Mr K Jayanna Vs State by Kadur Police

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.02.2018 DISMISSING THE APPEAL PREFERRED BY THE PETITIONER HEREIN IN CRL.A.NO.165/2015 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, AT CHIKKAMAGALURU CONFIRMING THE JUDGMENT OF CONVICTION DATED 16.11.2015 IN C.C.NO.639/2013

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HC-KAR

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PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, KADUR CONVICTING THE ACCUSED/PETITIONER FOR THE OFFENCES P/U/S 279,337,338 AND 304A OF IPC AND SECTION 187 OF MOTOR VEHICLES ACT.

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THIS PETITION, COMING ON FOR FINAL 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 learned counsel for the revision petitioner and

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Sri.Channappa Earappa, learned High Court Government

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Pleader appearing for the respondent/State.

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Accused has suffered an order of conviction in

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C.C.No.639/2013 for the offences punishable under

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Sections 279, 337, 338 and 304-A of the Indian Penal Code (for short ‘IPC’) and Section 187 of Indian Motor Vehicles Act, 1988 (for short ‘M.V.Act’) and sentenced to undergo six months imprisonment for the offence under Section 304-A IPC, which got confirmed in Crl.A.No.165/2015. Hence, the accused is in revision before this Court.

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3. The facts in nutshell for disposal of this revision

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petition are as under:

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Kadur Police filed a charge sheet against accused in respect of a road traffic accident that occurred on 05.03.2013. The charge sheet material would reveal that on 05.03.2013 at about 02.30 p.m. near Tangali Tandyan on National Highway 206, the accused being the driver of the tractor bearing registration No.KA-18/T-1378 and trailer having registration No.Ka-18/T-1379, drove the same in a rash and negligent manner and dashed against the auto rickshaw bearing registration No.KA-54/3425 from the hind side resulting in serious damage to the auto rickshaw and inmates there being suffered simple and grievous injuries.

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On account of impact of the accident, Basavaraju who is one of the inmates of the auto rickshaw died on the spot. Accused without even stopping the tractor in the place of incident, ran away from the spot.

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Thereafter, the learned Magistrate secured the presence of the accused and recorded plea. Accused pleaded not guilty, therefore trial was held.

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In order to bring home the guilt of the accused, prosecution examined 13 witnesses comprising of complainant and injured witnesses, mahazar witnesses, Investigating Officers, Motor Vehicle Inspectors as PW1 to PW13 and placed on record 25 documents, which were exhibited and marked as Exs.P-1 to P-25 comprising of spot mahazar, seizure mahazar, complaint, photographs, portions of the statements of the charge sheet witnesses, inquest mahazars, IMV report, wound certificates, FIR and spot sketch.

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On conclusion of recording of evidence, the

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learned trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C.

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Accused has denied all the incriminating circumstances and did not choose to place his version about the incident on record.

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HC-KAR

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Thereafter, the learned trial Magistrate heard the

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arguments of parties and by a considered judgment dated 16.11.2016 convicted the accused for the aforesaid offences and sentenced six months imprisonment for the offence under Section 304-A of IPC besides imposing fine for the remaining offences and for the offence under Section 338, two months imprisonment was imposed. All the sentences were ordered to be run concurrently.

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Being aggrieved by the order of conviction and sentence accused filed an appeal before the first appellate court in Crl.A.No.165/2015. The learned Judge in the first appellate court after securing the record heard the arguments of the parties in the light of the appeal grounds, wherein it was emphasised that some of the prosecution witnesses have not supported the case of the prosecution in toto and therefore, guilt of the accused is not established and sketch that is placed on record do not tally with the testimony of the prosecution witnesses and

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then upheld the order of conviction and sentence interalia

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holding in para 17 to 19 of the judgment as under:

