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Karnataka High Court

Shivaputrappa S/O Basappa Ganiger vs The State Of Karnataka on 2 February, 2024

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                                                      CRL.RP No. 100040 of 2016




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 02ND DAY OF FEBRUARY, 2024

                                             BEFORE
                    THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                       CRIMINAL REVISION PETITION NO. 100040 OF 2016


                   BETWEEN:

                       SHIVAPUTRAPPA
                       S/O BASAPPA GANIGER,
                       AGE: 48 YEARS, OCC: DRIVER,
                       R/O NALAVADI, TQ. NAVALGUND,
                       DISTRICT DHARWAD.

                                                                    ...PETITIONER
                   (BY SRI.SRINIVAS B. NAIK., ADVOCATE)

                   AND:

                       STATE OF KARNATAKA
                       REP BY STATE PUBLIC PROSECUTOR,
                       HIGH COURT OF KARNATAKA,
                       BENCH, DHARWAD.
Digitally signed
by
SHIVAKUMAR
HIREMATH
Date: 2024.02.20                                                  ...RESPONDENT
13:12:31 +0530
                   (BY SRI.M.B.GUNDAWADE, ADDL. SPP))

                         THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
                   401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
                   DATED: 01.01.2016 PASSED BY PRL. DISTRICT AND SESSION JUDGE
                   DHARWAD, IN CRL.A. NO. 6/2015 AND ALSO SET ASIDE THE
                   JUDGMENT AND ORDER OF CONVICTION DATED 23.12.2014 PASSED
                   BY CIVIL JUDGE AND JMFC, NAVALAGUND IN CC 111/2008
                   CONVICTING THE PETITIONER FOR OFFENCES PUNISHABLE UNDER
                   SECTIONS 279 AND 304 A OF IPC AND SECTION 134 OF MV ACT,
                   AND ACQUIT THE PETITIONER HERE IN OF THE OFFENCES
                   PUNISHABLE U/S 279 AND 304 A OF IPC AND SECTION 134 OF MV
                   ACT IN THE INTEREST OF JUSTICE.
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                                   CRL.RP No. 100040 of 2016




     THIS CRL.RP COMING ON FOR HEARING AFTER HAVING
HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY THE
COURT PRONOUNCED THE FOLLOWING:

                          ORDER

Petitioner-accused has preferred this revision petition challenging the judgment of his conviction and order of sentence passed in C.C.No.111/2008 dated 23.12.2014 by the Civil Judge and JMFC., Navalgund, affirmed by the Principal District & Sessions Judge, Dharwad in Crl.A. No.6/2015 vide judgment dated 01.01.2016.

2. Parties to this revision petition are referred to as per their rank before the trial Court for the purpose of convenience.

3. One Subash Neelappa Desai filed a complaint on 08.02.2008 at 6.30 p.m. by appearing before the Annigeri Police Station, Gadag taluk, stating that, he is the resident of a Koliwad Village in the Hubballi Taluk. It is his statement that he has a son by name Irappa, so also, another son-Prakash and two daughters. He is a coolie by profession. According to his evidence, on 6.2.2008, he had -3- CRL.RP No. 100040 of 2016 been to Eraguppe village for the purpose of meeting his brother. He returned to Koliwad village on 07.2.2008 at 10.00 a.m. There it was informed to him by the villagers that on 7.2.2008 when his son Irappa was moving on a cycle towards Badrapura, near the Idgah, a Lorry bearing Registration number KA-25/B-3402 dashed against his son Irappa and he has been injured, therefore he was shifted to Hubballi KIMS hospital. On hearing this shocking news, complainant rushed to the KIMS hospital. He noticed that his son had sustained grievous injuries on his right forehead so also to his hands, legs and knees. He also sustained injuries on his both cheeks, so also, on his left little finger. It is his statement that, his son was unable to speak, and he was being treated in ICU at KIMS hospital. He was unconscious. The cycle being ridden by his son was damaged. It is his further statement that, on 07.02.2008 at about 8.00 a.m. in the morning, the said accident has taken place and one Manjunath Menasinakai was driver of the said offending Lorry. As he had to inform his relatives as well as he was busy in the treatment of his -4- CRL.RP No. 100040 of 2016 son, he could not file a complaint immediately. He alleges that, because of the rash and negligent driving of the offending lorry bearing registration number KA25/B-3402, the said accident has taken place. With these allegations, he filed a complaint which was registered by the police in the Crime No.6/2008 of Annigeri Police Station and the criminal law was set in motion.

