IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.273/2017 Between:
B.K.Narayana Poojary S/o Koragappa OCC: Driver Aged about 62 years R/o Sapthagiri Nilaya Golithottu House and Village Puttur Taluka D.K.District – 574 201 … Petitioner (By Sri.R.B.Deshpande, Adv) And:
The State of Karnataka By Puttu Traffic Police Station Dakshina Kannada District-574 201 … Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 R/w 401 of Cr.P.C., pleased to set aside the judgment and order of conviction and sentence dated 01.02.2016 passed by the Principal Sr.Civil Judge and A.C.J.M., Puttur in C.C.No.394/2014 and the judgment and order dated 06.10.2016 passed by the V Additional District and Sessions Judge, D.K., Mangaluru, sitting at Puttur, D.K. IN Crl.A.No.5007/2016 (convicted for the offences P/U/S 279, 337, 304(A) of IPC) and acquit the petitioner of the charges leveled against him.
This Criminal Revision Petition is coming on for final hearing, this day, the Court made the following:
O R D E R This revision petition is filed by the petitioner- accused challenging the judgment of V Additional District and Sessions Judge, D.K. Mangaluru, sitting at Puttur, D.K in Criminal Appeal No.5007/2016 dated 06.10.2016 were under the judgment of conviction and order of sentence passed by the Principal Senior Civil Judge and A.C.J.M, at puttur in C.C.No.394/2014 dated 01.02.2016 was confirmed and appeal was dismissed.
2. I have heard the learned counsel for the petitioner-accused and the learned High Court Government Pleader for the respondent-State.
3. The main grounds urged by the learned counsel for the petitioner are that the impugned judgment of the appellate Court as well as the Court below are illegal, invalid and contrary to law and evidence on record. It is further contended that the Court below have not considered the facts and circumstances and simply mislead themselves by going through unnecessary allegations made in the complaint. Though the prosecution has miserably failed to prove the manner in which the alleged incident took place and the panch witnesses have not supported the case of prosecution, even then, the Court below ought to have acquitted the accused.
4. It is his further submission that witnesses have not stated the truth before this Court. They are all interested witnesses, only with an intention to claim the compensation, they are before the Court.
5. It is his further submission that PW-1 in his cross examination has stated that he is an Auto driver and he cannot say the speed of the lorry at that time of alleged incident and other eye witnesses have not supported the case of the prosecution. Without considering all the aspects, the trial Court has erroneously convicted the accused.
6. It is his further contention that the accused is not responsible and the rider of the motor bike has been examined as PW-1 is also deposed contrary to the said act. The said aspect has also not been looked into by the trial Court. On these grounds, he prays to allow the petition and to set aside the impugned order.
7. Per Contra, the learned High Court Government Pleader vehemently argued and submitted that PW-1 is the complainant and the eyewitness, he has categorically deposed in his evidence that the alleged incident taken place due to rash and negligent act of the accused. He further submitted that he has driven the said lorry in a zigzag manner and dashed to the motorcycle. He further submitted that the doctor who has examined the deceased has clearly stated that the death of the deceased was due to the accidental injuries. PW-7 is the RTO officer who has examined both the motorcycle as well as lorry and found the vehicles in good condition. All these materials clearly go to show that the Court below after considering the factual matrix have come to a right conclusion and have rightly convicted the accused. The petitioner-accused does not have good ground to interfere with the judgments of the trial Court. On these grounds, he prays to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and I have carefully gone through the judgments of the trial Court and the first appellate Court and the records pertaining to the trial Court.
9. PW-1 is the complainant as well as the spot mahazar panch to Ex.P-2. In his evidence he has deposed that on the alleged date of incident himself and the deceased were going on motorcycle from Hassan and the deceased was a pillion rider, they were proceeding on the left side of the road with 50 k.m speed per hour and when they reached the place of incident at about 9.15 p.m, from opposite direction a container lorry bearing Registration No.KA-19-C-1902 came in a high speed in a zigzag manner and dashed to the motorcycle. As a result of the same, he fell down and the pillion rider fell at the right side of the road and container lorry ran over the body of the said deceased, sustained grievous injuries and died on the spot.
