IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.421 OF 2011 BETWEEN:
MR. ACHUTHA S/O. KRISHNAPPA, AGED 37 YEARS, RESIDING AT ‘AMBA’, ONTIANGADY, SOMWARPET TALUK, KODAGU DISTRICT.
... PETITIONER AND:
(BY SRI JEEVAN K., ADVOCATE) THE STATE OF KARNATAKA BY THE POLICE OF PANAMBUR POLICE STATION, DAKSHINA KANNADA, MANGALORE.
(BY SRI S.T. NAIK, H.C.G.P.) * * * ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 3-1-2011 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MANGALORE, IN CRIMINAL APPEAL NO.160 OF 2009 AND ALSO SET ASIDE THE ORDER DATED 7-3-2009 PASSED BY THE J.M.F.C. (II COURT) MANGALORE, IN CRIMINAL CASE NO.4788 OF 2008.
THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein filed this revision petition under Section 397 of the Code of Criminal Procedure being aggrieved by the judgment of conviction and order of sentence dated 7-3-2009 passed by the J.M.F.C. (III Court), Mangalore, in Criminal Case No.4788 of 2008 and confirmed by the I Additional Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Appeal No.160 of 2009 dated 3-1-2011.
2. The petitioner is the accused and the respondent – State is the complainant before the trial Court. The ranks of the parties before the trial Court are retained for the sake of convenience.
3. The factual matrix of the case of the prosecution in brief is that on 1-11-2008 at about 4:30 p.m., the petitioner/accused being Driver of the lorry, bearing Registration No.KA 19 5538, drove the lorry in a rash and negligent manner from Panambur Service Station to N.H.17 and has taken the lorry to the opposite side of the one way road, after filling the diesel in the service station and dashed against the motorcycle, bearing Registration No.KA 19 X 8318, which came from Baikampady towards Mangalore. Due to which, the rider of the motorcycle, Prasad, went under the wheels and sustained injuries. Later, he succumbed to injuries while shifting to the hospital. After receipt of a complaint, the Police registered the case and issued F.I.R. and after investigation, charge-sheet came to be filed. Accused pleaded not guilty and claimed to be tried. Prosecution has examined six witnesses as P.Ws.1 to 6 and got marked nineteen documents as Exs.P.1 to 19. After completion of the evidence, the statement of accused under Section 313 of the Code of Criminal Procedure has been recorded, where he denied all the incriminating circumstances, but not entered into any defence.
4. After hearing both side, the learned trial Judge found guilt and convicted the accused for the offences punishable under Sections 279 and 304A of the Indian Penal Code (for short, ‘the I.P.C.’). The accused was sentenced to undergo rigorous imprisonment for one month for the offence punishable under Section 279 of the I.P.C. with a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for ten days and further, sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 304A of the I.P.C. with a fine Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for thirty days. Being aggrieved by the same, the accused preferred an appeal before the Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Appeal No.160 of 2009 and after hearing both side, the Appellate Court dismissed the appeal by confirming the judgment of conviction and sentence passed by the trial Court. Being aggrieved by the same, the accused preferred this appeal.
5. Sri Jeevan K., the learned counsel for the petitioner/accused, submits that the trial Court erred in convicting the petitioner only based on the circumstantial evidence even though the alleged eyewitnesses have not supported the case of the prosecution and purely based upon the presume existence of certain facts under Section 114 of the Evidence Act, the petitioner was convicted, which is illegal. Therefore, he prays for setting aside the judgment of conviction and sentence passed by the trial Court.
6. Per contra, Sri S.T. Naik, the learned High Court Government Pleader for the respondent - State, contended that the presence of P.Ws.1 to 3 cannot be doubted. They have clearly stated that the accident has occurred, after the accused filled the diesel in the Service Station and drove the lorry on the one way towards Suratkal. There is negligence on the part of the petitioner by driving the lorry to the opposite side of the one way road. Therefore, he has supported the judgment of Courts below and prays for dismissal of the same.
