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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 23?" day Of November, 2009
1% E FO RE
THE HON'BLE MR JUSTICE JAWAD -.
Criminal Revision Petition N0 248 Of 1
BETWEEN:
AMBU
S/O PONNAYYA
AGE : 40 YEARS
R/O NEAR ASHOKA TALKIES
KUNNIGOLI
MANGALORE TALUK, DR' _ PETITIONER
{By Sri K C13I1é1AI_1c11,1:*a11:I1;~.?V;1t1f1«._1:VX'1*AI.::%;;f.i~.HH,_Adv]
AND: "" - .
THE STATE OF = 1
REPTD BY PUBLIC PROSECUITOR
MANGALORP; " _ ' A . = V RESPONDENT
1 {By'SI1{iVRajEI Subrahmanya Bhat, HCGP]
C'R1I.rIIN.AL REVISION PBZTITION IS FILED UNDER SECTION
S9? --.R/'WV4=O'1I. OE'_'I'I-IE CODE OF CRIMINAL PROCEDURE, PRAYING
A;'€gIDE'~1'H.~E JUDGMENT AND SENTENCE DATED 5--09--2008,
PASSED 'By. PRESIDING OFFICER, FAST TRACK COURT.
MANGALORE. DK, IN CRL APPEAL NO 410 OF 2005, CONFIRMING
THE"JUDGMENT DATED 23-11-2005 PASSED BY THE CIVIL JUDGE
[JR DN] 18: JMFC, MOODABIDRI, EN CC N0 1211 OF' 2005.
x CONVICTIN THE PETITIONER OF THE) OF F ENCESPUNISRABLE
UNDER SECTIONS 279, 337, 338 ANND 304{A] IPC AND E'FC..
a'*?'*
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THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING. THIS BAY, THE COURT DELIVERED THE FOLLOINING:
ORDER
Convicted accused is in revision petition
judgment in Criminai Appeal No 41;O.».of’200’§,”Vtj’g§:t’edIE§9»§2QVO8,.
passed by the Judge, Fast Track Cogurt,’iiv’éanIga_l’ore,
the judgment dated 23-11-2Io o5_m CC:_No_iI2_’1A’i_;’o~t…2*o0S, ed
the file of Civil Judge (Jr Dn)VAga.nId»v.}_Ni”EC, E~./fo’od.b’idrI, convicting
the petitioner–accused° tor. punishable under
Sections 279, 3:9, 338″and:l3o§l(A»)_V.1i5C.«,I I I
2. learned counsei for the
petitioner;a’cc:éise_d’I3.a’rncl::’S:ri Ra};IaWSubrahmanya Bhat, learned
HCGP appe’aring_fo:’the~resp’ondent–State, in supplementation
of the .materi at on reco rd I I
“petition’e’r””was prosecuted, tried and uitimately
oifflthe ailegation that on 16–1~1998 at around
driving a bus run under the name and style
I’-r.’AdityaT,__ibearing Regn No KA 19 – 6363 in a rash and
“”Iruve_gijiA’gent manner and while passing on the rnain road at
at
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Panjinadka in Adhikarabettu village of Mangaiore taluk, he
lost controi due to his rash and negligent act and consequent
to which the bus hit against to residential to
one Upendra N Prabhu. Due to the impact__o’f~.th’e:co’,liislioin,a’~__
portion of the house of said Pr’a_bh’u-
and passengers in the bugs _4sust’a.in”ed injVu~i.ies’, two
persons lost their lives. was
submitted to the ljpendrawiil Prabhu, on
the basis of which, a charge sheet was
filed.
4. ToT__,su’sta”m5<.:the prosecution examined 32
witness_es«_andV"got.:rnar'i<ed*=.48"documents. The accused put
up a defence vofltotall "dié'_nial. The trial court analyzed the
evide,n'ce~ and Vkeepingévin mind the evidence on record, found
,'th'at':Vitsuch a nature as to nullify the incriminating
1"aspe,ctsV"* ilfiqariljihfelsting from the clear evidence of the
V «V pros'ecu"tion'."" Thus, the petitioner–accused was convicted for
Huh'itlfitiieioffelnces punishable under Sections 279, 337, 338 and
-3 of IPC and consequential imposed sentence of varying
W’
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periods of imprisonment. Assailing the judgment and
conviction, the petitioner–accused preferred an vabpeai in
Criminal Appeal No 410 of 2005, reiterating…the__’_i:4n!ea..’ of
innocence, which also came to be rejected__by..th:e”~jVodgr’nent’i__
dated 5-9-2008. Aggrieved byiboth”these-I’ljuidlgmelnlts,V’:theT.___
petitioner-accused is in revision here.
