IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.839 OF 2011 BETWEEN:
SMT. ANNAPOORNA D/O. SHIVAMURTHY, AGED 34 YEARS, NO.32, 6TH CROSS, KIRLOSKAR COLONY, GRUHALAKSHMI LAYOUT, BASAVESHWARANAGAR, BANGALORE.
... PETITIONER (BY SRI S.G. BHAGAVAN, ADVOCATE) AND:
THE STATE OF KARNATAKA BY MALLESHWARAM TRAFFIC POLICE, BANGALORE.
... RESPONDENT (BY SRI K.P. YOGANNA, H.C.G.P.) * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 15-7-2011 PASSED BY THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-XIV, BENGALURU, IN CRIMINAL APPEAL NO.255 OF 2011 AND ORDER DATED 30-3-2011 PASSED BY THE METROPOLITAN MAGISTRATE TRAFFIC COURT-III, BENGALURU, IN CRIMINAL CASE NO.3171 OF 2006.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 12-12-2018 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
O R D E R The revision petition is filed by the petitioner under Section 397 read with Section 401 of the Code of Criminal Procedure to set aside the judgment of conviction and sentence dated 30-3-2011 passed by the Metropolitan Magistrate Traffic Court – III, Bengaluru, (hereafter referred to as ‘the trial Court’), and confirmed by the Additional Sessions Judge and the Fast Track Court - XIV, Bengaluru, (hereinafter referred to as ‘the Sessions Judge’) in Criminal Case No.255 of 2011 dated 15-7-2011.
2. The ranks of the parties before the trial Court are retained for the sake of brevity.
3. The factual matrix of the case of the prosecution in brief is that on 9-4-2006 at about 1:00 p.m., the petitioner-accused was the Driver of the maruthi car, bearing Registration No.KA-02 P-9332, drove the car in a rash and negligent manner and dashed to the motorcycle, bearing Registration No.KA-04 V-9191. Due to which, P.W.1, Sri N. Eshwar, rider of the motorcycle, sustained simple injuries. The pillion rider, Smt. Kusuma Jalisathigi, wife of P.W.1, sustained grievous injuries and later, she succumbed to injuries in the hospital. Police investigated the case and filed charge-sheet against the accused for the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code (for short, ‘the I.P.C.’) and Section 134(b) read with Section 187 and Section 146 read with Section 196 of the Motor Vehicles Act (for short, the M.V. Act).
4. After taking cognizance, the trial Court recorded the plea of the accused and she pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 13 witnesses as P.Ws.1 to 13 and got marked 12 documents as per Exs.P.1 to 12 and after closing of the evidence of the prosecution; the statement of the accused under Section 313 of the Code of Criminal Procedure has been recorded. The accused examined 3 witnesses as D.Ws.1 to 3 and got marked 2 documents as per Exs.D.1 and 2. The learned trial Judge convicted the accused. The accused was sentenced to pay Rs.1,000/- for the offence punishable under Section 279 of the I.P.C, in default of payment of fine, to undergo simple imprisonment for thirty days, to pay fine Rs.500/- for the offence punishable under Section 337 of the I.P.C., in default of payment of fine, to undergo simple imprisonment for thirty days, to pay Rs.5,000/- for the offence punishable under Section 304A of the I.P.C., in default of payment of fine, to undergo simple imprisonment for six months, to pay Rs.500/- for the offence punishable under Section 134(b) read with Section 187 of the M.V. Act, in default of payment of fine, to undergo simple imprisonment for thirty days and to pay Rs.1,000/- for the offence punishable under Section 146 read with Section 196 of the M.V. Act and in default of payment of fine, to undergo simple imprisonment for sixty days. Being aggrieved by the same, the accused preferred an appeal before the Sessions Court. The learned Sessions Judge, after hearing both side, by judgment dated 15-7-2011 dismissed the appeal by confirming the judgment of conviction and sentence passed by the trial Court.
Being aggrieved by the same, the accused preferred the present revision petition before this Court on various grounds.
