Karnataka High Court
B G Ashok vs The State Of Karnataka on 15 February, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
CRL.RP No. 812 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. NO. 812 OF 2014
BETWEEN:
B.G. ASHOK
S/O GOPALA SHETTY
AGED ABOUT 31 YEARS
R/AT INDIRA NAGARA
BANAKAL, MOODIGERE
TALUK, CHICKMAGALUR
DISTRICT - 577 132.
...PETITIONER
(BY SRI RAVINDRA B DESHPANDE., ADV.)
AND:
Digitally THE STATE OF KARNATAKA
signed by B A
KRISHNA BY BANTWAL TOWN POLICE
KUMAR
Location: High STATION, D.K. - 574 211.
Court of
Karnataka ...RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DTD.25.11.2013 PASSED BY THE ADDL.CIVIL JUDGE &
JMFC, BANTWAL, D.K., IN C.C.NO.189/2012 AND THE JUDGMENT
ORDER DTD.11.09.2014 PASSED BY THE PRL.SESSIONS JUDGE,
D.K., MANGALURU IN CRL.A.NO.388/2013 AND ACQUIT THE
PETITIONER OF THE CHARGES LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 Cr.PC is filed challenging the judgment and order of conviction and sentence dated 25.11.2013 passed by the Court of Addl. Civil -2- CRL.RP No. 812 of 2014 Judge & JMFC, Bantwal, in C.C.No.189/2012 and the judgment and order dated 11.09.2014 passed by the Court of Prl. Sessions Judge, Dakshina Kannada, Mangaluru, in Crl.A.No.388/2013.
2. Heard the learned Counsel for the petitioner and the learned HCGP appearing for the respondent-State.
3. Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, on 07.09.2011, the petitioner allegedly drove the Maruti Omni Car bearing registration No.KA-18-P-2277 in a rash and negligent manner on National Highway No.48 from Mangaluru to B.C.Road and as a result, the omni car dashed against the road divider and turned turtle. The inmates of the vehicle including the petitioner had sustained injuries in the said accident and Sri Subrhamanya who was one of the inmate who had suffered grievous injuries in the accident succumbed to the injuries on 10.09.2011. In respect of the accident in question, a complaint was registered on 08.09.2011, based on which, a case in Crime No.176/2011 was registered by Bantwal Police Station against the petitioner initially for the offences punishable under Sections 279 & 337 IPC. After the death of -3- CRL.RP No. 812 of 2014 Subrhamanya, the police had invoked Section 304-A IPC against the petitioner. Subsequently, the police after investigation, had filed a charge sheet against the petitioner for the aforesaid offences.
4. The petitioner claimed to be tried before the Trial Court, and therefore, in order to substantiate its case, the prosecution in all had examined nine witnesses as PWs-1 to 9 and got marked 10 documents in support of its case as Exs.P-1 to P-10. The petitioner had denied the incriminating evidence in his statement under Section 313 Cr.PC. However, he has not chosen to examine any defence witnesses nor any document was marked in support of his defence. The Trial Court, thereafter, vide its judgment and order dated 25.11.2013 had convicted the petitioner for the offences under Sections 279 & 338 IPC while acquitting the petitioner for the offence under Section 304-A IPC. The appeal filed by the petitioner as against the said judgment and order of conviction and sentence was dismissed by the Court of Prl. Sessions Judge, Dakshina Kannada, Mangaluru, in Crl.A.No.388/2013 vide judgment and order dated 11.09.2014. It is under these circumstances, the petitioner is before this Court.
-4-CRL.RP No. 812 of 2014
5. Learned Counsel for the petitioner submits that the Trial Court had acquitted the petitioner for the offence under Section 304-A IPC on the ground that the prosecution had failed to prove that there was any nexus between the death of Subrahmanya and the accident in question. He submits that the material on record would go to show that deceased Subrahmanya was an heart patient and PW-6 - doctor had stated before the Court that 10% of persons who have similar heart disease may die because of the same. He also submits that the Trial Court was not justified in convicting the petitioner for the offences under Sections 279 & 338 IPC placing reliance on the depositions of PWs-1 & 2 as there is no consistency in their statements. He further prays that since the courts below have convicted the petitioner only for the offences under Sections 279 & 338 IPC, the petitioner may be granted the benefit of the provisions of the Probation of Offenders Act, 1958 (for short, 'the Act').
