Karnataka High Court
Mohammed Saleem S/O. Khadersab Akki vs The State Bhy Cpi on 1 February, 2025
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NC: 2025:KHC-D:2010
CRL.RP No. 100008 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100008 OF 2018
(397(Cr.PC)/438(BNSS))
BETWEEN:
1. MOHAMMED SALEEM S/O. KHADERSAB AKKI,
AGE:ABOUT 33 YEARS,OCC:AGRICULTURE,
R/O. HIRUR,
TQ:HANGAL, DIST:HAVERI,
...PETITIONER
(BY SRI. HARSHAWARDHAN. M. PATIL,ADVOCATE)
AND:
1. THE STATE BY CPI,
Digitally
signed by BYADAGI CIRLCE OF KAGINELE POLICE STATION,
SHAKAMBARI REPRESENTED BY STATE PUBLIC PROSECUTOR,
Location: High KARNATAKA HIGH COURT,
Court of DHARWAD.
Karnataka,
Dharwad ...RESPONDENT
Bench
(BY SRI. PRAVEEN. K. UPPAR,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) AND 401 OF CODE OF CRMINAL
PROCEDURE PRAYING TO SET ASIDE THE JUDGEMENT
PASSED BY II ADDL. DISTRICT AND SESSIONS JUDGE,
HAVERI SITTING AT RANEBENNUR IN CRIMINAL APPEAL NO.
08 OF 2014 DATED 27.01.2017 BE SET ASIDE AND TO SET
ASIDE THE JUDGEMENT PASSED BY THE CIVIL JUDGE AND
JMFC, BYADGI IN C.C.NO.133/2010 DATED 20.01.2014 FOR
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NC: 2025:KHC-D:2010
CRL.RP No. 100008 of 2018
OFFENCES PUNISHABLE UNDER SECTION 279, 304(A) OF
IPC AND SEC.134(A)(B) R/W SEC.187 OF MV ACT BE SET
ASIDE BY ALLOWING THIS REVISION PETITION BY
ACQUITTING THE PETITIONER FOR THE ALL THE CHARGES
LEVELED AND CONVICTED THEM.
THIS PETITION HAVING BEEN HEARD AND RESERVED
ON 15.01.2025. COMING ON FOR PRONOUNCEMENT OF
ORDER, THIS DAY, RAMACHANDRA D. HUDDAR, J., MADE
CORAM: THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
ORAL ORDER
(PER: THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This Revision Petition is directed against the judgment of conviction and order of sentence dated 20.01.2014 passed in CC No.133/2010 by the Principal Civil Judge JMFC, Byadgi and confirmed in Criminal Appeal No.8/2014, vide judgment dated 27.01.2017 by the II Additional District & Sessions Judge Haveri, sitting at Ranebennur (for short, 'the First Appellate Court'),
2. Parties to this revision petition are referred to as per their rank before the Trial Court for convenience. -3-
NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018
3. That accused was charge sheeted by the incharge Circle Police Inspector, Bydagi Circle for the offences punishable under Sections 279, 304A and 134(A),(B) r/w Section of IPC and Section 134(A)(B) r/w Section 187 of MV Act 1988. It is alleged by the prosecution, that the accused herein on 12.01.2010 at 3.00 p.m. being the driver of the Tractor bearing registration No.KA/27/T/2342 and Tailor No.KA/27/T/2343 by driving his tractor Tailor from Hirekerur side on Hirekerur Road in a high speed in a rash and negligent manner near the Chikkabasur bus stand in front of the house of complainant's brother, came on the kachha road and dashed against one Nikil S/o Mudigouda Pruvantrigoudra aged two and half years who was standing with his father on the kachha road and because of the same, the wheel of the said tractor rolled on Deceased Nikhil and caused his death. Further it is alleged that the accused without providing any treatment to the deceased, without informing the police station ran away from the said place and hence, he has committed the -4- NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 aforesaid offences. With regard to this accident, CW.1 being the complainant eye witness filed a complaint before Kaginele Police Station which was registered in Crime No.9/2010 and the criminal law was set in motion. The Circle Police Inspector of Byadagi Circle conducted investigation and on completion of investigation, filed the charge sheet against the accused as stated supra.
4. Accused appeared before the trial Court and was enlarged on bail. Copies of the police papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. Substance of accusation were framed and read over to the accused for the offences punishable under Sections 279, 304A and 134(A)(B) r/w Section of IPC and Section 134(A)(B) r/w Section 187 of MV Act 1988 for which, the accused pleaded not guilty and claimed to be tried.
