IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 571/2011 BETWEEN Sri K N Thangavelu S/o Nachu Aged about 52 years Driver in Tanker Lorry Bearing Reg.No.TSK-3997 R/o Karaputturu Musuri Taluk Trichy District.
(By Sri. P. Nehru, Advocate) AND State by Traffic Police Station Hassan.
(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 06.12.2006 passed by the II Addl. Civil Judge (Jr. Dn.) and JMFC., Hassan in C.C.No.406/2000 and also order dated 31.03.2011 passed by the Principal District and Additional Sessions Judge, Hassan in Crl.A.No.143/2006 and acquit the petitioner.
This Criminal Revision Petition Coming on for Hearing, this day, the court made the following:
ORDER This criminal revision petition is filed by the petitioner/accused challenging the order passed by the Presiding Officer and Addl.Sessions Judge, FTC, Hassan in Crl.A.No.143/2006 dated 31.03.2011 dismissing the appeal and confirming the judgment of conviction and order of sentence dated 06.12.2006 rendered by the trial Court in C.C.No.406/2000.
2. The factual matrix of this petition is that on 06.05.1997 at about 6.00 p.m. in front of Bharma Sale shop near Shankaripuram, on B.M.Road of Hassan City, the petitioner/accused drove the Tanker Lorry bearing regn.No.TSH-3997 in a rash and negligent manner and dashed against another lorry bearing regn.No.MEG-5745 and then dashed against the motor cycle of C.W.1 bearing regn.No.KA-13-E-5727 and also dashed against an autorickshaw bearing regn.No.KA- 17-4484. Due to the said impact, CW.1 the rider of the motor cycle, C.W.3 the pillion rider, CW.4, C.W.5 and CW.6 being the passengers of the autorickshaw and CWs.7 and 8 being the cleaner and driver of the lorry sustained grievous injuries and one Chikkegowda said to be the father of CW.4 succumbed to the grievous injuries at the spot. Thereafter, CW.1 lodged the complaint against the accused before the concerned Police.
3. On receipt of the complaint, case was registered against the accused in Cr.No.100/1997. The IO conducted the spot mahazar and recorded the statement of witnesses and after thorough investigation, laid the charge sheet against the accused. The Trial Court framed the charges against the accused for the offences punishable Sections 279, 337 and 304-A of IPC and the same was read over and explained to accused. The accused did not plead guilty and claimed to be tried.
4. In order to prove the case of the prosecution, PW.1 to PW.11 were examined and Exs.P1 to P14 were got marked. The trial Court after hearing the arguments on both the side and on appreciation of entire oral and documentary evidence available on record, passed the impugned judgment thereby convicting the accused for the offences punishable under Sections 279, 337, 304-A of IPC. Further, the accused was sentenced to undergo SI for a period of one year and to pay a fine of Rs.1000/- for the offence punishable under Section 304-A of IPC and in default to pay fine, to undergo SI for a period of two months or until the payment of fine amount whichever is earlier. Further, the accused was sentenced to undergo SI for a period of three months for the offence punishable under Section 279 of IPC and SI for a period of three months for the offence punishable under Section 337 of IPC.
5. The accused filed Crl.A.No.143/2006 challenging the judgment of conviction and order of sentence passed by the trial Court before the lower Appellate Court. The lower Appellate Court vide order dated 31.03.2011 dismissed the appeal and confirmed the judgment passed by the trial Court in C.C.No.406/2000. Hence, the present criminal revision petition is filed before this Court challenging the impugned judgments rendered by both the courts below.
6. Heard learned counsel for the petitioner/accused and learned HCGP for the respondent/State.
7. Sri P.Nehru, learned counsel for petitioner contends that the judgment and order passed by the courts below are against the material evidence available on record and the essential ingredients of the offences are not established. He contends that PW.7 who was the eye witness to the incident has stated that he was a passenger of the auto rickshaw and he saw the accused driving the vehicle in a rash and negligent manner due to which, Chikke Gowda, his co-passenger sustained severe injuries and died at the spot. But, whereas, Padma – PW.4, the daughter of the deceased Chikkegowda, who had accompanied her father, has stated that she was taking her father to hospital in an auto with PW.5 and there were only three persons, herself, her sister and deceased Chikkegowda. But the trial Court erred in relying upon the evidence of PW.7 considering him as eye witness.
