R R MAHESH v. THE STATE BY RURAL POLICE

CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri. Vinod Gowda, learned counsel for the revision petitioner and Sri. Vinay Mahadevaiah, learned High Court Government Pleader for the respondent-State.

The present revision petition is filed by the accused/revision petitioner challenging the order of conviction in CC No.507/2016 dated 14.02.2019 on the file I Additional Senior Civil Judge and JMFC, Chikkamagaluru for the offence punishable under Section 279 and 337 of IPC and Section 185 (a) of the Motor Vehicles Act, which was confirmed in Criminal Appeal No.40/2019 dated 11.12.2019 on the file of II Additional District and Sessions Judge, Chikkamagaluru. - 3 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:

3.1. A charge sheet came to be filed by the Chikkamagaluru police based on the complaint lodged to them contending that on 06.04.2015 at about 8.45 p.m., Manjunatha Gangal was proceeding as a pillion rider on a Bajaj boxer motorcycle bearing No.KA-36/K-3847, which was ridden by Dharmaraj on Belur-Chikkamagaluru Road near Mugulavalli gate of Chikkamagaluru Taluk.

3.2. At that juncture, driver of the Maruti Zen car bearing Reg. No.KA-53/M-5893, drove car by consuming liquor in a rash and negligent manner and dashed against the said motorcycle resulting in the accident. Police after thorough investigation filed a charge sheet.

Learned Trial Magistrate secured the presence of the accused and plea was recorded. Accused pleaded not guilty and therefore, trial was held. - 4 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

In order to prove the case of the prosecution, rider of the motorcycle and pillion rider of the motorcycle, eye witness, doctor who issued the wound certificate, investigation agencies spot punchas have been examined as PW.1 to PW.8.

Prosecution also placed on record, eleven documentary evidence which were exhibited and marked as Exs.P.1 to Ex.P.11 comprising of complaint, spot mahazar, certificated issued by the concerned authority showing that accused was in a drunken condition, IMV report, wound certificate, FSL reports, indemnity bond, FIR and rough sketch.

Detailed cross-examination of prosecution witnesses did not yield any positive material so as to disbelieve the case of the prosecution.

Thereafter, accused statement contemplated under Section 313 of Cr.P.C. was recorded wherein, the accused has denied all the incriminatory circumstances. - 5 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

The accused did not chose to place his version on record either by examining himself or furnishing any written statement as is contemplated under Section 313 (4) of Cr.P.C.

Thereafter, learned Trial Magistrate heard the parties and on considering the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced the accused as under: "The accused is found guilty for the offences punishable U/S 279 and 337 of IPC and Sec.185(A) of Motor Vehicles Act. Hence, acting U/S 255(2) of Cr.P.C., the accused is convicted for the offences punishable U/S 279 and 337 of IPC and Sec. 185(A) of Motor Vehicles Act. Hence, the accused is convicted and sentenced to undergo simple imprisonment for three months and shall pay fine of Rs.1,000/- in default he shall undergo simple imprisonment for one month for the offence punishable U/S 279 of IPC. The accused is further convicted and sentenced undergo simple imprisonment for three months and shall also to pay fine of Rs.500/- in default he shall undergo simple imprisonment for fifteen days for the offence punishable U/S 337 of IPC. Further, the accused is convicted and sentenced to undergo simple imprisonment for three months and shall also liable to pay a fine of Rs.2,000/-, in default he shall undergo simple imprisonment for one month for the offence punishable U/S 185(A) of Motor Vehicles Act. - 6 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020 The bail bond of accused and surety bond shall be in force till the appeal period is over as per the provisions of Section 437(A) of Cr.P.C. The interim release of Baja Boxer motorcycle bearing Reg. No.KA-36/K-3847 and Maruti Zen car bearing Reg. No.KA-53/M-5893 by the Investigating officer in favour of its registered owner shall be in force till the appeal period is over. All the substantive sentence shall run concurrently and default sentence shall run consecutively (separately). Office to supply the copy of this judgment to the accused forthwith at free of cost. "

Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.40/2019.