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“17. Ex.P1 spot mahazar reflects the spot of the accident and Ex.P8 photograph shows that it is a straight road. Therefore unless and until any other vehicle crossed into the road, there is no possible of the accident as happened in the present case. Ex.P25 sketch also corroborates the case of the prosecution. Though independent witnesses to Ex.P1 mahazar and Ex.P25 sketch have not supported the case of prosecution, the Investigating Officer PW.13 Santhosh Shetty has categorically testified regarding the conducting of mahazar and drawing of Ex.P25 sketch. Though he has been cross examined except for denying the mahazar no material is produced to defeat his testimony. PW.13 being a Government servant has no personal interest in the case. Therefore there is no possibility of fabrication of the mahazar. If PW.13 had not been to the spot, there is no possibility of taking Ex.P8 photograph which reflects the accident spot and the damaged auto. Therefore the evidence of PW.13 Santhosh Shetty clearly establishes Ex.P1 mahazar and Ex.P25 rough sketch of the spot.

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18. The testimony of PW.5, 9 and 11 clearly establishes that the accused being the driver of said tractor has been driving the same in a rash and negligent manner and has caused the accident. Their testimony clearly reflects that the accused has taken a sudden turn to the National Highway which has resulted in the accident. The injuries suffered in the accident as well as death of Basavaraju are not in dispute. It is not the case of defence that the deceased has succumbed due to any other reason. Therefore the evidence brought on record by the prosecution clearly establishes the rash and negligent driving by the accused and the resulting accident, injuries to PW 5, 9, 11 and death of Basavaraju.

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19. The Trial Court has properly considered the evidence on record and has arrived at the right conclusion. The Trial Court Session Has discussed the evidence on record in detail and has rendered sacred well reasoned judgment. As such there are no reasons to hold that the judgment of the Trial Court is cryptic as claimed in the appeal. Since the Trial Court has properly appreciated the evidence on record and has arrived at right conclusion, there are no reasons to interfere with the findings and judgment of the Trial Court. Accordingly points No.1 to 3 are answered in the negative.”

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Being further aggrieved by the same, the

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accused is before this Court in this revision.

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Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused and sought for allowing the revision petition.

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Learned counsel for the revision petitioner

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would also emphasise that the sketch placed on record shows that it’s a mud road though it was a highway and in such a road, there cannot be over-speeding of the tractor

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HC-KAR

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in question which would per-se established that the genesis of the alleged crime has not been properly propounded by the prosecution by placing cogent evidence on record and thus, sought for allowing the revision petition.

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It is also emphasised that the facts and circumstances of the case and the IMV report would run contrary to each other and therefore, the order of conviction is based on surmises and conjectures and hence, sought for allowing the revision.

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Per contra, alternatively, the learned counsel for the revision petitioner also argued that in the event this Court upholding the order of conviction by enhancing the fine amount, the sentence of imprisonment ordered by the learned trial Magistrate for the offence under Section 338 and 304-A of IPC, needs to be set aside.

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Per contra, learned High Court Government Pleader - Sri.K.Nageshwarappa would support the

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impugned judgment. He would further contend that the photographs produced before the Court would go to show that it is the front portion of the tractor which got damaged and rare portion of the auto rickshaw, which is damaged to a greater extent including the frame of the auto rickshaw being damaged.

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He would further contend that because of the

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impact of the accident, auto rickshaw turtled and inmates fell down and one among them sustained grievous injuries and succumbed to the spot, which shows the nature and the manner in which the accident has occurred that too on the mud road and it is also to be noticed that accused being the driver of the tractor and trailer unit, did not even cared to stop the vehicle near the place of the incident and ran away from the spot and therefore, no mercy can be shown to the revision petitioner and sought for dismissal of the revision petitioner.

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HC-KAR

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Heard the arguments of both sides and this

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Court perused the materials on record meticulously. On

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such perusal of the material on record, following points would arise for consideration:

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(1) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the accused/revision petitioner for the aforesaid offences?

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(2) Whether the impugned judgments are suffering from legal infirmity and perversity and thus, call for interference?

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(3) Whether the sentence is excessive?

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(4) What order?