8. Further, he contends that PW.2, during examination-in-chief has specifically stated that he has not seen the accident, nor he knew deceased Chikke Gowda nor given any statement before the Police, but the Trial Court erred while coming to the conclusion that prosecution has proved the case beyond reasonable doubt and convicted the accused. The same has resulted in miscarriage of justice. He further contends that both the courts below have failed to notice the fact that none of the witnesses have stated before the trial Court that the petitioner/accused was driving the Tanker lorry in rash and negligent manner and caused the accident. Further, the Courts below have mainly relied on the cross-examination of the witnesses and thereby have rendered the impugned judgment of conviction which has resulted in miscarriage of justice to the case of petitioner.
9. Learned counsel for the petitioner further contends that the evidence of PW.3 who is a pillion rider involved in the accident and eye witness to the incident has admitted in his cross-examination that he does not know how the accident occurred and the vehicle that was involved in the accident. Further, the evidence PW.4 and PW.5 who traveled in the autorickshaw which was involved in the accident and sustained injuries, have clearly stated that PW.7 was not at all traveling in the said autorickshaw on the date of incident and further admits that as the lorry and motor cycle were ahead of the autorickshaw, they could not see in which manner the said tanker lorry dashed against another lorry and motorcycle. Further, both the courts below have failed to consider the evidence of PW.8, who is the driver of another lorry wherein he has stated that he does not know how the tanker lorry came from the opposite direction and the manner of accident occurred. On all these grounds, learned counsel for the petitioner seeks for setting aside the judgment and orders passed by the both the Courts below by allowing this petition.
10. Per contra, learned HCGP for the State has taken me through the various exhibits that have been marked on behalf of the prosecution and so also the evidence adduced by the witnesses. He contends that both the Courts below on appreciation of oral and documentary evidence on record, have rightly passed the impugned judgment and orders convicting the accused for the aforesaid offences. He contends that the trial Court by relying on the evidence of PW.1, PW.3 to PW.8 and Ex.P2 – inquest mahazar and Ex.P14 – sketch, has rightly held that the accused has failed to exercise due caution in driving the vehicle as on the date of accident and there are direct evidence to show that the accused has committed the crime due to rash and negligent driving of the lorry and caused death of one Chikkegowda and injuries to other persons. He contends that the prosecution has established the guilt of the accused beyond all reasonable doubt and the trial Court has rightly convicted the accused for the aforesaid offences and even the lower Appellate Court has rightly dismissed the appeal filed by the accused.
Hence, the petition is devoid of merits and the same may be dismissed by confirming the orders passed by both the Courts below.
11. In the backdrop of the contentions as taken by the learned counsel for the petitioner and so also, learned HCGP, it is relevant to state that the accident that occurred on 06.05.1997 is not in dispute. The prosecution to prove its case has relied upon the evidence of PWs.1 to 10 and Exs.P1 to P14. Ex.P1 is the statement of PW.1 said to be the complaint, Ex.P2 – is the inquest Mahazar, Ex.P3 is the post mortem report, Exs.P4 to P9 are the wound certificates pertaining to PW.1, PW.3, PW.4, PW.5, PW.8 and PW.6. Exs.P10 and 11 are the IMV report, Ex.P12 is the Memo, Ex.P13 is the FIR and Ex.P14 is the sketch.
12. The prosecution in order to prove its case has relied upon the evidence of PW.1 to PW.8 said to be the eye witnesses and also the injured. PW.1 who is the complainant has stated that when he was going on B.M.Road in front of Barman sale shop on the left hand side of the road in his motor cycle bearing Regn.No.KA- 13-5727, a tanker lorry bearing Regn.No.TSH-3997 came from opposite side and hit against a lorry which was going in front of his motor cycle. Further the said lorry also hit his motor cycle and went further and dashed against a autorickshaw which was coming from behind. Due to the said impact, the inmate of autorickshaw sustained injuries and one Chikkegowda succumbed to the injuries. He also stated that due to the accident himself and the pillion rider – PW.3 also sustained injuries.
13. PW.1 was again recalled as per the order 7.8.2006 passed by the Appellate Court in Crl.A.No.100/2005 which was filed the petitioner. After recalling PW.1, contradictory to his earlier statement, he stated that he cannot say which vehicles were moving in front of him and nor could he say about the on coming vehicles, as a lorry was going in front of his motor cycle. He also stated that he cannot say how the tanker lorry dashed against the lorry.