10. He further deposed that they were taken to Mahaveer Hospital and there PW-6 came and recorded the statement as per Ex.P1. He has identified the signature on Exs.P1 to P3. During the course of cross- examination the entire suggestions have been denied. PWs-2 and 3 are the eye witnesses to the alleged incident and they have not supported the case of the prosecution and they have been treated as hostile, even during the course of cross-examination nothing has been elicited to substantiate the case of the prosecution. PW-4 is the doctor who has conducted the post mortem over the body of the deceased, also treated PW-1 and issued the wound certificate as per EX-P14.
11. PW-5 is the spot mahazar panch to Exs.P2 & P3 he has also not supported the case of the prosecution and they are treated as hostile.
12. PW-6 is the head constable who went to Mahaveer Hospital after receipt of the MLC report recorded the statement of the complainant-PW-1 and came back and registered a case in Crime No.48/2012 and issued the First Information Report as per Ex.P15. During the course of cross-examination, nothing has been elicited from the mouth of this witness. PW-7 is the RTO inspector who examined both the vehicles and issued the report as per Ex.P16. PW-8 is the investigating officer who investigated the case and filed the charge sheet against the accused.
13. Though it is contended by the petitioner that PW-1 is an eyewitness but he has not supported the case of the prosecution and he has not deposed with regard to rash and negligent act of the accused. But as could be seen from the evidence of PW-1 he has deposed before the Court below that the said container lorry was driven in a zigzag manner and he came and hit to the motorcycle, which was proceeding on the left side of the road. Ex.P3 is the sketch prepared along with the spot mahazar and Ex.P3 clearly goes to show that the motorcycle was proceeding on the left side of the road and the container lorry came and hit to the said motorcycle on the extreme right side of the road and as a result of the same the alleged accident has taken place. As observed by the evidence of PW-1, he has clearly stated that the said container lorry came in a zigzag manner and hit the motorcycle and when the Ex.P3 sketch shows alleged accident taken place on the right side of the road that too when the said motorcycle was coming from Hassan side towards left side of the road, then under such circumstances, that itself indicates that the driver of the said lorry has driven the said vehicle in a rash and negligent manner. Even the sketch, if it is seen it clearly attracts a Doctrine of Res- Ipsa Loquitor that means the facts themselves prove the rashness of the accused which is apparent. This evidence is corroborated with the evidence of PW-1, it also show that the said vehicle is driven in a rash and negligent manner. As could be seen from the contention taken by the learned counsel for the petitioner, in this petition one of the ground is that trial Court has not taken into consideration the contributory negligence on the part of the rider of the motorcycle that itself goes to show that the contribution is there on the part of the accused-petitioner. But he is contending only in respect of quantum of his contribution, which has been made. If really, the rider of the motorcycle is contributed, then under such circumstances he could have filed a complaint immediately. But no such complaint has been filed. In that light, the burden will be shifted on the driver of container. If he disputed the alleged collusion and other incident then under such circumstances, accused has to establish as contended by him.
14. In that light also the contention taken up by the learned counsel for the petitioner-accused does not stand to any reason. It is well settled proposition of law that the conviction can be placed even on the testimony of a sole witness, if the Court is fully satisfied that such witness is a truthful witness and he was present at the time of occurrence and has been proved beyond all reasonable doubt. The document Ex.P1-complaint clearly goes to show that immediately after the incident injured has been taken to hospital the deceased and PW.1 has been shifted to Mahaveer Hospital and MLC report has been sent to the police station and PW-6 went to the police station and recorded the statement and thereafter the complaint has been registered, that itself suffice that he was present at the time of alleged incident and he has not considered to be a false witness. Looking from any angle, though PWs-2 & 3 have not supported the case of the prosecution but the evidence of eyewitness clearly goes to show that he was present and the alleged incident has taken place due to rash and negligent act of the driver of the container lorry. Then under such circumstances it can be held that he has driven with rash and negligent manner and as a result of the same the deceased sustained severe injuries and died on the spot.
15. I have carefully and cautiously gone through the material placed, and also perused 313 statements of the accused, no explanation has been offered by the accused.
16. In that light, the trial Court as well as the first appellate Court by applying Doctrine of Res-Ipsa Loquitor, have convicted the accused. There are no good grounds made out by the petitioner-accused so as to interfere with the judgment of the first Appellate Court as well as the trial Court.
The petition is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
HB/-
Sd/- JUDGE