6. Per contra, learned HCGP appearing for the respondent has argued in support of the impugned judgment and order of conviction and sentence and submits that the material on record would clearly go to show that the petitioner was driving -5- CRL.RP No. 812 of 2014 the vehicle in question in a rash and negligent manner, and therefore, the courts below were fully justified in convicting the petitioner for the offences under Sections 279 & 338 IPC. He, accordingly, prays to dismiss the revision petition.
7. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
8. It is not in dispute that the Trial Court has acquitted the petitioner for the offence under Section 304-A IPC and the State has not challenged the said order of acquittal in respect of Section 304-A IPC, and accordingly, the same has reached finality.
9. For the purpose of proving that the petitioner was driving the vehicle in question in a rash and negligent manner, the prosecution has strongly relied upon the evidence of PWs-1 & 2 who were the inmates of the omni car which had met with the accident. Both of them have categorically stated that the accused/petitioner was driving the offending car at the time of accident and he was driving the same in a high speed and having lost the control, the vehicle had dashed against the road -6- CRL.RP No. 812 of 2014 divider and turned turtle and as a result, one Subrahmanya had died and the other inmates had suffered injuries. The suggestion made to them that the road was slippery and the road was full of potholes and as a result the accident had occurred, were denied by these witnesses. The complaint at Ex.P-1 was registered on the basis of the statement of injured eye-witnesses, pursuant to which the police have registered the FIR.
10. The involvement of the offending vehicle in the accident is not in dispute and the petitioner has been identified as the driver of the offending vehicle at the time of accident by PWs-1 & 2 who were the inmates of the said car. They have also deposed that he was driving the car in a rash and negligent manner which had caused the accident. Nothing serious has been elicited from them during the course of their cross-examination to disbelieve their version. The Trial Court as well as the Appellate Court have recorded a concurrent finding as against the petitioner and have held that the petitioner is guilty of the offences under Sections 279 & 338 IPC, and accordingly have passed the order of conviction against him. I do not find any infirmity in the impugned judgment and order -7- CRL.RP No. 812 of 2014 which has been challenged by the petitioner in this revision petition. Unless the petitioner is able to point out that the courts below have recorded the order of conviction without there being any material on record or the order of conviction is either perverse or illegal, this Court cannot re-appreciate the entire evidence on record as if this Court is the Appellate Court. Under the circumstances, I am of the considered view that the courts below are fully justified in convicting the petitioner for the offences under Sections 279 & 338 IPC and the said judgment and order of conviction does not call for any interference by this Court in exercise of its revisional powers.
11. The Trial Court has sentenced the petitioner to undergo simple imprisonment for a period of 15 days for the offence under Section 279 IPC and has further sentenced him to undergo simple imprisonment for a period of 30 days for the offence under Section 338 IPC. Learned Counsel for the petitioner has submitted that leniency may be shown to the petitioner as he has been acquitted for the offence under Section 304-A IPC and convicted only for the offences under Sections 279 & 338 IPC. He has also prayed to extend the benefit of the Act in favour of the petitioner. -8- CRL.RP No. 812 of 2014
12. Considering the age of the petitioner, the date of accident and also the nature of accident, I am of the considered view that it is a fit case for modification of the order of sentence imposed on the petitioner and also for extending the benefit of the provisions of the Act in his favour. Accordingly, the following order:
13. The revision petition is allowed in part. The judgment and order of conviction passed by the courts below for the offences under Sections 279 & 338 IPC are upheld. The sentence imposed upon the petitioner by the courts below is modified and the petitioner is sentenced to undergo simple imprisonment for a period of one week for the offence under Section 279 IPC and to pay a fine of Rs.1,000/-. For the offence under Section 338 IPC, the petitioner is sentenced to undergo simple imprisonment for a period of 15 days and to pay fine of Rs.1,000/-. In default of payment of the aforesaid fine amount, the petitioner is further directed to undergo simple imprisonment for a period of one week. Both the sentences shall run concurrently. The petitioner is also extended the benefit of the provisions of the Probation of Offenders Act, 1958. In exercise of the powers under Section 360 Cr.PC, the -9- CRL.RP No. 812 of 2014 petitioner is directed to be released on probation of his good conduct for a period of one year on he executing a personal bond with one surety before the Trial Court, undertaking to appear and receive the sentence when called upon during the period of said one year.
Sd/-
JUDGE KK