4. The Investigation Officer, after completion of the investigation, filed the charge sheet against the accused for the offences under Section 279, 304(A) of IPC and Section 134 of the Motor Vehicle Act r/w Section 187 of MV Act.

5. Before the trial Court, the prosecution to bring home the guilt of the accused, examined in all 17 witnesses as PWs.1 to 17 and got marked Exs.P1 to P21 and closed prosecution evidence.

6. The learned trial Magistrate on hearing the arguments and on evaluation of the evidence placed on -5- CRL.RP No. 100040 of 2016 record by the prosecution, found the accused guilty of committing the aforesaid offences and sentenced him as under:

"The accused having committed offence shall undergo 4 months of simple imprisonment sentenced to pay fine of Rs. 1000/- in so far the offence punishable U/s. 279 I.P.C. is concerned.

The accused having committed offence shall undergo 6 months of simple imprisonment sentenced to pay fine of Rs. 1000/- in so far the offence punishable U/s. 304A 1.P.C. is concerned. In default accused shall undergo S.I. for a period of 1 month for the offence U/s. 304A of I.P.C.

In so far as Sec. 187 of M.V. Act is concerned the accused shall undergo S.I. for 1 month and fine of Rs. 500/-.

All the sentences shall run consecutively".

7. This judgment of conviction and order of sentence passed by the trial Magistrate was challenged by the accused by preferring an appeal in Criminal Appeal No.6/2015 before the Principal District and Sessions -6- CRL.RP No. 100040 of 2016 Judge, Dharwad being the First Appellate Court. Vide judgment dated 01.01.2016, the first Appellate Court, on hearing the arguments and reassessing the evidence, dismissed the said appeal on 01.01.2016 by confirming the judgment of conviction and order of sentence passed against the accused. This is how the petitioner is before this Court challenging both the judgments of the Courts below.

8. The Learned Counsel for the petitioner submits that, the learned trial Court as well as the first Appellate Court have committed grave error in believing the story of the prosecution witnesses. Therefore, the judgments of the Courts below are contrary to law and facts of the case and materials placed on record. The accused would not have been convicted as the case of the prosecution suffers from several infirmities. The evidence of the witnesses cannot be accepted. But, the trial Court and the first Appellate Court have wrongly appreciated the evidence. There were no eye witnesses but, the branded eye -7- CRL.RP No. 100040 of 2016 witnesses have not supported the case of prosecution. It is further submitted that evidence of PWs.1 to 17 is quite incoherent and quantitative in nature. Because of the contradictions and omissions in the evidence of these witnesses, the story of the prosecution about rash and negligent driving cannot be accepted. In support of his submission, the counsel for the accused relied upon various evidence placed on record by the prosecution. It is prayed to allow the revision petition and acquit the accused.

9. As against this submission, the learned Addl. SPP for the State submits that, in view of the evidence of the eye witnesses examined as PWs.12 and 17, it is proved that because of the rash and negligent driving of the lorry by the accused only, the said accident has taken place. Identity of the accused as a driver of the offending lorry is not disputed in view of the evidence of the owner of the lorry, so also, the said accident has taken place, not because of any mechanical defects. Therefore, according -8- CRL.RP No. 100040 of 2016 to his submission, prosecution has examined number of witnesses and from their evidence, the prosecution was able to prove the guilt of the accused to the hilt. It is submitted that, as concurrent findings have been given by both the Courts, such a concurrent finding in revision cannot be interfered. Hence, relying upon various facts of the case, as well as evidence placed on record by the prosecution, it is prayed by the learned Addl. SPP to dismiss the revision petition.

10. I have given my anxious consideration to the arguments on both the side and meticulously perused the records. The points that would arise for my consideration are as under:

(1) Whether the findings of the trial Magistrate as well as the first Appellate Court finding the accused guilty of the commission of the offence in the manner stated by the prosecution suffers from infirmities, irregularities and require interference by this Court?.

(ii) If so, whether the judgment of conviction and order of sentence passed by the trial Magistrate affirmed by the first Appellate Court require interference by this Court?

(iii) What order?

