The main legal point established is that the conviction for rash and negligent driving was upheld based on the evidence of injured witnesses and documentary evidence, while the offence under Section 279 of IPC was set aside due to its merger with Section 304-A of IPC.

JUDGMENT

H.P. Sandesh, J. - This criminal revision petition is filed to set aside the judgment dated 07.07.2005, passed by Civil Judge (Jr. Dn.) and JMFC, Belthangady, D.K. in C.C. No. 131/2001 and judgment dated 31.10.2012 passed by the Additional Sessions Judge, Fast Track Court at Puttur, D.K., in Criminal Appeal No. 246/2005.

2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

3. The factual matrix of the case of the prosecution before the Trial Court is that on 13.11.2000 at about 4.00 p.m., the accused being the driver of the bus, drove the same in a rash and negligent manner on Belthangady-Mangaluru Public Road and thereby, at Madanthyar of Malady Village, dashed against the auto rickshaw coming from opposite direction and caused grievous to the inmates of the auto rickshaw and one among them succumbed to the injuries. Based on the complaint, the police have registered the case, investigated the matter and filed the charge-sheet.

4. The prosecution, in order to prove the charges, examined the witnesses as P.Ws.1 to 7 and got marked the documents as Exs. P1 to P12.

5. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioner for the charges leveled against him and imposed substantive sentence of six months for the offence under Section 304-A of IPC and also imposed fine in respect of other offences.

6. Being aggrieved by the judgment of conviction and sentence, appeal is filed in Crl. A. No. 246/2005 before the Appellate Court. The Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment and order of sentence of the Trial Court vide order dated 31.10.2012. Hence, the present revision petition is filed.

7. Learned counsel for the petitioner would submit that, both the Courts have failed to consider the material on record and there are no materials to hold that the petitioner was guilty of the alleged offence. The Trial Court failed to take note of the fact that the spot mahazar and cause of accident are not proved in accordance with law. The learned counsel would also submit that the accident has taken place almost 22 years back and no purpose would be served in sending the petitioner to jail. Hence, the substantive sentence may be converted as fine.

8. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that, P.Ws.2 and 6 are the injured witness and their evidence has been believed by the Trial Court and the Appellate Court. Apart from that, the Trial Court has also taken note of the documentary evidence i.e., Ex. P7-IMV report, Ex. P10-Spot mahazar and Ex. P12-sketch. Hence, there are no grounds to interfere with the findings of the Trial Court.

9. Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:

(1) Whether the Trial Court has committed an error in convicting the petitioner for the offences under Sections 279, 337, 338 and 304-A of IPC?

(2) Whether the Appellate Court has committed an error in confirming the judgment of the Trial Court and whether this Court can exercise the revisional jurisdiction invoking Section 397 read with Section 401 of Cr.P.C.?

(3) What order?

Point Nos. (1) and (2)

10. Having heard the respective counsel and also on perusal of the material on record, P.Ws.2 and 6 are injured witnesses and the Trial Court, considered the evidence of P.Ws.2 and 6, who have also sustained injuries and wound certificates are also produced and marked as Exs. P5 and P6. In terms of Ex. P5, injury Nos. 1, 5, 6 and 7 are grievous in nature and on perusal of Ex. P6, it is seen that the injuries are simple in nature. The penal provisions of Sections 337 and 338 of IPC are also invoked. Apart from that, documentary evidence is also relied upon by the Trial Court.

11. On perusal of the judgment of the Trial