Karnataka High Court
Virupaxappa V R S/O Rudrappa vs The State Of Karnataka on 29 November, 2022
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CRL.RP No. 100262 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CR.R.P.NO.100262/2015
BETWEEN:
VIRUPAXAPPA V R S/O RUDRAPPA
AGE:36 YEARS
OCC:DRIVER
R/O:BASAPUR, POST:MALENUR
TQ:HOLALAKERI
DIST:CHITRADURGA
...PETITIONER
(By Sri. PATIL M H, ADVOCATE )
AND:
THE STATE OF KARNATAKA
RE/P BY SPP,
HIGH COURT OF KARNATAKA, DHARWAD,
RURAL POLICE STATION,
HAVERI.
...RESPONDENT
(By SRI. V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1) R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT PASSED BY
HON'BLE PRL. DISTRICT AND SESSIONS JUDGE AT HAVERI IN CRL
APP NO 59/2012 DATED 21/08/2015 AND TO SET ASIDE THE
JUDGMENT PASSED BY THE PRL. CIVIL JUDGE (JR.DN) AND JMFC AT:
HAVERI IN CC NO 507/2009 DATED 21/11/2012 OFFENCE U/S 279,
337, 304-A, OF IPC U/S 134(A)(B) R/W SEC 187 OF MV ACT MAY
KINDLY BE SET ASIDE BY ALLOWING THIS REVISION PETITION BY
ACQUITTING THE PETITIONER FOR THE ALL THE CHARGES LEVELED
Digitally signed
by ROHAN
AND CONVICTED HIM.
ROHAN HADIMANI T
HADIMANI Date:
T 2022.12.16
11:39:18
+0530 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 07.11.2022 COMING ON FOR
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CRL.RP No. 100262 of 2015
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed under Section 397 (1) read with Section 401 of the Cr.P.C., seeking to set aside the judgment passed by Hon'ble Principal District and Sessions Judge at Haveri in Crl.Apl.No.59/2012 dated 21.08.2015 and to set aside the judgment passed by the Principal Civil Judge (Jr.Dn.) and JMFC at Haveri in C.C.No.507/2009 dated 21.11.2012 offence under Sections 279, 337, 304A of IPC under Section 134(A)(B) read with Section 187 of MV Act may kindly be set aside by allowing this revision petition by acquitting the petitioner.
2. Parties are referred to as per their rank in the Trial Court for convenience.
3. The brief facts of the case of the prosecution are that:
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3.1 On 02.03.2009 at about 10:00 a.m., accused being the driver of lorry bearing registration No.KA-16/D-279, drove his vehicle from Hangal towards Haveri in a rash and negligent manner and near Varun Farm gate belonging to Veeranagoudra of Aladkatti village dashed to an autorickshaw (Tum Tum vehicle) bearing Reg.No.KA-27/8613 by overtaking and the autorickshaw turtled down and due to the accident on Shankrappa Nagappa Garasi and auto driver Chandru Jadigondar seriously injured and Shankrappa Garasi succumbed to the injuries on 21.03.2009 at Govt. Hospital, Haveri.
3.2 After completion of investigation, the Investigating Officer has submitted the charge sheet against the accused and the Trial Court has taken cognizance of the above said offences and the case came to be registered against the -4- CRL.RP No. 100262 of 2015 accused in CC.No.507/2009. Thereafter, the substance of plea was recorded under Section 251 of Cr.P.C., having understood the same, the accused has pleaded not guilty and claimed to be tried.
3.3 In support of the prosecution case, 9 witnesses are examined as PWs.1 to 9 and got marked 14 documents as per Exs.P.1 to 14. Thereafter, the statement as required under Section 313 of Cr.P.C., came to be recorded. Accused has totally denied the incriminating evidence appeared against him but he has not chosen to lead any defense evidence on his behalf, but two documents got marked during the course of cross-examination of prosecution witnesses. 3.4 O hearing the arguments on both the sides, the Trial Court has convicted the accused for the commission of offences punishable under -5- CRL.RP No. 100262 of 2015 Sections 279, 337, 304A of the IPC and also under Sections 134(a)(b) read with Section 187 of the Motor Vehicles Act. Being aggrieved by the order of conviction and sentence passed by the Trial Court, the accused has preferred an appeal before the learned Principal District Sessions Judge at Haveri in Crl.Apl.No.59/2012, same came to be dismissed by judgment dated 21.08.2015. Being aggrieved by this judgment, the revision petitioner has filed this revision petition.