11. It is the case of the prosecution that, because of the rash and negligent driving of a lorry bearing Registration No. KA-25/B-3402 by the accused on National Highway No. 63 on Gadag- Hubballi Road, near Badrapura Idgah, the said accident has taken place. The said Lorry went and dashed against the deceased Irappa Subhash Desai, who was moving on his bicycle. Because of the accident, he sustained grievous injuries on his person and also the cycle was damaged. The said accident has taken place on 07.02.2008 and because of the grievous injuries suffered by him, he was shifted to KIMS hospital, Hubballi, but, inspite of best efforts by the Doctor, he succumbed to the injuries on 13.02.2008.

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12. In a case of present nature, it is a bounden duty of the prosecution to prove the rash and negligent driving of the lorry by the accused. To prove the said fact, the prosecution relied upon various evidence placed on record. Merely because the road is open, that does not mean that it gives liberty to the drivers of the vehicle to drive the vehicle in a rash and negligent manner and in high speed. Certain duties are also cast on the drivers of the vehicle to drive the vehicle by taking all available precautions and they must be very cautious that their driving should not cause any casualties. Now, let us ascertain the admitted facts in this case before going to the merits of the case.

13. So far as death of Irappa in the said accident is concerned, there is no dispute as such. He sustained grievous injuries on his person, and he died on 13.02.2008 in the KIMS hospital. To that effect, the prosecution relies upon the inquest Panchanama Ex.P.2. The complainant has filed a complaint on 08.02.2008 by appearing before

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the Police Station stating that, because of the rash and negligent driving of the said lorry driver, the accident has taken place. Prosecution also relied upon the P.M. report Ex.P.4. The other witnesses examined in this case, specifically say that, in the accident Irappa sustained grievous injuries, and he died subsequently at KIMS hospital. He died because of accidental injuries, as per the P.M. report. Even the doctor who has conducted the post mortem has spoken before the Court that because of accidental injuries, the deceased Irappa died. If that is so, if all these factual features are put together, it is proved by the prosecution that, because of the accident which has taken place on 07.02.2008, Irappa died.

14. Merely because the accident is proved, so also, the death of the deceased Irappa is proved, that does not mean that the said accident has taken place because of the rash and negligent driving of the offending lorry by the accused. Even it is admitted fact that, the said accident has taken place not because of any mechanical defects in

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the said lorry. To prove the said fact, the prosecution relied upon Ex. P18, the I.M.V. report. This discloses that, the said accident has taken place, not because of any mechanical defects. These are all admitted facts which need not be proved.

15. Now let us ascertain that whether any of the witnesses have supported the prosecution case. So far as the evidence of P.W.1 is concerned, he is the father of the deceased, by name, Subhash Neelappa Desai. He came to know about the accident only when he came to his village on 08.02.2008. Thereafter, he rushed to the KIMS hospital, where his son was under treatment. Thereafter, as his son died because of accidental injuries, he filed a complaint. As he is not an eye witness to the accident and is a hearsay witness about the said accident, much value cannot be attached to the evidence of P.W.1. But however, his evidence is to be accepted to the extent that he has filed a complaint alleging the rash and negligent driving of the offending lorry by the accused.

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16. PW.2 Parashuram Yallappa Poojar and PW.3 Somalingappa Panded are the scene of offence panchas. According to their evidence, in their presence, Exs. P2 and P3 were prepared and Police have conducted the panchanama. These two witnesses have been cross- examined at length, but nothing worth is elicited from the mouth of these witnesses. Therefore, in the presence of this PW.2 and PW.3 Panchanamas Ex.P.2 and 3 were prepared by the Police. Their evidence has not been shaken in the cross-examination. Their presence at the time of preparation of Panchanama is not denied by the defence. Therefore, evidence of PW.2 and PW.3 is helpful to the prosecution to prove the contents of the inquest panchanama as well as scene of offence panchanama in the manner alleged by the prosecution.

17. PW.4 Shantaram Murugapa Naikar arrived at the scene of offence only after the accident. In his presence, the Panchanama was conducted as per Ex.P2. He too says that in his presence, pachanama was

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conducted. To disbelieve the evidence of this PW.4 nothing worth is elicited from the mouth of this witness. Therefore, in the presence of this PW.2 the inquest Panchanama was prepared by the Police is to be accepted. PW.5 Dyamanna Gulappa Jantli is the inquest panchanama to Ex.P.3 and in his presence, the inquest panchanama was prepared. Therefore, Evidence of PW.5 is not disputed by the defence is to be accepted with regard to the preparation of the inquest panchanama as per Ex.P.3.

