Karnataka High Court
K M Boregowda vs State By Magadi Police on 17 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1068/2012
BETWEEN
K M BOREGOWDA
S/O MASTIGOWDA @ KUMBALAIAH,
AGED ABOUT 32 YEARS,
R/AT UTTARIKUPPALA VILLAGE,
UTTARIDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT- 572 113.
...PETITIONER
(BY SRI ARJUN R. KHOT, ADVOCATE)
AND
STATE BY MAGADI POLICE -562 120
...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)
THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 18.02.2011 PASSED BY
THE PRL. C.J. & J.M.F.C., MAGADI IN C.C.NO.215/2006
AND WHICH IS CONFIRMED DATED 28.08.2012 PASSED
BY THE P.O., F.T.C., RAMANAGARA IN CRL.A.NO.21/2011.
2
THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Heard Sri Arjun R. Khot, learned counsel for the Revision Petitioner and learned High Court Government Pleader for the respondent and perused the records.
2. This Revision Petition is filed by the accused, who suffered an order of conviction in C.C.No.215/2006 on the file of the Principal Civil Judge & JMFC, Magadi by Judgment dated 18.02.2011, whereby he has been convicted for the offences punishable under Sections 279, 337, 338 and 304(A) IPC read with Section 134 (a) & (b) of IMV Act read with Section 187 of IMV Act, which was confirmed in Criminal Appeal No.21/2011, on the file of the Fast Track Court at Ramanagara by judgment dated 28.08.2012.
3. Brief facts of the case are as under:
On 02.10.2005 at about 10.30 a.m. on Magadi-
Huliyurdurga Road, accused/Revision Petitioner being the 3 Driver of Sharanya Bus bearing No.KA-05-C-9622 driven the same from Bangalore towards Huliyurdurga in a rash and negligent manner in a high speed, near Jamalsabpalya, he lost his control over the bus and hit a stone which was on the left side of the road and thereafter hit a tree and fell down towards left side of the road. Due to the accident, about 70-80 passengers of the bus sustained injuries and 16 passengers have lost their life in the accident. CWs.2 to 52 sustained simple and grievous injuries. Immediately, after the accident, the accused/Revision Petitioner ran away from the spot without informing the said accident to the nearest Police Station and providing medical assistance to the injured.
Accused No.2 being the conductor of the bus carried more passengers than its capacity in the said bus and thereby contravened Karnataka Motor Vehicle Rules. In respect of the accident, CW.1 Kumar lodged a complaint to the jurisdictional police and sought for action.4
4. The jurisdictional police after registering a case and after thorough investigation, laid charge sheet against the accused for the aforesaid offences.
5 The presence of the accused persons were secured before the learned Magistrate and plea was recorded. Accused pleaded not guilty and as such, trial was held.
6. In order to prove the case of the prosecution, prosecution in all examined 24 witnesses as PWs.1 to 24 and relied on 99 documentary evidence which were marked and exhibited as Exs.P1 to 99.
7. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C was recorded, wherein accused denied all the incriminatory circumstances found in the prosecution evidence. However, accused did not choose to lead any evidence nor place his version on record by adducing oral 5 evidence or filing a written submission as is contemplated under Section 313(5) Cr.P.C.
8. Thereafter, learned Magistrate heard the parties in detail and after considering the oral and documentary evidence on record, convicted the accused for the aforesaid offences and sentenced as under:
"Acting U/Sec.255(2) of Cr.P.C., accused No.1 is hereby convicted for the offence punishable U/Sec.279, 337, 338 & 304(a) of IPC.
Acting U/Sec.255(1) of Cr.P.C., accused No.1 is hereby acquitted for the offence punishable U/Sec.134(a) & (b) of IMV Act.
The accused No.1 is hereby sentenced to undergo Simple imprisonment for a period of two months for the offence punishable U/Sec.337 of IPC and he shall pay a fine of Rs.400/- in default of payment of fine amount, he shall undergo simple imprisonment for a period of fifteen days.
The accused No.1 is hereby sentenced to undergo simple imprisonment for a period of six months for the offence punishable U/Sec.338 of 6 IPC and he shall pay a fine of Rs.900/- in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month.
The accused No.1 is hereby sentenced to undergo simple imprisonment for a period of two years for the offence punishable U/Sec.304(A) of IPC and he shall pay a fine of Rs.3,000/- in default of payment of the fine amount he shall undergo simple imprisonment for a period of three months."
9. Being aggrieved by the same, accused preferred an appeal in Criminal Appeal No.21/2011. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail, dismissed the appeal and confirmed the order of conviction and sentence passed by the learned Magistrate. Thereafter, the accused is in the Revision Petition.
10. In the Revision Petition, the following grounds are raised:
"The judgment of conviction sentence and fine imposed by the trial court is perverse 7 and its suffers with irregularities and infirmities as such the judgment and fine imposed by the trial court is liable to be set aside.
The petitioner submitted that the evidence on record does not prove the rashness and negligence of the accused in driving the vehicle. Pw1, Pw2 and Pw4 who are the passengers of the Bus admits in their cross examination that bus was driven by accused in slowly at the time of accident.