5. Before the trial Court, to prove the guilt of the accused, the prosecution, in all examined 10 witnesses as P.Ws.1 to P.Ws.10 and got marked documents as per Exs.P.1 to P.13 and closed the prosecution witness. -5-
NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 Thereafter, he was questioned under Section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not lead his defence evidence.
6. The learned trial Court, on hearing the arguments and on evaluation of the evidence on record, found the accused guilty and sentenced him as under:
"DgÉƦAiÀÄÄ ¨sÁzÀA¸ÀA, PÀ®AB278 gÀ CrAiÀÄ°è ªÀiÁrzÀ C¥ÀgÁzsÀPÁÌV gÀÆ.700/-UÀ¼À zÀAqÀªÀ£ÄÀ ß ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ ºÁUÀÆ ¸ÀzÀjà zÀAqÀªÀ£ÄÀ ß ¥ÁªÀw¸À®Ä vÀ¦àzÀ°è 10 ¢ªÀ¸ÀUÀ¼À ¸ÁzÁ ²PÉëAiÀÄ£ÀÄß C£ÀĨsÀ«¸À¨ÉÃPÉAzÀÄ DzÉò¸À¯ÁVzÉ.
DgÉÆæAiÀÄÄ ¨sÁzÀA¸ÀA. PÀ®AB304(J) gÀ CrAiÀÄ°è ªÀiÁrzÀ C¥ÀgÁzsÀPÁÌV MAzÀÄ ªÀµÀðzÀ PÁ® PÁgÁUÀȺÀ ªÁ¸À C£ÀĨsÀ«¸À¨ÉÃPÉAzÀÄ DzÉò¸À¯ÁVzÉ.
DgÉÆæAiÀÄÄ ¨sÁzÀA¸ÀA. PÀ®AB134(J)(©) ¸ÀºÀªÁZÀ£À PÀ®AB187gÀ ªÉÆÃmÁgÀÄ ªÁºÀ£À PÁAiÉÄÝ CrAiÀÄ°è ªÀiÁrzÀ C¥ÀgÁzsÀPÁÌV gÀÆ.300/-UÀ¼À zÀAqÀªÀ£ÀÄß ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ ºÁUÀÆ ¸ÀzÀjà zÀAqÀªÀ£ÄÀ ß ¥ÁªÀw¸À®Ä vÀ¦àzÀ°è 5 ¢ªÀ¸ÀUÀ¼À ¸ÁzÁ ²PÉëAiÀÄ£ÀÄß C£ÀĨsÀ«¸À¨ÉÃPÉAzÀÄ DzÉò¸À¯ÁVzÉ."-6-
NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018
7. This judgment of conviction and order of sentence was challenged by the accused/revision petitioner before the First Appellate Court by filing Criminal Appeal No.08/2014. The First Appellate Court, on hearing the arguments and on evaluation of the evidence, dismissed the said appeal vide judgment and order dated 27.01.2017 and thereby confirmed the judgment of conviction and order on sentence passed by the trial Court. This is how the accused-petitioner is now before this Court in this revision petition challenging the impugned judgments of both the Courts below.
8. The learned counsel for the accused-petitioner, Sri. Harshavardhan M. Patil in addition to narrating the facts of the case as well as grounds urged in the revision petition submits that, there is no proper appreciation of evidence by the Courts below. He would submit that PWs.3, 6 and 7, the so called eye-witnesses have stated categorically in their cross-examination that there are road humps near the place of accident and also there is a deep curving school, hospital and bus stand so also the APMC -7- NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 market. Therefore, it would be not possible for any of the drivers of the vehicles to drive the vehicle in high speed. He would further submit that because of the condition of the road, the driver of the said tractor could not have driven the said tractor at a speed of not more than 10 to 15 kms. per hour. Under such circumstances, the accused could not have driven the said tractor in high speed. He would contend that the deceased and his mother PW.6 together were moving towards their house and at that time, deceased by leaving his mother ran away towards tractor and came in contact with the vehicle and as such, he suffered injuries. He would submit that, this defence of the accused is not properly appreciated by the Courts below. The eye-witness PW.4 had turned hostile. Amongst other grounds, it is prayed by the learned counsel for the petitioner - accused to allow the revision petition and set aside the impugned judgments.