5. Sri K Chandranath iearned”:–counsel for the
Detitionerwaccused coVn’tend_s’A”m5/§.’h that the accused
had not hit against itself shows that
the accident» his)vgnejgllilglence, but due to the
reasons__beyon’d:lV*1.:hiVs’ normai course, if the
negligence ‘waVs”‘Vi”ne”caus,e”‘of’ accident, road users will be the
first victirns. ” VInVl’th’e.’.inst”a-nit case, no road user was affected,
on other the vehicle traversed from the main road
and;carne.Ai-nicontact with a building. This happened because
Vfa”cAti*g–th’.atV.the accused wanted to save the lives of the
pas’s”eng–eVrs”‘and traversed the vehicle from the main road, as
was uncontrollable.
aisglx
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6. Learned counsel would further submit that the
prosecution has not established firstly that the accused was
the driver of the bus. He submits that in the.~«corn’:p_iia’.irjiit’,on
the basis of which the prosecution was init.iat:ed., alfpersonf
name Sathya was said to be the d’riAveir”‘«of’1’tl’1~e:”b,u.;§,,K_3i’heT~.__
petitioner is not Sathya, but his is A’ $;:.:,,,’ceV’Vtiie
complaint had indicated only’on:eSathva.VaAsthewntdriver, there
was no question of without sufficient
materiai evidence regard_i’ng_points out to the
evidence of to and 32, to submit
that none the identify of the driver
and not established. Learned
trial jumd’ge’–loVst’ vital aspect in the prosecution
evidence while:’con’victing’:the petitioner-accused. In appeal,
“V”~..,thdug’ha.j’isame grounds were urged, but the same were
iearned judge of the first appellate court.
The.refo_re,lleawrned counsel for the petitioner submits that
V’-».taking”i.nto consideration the grounds urged, this court may
gx”V’set,_ars’icEe the judgments impugned and set free the accused.
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7. Sri Raja Subrahmanya Bhat, learned HCGP, appearing
for the respondent-State, drawing my attention””*.to the
evidence on record, submits that the convi.ctiAo’n’_””0f° the
accused is in order as he was driving theWofi’end1iA_ng’4venicie;~__
He submits that the prosecution «part’iex.arnined’V_i?iiii25T~.._
Muralidhara Saralava, Dowerof attorney holiierfgfof”th”tef.owriegr
of the offending bus, to estab’i’i’s:h’»th\at. a notice
issued under Section of*’the:i91oto’i–..gvehéiciesflvixct, 1988, a
repiy was sent furnishinggthefd’etaiis;-of ‘Afti_1e’.vehic|e, driver and
aiso the invo,i~venj:ent accident wherein
Detitionersi. ”’He also refers to the
eviderjcemofi;i§\ii/35′},”VMu:ku.:nda the investigating officer,
I who had. issued the owner of the offending bus.
He als_o reffers to.’.the’~. evidence of PW7 Kusuma Shetty and
.–,,-_,P’W”3,.”‘:RatVhn’a,,’Saiifaénfwvho have spoken about the accident as
the accused was the driver of the iH–fated
that the identify of the driver is, therefore,
V’-».unquesti__onable and as the accident is not disputed, it is for
“‘*V’th.e_pietitioner to show how it occurred. Since he tendered no
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explanation, the evidence on record as stood is unchalienged
and it should be accepted.
8. Keeping in mind the submissions
sides, I have examined the record. l\i_eces’sa’r’iiv,’;vthe e-merice.
on record has to be considered ~”see~. ”
established that the petitionerjwzas the idrivehgjoi’ii;«;ie..xrehiclein
question. In this regard,greuferen.c_»e grade to the
evidence of PW1 UpVe”ndr22. had lodged the
compliant. Accordhing :to”hi:?h, situate on the side
of theflsaccident occurred on
about 8.00 am. He has
identified and has also stated that it was
proceedin’g:_’_’at hit against a portion of his
house vPW3V”Ra.th_naA:Saiian, a passenger of the vehicle, has
:As:pol§en_j__fact that on the date of accident, she had
i”‘ooa~rded and was travelling to go to Kolekkadi, and
the’_.””dri\;4e.r”viias driving the vehicle at a high speed and at
SCOO am on the day of accident lost controi and hit
~’ againlst a house. She identified the petitioner by his iook
gmiix
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while in the witness box. Though she was questioned in the
cross-examination that she was seeing the accusedfor the
first time in the court, she had denied those..sug__g’ejsti’ons.
PW7 — another witness by name Kusuma l’has*also’=__
tendered similar evidence and :;sdhel::depo«sedA’t_ha.t~._sh’Ve,_,vwas’4~.__ “V
travelling in the ill–fated bus, on thiegday ofgatcildeht ‘and she
sustained injuries due to the””n’i»nipact of~.th”e~.’accideVnt. She
also identified the accused driver ovfithve vehicle in
question.
