Partly allowed

Mohaameed Noorulla v. State by

Karnataka HC22 Jul 2021CRL.RP/450/2012

Case brief

AI extract

What is this about?

High Court allowed criminal revision partly. Maintained conviction for vehicular manslaughter and rash driving but set aside separate sentence for rash driving (Section 279 IPC), ruling it merges with culpable homicide (Section 304A IPC) causing death. Ordered surrender within four weeks.

What did the court decide?

Revision petition allowed partly. Separate sentence for Section 279 IPC set aside; maintenance of conviction and other sentence for Section 304A IPC confirmed.

Mohaameed Noorulla Vs State by — Cheque Dishonour | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JULY, 2021

¶2

BEFORE

¶3

THE HON'BLE MR. JUSTICE V. SRISHANANDA

¶4

CRIMINAL REVISION PETITION NO.450/2012

¶5

BETWEEN

¶6

MOHAAMEED NOORULLA S/O MOHAMMED IQBAL AGED ABOUT 27 YERS R/O DIDDAHALLI EXTENSION, HOSUR, CHUNCHANAKATTE HOBLI, K R NAGAR TALUK MYSORE DISTRICT

¶7

...PETITIONER

¶8

(BY SRI SHARATH S GOWDA, ADVOCATE)

¶9

AND

¶10

STATE BY K R NAGARA POLICE STATION K R NAGAR REP. BY PUBLIC PROSECUTOR

¶11

…RESPONDENT

¶12

(BY SRI SHOWRI.H.R, ADVOCATE)

¶13

THIS CRL.RP IS FILED U/S.397(1) R/W.SECTION 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 5.3.2012 PASSED IN CRL.A.NO.87/2011 ON THE FILE OF THE V - ADDL. SESSIONS JUDGE, MYSORE AND THE ORDER DATED 7.6.2011 PASSED IN C.C.NO.75/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC, K.R.NAGAR.

¶14

¶15

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

¶16

ORDER

¶17

The accused in C.C.No.75/2008 has questioned the

¶18

validity of the judgment dated 7.6.2011 passed by the Civil Judge and JMFC, Krishnarajanagar, whereby the accused was convicted for the offence punishable under Sections 279 and 304A of IPC read with Section 187 of IMV Act and ordered to undergo simple imprisonment for a period of six months and pay fine of Rs.1,000/- and in default of payment of fine he should undergo simple imprisonment for 15 days; and sentenced to undergo simple imprisonment for a period of 1 year and fine of Rs.10,000/- with default sentence of simple imprisonment for three months for the offence punishable under Section 304A IPC and also sentenced to pay fine of Rs.500/- for the offence punishable under Section 187 of the IMV Act with default sentence of one month simple imprisonment, which was modified by reducing the sentence passed the

¶19

¶20

Trial Court, in Crl.A.No.87/2011 by judgment dated 05.03.2012, in this revision petition.

¶21

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

¶22

That on 5.11.2007 H.R. Sanjay S/o. Ramegowda was coming from Hosur and was proceeding towards Chunchanakatte on his motor bike bearing No.KA-45/E1706. Sri H.R.Sanjay was driving his bike on the left side of the road. The accused being the driver of the vehicle No.KA-25/A-7936 was proceeding towards Hosur from Chunchanakatte. When both the vehicles reached near the field of one Srinivasa S/o. Chaluvegowda at about 4.30 p.m., the accused drove his vehicle in a rash and negligent manner, went towards wrong side of the road and dashed the motor bike driven by H.R. Sanjay. Due to the accident, Sanjay sustained grievous on his head and died on the way to Hospital. After the accident the accused ran away from spot by leaving his vehicle bearing No.KA25A/A-7936 and without giving medical attention to the

¶23

¶24

injured. After the accident CW-1 Venkataramana, lodged a case in Crime No. No.264/2007. Thereafter, the Investigation Officer visited the spot and prepared panchanama and sketch and seized the vehicles involved in the accident by preparing seizure mahazar. After receipt of Post Mortem report, Motor Vehicle Inspection report and scrutinizing the statement given by the eyewitnesses, the Investigation Officer has come to the conclusion that accused has committed an offence punishable under Section 279, 304A IPC read with Section 187 of the IMV Act and filed charge sheet against the accused. Cognizance for the alleged offence has been taken and the presence of the accused was secured and released him on bail.