9. As against this submission, the learned AGA Sri Praveen Uppar supported the reasons assigned by the Courts below in passing the impugned judgments. He -8- NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 submits that the complainant and his father were the eye- witnesses to the said accident. Though there was sufficient space available on the tar road, what made the accused to come towards the Kachcha road is not explained by the accused. He would submit that there is proper appreciation of evidence of witnesses examined in this case by the Courts below. He would submit that the ingredients of the offences as per the provision of the penal laws both under the penal code as well as the Motor Vehicles Act are fulfilled by the prosecution by adducing cogent and acceptable evidence. Therefore, no interference is required into the impugned judgments of the Courts below. He prays to dismiss the revision petition contending that, this Court cannot exercise Revisional powers under Section 397 of Cr.PC as there is concurrent finding with regard to the rash and negligent driving of tractor Tailor by the accused and jurisdiction to interfere with revision is very much limited. He would further submit that, there is no perversity or illegality committed by the Courts below in coming to a definite conclusion -9- NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 regarding rash and negligent driving of the offending Tractor-Tailor by the accused.
10. I have given my anxious consideration to the arguments advanced by both the side and perused the papers.
11. In view of the rival submission of both the side, the point that would arise for consideration of this Court is as under:
"Whether the judgments of the Courts below suffers from perversity, capriciousness and there is no proper appreciation of evidence by the courts below in passing the impugned judgment and requires inference by this Court?".
12. My answer to the above point is in negative for the following reasons:
13. PW1 Rudragouda Pruvantrigoudra is an eyewitness and complainant to the said accident. According to his evidence, on 12.01.2010, at 2.00 pm, himself and his brother Muddegouda were standing in front of his house. At that time, his brother and deceased
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 Nikhil came towards Bilwa tree to perform the pooja and were standing near bael (Bilwa Patri) tree. At that time, from Hirekerur side, a tractor driven by the accused came in high speed and dashed to Nikhil. Because of this impact, Nikhil died on the spot. With regard to the said accident, he filed a complaint as per Ex.P1 to the police station. He is specific that, because of the rash and negligent driving of the Tractor-Tailor by the accused, the said accident has taken place. He identified four photographs with regard to the said accident as well as the photograph of the deceased Nikhil which are marked at Exs.P2 to P5. As per his evidence, the said bael tree is situated by the side of the road and besides his house. This PW.1 has been cross- examined by the defence by directing severe cross- examination. In the cross- examination, it is brought on record about the situation of the road and his house etc. It is suggested to him that before the accident, deceased Nikhil came running towards road and at that time, the mother of the deceased tried to catch hold him etc. These suggestions so directed to him are specifically denied by
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 PW1. It is denied that, because of the mistake of the deceased, the said accident has taken place. It is his evidence that, he saw the accused when he was running away from the place of accident after causing the accident. He has denied all the suggestions directed to him.
14. PW.2 Somashekar Banakar is a spot pancha in whose presence spot panchanama was prepared by the Investigating Officer as per Ex.P6. According to the evidence of this PW.2, near the bael tree, the said accident has taken place. The bael tree is situated by the side of the house of the complainant. He has identified the rough sketch marked at Ex.P7 which shows where the place of accident is situated. He has been cross-examined by the defence, but, nothing worth is elicited to disbelieve his version that he was very much present when the panchanama was conducted by the police. Even it is suggested that at the instructions of his in-law, the said panchanama was written. Therefore, defence admits his presence when the panchanama was prepared.
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018
15. PW.3 is Mudigouda, the father of the deceased. His evidence is corroborative in nature with that of the evidence of PW.1 in material particulars. He states that when his son was standing by the side of bael tree and performing pooja, at that time, the accused-driver of the tractor Tailor by driving his vehicle in high speed from Hirekerur side dashed against his son who died on the spot. This PW3 was also cross-examined by the defence, but, he consistent throughout his cross-examination about rash and negligent driving of the tractor by the accused. For the first time, it is suggested to him, that when the said accident took place, there was another tractor coming from opposite direction. This suggestion is denied by PW.3. All the suggestions directed to him are denied. Therefore, this PW.3's evidence is quite consistent with the evidence of PW.1 which has to be accepted that these PWs 1 and 3 are the eye witnesses to the said accident. PW.4 Mallanagouda Channagouda is stated to be an eyewitness but, has been turned hostile. So also, PW.4 Basavaraj Ajjappalavar, Pancha to Ex.P.6. When these PWs 4 and 5
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 have been turned hostile, their evidence would become inconsequential to the case of the prosecution.
