Karnataka High Court
Madivalayya S/O Maralasidayya ... vs The State Of Karnataka on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1465
CRL.RP No. 200080 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200080 OF 2020 (397)
BETWEEN:
MADIVALAYYA S/O MARALASIDAYYA INDIMATH
AGE: 35 YEARS, OCC: PRIVATE JOB,
R/O DEVARAHIPPARAGI, TALUK SINDAGI,
DISTRICT VIJAYAPUR-586101.
...PETITIONER
(BY SRI G. G. CHAGASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally signed by
SHILPA R BY IT'S STATE PUBLIC PROSECUTOR,
TENIHALLI ADVOCATE GENERAL'S OFFICE,
Location: HIGH
COURT OF HIGH COURT BUILDING, KALABURAGI,
KARNATAKA REPRESENTED BY ITS,
GRAMEENA P.S. KALABURAGI-585102.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP IS FILED U/S 397 R/W SEC.401 OF CR.PC
PRAYING TO, CALL FOR THE RECORDS OF THE COURTS BELOW
AND ALLOW THIS CR.R.P BY SETTING ASIDE THE JUDGMENT
AND ORDER DATED 09.07.2020 PASSED IN CR. APPEAL
NO.87/2018 BY THE LEARNED III ADDITIONAL DISTRICT AND
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NC: 2024:KHC-K:1465
CRL.RP No. 200080 of 2020
SESSIONS JUDGE, KALABURAGI DISMISSING THE APPEAL
CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 06.10.2018 IN C.C.NO.3860/2013 PASSED BY THE
LEARNED V ADDITIONAL CIVIL JUDGE AND JMFC, KALABURAGI
FOR THE OFFENCES PUNISHABLE U/SEC.279, 337, 338, AND
304A OF INDIAN PENAL CODE AND ACQUITE THE PETITIONER
OF THE SAID OFFENCES ALLEGED AGAINST HIM.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the revision petitioner/accused against the judgment of conviction and order of sentence passed by the learned V Additional Civil Judge and JMFC, Kalaburagi in C.C.No.3860/2013 dated 06.10.2018 for the offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code, 1860 (for short 'IPC') and confirmed in Criminal Appeal No.87/2018 by the learned III Additional District and Sessions Judge, Kalaburagi vide judgment dated 09.07.2020.
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
On 24.01.2013, the complainant - Somashekhar, his wife - Neelamma, daughter - Chaya, daughter-in-law - Vijayalaxmi, son - Revansidda and other relatives were returning to Kalaburagi from Swant village in an unregistered tum-tum vehicle bearing Chassis No.MBX 0000ZBPL609417 and Eng. No.R2L2236226. It is alleged that at about 0.45 hours in the mid night near Alagud cross, the accused being the driver of the Skoda car bearing registration No.KA-28/N-0803, drove the same in a high speed, negligent manner and dashed to the tum- tum vehicle from rear end, as a result, CWs.8 to 12 have suffered simple and grievous injuries while Neelamma suffered fatal injuries and died on the spot. After having caused the accident, the accused fled from the spot and -4- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 the complainant, who has lodged the complaint while undergoing treatment died due to the injuries suffered by him in the accident.
4. In this regard, the Investigating Officer has submitted the charge sheet against the accused for the offences punishable under Sections 279, 337, 338 and 304-A of IPC and under Section 187 of the Motor Vehicles Act, 1988 (for short 'M. V. Act').
5. After submission of the charge sheet, the learned Magistrate has taken cognizance of the offences and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He was provided with the 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, 337, 338 and 304-A of IPC. The accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution has examined in all 11 witnesses and has also -5- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 got marked 29 documents as per Exs.P1 to P29. 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 evidence appearing against him in the case of the prosecution. The case of the accused was of total denial and he did not lead any evidence to prove his defence.
