Karnataka High Court
Praveen S/O Bharmappa Gunger vs The State Of Karnataka on 10 January, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 100055 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100055 OF 2016
BETWEEN:
PRAVEEN S/O BHARMAPPA GUNGER,
AGE: 26 YEARS,
R/O: AREMALLAPUR,
TALUK: RANEBENNUR,
DISTRICT: HAVERI.
...PETITIONER
(BY SRI K.S.PATIL, ADVOCATE.)
AND:
THE STATE OF KARNATAKA,
BY PSI, RURAL POLICE STATION,
RENEBENNUR, TQ: RANEBENNUR,
THROUGH ADDITIONAL S.P.P.,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, DHARWD.
...RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP.)
Digitally signed
by SUJATA
SUBHASH
PAMMAR
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
BENCH,
DHARWAD.
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF SENTENCE DATED 05.12.2015, PASSED
IN CRL.A.NO.36/2011, BY THE II ADDL. DISRICT AND SESSIONS
JUDGE, AT HAVERI (SITTING AT RANEBENNUR), WHEREBY
DISMISSING THE APPEAL AND MODIFYING THE SENTENCE BY
REDUCING IMPRISONMENT ONLY FOR OFFENCE PUNISHABLE UNDER
SECTION 304(A) OF IPC TO 3 MONTHS INSTEAD OF 6 MONTHS
THEREBY UPHOLDING AND CONFIRMING THE JUDGMENT DATED
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CRL.RP No. 100055 of 2016
24.06.2011, IN C.C.NO.191/2009, ON THE FILE OF PRL. SENIOR
CIVIL JUDGE AND JMFC, RANEBENNUR, ETC.,.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed against the judgment of conviction and order of sentence passed by Prl. Senior Civil Judge and JMFC, Ranebennur, in C.C.No.191/2009 and confirmed with certain modification regarding sentence portion by II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur, in Crl.A.No.36/2011, for the offence punishable under sections 279, 337, 338 and 304(A) of IPC.
2. For the sake of convenience, the parties herein are referred with the original rankings occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that:
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(a) On 20.07.2009 at 11.15 a.m., the accused being the driver of TATA Ace vehicle bearing No.KA-27/A-
2360, drove it in a rash and negligent manner from Aremallapur village towards Ranebennur, in a rash manner and in speed endangering human life and personal safety with excess passengers, as a result the vehicle overturned by the side of the road resulting in simple injuries to CWs.7 to 10, grievous injuries to CW.6 and causing death of one Nissarahammed Irani. In this regard a complaint came to be lodged by the complainant at about 03.30 p.m. on the same day. On the basis of the complaint, a crime was registered. The Investigating Officer visited the spot and drawn mahazar. He has also recorded the statements of witnesses and it is noticed that one person i.e., Nissarahammed on the way to hospital succumbed because of the injuries sustained by him and after completing the investigation, the Investigating Officer has submitted the charge sheet for the offence punishable under sections 279, 337, 338 and 304(A) of IPC. -4- CRL.RP No. 100055 of 2016
(b) After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Magistrate has taken cognizance of the offences. The summons have been issued to the accused and accused appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to him. The plea under section 279, 337, 338 and 304(A) of IPC was recorded and the accused denied the same.
(c) Then the prosecution has examined in all nine witnesses as PW.1 to PW.9 and also placed reliance on 24 documents, which are marked at Ex.P.1 to P.24. After conclusion of the evidence of the 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 oral or documentary evidence in support of his defence.
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(d) After having heard the arguments, the learned Magistrate has convicted the accused for the offence punishable under sections 279, 337, 338 and 304(A) of IPC and imposed fine of Rs.1,000/-, each for the offence under section 279, 338 of IPC and fine of Rs.500/- for the offence under section 337 of IPC. Further accused was also imposed sentence of simple imprisonment for a period of six months with a fine of Rs.1,000/- for the offence punishable under section 304(A) of IPC with default clause.
(e) Being aggrieved by the judgment of conviction and order of sentence, the accused-revision petitioner has filed Crl.A.No.36/2011, on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur and the learned Sessions Judge by judgment dated 05.12.2015, upheld the conviction order. However the sentence so far as it relates to the offence under section 304(A) of IPC was modified by reducing the same from six months to three months and rest of the order stands confirmed. -6- CRL.RP No. 100055 of 2016 Being aggrieved by these concurrent findings, this revision petition is filed.
4. Heard the learned counsel appearing for revision petitioner and learned HCGP appearing for respondent State. Perused the records.
5. The learned counsel for revision petitioner would contend that there is no serious dispute regarding the accident. Both the Trial Court and the First Appellate Court have failed to note of the fact that it was raining on that day and due to unavoidable circumstances, the accident has occurred, since suddenly cattle came across the road, which compelled the accused to apply brake, which has resulted in the accident. Hence, he would contend that the Trial Court as well as the First Appellate Court are not justified in imposing sentence of imprisonment and sought for indulgence by this Court by setting aside the sentence of imprisonment. -7- CRL.RP No. 100055 of 2016
6. Per contra, the learned HCGP would support the judgment of conviction and order of sentence passed by the First Appellate Court and argued that all the witnesses have fully supported the case of prosecution and the accused has not led any evidence to show his innocence or precautions taken by him in avoiding the accident. Hence, he would submit that the judgment of conviction and order of sentence passed by the First Appellate Court does not call for any interference. As such he would seek for rejection of the revision petition.