14. PW.3 being the pillion rider has stated that the accident occurred due to the high speed of the tanker lorry due to which, himself and PW.1 sustained injuries and also he came to know about death of Chikkegowda and injuries caused to the inmates of the autorickshaw.
15. PW.4 and PW.5 the inmates of autorickshaw and the relatives of deceased Chikkegowda have deposed that the accused was the driver of the tanker lorry and it came in high speed and dashed against the autorickshaw in which they were traveling due to which her father Chikkegowda succumbed to the injuries. PW.7 is another inmate of the autorickshaw and he has not identified the accused as the driver of the tanker lorry.
16. PW.6 and PW.8 are the cleaner and driver of the other lorry involved in the accident and out of them PW.6 identified the accused as the driver of tanker lorry but, PW.8 did not identified the accused. PW.2 who was injured and a eye witness to the accident has turned hostile to the case of prosecution.
17. The prosecution case is that the tanker lorry was being driven from Hassan towards Tiptur which was expected to be on the left side of the road, but as per Ex.P2 – spot mahazar and sketch-Ex.P14 the place of accident is on the extreme side. Relying on the evidence of PW.1, PW.3 to PW.8 and relying on Exs.P2 and P14, the trial Court came to conclusion that due to high speed and rash and negligent driving of the tanker lorry by the petitioner/accused, the accident took place, due to which Chikkegowda died and other persons were injured.
18. It is relevant to note here that PW.1, PW.3, PW.4, PW.5, PW.6 who are the material eye witnesses to the accident and who have witnessed the accident have identified the accused driving the lorry in a high speed and caused accident. But the trial Court committed a serious error in not noticing that the driver of the autorickshaw involved in the accident in which deceased-Chikkegowda was traveling has not been cited as the witness, and it was fatal to the case of the prosecution. Further, PW.4 is the daughter and PW.5 is the relative of deceased Chikkegowda. They being interested witnesses, the trial Court ought not to have believed their version. Further, the trial court failed to notice the contradictions between the evidence of the injured witnesses who are PW.1, PW.3 to PW.8. It is relevant to note that PW.1 though initially stated that due to the rash and negligent driving by the driver of the offending lorry the accident took place and himself and PW.3 being the pillion rider sustained injuries, but when he was recalled, he retracted from his earlier version of his evidence stating that he cannot say which vehicles were moving in front of him, nor could he could he say about the on coming vehicles, as a lorry was going in front of his vehicle. Further, he stated that he cannot say how the tanker lorry dashed against the lorry. In this regard, the Trial court committed an error in believing the earliest version of this witness and nullified the later evidence adduced by him which was contradictory to his previous evidence. So also, PW.2 in the examination-in-chief has stated that the accused was driving the tanker lorry at the time of the accident, but in the cross-examination has stated that as he could not see the vehicle in the front, he cannot say who was driving the lorry.
19. Further, the trial Court has given a complete goby to the evidence of PW.7 who was the another passenger in the autorickshaw which was involved in the accident and one of the inmate – Chikkegowda succumbed to the injuries. He has not identified the accused as the driver of the tanker lorry but he has only stated that the accident was the result of high speed of the tanker lorry. The Trial Court has even failed to consider the evidence of PW.8 who is the driver of other lorry involved in the accident who has not identified the petitioner/accused. Further, it is relevant to note that the Trial Court has erred in not considering the evidence of PW.2 – Thammegowda, the so called independent eye witness to the incident who has not at all supported the case of prosecution and has even denied Ex.P2 – spot mahazar.
20. The trial Court also erred in not considering the defence of the accused that the driver of the autorickshaw involved in the accident and in which the deceased-Chikkegowda was traveling has not been cited as witness, which is fatal to the case of the prosecution. There are contradictions between the evidence of injured witnesses PW.1, PW.3 to PW.8 and according to PW.4 and PW.5 the relatives of deceased Chikkegowda, PW.7 was not at all the inmate of the autorickshaw. All these inconsistencies have turned fatal to the case of the prosecution. It is the case of prosecution that not citing Dharmegowda the driver of the autorickshaw as the witness is not fatal, because there was a confusion created as PW.2 – Dharmegowda the eyewitness also who were having similar names as that of the autorickshaw driver. But the facts not brought out in the evidence and the lapses and omissions on the part of the IO themselves nullify the facts disclosed during the evidence. The materials produced by the prosecution nullify the facts about the negligent act of the accused as a result of which the accident occurred.
