IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.492 OF 2011 Between:
Shri Krishna Aged about 53 years S/o Shankar No.74, “Ashwathnilaya” Lokanayakanagar Metagalli Mysore.
(By Sri G S Naveen Kumar, Advocate for Sri S B Mukkannappa - Advocate) And:
State by Nanjangud Town Police Mysore.
... Petitioner ... Respondent (By Sri Tejas, HCGP for Respondent) ****** This Crl.R.P. is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the order dated 12.10.2010 passed by the Additional Civil Judge and JMFC., Nanjangud in C.C.
No. 302/08 and order dated 28.02.2011 passed by the II-Additional District and Sessions Judge, Mysore in Crl.A.No.130/2010.
This petition coming on for Hearing, this day, the Court made the following:
O R D E R This criminal revision petition is directed against the judgment rendered by the Appellate Court in Crl.A.No.130/2010 dated 28.02.2011 dismissing the appeal by confirming the judgment of conviction and order of sentence held by the Trial Court in C.C.No.302/2008 dated 12.10.2010 sentencing him to pay a fine of Rs.500/- for offence under Section 279 IPC.
2. Factual matrix of the petition is as follows:
The petitioner / accused is a driver of the KSRTC bus in Mysore Division. The case of the prosecution is that on 12.10.2007 the petitioner - accused was driving the offending KSRTC bus near Ullahalli Circle in a rash and negligent manner and as a result dashed against a lorry bearing Regn.No.MEC-3433, thus causing the accident. Based upon the complaint filed by the complainant, a crime came to be registered in Crime No.171/2007 for the offence under Section 279 IPC. Subsequently, the investigation was taken up by the Investigating Officer who investigated the case and laid up a charge-sheet against the accused. Charges were framed against the accused and thereafter the prosecution proceeded to examine the witnesses cited in the charge-sheet. Accordingly, five witnesses were examined as PW-1 to PW-5 and documents at Exhibits P1 to P10 were got marked. Subsequently, the incriminating statements in the evidence of the prosecution were examined as contemplated under Section 313 Cr.P.C., whereby the accused has denied the truth of the prosecution evidence adduced so far. Subsequently, accused did not come forward to adduce any defence evidence and also did not get marked any documents on his part. Subsequently, the Trial Court in C.C.No.302/2008 heard the arguments advanced by the prosecution and so also the counsel for the defence and convicted the accused under Section 279 IPC sentencing him to pay a fine of Rs.500/-.
The said judgment in C.C.No.302/2008 was taken up in appeal before the First Appellate Court in Crl.A.No.130/2010, which came to be dismissed as on 28.02.2011 thus confirming the judgment passed by the Trial Court. It is these judgments which are under challenge in this revision petition seeking to allow the petition and thereby set aside the orders of the Trial Court as well as the First Appellate Court.
3. Learned counsel for the petitioner has taken me through the documents at Exhibits P1 to P10 and so also the evidence of PW-1 to PW-5. The petitioner has pleaded his innocence of committing the offence as narrated in the charge-sheet and has denied the averments made in the complaint filed by the complainant. It is his contention that the Trial Court did not properly appreciate the evidence on record and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused.
The learned counsel contends that except PW-1 and PW-5, the remaining three witnesses who were examined by the prosecution turned hostile. Therefore, absolutely there is no evidence to indicate that this petitioner – Accused drove the offending KSRTC bus in a rash and negligent manner and caused the accident as indicated in the charge-sheet laid by the Investigating Officer. The Trial Court in C.C.No.302/2008 mainly relied upon the sketch said to be drawn by the Investigating Officer marked as Exhibit P7. However, in Exhibit P7, nothing has been indicated as to when and at what time the sketch was said to be prepared by the Investigating Officer during the course of investigation. The Trial Court has erred in placing much credence to this exhibit and in turn holding the petitioner guilty of the charges.