It is submitted that the Pw 8 has categorically admitted in his cross examination that If accused No. 1 and accused No. 2 did not allowed the passengers to bus, the public would raise quarrel against the accused No. 1 and 2. It is further submitted that Pw 11 deposed in his chief examination before trial court that The wheel of the bus got down in a big hole of the left side of the road and capsized to the left side. Pw 13 was admits in his cross examination that the road at the place of incident was narrow. It is clearly shows that the evidence on record does not 8 prove the rashness and negligence of the accused in driving the vehicle.
It is submits that the alleged incident was happened due to bad conditions of road. It is further submits that on the date of incident passengers put on the force to accused No 2 to climbing the bus even resisted by accused No.1 and 2. As such the learned trial judge without going through the evidence has blindly come to a conclusion and passed the impugned judgment hence the judgment is liable to be set aside in limine.
The Learned trial judge has not appreciated the evidence on record and the benefit of doubt available to the petitioner is not rendered in favor of the petitioner, though the evidence on record leads to two views, the learned trial judge has not considered the view in favor of the petitioner/accused which is a serious error on the part of the trial judge.
The criminal revision petition is filed within limitation period. There is no other petition is 9 filed or pending against the said judgment, sentence and fine of the trial court.
The petitioner is ready to abide the conditions that are imposed by this Hon'ble court while allowing this petition, if this Hon'ble court will not allow this petition the petitioner will be put to great hardship and humiliation.
It is submitted that the petitioner may be permitted to adduce the additional grounds if any at the time of arguments."
Reiterating the above grounds, learned counsel for the Revision Petitioner vehemently contended that both the Courts have not properly appreciated the materials on record and wrongly convicted the accused resulting in miscarriage of justice and thus, sought for allowing the Revision Petition.
11. Per contra, learned High Court Government Pleader supported the impugned judgment by contending that both the Courts have rightly appreciated the materials on record and sought for dismissal of the Revision Petition. 10
12. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction, the following points would arise for consideration:
"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 279, 337, 338 and 304(A) IPC read with Section 134 (a) & (b) of IMV Act read with Section 187 of IMV Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?
2. Whether the sentence is excessive?"
13. In the case on hand, case of the prosecution is established by examining 24 witnesses, among them PW.1 is the complainant, who supported the case of the prosecution in toto. He has deposed before the court about incident with graphic details. PW.2 stated that there was a festival on 02.10.2005 and he was proceeding in Sharanya bus bearing No.KA-05-E-9622 from Magadi towards Andalageri Village and there were excess passengers in the bus and driver of the bus driving the same in a rash and 11 negligent manner in a high speed and near Jamalsabpalya, bus turtled and there were as many as 16 deaths. PWs.3 to 7 have all deposed about the incident in a clear and categorical manner and from their testimony, it is found that there were 50-60 passengers, who sustained injuries in the incident.
14. The evidence of PWs.1 to 7 clearly established the nature of the accident. Doctors, who are examined before the Court as PWs.12, 15 to 17 and 19-21 and 24, who have issued the would certificates of the injured passengers vide Exs.P35 to 81, 84, 85 and 86 shows that the injuries sustained by them were all in the road traffic accident involving the bus bearing No.KA-05-C-9622 of which the Revision Petitioner is the driver.
15. The oral testimony of the injured witnesses should be kept on higher pedestal and the materials available on record is properly appreciated by the trial Magistrate in arriving at a conclusion that the incident has 12 occurred only due to the rash and negligent driving of the driver of the bus, who is the Revision Petitioner. It is pertinent to note that the accused/Revision Petitioner did not offer any explanation whatsoever to the incident except denying all incriminatory circumstances. In a matter of this nature, accused is expected to place his version on record. In the case on hand, no such explanation is forthcoming.
16. In this regard, this court places reliance on the judgment of the Hon'ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284, it has been held as under:
"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 13 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."
17. Therefore, learned Magistrate and learned Judge in the First Appellate Court were justified in recording a finding that that the accused is guilty of the aforesaid offences and hence, this Court has no hesitation of whatsoever in holding that the impugned judgments are not suffering from legal infirmity or perversity and hence, point No.1 is answered in negative.
18. Insofar as sentence is concerned, having regard to the number of deaths that has occurred in the accident, the sentence as aforesaid awarded by the trial Magistrate is perfectly justified in the facts and circumstances of the case. In a matter of this nature, the role of Court in passing an appropriate sentence is no longer res integra in the case of State of Punjab v. 14 Saurabh Bakshi, reported in (2015) 5 SCC 182, it has been held as under:
"14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 :
(2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days.
The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction: (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12)"
19. Applying the legal principles enunciated to the case on hand, this Court is of the considered opinion that no case is made out for reduction of the sentence either. Accordingly, point No.2 is answered in the negative and pass the following:
15
ORDER Criminal Revision Petition sans merit and hereby dismissed.
Sd/-
JUDGE KA*