7. On perusal of the records, admittedly, the prosecution has examined six witnesses and got marked nineteen documents. The accused was not disputed that he was the Driver of the lorry, bearing Registration No.KA 19 5538, and he has also not disputed that he came from Panambur Service Station to N.H.17 road, after filling the diesel. The petitioner has disputed only regarding rash and negligent driving on his part. It is also not in dispute that the vehicle driven by the accused came in contact with motorcycle, bearing Registration No.KA 19 X 8318, ridden by the deceased, Prasad, came from Suratkal towards Mangalore and vehicle was collided. Due to which, the deceased sustained injuries and he died while shifting to the hospital.
8. P.W.1, Sri Vishwanath, Manager of Panambur Service Station, lodged the complaint before the Police. He states that the accused, after filling of the diesel in the petrol bunk, drove the lorry towards Baikampady side, opposite to the one way. Hence, the accident has occurred. As per his evidence, he came to the spot, only after the accident and later, he intimated to the Police Station. On his information, Police registered a complaint against the accused as per Ex.P.1. P.W.1 also speaks about the mahazar prepared by the Police on the spot. The spot is just from of the Service Station.
9. P.W.2, Sri Ashok, is stated to be an eyewitness and was traveling in a bus at the time of the accident. He has stated that accident has taken place in front of the petrol bunk between 4:30 p.m. and 5:30 p.m. and the lorry was parked facing towards Udupi road and he has also stated motorcycle was also parked near the lorry. Accident took place when motorcycle came from Udupi side, which clearly suggests that the accused drove the lorry towards Baikampady side, opposite to the one way. During cross-examination, nothing has been elicited from this witness. Though this witness turned hostile and has denied the statement made before the Police, the evidence in support of the case of the prosecution can be relied in this case. P.W.2 has denied the witnessing of the accident. He has clearly stated about the accident spot, vehicle involved in the accident parked on the side of the road and deceased met with an accident.
10. P.W.3, Sri Bhaskar, speaks about the accident and has denied the rash and negligent driving of the accused in the cross-examination. The Additional Public Prosecutor could not elicit anything from his mouth. However, this witness also speaks about the accident and accident was not in dispute.
11. P.W.4, Sri B. Manohar, is a circumstantial witness, and states that the deceased was working under him and he came to know that the deceased died in the accident.
12. P.W.5, Sri Shivakumar, is the Police Head Constable, who received the complaint and registered F.I.R. and visited the spot, prepared panchanama and seized the lorry and handed over the investigation to P.W.6. He has clearly stated the vehicle was parked on the opposite direction of the one way.
13. P.W.6, Sri Madhu, is the Assistant Sub- Inspector, clearly states that he carried out part of the investigation. He states that the vehicle was parked on the opposite direction of the one way.
14. Ex.P.17 is the sketch, which clearly goes to show the manner in which the accused drove the lorry from Panambur Service Station to N.H.17 in the opposite direction of the one way.
15. Learned counsel for the petitioner also contended that road was not one way and there is divider found on the middle of the road.
16. Though there is no eyewitness in respect of the rash and negligent driving, but circumstantial witnesses clearly speaks about the manner in which the accident has taken place due to the negligence act of the accused, who was suppose to take south, but he took the vehicle to north side, which is one way.
17. Both the Courts below, especially the Appellate Court by relying on the provisions of Section 114 of the Evidence Act held the presumption of fact, accident was committed by the accused. Even perusal of the entire record of the Courts below and especially the photographs, Exs.P.3 to 8 clearly goes to show that spot of the accident and the circumstances reveal that there is negligence on part of the accused, while taking the vehicle towards one of the busiest road. It is settled principle of law by the Hon’ble Supreme Court in the catena of cases that the Driver should take precautionary measures to avoid the accident. Here in this case, the very fact of the accused, prima-facie, goes to suggest that he has taken the vehicle on the wrong side, due to which, the accident has occurred. Thereby, the prosecution has proved the case beyond all reasonable doubt and the Courts below have rightly convicted the accused for the alleged offences. Therefore, there is no error or illegality committed by the Courts below to interfere by this Court. Accordingly, the petition is dismissed.
Registry is directed to send the records with a copy of this order to the concerned Court, forthwith.
SD/- JUDGE kvk