4. Sri. Subender A.Akalawadi, learned counsel for the petitioner submitted his argument that:
4.1 There is no nexus between the death of the deceased and crime. The deceased has been admitted to the KIMS Hospital, Hubli, on the date of accident and he was discharged from the KIMS Hospital, Hubli, after treatment and he died in Kulenoor village on 21.02.2009. -6- CRL.RP No. 100262 of 2015
Thereafter post mortem was conducted as per Ex.P-6. The prosecution has not produced the case sheet of the decease while he was taking treatment in KIMS Hospital, Hubli.
4.2 In page No.11 paragraph No.13 of the judgment of the Trial Court, the deceased was not discharged from the hospital against the advice of the doctor, but the treated doctor has discharged that he has already recovered. Then only the deceased was discharged from the hospital. The prosecution has not placed any materials i.e., MRI or CT scan and other reports to show that the deceased died due to serious injuries caused to his head. However, the Trial Court has observed that the deceased died due to head accidental injuries without any evidence. Hence, the same is not sustainable in law. Further it is submitted that, after discharge of the deceased, he has returned to home and after one day, he had feeling his discomfort. Hence, took him to the -7- CRL.RP No. 100262 of 2015 Government Hospital. But the prosecution has not placed any documents to show that after discharge the deceased has again admitted to the Hospital. The case sheet maintained by the concerned medical officer is also not produced. The Investigating Officer has not offered any explanation for non production of the said material piece of evidence before the Court. 4.3 In Ex.P.6 postmortem report, the age of the deceased Shankarappa Nagappa Darsi shown as 55 years. Except postmortem report and inquest panchanama, (discharge summary and case sheet) absolutely the prosecution has not placed any material to show that the deceased has sustained head injury in the accident. In the inquest panchanama produced at Ex.P.3 at question No.7 it is stated that there is cured wound mark on the head and one abrasion of left forearm, palm and abrasion on right shoulder.
-8-CRL.RP No. 100262 of 2015 4.4 Ex.P.13 is the wound certificate of Suresh S.Hurlikoppa examined as PW.1 has sustained only simple injury.
4.5 Ex.P.14 is the wound certificate of Chandru Jadegoudar examined as PW.7 (son of deceased) has also sustained simple injury. 4.6 During the course of cross-examination of PW.7, he has stated that, after the accident his father was admitted to the KIMS Hospital for 15 days. On the date of accident he was in the Government Hospital Haveri. The doctor at KIMS Hospital has informed him that his father is well and also recommended for discharge. Accordingly, he brought his father to the house from KIMS Hospital in his friend's Autorikshaw. 4.7 The evidence of PW.7 reveals and in the absence of medical evidence it can be said that the deceased is not died due to accidental injuries.
-9-CRL.RP No. 100262 of 2015 4.8 Accident is admitted and the injuries caused to the deceased in the accident as per wound certificate is also admitted. The injuries caused to the other witnesses i.e., PWs.1 and 3 is not disputed. They have sustained injuries due to the accident.
4.9 Accused is arrested on 03.03.2009. The prosecution has not adduced any evidence to prove the commission of offence under Section 187 of the Motor Vehicles Act.
4.10 To substantiate his arguments, he has relied on the decision in the case of Parasuram Patil Vs. The State of Karnataka reported in 2010(2) KCCR 813.
5. Against this argument, Sri V.M.Banakar, learned Additional State Public Prosecutor has submitted his argument that, Trial Court has properly appreciated the evidence on record and passed the impugned judgment and sought for dismissal of the revision petition.