5. Sri S.G. Bhagavan, the learned counsel for the petitioner-accused, contended during the course of the arguments that the Sessions Judge has erred in formulating the point for consideration. The Sessions Judge has not applied his independent judicial mind to the material on record. The Sessions Court ought to have given the benefit of doubt, but mechanically brushed aside the evidence of D.Ws.2 and 3 as they are interested person. The delay in submitting the F.I.R. to the trial Court is fatal to the case of the prosecution. The Sessions Court might have framed the points in respect of proving the case by the prosecution against the accused. The trial Court considered all the five points together and jumped into conclusion that the prosecution has proved the case beyond all reasonable doubt. From the evidence of D.Ws.1 to 3, the Court cannot come to the conclusion that due to the fault of P.W.1, the accident occurred. The trial Judge ought to have come to the conclusion that the prosecution has failed to establish the guilt of the accused. The evidence of witness was not properly analysed. They are vital contradictory material in favour of the accused and further contended that the none of the ingredients of Section 134(b) and Section 146 of the M.V. Act are available in the records and no questions were posed to the accused under Section 313 of the Code of Criminal Procedure. The approach of the Courts below is totally injudicious, arbitrary and against all canons of criminal justice. Hence, he sought for setting aside the judgment of the Courts below.
6. Learned counsel for the accused strenuously argued by denying the case set up by the Courts below and the learned High Court Government Pleader for the State contended that they are eyewitnesses to the incident. Both the Courts below considered these evidence and rightly convicted the accused for the aforesaid offences and the same does not call for any interference by this Court.
7. Heard both counsels.
8. The contention taken by the learned counsel for the accused that none of the ingredient of Section 134(b) and Section 146 of the M.V. Act are available on record, the trial Court did not pose any question to the accused under Section 313 of the Code of Criminal Procedure and in the absence of the same, they had no jurisdiction to convict the accused under the said offences. On perusal of the statement recorded, on 29-
1-2010, under Section 313 of the Code of Criminal Procedure by the trial Court which shows the learned Magistrate has not posed any question in respect of non-holding of the Insurance Policy at the time of the accident and not taken any care to shift the injured to the hospital as required under Section 134 of the M.V. Act. But the evidence on record goes to show that accused herself shifted the injured to the various hospital. This aspect was not properly considered by both the Courts below. Therefore, the findings under Section 134(b) read with Section 187 of the M.V. Act do not attract and it calls for interference by this Court and requires to be set aside.
9. With regard to Section 146 of the M.V. Act, the necessity for insurance against third party risk. The evidence on record goes to show that at the time of accident, the accused vehicle does not cover the insurance and she has also not produced any Insurance Policy to the Court or before the Investigating Officer to show that the vehicle was covered the risk. Even the accused has not produced or marked such document. Therefore, the trial Court rightly came to the conclusion that the accused committed the offence under Section 146 read with Section 196 of the M.V. Act.
10. With regard to findings in respect of the offences punishable under Sections 279, 337 and 304A of the I.P.C, the judgment of the trial Court is based upon the evidence of prosecution witnesses.
11. P.W.1, Sri N. Eshwar, is the eyewitness to the incident and the rider of the motorcycle. In his evidence, he has clearly stated that on the date of the incident, he was riding the motorcycle and his wife was the pillion rider. When they reached Malleshwaram 18th Cross, a maruthi car driven by the accused came in a rash and negligent manner and hit the motorcycle from backside. He also talks about shifting the injured to the hospital. They went to the Manasa Nursing Home. Thereafter, the injured was shifted to KIMS hospital for further treatment. Later, she was referred to NIMHANS hospital due to head injury and again, she was shifted to Mallya hospital. On 12-4-2006, she succumbed in the hospital. He also stated that the deceased was under coma/unconscious for three days. He clearly identified the accused as the Driver at the time of the accident. Except little discrepancy in the cross- examination, there is nothing to disbelieve the evidence of P.W.1.
12. P.W.2, Sri Basavaraju, is the friend of P.W.1 and an eyewitness to the incident. He has clearly stated about the accident committed by the accused.
He also identified the accused, who was the driver of the car on that day. Though in the cross-examination, he has stated that he was 4 to 5 feet away from the motorcycle of P.W.1, but nothing is elicited by learned counsel for the accused. Though this witness stated the manner in which the accident took place due to mistake of the Driver of the car and he also witnessed to the spot mahazar and identified the signature. There is nothing elicited in the cross-examination to disbelieve the evidence of P.W.2.
