IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION No.1446 OF 2010 BETWEEN:
SRI. ARMUGAM NAYANAR, SON OF ASAKKI, AGED ABOUT 22 YEARS, RESIDING AT MELLATERU STREET, KARANU KADUGRAMA, SUTTAMALLI POST, THIRUNELAMELI TALUK AND DISTRCT, TAMIL NADI. ... PETITIONER [BY SRI. P.M.SIDDAMALLAPPA, ADVOCATE] AND:
STATE OF KARNATAKA BY KUDUR POLICE STATION, MAGADI TALUK, RAMANAGARA DISTRICT. ... RESPONDENT [BY SRI. M.DIVAKAR MADDUR, HCGP] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 03.09.2009 PASSED BY THE PRL.CIVIL JUDGE [JR. DN.] & JMFC., MAGADI IN C.C. NO.390/2005 AND ALSO JUDGMENT AND ORDER OF CONVICTION DATED 09.11.2010 PASSED BY THE DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN CRL.A. NO.27/2009 AND ACQUIT THE PETITIONER OF THE OFFENCE P/U/S 279 AND 304-A OF IPC. AND ALLOW THIS CRL.R.P. WITH EXEMPLARY COSTS.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is filed by the accused challenging the concurrent findings recorded by the Courts below, wherein the trial Court convicted him for the offences punishable under Sections 279 and 304-A of IPC., which was confirmed by the appellate Court, thereby dismissing the appeal filed by the accused.
2. The brief facts of the case are;
On 14.06.2005 at about 4.30 p.m., the accused being the driver of a tanker lorry bearing reg. No.KA-01/D-6177 was driving the said lorry from Kunigal towards Bengaluru on N.H.48 and near Ummarsapalya, he drove the said vehicle in a rash and negligent manner so as to endanger human life and while trying to overtake a vehicle which was proceeding in front of him, he lost control over the vehicle and came towards right side of the road and hit a motorcycle bearing reg. No.KA-02/EC-4400 coming from the opposite direction, on account of which the rider of the said motorcycle viz., Narasegowda sustained grievous injuries and succumbed to the said injuries on his way to the hospital.
On the complaint lodged by one Gangaraju as per Ex.P5, a case was registered against the accused for the offences punishable under Sections 279 and 304-A of IPC. After completion of investigation, charge-sheet was filed against the accused for the aforesaid offences.
Before the trial Court, the prosecution got examined P.Ws.1 to 10 and got marked Exs.P1 to 7. The defence of the accused was one of total denial. However, he has not chosen to lead any evidence on his behalf.
The trial Court after considering the oral and documentary evidence adduced by the prosecution, convicted the accused for the offences punishable under Sections 279 and 304-A of IPC. The accused was sentenced to pay a fine of Rs.900/- for the offence punishable under Section 279 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of 15 days. The accused was sentenced to undergo simple imprisonment for a period of 6 months for the offence punishable under Section 304-A of IPC and to pay a fine of Rs.2,000/- and in default of payment of fine, he was sentenced to undergo simple imprisonment for a period of one month.
3. The appeal preferred by the accused before the District and Sessions Judge at Ramanagara came to be dismissed.
4. The contention raised by the learned counsel for the petitioner is that the Courts below have erred in recording the impugned conviction and sentence based on the testimony of the prosecution witnesses, wherein their testimony is not corroborated with each other. The statement of the complainant recorded by the Investigating Officer at the earliest point of time is contrary to the contents of the complaint and the further statement. The evidence given by P.W.6 stands contrary to his written complaint. That the Courts below have failed to consider the spot mahazar and spot sketch i.e., Exs.P1 and 7 and the same is contrary to the evidence of the sole eye-witness P.W.6. Further, the evidence of P.W.6 is not supported by any other material evidence and the evidence on record is not sufficient to prove the guilt of the accused and therefore the Courts below erred in convicting the accused.
The learned High Court Government Pleader would contend that both the Courts have appreciated the evidence and material on record in its proper perspective and rightly convicted the accused for the offence punishable under Sections 279 and 304-A of IPC. He submits that though P.W.4 has not supported the case of the prosecution, however, the evidence of P.W.6, the complainant and an eye- witness to the incident and also the spot sketch marked at Ex.P7 clearly establishes the prosecution case. He submits that there are no good grounds to interfere with the concurrent findings of the Courts below and accordingly seeks to dismiss the revision petition.
5. It is the case of the prosecution that on 14.06.2005 at about 4.30 p.m., the accused being the driver of the tanker lorry bearing reg. No.KA-01/D-6177 drove the same in a rash and negligent manner from Kunigal towards Bengaluru and near Ummarsabpalya on N.H.48, while overtaking a vehicle which was proceeding in front of the said tanker, lost control over the vehicle and came towards right side of the road and hit the motorcycle bearing reg. No.KA- 02/EC-4400 resulting in the rider of the motorcycle succumbing to the injuries and thereby the accused committed offences punishable under section 279 and 304-A of IPC.
6. To establish the guilt of the accused, the prosecution has examined P.Ws.1 to 10. P.W.1 is the Panch- witness to Ex.P1-spot mahazar. P.Ws.2 and 3 are the panch- witnesses to Ex.P2-inquest mahazar. P.W.4 is the owner of the tanker lorry. P.W.5 is another panch-witness to Ex.P2- inquest mahazar. P.W.6 is the complainant and an eye- witness to the incident. P.W.7 is also a panch-witness to Ex.P1-spot mahazar. P.W.8 is the Motor Vehicle Inspector, who inspected both the vehicles and issued the report as per Ex.P6. P.W.9 is the PSI., who registered the case and also prepared Exs.P1, P2 and P7-rough sketch of the spot. P.W.10 is the CPI., who completed the investigation and filed the charge-sheet.