¶25

In order to prove the guilt of the accused, the prosecution examined in all eight witnesses as PWs.1 to 8 and relied on 9 documentary evidence which were exhibited and marked as Exs.P-1 to P-9. On completion of the recording of prosecution evidence, accused statement

¶26

¶27

as contemplated under Section 313 Cr.P.C. was recorded and accused has denied all the incriminatory circumstances and did not lead any defence evidence on his side nor offered any explanation in writing.

¶28

Learned Trial Magistrate after hearing the parties, convicted and sentenced the accused for the offences as aforesaid. Being aggrieved by the same, accused preferred an appeal before the learned Sessions Judge.

¶29

Learned Sessions Judge after securing the records and hearing the parties in detail, modified the judgment of conviction.

¶30

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

¶31

Learned counsel for the revision petitioner vehemently contended that both the Courts have erred in law in convicting the accused for the aforesaid charges. He further contended that the element of negligence on the

¶32

¶33

part of accused is not at all established by the prosecution by placing cogent and convincing evidence on record. As such, the conviction of the accused is bad in law besides being illegal. He further contended that the material available on record, was hardly sufficient to record an order of conviction against the accused.

¶34

Alternatively learned counsel for the revision petitioner also prayed for leniency in respect of sentence.

¶35

Per contra, 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 one person died in the accident and there cannot be any leniency and prayed for dismissal of the Revision Petition.

¶36

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

¶37

1. Whether the finding recorded by the Trial Court that accused is guilty of the offences punishable under Sections 279

¶38

¶39

and 304A of IPC and Section 187 of IMV Act, and modified by the learned Sessions Judge, is suffering from patent defect, error of jurisdiction or legal infirmity and thus calls for interference?

¶40

2. Whether the sentence is excessive?

¶41

The points are answered in Negative for the

¶42

following:

¶43

:REASONS:

¶44

12. In the case on hand, prosecution relied on the oral testimony of PWs.3 to 5. They have deposed before the court that they are eye-witness and they have given the graphic details about the incident. PW-4 specifically deposed that accused has deviated from path/lane and dashed against the motorcycle of Sanjay who was moving on the left side of the road. He has specifically identified the accused before the Court. PW-5 has also identified the accused before the Court and deposed in line with PW-4. Admittedly, PWs.3 to 5 did not possess any enmity or animosity against the accused nor did they possess any

¶45

¶46

extra affinity towards the deceased. Therefore, the Trial Court believing the oral testimony of PWs.3 to 5 coupled with the other corroboratory materials on record, came to the conclusion that the negligent driving of the accused resulted in the accident resulting in death of the deceased. The said finding is re-appreciated by the learned Judge in the first Appellate Court and modified the sentence passed by the learned Trial Judge by reducing the sentence of imprisonment and by confirming the fine imposed.

¶47

From the above, it is crystal clear that the prosecution is able to establish the incident, wherein H.R. Sanjay lost his life on account of the rash and negligent driving of the driver of the Goods Auto bearing Registration No.KA-25/7936 on 5.11.2007 at 4.30 p.m., on Chunchanakatte, Hosur road near the land of Srinivas. Both the courts have rightly appreciated the prosecution evidence and categorically recorded a finding that accused is guilty of the offence punishable under Sections 279, 304A read with Section 187 of the IMV Act.

¶48

¶49

However, the first Appellate Court while maintaining conviction of accused for the aforesaid offences, modified the sentence by reducing the term of imprisonment. As such, point No.1 does not call for any interference in view of the contra evidence placed by the accused.

¶50

In a matter of this nature, the accused is bound to lead his evidence and offer his explanation in respect of the incident. In fact, the very purpose of recording accused statement under Section 313 Cr.PC., is to bring it to the notice of the accused the incriminatory circumstances found in the prosecution case and also to afford an opportunity for the accused to place his version in respect of the incident.