13. Another witness P.W.7, Sri Ravi Prakash, is the friend of P.W.1 and he was following P.W.1 in his vehicle. He has clearly stated about rash and negligent driving of the accused and hit to backside of the motorcycle of P.W.1. Due to which, the deceased sustained injuries and she was shifted to the various hospitals and after admitting the deceased in Mallya hospital, he went to the Police Station and lodged the complaint as per Ex.P.5. In the cross-examination, he has clearly stated that he was following the vehicle of P.W.1 in the distance of 35 to 40 feet and he has stated that car dashed to the tool box of the motorcycle. Though near the accident spot, there was a road hump, etc., but no where it is stated in the evidence of defence or Ex.P.7 - sketch in order to prove that there was a road hump. This witness clearly stated that since P.W.1 was engaged in providing treatment to his wife, he went to the Police Station and lodged the complaint. There is nothing elicited to disbelieve the evidence of P.W.7. The evidence of P.W.7 is challenged by the learned counsel for the accused on the ground that P.Ws.1 and 7 are working in the same Department, which cannot be accepted since this witness is a natural witness. After attending some function, both P.Ws.1 and 7 were returning together. The accident has occurred in the presence of P.W.7 cannot be doubted which corroborates the evidence of P.W.1.
14. The learned counsel for the accused contended that though F.I.R registered on the date of the accident, but it was reached to the Court after two days and the same was not explained by the prosecution. F.I.R. is marked as Ex.P.8. On perusal of the F.I.R., the same was received by the Magistrate on 11-4-2006, whereas complaint has been filed and registered on 9-4-2006. There is two days delay in receiving the complaint. Therefore, learned counsel for the accused contended that the delay in filing the F.I.R. was not explained by the prosecution. Therefore, the evidence of the prosecution is doubtful. There was no explanation with the Investigating Officer in respect of delay in sending the F.I.R. to the Court. Therefore, urging the ground, delay in submitting the F.I.R to the Court cannot be accepted. Merely two days delay in sending the F.I.R. to the Court cannot be held fatal to the prosecution case as the next two days could be holiday, like second Saturday and Sunday. Therefore, the contention of the learned counsel for the accused that there was delay in sending F.I.R. to the Court is fatal to the prosecution case is not accepted.
15. On the other hand, P.W.11, Sri Sridhar, who is another witness, has clearly stated in his evidence about the accident. Though lengthy cross-examination is made by the learned counsel for the accused, but nothing is elicited in the cross-examination to disbelieve the said witness. Though he reached the spot after the accident, but he has clearly stated that he was 30 feet behind the motorcycle that met with an accident. Therefore, the evidence of this witness cannot be disbelieved that he has reached the spot, after few seconds. Therefore, the evidence of this witness cannot be discarded that he was not the eyewitness.
16. On perusal of the record, sketch and Motor Vehicles Inspection Report clearly corroborates the case of the prosecution. Though the learned counsel for the accused contended that there is no scratch mark on the car of the accused and damaged done to the motorcycle of P.W.1, but the Motor Vehicles Inspection Report, Ex.P.6, clearly shows that both the vehicle were tested. The damages to the motorcycle are side box frame dented, scratch marks on side box (carrier), fuel tank dented, front brake lever scratch marks and the maruthi car also found scratch marks on front bumper and marks on front left side door. Ex.P.3, Forensic Lab Report, clearly goes to show the scratch mark and dent mark were matching with each other. Opinion of the expert clearly says the transfer of paint has not taken place between both the vehicles. The dent mark found on the side box frame center pipe of the motorcycle could be caused by the front bumper of the car, since the scratch mark found on the front bumper of the car physically fit to the dent mark found on the side box frame center of pipe of the motorcycle. It clearly shows that scratch mark on the bumper of the car of the accused matches with the damages done to the motorcycle of P.W.1. This document is not disputed by the learned counsel for the accused in the trial Court. These documents corroborate with the evidence of the prosecution witnesses. Learned counsel for the accused contended that there is no dispute with regard to injuries sustained by the deceased and P.W.1 in the accident, but he has disputed only rash and negligent driving of the accused. Though the accused herself examined as D.W.2, she also examined her mother as D.W.3 and another witness as D.W.1. Their evidence shows that accident was not at all committed by the accused. D.W.1, Sri Prakash, has stated that he has seen the accident on that date. P.W.1 drove the motorcycle in a high speed, they fell down and sustained injuries. At that time, the accused came in the car and thereafter, the injured was shifted to the Manasa hospital in the accused car. He drove the car of the accused while shifting the deceased to the hospital. He has stated the due to the fault of P.W.1, the accident occurred. In the cross-examination, he has admitted that when he was taken the injured to the hospital, he never mentioned the vehicle number of the accused and he has pleaded ignorance in respect of the name of the vehicle and name of the owner of the car. To corroborate his evidence, D.W.2 - accused has also given the evidence that when she came near the Malleshwaram 18th Cross, there was hump on the road, the rider of the motorcycle lost control of the vehicle, fell down and sustained injuries. When reached that place in order to help the injured, she has given water to the injured and on humanity ground, she has given the car to one of the auto Drivers for shifting the injured to the hospital and her mother also went to the hospital. She has stated that there was no accident caused by her car. To believe her evidence, she relies on Ex.P.7, sketch of the accident. The sketch of the accident does not reveal any road hump in 18th Cross or 4th main of the Malleshwaram. The evidence of the accused cannot be accepted and to introduce a new story about the road hump and P.W.1 lodged the complaint on 12-4-2006. If at all, the accused has not caused the accident, then shifting the injured in her car cannot be accepted. Learned counsel for the accused contended that on humanity ground and as good samaritan, she has shifted the injured to the hospital, but absolutely there is no evidence before the Court to show that accident has occurred due to the negligence of P.W.1, but not by the accused. The accused has also given complaint as per Ex.D.2 on 12-4-2006. These documents go to show that to avoid the later consequences; the accused went to the Police Station and lodged the complaint on 14-4-2016, at 12:50 p.m. If at all, the accused has not committed the accident, then she would have complained about the same to the Police on the very same date, but this complaint came to be filed by the accused only after the death of the deceased in the hospital. Therefore, the evidence of D.Ws.1 to 3 and Ex.D.2 cannot be accepted.
