Dismissed

K Umesha v. State of Karnataka

Karnataka HC19 Jul 2021CRL.RP/332/2012

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition against a conviction for rash driving causing death and grievous hurt. The Court held that the accused's failure to offer an explanation under Section 313 Cr.P.C. validated the trial findings and rejected the plea for leniency due to the deceased's death.

What did the court decide?

Revision petition dismissed; accused directed to surrender to serve sentence within six weeks.

K Umesha Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JULY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL REVISION PETITION NO.332/2012

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BETWEEN

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K UMESHA S/O LATE KRISHNAPPA AGED ABOUT 30 YEARS, R/O BUDIGERE CROSS, VEERGO NAGAR, BIDARAHALLI HOBLI, BANGALORE EAST TALUK BANGALORE URBAN DISTRICT

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...PETITIONER (BY SRI PRADEEP H S AND M.J.ALVA, ADVOCATES)

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AND STATE OF KARNATAKA REPRESENTED BY CHENNARAYAPATNA POLICE CHENNARAYAPATNA POLICE STATION DEVANAHALLI TALUK

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…RESPONDENT

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(BY SRI H.R.SHOWRI, HCGP)

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THIS CRL.RP IS FILED U/S.397 (1) R/W 401 CR.P.C PRAYING TO SET ASIDE THE DISMISSAL OF THE APPEAL DT:28.1.2012 PASSED BY THE P.O., FTC., DEVANAHALLI CRL.APPEAL NO.42/2011 PRODUCED AT ANNEXURE-A AND REVERSE THE ORDER OF CONVICTION DT:5.7.2011 PASSED BY THE CJ AND JMFC, DEVANAHALLI IN

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C.C.NO.298/2009 WHICH IS PRODUCED AT ANNEXURE-B AND ACQUIT THE PETITIONER FROM THE ALLEGED CHARGES.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The accused in C.C.No.42/2011 has questioned the validity of the judgment dated 28.1.2012 passed by the Court of Fast Track, Devanahalli, whereby he was convicted for the offence punishable under Sections 279, 338, 304A of IPC and ordered to undergo simple imprisonment for a period of six months and to pay fine of Rs.1000/- for the offence punishable under Section 398 of IPC and simple imprisonment of one year and fine of Rs.2000/- for the offence punishable under Section 304A of IPC with default sentence of two months and three months respectively, in this revision petition.

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Brief facts, which are necessary for disposal of the Revision Petition are as under:

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Chennarayapatna police, charge sheeted the revision petitioner/accused for the offence punishable under Sections 279, 338 and 304A of IPC and Charge sheet came to be filed in pursuance of the complaint lodged to Channarayapattnana Police contending that on 01.12.2008 at about 9:00 a.m. near Muddamma Kakamma Kalyana Mantapa at Balepura gate, accused being a driver of luggage tempo bearing Reg. No.KA -03-AA-1239, drove the same in rash and negligent manner from Devanahalli side towards Sulibele side and dashed against Ramachandrappa (deceased) and CW.4 who were standing on the edge of the left side of the said road. On account of the said accident, Ramachandrappa sustained injuries to the chest and other parts of the body and he was shifted to Columbia Asia hospital. However, despite best treatment, Ramachandrappa succumbed to the injuries on 02.12.2008. CW.4 also sustained grievous injuries. Based on the said complaint, police registered a case in crime No.54/2009 and after detailed investigation filed charge sheet.

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Learned Magistrate took cognizance of the offences alleged against the accused and recorded the plea. Since the accused pleaded not guilty trial was held.

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In order to bring home the guilt of the accused prosecution in all examined 14 witnesses as PWs.1 to 14 and relied on 11 documentary evidence on record which were exhibited and marked as Exs.P-1 to P-11. Among the prosecution witnesses, PW-1 is the complainant, PWs.2 and 3 are eye-witnesses. PW-4 is the other injured in same incident. PWs.5 and 6 are the mahazar witnesses. PWs.7 to 9 are witnesses to inquest mahazar. PW-10 is the son of the deceased. PW-11 is the doctor, PW-12 is the owner of the offending vehicle. PWs.13 and 14 are the Investigating officers.

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On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C was recorded and accused has denied all the incriminatory materials and did not lead any defence

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evidence or offered any explanation. Thereafter, learned Magistrate heard the parties and passed an order of conviction and sentenced as refereed to supra.

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Being aggrieved by the same, the accused preferred an appeal to the Fast Track Court, Devanahalli in Crl.A.No.42/2011.