18. PW.6 Shankrappa Gurusiddappa Kundgoal is a seizer Pancha. According to him, he put his signature on a white paper. He has been declared as hostile witness, but, nothing worth is elicited. PW.7 Amruteshwar Hanamanthappa Naikar, is an eyewitness. These two witnesses have been turned hostile and nothing worth is elicited from their mouth. Therefore, evidence of PWs.6 and 7 would not help the case of prosecution.

19. PW.8 Ashok Lokappa Sammalad was a Motor vehicle Inspector. He conducted the mechanical

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examination of the vehicle i.e., offending lorry and issued a report as per Ex.P4. It shows that the said accident has taken place, not because of any mechanical defects. To disbelieve the contents of the Ex.P4, no effective cross- examination is directed to this witness. Therefore, it is proved by the prosecution that the said accident has taken place, not because of any mechanical defects.

20. PW.9 Gurusiddappa Basappa Kundgoal is a seizer Panchanama, but have been turned hostile. Nothing worth is elicited. His evidence would not help the case of prosecution.

21. PW.10. Dr Kottarabasappa S. Itagi was the doctor who has conducted the post mortem on the dead body of the deceased Irappa. He says that he conducted the post mortem on the dead body of Irappa on 13.02.2008 and issued Ex.P.4. It shows that the said Irappa died because of the accidental injuries. It is suggested that, if the person falls from the bicycle, such injuries may be possible. It is not at all been directed to

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any of the witnesses that, because of falling from the bicycle, Irappa died. But, however, the contents of Motor Vehicle report, marked at Ex.P.18 shows that there was a damage to the said offending Lorry viz, "the right headlight broken, windscreen glass broken, front bumper bent at left side, remaining other parts were in order". So it is not the case of the defence that, these damages so noticed by the M.V. Inspector at the time of examination, were not the old damages. Lorry was carrying the goods. So, the contents of Ex.P18 are quite contrary to the evidence directed to the Doctor PW.10 that because of falling from the cycle, he sustained injuries. Because of dashing the said lorry to the said cycle, said damage have been sustained or caused to the said offending Lorry. Therefore, there is no substance in the cross-examination directed to this Doctor PW.10 by the defence.

22. PW.11 Manjunath Basappa Menasinakai arrived at the scene of offence only after the accident. Therefore, no much value can be attached to the evidence of this

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witness. PW.12 Shivashankar Rudrappa Ganachari and PW.17 Siddappa V.Kale are the eyewitnesses to the said accident. According to their evidence, both were moving on the motorcycle on that day when the said accident took place. It is their evidence that when they were moving towards Gadag on that day, offending lorry overtook their two wheeler-motor bike, and went ahead and dashed against the cyclist ridden by Irappa Subash Desai. They are consistent that even they were afraid that the said lorry may cause any accident. These eye witnesses have spoken before the Court about they witnessing of the nature of driving of the accused of his lorry. These two witnesses are the best witness being examined by the prosecution to prove that they have witnessed the said accident. It is because of the rash and negligent driving of the lorry, the said accident has taken place. Though PW.12 and PW.17 were cross-examined at length by the defence, but nothing worth is elicited from the mouth of these witnesses to disbelieve their version given in the examination-in-chief. If that is so, when the eyewitness

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have spoken before the Court about their witnessing the said accident, as their evidence is not being contradicted or disproved in the cross-examination, their evidence has to be accepted by the court. Rightly the learned trial court has accepted the evidence of PW12 and 17. So also, the first Appellate Court has re-appreciated the evidence of these two witnesses. Thus, prosecution has established the rash and negligent driving of the offending lorry by the accused. When there is proper appreciation of the evidence of these witnesses by the trial court as well as the first Appellate Court, this Court cannot give a divergent finding. This Court, in revision cannot sit as an Appellate Court and re-appreciate the evidence. PW.12 and PW.17 have stated consistently throughout their evidence that, because of the rash and negligent driving of the said offending lorry by the accused, the said accident has taken place. No doubt, there are some contradictions in the evidence but, they will not shake the basic evidence of these two witnesses.

