Karnataka High Court
Sri Ahmed vs The State Of Karnataka on 19 November, 2021
Author: V.Srishananda
Bench: V.Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.1184/2012
BETWEEN :
SRI AHMED S/O HAMMABBA
AGED ABOUT 65 YEARS
R/AT PARARI HOUSE
VAMANJOOR POST
MANGALORE TALUK - 575103.
...PETITIONER
(BY SRI. HAREESH BHANDARY T, ADVOCATE) (PH)
AND :
THE STATE OF KARNATAKA,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE - 560001.
... RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)(PH)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 30.08.2006
PASSED BY THE J.M.F.C.(II COURT), MANGALORE, D.K. IN
C.C.NO.1206/2006 AND THE JUDGMENT AND ORDER DATED
9.07.2012 PASSED BY THE II ADDL. DIST. & S.J., D.K.,
MANGALORE IN CRL.A.NO.274/2006 AND ACQUIT THEM OF
THEM OFFENCES AND ETC.,
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
This revision petition is filed by the accused who has suffered an order of conviction for the offences punishable under Section 279, 337, 338 and 304(A) IPC by judgment dated 30.06.2006 passed by the J.M.F.C-II Court, D.K, Mangaluru, which was confirmed in the Crl.A.No.274/2006 vide judgment dated 09.07.2012 passed by the II Additional District and Sessions Judge, D.K, Mangaluru. The accused was sentenced as under:
"Acting under Sec.255(2) of Cr.P.C., the accused is convicted of the offences punishable under Secs. 279, 337, 338 and 304(A) of IPC. Considering the age of the accused, he is sentenced to undergo S.I. for 3 months for the offence punishable under Sec.279 of IPC and shall pay fine of Rs.1,000/-. In default of payment of the fine he shall further undergo S.I for 15 days.
Further the accused is sentenced to undergo S.I for one month for the offence punishable under Sec.337 of IPC and shall pay fine of Rs.500/-. In default of payment of fine he shall further undergo S.I for 10 days.
Further the accused is sentenced to undergo S.I for 3 months for the offence punishable under Sec.338 of IPC and shall pay fine of Rs.1,000/-. In default of payment of fine he shall further undergo S.I for 15 days.
Further the accused is sentenced to undergo S.I for 6 months for the offence punishable under Sec.304(A) of IPC and shall pay fine of Rs.5,000/-. In default of payment of fine he shall further -3- undergo S.I for one month. The order of substantive sentence for all the offences shall run concurrently.
2. Brief facts of the case are as under:
Upon a complaint lodged by the complainant, contending that accused being the driver of the lorry bearing No.CNG-9518 drove the same in a rash and negligent manner on 05.09.2005 at about 7.15 a.m., on NH-13 from Mangalore to Moodabidri via Kaikamba and dashed against the Maruthi Car bearing Registration No.KA-27-M-2678 near Garodi situated near Tenka Edapadavu village, whereby there was a hurt to CW.2 and grievous hurt caused to CW.3 and Smt. Ummamma succumbed to the injuries in the accident.
3. Bajpe Police based on the said complaint registered a case against the accused and after thorough investigation, laid a charge sheet against the accused for the offences punishable under Section 279, 337, 338 and 304(A) IPC. The learned Magistrate took cognizance of the aforesaid offences and secured the presence of the accused and framed the charge. Accused pleaded not guilty and therefore, trial was held. In order to prove the case of the prosecution, -4- prosecution in all, examined 12 witnesses as PWs.1 to 12 and relied on 18 documentary evidence which were exhibited and marked as Exs.P.1 to P.18.
4. On completion of the prosecution evidence, the learned Trial Magistrate recorded the accused statement, wherein the accused has denied all the incriminating circumstances. However, the accused did not choose to examine himself nor placed his version of the case as is contemplated under Section 313(5) of Cr.P.C.,.
5. Thereafter, learned Trial Judge has heard the parties in detail and passed an order of conviction as referred to supra. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.274/2006. Learned Judge in the First Appellate Court, after securing the records and hearing the parties in detail by judgment dated 09.07.2012 dismissed the appeal filed by the accused and confirmed the order of conviction and sentence passed by the learned Trial Magistrate. Being aggrieved by the same, revision petitioner is before this Court.
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6. Learned counsel for the revision petitioner Sri Hareesh Bhandary T vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice and thus sought for allowing the revision petition. He also contended that Smt. Ummamma did not die on account of accidental injuries sustained in as much as she died after 25 days of the accident due to some other health complications. Therefore, the ingredients to attract the offence under Section 304(A) IPC was not at all available in the case on hand and thus sought for allowing the revision petition. He also pointed out that the evidence of PW.1 especially in paragraphs No.5 to 8, there are contradictions, which are obtained and the same is not property appreciated by the learned Trial Magistrate and ignored by the learned Judge in the First Appellate Court and sought for interference of this Court.
7. He also pointed out that the accused is a well experienced driver whereas driver of the Maruthi van was an youngster who did not know how to drive the vehicle and -6- having regard to the place of the accident which is in the 'L' shape, no negligence could have been attributed to the driver of the lorry and therefore sought for allowing the revision petition.
