Karnataka High Court
T. Nagaraj vs State Of Karnataka on 28 November, 2022
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CRL.RP No. 100130 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100130 OF 2015
BETWEEN:
1. T. NAGARAJ
S/O THIMMAIAH
AGED ABOUT 38 YEARS
OCC:LORRY DRIVER
NEERALAGUNTE VILLAGE
CHELLAKERE TALUKA
CHITRADURGA DISTRICT
...PETITIONER
(BY SRI. GANGADHAR J M.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
PULBIC PROSECUTOR, HGH COURT OF KARNATAKA
THROUGH CIRCLE POLICE INSPECTOR
KUDLIGI CIRCLE
BALALRI DISTRICT
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 (1)
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER DATED 07.03.2015 IN
CRL.A.NO.5041/2014 PASSED BY THE III-ADDL. SESSIONS
JUDGE, BELLARY, SITTING AT HOSAPETE AND THE
JUDGMENT AND ORDER DATED 28.11.2013 PASSED BY THE
CIVIL JUDGE & JMFC COURT, SANDUR IN C.C.NO.468/2011
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CRL.RP No. 100130 of 2015
FOR THE OFFENCES P/U/S 279, 304-A OF IPC R/W SEC. 181,
183, 187 OF MV ACT, BY ALLOWING THIS REVISION PETITION.
THIS PETITION COMING ON FOR HEARING ON
SENTENCE, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 28.11.2013 in C.C. No.468/2011 on the file of learned Civil Judge and JMFC., at Sandur and also its confirmation order dated 07.03.2015 in Crl.A.No.5041/2014 on the file of learned III Additional Sessions Judge, Ballari (sitting at Hosapete).
Brief facts of the case are as follows:
2. The complainant is the permanent resident of Chikkakereyaginahalli village in Sandur Taluk. He was doing agricultural work, he has four female and three male children and out of them, deceased Jyothemma who was aged about 10 years and studying in 4th standard. On 24.11.2010 his son Chinnapurappa and daughter Gouramma had been to the land of Kalappa for coolie work. The deceased Jyothemma was -3- CRL.RP No. 100130 of 2015 asked to take sheep for grazing along with Chinnapurappa and Gouramma. The complainant received a message at about 4.15 p.m. stating that the said Jyothemma was killed in the road accident. Having heard the information, the complainant went to the spot and he saw the lorry which was stopped nearby. The lorry bearing registration No.KA-16/A-8584. It was loaded with iron ore. He further noticed that the accused was not present. Therefore, the complainant has lodged a complaint before the police. The police have registered the case in Crime No.84/2010 for the offences under Sections 279, 304A of IPC read with 134(a) (b), 183, 187 of Indian Motor Vehicle Act (for short, IMV Act). The police conducted the investigation and submitted the charge sheet.
3. In order to prove the case, prosecution examined PW1 to PW8 and got marked as Ex.P1 to Ex.P9(a) and identified MO.1 etc.
4. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offences punishable under Sections 279, 304-A of IPC r/w -4- CRL.RP No. 100130 of 2015 Sections 134(a) and (b), 183, 187, 3 and 181 of Motor Vehicles Act, 1988.
5. Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused preferred an appeal before the Appellate Court. The Appellate Court after analyzing the evidence and perusing the documents available on record, confirmed the judgment of conviction passed by the Trial Court.
6. Heard Sri Gangadhar J.M., learned counsel for the petitioner and Sri Ramesh Chigari, learned HCGP for the State.
7. Sri Gangadhar J.M., learned counsel for the petitioner submits that the concurrent findings of the conviction passed by the Trial Court and the Appellate Court are contrary to the facts and law. Therefore, it is liable to be set aside.
8. It is further submitted by the learned counsel for the petitioner that, in order to constitute an offence under Section 279 of IPC or to say there is a rash and negligent driving of lorry, it is necessary to indicate the speed and also the negligence on the part of the driver appropriately. Mere saying that the driver was driving the vehicle in rash and -5- CRL.RP No. 100130 of 2015 negligent manner may not be sufficient to convict the accused.
These points have been ignored by the Trial Court.
9. It is further submitted that the road was having deep curve and it was slope. The deceased was crossing her sheep in the said road without taking proper care. Even though the accused tried to avoid the said accident, he was unable to avoid the same due to the slope. Therefore, the accident occurred on account of the negligence on the part of the deceased and not due to the rash and negligent driving of the accused. These facts have not been considered by the Trial Court properly and failed to consider these facts, which led the impugned judgment be passed by the Trial Court. Therefore, it is liable to be set aside. Having submittd thus, learned counsel for the petitioner prays to allow the petition.