16. PW.6 Sarvamangala Puravantrigoudra is the mother of the deceased and she too corroborates the evidence of PW.3 in material particulars about rash and negligent driving of the tractor Tailor who drove his vehicle from Hirekeur side towards Haveri and came on kachha road and dashed against the deceased. She has been cross-examined at length by the defence, but, all the suggestions directed to her are denied by her. The accused by way of defence had tried to bring a defence that, it was the sudden crossing of the deceased across the said tractor, therefore, the said accident has taken place. PWs.1, 3, 6 and 7 have denied the same. Mookhappa's an eyewitness. He is specific in his evidence that because of rash and negligent driving of the tractor, the said accident has taken palace and in the said accident, Nikhil died. Though it is stated that, near the school, there were speed breakers, but PW.7 is consistent through out his cross-examination that, because of rash
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 and negligent driving of the tractor by the accused the said accident taken place. He is an independent eye witness and no animosity or illwill is established in the cross-examination against accused to speak against the accused.
17. PW.8 M. G. Pampapati is the Police Inspector conducted investigation and filed the charge sheet. This fact is not denied by the defence in material particulars. PW.9 Sri P.V.Raddi is Motor Vehicle Inspector at the relevant time who conducted the motor vehicle mechanical examination and issued a report at Ex.P9 which shows that the said accident had taken place not because of any mechanical defects. This fact is not denied by the defence. PW.10 Ulavappa Basappa Muttagi was a PSI at the relevant time, who conducted part of investigation by visiting the scene of offence, conducted spot mahazar, inquest mahazar, obtained report from the doctor and recorded the statement of the witnesses. The evidence of PW.10 is not denied by the defence.
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18. So far as documentary evidence marked by the prosecution at Exs.P1 to P16, are not denied by the defence. In a case of present nature, the scene of offence plays an important role. Ex.P.6 is the scene of offence panchanama and Ex.P7 is the sketch prepared by the Investigating Officer at the time of preparing panchanama PW.6. On reading of Exs.P6 and P7, they do suggest that, the scene of offence is a tar road having a width of 16 ft. and on either side of tar road, there exist 4 ft. width kachha road. The said accident took place by the side of kachha road towards western side leaving the tar road as well as kachha road near a tree at a distance of 4ft. from the kachha road towards western side. Driving of the said tractor from Hirekerur towards Haveri is not denied by the accused. What made the driver of the said tractor to leave the 16ft. tar road as well as 4 ft. kachha road and drive the tractor at distance of 4ft. from the kchha road towards bael tree is not explained by the accused either in the cross-examination directed to the witnesses as well as in his statement under Section 313 of Cr.P.C. In a case of
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 present nature, it is the driver of the vehicle who has to explain about the cause of accident. But, the sketch and scene of offence panchanama clearly show that, the driver of the said tractor Tailor was completely rash and negligent in driving his vehicle and because of his rash and negligent driving only, the said accident has taken place. The trial Court as well as the learned the First Appellate Court have rightly appreciated the evidence of the witnesses, the documents so produced by the prosecution and have rightly concluded that, because of rash and negligent driving of the tractor, Tailor by the accused, the said accident is taken place.
19. With regard to occurrence of the accidents, the prosecution is under obligation to prove that accused was driving the vehicle, he was driving the vehicle on a public way and drove the vehicle so rashly and negligently endangering human life. In this case, the accused being driver of the said Tractor Tailor is not denied. It is also not denied that, he was driving the said vehicle on a public way. The conduct of the accused leaving aside the Tar
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 Road and Kaccha Road while driving the said vehicle and went towards extreme left side of the road and dashing against deceased Nikhil who was standing under a Beal Tree shows that, he was driving the Tractor Tailor in a rash and negligent manner endangering human life.
20. The Police have filed a charge sheet against the accused for the offences under Section 279 and 304A of IPC. Offence under Section 304A of IPC is a specific offence where death is caused by doing rash and negligent act which does not amount to culpable homicide under Section 299 or murder under Section 300 of IPC. Thus, a speeding tractor, driver while moving on the Tar road, left the Tar road and kaccha road having a sufficient width and came near deceased boy Nikhil who was standing under Beal Tree and dashed against him resulting in fatal injuries and dying on the spot is proved by the prosecution. Thus, the accused would be guilty under Section 304A of IPC as there was no intention or deliberate act with requisite knowledge for an offence of culpable homicide. The accused being the driver of the tractor Tailor was
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 prosecuted by the police for the aforesaid offences and because of his rash and negligent driving of the offending vehicle, the said accident has taken place. Therefore, to apply the provisions of Sections 304A of IPC even things themselves speak. The principle i.e. res ipsa loquitur can be made applicable. It was a primarily an overt act by the accused though it was not deliberate but, he was quite negligent and he has failed to exercise due care which he was expected of as a prudent man. Thus, there was a breach of duty and negligence and inadvertence to shameful disregard of the safety of the person who was standing under a tree. There was a direct nexus between the death of Nikhil and rash and negligent driving of the offending tractor trailor by the accused. Therefore, for fixing the liability, the prosecution is able to establish the ingredients of Section 279 and 304A of IPC.
