IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 991/2011 BETWEEN K. Mallikarjuna S/o Kalappa Aged 24 years R/o Kalalavadi Village Jayapura Hobli Mysore District.
(By Sri. M Sharass Chandra, Advocate) AND State of Karnataka By Jayapura P. S.
(By Sri. Thejesh .P, HCGP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 28.07.2011 passed by the I-Additional Sessions Judge, FTC-I, Mysore in Crl.A.No.16/2011 and order dated 20.01.2011 passed by the JMFC, (II-Court), Mysore in C.C.No.391/2008.
This Criminal Revision Petition Coming on for Hearing, this day, the court made the following:
ORDER This criminal revision petition is directed against the judgment rendered by the lower Appellate Court in Crl.A.No.16/2011 dated 28.07.2011 partly allowing the appeal and confirming the judgment of conviction and order of sentence rendered by the Court of JMFC (II Court) at Mysore in C.C.No.391/2008 dated 20.01.2011 for the offence punishable under Sections 279 and 304(A) of IPC.
2. The factual matrix of this petition is that on 24.1.2008 at about 7.45 p.m. near Doddakere situated on the main road between Mysore – Udbur near Udbur village, the accused being the driver of goods autorickshaw bearing Regn.No.KA-55-171 drove the said autorickshaw in a rash and negligent manner from Mysore side towards Udbur side and dashed against the motorbike bearing Regn.No.KA-09-EL-6934. As a result of the said impact, the rider of the Motorbike -
Chikkanna sustained head injury and succumbed to the injury while shifting to hospital for treatment.
3. Subsequent to the incident, by recording an FIR, the IO after thorough investigation filed charge sheet against accused. Thereafter, the trial Court took cognizance for the offence punishable under Sections 279 and 304(A) of IPC and issued summons to the accused. After receipt of summons, accused appeared before the trial Court and charges was read over to him, but he did not plead guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined PWs.1 to 8 and got marked documents as per Exs.P1 to P10. The incriminating statement of the accused as required under Section 313 of Cr.P.C. was recorded whereby he denied the truth of case of the prosecution. After hearing the arguments advanced by the learned A.P.P and the counsel for the accused and after appreciation of evidence placed on record, the trial Court convicted the accused for the offences punishable under Sections 279 and 304(A) of IPC and sentenced him to undergo SI for a period of three months and to pay fine of Rs.1,000/- and in default to pay the fine amount, to undergo SI for one month for the offence under Section 279 of IPC. Further, the accused was sentenced to undergo SI for a period of one year and to pay fine of Rs.1,000/-, in default, to undergo SI for a period of one month, for the offence under Section 304(A) of IPC.
5. Being aggrieved by the judgment and order of conviction and sentence passed by the trial Court in C.C.No.391/2008, the accused preferred an appeal before the lower Appellate Court in Crl.A.No.16/2011. The Appellate Court vide judgment dated 28.07.2011 while confirming the conviction for the offences punishable under Section 279 and 304(A) of IPC, modified the sentence to undergo SI for one month for the offence under Section 279 of IPC and to undergo SI for a period of six months for the offence punishable under Section 304(A) of IPC. But the fine imposed by the trial Court remained intact. Hence, this petition by the petitioner/accused by urging various amongst other grounds.
6. Learned counsel for the petitioner contends that the trial Court erred in passing the impugned judgment holding that the accused was guilty of the offence alleged against him for the offence punishable under Sections 279 and 304(A) of IPC. Further, the Courts below have not properly appreciated the inconsistencies and contradictions in the evidence of the prosecution witnesses. PW.1 is the complainant, but not the eye witness to the alleged accident and has been treated as a hostile witness. PWs.2 and 3 are said to be relatives of deceased Chikkanna and PW.2 did not withstood his version of his statement and he has been treated as hostile. The evidence of PWs.1 to 4 runs contrary to the evidence of PWs.5, 6 and 8. It is contended that though the accused did not caused any accident, he has been lugged in the alleged crime, but whereas he has helped the injured by admitting him to the hospital by looking into the humanitarian consideration,.
