SHARANAPPA v. THE STATE OF KARNATAKA

First Appellate Court Crl.A.No.54/2015.

7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and by judgment dated 28.01.2019, dismissed the appeal filed by the accused and confirmed the order of conviction and sentence without noticing the fact that there was no sentence passed for the convicted offences under Section 279, 337 and 338 of IPC.

8. Being further aggrieved by the same, accused is before this Court, in this revision on following grounds: - 6 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019  The order of conviction and sentence passed by the Learned Magistrate and too mechanically confirmed by the District and Session Judge, are wholly illegal and not sustainable in law. The courts below acted illegally and with the material irregularity while exercising their jurisdiction and if the said orders passed by the courts below are not set aside the petitioner would be put to great hardship and loss.  The Learned Magistrate has failed to appreciate the evidence of the prosecution witnesses in its proper perspective and has committed an error in not taking notice of the fact that the lorry bearing MH-25 B 9015 was not properly parked on the road, and it was parked in the middle of the road and there was also a curve and as such there was no possibility to the petitioner to anticipate that the lorry would be parked in such a passion and as such inspite of his due diligence, he could not avoided an accident. The order passed by the learned Magistrate without taking notice of the said circumstances, is wholly illegal and not sustainable in law. The learned Magistrate without considering said admitted circumstances, has committed an error in applying the Principals of Res-Ipsa-Loquitor and has also committed an in holding the petitioner - 7 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 negligence. The said order passed by the Learned Magistrate and too mechanically confirmed by the Lower Appellate Court, are wholly illegal and not sustainable in law.  The courts below had committed an error in misreading the evidence on record and it ought to have held that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubts and the petitioner /accused is entitled to benefit of doubts.  The courts below had also committed an error in convicting the accused-petitioner merely on the basis of the evidence of the PW2 and PW 14, who are related and interested and whose evidence are unreliable. The courts below ought to have rejected their evidence as unnatural, artificial and contradictory and unsafe to believe.  The courts below also failed to take notice of the fact the prosecution witnesses have improved their versions and there is also material omissions and these omissions and improvements will goes to the root of the prosecution case and the trial court committed an error in convicting the petitioner only on the basis of the such an unreliable evidence which is liable to be set aside. - 8 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019  The Courts below also relied on the evidence of PW 2 and PW 3 to 14, and failed to take note that there is full of contradiction in their evidence and the trial court erred in relying on the inadmissible and contradictory evidence. The courts below also failed to take notice of the fact there witnesses are the interested witnesses and their evidence is unsafe to believe.  The Courts below ought to have held that no person can be convicted merely on the basis of surmises and conjectures and ought to have acquitted the petitioner /accused.  The learned Sessions Judge has also committed an error in not taking of the fact that the there are material contradictions between the complaint and also relying on the evidence of the PW2 to PW-14, committed an error holding that the accused who was driving a bus on the left side, suddenly dashed to the parked truck and lower appellate court also committed an error in holding that the burden is upon the accused to explain why he went to the totally left side, which is wholly illegal. The learned Session Judge, failed to take notice of the fact the entire burden was upon the prosecution to prove the guilt of the accused - 9 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 beyond reasonable grounds, and on the failure of the prosecution the accused is entitled for the benefit of doubt, and when the evidence adduced by the prosecution is not sufficient to hold the accused guilty, the courts below ought to have acquitted the accused from the charges framed against him.  Both the courts below committed an error in not considering the fact that there is discrepancy in the evidence of the prosecution witnesses regarding the manner in which the accident has taken place and these discrepancies goes to the root of the prosecution story and also creates the doubt about the rash and negligence of the accused and the manner in which the accident has taken place, as such the courts below ought to have given the benefit of doubt to the accused- petitioner.  The learned Sessions Judge committed an error in holding that the prosecution has proved the case against the accused beyond reasonable doubt. The learned Session Judge failed to take notice of the fact that the session court being the last court for appreciating the evidence on record, ought to have re appreciated the evidence, independently, and the order passed by the learned Session - 10 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 Judge, too mechanically without properly appreciating the evidence and also the various grounds urged by the appellant, is wholly illegal and requires to be set aside. The order of the learned Session Judge, is also too perfunctory and without looking to the records properly as such the order of the learned Session Judge, is wholly illegal and requires to be set aside.  The learned Session Judge also misread the evidence of the trail court and too mechanically confirmed the order of the conviction and sentence. The order passed by the learned Session Judge, is also without any application of mind, and caused substantial injustice to the petitioner-accused.  The order passed by the lower appellate court is also too perfunctory and the lower appellate court ought to have re appreciated the entire evidence on record to comes to conclusion that whether the order of the trial court are correct or not.  Even otherwise viewed from any angle, the conviction and order of sentence passed by the courts below are wholly illegal, capricious and as such liable to be set aside.” - 11 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019

9. Sri.J.S.Shetty, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that except for the fact that injured witnesses have deposed before the Court that lorry was moving in a high speed. Except that there is no other material on record which would attribute the rash and negligent driving of the lorry by the revision petitioner resulting in the incident.

10. He would further contend that mere high speed is not the sole criteria for adjudging the rashness especially when the witnesses have admitted that the lorry was parked without proper signal on the highway. Therefore, no rashness could be attributed to the revision petitioner.

11. He would also contend that admittedly, complainant was sitting behind the cabin of the lorry and therefore, he could not have witnessed as to how the accident has occurred. Therefore, his testimony and testimony of the other injured witnesses cannot be based - 12 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 for the purpose of recording an order of conviction against the revision petitioner and sought for allowing the revision petition.