21. The learned trial Court as well as First Appellate Court have rightly evaluated and assessed the evidence in a proper manner and the trial Court has rightly found the accused guilty of committing the offences under Sections
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 279 and 304A of IPC. It has come in the evidence of the eye witnesses that after causing the accident he did not take care of even shifting the injured to the hospital or did not inform the same to the police station. This fact so stated by eye witnesses is not denied by the defence. Even the accused is found guilty of committing the offence under Section 134-A and B read with Section 187 of the Motor Vehicles Act.
22. I do not find any a factual or legal error in finding the accused guilty of the aforesaid offences. Therefore, the Judgment of conviction so passed by the trial Court and confirmed by the First Appellate Court do not require any interference by this Court.
23. So far as sentence is concerned, the learned counsel for the accused/petitioner submits that the said accident has taken place on a 12.01.2010. Almost 15 years have been lapsed after occurrence of the accident. During this period, accused has faced trial not only before the trial Court but also, before the First appellate Court as
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 well as this Court, he has suffered physically, mentally and financially. When the said accident has taken place, he was aged 30 years and by this time, he has attained the age of 45 years. The learned counsel for the revision petitioner submits that, as he being the only bread earner in the family, if the sentence is imposed by the trial Court is confirmed, his family would be put to greater hardship and loss, therefore, he prays to show leniency in imposing the sentence.
24. As against this submission, the learned counsel for the State submits that, accidental death happened due to rash and negligent driving of the Tractor-Trailer by the accused. The said Nikhil was just one and half years boy when he died in the accident. Both his parents have lost their beloved son. He further submits that, whatever the sentence so imposed by the trial Court and confirmed by the First Appellate Court need no interference by this Court.
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018
25. The only mitigating circumstance that has been submitted by the counsel is that, the said accident has taken place in 2010 and now we are in 2025. The accused is the only bread earner in the family. So far as offence under Section 304A of IPC is concerned, it is a serious offence. In view of the facts and circumstances of this case, it appears, the imprisonment is must. As the gravity of the offence shows that because of the rash and negligent driving of the Tractor-Trailer, a boy aged one and half years died on the spot itself. Therefore, a minimum sentence has to be imposed on the accused. In view of the age of the litigation i.e. from 2010 onwards, so also the other mitigating circumstances so stated by the accused, some leniency has to be shown in imposing the sentence against the accused for the offence under Section 304 A of IPC. So far as sentencing the accused for other offences are concerned, there need not be any interference and they have to be maintained. Therefore, if the accused/petitioner is sentenced to undergo simple imprisonment for a period of 6 months for the offence
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 under Section 304A of IPC, it would meet the ends of justice. So far as imposition of fine for the offence under Sections 279, 304A of IPC and 134-A, B read with Section 187 of Motor Vehicle Act is concerned, they have to be maintained. Resultantly, I pass the following:
ORDER i. Revision petition filed by the accused/ petitioner is allowed in- part.
ii. There shall be modification of the sentence with regard to the offence under Section 304A of IPC.
iii. The accused is sentenced to undergo a simple imprisonment for a period of 6 months for the offence under Section 304-A of IPC.
iv. So far as imposition of fine for the offence under Section 279 of IPC and Section 134A and B read with Section 187 of Motor Vehicles Act is concerned, they are maintained.
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NC: 2025:KHC-D:2010 CRL.RP No. 100008 of 2018 v. The accused shall surrender before the trial Court within 15 days from today and shall undergo the sentence.
vi. The learned Trial Court is directed to secure the presence of the accused in accordance with law and commit him to the prison.
vii. Send the operative portion of this judgment to the trial Court as well as First Appellate Court for compliance.
viii. Send back the trial Court records (TCRs) along with a copy of the judgment forthwith.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE VMB/Sk/-
CT-VG List No.: 1 Sl No.: 1