The trial Court failed to consider that the autorickshaw driver would have been the material witness and adverse inference could have been drawn, if he was examined. The cross-examination by the defence has been completely given a goby by both the Courts below. Only partial corroboration between the evidence of witness remains suspicion. No witness has been examined to prove the spot mahazar- Ex.P2 except the Investigating Officer. Though the accident is not disputed but it was beyond the human control to avert the accused.
21. It is pertinent to note that PW.1 was recalled and had stated the facts contradicting some of his earlier version, but the trial Court has not considered his evidence which is bad in law. Further, the observation made by the trial Court is contrary to the finding of the Appellate Court’s direction to consider the further evidence of PW.1 which purpose of recalling the witness was to give an opportunity to narrate the true facts. His evidence has been over looked and the Courts below have erred in giving more weightage to the examination in chief of witnesses and failed to consider the cross examination. The same has led to miscarriage of justice to the case of the petitioner/accused.
22. Both the Courts below have failed to consider the evidence of PW.6 who traveled in the lorry involved in the accident and he was also injured and an eye witness to the incident where he has stated that he was sitting at the backside of the lorry with other workers and hence he was not in a position to see the front portion and on coming vehicles and did not see how the accident took place. Hence, the same is required to be appreciated relating to legality and correctness of the judgment under Section 397 read with 401 of Cr.P.C.
23. At a cursory glance of the evidence of the eye witnesses and so also, the documentary evidence available on record, even though the trial Court has appreciated the evidence let in by the prosecution and come to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and convicted the accused under Section 279, 337 and 304-
A of IPC, but under the mitigating circumstances, the conviction shall be held for the period as stated in the afore said provision of law. The trial Court has sentenced the accused to undergo SI for one year and pay fine of Rs.1000/- for the offence under Section 304- A of IPC, to undergo SI for three months for the offence punishable under section 279 of IPC and to undergo SI for three months for the offence under Section 337 of IPC. Having regard to the lacuna in the theory of the prosecution in establishing the negligence of the accused and so also, the direct nexus between the death and the accident and on re-appreciation of the entire evidence of material witnesses and documentary evidence on record, and in the totality of the facts and circumstances of the case, the judgment passed by the trial court needs to be modified.
24. While addressing his arguments to the Court, learned counsel for petitioner/accused submits that the accused is suffering from kidney ailment and has paid the fine amount imposed by the trial Court for the aforesaid offences. On this ground, he seeks for intervention of the impugned judgment rendered by both the Courts below and prays to modify the judgment by imposing fine instead of convicting the accused to undergo imprisonment.
Therefore, for the aforesaid reasons and findings, it appears that both the Courts below have failed in properly appreciating the evidence and materials available on record and there are also lapses and omissions on the part of the prosecution in not bringing certain facts in the evidence and there is also lapse on the part of the prosecution in non-examination of material witnesses. Hence, in the light of the above discussions, it would be just and proper, if the petitioner/accused is imposed fine instead of sentencing him to undergo SI for the offence punishable under Sections 279, 337 and 304-A of IPC. Accordingly, I have to proceed to pass the following:
ORDER i) The petition is hereby allowed in part.
Consequently, the judgment of conviction and order of sentence dated 06.12.2006 rendered by the trial Court in C.C.No.406/2000 and confirmed by the lower Appellate Court vide judgment dated 31.03.2011 in Crl.A.No.143/2006 is hereby modified.
ii) The petitioner/accused shall pay fine of Rs.20,000/- for the offence punishable under section 304-A of IPC and in default to pay the fine amount, he shall undergo SI for a period of six months.
iii) The petitioner/accused shall pay fine of Rs.5,000/- each for the offence punishable under Sections 279 and 337 of IPC and in default to pay the fine amount, he shall undergo SI for a period of three months.
iv) The petitioner/accused shall deposit the fine amount as imposed above, within a period of four weeks before the trial Court in C.C.No.406/2000. Subsequent to the deposit of fine amount of Rs.30,000/-, the same shall be disbursed in favour of PWs.1, 3, 4, 5, 6 and 8 equally, on proper identification.
Sd/- JUDGE DKB