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CRL.RP No. 100262 of 2015
6. It is in the background of the above submissions, I have re-appreciated the evidence on record.
7. It is the case of the prosecution that the alleged accident has occurred on 02.03.2009 at 10:00 AM and the complaint came to be filed on the same day at 11:00 AM as per Ex.P.1 by Suresh S/o. Siddappa Hulipoppi who is examined as PW.1. On the basis of this complaint, the case was registered in Crime No.43/2009 for the commission of offences punishable under Sections 279, 337, 338 of the IPC and under Section 134 read with Section 187 of the MV Act. The FIR is also submitted to the Court on the same day at 02:00 PM as per Ex.P.7. Thereafter, the Police have visited the spot and conducted spot panchnama as per Ex.P.2 in presence of panchas. 7.1 On 03.03.2009 motor vehicle inspector has examined this motorcycle and given a report as per Ex.P.8. 7.2 The wound certificate of the complainant-PW.1 Suresh is marked as Ex.P.13 and wound certificate of Chandrappa B.Jadegoudar-PW.3 is marked as
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CRL.RP No. 100262 of 2015 Ex.P.14. Both have clearly deposed that the driver of the lorry drove the lorry in a high speed and caused this accident.
7.3 On appreciating the evidence on record, the Trial Court has convicted the accused for the commission of offences punishable under Sections 279, 337 and 304A of the IPC and under Section 134(a)(b) read with Section 187 of the MV Act.
7.4 With regard to the offence punishable under Section 304(A) of the IPC is concerned, the prosecution has produced the documents Ex.P.3-inquest panchnama, Ex.P.6-PM report, Exs.P.11 and 12 photos of the deceased. The alleged accident took place on 02.03.2009. the inquest panchnama-Ex.P.3 reveals that on 02.03.2009, the injured Shankrappa Garasi was admitted to the Government Hospital, Haveri and then he was shifted to KIMS Hospital, Hubballi for higher treatment. On 19.03.2009 he was discharged from the hospital and the injured returned to the home. After two days from the date of discharge from hospital, on 21.03.2009 at 02:30
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CRL.RP No. 100262 of 2015 PM the injured Shankrappa expired. Same is clearly stated in the inquest panchnama-Ex.P.3. In question No.13 of this inquest panchnama, it is stated that the cause of death is not known and in question No.14, it is shown that the dead body of the deceased is sent to the PM examination to the District Hospital, Haveri so as to ascertaining the cause of death. Accordingly on 21.03.2009, the dead body was sent to the District Hospital for PM report and after PM examination the dead body was returned to the son of the deceased Sharanappa. In PM report-Ex.P.6, the doctor has given his opinion as to the cause of death that the death of the deceased person is due to shock and hemorrhage on a result of head injury sustained during RTA.
8. During the course of cross-examination of PW.7-Sharanappa Shankarappa Garasi the son of the deceased has clearly stated in his evidence that his father has taken treatment for 15 days in KIMS Hospital and one day he was admitted to the District Hospital, Haveri. Further he has stated that the KIMS doctor has informed
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CRL.RP No. 100262 of 2015 him that his father has recovered and accordingly the doctor has discharged his father from the hospital and he took his father through his friend's autorickshaw. During the course of cross-examination of Doctor-PW.5 Gopal who has conducted the PM examination of the deceased has clearly admitted that he has not mentioned in the PM report as to the age of the injury found on the dead body. Further he has admitted that he cannot say whether the injuries found on the dead body are PM injuries and anti mortem injuries. Further he has admitted that he has not verified the X-ray and case sheet of the deceased prior to PM examination. PW.6-Suresh Adiveppa Sagari, PSI has admitted in his evidence that the deceased Shankrappa Garasi was admitted to the Government Hospital, Haveri on 02.03.2009 thereafter, he has been shifted to KIMS Hospital for higher treatment and he has not enquired the medical officer on which date the injured was discharged from KIMS Hospital and he has also admitted that he has not collected the wound certificate of the deceased.
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CRL.RP No. 100262 of 2015
9. PW.9-M.G.Pampapati, Police officer has clearly admitted in his evidence that the injured after taking treatment in the hospital had discharged from the hospital and died in his house and he has not collected the case history of the deceased Shankrappa. He has not enquired the doctor who has treated the deceased Shankrappa. He has also not produced the case sheet maintained by KIMS Hospital pertaining to the deceased Shankrappa.
