Mr. Gangappa Vs State by

THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT PASSED IN C.C.NO.193/2017 DATED 05.02.2020 BY THE SENIOR CIVIL JUDGE AND JMFC, GOWRIBIDANUR AT ANNEXURE-A AND TO SET ASIDE THE JUDGMENT PASSED IN CRL.A.NO.33/2020 DATED 28.09.2020 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPUR AT ANNEXURE-B AND PASS AN ORDER FOR ACQUITTAL OF THE PETITIONER FROM ALL THE ALLEGED OFFENCES.

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NC: 2026:KHC:30814 CRL.RP No. 720 of 2021

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This matter is listed for admission. I have heard learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

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This revision petition is against the judgment of conviction and sentence passed by the Trial Court for the offence punishable under Sections 279, 337 and 304(A) of IPC and maximum sentence imposed is for a period of 2 years for

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the offence punishable Section 304(A) of IPC with fine of Rs.1,000/-. In respect of the offence punishable under Section 279 of IPC, only fine of Rs.1,000/- is imposed, in default of payment of fine, to undergo simple imprisonment for 3 months and in respect of the offence punishable under Section 337 of IPC, fine of Rs.500/- is imposed and in default of payment of fine, to undergo simple imprisonment for 1 month and also challenging the judgment of confirmation passed by the First

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HC-KAR

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Appellate Court in Crl.A.No.33/2020 on the file of Principal District and Sessions Judge at Chikkaballapura.

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The factual matrix of case of the prosecution is that the driver of the lorry, who is the revision petitioner herein drove the vehicle in a reckless speed and negligence and caused the accident on the motorcycle bearing No.KA-43-L7026 on public road in front of Sharavathi Enclave Layout near Thondebhavi Railway Station. Due to the said impact, C.W.1, rider of the bike fell from bike towards left side of the road and sustained simple injuriers and the pillion rider, the father of C.W.1 by name Krishnegowda along with bike went under the lorry and dragged upto 20 to 25 metres and caught fire. Due to which, the said motorcycle and pillion rider completely burnt and pillion rider died at the spot. Based on the complaint of C.W.1, Police registered the case, investigated the matter and filed the charge-sheet. The accused did not plead guilty and claims trial.

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Hence, the prosecution examined the witnesses P.Ws.1 to 8 and got marked the documents Exs.P1 to P15. The

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NC: 2026:KHC:30814 CRL.RP No. 720 of 2021

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HC-KAR

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accused was subjected to 313 statement and he has denied the incriminating circumstances, but not led any defence evidence.

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The Trial Court considering the evidence of P.W.1 and other witnesses, including the mahazar witness as well as I.O. and the documents of sketch, photographs and also IMV report, convicted the accused for the offence punishable under Section 304(A) of IPC and imposed maximum sentence for a period of 2 years and for other offences invoked, imposed only fine.

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The order of the Trial Court is challenged before the First Appellate Court in Criminal Appeal No.33/2020. The First Appellate Court also having reassessed the material on record, confirmed the same. Hence, the present revision petition is filed before this Court.

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This Court secured the records of the Trial Court and the First Appellate Court. Having considered the records, heard the arguments of learned counsel for the petitioner and the learned High Court Government Pleader for the respondentState. The counsel for the petitioner would submit that both the

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HC-KAR

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Courts have committed an error in considering the material on record and none of the witnesses speak about rash and negligence and the vehicle was entangled under the wheel. As a result, vehicle was damaged and it clearly discloses that no fault on the part of the driver of the lorry. Except the evidence of P.W.1, who is an interested witness and also P.W.2, who is also an interested witness, no other witnesses have deposed with regard to the accident concerned and both the Courts failed to consider the evidence available on record.

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Per contra, learned High Court Government Pleader for the respondent-State would submit that having considered the evidence of P.W.1 as well as mahazar witness, the material available on record is very clear that sketch which is marked as Ex.P8 and also IMV report Ex.P9 clearly disclose the place of accident and photographs which have been produced before the Court as Exs.P12 and P13 clearly depicts the rash and negligence on the part of the driver of the lorry and due to the said impact, the vehicle was dragged and the same came under the wheel of the lorry and then, fire was set. As a result, the pillion rider was burnt alive at the spot itself. The Court has to

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NC: 2026:KHC:30814 CRL.RP No. 720 of 2021

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HC-KAR

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take note of the gravity of the offence and the Trial Court rightly convicted the accused for a period of 2 years with fine of Rs.1,000/- Hence, it does not require any interference.

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Having heard learned counsel for the petitioner as well as learned High Court Government Pleader for the respondent-State and on perusing the material available on record, particularly the evidence of C.W.1, who is an eye witness and proceeding along with the deceased deposes that lorry came from rear side and dashed against the motorcycle. As a result and impact, the vehicle was damaged and the vehicle came under the wheel of the lorry. The IMV report which is marked as Ex.P9 is very clear that both the vehicles i.e., lorry and the motorcycle sustained damages and the both vehicles were burnt and the body of the pillion rider was burnt alive at the spot. Taking note of the said fact into consideration, nothing is elicited from the mouth of P.W.1 and mahazar was also marked. Taking note of the sketch which clearly depicts that rider of the motorcycle was proceeding ahead of the lorry and the lorry came from back side and dashed against the motorcycle, the Trial Court even invoked Section 279 of IPC,

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HC-KAR

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but when the ingredients of offence under Section 279 of IPC merges with the offence under Section 304A of IPC, the Trial Court ought not to have convicted and sentenced the accused for the offence under Section 279 of IPC. However, considering the material on record and P.W.1 has also sustained injuries and wound certificate is also produced, the Trial Court rightly invoked the offence under Section 337 of IPC and imposed only fine. But, the Trial Court failed to take note of the fact that it is an accident and not an intentional act and the punishment for a period of 2 years for the offence punishable under Section 304(A) of IPC, appears to be exorbitant and the same has to be reduced to 1 year, in view of the circumstances which clearly discloses that it is a case of res ipsa loquitur and ‘things speak for itself’ i.e., the manner in which an accident has occurred and even there is evidence of eye witness P.W.1. Under the circumstances, it requires modification of judgment of sentence and confirmation by the First Appellate Court.

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In view of the discussion made above, I pass the following:

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NC: 2026:KHC:30814 CRL.RP No. 720 of 2021

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HC-KAR

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ORDER

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(i) The criminal revision petition is allowed-inpart.

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(ii) The conviction and sentence for the offence under Section 279 of IPC is hereby set aside and fine amount deposited in respect of the offence under Section 279 of IPC is ordered to be refunded to the accused.

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(iii) The sentence imposed by the Trial Court for the offence under Section 304(A) of IPC is modified from 2 years to 1 year and benefit under Section 428 of Cr.PC to be extended if he was on jail during trial.

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(iv) The sentence imposed by the Trial Court for the offence under Section 337 of IPC is confirmed.

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Sd/(H.P.SANDESH) JUDGE

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ST

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List No.: 1 Sl No.: 63

Mr. Gangappa v. State by

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Mr. Gangappa v. State by

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