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RE. POINT NOS.1 TO 3:

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In the case on hand, death of Sri.Basavaraju in a road traffic accident involving auto rickshaw bearing

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No.KA-54/3425 and tractor and trailer bearing No.KA18/T-1378 and KA-18/T-1379 respectively, are not in dispute. Inquest mahazar as well as other material evidence placed on record would be sufficient enough to

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conclude that Sri.Basavaraju died on the spot in the road traffic accident on 05.03.2013.

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Other injured witnesses are examined, who are admittedly inmates of the auto rickshaw. It is found from the material on record that after the accident has occurred, the accused did not stop the tractor and trailer unit and ran away from the spot.

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In other words, it is a case of hit and run. The nature of damages that has been caused to the auto rickshaw would go to show that it is the front portion of the tractor, which got damaged in the incident which hit the hind portion of the auto rickshaw and whereby auto rickshaw turtled. Because of the impact of the accident, the frame of the auto rickshaw is also damaged, which is evident from the photograph that has been placed on record.

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Admittedly, the tractor & trailer unit was not found at the place of the incident when the spot mahazar

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took place. Therefore, sketch and spot mahazar is based on the information that has been furnished by the other witnesses to the investigation agency, which will not have any serious implication vis-a-vis the alleged contradiction that is elicited in the evidence of the prosecution witnesses.

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Why at all injured witnesses would depose against the accused, is a question that remains unanswered. Admittedly, none of the injured person could see the driver of the tractor as the auto rickshaw was covered and injured witnesses was inside the auto rickshaw.

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Taking note of this aspect, minor contradictions elicited in the cross examination of the witnesses and injured and eye witnesses turning partly hostile to the case of the prosecution, is thus acceptable in the facts and circumstances of the case.

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In a matter of this nature, accused is expected

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to place his version on record. Therefore, recording of

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accused statement as is contemplated under Section 313 of Cr.P.C. is not an empty formality in a criminal trial. It would afford itself dual purpose.

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Firstly, recording of accused statement allows the accused to answer the incriminating circumstances in a proper manner.

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Secondly, it would afford a fair opportunity for the accused to place his version about the incident. If the accused deliberately fails to make use of such an opportunity granted to him while recording the accused statement, consequences in law has to follow.

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View of this Court is supported by the judgment of Hon’ble Apex Court in the case of RAVI KAPUR v. STATE OF RAJASTHAN¹ . In the case on hand, the accused has not even admitted the accident.

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Therefore, the consequences of order of conviction is just and proper after the prosecution has placed on record with sufficient material evidence that it is the accused who 1 (2012) 9 SCC 284

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being the driver of the tractor & trailer unit caused the accident and did not even stopped the tractor on the spot and ran away from the spot.

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Taking note of the above factual aspect, this Court does not find any legal infirmity or perversity in recording an order of conviction of the accused for the aforesaid offences. It is also pertinent to note that the learned Magistrate using discretionary power has imposed two months simple imprisonment for the offence under Section 338 of the IPC and so also for the offence under Section 304-A IPC.

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The State did not choose to challenge the

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quantum of sentence. Therefore, the learned Judge in the first appellate court was justified in upholding the order of sentence.

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The granting of six months imprisonment is in conformity with the principles of law enunciated by the

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Hon’ble Apex Court in the case of STATE OF PUNJAB v.

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SAURABH BAKSHI² .

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Thus, having regard to the limited power to be exercised under the revisional jurisdiction, this Court is of the considered opinion that no grounds are made out to interfere with the well reasoned orders of the judgments of the trial court. Accordingly, Point Nos.1 to 3 are answered in the negative.

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RE. POINT No.4:

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In view of the finding of this Court on Point

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Nos.1 to 3 above, the following is passed:

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ORDER

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(i) Revision petition is meritless and hereby dismissed .

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(ii) Accused/revision petitioner is directed to surrender before the trial court for serving the sentence on 28.03.2026, failing which trial court shall secure his presence and send him to prison.

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