10. A perusal of the evidence placed before this Court, it is crystal clear that after lapse of 20 days from the date of accident, Shankrappa has died. It is also admitted fact that the deceased Shankrappa was discharged from the hospital on 19.03.2009 and as per the direction of the medical officer, the injured was discharged from the hospital after he was fully recovered. Only after two days from the date of discharge from hospital, he expired. Under the given circumstances, the IO ought to have collected the materials like the entire case sheet, X-
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CRL.RP No. 100262 of 2015 ray reports, MRI images if any and discharge summary and other relevant documents of the deceased relating to the treatment in the hospital. The IO has not produced any documents to show that the injured Shankrappa has died due to accidental injuries. Only on the basis of PM report, it is not possible to come to the conclusion that the deceased had died due to accidental injuries. The IO himself has clearly stated in inquest panchanama that the cause of death is not known. In such circumstances, the IO ought have collected relevant materials to prove the nexus as to the cause of death of the deceased Shankrappa. In the absence of material piece of evidence as to the cause of death, it is not safe to come to the conclusion that the deceased died due to the accidental injuries. But the Courts below have not properly appreciated the evidence on record. In this regard, only on the basis of Ex.P.6, the Trial Court has convicted the accused for the commission of offence punishable under Section 304A of the IPC. Ex.P.6 is not a substantial
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CRL.RP No. 100262 of 2015 evidence to prove the cause of death of the deceased. Accordingly, the conviction of the revision petitioner for the offence punishable under Section 304A of the IPC cannot be sustained.
11. The Trial Court has convicted the accused for the offence punishable under Section 279 of the IPC and sentenced to undergo 4 months simple imprisonment and pay a fine amount of Rs.500/-, the Trial Court has also convicted the accused for the offence punishable under Section 337 of the IPC and sentenced to undergo 1 month simple imprisonment and pay a fine amount of Rs.500/- and the Trial Court has also convicted the accused for the offence punishable under Section Sections 134(a)(b) and 187 of the M.V. Act and sentenced pay a fine amount of Rs.500/-
12. At the time of the accident, the age of the accused was 33 years, the accused has not previously convicted in any offence. The Trial Court has not assigned
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CRL.RP No. 100262 of 2015 any reasons to impose the imprisonment for the commission of offences punishable under Sections 337 and 279 of the IPC and Sections 134(a)(b) and 187 of the M.V. Act.
13. Considering the mitigating circumstances, nature and gravity of offences and also keeping in mind the decision of the Hon'ble Apex Court in the case of PAUL GEORGE V. STATE OF NCT OF DELHI reported in 2008 (2) SCC 68, I am of the considered opinion that, it is just and proper to modify the sentence passed in respect of offences punishable under Sections 279 and 337 of IPC. Accordingly, I proceed to pass the following:
ORDER i. The revision petition is partly allowed. ii. The judgment of conviction and order of sentence for the commission of offences punishable under Section 304(A) of IPC in CC.No.507/2009 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC,
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CRL.RP No. 100262 of 2015
Haveri dated 21.11.2012 which is confirmed by the learned Principal District and Sessions Judge, Haveri in Crl.Appeal No.59/2012 dated 21.08.2015 is set aside. iii. The accused is acquitted for the offence of punishable under Section 304(A) of IPC. iv. The accused is convicted for the offence punishable under Section 279 of IPC and shall pay a fine amount of Rs.500/-, in default of payment of fine amount, the accused shall undergo simple imprisonment for one(1) month.
v. The accused is convicted for the offence punishable under Section 337 of IPC and shall pay a fine amount of Rs.500/-, in default of payment of fine amount, the accused shall undergo simple imprisonment for one(1) month.
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CRL.RP No. 100262 of 2015 vi. The accused is convicted for the offence punishable under Sections 134(a)(b) and 187 of the Motor Vehicles Act, 1988 and shall pay a fine amount of Rs.500/-, in default of payment of fine amount, the accused shall undergo simple imprisonment for two(2) months.
vi. Accused has already deposited an amount of Rs.6,500/- fine amount, out of this fine amount Rs.1,500/- shall be remitted to the Government and remaining amount of Rs.5000/- shall be returned to the accused with proper identification.
vii. Registry is directed to send back the Trial Court Records to the concerned Trial Court along with a copy of this order.
Sd/-
JUDGE RH