7. The learned Magistrate after hearing the arguments and after appreciating the oral and documentary evidence convicted the accused for the offences punishable under Section 279, 337, 338 and 304- A of IPC. For the offences punishable under Sections 279, 337 and 338 of IPC, he sentenced the accused to undergo simple imprisonment for a period of three months with fine of Rs.500/-. Further, for the offence under Section 304-A of IPC, he sentenced the accused to undergo simple imprisonment for a period of six months with fine of -6- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 Rs.5,000/- along with default clause and further directed that all the sentences shall run concurrently.
8. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned III Additional Sessions Judge, Kalaburagi in Criminal Appeal No.87/2018. The learned Sessions Judge after re-appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Against these concurrent findings, the revision petitioner/accused is before this Court by way of the revision.
9. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and the learned High Court Government Pleader for the respondent - State. Perused the records.
10. The learned counsel for the revision petitioner would submit that the documents and photographs produced do not corroborate the evidence on record. She -7- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 would contend that the accused in order to avoid collision with on-coming lorry, was unable to control his vehicle and hit the on-going tum-tum vehicle and the tum-tum vehicle was loaded with number of passengers, which is an unregistered and since it is a goods vehicle, there was no provision for carrying the passengers. Hence, she would contend that the contributory negligence is required to be considered and seeks for allowing the revision.
11. Per contra, the learned High Court Government Pleader would contend that the revision petitioner has hit the on-going tum-tum vehicle from rear end and hence, he is required to explain as to what has compelled him to hit the on-going tum-tum vehicle from rear end, but he did not give any explanation in this regard and his statement under Section 313 of Cr.P.C. is also silent. She would also contend that all the material witnesses have supported the case of the prosecution and under Section 106 of the Evidence Act, it is for the accused to explain the fact within his knowledge, which he has failed to do so. Hence, -8- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 she would contend that both the Courts below have appreciated the oral and documentary evidence in a proper perspective and have reasonably sentenced the accused, which does not call for any interference. Hence, she seeks for dismissal of the revision.
12. Having heard the arguments and perusing the records, now the following point would arise for my consideration is:
"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?"
13. It is the specific case of the prosecution that on 24.01.2013 at 00-45 hours, the accused being the driver of the Skoda car bearing No.KA-28/N-0803, drove it in a rash and negligent manner and in intoxicated state of mind and smashed on-going tum-tum vehicle bearing Chassis No.MBX 0000ZBPL609417 and Engine -9- NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 No.R2L2236226. As a result, two persons succumbed to the injuries and 4-5 persons suffered simple as well as grievous injuries. In the instant case, the accident is not in dispute. It is also admitted fact that both the vehicles involved in the accident and the Skoda car hit the tum- tum vehicle from back side when it was moving forward. Further, it is also undisputed fact that the accused was the driver of the offending car.
14. It is further admitted fact that two persons by name, Somashekhar and Neelamma succumbed because of the injuries sustained and other 4-5 persons suffered simple and grievous injuries. The nature of injuries and the death are undisputed facts.
15. The accused has simply disputed the rash and negligent driving on his part. Though the accused was prosecuted for the offence under Section 187 of the IMV Act, he was acquitted by the Trial and the said finding was not challenged. However, on perusal of the MVI report marked at Ex.P.12 and photographs of both the vehicles
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 marked at Exs.P.19 to P.26, it is evident that both the vehicles were damaged considerably. Further, the major damage was caused to the front side of the Skoda driven by the accused. The rear portion of the tum-tum vehicle was damaged considerably and since it was overturned, the front portion was also damaged, but the car hit the rear portion of the tum-tum vehicle and this aspect is also undisputed.
16. P.W.1 is the spot mahazar witness and he has deposed regarding drawing spot mahazar and seizure of the vehicle. Since the accident is admitted, the evidence of P.W.1 does not have much relevancy. P.W.2 Chaya is an eyewitness. P.W.3 Vijayalaxmi, P.W.4 Ashok and P.W.5 Revansiddappa are eyewitnesses and all these witnesses have fully supported the case of the prosecution. Though these witnesses are cross-examined at length, nothing was elicited and their evidence clearly disclose that the tum-tum vehicle was hit from rear end by the Skoda car driven by the accused.
