Karnataka High Court
Govindareddy @ Govind Reddy S/O ... vs The State on 31 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1167
CRL.RP No. 200057 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200057 OF 2020 (397)
BETWEEN:
GOVINDAREDDY @ GOVIND REDDY
S/O MANIKREDDY SANKATI,
NOW AGED 37 YEARS, OCC: KSRTC BUS DRIVER,
R/O HANKUNI VILLAGE,
TQ. HUMNABAD, DIST. BIDAR-585353
...PETITIONER
(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE THROUGH TRAFFIC POLICE STATION
Digitally signed HUMNABAD, TQ. HUMNABAD, DIST. BIDAR,
by SHILPA R BY THE ADDL. S.P.P. HIGH COURT OF KARNATAKA,
TENIHALLI KALABURAGI BENCH-585103.
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRL.RP IS FILED U/S 397 R/W SEC.401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED
11.08.2020 OF II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BIDAR BASAVAKALYAN BENCH IN CRL.APEPAL
NO.84/2018, CONFIRMING THE JUDGMENT OF CONVICTION
DATED 22.09.2018 OF SENIOR CIVIL JUDGE AND JMFC,
HUMNABAD IN C.C.NO.151/2016 IN RESPECT OF OFFENCES
PUNISHABLE U/SECS. 279 AND 337 OF IPC AND ORDER OF
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NC: 2024:KHC-K:1167
CRL.RP No. 200057 of 2020
SENTENCE OF SI FOR SIX MONTHS AND FINE OF RS.1000/-
FOR OFFENCE U/SEC.279 OF IPC, SENTENCE OF SI FOR THREE
MONTHS AND FINE OF RS.1000/- FOR OFFENCE U/SEC.337 OF
IPC WITH DEFAULT STIPULATIONS AND FURTHER BE PLEASED
TO ACQUIT THE PETITIONER OF ALL THE CHARGES FOR
WHICH HE WAS CONVICTED.
THIS PETITION COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by revision petitioner/accused under Section 397 read with Section 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the learned Senior Civil Judge and JMFC, Humnabad in C.C.No.151/2016 and confirmed by the learned II Additional District and Sessions Judge, Bidar sitting at Basavakalyan in Criminal Appeal No.84/2018, whereby, the petitioner was convicted and sentenced for the offences punishable under Sections 279 and 337 of the Indian Penal Code, 1860 (for short 'IPC').
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020
3. The brief factual matrix leading to the case are as under:
That the complainant is an auto driver and on 03.03.2016 at about 2.30 p.m., he was proceeding in his auto bearing registration No.KA-39/491 along with school children from school to leave the said children to their respective houses towards Humnabad teachers colony.
The teacher's colony is situated on Humnabad - Hankuni road and the complainant stopped the vehicle in order to alight the children there and at that time, the driver of the KSRTC bus i.e., accused drove his bus bearing registration No.KA-38/F-686 in a rash and negligent manner and dashed to the auto, resulting in the accident. It is also alleged that he and the children have suffered injuries and thereafter all of them were taken to the hospital in an ambulance. In this regard, he lodged a complaint. On the basis of the complaint, the crime was registered and subsequently the charge sheet came to be submitted -4- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 against the accused for the offences punishable under Sections 279 and 337 of IPC.
4. The learned Magistrate has taken cognizance and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He was provided with prosecution papers as contemplated under Section 207 of Cr.P.C. Then the plea of the accused was recorded for the offences under Sections 279 and 337 of IPC. The accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, the prosecution has examined in all 11 witnesses and has also got marked 13 documents as per Exs.P1 to P13. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating materials appearing against him in the case of the prosecution. The case of the accused was of total -5- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 denial and he did not lead any evidence to prove his defence.
6. The learned Magistrate after hearing the agreements and after appreciating the oral and documentary evidence convicted the accused for the aforesaid offences. He sentenced the accused to undergo simple imprisonment for a period of six months for the offence under Section 279 of IPC with fine of Rs.1,000/- and for the offence under Section 337 of IPC, he sentenced him to undergo simple imprisonment for a period of three months with fine of Rs.1,000/- with default clause.
7. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned II Additional Sessions Judge, Bidar sitting at Basavakalyan in Criminal Appeal No.84/2018. The learned Sessions Judge after re-appreciating the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed -6- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 by the Trial Court. Against these concurrent findings, the accused is before this Court by way of revision.
8. Heard the arguments advanced by the learned counsel for the petitioner/accused and the learned High Court Government Pleader for the respondent - State. Perused the records.
