Karnataka High Court
Gangadhar S/O Veerabhadrappa ... vs State Of Karnataka on 31 July, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.100074 OF 2020
BETWEEN
GANGADHAR
S/O VEERABHADRAPPA SUTTAKOTTI
AGE: 43 YEARS, OCC: COOLIE,
R/O: BURADIKATTI,
TQ: HIREKERUR, DIST: HAVERI.
...PETITIONER
(BY SRI. M. B. GUNDAWADE, ADVOCATE)
AND
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH HIREKERUR POLICE.
...RESPONDENT
(BY SRI. RAMESH B CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397
R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGEMENT
OF CONVICTION AND ORDER OF SENTENCE DATED ON
21/01/2016, PASSED IN C.C.NO.238/2011, BY SENIOR CIVIL
JUDGE AND JMFC COURT, HIREKERUR AND JUDGMENT OF
CONFIRMATION OF CONVICTION DATED 20/01/2020, PASSED
BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HAVERI (SITTING AT RANBENNUR), IN CRIMINAL APPEAL
NO.9/2016 AND TO ACQUIT THE PETITIONER/ACCUSED FOR
THE OFFENCES PUNISHABLE U/SEC.279, 337 AND 304(A) OF
INDIAN PENAL CODE.
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THIS PETITION HAVING BEEN HEARD AND RESERVED ON
28.07.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1908 for setting aside the judgment of conviction passed by the Senior Civil Judge and JMFC, Hirekerur in C.C.No.238/2011 dated 21.01.2016 confirmed by the II Additional District and Sessions Judge in Criminal Appeal No.9/2016 vide judgment dated 20.01.2020 and sought for acquitting him of the charges leveled against petitioner.
2. For the sake of convenience, parties are referred to with the original ranks occupied by them before the Trial Court.
3. The brief facts of the case are that accused was the driver of Mahindra Tempo bearing registration No.KA-27/A-8129. That on 25.06.2009, he was on the way to Jogihalli from Hamsabhavi and he was driving the vehicle in a rash and negligent manner with 15-20 -3- passengers on the board. After passing 1 km away from Hadrihalli, near the land of one Sadashiva Hottegoudra, all of a sudden the accused lost control over the vehicle because of high speed and suddenly applied breaks and as a result, the vehicle fell in a roadside ditch at about 3.45 p.m. Due to the said accident, the complainant and others sustained injuries and one lady by name Puttamma succumbed in the hospital on account of accidental injuries. Hence, on the basis of the complaint and after investigation, the investigating officer has submitted the charge sheet against the accused for the offences punishable under sections 279, 337, 338, 304-A of IPC. After submission of the charge sheet, the learned Magistrate took cognizance and issued summons to the accused. Accused appeared before the Magistrate and was enlarged on bail. The plea of the accused was recorded wherein he pleaded not guilty. Then the prosecution has led the evidence of 19 witnesses as PW1 to PW19 and documents as per Ex.P1 to Ex.P20 were marked. Thereafter, the statement of the accused under Section -4- 313 of Cr.P.C., was recorded. Accused did not give his explanation to the incriminating evidence appearing against him but the case of the prosecution was totally denied by him. He has also not led any evidence. After hearing the arguments, the learned Magistrate has convicted the accused for the offence punishable under Sections 279, 337, 304-A of IPC, but acquitted him for the offence punishable under Section 338 of IPC. The learned Trial Court imposed sentence to pay fine for the offences punishable under Section 279 and 337 of IPC and as regards offence punishable under section 304-A of IPC, he was sentenced to undergo simple imprisonment for a period of one year and to pay fine amount of Rs.2,000/- with default clause.
4. This judgment of conviction and order on sentence were challenged by the accused/revision petitioner before the II Additional District and Sessions Judge Haveri (Sitting at Ranebennur) in Crl.Appeal No.9/2016. The learned Sessions Judge by judgment dated -5- 20.01.2020 dismissed the appeal by confirming the judgment of conviction and order on sentence passed by the Trial Court. Being aggrieved by these judgments passed by the Courts below, the revision petitioner/accused has filed this revision petition.
5. Heard the arguments advanced by the learned counsel for revision petitioner and the learned HCGP for respondent-state. Perused the records.
6. The learned counsel for petitioner would submit that the Panchas have not supported the case of the prosecution and the material witnesses have turned hostile and they have not deposed regarding accused driving the vehicle in a high speed and there is no evidence to show that the vehicle was driven in a high speed and hence, he would submit that the Courts below have erred in convicting the revision petitioner. He would further argue that the mahazar was not proved, sketch was not produced and rash and negligent act on the part of the accused was not established and mere accident -6- cannot be termed as because of rash and negligent driving and all the injured witnesses have not supported the case of the prosecution. He would further submit that material witnesses were not examined and hence, would submit that both the Courts below erred in convicting the revision petitioner for the offences punishable under section 279, 337 and 304-A of IPC.
7. Per contra, the learned High Court Government Pleader has vehemently contended that the accident itself is not disputed. He would further submit that the accused has not denied that he was the driver of the offending vehicle which was involved in the accident and under Section 106 of the Indian Evidence Act, the burden is on the accused to establish the fact within his knowledge but he has not produced any material evidence and he has also not stepped into witness box. He would further submit that the evidence on record clearly establishes the actionable negligence on the part of the revision petitioner in causing accident and hence, both the Courts below are -7- justified in convicting the revision petitioner. Hence, he would submit that the revision is not maintainable and sought for dismissal of the revision.
8. The records of the Trial Court as well as the Appellate Court are secured. I have also perused the records in detail. After having heard the arguments and perusing the records now the following point would arise for consideration.
