MAHESH v. STATE OF KARNATAKA

DHARWAD, CONFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT AND ACQUIT, THE PETITIONER OF THE OFFENCES WITH WHICH HE HAS BEEN CONVICTED AND SENTENCED BY THE TRIAL COURT. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri K.M. Shiralli, learned counsel for revision petitioner and Sri Praveena Y. Devareddiyavara, learned High Court Government Pleader for respondent.

#2. Accused who has suffered an order of conviction in C.C. No.202/2014 for the offence punishable under Sections 279, 337, 304(A) of Indian Penal Code, 1860 (for short, ‘IPC’) and Section 134 read with Section 187 of IMV Act confirmed in Crl.A.No.35/2018, is the revision petitioner.

#3. Sentence passed by the Trial Court reads as under : “Accused is found guilty of the offence punishable U/s.279. 337 and 304(A) of IPC - 3 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 and Section 134 r/w Section 187 of IMV Act and acting U/s 255(2) of Cr.P.C accused is hereby convicted for the offence punishable U/s. 279, 337 and 304(A) of IPC and Section 134 r/w Section 187 of IMV Act. Accused is hereby sentenced to under go SI for one month and fine of Rs 500/- for the offence punishable u/s 279 of IPC, in default of payment of fine amount accused shall further undergo simple imprisonment of 15 days. Further accused is hereby sentenced to under go SI for one year for the offence punishable u/s 304(A) of IPC and fine of Rs 2,000/-, in default of payment of fine amount accused further undergo simple imprisonment of three months. Further accused is hereby sentenced to under go Sl for three months for the offence punishable u/s 337 of IPC and fine of Rs.500/-, in default of payment of fine amount accused shall further undergo simple imprisonment of 15 days. - 4 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 Further accused is hereby sentenced to under go Sl for one month for the offence punishable Section 134 r/w Section 187 of IMV and fine of Rs.500/- in default of payment of fine amount accused shall further undergo simple imprisonment of 15 days. All the sentences shall run concurrently. Bail bonds executed by accused and surety bond stands cancelled.”

#4. Facts in the nutshell for disposal of the revision petitioner are as under: A complaint came to be lodged with Kalaghatagi Police contending that on 11.05.2014 at about 11:00 pm in the front yard of the complainant’s house at Tavargeri village, accused being the driver of a Tempo Trax vehicle bearing No.KA-37/M-1296 drove the same in a rash and negligent manner and whereby ran over a person by name Kalappa Mahadevappa Tippannavar, who was in the process of loading the Jowar back and Kallapa sustained grievous injuries and later on succumbed to the said - 5 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 injuries. Based on the said complaint, police registered the case in Crime No.4/2014 for the offences punishable under Section 279, 337 and 304A read with Section 134 of IPC and Section 187 of the Motor Vehicles Act, 1988.

#5. After thorough investigation, charge sheet came to be filed. After due trial, accused was convicted and sentenced as referred to supra.

#6. While passing the order of conviction, learned Trial Judge took into consideration answers given by the accused at the time of recording the accused statement wherein he has stated that the deceased was sleeping under the tarpaulin which had been covered for the purpose of protecting the Jowar crop, which was stocked on the road. As such, he could not spot the deceased and ran over the tarpaulin as if it is a goods whereby the death of Kallappa is not on account of his negligent driving.

#7. Genesis of the prosecution case is otherwise than what the answer that has been given by the accused - 6 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 inasmuch as CW-6, who is the son of the deceased Kallappa is also injured in the same incident and he has been examined before the Court and the answer given by the accused do not tally with the oral testimony of CW-6.

#8. Learned Judge in the First Appellate Court re- appreciated these aspects of the matter and also noted the width of the road being 12 feet, accused should have drive the vehicle in a more cautious manner where he would have avoided the accident and upheld the order of conviction.

#9. Sri K.M. Shiralli, learned counsel for the revision petitioner however contended that the accident having occurred on account of the fact that deceased was lying on the road inside the tarpaulin and therefore, for want of sufficient light in the place of incident accused could not spot the deceased who was sleeping underneath the tarpaulin. As such, in the event this Court upholding the order of conviction, sentence of imprisonment may be set aside by enhancing the fine amount reasonably. - 7 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018

#10. Per contra, Sri Praveen Y. Devareddiyavara, learned High Court Government Pleader for respondent supports the impugned judgments and contended that the version as his enunciated by the accused cannot be countenanced in law as the son of the deceased is also injured in the incident.

#11. Having heard the arguments of both the sides in detail, this Court perused the material on record meticulously.

#12. On such perusal of the material on record, spot sketch would go to show that place of incident is in front of the house of the complainant.

#13. According case of prosecution, complainant and his father (deceased) were loading the jowar crop. But at 11 p.m., possibility of loading the jowar crop cannot be appreciated. Assuming that they were loading the jowar crop, admittedly it was on the road. One cannot lose sight of the fact that nowadays the - 8 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 agriculturists are using the motor roads as the place for agriculture operations especially after the harvest has taken place either for drying or for the purpose separating the grains by movement of the vehicles on the harvested crop.

#14. In a good number of cases, it is the drivers of the motor vehicles who are put to lot of difficulties while moving the vehicle on the road where the harvested crop is spread for drying or for the purpose of separating the grains from the harvested crops.

#15. Be that what it may, at 11.00 p.m., loading the harvested jowar crop is highly improbable. When the accused has taken the responsibility of explaining as to what exactly has happened at the place of incident while answering to question No.7 at the time of recording the accused statement assumes sufficient significance which has not been properly appreciated by both the Courts with regard to the accident is concerned. - 9 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018

#16. Therefore, while maintaining the conviction, setting aside the imprisonment for the offence punishable under Section 304A of IPC by enhancing the fine amount in a sum of Rs.2,00,000/- would meet the ends of justice in the peculiar facts and circumstance of the case on hand.

#17. Accordingly, the following: ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the revision petitioner for the offences punishable under Section 279, 337, 304A of IPC and Section 134 read with Section 187 of IMV Act, sentence ordered by the learned Trial Magistrate confirmed by the First Appellate Court is modified by setting aside the imprisonment for the offence punishable under Section 304A of IPC ordered by the learned Trial Magistrate by enhancing the fine amount in a sum of Rs.2,00,000/- payable on or before 15.05.2025. - 10 - NC: 2025:KHC-D:5911 CRL.RP No. 100229 of 2018 iii. Failure to pay the enhanced fine amount would automatically result in restoration of the sentence ordered by the learned Trial Magistrate confirmed by the First Appellate Court. iv. After the receipt of entire fine amount, said fine amount is ordered to be paid as compensation the dependant of deceased i.e., P.W.4 who is the son of the deceased under due identification. Office is directed to return the Trial Court Records with copy of this order forthwith for issuing modified conviction warrant. Sd/- (V.SRISHANANDA) JUDGE NAA – paragraph Nos.1 to 11, KAV – paragraph Nos.12 to end LIST NO.: 2 SL NO.: 37