Dismissed

Rangappa S/O. Fakkirappa Avaariball v. the State of Karnataka

Karnataka HC30 May 2023CRL.RP/100044/2014

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Karnataka examined an appeal against conviction for rash and negligent driving causing death. The Court affirmed the lower courts' findings that the accused was negligent, dismissed the revision, and upheld the modified sentence.

What did the court decide?

The criminal revision petition is dismissed; the First Appellate Court judgment is confirmed.

Rangappa S/O. Fakkirappa Avaariball Vs the… — Murder and Culpable Homicide | Karnataka HC (2023)

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1 - CRL.RP No. 100044 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 30^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI CRIMINAL REVISION PETITION NO. 100044 OF 2014

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BETWEEN:

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RANGAPPA S/O. FAKKIRAPPA AVAARIBALLI, AGE: 29 YEARS, OCC: DRIVER, R/O: HEBBAL, TQ: MUDOOL, BAGALKOT DISTRICT.

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…PETITIONER

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(BY SHRI S.M. KALWAD, ADV.)

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AND:

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Digitally AND: signed by J MAMATHA J MAMATHA Date: THE STATE OF KARNATAKA, 2023.05.28 02:33:58 THROUGH CPI, RON P.S. +0530

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…RESPONDENT

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(BY SHRI PRAVEEN K. UPPAR, HCGP)

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THIS CRL. RP IS FIELD U/S 397 R/W. 401 OF CR.P.C. SEEKING TO SETTING ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 03.02.2014 MADE IN CRL.APPEAL NO.12/2013 PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE, GADAG CONVICTING HIM FOR THE OFFENCE PUNISHABLE U/S.304 (A) OF IPC, IN MODIFYING THE JUDGMENT AND ORDER OF CONVICTION AND FINE DATED 19/01/2013 MADE IN THE C.C. NO.42/2011 PASSED BY THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, RON FOR THE OFFENCE PUNISHABLE U/S.279, 337, & 304 (A) OF I.P.C. AND SEC.187 OF IMV ACT, IN THE INTEREST OF JUSTICE AND EQUITY.

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CRL.RP No. 100044 of 2014

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THIS REVISION PETITION COMING ON FOR FINAL HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR ORDER ON 15.03.2023, THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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Revision petitioner-accused being aggrieved by the judgment of learned Principal District and Sessions Judge, Gadag (hereinafter referred as ‘First Appellate Court’ for brevity) in Criminal Appeal No.12/2013 dated 03.02.2014, preferred the present Criminal Revision Petition.

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Parties to the revision petition are referred with

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their ranks as assigned in the trial Court for the sake of convenience.

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The factual matrix leading to the case of

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prosecution can be stated in nutshell to the effect that on 14.10.2010 at about 11:30 p.m, on Ron-Belavanaki public road, accused being driver of tractor bearing No.KA.37/T8805 drove the same with high speed in rash and negligent manner and on account of such actionable negligence, trailer of tractor loaded with cement bags was capsized. Due to which, Siddappa and Manjunath died on

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CRL.RP No. 100044 of 2014

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the spot. Whereas CWs.1, 8 to 11 sustained injuries. It is further alleged that accused has failed to provide medical aid to the victims of the accident and did not inform about accident to the nearest police station. On these allegations, investigating officer filed charge-sheet.

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In response to the summons, accused has appeared before the trial court through counsel. The trial Court after being prima-facie satisfied framed the accusation against accused and pleaded not guilty and claimed to be tried.

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Prosecution in order to prove the accusation leveled against accused relied on the evidence of PWs.1 to 12 and documents Exs.P.1 to 12. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C, came to be recorded. Accused denied all the incriminating material evidence appearing against him and claimed that false case is filed. Trial Court after appreciating the evidence on record convicted the accused for the offences punishable under Sections 279, 337, 304(A) of Indian Penal Code (hereinafter referred as ‘IPC’

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CRL.RP No. 100044 of 2014

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for brevity) and Section 187 of Indian Motor Vehicles Act (hereinafter referred as ‘M.V.Act’ for brevity) and imposed sentence as per order of sentence.

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The said judgment of conviction and order of sentence was challenged by accused before First Appellate Court in Criminal Appeal No.12/2013. The First Appellate Court on re-appreciating the material evidence on record, dismissed the appeal and confirmed the judgment of conviction passed by trial Court. However, modified imposition of sentence for the offence under Section 304A of IPC by retaining the sentence of other offences.

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Revision petitioner-accused challenged the

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judgment of First Appellate Court in confirming the judgment of conviction and modified order of sentence contending that both the Courts below have not properly appreciated the evidence of PWs.1, 4 and 6 to 8 who are the injured witnesses in the accident with reference to the spot features recorded in spot panchanama-Ex.P.2. The evidence of material witnesses does not speak anything about the culpable rashness or negligence in driving the

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CRL.RP No. 100044 of 2014

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tractor by accused leading to the accident in question. The mere fact that there are two deaths and four persons injured in the accident by itself does mean that driver of tractor was negligent in driving the vehicle. The approach and appreciation of oral and documentary evidence by both the Courts below and the findings recorded, are not based on legal evidence. Therefore, prayed for allowing the revision petition and to set-aside the judgment of both the Courts below. Consequently, to acquit the accused from the accusation leveled against him.