9. Ther6,.,ié7~.,, ?_€O”‘w.the”‘:e:vidence of the other
witnesses, Saralaya had appeared
beforeijthe terms deposed that he was the
power of the owner of the bus in question.
He has ,.produ’ce_d”‘ExP’9 —- reply to the notice issued under
the MV Act, furnishing the Particulars of the
reply, apart from the details regarding the
bus”,-. it .i_s’mentioned that the accused was the driver of the
J’sai,d__ bus at the relevant point of time, who was called by
Sathya @ Ambu. The said evidence directly
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estabiishes that the petitioner-accused was the driver of the
vehicie in question. The accused has not disputedthat he
was employed by the owner of Adidya bus ».He
does not dispute the report submitted fh’efncé’;__
merely because the compiaint
driver as Sathya does not appears”to”be on,V.s’uch’ a n°atuire”as
to nullify the effect of the direct..Vevidence~.0nrecord.
10. Therefore, I am””‘of–thefview”Vtha:t’~the trial court has
rightly acceptedsuch ev’id’erice.”aijnd.V_heid:..that the accused was
the driver __0f.,tl*.e_ ti-.mevvof_ accident, which, the
appelia,nt..co’urt’, i’;-a:s,.a:so .ri’ght$s,i.i/\nfirmed.
11. aspects of the case, it is
noticed thwat-.even: ithou_gh~~”the petitioner-»accused has said that
-‘W,_he._’:ifi3as,>__riothing’Atovv–d-swith the accident, but the prosecution
V.V,,’wit’ri’esses’have-.cieariy stated that he was driving the bus at
high”bspeed}7i__ :’The fact that the vehicle having hit against a
portifonfiorf the house of the complainant cieariy indicate that
“:f”thVei””~bus was moving in a rash and negligent manner.
Otherwise, the accused couid have averted the accident. The
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punishable under Section 279 IPC and six months
Imprisonment for the offence punishable unde,r”-.Section
304(A) IPC. As far as the offences under
Sections 337 and 338 are concerned, thedtrilali
imposed any separate imprIsonn’1ent’,’onathe .lb_als_iVsVvVthat’1the’.__
petitioner–accused has been
offences punishable under and Is_PC. ’tilt
Is also brought to mvv*.notIc,e””tha_t afterrrthe conviction
recorded by the trial coullrtalnrd first appellate
court, the has~?.b:’e_en tdaxen into custody and
is in As such, as of now, the
petitioneltarclcusedffdnaslj’ft-.,n’de’ro’on’e;imprisonment for a period
of more’«tha.n approximately five months. If
at ailthe rnax’imu’,m s_en”tence is imposed, his imprisonment
be fora peri’od”of six months for the offence punishable
,_”uv’nci_er,.”304(A) IPC. Taking into account all these
circ__’umsta.n”cesi:; explained by the learned counsel for the
“i.,,petitio’n_er;, I am satisfied that while confirming the conviction
“def, petitioner–accused for the aforesaid offences, the order
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regarding sentence needs to be modified by scaling down it to
the period of imprisonment already undergone by
13. In the result, the conviction of the petiitiori«e_r-.a_ct:used
for the offences punishable under Sections;2*7El,]3:3′?:, 3,33,:’a’nd””‘~-0
304(A) IPC, as recorded by the trial of’
2005 dated 23-11-2005 and -a.ffirmez_:l”‘inV ap;{J:ie.a!,..,EV.nVV jcriiminie-»l
Appeal No 410 of 2005 dated ‘is’co_nfirn9i:ed.
14. However, the ord’er’regl’ar(iingflseintence is modified. For
the offence .Vpu:ni.shablVe”:’ ‘u~nde,~,:”5§ctio«n” 304(A) IPC, the
imprisonmentisp so-afiyed six months to the period of
imprisipnmenit’fie-,iVre_a’dy”u_nd.er-gone by the petitioner–accused.
Rest of th.eorde’r- sentence is maintained. Since the
acc’u.jsede.,has.V aiready undergone imprisonment for a period of
Viirnore “four months and say, up to five months, the
is ordered to be released forthwith, if his
cust-0dy.”is -not required in any other case.
xv'”,j=.i5f.i—._,,’Registry is directed to send a copy of the operative
hportiion of this order to the officer in–charge of the prison,
843/
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where the petitioner–accused is under detention to Venable the
release of the accused as ordered in this revision “pte’ti.t;i–onv,.
16. The revision petition is disposed of i
‘Rik ”