8. Alternatively Sri Hareesh Bhandary T contended that having regard to the age of the accused as at the time of the incident he was 50 years and at the time of filing first appeal he was 60 years and now he is aged about 70 years, lenient view may be taken and he may be given probation.
9. Per contra, learned HCGP supported the impugned judgment by contending that the accused failed to place his version of the case before the Court either at the time of recording accused statement or by examining himself. The material evidence on record clearly establish that the prosecution has proved its case beyond all reasonable doubt and the accidental death of Smt. Ummamma and injury sustained to the another inmate of the car is based on sound and logical reason and therefore, sought for dismissal of the revision petition.
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10. He further contended that mere age is not the criteria to consider it as a mitigating circumstance and to show leniency in granting probation. In a matter of this nature, the Court should be slow in showing leniency and sought for dismissal of the review petition.
11. In view of the rival contentions and having regard to the limited scope of the revisional Jurisdiction, the following points would arise for consideration:
(i) Whether the finding recorded by the trial Magistrate that accused is guilty of the offence punishable under Sections 279, 337, 338 and 304(A) IPC which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus calls for interference ?
(ii) Whether the sentence is excessive ?
12. In the case on hand, the accidental death of Smt. Ummamma is established by placing necessary oral and documentary evidence on record. No doubt, an argument is put forth on behalf of the defence that Smt. Ummamma died on account of other health complications but there is no material on record to establish the same. The material evidence on record especially the inquest report, postmortem -8- report, would certificate and other materials on record clearly establish that the prosecution was successful in establishing the accidental injury and the death of Smt. Ummamma. Further, the injured in the same incident who is inmate of the Maruthi Car also supported the case of the prosecution as has been rightly appreciated by the learned Trial Magistrate while recording an order of conviction for the aforesaid offences. The cross-examination to the prosecution witnesses by the defence did not yield any positive material so as to disbelieve the oral testimony of the prosecution witnesses. No doubt an argument was also put forth on behalf of the accused that the accused is well experienced driver, who had 45 years of driving experience and the driver of the Maruthi van was an youngster and has no much experienced. Therefore, no negligence could be attributed to the driver of the lorry. Admittedly, charge sheet came to be filed against the driver of the lorry after thorough investigation. The accused did not challenge the charge sheet. Further, even after prosecution propounded its case by placing necessary oral and documentary evidence on record, it was for the accused to place his version about the incident by placing necessary oral -9- and documentary evidence on record but accused deliberately failed to utilize the opportunity. In this regard, this Court gainfully places its reliance on the judgment of Hon'ble Apex Court in the case of Ravi Kapur v. State of Rajasthan reported in (2012) 9 SCC 284 wherein at paragraph No.39, it reads as hereunder:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
13. Applying the legal principles enunciated in the above decision to the facts of this case, it is crystal clear that prosecution has placed necessary oral and documentary evidence on record to establish that accused is responsible for the accidental death of Smt. Ummamma and the injured person by rash and negligent driving and in the absence of
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any contra evidence placed by the defence on record, the learned Trial Magistrate was justified in recording the finding that accused is guilty of the offences punishable under Section 279, 337, 338 and 304(A) IPC.
14. The learned Judge in the First Appellate Court in the light of the appeal grounds urged before him re- appreciated the material evidence on record including the grounds that were urged before this Court. Learned Judge in the First Appellate Court after such re-appreciation came to the irresistible conclusion that the finding recorded by the Trial Magistrate is just and proper having regard to the facts and circumstances of the case on hand. Therefore, in the light of the original ground, this Court revisited into the material on record having regard to the limited scope of the revisional jurisdiction. Even after such revisiting into the material on record this Court does not find any legal infirmity or perversity in recording a finding that accused is guilty of the of aforesaid offences by both the Courts and accordingly, point No.1 is answered in the negative.
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15. Insofar as sentence is concerned, the Trial Magistrate has granted 6 months imprisonment for the offence punishable under Section 304(A) IPC. However, the Trial Magistrate has also granted three months imprisonment for the offence punishable under Section 279 and one month imprisonment for the offence punishable under Section 337 IPC and also three months imprisonment for the offence punishable under Section 338 IPC.
16. Since there is only one death in the incident, the punishment of imprisonment under Sections 279, 337, 338 merges with the offence under Section 304(A) IPC as is held in the case of Guru Basavaraj alias Benne Settappa v. State of Karnataka reported in (2012) 8 SCC 734. Therefore, a case is made out by the revision petitioner to set aside the imprisonment for the offences punishable under Sections, 279, 337 & 338 IPC. Hence, point No.2 is answered partly in the affirmative and pass the following :-
::ORDER::
Revision petition is allowed in part.
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While maintaining the conviction of the accused for the offences punishable under Sections 279, 337, 338 and 304(A) IPC, the sentence of imprisonment awarded by the Trial Magistrate for the offences punishable under Sections 279, 337 and 338 IPC, three months one month and three months respectively is hereby set aside.
The rest of the sentence is unaltered. Time is granted for the accused to surrender before the Trial Court till 31.12.2021 for serving the remaining sentence.
Office is directed to return the Trial Court records along with the copy of this order forthwith.
Sd/-
JUDGE nms