- 1 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100163 OF 2017 (397(CR.PC)/438(BNSS)) BETWEEN: SRI NIJAGUNA S/O. GOVINDAPPA HORAKERI, AGE: 40 YEARS, OCC. NIL, R/O. KADADI, TQ. GADAG, NOW R/AT: HUBBALLI RAILWAY QUARTERS OFFICE COLONY, HUBBALLI, DIST. DHARWAD. …PETITIONER (BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: THE STATE OF KARANTAKA CIRCLE POLICE INSPECTOR, TRAFFIC POLICE STATION, RANEBENNUR, DIST. HAVERI, BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD. …RESPONDENT (BY SRI PRAVENA Y. DEVAREDDIYAVARA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SEC. 401 OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 03.02.2016 IN CRL.A. NO.2/2011 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AT HAVERI SITTING AT RANEBENNUR CONFIRMING THE JUDGMENT AND ORDER OF SENTENCE DATED 16.12.2008 IN C.C.NO. 148 OF 2008 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND I ADDL. JMFC, RANEBENNUR FOR THE OFFENCE PUNISHABLE UNDER SECTION 304-A OF IPC AND 279, 338 OF IPC BY ALLOWING THE REVISION PETITION. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.14 15:18:25 +0530 - 2 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri Hanumanthreddy Sahukar, learned counsel for petitioner and Sri Praveena Y. Devareddiyavara, learned High Court Government Pleader for respondent. 2. The accused who suffered an order of conviction in C.C.No.148/2008 confirmed in Crl.A.No.2/2011 for the offence punishable under Sections 279, 304A and 338 of IPC and ordered to undergo simple imprisonment for a period of six months, is the revision petitioner. 3. Facts in the nutshell which are utmost necessary for disposal of the petition are as under: 3.1 A complaint came to be lodged with Ranebennur Traffic police alleging that on 28.11.2007 at about 3.45 a.m., the accused being the driver of Indica car bearing No.KA-25/7140 from Harihar towards Haveri in a rash and negligent manner and when he passed the place of incident, which is in front of shop of S.M. Adiveppanavar - 3 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 at Kurubageri cross of Ranebennur, in the process of overtaking a lorry, dashed against a lorry, which was coming from opposite side bearing No.KA-01/B-8175. 3.2 In the said accident, inmates of the car namely Prakash Deshpande and Aruna Deshpande sustained grievous injuries. Yet another inmate by name Vimala also sustained grievous injuries and she succumbed to the injuries on the spot. 3.3 It is also alleged that accused did not have driving licence and therefore, a case came to be registered against him for the offence punishable under Sections 279, 338 and 304A of IPC and under Section 3 read with Section 181 of Motor Vehicles Act. 4. On registration of the case, police thoroughly invested the matter and filed charge sheet against the accused. Learned Trial Judge took cognizance, secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held. - 4 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 5. In order to prove the case of the prosecution, in all 9 witnesses were examined. Among them, PW-3 to PW-5 who are eyewitnesses to the case of the prosecution have turned hostile to the case of the prosecution. However, 2 injured witnesses namely, Prakash and Aruna who have examined as PW-2 and PW-6 have supported the case of the prosecution so also the complainant who is the lorry driver. 6. The prosecution in all placed twelve documents which were exhibited and marked as Exs.P-1 to P-12. Among them, Ex.P-3 is the spot mahazar, Ex.P-2 is the complaint, Ex.P-4 is the sketch of the place of incident, Ex.P-6 is inquest mahazar, Ex.P-7 is the postmortem report, Ex.P-8 and 10 are the wound certificates wherein even the accused was injured. Ex.P-11 is the IMV report and Ex.P-12 is the FIR. 7. On conclusion of recording of the prosecution evidence, learned Trial Magistrate recorded the accused statement. In the accused statement for the last question, - 5 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 the accused has answered that since the date of accident was fag end of November, visibility of the road was poor as in the place of incident there was fog and all of a sudden, his vision got blackened out. Therefore, he was not negligent in driving and he is not responsible for the accident. 8. Thereafter learned Trial Judge heard the arguments of the parties and on cumulative consideration of the oral and documentary evidence placed on record by the prosecution, convicted the accused for the aforesaid offence and ordered six months imprisonment for the offence punishable under Section 304-A of IPC and fine for other offences. Sentences were also ordered to run concurrently. 9. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.2/2011. 10. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and by a considered judgment dated 03.02.2016, - 6 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 dismissed the appeal of the accused confirming the judgment of conviction and order of sentence. 11. Being further aggrieved by the same, accused is before this Court in this revision petition. 12. Sri Hanumanthreddy Sahukar, learned counsel for petitioner reiterating the grounds urged in the petition contended that the incident is beyond the control of a normal prudent driver of an automobile inasmuch as taking note of the fact that the incident has occurred on 28.11.2007, the explanation offered by the accused is plausible explanation which has not been properly considered by the learned Trial Magistrate and learned Judge in the First Appellate Court resulting in miscarriage of justice and sought for allowing the revision petition. 13. He would further contend that in the very same accident, accused is also injured. No normal person would venture to pledge his life for the sake of driving a car being the driver of Indica car bearing No.KA-25/7140. - 7 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 Therefore, no negligence can be attributed to the revision petitioner. 14. He would further contend that there was sufficient space and margin for the revision petitioner to overtake the lorry but upcoming lorry driver did not apply the break and accident has occurred. If the upcoming lorry driver had applied the break, accident would not have occurred and car would have easily passed through the road. Therefore, police filing the charge sheet against the driver of the car who is also injured in the incident is incorrect which has not been properly appreciated by both the Courts and sought for allowing the revision petition. 