10. Per contra, Sri Ramesh B. Chigari, learned HCGP while justifying the judgment and order of conviction passed by the Trial Court and the Appellate Court submits that, there are eyewitness to the incident. PW3 and PW4 are the eyewitnesses to the incident and they are consistent in their evidence that, the said lorry was being driven in a high speed and rash and -6- CRL.RP No. 100130 of 2015 negligent manner, so as to endanger the human life. Therefore, the Trial Court has rightly considered the evidence of PW3 and PW4 and convicted the accused. The said judgment of conviction is appropriate and proper. It is further submitted by the learned HCGP that, in order to say that there is an act of rash and negligent driving, it is always not required the vehicle to be in high speed. Even if the vehicle goes in slow speed, if the driver of the said vehicle is negligent in driving his vehicle, that is to be held sufficient to base conviction for his negligence. In support of his contention, learned HCGP relied on the judgment of the Hon'ble Supreme Court Ravi Kapoor Vs. State of Rajasthan1. Having submitted thus, the learned HCGP prays to dismiss the petition.
11. After having given my anxious and thoughtful consideration upon the rival submissions made by learned counsel for the parties and also on careful perusal of the documents available on record, the points which arise for my consideration are as follows:
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(2012) 9 SCC 284 -7- CRL.RP No. 100130 of 2015
a) Whether the concurrent findings of conviction passed by the Trial Court and the Appellate Court are justifiable?
b) Whether the petitioner has made out grounds to interfere with the concurrent findings of conviction recorded by the subordinate Court?
12. In order to answer the above said points, it is necessary to re-analyze the law and to ascertain as to whether any perversity or illegality has crept in the findings recorded by both subordinate Courts.
13. PW1 is the complainant and also the father of the deceased. PW3-Kalappa who stated to have informed PW1 regarding the accident. PW4-Hanumanthappa stated to have finished his work and was proceeding towards village, by the time, a lorry came in high speed in a rash and negligent manner, hit deceased Jyothemma. Consequently, she was killed at the spot. He has identified the driver of the lorry as Nagaraj. PW8 Mohanakumar has endorsed that the accused was his lorry driver and he is the owner of the said lorry. Therefore, the identity of the accused and rash and negligent act in driving the vehicle has been proved through evidence of these witnesses. -8- CRL.RP No. 100130 of 2015
14. It is relevant at this stage to refer the judgment of Hon'ble Supreme Court in the case of State of Punjab Vs. Balwinder Singh and Others2. The Hon'ble Supreme Court has held the conditions to be satisfied for conviction are:
1) there must be death of the person in
question;
2) the accused must have caused such
death; and
3) that such act of the accused was rash
or negligent and that it did not
amount to culpable homicide.
15. After careful perusal of the decisions of the Hon'ble Supreme Court, it is clear that, the deceased Jyothemma died in the accident is not in dispute. PW3 and PW4 are the witnesses to the accident and they are consistent in their evidence regarding the presence of accused and his negligence in his driving. Therefore, the above said rulings or principles are squarely applicable to the case of the prosecution.
Hearing regarding sentence-
16. The learned counsel for the petitioner submits that the petitioner has three daughters, two of them are married 2 (2012) 2 SCC 182 -9- CRL.RP No. 100130 of 2015 and one daughter is studying degree. Now, the petitioner is working as a Supervisor and drawing a salary of Rs.8,000/- p.m. The learned counsel for the petitioner further submits that the accused had undergone surgery and the said documents are made available to this Court for perusal.
17. On perusal of the said medical records, it appears that he has undergone medical surgery and his knee is replaced.
18. Considering the said infirmities with regard to the family and his personal avocation and also it is necessary to note that the incident had taken place in the year 2010 i.e. twelve years ago. Considering all these facts and circumstances and keeping in mind the decision of the Hon'ble Supreme Court in the case of Paul George Vs. State of Delhi3 and also the decision of the Coordinate Bench of this Court in Crl.RP.No.2272/2013 dated 13.07.2022, I am of the considered opinion that instead of sending the petitioner-accused to the custody to serve sentence for six months for the offence punishable under Section 304-A of IPC and also other offences, 3 (2008) 2 SCC 768
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CRL.RP No. 100130 of 2015 it is appropriate to modify the same and appropriate to imposing to pay a fine of Rs.50,000/- to be payable to PW1 or his legal representative to meet the ends of justice and in respect of the offences punishable under Sections 279 of IPC and Sections 183 and 187 of M.V. Act remained unaltered.
19. In view of the observations made above, the points which arose for my consideration are answered as:
1) Point No.1: In the affirmative
2) Point No.2: partly affirmative.
20. Hence, I proceed to pass the following:
ORDER
a) The petition filed by the petitioner is allowed in part.
b) The judgment of conviction and order of sentence recorded by the Trial Court and its confirmation order by the Appellate Court are modified. The petitioner is sentenced to pay fine of Rs.50,000/- for the offence under Section 304-A of IPC and in default of payment of fine, the petitioner shall undergo simple imprisonment for a period of six months.
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CRL.RP No. 100130 of 2015
c) The petitioner shall deposit the fine amount before the Trial Court within four weeks from today. Out of the said fine amount, Rs.45,000/- shall be payable to PW1 or his legal representative after proper identification and remaining fine amount shall be adjusted to the Government exchequer.
Sd/-
JUDGE SSP,Naa List No.: 1 Sl No.: 16