Ashok S/O Babu Kamble, Vs the State of Karnataka, by State Public Prosecutor

THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W. 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATED 11.11.2014 IN CRIMINAL APPEAL NO.152/2013 LEARNED VII ADDL. DIST. & SESSIONS JUDGE BELAGAVI, AT CHIKKODI AND MODIFYING THE JUDGMENT AND ORDER DATED 16.08.2013 PASSED IN C.C.NO.791/2011 BY THE LEARNED PRO. CIVIL JUDGE & JMFC ATHANI AND THE PETITIONER MAY KINDLY BE ACQUITTED BY ALLOWING THIS CRIMINAL REVISION PETITION.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.K.H.Bagi, learned counsel for the petitioner and Sri.Praveena Y. Devareddiyavara, learned High Court Government Pleader, for respondent-State.

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Accused to suffer an order of conviction in CC No.791/2011 for the offences punishable under Sections 279, 337 and 304A of IPC and granted two years imprisonment for the offence under Section 304A IPC and six months for 337 IPC confirmed in Crl.A.No.152/2013 which was confirmed the order of conviction and modifying conviction for the offence under Section 337 of IPC by imposing only fine amount of Rs.500/- with default sentence and six months imprisonment for the offence under Section 304A of IPC and fine of Rs.5,000/- as against two years rigours imprisonment and fine of Rs.8,000/-, is the revision petitioner.

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Facts in brief utmost necessary for disposal of the petition are as under:

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3.1 A complaint came to be lodged with Athani police station by one of the inmates of the jeep bearing No.KA23/M-2428 wherein complainant, her grandmother and Bhimappa Khot were proceeding towards Abbihal. Jeep was being driven by the accused and at about 5:00 PM on Abbihal-Tevaratti road, near the land of Lakshmana Nyamanna, Kavatakoppa, driver of the Jeep drove the same in a rash and negligent manner and as a result, he lost control over the jeep and jeep fell on the left side. Complainant and her grandmother sustained simple injuries, whereas said Bhimappa Khot fell underneath the Jeep and sustained grievous injuries and died on the spot. Injured persons were shifted to hospital through ambulance and complaint came to be lodged.

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3.2 Police after registering the case investigated the matter and filed charge sheet.

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3.3 Learned trial Magistrate, after due trial, convicted the accused and sentenced as under:

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“The appeal preferred by appellant U/s 374 of Cr.PC is hereby partly allowed.

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The order of conviction passed in CC No.791/2011, dated 16-08-2013, on the file of Addl. Civil Judge & JMFC, Athani is hereby confirmed and order of sentence for the offence punishable U/s. 337 and 304A IPC is set aside and modified as under.

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Accused shall pay fine of Rs.500/-, in default one month S.I for the offence punishable U/s. 337 of IPC.

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Accused shall undergo six months S.I and fine of Rs.5,000/- in default, he shall undergo S.I. for three months for the offence U/s. 304(A) of IPC.”

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Being aggrieved by the same, accused filed an appeal before the District Court.

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Learned judge in the First Appellate Court, after securing the records, heard the parties in detail and on re-appreciation of the material evidence on record confirmed the order of conviction for the offence under Section 337 and 304A of IPC and sentence was modified as under:

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“In exercise of power, under section 255(2) of Cr.P.C, I held that accused found guilty of the

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offence punishable U/Sec. 279, 337 and 304A of IPC.

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Accused is sentenced to rigorous imprisonment for 6 months and fine of Rs. 5,000/- for the offence punishable under section 337 of IPC. In default of payment of fine, he shall under go simple imprisonment for one month.

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Accused is sentenced to rigorous imprisonment for 2 years and fine of Rs. 8,000/-for the offence punishable under section 304A of IPC. In default of payment of fine, he shall further under go simple imprisonment for 45 days.

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In exercise of power under section 357 (3) of Cr.P.C. I directed the accused to pay compensation of Rs. 50,000/- to Cw.7 Maruti Basappa Khot and Cw.8 - Mangal W/o. Bhimappa Khot, who are father and wife of deceased Bhimappa Maruti Khot. Further, I directed the accused to pay compensation of Rs. 10,000/-each as compensation to Pw.3 - Tavanawwa W/o. Appanna Chipparagi and Pw.5 - Rukmawwa W/o. Bhimappa Aihole. 1000

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Both sentences shall run concurrently.

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Bail bond of accused and surety bond shall stand cancelled.

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The interim custody of Mahindra Commander Jeep No. KA-23-M-2428 by investigation officer made absolute.”

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

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Sri.K.H.Baghi, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that in order to avoid moment of animal hitting the Jeep, driver of the jeep had to apply break suddenly resulting in jeep falling on the left side of the road and therefore absolutely there is no rash and negligence on the part of the driver of the Jeep. Therefore, conviction of the accused recorded by both the Courts for the aforesaid offences and sentence needs to be set aside by allowing the revision petition.

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He would further contend that the incident is beyond the control of the revision petitioner as there was a sudden movement of a cattle on the road, which resulted in losing control over the Jeep by applying the brakes suddenly.

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He would also pointed out that when once there is

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no rash and negligent driving of the jeep by the accused,

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conviction of the accused for the offence under section 337 and 304A of IPC is impermissible and therefore sought for allowing the revision petition.

