.10 and also produced
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 the accused before him. PW.9 Shivalingaiah being owner of the lorry bearing registration No.KA-12-5625 admits about the Investigating Officer having issued notice to him Ex.P.9 and also he has given reply Ex.P.10. If the notice Ex.P.9 and the reply given by PW.9 Shivalingaiah vide Ex.P.10 are perused, then it would go to show that accused was the driver of the lorry at the relevant point of time when the accident occurred. The evidence of PW.9 Shivalingaiah is not challenged by the defence counsel and never claimed that accused was not driver of the lorry at the time of accident in question. The lorry bearing registration No.KA-12-5625 which caused the accident was very much available at the place of accident and thereafter it was brought to the Police Station. If the aforementioned evidence of PW.9 Shivalingaiah and that of Investigating Officer PW.13 G Devaraja and the notice issued to PW.9 Shivalingaiah Ex.P.9 and the reply given by him Ex.P.10 would go to show that accused was the driver of the lorry bearing registration No.KA-12-5625 at the time of accident. The said person has been unmistakably identified
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 by PW.11 Keshavamurthy as a person who after stopping the lorry fled away from the place while giving evidence in the open Court. Therefore, in view of the aforementioned evidence on record, the contention of the learned counsel for the accused that prosecution has failed to establish the identity of driver of the lorry bearing registration No. KA-12-5625 involved in the accident cannot be legally sustained.
15. Learned counsel for the accused has also argued that the damages noted on both the vehicles in view of the MV report Ex.P.12 remained unexplained in view of the case made out by prosecution is to be accepted that the lorry bearing registration No.KA-12- 5625 driven by accused came from backside and dashed against motorcycle ridden by deceased Bheemappa.
16. It is true that Motor Vehicle report Ex.P.12 speaks about the damages to right and left side of the lorry bearing registration No.KA-12-5625. The mere
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 damages noted on both sides itself cannot be a ground to disbelieve that the lorry bearing registration No.KA-12- 5625 driven by accused did not hit from the backside of the motorcycle ridden by Bheemappa. The oral testimony of PW.1 N Ravi, PW.2 Ramappa and PW.11 Keshavamurthy is consistent with regard to the manner in which the accident took place. They have deposed to the effect that the lorry bearing registration No.KA-12-5625 driven by accused came from Tarikere side while proceeding towards Bhadravathi and dashed against the backside of the motorcycle ridden by Bheemappa. The multiple damages found on the motorcycle noted in Ex.P.12 MV report must have been caused after motorcycle is being carried to some distance and those damages cannot ruled out, since the lorry bearing registration No.KA-12-5625 driven by accused carried the motorcycle to some distance. Therefore, the contention of learned counsel for the accused that the damages found on both the vehicles do not correspond
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 with the manner in which the accident took place creates serious doubt cannot be legally sustained.
17. The learned counsel for accused has also argued that the spot panchanama where the accident took place has also not been proved by the prosecution. The oral testimony of PW.3 Marabovi, PW.4 Manjunatha would go to show that they have deposed about the Investigating Officer having prepared the spot panchanama in their presence at the place of accident Ex.P.2 and also the sketch map as per Ex.P.2(e). The said evidence is further corroborated by the evidence of PW.12 S Basavaraju who has deposed to the effect that after visiting place of accident prepared the spot panchanama Ex.P.2 and taken the photographs Exs.P.4 and 5, so also prepared sketch map Ex.P.2(e).
18. The defence counsel though has subjected all these three witnesses to cross-examination, nothing worth material has been brought on record, so as to disbelieve
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 their evidence regarding the preparation of panchanama Ex.P.2 in their presence. Therefore, the recitals of the spot panchanama Ex.P.2 and the sketch map Ex.P.2(e) can be looked into in appreciating the oral testimony of PW.1 N Ravi, PW.2 Ramappa and PW.11 Keshavamurthy.