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In response to the notice, learned HCGP has

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appeared for respondent-State.

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Heard the arguments of both sides.

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The prosecution alleges that on 14.10.2010 at

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about 11:30 p.m, accused being the driver of tractor bearing No.KA.37/T.3805 on Ron-Belavanaki public road drove with high speed in a rash and negligent manner and as a result, the trailer loaded with cement bags attached to the tractor was capsized. Due to which, Siddappa and

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CRL.RP No. 100044 of 2014

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Manjunath succumbed to injuries and died on the spot. Whereas, CWs.1, 8 to 11 sustained injuries. Accused has also failed to provide medical aid to the victims and also did not give information about the accident to the nearest police station.

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The factum of injuries to CWs.1, 8 to 11 and death of Siddappa and Manjunath in the accident in question is not in serious dispute. Learned counsel for the revision petitioner submits that in the complaint it is stated that one Muttu was driving the tractor. However, on

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the basis of supplementary statement of witnesses, accused is falsely involved in this case. The death of Siddappa and Manjunath and injuries to CWs.1 and 8 to 11, is not due to actionable negligence on the part of driver of tractor.

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Per contra , learned HCGP has argued that minor discrepancies appearing in the evidence of injured eye witnesses cannot be a ground to discard the case of prosecution in its entirety. The identity of accused being driver of tractor at the relevant time of accident has been

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CRL.RP No. 100044 of 2014

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substantiated by oral evidence of PWs.1, 4, 6 to 8 and

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there are no any valid reason to discard their evidence.

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It is true that the name of one Muttu was referred in the complaint-Ex.P.1 as a person driving the tractor at the time of accident. However, during the course of investigation it was revealed that accused was driving

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the tractor and the injured eye witnesses who were inmates of the tractor have identified the accused as the person driving the vehicle at the time of accident. The evidence of owner of the tractor-PW.9 would go to show that accused was driver of the tractor at the time of accident. Accused during the course of 313 Cr.P.C statement has not denied that he was driving the tractor at the time of accident as deposed by the injured eye witnesses PWs.1, 4, 7 and 8. The defence counsel even has not suggested to these witnesses that accused was not driving the tractor at the time of accident. It is also in the evidence of PWs.1, 4, 7 and 8 that they traveled in the tractor driven by accused and had sufficient opportunity to identify the person who was driving the tractor and their

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8 - CRL.RP No. 100044 of 2014

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evidence is consistent that accused before the Court was driving the vehicle at the relevant point of time. Therefore, both the Courts below were justified in rejecting the contention of defence counsel that identity of accused being the driver of the tractor has not been established.

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PW.1-complainant who has filed the complaintEx.P.1, PWs.4, 6 to 8 have deposed to the effect that on the ill-fated day of accident they were traveling in the tractor driven by accused bearing No.KA.37/T-3805 and there was drizzling rain, the trailer was loaded with cement bags. When they reached near Irrigation Office, due to actionable negligence of accused in driving the vehicle, the trailer loaded with cement bags was capsized. Due to which, Siddappa and Manjunath succumbed to the injuries on the spot and they sustained injuries. The P.M.reports-Exs.P.5 and P.6, wound certificates-Exs.P.11 to P.15 coupled with oral evidence of PWs.1, 6 to 8 would go to show that two inmates of the tractor Siddappa and Manjunath succumbed to the injuries sustained in the

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9 - CRL.RP No. 100044 of 2014

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accident and died on the spot. Whereas, CWs.1, 8 to 11 suffered injuries.

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The place of accident and the accused being driver of the tractor bearing No.KA.37/T-3805 at the relevant point of time is established out of the evidence placed on record by prosecution. Therefore, the pancha witnesses-PWs.2 and 3 though not supported the case of prosecution about the preparation of spot panchanamaEx.P.2, the same does not take away the case of prosecution. The evidence of Investigating Officer-PW.13 would go to show that he has prepared the spot panchanama-Ex.P.2 as shown by injured complainant and prepared sketch-Ex.P.18, further taken photographs of the place of accident as per Exs.P.19 to 22. Therefore, Court can very well look into the spot features at the place of accident and appreciate the same with oral evidence of PWs.1, 6 to 8 while deciding the actionable negligence on the part of driver of tractor leading to the accident in question.

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10 - CRL.RP No. 100044 of 2014

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The place of accident recorded under the spot panchanama-Ex.P.2 would go to show that road at the place of accident leads from Ron to Belavanaki and the accident took place infront of Irrigation Office road which runs from East to West. The width of road is about 19 feet which is straight road having 5 feet Kachcha road on either side of the tar road. The place of accident is at a distance of 4 feet from where the tractor was capsized. It is not in dispute that accused on the same route went to the cement shop for getting cement bag and he was returning after loading cement bags in the trailer. Therefore, it is evident that accused was aware about the road condition and accused having sufficient acquaintance with the road condition is expected to take extra care and caution while driving the tractor loaded with cement bags in the trailer having allowed the persons to travel in the tractor. The only defence of accused as brought on record during the course of cross-examination of aforesaid witnesses is that

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hook of the trailer was broken and the trailer was capsized. Secondly, the motor vehicle inspector has not

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11 - CRL.RP No. 100044 of 2014

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examined the trailer to notice the broken hook of the

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trailer attached to the tractor.

