Sri P Ramesh Babu Vs State of Karnataka

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDE OF DISMISSAL IN CRL.A.NO.59/2013 FROM THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE DATED 07.11.2017 AND THE JUDGMENT PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., HOSAKOTE IN C.C.NO.820/2010 ORDER DATED 31.10.2013.

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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 S VISHWAJITH SHETTY

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HC-KAR

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ORAL ORDER

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Accused is before this Court in this revision petition

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filed under Section 397 R/w Section 401 of Cr.P.C, with a prayer to set aside the judgment and order of conviction and sentence dated 31.10.2013 passed in C.C.No.820/2010 by the Court of Civil Judge & JMFC, Hoskote and confirmed by the judgment and order passed in Criminal Appeal No.59 of 2013 dated 07.11.2017 passed by the Court of I Addl. District & Sessions Judge, Bengaluru Rural District.

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Heard the learned counsel appearing for the parties.

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It is the case of the prosecution that on 21.07.2010 at about 11.15 a.m. when CW1 to CW5 were going towards Chintamani in their Maruthi Swift car bearing registration No.KA-03-MM-5747, the accused, who is the driver of APSRTC bus bearing registration No.AP-28-Z-3390 drove his vehicle in a rash and negligent manner and dashed the same against the car in which CW1 to CW5 were travelling near Arashinagudda, Shivanapura gate on Hoskote - Chinthamani Road and caused the accident. In the said accident, CW1 to CW5 were grievously

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injured. It is under these circumstances, FIR was registered against the petitioner for offence punishable under Section 279 and Section 338 of IPC and after completing investigation, charge sheet was filed against him for the said offences and he was tried for the charge sheeted offences before the jurisdictional Court of Magistrate in C.C.No.820 of 2010. Since the petitioner had claimed to be tried before the Trial Court, the prosecution in order to prove the charge sheet allegations against the petitioner, examined nine charge sheet witnesses as PW1 to PW9 and got marked six documents as Ex.P1 to EX.P6. On behalf of the defence, no oral or documentary evidence was placed on record. The Trial court, after hearing

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the arguments addressed on both sides, convicted the petitioner for the charge sheeted offences and sentenced for the offence punishable under Section 279 of IPC, petitioner was sentenced to undergo simple imprisonment for a period of six months and pay fine of ₹.1,000/- and in default to undergo simple imprisonment for a period of one month. For the offence punishable under Section 338 of IPC, petitioner was sentenced to undergo simple imprisonment for a period of one year and pay fine of ₹1,000/- and in default to undergo simple

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imprisonment for a period of 3 months. The said judgment and order of conviction and sentence passed by the Trial Court was confirmed in Criminal Appeal No.59 of 2013 by the Court of I Addl. District & Sessions Judge, Bengaluru Rural District by Judgment and order dated 07.11.2017. Aggrieved by the same, petitioner is before this Court.

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In the present case, CW1 to CW5 were the inmates of the car which had met with the accident. CW5 was the driver of the said car, as against which the bus driven by the petitioner had allegedly dashed and caused the accident. PW1 to PW4 have been examined before the Trial Court as PW1 to PW4. The said witnesses have stated that the offending bus which came from the opposite side was driven in a high speed by the petitioner and had dashed against the Car in which they were travelling. However, these witnesses have also stated that they are not aware as to how the accident had taken place and by whose mistake the accident had taken place. CW5 who is the driver of car in which CW1 to CW4 were travelling has not been examined in the present case. He would have been the best witness to state that how the accident had taken place.

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HC-KAR

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Though CW1 to CW4 have stated that the car in which they were travelling was moving on the left hand side of the road, the photograph of the accident spot which is produced by learned counsel for the petitioner along with a memo before this Court would go to show that the accident in question had taken place on the right side of the road and the car was found on the right side of the road whereas the bus is found on the left side of the road.

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Undisputedly CW1 to CW5 who had sustained injuries in the present case have all recovered and CW1 to CW4 were examined before the Trial Court. The accident in question had taken place in year 2010 and already 15 years have lapsed from the date of accident. It is not in dispute that the petitioner was the driver of the offending vehicle at the time of accident.

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From the perusal of the oral and documentary evidence placed on record, it appears that there is a contributory negligence even on the part of the driver of the car in which CW1 to CW5 were travelling. Under the circumstances, I am of the opinion that though the Courts below were justified in convicting the petitioner for the charge sheeted offences, the

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said Courts were not justified in imposing the sentence of imprisonment on the petitioner and therefore the order of sentence passed by the Court below needs to be modified.

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7. Accordingly the following:-

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ORDER

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Criminal revision petition is allowed.

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The judgment and order of conviction passed in C.C.No.820/2010 by the Court of Civil Judge & JMFC, Hoskote dated 31.10.2013 confirmed in judgment and order dated 07.11.2017 passed in Criminal Appeal No.59 of 2013 by the Court of I Addl. District & Sessions Judge, Bengaluru Rural District, convicting the petitioner for offences punishable under Sections 279 and 338 of IPC is confirmed. However, the order of sentence passed by the Courts below is modified and for the offence punishable under Section 279 of IPC, petitioner is sentenced to pay fine of ₹1,000/- and in default he shall undergo simple imprisonment for a period of one month. For the offence punishable under Section 338 of IPC, the

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