4. It is the further contention of the learned counsel for the petitioner that the accident had in fact occurred on account of the rash and negligent driving of the driver of the lorry bearing Regn.No.MEC 3430, which is evident from the fact that the said driver has pleaded guilty before the Magistrate and was sentenced to pay a fine of Rs.500/-. The fine amount of Rs.500/- has also been paid by the driver of the said lorry. Hence, the learned counsel contends that the burden lies on the prosecution to prove whether the petitioner drove the KSRTC bus in a rash and negligent manner. PW-1 as well has deposed before court that drivers of both the vehicles were responsible for the accident.
PWs 1 and 5 having supported the case of the prosecution, the remaining witnesses namely PWs 2, 3 and 4 have turned hostile. Therefore, there are inconsistencies and contradictions in the evidence of these witnesses in order to establish the guilt of the accused under Section 279 IPC.
PW-1 has clearly admitted in his evidence that the accident had occurred at around 5.30 p.m. on route Mysore to Ooty towards Ullahalli Circle and he has admitted in his evidence that in between 5.00 p.m. and 7.00 p.m. there will be heavy traffic and generally vehicles move very slowly. PW-1 has specifically admitted in his evidence that petitioner – Accused No.1 did not drive the vehicle in a rash and negligent manner and accident had occurred on account of the rash and negligent driving of the driver of the lorry bearing Regn.No.MEC-3430. Therefore, the lorry driver has pleaded guilty and paid a fine of Rs.500/-. The Trial Court as well as the Appellate Court have not properly appreciated the evidence adduced by the prosecution in a proper perspective. Therefore, he contends that the impugned judgment rendered by the Trial Court which has been affirmed by the First Appellate Court be set aside and the petitioner be acquitted of the offences punishable under Section 279 IPC.
5. Per contra, learned HCGP for the State justifies the order passed by the Trial Court which has been affirmed by the Appellate Court as well by re- appreciation of the evidence of PW-1 and exhibited documents and hence prays for dismissal of this petition.
6. On a careful consideration of the contentions raised by both the parties, the evidence adduced by the witnesses and the material on record, it is seen that the prosecution has placed much credence on the evidence of PW1 and PW5. However, PWs 2, 3 and 4 who were subjected to examination have turned hostile relating to drawing up of a mahazar in the presence of the panch witnesses by the Investigation Officer and also these witnesses have not supported the evidence of PWs 1 and 5 which finds place in the record. However, the Trial Court in C.C.No.302/2008 has come to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. Though PW-1 has deposed to the effect that the accident occurred due to the negligence of both the driver of the lorry bearing Regn.No.MEC-3430 as well as the present petitioner – driver of the KSRTC bus, merely because the co-accused who is the driver of the offending lorry bearing Regn.No.MEC-3430 has pleaded guilty and was sentenced to pay a fine of Rs.500/-, it cannot be extended to Accused No.1 as well. The prosecution is required to independently establish the guilt of the respective accused. The ingredients of Section 279 IPC has not been established by the prosecution against the accused – petitioner in order to secure conviction.
At a cursory glance of the evidence of the witnesses, it is seen that there are inconsistencies and contradictions on the part of the prosecution. When there are inconsistencies and contradictions, the benefit of doubt shall accrue in favour of the accused. Hence, I am of the opinion that the prosecution has failed to establish the guilt of petitioner – Accused No.1 for the offence under Section 279 IPC, beyond all reasonable doubt. Consequently, the petitioner deserves to be acquitted. Accordingly, I proceed to pass the following:
ORDER Crl.RP.No.492/2011 preferred by Accused No.1 – petitioner under Section 397 Cr.P.C. is hereby allowed. Consequently, the judgment rendered by the First Appellate Court in Crl.A.No.130/2010 dated 28.02.2011 dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.302/2008 dated 12.10.2010 is hereby set-aside. The accused – petitioner herein is acquitted for the offence punishable under Section 279 IPC.
The fine of Rs.500/- paid by the petitioner – accused No.1 shall be refunded to him, on proper identification.
Sd/- JUDGE KS