"Whether learned Magistrate and the learned Sessions Judge have erred in convicting the accused/revision petitioner for the offence punishable under Sections 279, 337, 304-A of IPC and the judgment of the Courts below suffer from infirmity and illegality so as to call for interference of this Court?"
9. It is to be noted here that the accident is not in dispute. It is also an admitted fact that the accused was the driver of the offending Mahindra vehicle bearing registration No.KA-27/A-8129 on 25.06.2009 at 3.40 pm. It is undisputed fact that the said vehicle met with an -8- accident near Hadrihalli of Hirekerur-Kodachigond road and in the said accident, number of persons sustained injuries and one lady by name Puttamma succumbed to the injuries sustained by her in the said accident.
10. The prosecution has examined in all 19 witnesses. PW1 is the complainant and he has supported the case of the prosecution. PW2 and PW3 are the spot mahazar witnesses and they have turned hostile. PW4 to 15 and 17 and 18 are the injured eyewitnesses, who were traveling in the tempo. It is to be noted here that the tempo was carrying more than 15-20 passengers, which is beyond the capacity. This fact is also undisputed. Number of witnesses though deposed regarding the accident, but they pleaded ignorance as to how the accident has occurred. Some of the witnesses have deposed that the accused was driving the vehicle slowly. The complainant, PW14 and PW15 have deposed that accused was driving the vehicle in a high speed and accident caused due to actionable negligence on the part of the accused. -9-
11. The learned counsel for the revision petitioner has stressed on the point that panchas have turned hostile and sketch is not produced, but it is to be noted here that the accident itself is undisputed. The mahazar discloses that at the accident spot, there is a tar road which is also not in serious dispute. Hence, hostility of the pancha witnesses does not have any relevancy in this regard, when accident at relevant time and at relevant place is admitted. The learned counsel has further argued that there is no evidence to show that the accused was driving the vehicle in a high speed. No doubt some of the witnesses have deposed that accused was driving the vehicle slowly and some of the witnesses have deposed that he was driving it in a high speed. The perception of the individual differs. However, the speed is not criteria for deciding rash and negligence driving. The rash and negligent driving has to be decided on facts and circumstances in the given situation. In the instant case, admittedly the vehicle was overloaded. Hence, it was the duty of the accused to drive the vehicle cautiously as -10- he was carrying more than 20 passengers in the tempo. But very interestingly during the course of cross- examination of the complainant, a suggestion was made that while accused was driving the vehicle slowly, a cow came on the way and in order to negotiate it, he took the vehicle by the side of the road and the wheel of the vehicle ran over the ditch which resulted in toppling of the vehicle. If at all the accused was driving the vehicle slowly, even if a cow came in front of the vehicle, there was no need for him to abruptly negotiate it, but he could have stopped the vehicle immediately by applying the breaks. But it has not happened in this case. Very interestingly accused in his statement recorded under Section 313 of Cr.P.C., was completely silent and except denial, he did not make any attempt to explain as to how the accident occurred. Section 106 of the Indian Evidence Act,1872 reads as under;
106. Burden of proving fact especially within knowledge.--When any fact is especially within -11- the knowledge of any person, the burden of proving that fact is upon him.
12. Hence, the burden is on the accused to establish as to what was the cause for the accident as it is within his specific knowledge, but in the instant case, accused has not made any attempt to explain the said facts. Hence, naturally adverse inference is required to be drawn as against him. The vehicle was moving on a public road with number of overloaded passengers and it suddenly overturned by the side of the road in a ditch. It is for the accused to explain as to how it has happened and what precautions he took to avoid the accident, but except denial he did not make any attempt in this regard. Accused ought to have explained as to how his moving vehicle overturned abruptly. Admittedly, the M.V. inspection report discloses that it is not due to a mechanical defect. Further, the postmortem report is also undisputed and it discloses that one Puttamma died because of the injuries sustained by her in the accident. The other witnesses including the complainant have sustained simple injuries. The principles -12- of res ipsa loquitur are directly applicable to the facts and circumstances in case on hand as the things themselves speak in the instant case. There is no explanation forthcoming from the accused. The non-examination of I.O. and other things have no relevancy as all witnesses have specifically deposed that they were traveling in the accident and they did not know how the accident has occurred and cause of the accident, but being inmates of the vehicle, the cause for the accident may not be within their knowledge and it is for accused to explain as to how the accident occurred, but he did not venture to explain it. Further, the vehicle was overloaded and it disclose that accused was driving the vehicle in a rash and negligent manner, otherwise there was no chance of overturning a moving vehicle suddenly. Both the courts below have considered all these aspects and appreciated the oral and documentary evidence in proper perspective. Further the reasonable sentence was imposed on the accused. Under these circumstances, it is evident that the judgment of both the Courts below does not suffer from any illegality or -13- infirmity so as to call for any interference by this Court. Both the Courts have rightly convicted the accused for the offences punishable under Sections 279, 337 and 304-A of IPC and imposed reasonable sentence. It does not call for any interference. Hence, I answer the above point for consideration in the negative and proceed to pass the following:
ORDER The above criminal revision petition is dismissed.
The judgment of conviction passed by the Senior Civil Judge and JMFC, Hirekerur in C.C.No.238/2011 dated 21.01.2016 and the judgment passed by the learned II Additional District and Sessions Judge in Criminal Appeal No.9/2016 dated 20.01.2020 are confirmed.
In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.-14-
Send the TCR with certified copy of this order to the concerned trial court to secure the accused/revision petitioner for serving the sentence.
Sd/-
JUDGE yan