12. He also pointed out that driver of the parked lorry admitted that he has not put on the indicator lamps or sufficient indication that a lorry is parked on the road. Therefore, no negligence can be attributable to the revision petitioner and sought for allowing the revision petition.

13. Per contra, Sri.Praveena Y. Devareddyavara, learned High Court Government Pleader State/respondent supports the impugned judgments.

14. He would contend that admittedly charge sheet came to be filed against the revision petitioner which has not been challenged by the revision petitioner. Therefore, he cannot argue before this Court that the charge sheet filed by the police is incorrect. - 13 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019

15. He would further contend that very fact that one valuable life has been lost and several other persons have been injured in the incident establishes the gravity of the incident whereby the rash and negligence is only attributable to the revision petitioner and sought for dismissal of the revision petition.

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

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

1. Whether the revision petitioner makes out a case that impugned judgments are suffering from legal infirmity or perversity and thus calls interference?

2. Whether the sentence is excessive?

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

18. In hand, admittedly, accused/revision petitioner is the driver of the lorry - 14 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 bearing No.ka-32/B-3587 which is a goods lorry. Why did the revision petitioner took up the responsibility of carrying 40 persons in the said lorry is a question that remains unanswered. Travelling in a goods lorry that too for the purpose of visiting Savadatti Yallamma temple from Kalaburagi District itself is an offence.

19. Further, after the lorry crossed Korthi Kolar Bridge, while proceeding on Bijapur – Hubballi Road, revision petitioner who was the driver of the lorry, dashed against the parked lorry. No doubt, driver of the parked lorry admits that there was no sufficient indication nor any precautionary method.

20. Revision petitioner being the terminal driver of the offending lorry, should have expected an unexpected thing on road especially when the incident has taken place on 01.06.2012 at about 6.00 a.m. Injured witnesses have specifically deposed that the driver of the lorry was moving in a high speed. - 15 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019

21. No doubt, speed is not the only criteria while adjudging the rashness. A specific suggestion was put to P.W.2 in the cross-examination that there was a road hump few feet away from the place of incident, as such, lorry could not have been moved in a high speed. P.W.2 has answered that the revision petitioner drove the lorry by jumping the road hump which is sufficient enough to infer the rashness in driving the lorry.

22. Taking note of the fact that revision petitioner failed to offer any explanation whatsoever and has ran away from the place of incident and did not place his version on record after the prosecution has established its case, learned Trial Magistrate was justified in recording an order of conviction for the offences punishable under Section 279, 337 and 338 of IPC.

23. Learned Judge in the First Appellate Court rightly reappreciated the material evidence while upholding the order of conviction. - 16 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019

24. This Court, having regard to the limited scope of revisional jurisdiction, in the light of the principles of law enunciated by the Hon’ble Apex Court in the case of Ravi Kapur v. State of Rajasthan reported in (2012) 9 SCC 284, reconsidered the material evidence placed on record. When the prosecution has established its case by placing cogent evidence on record, revision petitioner was required to place his version on record about the incident. But having failed to do so, this Court is of the considered opinion that order of conviction recorded by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference. Accordingly, point No.1 is answered in negative. REG.POINT No.2:

25. In the case on hand, son of P.W.2 being dead and several others were injured, as pointed out supra, learned Trial Magistrate failed to award any punishment for the proved offences under Section 279, 337 and 338 of IPC and ordered rigorous imprisonment for the offence - 17 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 punishable under Section 304A of IPC and one month simple imprisonment for the offence punishable under Section 187 of MV Act. Learned Trial Magistrate also ordered that both the sentence should run separately.

26. No reasons are forthcoming as to why both the sentences are ordered to run separately, likewise, there is no scope for ordering rigorous imprisonment for the offence punishable under Section 304A of IPC. State should have challenged the order of non sentencing the revision petitioner for the offences punishable under Section 279, 337 and 338 of IPC but failed to do so.

27. In the revision filed by the revision petitioner, there is no scope for this Court to order for separate sentence for the aforesaid offences. Only for the purpose of proper sentencing, remitting the matter to the Trial Court at this distance of time, would be a futile exercise.

28. Accordingly, if the rigorous imprisonment is converted into simple imprisonment of one year for the - 18 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 offence punishable under Section 304A of IPC, taking note of the fact that no sentence is ordered for the offences punishable under Section 279, 337 and 338 of IPC, ends of justice would be met.

29. Likewise, observing that sentence of one month simple imprisonment is ordered for the offence punishable under Section 187 of MV Act to run concurrently with the sentence under Section 304A of IPC would also meet the ends of justice. Accordingly, point No.2 is answered partly in the affirmative. REG.POINT No.3:

30. In view of the findings of this Court on point Nos.1 and 2 as above, following: ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the revision petitioner the offences punishable under Section 279, 337, 338 - 19 - NC: 2025:KHC-D:5817 CRL.RP No. 100065 of 2019 and 304A of IPC and Section 187 of MV Act, sentence of rigorous imprisonment of one year ordered by the learned Trial Magistrate confirmed by the First Appellate Court for the offence punishable under Section 304A of IPC is modified as simple imprisonment for one year. iii. Likewise, sentence of one month simple imprisonment ordered the offence punishable under Section 187 of MV Act to separately is modified concurrently with the imprisonment of one year for the offence punishable under Section 304A of IPC. iv. Time is granted for the revision petitioner to surrender before Trial Court till 30.04.2025 to serve remaining part of the sentence. Office is directed to return the Trial Court Records with copy of this order forthwith for issuing modified conviction warrant. SD/- (V.SRISHANANDA) JUDGE KAV CT:PA/List No.: 2 Sl No.: 38