Partly allowed

Abdul Rafeeq v. the State of Karnataka by

Karnataka HC7 Nov 2023CRL.RP/560/2019

Case brief

AI extract

What is this about?

In a criminal revision petition, the Karnataka High Court partially allowed the appeal by the convicted driver. The court confirmed convictions for rash driving causing death and mischief but substituted the six-month sentence for Section 429 IPC with a fine.

What did the court decide?

Sentences under Sections 279, 304-A IPC and IMV Act confirmed. Prison sentence for Section 429 IPC set aside; accused sentenced to fine of Rs. 30,000/- instead of six months imprisonment.

Abdul Rafeeq Vs the State of Karnataka by — Quashing and FIR | Karnataka HC (2023)

¶1

¶2

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.560 OF 2019

¶7

BETWEEN:

¶8

ABDUL RAFEEQ S/O AMEER BASHA, AGED ABOUT 38 YEARS, DRIVER OF LORRY BEARING NO.KA-25/B-207 R/O DASAKOPPA, ANANDAPURA, SAGAR TALUKA, SHIVAMOGGA DISTRICT - 585 323

¶9

…PETITIONER

¶10

(BY SRI. UMESH P B, ADVOCATE SRI. R B DESHPANDE, ADVOCATE)

¶11

AND:

¶12

THE STATE OF KARNATAKA BY TUNGANAGAR POLICE STATION, SHIVAMOGGA - 577 201 (REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU - 560 001)

¶13

Digitally signed by MADHURI S Location: High Court of Karnataka

¶14

…RESPONDENT (BY SRI. CHANNAPPA ERAPPA, HCGP) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 25.06.2013 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA IN C.C.NO.2259/2010 CONFIRMED BY THE JUDGMENT AND ORDER DATED 20.02.2019 PASSED BY THE II ADDITIONAL SESSIONS JUDGE AT SHIVAMOGGA IN CRL.A.NO.138/2013 (CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 279, 304A AND 429 OF IPC

¶15

¶16

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶17

R/W SECTION 134(A)(B) AND 187 OF IMV ACT) AND ACQUIT THE PETITIONER OF THE CHARGE LEVELED AGAINST HIM, IN THE INTEREST OF JUSTICE.

¶18

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

¶19

ORDER

¶20

This petition filed under Section 397 r/w Section 401

¶21

Cr.P.C is by the accused, challenging his conviction and sentence imposed by the trial Court in C.C.No.2259/2010 on the file of III Addl.Civil Judge and JMFC, Shivamogga

¶22

for the offences punishable under Sections 279, 429, 304-A I.P.C r/w Section 134 (a) (b) and Section 187 of IMV Act, which came to be confirmed by the Sessions Court in Crl.A.No.138/2013.

¶23

For the sake of convenience, the parties are referred to by their rank before the trial Court.

¶24

A charge sheet came to be filed against the accused alleging that on 27.12.2009 at about 5-00 p.m,

¶25

on Shivamogga – Bhadravati NH-206 Road, a little behind Machenahalli tank, accused being the driver of tanker lorry

¶26

3 - CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶27

bearing Registration No.KA-25/B-207 drove the same in a rash or negligent manner so as to endanger human life

¶28

and ran over nine goats and one Basavaraj who was grazing the goats. As a result of which, Basavaraj and seven goats died on the spot and two goats were injured and thereby accused committed the offences punishable under Sections 279, 429, 304-A I.P.C r/w Section 134 (a) (b) and Section 187 of IMV Act.

¶29

The defence of accused is total denial. He has pleaded not guilty and claimed trial.

¶30

In order to prove the allegations against the

¶31

accused, on behalf of prosecution, 8 witnesses are examined as PW-1 to 8 and Ex.P1 to 14 are marked.

¶32

During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the prosecution.

¶33

Accused has not led any defence evidence.

¶34

¶35

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶36

Vide the impugned judgment and order, trial

¶37

Court convicted the accused and sentenced him as under:

¶38

i) To pay a fine of Rs.1,000/- for the offence p/u/s 279 of IPC. In default to undergo SI for a period of three months.

¶39

ii) To pay a fine of Rs.2,000/- for the offence p/u/s 304-A of IPC. In default to undergo SI for a period of three months.

¶40

iii) To undergo simple imprisonment for a period of six months for the offence p/u/s 429 of IPC and also to pay fine of Rs.500/for the offence p/u/s 134(a) (b) of IMV Act.

¶41

Accused challenged the said order before the

¶42

Sessions Court. However, the Sessions Court dismissed the appeal.

¶43

Being aggrieved by the same, the accused has come up with this revision petition, contending that the impugned judgment and order passed by the trial Court as well as the Sessions Court are illegal, invalid and contrary

¶44

5 - CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶45

to law. They are arbitrary, capricious and opposed to the settled principles of law. They have not considered the facts and circumstances of the case in proper perspective and thereby fell into error. The interested testimony of PW-1 is not corroborated by any other evidence. They ought to have accepted the defence of the accused that it was a case of hit-and-run and accused has been falsely implicated to claim compensation. The punishment imposed is on the higher side and prays to allow the petition, set aside the impugned judgment and orders of the both Courts and acquit him.

¶46

On the other hand learned High Court Government Pleader supported the impugned judgment and orders and sought for dismissal of the petition.

¶47

Heard arguments of both sides and perused on record.

¶48

Complainant is the uncle of deceased

¶49

Basavaraj. After coming to know about the incident, he

¶50

6 - CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶51

has visited the spot and filed the complaint. His complaint establish the fact that deceased Basavaraju was grazing goats. He has identified the accused as the driver of the tanker lorry in question. It is pertinent to note that after the accident, the accused was intercepted by the villagers of Nidige and brought to the police station and it appears in that context, the complainant has seen the accused and identified him before the Court. Since complainant is not an eyewitness, his evidence is confined to the fact of filing the complaint after coming to know about the incident.

¶52

PW-1 Ramesh Gowda, PW-2 Ramakrishna, PW-5 Jayarama and PW-6 Ananda are eye witnesses to the incident. They have deposed in unequivocal terms that the accused being the driver of the tanker lorry drove the same in a rash or negligent manner and first run over the goats and later on the deceased Basavaraj, as a result of which he died on the spot and out of the nine goats seven died on the spot and remaining two sustained injuries. They have identified accused as the driver. Their evidence

¶53

¶54

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶55

reveal that after the accident accused stopped the lorry for few seconds and despite the people who were on the road insisting him to stop the lorry he moved ahead.

¶56

During the cross-examination, these witnesses

¶57

have denied that they did not have the occasion to observe the driver. On the other hand their evidence prove that they had sufficient opportunity to see the driver. Perusal of the evidence of PWs-1, 2, 5 and 6 makes it evident that they had sufficient time to observe the driver of the tanker lorry. After the accident, the accused has stopped the vehicle for sometime and in fact, put his head out of the window to examine what has happened and thereafter left the place with the vehicle. Consequently, the eye witnesses had opportunity to see him. The evidence of the Investigating Officer viz., PW-8, Siddalingappa reveal that immediately after the accident the accused was intercepted by villagers of Nidige and brought to the police station. The testimony of these witnesses inspire confidence and as rightly held by the

¶58

¶59

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶60

trial Court and Sessions Court, absolutely there are no justifiable reasons not to believe their evidence.

¶61

Thus, through the evidence of these witnesses, the prosecution has proved that it was the accused who was driving the Offending vehicle at the time of accident. Moreover, the accused has not disputed that he was the driver of the lorry in question. On the other hand, his defence is that accident was caused by some other vehicle and the offending vehicle is implicated to claim compensation. Moreover, at the time of getting the offending vehicle released to his interim custody, the owner of the lorry has given statement that the offending vehicle was given to the custody of accused as its driver. This fact is spoken to by the Investigating Officer. Thus, based on the evidence of eye witnesses, supported by the evidence of Investigating Officer, the prosecution has proved that accident was caused by the accused due to his rash or negligent driving. Through the well reasoned judgment and order, the trial Court as well as the Sessions

¶62

¶63

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶64

Court have come to a correct conclusion and this Court finds no justifiable grounds to interfere with the said conclusion.

¶65

Alternatively, learned counsel for accused

¶66

submitted that for the offence under Section 429 I.P.C, the trial Court has imposed sentence of imprisonment for six months and fine of Rs.500/- with default clause. Having regard to the fact that the punishment prescribed under Section 429 I.P.C imprisonment which may extend to five years or fine or both, discretion may be exercised by this Court to impose fine instead of imprisonment for six months. He would further submit that so far as death of Basavaraj is concerned, petition is filed for compensation under M.V.Act. Section 429 I.P.C deals with punishment for causing mischief by killing any animal of the value of Rs.50/- or more. In the present case seven goats were killed and two were injured. Taking into consideration the same, instead of sentencing the accused to undergo imprisonment, it would be appropriate to

¶67

10 - CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶68

sentence him to pay fine in a sum of Rs.30,000/- in default to undergo simple imprisonment for six months which would meet the ends of justice. In the result of the petition is allowed in part and accordingly the following:

¶69

ORDER

¶70

(i) Petition filed by the accused under Section 397 r/w Section 401 I.P.C is allowed in part.

¶71

(ii) The impugned judgment and order dated 25.06.2013 in C.C.No.2259/2010 on the

¶72

file of III Addl.Civil Judge and JMFC, Shivamogga, which is confirmed by the judgment and order dated 20.02.2019 in Crl.A.No.138/2013 on the file of II Addl.District and Sessions Judge, Shivamogga are confirmed.

¶73

(iii) The sentence imposed for the offences under Section 279, 304-A I.P.C and

¶74

11 -

¶75

CRL.RP No. 560 of 2019 NC: 2023:KHC:39588

¶76

Sections 134 (a) (b) and Section 187 is confirmed.

¶77

(iv) However, the sentence of imprisonment imposed for the offence under Section 429 I.P.C is set aside. Accused is sentenced to pay a fine of Rs.30,000/- in default to undergo imprisonment for six months.

¶78

(v) The accused shall deposit the fine amount within a period of two weeks from the date of receipt of copy of this order.

¶79

(vi) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith.

¶80

¶81

List No.: 1 Sl No.: 38

¶82

Sd/JUDGE

Abdul Rafeeq v. the State of Karnataka by

Case brief

What is this about?

What did the court decide?

Abdul Rafeeq v. the State of Karnataka by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Asim Khan Vs Sri Javeed Khan

George Scott N Vs Shridhara Gowda

Karisiddappa Vs State of Karnataka

Sri C S Tyagaraj Vs Sri Mangalji Rathod

Sri Pradeep Kumar Vs Sri B R Krishna Rao

Sri Raju Tandel Vs Sri Krishna Puthran