15. Lastly, as an alternate submission, Sri Hanumanthreddy Sahukar contended that in the event this Court were to uphold the conviction, the Court may consider reducing the imprisonment period by enhancing the fine amount reasonably inasmuch as in the very same accident, revision petitioner has also sustained injuries and sought for allowing the revision petition to that extent. - 8 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 16. Per contra, Sri Praveena Y. Devareddiyavara, learned High Court Government Pleader for respondent supports the impugned judgments. 17. He would contend that very fact that accused decided to overtake the lorry especially when he has parted an upcoming vehicle itself establishes negligence on the part of the accused-revision petitioner. If the road visibility was not there, accused should have taken extra care and caution especially overtaking a vehicle. 18. He would further contend that having regard to the width of the road as could be seen that there was sufficient margin for the 3 vehicles to pass through and the driver of the car has moved to the extreme right side. In the process of overtaking the lorry, dashed against the opposite lorry which was moving in the opposite direction resulting in accident. Because of the impact of the accident, one of the inmates viz., Vimala having sustained grievous injuries, died. The other three injured including the revision petitioner were shifted to the hospital and - 9 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 driver of the lorry which was moving on the left side bearing No.KA-01/B-8175 lodged the complaint with the Ranebennur Police. 19. He points out that spot sketch coupled with the explanation offered by the accused would go to show that who is the negligent and it is rash driving of the car by accused which has resulted in the accident and thus sought for dismissal of the revision petition. 20. Having heard the parties in detail, this Court perused the material on record meticulously. 21. On perusal of the material on record, following points would arise for consideration: 1) Whether the revision petitioner has made out a case that the impugned orders are suffering from legal infirmity, perversity and patent factual error so as to interfere in the revisional jurisdiction? 2) Whether the sentence is excessive? 3) What order? Regarding point No.1 and 2: - 10 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 22. In the case on hand, the accident is not in dispute, though for question No.2 accused has denied the accident. But his explanation to the last question referred to supra would go to show that the accident has occurred according to the accused, because of the poor visibility on account of fog situation in the place of incident. 23. One cannot be rule out possibility of the poor visibility having regard to the date of incident being 28.11.2007. If it is so, it was the bounden duty of the accused-revision petitioner to take extra care and caution in driving the car. 24. Admittedly, the incident has occurred while the accused-revision petitioner has tried to overtake the lorry which was moving in the same direction and he failed to completely overtake the lorry, he dashed against the upcoming lorry driven by the complainant. Admittedly, accused is also injured in the said incident and out of the three inmates of the car, one Vimala who sustained grievous injuries, succumbed to the spot whereas two - 11 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 others who were also inmates of the car viz., Prakash Deshpande and his wife Aruna Deshpande who have examined as PW-2 and PW-6 sustained grievous injuries. All the injured persons were shifted to hospital. 25. No doubt, in the case on hand, PW-3 and PW-5 who are also cited eyewitnesses to the incident have turned hostile to the case of the prosecution. However, only on the ground that independent eyewitnesses having turned hostile to the case of the prosecution would not result in doubting the case of the prosecution in toto inasmuch as the testimony of the injured eyewitnesses cannot be brushed aside as they are to be kept on higher pedestal. In the absence of previous enmity as against the revision petitioner, why would PW-2 and PW-6 and the complainant depose against the accused is the question that remains unanswered. 26. Moreover, in a matter of this nature, accused is bound to place his version on record. In the case on hand, accused has placed his version on record as referred to - 12 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 supra by contending that because of the fact that the incident has taken place in the fag end of November, there was a fog situation in the place of incident and all of a sudden his visibility has blackened out and therefore, the accident has occurred. What was the reason for blackening the vision is not explained by the accused except stating that it is a fog situation. If it is a fog situation, not only the headlights of the car were there but also the headlights of the lorry which was coming from the opposite side were also there. Even assuming that there was a dense fog, the headlights of both the vehicles were sufficient enough to spot that there is an upcoming vehicle. If it is so, being the professional driver, accused was bound to exercise extra care and caution in driving the car. 27. Such amount of care and caution having been exercised by the revision petitioner in the case on hand is not forthcoming. Therefore, argument put forward on behalf of the accused-revision petitioner that too, in the - 13 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 revisional jurisdiction about the factual aspects cannot be countenanced in law. 28. Insofar as sentence is concerned, both the Courts have taken into consideration the explanation offered by the accused, granted minimum punishment of six months for the offence punishable under Section 304-A of IPC though the punishment prescribed is on the higher side. 29. Further, no mitigating circumstances are placed on record except that accused also sustained injuries in the very same accident, this Court is of the considered opinion that the matter does not require further indulgence in this revision petition by this Court in further reducing the sentence. 30. In a matter of this nature, Probation of Offenders Act, 1958 is not applicable as is held by the Hon’ble Apex Court in the case of State of Punjab Vs. - 14 - NC: 2025:KHC-D:4545 CRL.RP No. 100163 of 2017 Saurabh Bakshi1. Thus, viewed from any angle, there is no merit in any one of the contentions urged on behalf of the revision petitioner. Accordingly, points No.1 and 2 are answered in the negative. Regarding Point No.3: 31. In view of the finding of this Court on points No.1 and 2, as above, following order is passed. ORDER Revision petition is meritless and hereby dismissed. Time is granted for the revision petitioner to surrender before the Trial Court till 15.04.2025. SD/- (V.SRISHANANDA) JUDGE NAA CT:PA LIST NO.: 2 SL NO.: 38 1 (2015) 5 SCC 182