9. The learned counsel for the petitioner would contend that all the witnesses are interested witnesses, who were the inmates of the auto and none of the independent witnesses including the passengers of the bus were examined. He would further assert that the statutory requirement was not complied while examining the child witnesses to ascertain their competency to depose before the Court. Hence, he would contend that the entire case of the prosecution itself is vitiated. Hence, he would seek for allowing the revision petition by setting aside the impugned judgment of conviction and order of sentence passed by both the Courts below. Alternatively, he would contend that the petitioner after having been -7- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 prosecuted in this case, was already removed from the service and he has already suffered and he is eaking his livelihood with much difficulty. It is also submitted that the petitioner is only the bread earner in the family and hence, sought for setting aside the sentence of imprisonment by restricting the sentence to fine alone by awarding some compensation to the injured.
10. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by the Trial Court and confirmed by the First Appellate Court. She would contend that all the witnesses have consistently supported the case of the prosecution and during the cross-examination of the child witnesses, their competency itself was not challenged and it is not open for the accused/petitioenr to urge this point for the first time before this Court in this revision as the scope of revision is very limited. She would also contend that the sketch clearly disclose that the accused was on wrong side. She would also contend that the learned -8- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 Magistrate has imposed reasonable sentence, which does not call for any interference and sought for dismissal of the revision.
11. Having heard the arguments and after perusing the oral and documentary evidence, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by the Trial Court and confirmed by the First Appellate Court are perverse, arbitrary and erroneous so as to call for any interference by this Court?"
12. At the outset, there is no serious dispute of the fact that there was collision between the KSRTC bus and the auto driven by the complainant. It is also admitted fact that the accused was the driver of the offending bus while PW.1/complainant was the driver of the auto. There is no serious dispute of the fact that in the auto, children are being carried to the school and while dropping them back to their respective houses, the accident in question -9- NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 has occurred and number of children have suffered simple injuries. Now the only issue is regarding, who is rash and negligent in causing this accident.
13. PW.1 is the complainant, who is the driver of the auto. In his evidence, he has specifically deposed that on 03.03.2016 at about 3.00 p.m., when he had been to school for getting the children to drop them to their houses and when he had been to teachers colony, the bus came from opposite direction and dashed to his auto resulting in injuries to the children by name Gousia Muskan, Sharifakhan, Alikhan and Salma and all of them have sustained injuries. He further deposed that they were shifted in the ambulance to the hospital and he lodged the complaint as per Ex.P1. His evidence further disclose that on the same day between 5.30 to 6.30 p.m. the mahazar was also drawn and the bus and auto were seized from the spot. In the cross-examination, the accident was denied and a suggestion was made that at the accident spot, the road was narrow and auto cannot
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 pass simultaneously. But this suggestion was not supported by any material evidence as Ex.P6 is the sketch of the scene of the offence and from Exs.P2 and P6, it is evident that in the accident spot width of the road is 20 ft. Under such circumstances, the said suggestion does not have any relevancy.
14. The other suggestion was made that the accident was occurred because of actionable negligence on the part of PW.1, but, he denied the said suggestion and specifically asserted that he had stopped his auto when the accident was occurred. This statement was not denied in the cross-examination.
15. PWs.2 to 5 are the children, who suffered injuries and they deposed in favour of the prosecution asserting that the accident was because of the actionable negligence on the part of the driver of the bus. Though it is argued that the competency of the children was not recorded by the Trial Court, but, the said statement holds no water as before commencement of the evidence, the
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 learned Magistrate has made an endorsement that he primarily enquired the witnesses and then permitted them to give evidence. However, it is evident that he did not record his subjective satisfaction regarding competency of the children. It is a procedural irregularity committed by the learned Magistrate. However, at the same time, the defence counsel during the cross-examination of these witnesses has never disputed the competency of these children/PWs.2 to 5 to give evidence. On the contrary, the cross-examination was elaborately done, which disclose that these witnesses were competent to give evidence.
16. PW.6 is the conductor of the bus and he has turned hostile to the case of the prosecution. However, his examination-in-chief itself disclose that he was giving tickets to the travellers sitting on the rear side of the bus and hence, question of he witnessing the accident has no relevancy and his assertion that the accident was because of negligent act on the part of the driver of the auto i.e., complainant cannot be accepted.
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17. PWs.7 and 8 are the mahazar witnesses, who have turned hostile and PWs.9 and 10 are the Investigating Officers. PW.11 is the medical officer, who has given treatment to the injured and issued wound certificates as per Exs.P8 to P13.