7. He further contends that no prima-facie case has been made out by the prosecution as against the accused. Despite that the Courts below convicted the accused for the aforesaid offences, which has led to miscarriage of justice. The inconsistencies, contradictions and omissions in the prosecution case are totally brushed aside by both the courts below while considering the evidence available on record. He further contends that there is no negligence or rash driving on the part of the petitioner causing the accident. On all these grounds, learned counsel for petitioner seeks interference of this Court by setting aside the judgment of conviction and order of sentence rendered by the Courts below.
8. Per contra, learned HCGP for the respondent – State contends that on appreciation of the oral and documentary evidence, the prosecution has proved its case beyond all reasonable doubt that on 24.1.2008, the accident in question took place in which deceased Chikkanna died and the accused has also not denied the same in his 313 statement nor in his defense. Due to the rash and negligent driving of the accused, the accident had occurred. PWs.2 and 3 who are the vital eye witness to the accident have stated that the autorickshaw driven by the accused came from the front portion and to the extreme right side of the road and at the relevant point of time, dashed to the vehicle ridden by deceased Chikkanna on the extreme left side of the road. The evidence of PW.5 and PW.8 who are the IO who conducted the investigation and laid charge sheet goes to show that due the rash and negligent driving of the accused, deceased Chikkanna succumbed to the injuries. Ex.P7 – the rough sketch is sufficient to prove the case of the prosecution that due to the negligent driving of accused the accident has been caused. The evidence of PWs.1, 2 and 3 coupled with the evidence of PWs.5 and 8 are corroborative in nature and supports the case of the prosecution. The trial Court on appreciation of entire materials available on record has passed the impugned judgment of conviction and order of sentence and the same has been rightly confirmed by the Appellate Court by partly modifying the sentence. Therefore, it does not call for interference of this Court. The petition being devoid of merits, is liable to be dismissed. On these grounds, learned HCGP sought for dismissal of the petition.
9. In this backdrop of the contentions as taken by the learned counsel for the petitioner and learned HCGP it is relevant to state that there is no dispute that the complaint as per Ex.P1 was lodged on 24.1.2008 at 9.45 p.m. by PW.1 - Keshavamurthy stating that at about 7.45 p.m. near Udbur tank one goods autorickshaw had dashed against the motorbike and people were gathered there and he also went to the spot and came to know that deceased Chikkanna who belonged to his village sustained grievous head injury due to rash and negligent driving by the driver of goods autorickshaw who came from wrong side and dashed against the motorbike ridden by Chikkanna. Thereafter, injured was shifted to the hospital in the same autorickshaw and after examination by the Doctor, the injured was brought dead. PW.1 has identified the fulcrum of the spot mahazar at Ex.P2. But this PW.1 was treated hostile by the prosecution as in the cross-examination he has stated that he has not seen the accident and on the say of other persons he came to know with regard to the occurring of the incident.
10. PW.2- Mahadeva is an eye witness to the accident and in his evidence has stated that when he was riding his bike from his village to Udbur, at that time a goods autorickshaw came from the front side in a high speed and dashed against the bike which was going in front of them. He came to know that the injured was Chikkanna who ridden the motorbike and sustained head injuries and he along with CW.1 took the injured to the K.R.Hospital in the autorickshaw who succumbed to the injuries. But in the cross- examination he has stated that he does not remember the date of accident and he did not see how many persons had gathered at the spot when the accident took place. He has admitted that on the left side of Udbur to Mysore road, there are potholes and due to the same the vehicles were being driven in slow manner. Further, he has stated that he had not seen the victim and he has not seen whether the accident took place due to the negligence of deceased Chikkanna. This witness was treated hostile by the prosecution, but it cannot be said that his evidence is trust worthy.
11. PW.3 Siddanayaka is said to be relative of deceased Chikkanna and has also admitted in the cross-examination that there are potholes on the left side of the road from Udbur to Mysore, the question of rash and negligence for driving the offending goods autorickshaw does not arise.
12. PW.4 – Ravi who was along with the accused person in the autorickshaw has completely turned hostile to the case of the prosecution. Consequently, the theory of the prosecution appears to be clouds of doubt.
13. PW.6 – Swamy is the witness to the Spot Mahazar as per Ex.P2 and he has stated in his evidence that he does not know on what date the spot mahazar was drawn and also does not know the schedule as described in the spot mahazar and he cannot specifically state that the place of the accident is 14 feet width.
14. PW.7 – Devaraja is another witness to Ex.P2 spot mahazar, but in cross-examination he has admitted that he is the relative of CW.1 and both are belonging to the same village and as he went to the scene of crime, the police had obtained signature on Ex.P2.