7. According to the prosecution, the accused being the driver of the tanker lorry drove the same in a rash and negligent manner and while trying to overtake another vehicle, came to the right side of the road and dashed against the on coming motorcycle, which resulted in the rider of the said motorcycle succumbing to the injuries. With regard to the incident, the first information came to be registered on the complaint lodged by P.W.6. A perusal of his evidence goes to show that he was also riding a motorcycle and proceeding from Gudemaranahalli towards Nelamangala. He saw the motorcycle coming from Kunigal side. The tanker lorry came in a high speed and hit against the said motorcycle. He saw that the rider of motorcycle had fallen with bleeding injuries on his head. He has stated that he handed over the accused to the Police and later he lodged the complaint as per Ex.P5. In the cross-examination, he has stated that he was about 40 ft. behind the tanker lorry. Again he has stated that he was at a distance of 10 kms. behind the said lorry. He has denied the suggestion that the driver of the tanker lorry was driving the said vehicle carefully and he has also denied the suggestion that the accident occurred on account of the fault of the deceased himself.
8. The learned Sessions Judge while discussing the evidence of P.W.6 was of the view that the distance that P.W.6 mentioned in the cross-examination that he was about 10 kms. behind the tanker lorry appears to be a typographical error. Even otherwise, P.W.6 has stated that he was proceeding at a distance of 40 ft. behind the tanker lorry.
9. The entire case of the prosecution is based on the sole evidence of P.W.6 and also Ex.P7-spot sketch. P.W.4 has given a goby to the case of the prosecution. P.W.4 has stated that when the accused was driving the tanker lorry from Kunigal towards Bengaluru, at that time, the rider of the Scooter while overtaking a vehicle, dashed against the tanker lorry, on account of which he died. P.W.4 has been treated hostile. He has denied the suggestion that the accused was driving the lorry in a rash and negligent manner and while overtaking another vehicle, dashed against the on coming motorcycle.
10. It is relevant to see that according to prosecution, the accused while overtaking another vehicle, came to the right side and dashed against the on coming motorcycle. The sole eye-witness P.W.6 has not at all stated that the accident occurred while the accused was trying to overtake another vehicle. The evidence of P.W.6 does not disclose that the accused being the driver of the tanker lorry, while overtaking another vehicle went to the extreme right side of the road and dashed against the motorcycle which was coming from Kunigal side. It is also the case of the prosecution that on account of the head on collision, the rider of the motorcycle sustained injuries and subsequently died. In this regard, it is relevant to see the Motor Vehicles Inspectors Report which is marked as Ex.P6. The same discloses that the tanker lorry was damaged on the front bumper right side edge with scratch marks and slight scratches on the front side of the corner body at the bottom side. The following damages were noticed in respect of the motorcycle:
1) Rear right side indicator light damaged.
2) Rear seat grip damaged.
3) Right side rear view mirror damaged.
4) Rear registration number plate bent and rear wheel mudguard damaged.
11. The Motor Vehicle Inspector has been examined as P.W.8. According to him, the accident is not on account of any mechanical defect. In the cross-examination, he has admitted that the headlight of the motorcycle and the left side mirror as well as the clutch and break were not damaged. On a careful perusal of the Motor Vehicle Inspector’s report and the evidence of P.W.8, the same would disclose that the front portion of the motorcycle was not damaged. On the other hand, the rear side including the number plate and the rear wheel mudguard were damaged. The sketch marked at Ex.P7 goes to show that both the vehicles are facing towards one direction i.e., towards Bengaluru. If the evidence of P.W.8 as well as P.Ws.6 are carefully examined, then it does not give an indication that it is a case of head on collision. P.W.9 has prepared the rough sketch. It has not been clarified that in what circumstances, both vehicles were shown stationed on one side facing the same direction. The rough sketch at Ex.P7 also does not show as to the width of the road and exactly at what distance the accident occurred. Though the spot of accident is shown as to the right side of the road towards Bengaluru where according to the prosecution the tanker lorry was moving. However, the evidence of P.Ws.6 and 8 and also the document at Ex.P7 does not support the case of prosecution as projected. Merely on the basis of rough sketch it cannot be said that the tanker lorry came to the right side of the road and dashed against the motorcycle and caused the accident. The evidence of the sole witness viz., P.W.6 does not indicate that the accused came to the right side of the road and dashed against the motorcycle. There is no other evidence corroborating the evidence of P.W.6 to establish the guilt of the accused. The accused has denied all the incriminating material appeared against him in the evidence. Though he has not led any evidence, however, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Both the Courts have failed to appreciate the above relevant aspects and have come to an erroneous conclusion. The evidence of P.W.6 and the documents at Exs.P6 and 7 do not lead to an irresistible conclusion that the accident in question has occasioned due to the rash and negligent driving by the accused alone. In that view of the matter, I pass the following:
ORDER The revision petition is allowed.
The Judgment and Order of conviction and sentence dated 03.09.2009 passed in C.C. No.390/2005 on the file of the Court of Civil Judge [Jr. Dn.] and JMFC., Magadi and the Judgment and Order dated 09.11.2010 passed in Crl.A. No.27/2009 by the learned District and Sessions Judge, Ramanagara are hereby set aside. The accused is acquitted of the offences punishable under Sections 279 and 304-A of IPC.
The bail bonds are cancelled and if the amount of fine has been paid, the same shall be refunded to the accused.
Sd/- JUDGE Ksm*