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The learned judge in the first Appellate Court secured the records after hearing the parties in detail, dismissed the appeal and confirmed the order of sentence.

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Being aggrieved by the same, the accused is before this Court in this revision.

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Learned counsel for the revision petitioner vehemently contended that both the Courts have erred in law in convicting the accused for the aforesaid charges.

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He further contended that the element of negligence on the part of accused is not at all established by the prosecution by placing cogent and convincing

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evidence on record. As such, the conviction of the accused is bad in law besides being illegal. He further contended that the materials available on record, was hardly sufficient to record an order of conviction against the accused.

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Alternatively learned counsel for the revision petitioner also prayed for leniency and grant of probation.

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Per contra, Sri Showri.H.R, learned High Court Government Pleader, supported the impugned judgments and argued that accused has failed to offer any explanation to the incident. He also contended that since one person has died and one person has been injured, grant of probation to the accused would not arise at all in the case on hand and prayed for dismissal of revision petition.

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In view of the rival contentions, the following points that would arise for consideration:

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1. Whether the finding recorded by the Trial Court that accused is guilty of the

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offences punishable under Sections 279, 338, 304A of IPC is suffering from patent defect, error of jurisdiction or legal infirmity and thus, calls for interference?

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2. Whether the sentence is excessive?

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The points are answered in Negative for the

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following:

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:REASONS:

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In the case on hand, the accident occurred on 01.12.2008 at about 9:00 a.m. near Muddamma Kakamma

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Kalyana Mantapa at Balepura gate, accused being the driver of luggage tempo bearing Reg. No. KA-03/AA-1239 is not in dispute. Ramachandrappa having sustained head injury and succumbed to the injuries in the hospital is also not in dispute. PW-4 Anjanappa is also injured in the same accident. PWs.2 and 3 are eye-witnesses to the incident. Evidence of PWs.1 to 4 clearly establishes that the incident has occurred on account of the rash and negligent driving of the accused. It is pertinent to note

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that none of these witnesses nurtured any previous enmity or animosity against the accused.

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Post mortem examination report and evidence of the doctor clearly indicates that Ramachandrappa died on account of the head injury. Wound certificate of PW.4 establishes the injuries found on the body of PW.4 on account of the accident. All these factors when viewed cumulatively, clearly establishes that because of the negligent driving of the tempo driver, the accident has occurred.

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Further, in a matter of this nature, accused is bound to place his version as to the incident as is held by Hon'ble Apex Court in the case of Ravi Kapur Vs State of Rajasthan reported in (2012) 9 SCC 284. The relevant paragraph of the said judgment is culled out hereunder:

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"35. 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

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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 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."

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In the case on hand, accused has not offered any explanation. In the absence of any explanation whatsoever offered by the accused at the time recording of the accused statement or leading his evidence, this Court does not find any serious infirmity in the finding of fact recorded by the Trial Court and confirmed by the First

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Appellate Court in inferring the guilt of the accused while convicting the accused for the aforesaid offences.

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This Court having regard to the narrow scope in the revisional jurisdiction, cannot revisit into the factual findings concurrently recorded by both the Courts.

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Having regard to the fact that accused failed to offer any explanation of whatsoever to the incident this Court is of the considered opinion that the materials available on record is sufficient enough to hold that accused is guilty of the offences alleged against him.

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Moreover, accused being the professional driver was expected to drive cautiously expecting the unexpected as is held in the case of State of Punjab v. Saurabh Bakshi , reported in (2015) 5 SCC 182. The relevant portion of the said judgment is culled out hereunder for ready reference.

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"8. It is submitted by Mr.Madhukar that when the prosecution had been able to establish the charges levelled against the respondent and both the

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trial court and the appellate court had maintained the sentence there was no justification on the part of the High Court to reduce the sentence to the period already undergone solely on the basis that the respondent had paid some compensation. It is his further submission that keeping in view the gravity of the offence that two deaths had occurred the High Court should have kept itself alive to the nature of the crime and should have been well advised not to interfere with the quantum of sentence. He has commended us to the decisions in State of Punjab v. Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] and Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972] ."

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In the case on hand, no mitigating circumstances are placed by the revision petitioner before the Trial Court or before the First Appellate Court. In the absence of any mitigating circumstances placed by the revision petitioner, following the dictum in Saurabh Bakshi, referred to supra, this Court is of the considered

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opinion that the accused has not made out a case for showing leniency in modifying the sentence.

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