15. PW.5 – Dharmappa is the IO has stated that on obtaining the IMV report, inquest mahazar and after completion of the investigation filed the charge sheet against the accused.
16. PW.8 – Mahesh Kumar is the IO in part who registered the case against the accused in Crime No.8/2008. He conducted the spot mahazar as per Ex.P2 and seized the vehicle bearing No.KA-09-EL-6934 Hero Honda and drew rough sketch as per Ex.P7. He also conducted the inquest mahazar as per Ex.P4 in the presence of CWs.5 and 6 and seized the goods auto under Ex.P8–seizure mahazar. In his cross-examination he has admitted that the complainant has not seen the accident but he had heard about the same from the persons who had gathered at the scene of crime.
17. Having regard to the oral and documentary evidence on record, PW.1 – complainant has stated with regard to the accident that took place on 24.1.2008 in his complaint as per Ex.P1. PW.2 and 3 are the eye witnesses to the incident. PW.6 and 7 are the witnesses to the fulcrum of the mahazar at Ex.P.2 conducted by the IO. PW.8 is the IO in part who has stated with regard to the registration of the case against the accused in Cr.No.8/2008. Ex.P5 is the IMV report and Ex.P6 is the post mortem report.
18. It is relevant to note that PW.1 – the author of the complaint is said to be hearsay witness and he is treated as hostile to the fulcrum of Mahazar at Ex.P2. PW.2 who is the eye witness to the incident in his cross- examination has admitted the relationship of the deceased Chikkanna and also admitted that he has not properly seen that, whether the accident took place due to the fault of the accused or the deceased Chikkanna. PW.4 who was along with the accused person in the autorickshaw has completely turned hostile to the case of the prosecution. The evidence of PW.8 – IO who conducted the investigation in part, which runs contrary to the evidence of PWs.1 to 4. Mere because the mahazar witnesses have been withstood to the fulcrum of the mahazar at Ex.P2, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt. There is no positive, corroborative and cogent evidence to probabilise that this petitioner/accused being a driver of the goods Autorickshaw has caused the accident in question due to which deceased succumbed to the injuries. Therefore, the trial Court has misdirected as well as misinterpreted the evidence of PW1 to PW4 put forth by the prosecution and held conviction against the accused for the aforesaid offences, which requires interference of this Court.
19. There is no dispute about the death of deceased – Chikkanna and so also the injuries inflicted on dead body. The motor vehicles inspector inspected the Autorickshaw and issued IMV report as per Ex.P5, but PW.5, the IMV inspector did not made any effort to verify the motor cycle said to be ridden by deceased Chikkanna, if any damage that has been caused to the motor bike. These are all the material evidence that has not been appreciated by the Courts below in a proper perspective manner. Therefore, it requires intervention of this Court by re-appreciating the entire evidence on record as provided under Section 386 of Cr.P.C if not, there shall be miscarriage of justice to the accused.
20. At a cursory glance of evidence of prosecution witnesses and in the totality of the circumstances of the case, PW.8 who is an IO in part and conducted the inquest proceedings as per Ex.P4 and so also Ex.P7 – rough sketch and seizure Mahazar as per Ex.P8 but his evidence runs contrary to the evidence of PW.1 to PW.4 examined on behalf of the prosecution. The trial Court has not appreciated the entire evidence on record in a proper perspective manner and so also, the entire documents at Exs.P1 to P8. Therefore, it is said that the trial Court as well as the first Appellate Court have misdirected and misinterpreted the entire evidence placed by the prosecution. Hence, I am of the opinion, in the totality of the circumstances of the case and as well as mitigating circumstances, the present case requires intervention of this Court as there is no credit worthy evidence facilitating the prosecution to secure conviction.
For the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER The criminal revision petition filed by the petitioner under Section 397 read with 401 is hereby allowed. The judgment rendered by the I Addl.Sessions Judge, Mysore in Crl.A.No.16/2011 dated 28.07.2011 and the judgment of conviction and order of sentence dated 20.01.2011 rendered by the JMFC(II Court), at Mysore in C.C.No.391/2008, are hereby set-aside. Consequently, the petitioner/accused is acquitted of the charges leveled against him.
Sd/- JUDGE DKB