19. On perusal of the spot panchanama Ex.P.2, it would go to show that the spot panchanama was prepared on 31.01.2015 from 12.30 p.m. to 1.30 p.m. The accident in question occurred on 7.45 p.m. on 30.01.2015. The place of accident is shown by one of the eye witness i.e., PW.11 Keshavamurthy. The road at the place of accident runs from South to North from Tarikere to Bhadravathi of NH-206, the width of the road is about 20 feet having 5 feet kachcha road on either side of the road. The place of accident is shown from Northern side edge towards Eastern side and the distance from Northern side to the place of accident is about 8 feet. The rubbing mark of motorcycle on road was found towards the Northern side about 20 feet from the place of accident and the blood
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 stains were also found on the tar road. The motorcycle was stuck in the wheels of the lorry and it was dragged to some distance and then stopped. The driver of the lorry stopped the vehicle and fled away from the place. If the said recitals of the spot panchanama are appreciated with the sketch map Ex.P.2(e), then it would go to show that accused being driver of bearing registration No.KA-12- 5625 was supposed to take note of the vehicle proceeding in front of him and keep sufficient gap in between both the vehicles, so as to avoid any probable danger of coming in contact with the vehicle. The failure of accused to exercise such diligence has resulted in dashing to the backside of the motorcycle ridden by deceased Bheemappa, due to which he succumbed to the injuries on the spot itself. The recitals of the spot panchanama would also goes to show that the motorcycle was stucked in front wheel of the lorry and thereafter it was dragged to some extent. The evidence of PW.11 Keshavamurthy would go to show that accused did not stop the vehicle immediately after the accident and then proceeded about 500 feet, he was
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 chased by him and then accused stopped the vehicle, thereafter fled away from the place. The said evidence would go to show that accused was not only rash and negligent in driving the lorry bearing registration No.KA- 12-5625 at the time of accident, but also did not stop the vehicle immediately after the accident and then allowed the vehicle to drag the motorcycle to further extent for about 500 feet is nothing but negligence in driving lorry bearing registration No.KA-12-5625.
20. The last contention of learned counsel for the accused is that accused was drunk in the function and due to his mistake the accident has occurred. In this regard, the learned counsel for the accused has invited the attention of this Court regarding the suggestions made to PW.2 Ramappa by the learned APP that all of them were drunk in the function. The eye witnesses have denied the same. The mere inadvertent suggestion made to PW.2 Ramappa that all of them were drunk in the function does not mean that Bheemappa was drunk and proceeding on
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 his motorcycle at the time of accident. On careful perusal of the PM report, it does not disclose anything that the stomach of deceased Bheemappa contains any contents of alcohol. Therefore, without there being any cogent evidence, the contention of learned counsel for accused that rider of the motorcycle Bheemappa was drunk at the time of accident and due to his fault the accident in question has occurred also cannot be accepted.
21. The Courts below have rightly appreciated the oral and documentary evidence placed on record and had arrived to a just and proper conclusion in holding that the accident in question has occurred due to culpable rashness or negligence in driving the lorry bearing registration No.KA-12-5625 and as a result accident in questioin has occurred leading to the death of rider of motorcycle Bheemappa. The Courts below were also justified in holding that accused has failed to give any information about the accident to the nearest Police Station within 24 hours of the occurrence of accident in terms of Section
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 134(b) of MV Act. Accused has also not offered any explanation for his failure to discharge the duty in terms of Section 134(b) of MV Act by taking available defence and the circumstances which prevented him from not giving information to the nearest Police Station. The findings recorded by both the Courts below in holding the accused guilty for the offence punishable under Section 279, 304A of IPC and Section 134(b) r/w Section 187 of MV Act is based on material evidence on record and the same does not warrant any interference by this Court.
22. Now question that remains is the imposition of sentence. The Trial Court has sentenced the accused to undergo simple imprisonment of six months for the offence punishable under Section 279 of IPC and further sentenced the accused to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/- for the offence punishable under Section 304A of IPC and in default of payment of fine shall undergo simple imprisonment for two months. Accused is also sentenced
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 to pay a fine of Rs.500/- for the offence punishable under Section 134(b) r/w Section 187 of MV Act.
23. Looking to the nature of evidence placed on record by the prosecution, the facts and circumstances involved in this case and the other attending circumstances, the imposition of sentence of imprisonment for both the offences under Section 279 and 304A of IPC is too harsh and the same needs to be interfered with.
24. In view of the facts and circumstances of the case, if the accused is sentenced to undergo simple imprisonment for three months for the offence punishable under Section 279 of IPC and further sentenced to undergo simple imprisonment for six months for the offence punishable under Section 304A of IPC by retaining the fine amount as ordered by the Trial Court for the offence punishable under Section 304 A and 134(b) r/w Section 187 of MV Act is ordered to be maintained will meet the ends of justice. Consequently, proceed to pass the following:
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 ORDER Revision Petition filed by the revision petitioner is hereby partly allowed.
The judgment of the First Appellate Court on the file of I Additional Sessions Judge, Chikkamagaluru in Crl.A.No.85/2017 dated 11.01.2019, confirming the judgment of Trial Court on the file of Senior Civil Judge and JMFC, Tarikere in C.C.NO.235/2015 dated 01.06.2017 is hereby ordered to be modified as under:
The accused is sentenced to undergo simple imprisonment for three months for the offence punishable under Section 279 of IPC and further sentenced to undergo simple imprisonment for six months for the offence punishable under Section 304A of IPC.
The fine amount as ordered by the Trial Court for the offence punishable under Section 304A and 134(b) r/w Section 187 of MV Act is maintained.
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NC: 2024:KHC:14585 CRL.RP No. 187 of 2019 The sentence of imprisonment are ordered to run concurrently.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR:List No.: 1 Sl No.: 24