Learned Judge in the First Appellate Court after securing the records and hearing the arguments of the parties in detail, reappreciated the material evidence on record and dismissed the appeal of revision petitioner/accused and confirmed the order of conviction and sentence passed by the Trial Magistrate.

Being further aggrieved by the same, accused is before this Court, in this revision. - 7 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

Sri. Vinod Gowda, 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 especially when there are sketch which shows that car was parked under the tree, there is no question of the car driver dashing against the motorcycle. Therefore, conviction order recorded by learned Trial Magistrate confirmed by the First Appellate Court has resulted in miscarriage of justice and sought for allowing the revision petition.

Alternatively Sri. Vinod Gowda, learned counsel contended that in the event of this Court upholding the order of conviction, the sentence of imprisonment ordered by learned Trial Magistrate confirmed by the First Appellate Court may be set aside by enhancing the fine amount reasonably. - 8 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

Per contra, Sri. Vinay Mahadevaiah, learned High Court Government Pleader supports the impugned orders.

Having heard the parties in detail, this Court perused the material on record meticulously.

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

Whether the revision petitioner has made out a case that the impugned judgments are suffering from legal infirmity, perversity and thus calls for interference?

2. Whether sentence is excessive?

3. What order? REG.POINT NO.1:

In the case on hand, the accident is not in dispute. Wound certificates of rider and pillion rider of motorcycle Bearing No.KA-36/K-3847 would depict the accidental injuries sustained by them. - 9 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

Charge sheet has been filed against the driver of the offending car bearing Reg. No.KA-53/M-5893. Same was not challenged by the driver of the car.

Further, eye witnesses including the injured eye witnesses have supported the case of the prosecution in entirety.

However, learned counsel for the revision petitioner submitted before this Court that the sketch shows that the car was parked under the tree. No doubt such a fact is found from the spot sketch.

However, after the accident, the car was taken of the road side and then parked under a tree which has been shown in the sketch. Therefore, it cannot be said that it is rider of the motorcycle, who dashed against the parked car for the purpose of claiming the compensation.

Nevertheless, if that is the case of the revision petitioner, he should have stated so while recording accused statement. But on perusal of the accused statement, no such explanation is forthcoming. - 10 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020

In a matter of this nature, accused is bound to place his version of the incident after the prosecution successfully places the material evidence on record as is held in the case of Ravi kapur Vs. State of Rajastan reported in 2012 (9) SCC 284.

In the case on hand, in the absence of any explanation offered by the accused/revision petitioner, the Trial Magistrate remitting the accused is just and proper, which has been rightly appreciated by the learned Judge in the First Appellate Court.

This Court, that too in the revisional jurisdiction, does not find any factual aspects in setting aside the order of conviction. Accordingly, point No.1 is answered in negative. REG.POINT No.2:

In the case on hand, as referred to supra, learned Trial Magistrate has ordered for imprisonment for the offence punishable under Sections 279 and 337 of IPC - 11 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020 and also for the offence under Section 185 (a) of the Motor Vehicles Act.

Since, the offence under Section 279 of IPC, merges with the offence punishable under Section 337 of IPC, which is a higher offence, separate sentence ordering for Section 279 of IPC, would not arise. Even otherwise, when the injured persons have only suffered injuries, having regard to the language employed in Section 337 of IPC, ordering for imprisonment for a period of three months is totally uncalled for having regard to the facts and circumstances of the case on hand.

Accordingly, the imprisonment ordered for the offences punishable under Section 279, 337 of IPC and Section 185 (a) of the Motor Vehicles Act need to be set aside by enhancing the fine amount in a sum of Rs.15,000/- for all the offences.

Accordingly, point No.2 is answered partly in affirmative. - 12 - NC: 2024:KHC:47997 CRL.RP No. 159 of 2020 REG.POINT No.3: