IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.226/2017 Between:
Soukath Ali M.E. S/o Late Ismail, Aged about 31 years, R/at 3rd Division, Gonikoppal, S.Kodagu-571 301. … Petitioner (By Sri. Ajay Prabhu.M, Advocate for Sri. Sachin B.S., Advocate) And:
State of Karnataka Rept. By Gonikoppal Police, Rept. By SPP, High Court of Karnataka, Bengaluru-560 001. … Respondent (By Sri. Thejesh.P, HCGP) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., pleased to set aside the judgment and order dated 19.01.2017 passed by the II Additional District and Sessions Judge, Kodagu, Madikeri sitting at Virajpet in Crl.A.No.24/2014 and judgment dated 11.03.2014 passed by the Civil Judge and J.M.F.C., Ponnampet in C.C.No.543/2012 and consequently allow the appeal as prayed for.
This Criminal Revision Petition is coming on for Final Hearing, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of II Additional District and Sessions Judge, Kodagu- Madikere (Sitting at Virajpet) in Crl.A.No.24/2014 dated 19.01.2017, whereunder, the appeal was dismissed by confirming the judgment of conviction and order of sentence passed by the Court of Civil Judge and J.M.F.C., Ponnampet in C.C.No.543/2012 dated 11.03.2014.
2. I have heard the learned counsel for the petitioner/accused and learned High Court Government Pleader for the respondent/State.
3. The factual matrix of the case before the Courts below are that on 05.03.2012 at about 1.15 p.m., the accused being the driver of Maruthi omni van bearing registration No.KA-05-1730 drove the said van in a rash and negligent manner endangering the human life and dashed against the motor cycle bearing registration No.KA-12-J-4303, as a result of the same, the pillion rider-Dinesh sustained injuries and succumbed to the injuries in the hospital. On the basis of the complaint, a case has been registered. After investigation, charge sheet has been filed and thereafter, learned Magistrate took cognizance of the offence, secured the presence of the accused and therein, the plea was recorded. The accused pleaded not guilty and he claims to be tried. As such, the trial was held.
4. In order to prove the case of the prosecution, it has got examined 11 witnesses as PWs.1 to 11 and got marked 16 documents at Exs.P1 to P16. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused denied the incriminating materials and neither he produced any defence evidence nor marked any documents. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offences punishable under Section 279, 337 and 304-A of IPC.
5. It is the contention of the learned counsel for the petitioner/accused that the learned trial Judge as well as the 1st Appellate Judge without proper appreciation of the evidence on record, has erroneously came to a wrong conclusion and wrongly convicted the accused. It is further contended that the Court below has erred in looking into the evidence of the prosecution. Without there being any such evidence, both the Courts below have blindly accepted the evidence of the prosecution only on assumptions and presumptions have wrongly convicted the accused. It is his further submission that there is no nexus between the death of the deceased and injuries caused in the said accident. The deceased has sustained minor injuries and death is not due to the injuries suffered in the accident. This specific contention has not been properly appreciated by the Courts below. It is his further submission that PW.2 is not an eyewitness to the alleged incident and he is the permanent resident of Thithimathi and his presence in the place of accident is also doubtful. On these grounds, he prayed to allow the petition, to set aside the impugned order and to acquit the accused.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that PW.1 is the rider, he is the eyewitness to the alleged incident and he has filed the complaint. In his evidence, he has clearly stated that the driver of the omni van has come to the extreme right side of the road and hit to the motor cycle. That itself clearly goes to show that the accident occurred due to rash and negligent act of the accused. It is his further contention that the Doctor who conducted Post Mortem over the body of the deceased has clearly deposed before the Court that the death is due to shock and hemorrhage as a result of injury to vital organ like liver and lungs. That itself clearly goes to show that there is a nexus between the injury and death of the deceased. It is his further submission that other witnesses have fully supported the case of the prosecution. If the entire case is looked into, the alleged accident has taken place due to rash and negligent act of the petitioner/accused. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the lower court records secured in this behalf.
8. It is the case of the prosecution that on 05.03.2012 at about 1.15 p.m., due to rash and negligent driving of the driver of Maruthi omni van, the alleged accident has taken place and in the said accident, pillion rider-Dinesh succumbed to the injuries. In order to prove the case of the prosecution, the prosecution has got examined 11 witnesses as PWs.1 to 11 and got marked 16 documents at Exs.P1 to P16.
PW.1 is the complainant, who is also an eyewitness and he is the rider of the motor cycle. In his evidence, he has deposed that he has seen the accused before the Court and on 05.03.2012 at about 02.00 p.m., he was proceeding towards Konanakatte on his bike bearing registration No.KA-12-J-4303 and while returning, the accused was driving one Maruthi omni van bearing registration No.KA-05-1730 and the said omni came to the extreme right side of the road and dashed to motor cycle and the said vehicle was driven with high speed. The said accident has taken place in a public road. He further deposed that he has suffered with injuries and the deceased also suffered with injuries and he was taken to the hospital in jeep and when he was taking treatment in the hospital, his statement was recorded and a complaint was registered as per Ex.P.1. He has also signed the spot mahazar at Ex.P2. This witness has been treated partly hostile and in the cross-examination, nothing has been elicited to substantiate the case of the prosecution. Even during the course of cross-examination, nothing has been elicited by the accused.
PW.2 is said to be another eyewitness and in his evidence, he has deposed that he has seen the accident with his own eyes and at the time of accident, Maruthi omni van proceeded on the right side of the road and he can identify the motor bike and Maruthi omni van. During the course of cross-examination, nothing has been elicited from the mouth of this witness.
PW.3 is the owner of the vehicle he has not supported the case of the prosecution and he has been treated as hostile.
PW.4 is the mother of the deceased, she is not an eye witness to the alleged accident. She is only hearsay witness.
PW.5 speaks about the death of the deceased in the accident and she has identified the dead body.
PW.6 is the inquest mahazar pancha. PW.7 is the Doctor who treated the injured and conducted post mortem of the dead body of Dinesh and he has opined that the death is due to shock and hemorrhage as a result of injury to vital organ like liver and lungs.
PW.8 is spot mahazar pancha to Ex.P2. PW.9 is inquest mahazar pancha to Ex.P10. PW.10 is the Investigating Officer who investigated the case and filed the charge sheet. PW.11 is the A.S.I., who recorded the statement of complainant and registered the case and issued the FIR as per Ex.P15.
9. On going through the evidence of PWs.1 and 2, nowhere the said witnesses have spoken with regard to rash and negligent act of the accused at the time of alleged accident. Section 279 of IPC attracts only when if the prosecution establishes the fact that the said vehicle has been driven on the public road in a rash and negligent manner so as to endanger the human life. But as could be seen from the evidence of PW.1, nowhere he has stated the same, he has stated that the said vehicle came on the right side of the road and hit to the motor cycle and the said vehicle came with great speed. By going through his evidence, he has only deposed that the said vehicle came with a great speed and caused the accident. Speed is not the criteria to come to the conclusion that the said vehicle has been driven rashly and negligently. Even as could be seen from the evidence of PW.2, he has deposed that he has seen the accident with his own eyes and at the time of accident, the said Maruthi van was coming on the right side of the road. Motor bike was coming on the left side of the road. Apart from that he has not stated the fact that the alleged accident has taken place due to rash and negligent act of the driver of the Maruthi van. In the absence of such material, it cannot be held that the alleged accident has taken place due to rash and negligent act of the petitioner/accused. Though these witnesses have not stated anything with regard to rash and negligent driving, the 1st Appellate Court as well as the trial Court without there being any evidence have come to the wrong conclusion that the accident occurred due to rash and negligent driving of the accused. The said observation is erroneous and it is not based on any evidence. Without there being any evidence, the observation made by the Court below is not sustainable in law. Merely because the accused was driving the said Maruthi omni van, only on that basis, it cannot be inferred that the said vehicle was driven rashly and negligently. No concrete evidence is available to draw any other inference. Insofar as PW.2 is concerned his evidence is contrary to what has been stated by him in the Statement recorded under Section 161 of Cr.P.C. Both the Courts below, without considering any material placed on record have come to a wrong conclusion and wrongly convicted the accused without there being any basis. The trial Court during the course of its order has observed that the accused was holding Learner License, which is marked as Ex.P14. Merely because he was holding Learner License, it cannot be held that he was rash and negligent. Without substantial evidence, the Court cannot convict the accused on presumptions and assumptions. The inference drawn by both the Courts in this behalf is not correct.
10. Looking from any angle, it does not repose any confidence to accept the evidence and hold that the said accident is due to rash and negligent act of the petitioner/accused. Though, the prosecution has got examined the owner of Maruthi omni van, mother of the deceased, relative of the deceased, panch witnesses and the Investigating officer, even if their evidence is perused, no further progress is going to be made to prove the guilt of the accused beyond all the reasonable doubt.
11. On going through the orders of the trial Court as well as the 1st Appellate Court, without proper appreciation of the evidence and looking into the legal ingredients have passed the impugned order. As such, both the judgments of Courts below are liable to be set aside. I have carefully and cautiously gone through the judgment of the 1st Appellate Court as well as the trial Court. They have committed grave error in not properly appreciating the evidence and come to a right conclusion as such it requires interference.
12. In the light of the discussion held by me above, the petition is allowed and the judgment passed by the Court of II Additional District and Sessions Judge, Kodagu-Madikere (Sitting at Virajpet) in Crl.A.No.24/2014 dated 19.01.2017, whereunder, the appeal was dismissed by confirming the judgment of conviction and order of sentence passed by the Court of Civil Judge and J.M.F.C., Ponnampet in C.C.No.543/2012 dated 11.03.2014 is set aside and the petitioner/accused is acquitted of the charges leveled against him.
If the petitioner/accused has paid any fine amount before the Court below, the same may be refunded to the accused on proper identification and acknowledgment.
Bail bond and surety bond stands cancelled.
Sd/- JUDGE NR/-