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020
17. P.W.6 has deposed regarding giving treatment to the injured. Further, the evidence of P.W.6 discloses that the accused who was arrested on 24.01.2013 was found to be under intoxicated state of mind and his blood report also establish this aspect which is marked at Ex.P.12.
18. PW-8 has deposed regarding examining the blood sample of accused and he has deposed that the blood sample was containing 66.67 mg of ethanol alcohol and deposed regarding issuance of Ex.P-15. This discloses that the accused was under intoxicated state of mind. PW-9 is circumstantial witness police officer, while PW-10 and 11 are investigating officers.
19. The Motor Vehicle Inspector as well as the Post Mortem Examination reports are marked by consent in the evidence of investigating officer. Since there is no serious dispute regarding the death and damage to both the vehicles, non-examination of the person who has
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 conducted the autopsy and MVI, who examined the vehicles are not fatal to the case of the prosecution.
20. Admittedly, the tum-tum was going infront and the Skoda car, driven by the accused hit the vehicle from rear end. At the accident spot, the road is running from south to north. The Kalaburagi is situated towards south, while Humanabad is situated towards north. The width of the road is more that 60 feet. Tum-tum as well as car were moving from north i.e., Humanabad towards south i.e., Kalaburagi. Both the vehicles were required to move on the left side of the road and admittedly the tum-tum was on the left side of the road and on the right side of the road 60 feet vacant space was available and thereafter the western edge of the road was situated. When the accused was having more than 60 feet width road available, it is for him to explain why he hit the tum-tum moving infront of him from rear end and why he did not use the vacant space of the road. Admittedly, the tum-tum was on the left side of the road and all these aspects are required to
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 be explained by the accused. But the accused did not make attempts to explain any of these aspects. The simple case of the accused is of denial and under Section 106 of the Evidence Act, the facts within the knowledge of the accused are required to be explained by him. Admittedly, the accused was driving the offending vehicle and he is the best witness in the given circumstances to explain as to how the accident occurred. But, his defense is completely silent and even in 313 Cr.P.C. statement he did not disclose as to how the accident as occurred. Under such circumstances adverse inference is required to be drawn against him.
21. Both the Courts below have appreciated the oral and documentary evidence, made appropriate observations and have rightly convicted the accused. No illegality or infirmity is found in the judgment of conviction. Apart from that for the offences punishable under Sections 279, 337 and 338 of IPC imprisonment for three months with a fine of Rs.500/- came to be imposed
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 and for the offence punishable under Section 304 (a) of IPC imprisonment for 6 months with fine of Rs.5,000/- came to be imposed.
22. Learned counsel for the petitioner would contend that the fine may be enhanced by reducing the sentence of imprisonment. However, it is required to be noted here that the accused was under intoxicated state of mind and he hit a moving vehicle from back side, which has resulted in death of two persons. Such act cannot be taken in a lighter way, as due to the negligence by the accused two persons have succumbed because of the accidental injuries. Under such circumstances the sentence itself is on the lower side and as such the question of reducing it does not arise at all. Hence, the judgment of conviction and order of sentence do not suffer from any perversity, so as to call for any interference by this Court. Hence, Criminal Revision Petition being devoid of merits does not survive for consideration. Accordingly,
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NC: 2024:KHC-K:1465 CRL.RP No. 200080 of 2020 the point under consideration is answered in negative. As such, I pass the following orders.
ORDER I. The Criminal Revision Petition stands dismissed.
II. Send the TCR's back to the Trial Court along with a copy of this Order with direction to secure the presence of the accused for serving the balance sentence.
Sd/-
JUDGE SRT,RSP,NJ List No.: 1 Sl No.: 18