7. Having heard the arguments and perusing the records, now the following point would arise for my consideration.
"Whether the judgment of conviction passed by the Trial Court and modified order of sentence passed by the First Appellate Court are erroneous, arbitrary and capricious, so as to call for any interference in this revision?" -8- CRL.RP No. 100055 of 2016
8. On a perusal of the records it is not in dispute that the accident has occurred on 20.07.2009 at about 11.15 a.m. on Aremallapur-Ranebennur road involving TATA Ace vehicle bearing No.KA-27/A-2360. It is also not in serious dispute that the accused was the driver of the TATA Ace vehicle. It is further an admitted fact that the vehicle overturned on the right side of the road resulting in simple injuries to CWs.7 to 10 and grievous injuries to CW.6 as well as resulting in death of one Nissarahammed. All these facts are admitted. The accused has simply disputed the actionable negligence on his part.
9. The main contention of the learned counsel for accused is that since it was raining, certain cattle suddenly came on the road which has compelled the accused to apply brake to his vehicle. But the evidence disclose that it was only drizzling and the witnesses have supported the case of the prosecution. The complainant is an eye witness who set the law in motion and while PW.2 is spot mahazar witness and PW.3 is an eye witness. Further, PW.4 and -9- CRL.RP No. 100055 of 2016 PW.5 are also eye witnesses. Though in the cross- examination of these witnesses it is elicited that it was raining, but the evidence also disclose that the vehicle was being driven with around 20 passengers. The evidence further disclose that some of the passengers were sitting on the top of the cabin. This aspect itself clearly establishes that the vehicle was overloaded and revision petitioner-accused was negligent in driving the vehicle with overloaded passengers that too when it was drizzling/raining.
10. The sketch of the scene of offence is available at Ex.P.3 while Ex.P.2 is the spot mahazar. Ex.P.3 disclose that at the accident spot, road is straight and there were no trees planted by either side of the road. The accident has occurred in the morning at 11.15 a.m. In that event even if it is drizzling, the petitioner being the driver was able to see the cattle grazing by the side of the road and he should have anticipated regarding their movements. But that is not forthcoming though the accused all along
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CRL.RP No. 100055 of 2016 taken a defence that cattle suddenly came across the road. The evidence disclose that none of the cattles have suffered any injuries. The principles of res ipsa loquitur are directly applicable to the facts and circumstances of the case in hand.
11. Apart from that, under section 106 of the Indian Evidence Act, the accused is required to explain the specific facts within his knowledge, but he did not venture to explain as to how the accident has occurred. His statement recorded under section 313 of Cr.P.C. discloses that it is a formal denial. Looking to these facts and circumstances it is evident that the accused drove his vehicle in a rash and negligent manner with overloaded passengers and was unable to control the vehicle which has resulted in overturning the vehicle as a result certain persons suffered simple and grievous injuries and one person succumbed because of the injuries.
12. The facts clearly establish that the accident is because of actionable negligence on the part of the
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CRL.RP No. 100055 of 2016 revision petitioner-accused and he has committed offence punishable under section 279, 337, 338 and 304A of IPC. Both the Trial Court and the First Appellate Court have properly analyzed the evidence and concurrently found that the accused has committed the offences and have rightly convicted him. Further, though the Trial Court has imposed sentence of simple imprisonment of six months for the offence punishable under section 304(A) of IPC, the First Appellate Court has modified the said portion of the sentence by imposing sentence of imprisonment for a period of only three months by retaining the fine, which is not challenged by the State.
13. Looking to these facts and circumstances, it is evident that the First Appellate Court has already shown leniency towards accused. Under these circumstances, considering the nature and gravity of the offence, extending further leniency in favour of the petitioner- accused does not arise at all. The judgments of conviction and orders of sentence do not suffer from any infirmity or
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CRL.RP No. 100055 of 2016 arbitrariness so as to call for interference by this court. Under such circumstances, the point for consideration is answered in the negative and as such the revision petition being devoid of merits, does not survive for consideration.
Accordingly, I proceed to pass the following:
ORDER The revision petition is dismissed, by confirming the judgment of conviction dated 24.06.2011, passed by the Prl. Senior Civil Judge and JMFC, Ranebennur, in C.C.No.191/2009 and the modified order of sentence dated 05.12.2015, passed by the II Addl. District and Sessions Judge, Haveri, sitting at Ranbennur, in Crl.A.No.36/2011.
Send back the TCRs to Trial Court with a direction to secure the presence of accused for serving the sentence.
Sd/-
JUDGE MRK List No.: 1 Sl No.: 34