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PW.5-M.V. Inspector has deposed to the effect that he has examined the tractor kept in the police station and the accident did not occur due to any mechanical defect in the vehicle. PW.13-investigating officer has deposed to the effect that he has detained the tractor bearing No.KA.37/T.3805 with trailer for motor vehicle inspection. Learned counsel for revision petitioner-accused argued that PW.5 admitted that he has not examined the trailer as he had not received the requisition to examine the trailer. PW.5 has denied that if the hook of the trailer attached to the tractor is broken, then trailer will capsize. PW.13-investigating officer has denied in the crossexamination that the hook of the trailer attached to the tractor was broken. Therefore, the contention of accused that due to breaking of trailer hook attached to the tractor, the trailer was capsized cannot be legally sustained.

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Accused has also contended that as there was potholes on the road in front of the Irrigation Office and

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12 - CRL.RP No. 100044 of 2014

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because of which, the hook joined to the trailer was broken. Due to which, the trailer was capsized. Accused during the course of his 313 Cr.P.C statement has not stated that due to bad condition of the road, the trailer hook attached to the tractor was broken and the trailer was capsized. Accused has not lead any of his defence evidence nor brought any worth material evidence during the course of cross-examination of PWs.1, 6 to 8 to prove the above referred defence. When the accused takes specific defence which are exclusively within his special knowledge, then the burden is on the accused to prove those facts in terms of Section 106 of Indian Evidence Act. Accused first of all has not offered any explanation during the course of his 313 Cr.P.C statement as to the reason why the trailer loaded with cement bags was capsized nor lead any of his evidence to prove his defence which was exclusively in his special knowledge. Therefore, the First Appellate Court has rightly applied the principles enunciated in the decision reported in ILR 2004 KAR 1459 (Ishwar Nadennavar Vs State of Karnataka) in

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CRL.RP No. 100044 of 2014

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holding that accused has offered no any explanation in terms of Section 313 of Cr.P.C after prosecution discharging its initial burden of proving actionable negligence on the part of accused in driving the tractor at the time of accident.

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There is consistent evidence of injured eye witnesses-PWs.1, 6 to 8 who were traveling in the tractor driven by accused which was loaded with cement bags in the trailer and on account of actionable negligence on the part of accused while driving the tractor, trailer connected to the tractor was capsized. Due to which, the Siddappa and Manjunath succumbed to the injuries and died on the spot. Further, CWs.1, 8 to 11 suffered injuries. Therefore, the contention of learned counsel for accused that witnesses have not stated speed of the vehicle and one of the witness admitting potholes on the road cannot be valid ground to reject the case of prosecution. Therefore, the First Appellate Court was justified in relying on the oral testimony of the injured eye witnesses who were inmates of the tractor driven by accused in the light of the

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14 -

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CRL.RP No. 100044 of 2014

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principles enunciated in the judgment of this Court reported in ILR 1997 KAR 1228 (Mandya Rural Police Vs Ravi Kumar) . The observations and findings recorded by the trial Court as well as First Appellate Court in holding accused guilty of the offences alleged against him are based on the material evidence placed on record by the prosecution and the same does not call for any interference by this Court.

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Now coming to the quantum of sentence

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imposed on accused for the offence proved against him. The trail Court has imposed fine amount for the offences under Section 279 and 337 of IPC and Section 187 of IMV Act with default sentence. The trial Court convicted the accused under Section 304A of IPC to undergo simple imprisonment for one year and pay fine of Rs.3,000/-, in default to undergo simple imprisonment for 9 months. The

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First Appellate Court having appreciated the material evidence on record has modified the sentence of imprisonment imposed against accused for the offence under Section 304-A of IPC and reduced to six months and

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15 - CRL.RP No. 100044 of 2014

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the fine amount with default sentence is maintained. The State has not filed any appeal challenging the reduction of sentence by way of modification imposed by the First Appellate Court. Therefore, imposition of sentence by the first appellate court also not call for any interference. Consequently, proceeded to pass the following:

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ORDER

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Criminal Revision Petition filed by the revision petitioner/accused is hereby dismissed.

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The judgment of First Appellate Court on the file of Principal district and Sessions Judge Gadag, in criminal appeal No.12/2013 dated 03.02.2014 confirming the judgment of trail Court with modification of sentence as ordered is confirmed.

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Registry to send back records with judgment to Courts below.

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(Sd/-) JUDGE

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AM/-

Rangappa S/O. Fakkirappa Avaariball v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Rangappa S/O. Fakkirappa Avaariball v. the State of Karnataka

Case brief

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