18. Though the arguments advanced by the learned counsel for the petitioner regarding competency of PWs.2 to 5 to give evidence is accepted as there is no certification regarding subjective satisfaction of the Magistrate regarding their competency but, the evidence of PW.1 is not at all impeached in the cross-examination. Apart from that, Ex.P6 is the sketch of the scene of offence and admittedly, the bus was proceeding towards Humnabad and at the accident spot, the road is running from South to North and Humnabad is situated on the northern side. Since the bus was moving from South to North and the accused should have driven the bus on the left side i.e., on the western side of the road but the accident spot is on the eastern edge of the road and the
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 accused has not explained this aspect. The sketch is also not disputed by the accused. The evidence of PW.1 coupled with Exs.P2 and P6 clearly establish that the accident was because of the actionable negligence on the part of the accused. The accused in his statement under Section 313 of Cr.P.C. has not given any explanation as to how the accident has occurred. Under Section 106 of the Evidence Act, the fact within the knowledge of the accused is required to be proved by him but in the instant case the accused did not venture to examine him or to explain as to how the accident has occurred. Hence, an adverse inference can be drawn against him.
19. The oral and documentary evidence clearly establish that the prosecution was successful in proving the guilt of the accused for the offences punishable under Sections 279 and 337 of IPC beyond all reasonable doubts. Both the Courts have rightly convicted the accused for the aforesaid offences and said judgment of conviction and order of sentence does not call for any interference. The
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 learned Magistrate has imposed sentence of imprisonment for a period of six months for the offence under Section 279 of IPC and for a period of three months for the offence under Section 337 of IPC with fine of Rs.1,000/- each.
20. The learned counsel for the petitioner/accused submits that the petitioner was already removed from the service in view of the conviction being upheld in the appellate Court and he has already undergone lot of humiliation and mental trauma for more than seven years in prosecuting this matter. He would also contend that the petitioner is eaking his livelihood with much difficulty and his entire family is depending on him and if he is sentenced, his entire family would suffer. Hence, he would submit that the sentence of imprisonment may be set aside by restricting the sentence to the fine and if necessary, a reasonable compensation may be awarded to the injured/victims.
21. The evidence on record disclose that because of this accident, CWs.1 to 5 have suffered simple injuries and
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 one child aged about four years by name Haneefa Begum has also suffered grievous injuries. Hence, there are six inured persons. However, it is evident that all the witnesses have suffered only simple injuries. The matter is pending since last seven years and it is submitted that the petitioner is already removed from the service and that itself is a big punishment for him and considering this aspect, I am of the considered opinion that the sentence of imprisonment is unwarranted. However, for the offence under Section 279 of IPC, the maximum fine is Rs.1,000/- and for the offence under Section 337 of IPC, the maximum fine is Rs.500/-. The accused cannot be allowed to get off scot-free. Considering these aspects the sentence of imprisonment imposed required to be set aside. In view of the trauma underwent by the children because of this accident, the accused is required to pay compensation to each of them to the tune of Rs.10,000/- i.e., CWs.1 to 5 and minor injured by name Haneefa Begum. Hence, the accused is required to pay compensation of Rs.60,000/- to all the injured persons. In
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NC: 2024:KHC-K:1167 CRL.RP No. 200057 of 2020 view of these facts and circumstances, the revision petition needs to be allowed in part so far as it relates to sentence of imprisonment is concerned. Accordingly, the point under consideration is partly answered in the affirmative and hence, I proceed to pass the following:
ORDER
a) The revision petition is allowed in part so far as it relates to sentence of imprisonment imposed by the Trial Court for the offence under Sections 279 and 337 of IPC.
b) The judgment of conviction passed by the learned Senior Civil Judge and JMFC, Humnabad in C.C.No.151/2016 and confirmed by the learned II Additional District and Sessions Judge, Bidar in Criminal Appeal No.84/2018 stands confirmed.
c) The sentence of fine to the tune of Rs.1,000/- each for the offences under Sections 279 and 337 of IPC also stands confirmed.
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d) However, the sentence of imprisonment for a period of six months and three months respectively for the offences under Sections 279 and 337 of IPC is set aside. The accused is directed to pay compensation of Rs.10,000/- each to CWs.1 to 5 and another minor injured by name Haneefa Begum under Section 357 of Cr.P.C. and he shall deposit the entire compensation amount within a period of six weeks from the date of receipt of certified copy of this order before the learned Magistrate.
e) Registry is directed to send a copy of this order to the Trial Court along with the records.
Sd/-
JUDGE SRT List No.: 1 Sl No.: 10