IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL REVISION PETITION No.616/2011 BETWEEN NANJUNDEGOWDA, S/O. KAPANI TOWDA, AGED 37 YEARS, RESIDENT OF KASHIPURA, SHIMOGA CITY (SRI B.S. PRASAD, ADVOCATE) AND THE STATE OF KARNATAKA BY RURAL POLICE STATION, SHIMOGA (SRI VINAYAKA V.S., HCGP) ... PETITIONER ... RESPONDENT THIS PETITION IS FILED U/S. 397 R/W. 401 CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 28.03.2011 PASSED BY THE P.O. FTC-II, SHIMOGA IN CRL.A.NO.146/2007 AND ORDER DT:14.11.2007 PASSED BY THE JMFC-II COURT, SHIMOGA IN C.C.NO.4687/2001.
THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This revision petition is directed against the concurrent findings recorded by the Courts below holding the petitioner guilty of the offences punishable under Sections 279 and 304(A) of IPC. The petitioner has been sentenced to undergo Simple Imprisonment for a period of six months with fine of Rs.500/- in default to undergo Simple Imprisonment for a period of 15 days for the offence punishable under Section 304-A of IPC.
2. The learned counsel for the petitioner has assailed the impugned judgment and order of conviction on three counts. Firstly, he contends that the petitioner was not driving the vehicle in question at the relevant time. He has not been identified either by the complainant or by the eyewitness (PW2) examined by the prosecution, and hence, both the Courts below have committed serious error in convicting the petitioner for the alleged offences.
3. Secondly, the Courts below have failed to take into consideration the discrepancy in the evidence of PW1 and PW2 and the contents of the Spot Sketch. Referring to the evidence of PW1 and PW2, the learned counsel would submit that these witnesses have admitted in their cross-examination that at the time of alleged accident, the lorry in question was coming from Shimoga side and the left side of the lorry hit the deceased whereas, the facts depicted in the Spot Sketch Ex.P8 indicate that the accident has taken place on the right side of the road and PW1 and PW2 were on the right side of the road along with the deceased.
4. Thirdly, the Courts below have failed to appreciate the evidence of DW2 examined by the accused in proper prospective. The evidence adduced by the accused clearly indicates that the accused was not driving the lorry at the relevant time and hence, the impugned order being contrary to the material on record is liable to be interfered with in exercise of the jurisdiction under Section 397 of Cr.P.C.
5. Refuting to the above the contentions, the learned HCGP appearing for respondent argued in support of the impugned findings and submitted that the contentions urged by the petitioner are based on appreciation of the evidence which cannot be gone into by this Court under Section 397 of Cr.P.C. With regard to the identity of the accused, learned HCGP by referring to the evidence of PW4 pointed out that PW4 namely R. Damodara - owner of the vehicle has clearly admitted that the vehicle in question was driven by accused No.1. The other eyewitness examined by the prosecution has not only identified the accused, but has also asserted that the petitioner was driving the said vehicle at the relevant time and therefore, there is no dispute with regard to the identity of the accused/petitioner and therefore the contentions urged by the learned counsel for the petitioner in this regard are liable to be rejected. Further the learned HCGP would submit that the trial Court has considered the evidence of DW2 as well as the evidence of accused and has disbelieved this evidence by assigning cogent reasons and thus prayed for dismissal of the petition.
6. I have considered the submissions and perused the records.
7. Insofar as the first contention urged by the petitioner regarding the identity of the accused is concerned, I have perused the evidence of PW1 and PW2. PW1 is the brother of the deceased and the complainant. According to PW1 at the time of accident, he along with his brother had stopped the motorcycle at the spot of the offence and both of them were standing near the puncture shop and at that time the vehicle in question driven by the accused came from Shimoga side and ran over the deceased. He has unequivocally stated in his evidence that petitioner herein was driving the vehicle at the relevant time and has identified the petitioner in the witness box. The contention of the petitioner that the PW1 has specifically not stated that at the relevant time the vehicle in question was driven by the accused and therefore, his evidence regarding the identity of the accused could not have been relied by the Courts below cannot be accepted. Such hyper technical approach cannot be adopted in appreciating evidence in a criminal trial. It is a cardinal principle of the appreciation of evidence that evidence has to be appreciated as a whole and not in isolation. The evidence of PWs.1 and 2 read in its entirety clearly suggest that both these witnesses were eyewitnesses to the occurrence. Their presence at the spot and occurrence is not disputed. Their evidence get fully corroboration in the contents of the complaint lodged at the earliest point of time, wherein the presence of both these witnesses has been narrated. Accused has not disputed the identity evidence given by these witness. Under such circumstance, the contention urged by the learned counsel for the petitioner disputing identity of the accused does not merit acceptance. Accordingly, this contention is rejected.
8. Coming to the second contention urged by the petitioner regarding the discrepancy in the evidence of the prosecution witnesses and the contents of the spot sketch are concerned, a reading of the impugned order discloses that the trial Court has considered this aspect at length and on going through this material I do not find any discrepancy in the evidence of the prosecution witnesses and the contents of the spot sketch. Even otherwise such exercise cannot be gone into under Section 397 of Cr.P.C.. Even if the facts depicted in the Spot Panchanama are disputed by the petitioner, yet that evidence of PWs.1 and 2 without any corroboration establish that during the occurrence the offending vehicle was driven by the petitioner in rash and negligent manner and he ran over the deceased and caused injuries to PW2. As a result the contention urged by the petitioner in this regard is also cannot be a ground to upset the well considered judgment rendered by the Court below.
9. The third contention raised by the petitioner is also based on appreciation of evidence. A perusal of the impugned order reveals that the Courts below have elaborately considered the evidence adduced by the accused. From the reading of the evidence of DW1 and DW2, it can be gathered that an attempt was made to show that vehicle in question was driven by one Mani; but the existence of such person has not been established in defence. On the other hand, the very document Ex.P6 and evidence of PW4 completely demolishes the evidence of DW1 and DW2 and therefore, the prosecution having proved beyond reasonable doubt the ingredients of the offence under Section 379 and 304 (A) of IPC and I do not find any justifiable ground to interfere with the well considered judgments and order passed by the Courts below. Consequently, the petition being devoid of merit and is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE SBS*