17. On perusal of the evidence on record, the trial Court rightly came to the conclusion that the prosecution has proved the case against the accused on all reasonable doubt. The Sessions Court has also given reasons for confirming the judgment and sentence passed by the trial Court.
18. Though in the judgment of the First Appellate Court, there are some discrepancies in framing the points for consideration without raising the point about proving the case of the prosecution beyond reasonable doubt, with regard to the offences, it is only irregularity in the judgment which can be corrected and it would not vitiate the trial. It is only a curable defect, under Section 464 of the Code of Criminal Procedure, for not having raised proper point for consideration by the Sessions Court. The First Appellate Court might have framed the point for proving the guilt of the accused beyond all reasonable doubt. The First Appellate Court is nothing but the continuation of original Court, but the judgment of First Appellate Court goes to show that the learned Sessions Judge re-appreciated the evidence of the prosecution one after the another, but he has not raised any point for consideration. Therefore, the contention of the learned counsel for the accused cannot be accepted that the judgment of the First Appellate Court vitiates the proceedings for non-raising of proper point. It is well settled principle of law by the Hon’ble Apex Court in various judgment that this Court being the revisional Court cannot interfere or re- appreciate the evidence of the prosecution, when there is concurrent findings of the trial Court as well the Appellate Court, except where the judgment of both the Courts are arbitrary, illegal and without propriety, it requires interference by this Court.
19. On perusal of the material on record and the appreciation of the evidence of the prosecution by the trial Court, in my considered view, the trial Court has not committed any error or illegality while passing the judgment under Section 279, 337 and 304A of the I.P.C. However, there is no Medical Certificate of P.W.1 marked by the Court below and no Doctor has been examined to show that P.W.1 also sustained injury in the accident. Without Medical Certificate and non- examination of the medical witness, the findings given by both the Courts below under Section 337 of the I.P.C. cannot be accepted. Likewise, when the accused herself helped the deceased in shifting to the hospital in her car, finding guilt for the offences punishable under Section 134(b) read with Section 187 of the M.V. Act also cannot be accepted and hence, the accused is entitled for acquittal for the offences punishable under Section 337 of the I.P.C. and under Section 134(b) read with Section 187 of the M.V. Act.
20. The Courts below have rightly come to the conclusion that due to rash and negligent driving, the accident has occurred on 9-4-2006 at 1:00 p.m., as a result of which, the deceased sustained injuries and succumbed to death. Therefore, there is nothing to disbelieve the evidence of the prosecution witnesses and both the Courts below have not committed any error or illegality in respect of the offences punishable under Sections 279 and 304A of the I.P.C. Hence, the revision petition requires to be allowed in part by confirming the judgment of the Courts below, except for the offence punishable under Section 337 of the I.P.C. and Section 134(b) of the M.V. Act.
21. The revision petition is partly allowed. The judgment of conviction and sentence passed by the Courts below for the offences punishable under Section 337 of the I.P.C. and Section 134(b) read with Section 187 of the M.V. Act is set aside and the sentence passed for the offences punishable under Sections 279 and 304A of the I.P.C. and Section 146 read with Section 196 of the M.V. Act is hereby confirmed.
A copy of this order be sent to the Courts below along with the lower Court records.
SD/- JUDGE kvk