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23. PW13 Shivashankar Rudrappa Ganachari is the Police Inspector who recorded the statement of the complainant and registered the crime and set the criminal law in motion. So also, PW.14 Chandrasekhar Adiveppa Guddin Police Constable was deputed for the purpose of tracing the offending lorry. PW.15 Ramanagoud Adapagouda Hatti was the Investigation Officer. These three witnesses have spoken about their role in the investigation and also filing of the charge sheet. Nothing worth is elicited from the mouth of these witnesses. PW.16 Dadapeer B. Jahagirdar was also an Investigating Officer and according to his evidence, he registered the crime and he conducted part of the investigation.

24. In addition to oral evidence, the documentary evidence produced by the prosecution in the shape of sketch plays an important role do establish that, how far the accused was rash and negligent in driving the Lorry. As per the sketch when accused was moving towards Gadag Town, the road was having 24 feet width and

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though he had sufficient space on the left side of the road, he dashed against the cycle. It is the defence of accused that, because of sudden crossing by the said cyclist, the said accident has taken place. But none of the witness have stated that, there was a sudden crossing of the deceased on his cycle. No such evidence has been brought on record from the evidence of PW12 and PW17 who were the eye witness to the said accident.

25. It is a national highway No.63, it has come in the evidence that, it is a busy road. When traffic is more, when more vehicles ply on the said road, it is the duty of the drivers of the vehicle to take all available precautions to avoid any casualties. But in this case, the accused has not stated anything either in his cross-examination directed to any of the witnesses or during recording of his statement under 313 Cr.PC, what made him to drive the vehicle in such a manner. When PW.12 and PW.17 have stated that, they were afraid on seeing the driving of the side Lorry by the accused, that itself goes to establish that

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the said lorry was driven by the accused in rash and negligent manner and dashed against the cyclist-Irappa died because of the accidental injuries. If all these factual features coupled with the evidence of the eye witnesses is put together, as rightly observed by the trial court and affirmed by the first Appellate Court, because of rash and negligent driving of the said lorry, the said accident has taken place.

26. Considering all these oral and documentary evidence and the material placed on record and conjoint reading of the entire evidence placed on record by the prosecution, it is duly proved by the prosecution that the judgment of the trial Court as well as the first Appellate Court do not require any interference by this Court.

27. So far as quantum of sentence is concerned, learned First Appellate Court, relied upon the judgment of the Supreme Court in State of Punjab vs. Saurabh

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Bakshi1 wherein the Hon'ble Supreme Court has laid down that a proper sentence has to be imposed in such offences and even the compensation also has to be awarded. It is observed that when automobiles have become death traps, no leniency to be shown to drivers who are found guilty of rash and driving would be at the risk of further escalation of road accidents. In this case, the same thing has happened. The persons who are manning the steering of automobiles, particularly the professional drivers as in this case, must keep in mind and about constant reminds us, it is their duty to adopt utmost care and also the consequences befalling them in cases of dereliction. There is a dereliction of his duty by the accused as driver. So drivers must be mentally vigil to maintain a deterrent element in the sentencing aspect also. So no leniency has to be shown. The learned trial Court has rightly convicted the accused. It is affirmed by the first appellate Court. I do not find any grounds or any 1 (2015) 5 SCC 182

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mitigating circumstance to show any leniency in the quantum of sentence imposed by the first Appellate Court. So therefore, the revision petition so filed by the revision petitioner/accused is liable to be dismissed by affirming the judgments of the Courts below. Accordingly, points raised supra are to be answered in favour of the prosecution and against the revision petitioner/accused. Resultanty, following:

ORDER

(i) The revision petition filed by the revision petitioner is dismissed.

(ii) The judgment of conviction and order of sentence dated 23.12.2014 passed in C.C. No. 111/2008 by the Civil Judge and JMFC, Navalgund and affirmed by the first Appellate Court in Criminal Appeal No.6/2015 dated 1.1.2016, are here by confirmed.

(iii) The accused shall surrender the before the trial Court within one month from today to undergo sentence.

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(iv) Trial Court to take proper steps to secure the presence of the accused and commit him to prison.

           (v)    Bail   bond/s       of   accused   stands
     cancelled.

           (vi)   Send back the trial Court records

along with a copy of this order to the trial Court and first appellate Court forthwith.

(vii) Intimate the final order to both the Court below by mail.

Sd/-

JUDGE PSJ/Sk/-