Veerabhadra vs State

A.N. Venugopala Gowda

This Criminal Revision Petition has been preferred questioning dismissal of Criminal Appeal against the Judgment and Order of learned JMFC, convicting the petitioner for offences under S. 279 and 304-A IPC and sentencing him to Rigorous Imprisonment and pay fine with default clause. The occurrence giving raise to the criminal proceedings against the petitioner took place on 13.4.2005, at about 1.00 p.m. According to the prosecution, the petitioner was driving Tractor-trailer KA-18-T-1261 and 1262, near N.S. Medical Shop, on B.M. Road, Sakleshpur Town and dashed from behind to one Subbegowda, who was walking by the left side of the road and due to the impact, Subbegowda fell down on the ground and was run over and that he succumbed to the injuries.

CW-1/Palaksha, who witnessed the incident, gave information to the police. Case was registered and investigation was undertaken. After completion of investigation, charge sheet was filed against the petitioner. In response to the summons issued by the learned Magistrate, the petitioner appeared and when the accusation was put to him, pleaded not guilty. To prove the prosecution case, PWs. 1 to 9 were examined through whom Exs. P1 to P9 were marked. Statement of the accused under S. 313 Cr.P.C., was recorded, wherein, he denied all the incriminating circumstances appearing against him. Accused examined Dws. 1 and 2 and also got himself examined as DW-3. Considering the rival contentions and the record of the case, learned Magistrate found the accused guilty and convicted him for the offences under Ss. 279 and 304-A IPC. Accused was sentenced to undergo R.I. for one year and pay fine of Rs. 1,000/- for the offence under S. 279 IPC and in default of payment of fine, to undergo simple imprisonment for three months. Accused was sentenced to undergo R.I. for a period of two years and pay fine of Rs. 10,000/- for the offence under S. 304-A IPC and in default to pay the fine, to under go simple imprisonment for a period of three months. The sentences were ordered to run concurrently. Criminal appeal filed did not bring any relief to the accused since the same was dismissed.

Sri Vinod Gowda, learned advocate, contended that, there is contradiction in the evidence of PWs. 1, 2 and 3 and that the prosecution has failed to prove its case beyond all reasonable doubts and hence, the conviction of the petitioner for the offences under Ss. 279 and 304-A IPC is illegal. He submitted that the defence evidence has not been appreciated and that the finding of guilt recorded is perverse. Alternatively, he contended that the sentence imposed is highly excessive.

Sri Vijayakumar Majage, learned HCGP, on the other hand, supported the impugned Judgments and sought dismissal of the Criminal Revision Petition.

In view of the rival contentions and the record of the case, the point for consideration is :

Whether the conviction of the petitioner for the offences under Ss. 279 and 304-A IPC and the sentence imposed on him is justified?

PW-1/Palaksha is the complainant. Ex. P1 is the complaint. He is an eyewitness. PW-2/C.T. Erappa is also an eyewitness. PW-3/Shivappa is a witness to the spot mahazar Ex. P2. PW-4/Syed Riyaz Ahamad is the owner of Tractor-trailer and has not fully supported the prosecution. PW-5/Mahesha delivered FIR/Ex. P6 to the Court. PW-6/S.T. Sathisha is the Inspector of Motor Vehicles and his report is Ex. P8. PW-7/B.T. Rajashekara is witness to Ex. P2/spot mahazar. PW-8/H.M. Shylendra conducted part of the investigation. PW-9/Gavi Rangaswamy is the Investigation Officer. Accident occurred around about 1.05 p.m., and complaint was lodged at about 1.30 p.m. Ex. P3 is the inquest report and Ex. P4 is the postmortem report of deceased Subbegowda.

DW-1/Vijaya Kumar has said that, deceased Subbegowda while crossing the road, was hit by a tarry which spread away and as a result, he sustained grievous injury and the people who gathered, took him to the hospital. In the cross-examination, he has stated that 7-9 lorries went in a road and he did not noticed the number of lorry nor lodged any complaint before the police. He has admitted that he went to the accident spot after its occurrence.... According to him, after about 20-25 minutes, Gavi Rangaswamy came to the spot. He has denied the suggestion that at the time of accident and thereafter, the Tractor was at the spot.

DW-2/Vasu has said that, he knew deceased Subbegowda, who met with an accident caused by a Lorry, when he was coming from Syndicate Bank. He has said that, he saw the accident and gave water to Subbegowda, where after he died and that the Police took Subbegowda to the hospital. He has admitted that the accused was working under him, when he was doing contract work and that they have cordial relationship. In the cross examination, he has admitted that, after 10 minutes of the occurrence of the accident he came to the accident spot. According to him, DW-1 had reached the accident spot earlier than him.

Accused has got examined himself as DW-3. He has said that, he is a vehicle driver with one Babu and he was the driver of the Tractor-trailer. According to him, about two years back, he was carrying sand in the Tractor and after unloading, he noticed people having gathered at the accident spot and that, though he did not cause the accident to Subbegowda. He has admitted that DWs. 1 and 2 are known to him and that he was working as a driver of Tractor, belonging to CW-10/PW-4. According to him, on the relevant day, after unloading the sand near Mahal, he came to know about the accident.

The learned Trial Judge having noticed the defence evidence has held that the same does not inspire confidence. However, the learned Appellate Judge has neither noticed nor has appreciated the defence evidence/depositions of DWs. 1 to 3. Since, the learned Appellate Judge has not considered the defence evidence, the appeal filed being against Judgment of conviction and sentence of rigorous imprisonment, the statutory appeal has not been considered and decided after appreciation of the entire record of the case, both on facts and in law, in the correct perspective. The Judgment passed by the learned Appellate Judge being vitiated, warrants interference.

In the result, the petition is allowed and the impugned Judgment passed by the learned Sessions Judge is set aside and the matter is remitted to the Sessions Court for deciding the appeal, in accordance with law. In order to expedite the hearing and decision, both the parties are directed to appear before the Appellate Court on 29.9.2012 and receive orders.

The Appellate Court is directed to decide the appeal expeditiously and within a period of three months from the date of first appearance of the parties.

Contentions of both parties are kept open for consideration.