Sri. Babu a Vs the State of Karnataka

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION ORDER OF THE FIRST APPELLATE COURT IN CRL.A.NO.174/2020 DATED 16.08.2021 PASSED BY THE HONBLE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,

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NC: 2026:KHC:21367 CRL.RP No. 1418 of 2021

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HC-KAR

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MYSURU BY CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION MADE BY THE TRIAL COURT IN C.C.NO.438/2012 DATED 05.03.2020 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM MYSURU, BY ALLOWING THIS APPEAL.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Manjunath H., learned counsel appearing on behalf of Sri H. Maregowda, counsel for the revision petitioner and Sri K. Nageshwarappa, learned High Court Government Pleader for the respondent/State.

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Accused is the revision petitioner who suffered an order of conviction for the offences punishable under Section 279, 338 and 304A of Indian Penal Code and under Section 134 (a) and (b) r/w Section 187 of Indian Motor Vehicles Act.

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The order of conviction and sentence was challenged before the First Appellate Court in Criminal Appeal No.174/2020.

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Learned judge in the First Appellate Court after securing the records, heard the arguments of the parties in

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detail and on re-appreciation of the material evidence on record, dismissed the appeal.

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Being further aggrieved by the same, accused before this court.

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Facts in the nutshell which are at most necessary for disposal of the present revision petition are as under:

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In respect of a road traffic accident occurred on Bannur road, near Pushpashram on 13.09.2010 at about 06.00 p.m., involving motorcycle bearing registration No.K.A.02/S8101 and the mini lorry bearing registration No.K.A.04/B-3298, a complaint came to be lodged with Narasimharaja Traffic Police Station, Mysore. In the said accident, rider of the motorcycle lost his life.

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Police after thorough investigation filed the charge sheet.

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Learned Trial Magistrate secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held.

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In order to bring home the guilt of the accused, seven witnesses were examined as PW1 to PW7, comprising of complainant, eyewitness, spot mahazar witnesses and

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Investigation Agency, besides Marking 11 documentary evidence as Exs.P1 to P11, comprising of complaint, spot mahazar , sketch, FIR, inquest mahazar, Notice issued under Section 133 of Motor Vehicles Act, reply to the notice, Post mortem report, Wound certificate and IMV report. Detailed cross-examination of prosecution witnesses did not yield any positive materials as to disbelieve the case of the prosecution or to advance the defence set up by accused.

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Thereafter, learned Trial Magistrate recorded the accused statement, calling out the incriminatory circumstances found in the prosecution evidence and put it across to the accused.

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Accused has denied all the incriminatory circumstances but failed to place his version on record.

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Thereafter, learned Trial Magistrate heard the arguments of the parties and convicted the accused and sentenced as under:

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”Acting under power conferred under Section 255(2) of Cr.P.C. the accused is hereby convicted for the offences punishable under Sections 279, 338 and 304(A) of IPC and Section 134 (A) and (B) R/w Section 187 of IMV Act.

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The accused shall pay fine of Rs.1,000/- for the offence punishable U/s.279 of IPC.

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The accused shall pay fine of Rs.1,000/- for the offence punishable U/s.338 of IPC.

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Further the accused shall undergo Simple Imprisonment for a period of 6 months and pay a fine of Rs.1,000/- for the offence punishable U/s.304(A) IPC.

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Further the accused shall pay a fine of Rs.1,000/- for the offence punishable Under Section 134 (A) & (B) R/w Section 187 of IMV Act.

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If the accused failed to pay the fine amount, he shall further undergo simple imprisonment period of 3 months.

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Supply the free copy of the Judgment to the accused.”

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Being aggrieved by the same, accused filed an

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appeal before the First Appellate Court in Criminal Appeal No.174/2020. Learned Judge in the First Appellate Court has dismissed the appeal. Thereafter accused is before this court.

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Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition would contend that it is the motorcyclist who is responsible for the accident and not the lorry and false case has been foisted

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against the accused and sought for allowing the revision petition.

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Alternatively, learned counsel for the revision petitioner would submit that the offences are compoundable and therefore by enhancing the fine amount, imprisonment may be set aside.

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Per contra, learned High Court Government Pleader supports the impugned judgments.

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He would invite the attention of this Court that after the incident, the driver of the lorry without attending the injured, left the place and did not challenge the charge sheet.

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He would also content that in the cross examination of PW5, there is an admission that there was a notice issued by Investigation Agency and same is answered. Therefore, there is no dispute with regard to the accused being the driver of the lorry.

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In the cross examination of PW4 however it has

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been admitted that since the road work was going on, vehicles were moving in low speed and in view of the said suggestion, accident stands established. But, the defence of the accused is

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not proved and therefore, sought for dismissal of the revision petition.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, the death of rider of motor vehicle is not in dispute.

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Rider of the motorcycle being the injured witness has specifically stated about the incident in categorical terms. The only discrepancy that is pointed out in the cross examination of PW4 is that road work was going on and therefore, all the vehicles were moving slowly including the offending lorry.

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It is now well settled that speed is not the only criteria while assessing the rashness. Petitioner being the professional driver was required to drive the lorry in a proper manner expecting the unexpected on the road especially when the road work is going on.

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Taking note of these aspects of the matter, this Court does not find any good grounds to interfere with the order of conviction.

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Insofar as the alternate submission is concerned, grant of probation in a matter of this nature is not permissible as is held by the Hon'ble Supreme Court in the case of State of

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Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182.

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No other mitigating circumstances is found based on record to interfere with the order of sentence as well.

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