¶51

In the case on hand, accused did not utilise the said opportunity and has simply denied all the incriminatory circumstances stating that he has not committed any offence and as such, the learned Trial Judge was justified in holding that the prosecution has

¶52

¶53

proved the charges levelled against the accused beyond reasonable doubt.

¶54

In this regard, it is worth to note the judgment of the 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:

¶55

"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 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

¶56

¶57

disclose certain facts which may be within his personal knowledge and have a bearing on the case."

¶58

18. Thus, from the foregoing discussion, even after re-appreciation of the entire materials on record, the Revision Petitioner has failed to make out any grounds of whatsoever to interfere with the finding recorded by the first Appellate Court that the accused is guilty of offence punishable under Sections 279, 304A IPC and Section 187 of the IMV Act. Accordingly, Point No.1 is answered in Negative.

¶59

19. POINT NO.2: In so far as sentence is concerned, the first Appellate Court while upholding the sentence passed by the conviction recorded by the learned Trial Judge, has reduced the sentence as referred to supra noting the mitigating circumstances. However, while so doing, both the courts have failed to note that in the incident one life has lost and therefore, no separate imprisonment for the offence punishable under Section 279 IPC could not have been ordered as the offence under

¶60

¶61

Section 279 IPC merges with Section 304A IPC, in view of the authoritative pronouncements of the Hon'ble Apex Court in Gurubasavaraj Gurubasavaraj @ Bennishettappa Vs. State of Karnataka reported in (2012) 8 SCC 734.

¶62

Whenever an accused is convicted for the offence punishable under Sections 279 and 304A of IPC, a separate sentence needs to be ordered in respect of both the counts is a question that often arises. The law in this regard is no longer resintegra. Gainfully, this court places its reliance on the judgment of the Hon'ble Apex Court in the case of Gurubasavaraj supra, wherein the Hon'ble Apex Court has held as under:

¶63

"14. The next limb of submission of the learned counsel for the appellant is that when he has been acquitted under Section 279 IPC, he cannot be punished in respect of the other offences as the allegation of rash and negligent act cannot be treated to have been proven. The aforesaid submission, on a first blush, may look quite

¶64

¶65

attractive, but on a deeper scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The learned Appellate Judge, after due appreciation of the evidence on record as expected of an appellate Court, has come to the conclusion that the accused was driving the vehicle in a rash and negligent manner. After ascribing some reason, he has thought it apposite that a separate sentence should not be imposed under Section 279 IPC, and accordingly, he has set aside the sentence awarded by the trial Court.

¶66

Applying the above principles of law to the case on hand, and in view of the fact that only one victim is involved in the present case, ordering separate imprisonment for the offence punishable under Section 279 of IPC by the Trial Court is incorrect which has been ignored by the first appellate court. Hence, the sentence as ordered by the Trial Court for the offence punishable under Section 279 of IPC needs to be set aside. Based on the said judgment, he requests the Court to pass an appropriate order.

¶67

¶68

Accordingly, Point No.2 is answered partly in Affirmative and following order is passed:

¶69

ORDER

¶70

Revision Petition is allowed in Part. While maintaining judgment of conviction and order of sentence for the offence punishable under Sections 279 and 304A IPC and Section 187 of the IMC Act, recorded by the learned Trial Magistrate and modified by the first Appellate Court is further modified by setting aside the separate sentence for the offence punishable under Section 279 IPC. Rest of the order stands unaltered.

¶71

Office is hereby directed to return the Trial Court records along with the copy of this order forthwith.

¶72

Four weeks' time is granted for the accused to surrender before the Trial Magistrate for serving the remaining part of sentence.

¶73

Sd/JUDGE

¶74

PL*

Mohaameed Noorulla v. State by

Case brief

What is this about?

What did the court decide?

Mohaameed Noorulla v. State by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Ravishankar Vs State by New Extension Police

Sri Devaraj Vs State by Srirampura Police

Muralidhar Vs State of Karnataka

Babu Vs the State of Karnataka

M B Hanumantharayappa Vs State of Karnataka

Reghunath Paswan S/O Shivakumar Paswan Vs the State of Karnataka