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It is contended that both the Courts have not properly appreciated the material on record and in the absence of clinching evidence placed on record, accused enjoys the innocence and therefore sought for allowing revision petition.

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Alternatively, Sri K.H.Bagi would submit that in the event this Court upholding the order of conviction, this Court may consider the age of the revision petitioner and his family being dependent on him, enhancing the fine amount in a further sum of Rs.50,000/- apart from Rs.50,000/- order by the learned Trial Magistrate, to be paid as compensation and set aside the order of sentence of imprisonment as is modified by the learned First Appellate Court and to that extent allow the revision petition.

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Per Contra, Sri.Praveen Y. Devareddiyavara, learned High Court Government Pleader supports the orders passed.

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He would further contend that taking note of the attendant facts and circumstance of the case, learned judge in the First Appellate Court has modified the sentence by reducing two years rigorous imprisonment for the offence under Section 304A IPC to six months simple imprisonment and having set aside the simple imprisonment of six months for the offence under section 337 IPC, hardly there is any scope to entertain the further request of the revision petitioner in this revision petition in seeking the modification of the sentence.

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He would also contend that both the Courts have consistently taken note of the oral testimony of the inmates of the Jeep for eyewitnesses to the incident and were also injured in the incident and who did not nurture any enmity or animosity against the petitioner and sought for dismissal of the revision petition in toto.

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Having heard the arguments of both sides, following points would arise for consideration:

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i. Whether the revision petitioner establishes the case that the impugned judgment is suffering from legal

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infirmities, perversity and patent factual error, so as to set aside the order of conviction.?

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ii. Whether the sentence needs modification?

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iii. What order?

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Regarding Point Nos.1 and 2.

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In the case on hand, death of Bhimappa Khot in a road traffic accident occurred on 18.05.2011 at about 5 pm near the land of Lakshmana Nyamanna, Kavatakoppa, on Abbihal-Tevaratte road involving the jeep bearing No.KA23/M-2428 stands established by placing cogent and convincing evidence on record.

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Complainant and her grand mother Rukamavva Ihole being the inmates of the jeep also sustained simple injuries and they were shifted in the ambulance to the nearby hospital. In respect of the incident, complaint came be lodged by Shobha Tipparagi on 18.05.2011 and police after registering the case, investigated the matter thoroughly.

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Admittedly no steps were taken by the revision petitioner to shift the injured persons after the incident.

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Accused got released the Jeep on 24.05.2011. It is the villagers who tried to rescue Bhimappa Khot, lifted the jeep and removed the Bhimappa Khot who was stuck in between the road and the jeep in the incident. After so pulling out the Bhimappa Khot, they noticed that he was no more. Postmortem report of Bhimappa Khot would sufficiently establish that he died on account of the injuries sustained by him in the said road traffic accident.

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Revision Petitioner being the driver of the jeep bearing No.KA-23/M-2428, as on the date of incident is not in dispute. Moreover, accused is acquainted with the complainant. Complainant, Rukamavva and others had been to Samponatti village to attend a marriage on 17/5/2011. After attending the marriage on 18.05.2011, they wanted to return to Abbihal and therefore they found jeep in the stand and they boarded the jeep. Admittedly, there is no previous enmity or animosity nurtured by complainant and her grandmother Rukmavva to depose falsely against the accused.

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In a matter of this nature, even though the prosecution is required to establish the charges levelled against the accused by placing cogent and convincing evidence on record, version of the accused also assumes importance in adjudicating the factum of rash and negligence.

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So also, it is expected of from the accused to place his version about the incident, at the time of recording the accused statement. But if the accused fails to explain the incriminatory circumstances and does not place his version about the incident, consequences in law has to follow.

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View of this Court, in this regard is supported by the principles of law enunciated by the Honorable Apex Court in the case of Ravi Kapur Vs. State of Rajasthan 1 .

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Taking note of the above legal principles, when a material on record is analysed, it is crystal clear that accused has simply denied all the incriminating circumstances including the accident.

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1 (2012) 9 SCC 284

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No explanation whatsoever is forthcoming on the record nor any version is placed on record on behalf of the accused to appreciate that the incident has occurred beyond human control.

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Argument of Sri.K.H.Bhagi that there was a sudden movement of cattle which made the accused apply for the break is not supported by placing any material on record. Under such circumstances, regarding an order of conviction by both the Courts cannot be faulted with.

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Insofar sentence is concerned, even though trial Magistrate awarded six months simple imprisonment for the offence under section 337 IPC and two years rigorous imprisonment for the offence under Section 304A IPC, learned judge in the First Appellate Court, appreciating the attendant facts and circumstance of the case, modified the sentence by setting aside the imprisonment for the offence under section 337 IPC and reduced the sentence for the offence under Section 304A IPC to six months simple imprisonment as against two years rigorous imprisonment.

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State did not choose to challenge the modification of the sentence and therefore, it has become final.

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Taking note of the fact that two persons are injured in the incident and one valuable life has been lost in the accident, awarding of six months imprisonment for the offence under Section 304A IPC by the learned judge in the First Appellate Court, requires no further modification in view of the principles of law enunciated by the Hon’ble Apex Court, in the case of State of Punjab Vs. Saurabh Bakshi2

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