IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.1260 OF 2017 Between:
Venkatappa Aged about 25 years S/o Late. Somanna R/o Channenahalli Village Kasaba Hobli Ramanagara Taluk and District Pin Code No.571511.
... Petitioner (By Sri Hanumaiah .H.C- Advocate) And:
State of Karnataka By Ramanagara Rural Police Reptd. By State public Prosecutor High Court Building Bangalore – 560009.
... Respondent (By Sri Thejesh .P, HCGP) ****** This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the judgment conviction and sentence dated 24.09.2016 passed by the Principal Senior Civil Judge and C.J.M., Ramanagaram, in C.C.No.155/2009 for the offence p/u/s 279 and 304(A) of IPC and pleased to set aside the judgment of conviction confirmed by the order dated 07.11.2017 passed by the III Additional District and Sessions Judge, Ramanagara in Crl.A.No. 16/2016 and allow the Crl.RP. by acquitting the petitioner for the reasons stated above.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R This petition though coming on for admission, with the consent of the learned counsel for the petitioner and the learned HCGP, is finally disposed of by the order.
2. Heard Shri Hanumaiah H.C, learned counsel for the petitioner and the learned HCGP Shri Thejesh P., for the State.
3. This Criminal Revision Petition is directed against the order passed by the Appellate Court in Crl.A.No.16/2016 dated 07.11.2016 dismissing the appeal and thus confirming the judgment of conviction and order of sentence passed by the Trial Court in C.C.No.155/2009 dated 24.09.2016. By the said order, the petitioner – accused was convicted for the offence punishable under Section 279 and 304(A) IPC and was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 279 IPC and further to undergo simple imprisonment for two years for the offence punishable under Section 304(A) IPC and to pay a fine of Rs.5,000/- along with default clause. The sentences were to run concurrently.
4. The factual matrix of this petition is as under:
On 24.06.2009 at about 7.15 a.m. near Kumbapura Railway Gate, Kylancha Hobli, Ramanagara Taluk and District, the accused – petitioner herein being the driver of a lorry bearing Regn.No.LA-02-A-7173, had driven the same towards Vibuthikere in a rash and negligent manner and dashed against the TVS victor motor cycle bearing Regn.No.KA-42-E-3789, as a result of which the rider Vijaya Kumar had fallen down and sustained grievous injuries and succumbed to the injuries on the succeeding day.
As a result, the complainant one S. Mahadevaiah preferred a complaint as per Exhibit P1 against the petitioner after which a case in Crime No.140/2009 was registered before the Ramanagara Rural Police Station initially for offences punishable under Sections 279 and 337 IPC. After the death of Vijaya Kumar, based upon the second complaint Exhibit P3, in the same crime number, Section 304(A) IPC was invoked and the case was proceeded for investigation and the Investigating Officer laid a charge-sheet. Subsequently, he recorded the incriminating statements appearing against the accused as contemplated under Section 313 Cr.P.C. wherein the accused denied truth of the prosecution. He did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. The Trial Court in C.C.No.155/2009 then framing points for its consideration answered the points in the affirmative and convicted the accused as aforesaid. The said judgment passed by the Trial Court was taken up in appeal before the Appellate Court. The Appellate Court by order dated 07.11.2017 in Crl.A.No.16/2016, as well had confirmed the judgment of conviction and sentence passed by the Trial Court. It is this judgment which is under challenge in this petition urging various grounds.
5. The learned counsel for the petitioner contends that both the Trial Court as well as the Appellate Court have committed a serious error in convicting and sentencing the petitioner for offences punishable under Sections 279 and 304(A) IPC.
It is his contention that the witnesses PW-1 Mahadevaiah, PW-2 Mahadevaiah, PW-3 Puttaswamaiah and PW-4 Devaraju the alleged eye- witnesses to the incident have not at all stated before the Trial Court that the accused – driver of the lorry had driven the same in a rash and negligent manner and dashed against the deceased. On the other hand, those witnesses have stated that the lorry in question was loaded with bricks and the driver was driving the lorry at a high speed. It is the contention of the learned counsel that mere driving the lorry at high speed does not satisfy the requirements for the alleged offences under Sections 279 and 304(A) of IPC.
PW-1 eye-witness had stated in his evidence that at the time of accident, no other vehicles were there in the spot and the accident had taken place due to rash and negligence of the lorry driver. Further, the road was congested and only one vehicle could ply on the road and the lorry was loaded with bricks. The contention of the learned counsel is when the lorry was loaded with bricks, where was the question for the driver to have driven it in a rash and negligent manner.
PW-4 another eye-witness had stated in his examination that the lorry loaded with bricks had proceeded at high speed and in a rash and negligent manner and dashed against the TVS victor motor cycle. However, PW-4 in his cross-examination has admitted the fact that it was a congested road and there was a hump in that place. The learned counsel contends that if there was a hump at the place of the accident, the accused having driven the lorry at high speed and having dashed against the motor cycle is a remote possibility.
PW-7, one of the Investigating Officers examined who had seized the lorry and prepared the spot map as per Exhibit P-8 has not mentioned in the panchanama that the lorry was loaded with goods though he had admitted in his cross-examination the suggestion that the deceased Vijay Kumar had entangled with the back wheel of the lorry and passed away.
The learned counsel contends that when the sketch, spot panchanama and the material on record reveals the fact that the deceased had gone under the back wheel of the lorry as a result of which his head was injured, the accident must have occurred due to the negligence of the deceased. In that, he must have gone and dashed the lorry from the back side, which fact has not been properly appreciated by both the Trial Court as well as the Appellate Court. Further, the IMV report also reveals the fact that there is abraded mark seen on the rear wheel of the lorry which is said to have entangled the deceased causing head injury as indicated in the Post mortem report said to be issued by the doctor. These are facts which have been lost sight of by the Trial Court as well as the Appellate Court while convicting the accused.
Thus, the learned counsel for the petitioner contends that there are many inconsistencies in the statements of the witnesses which has been lost sight of by the Trial Court as well as the Appellate Court while convicting the accused. It is his further contention that since the inconsistencies are of such serious nature which go to the root of the matter, the judgment passed by the Trial Court which has been affirmed by the Appellate Court cannot be sustained in the eye of law and hence the learned counsel contends that the judgments of the Trial Court as well as the Appellate Court be set aside and the petitioner be acquitted of the alleged offences.
6. Per contra, learned HCGP for the State supports the impugned judgment of conviction and sentence passed by the Trial Court and submits that the Trial Court has rightly held the accused guilty of offences under Sections 279 and 304A of IPC which has as well been affirmed by the Appellate Court. Hence, he contends that both the judgments passed by the Trial Court as well as the Appellant being just and proper, needs no interference in this revision petition.
7. On a careful consideration of the contentions advanced by the learned counsel for the petitioner - accused and the learned HCGP and having regard to the material on record, it is gathered that the accident in question had not occurred due to the rash and negligent driving of the driver of the lorry – petitioner herein. From the sketch and panchanama, it is clear that the deceased had come under the rear wheel of the lorry. When that being the case, it is strange that the Trial Court as well as the Appellate Court have come to the conclusion that the lorry had hit the motorcycle of the deceased and caused the accident. Though PWs 1 to 4 have been cited as eye-witnesses to the accident, nobody has witnessed the accident happening and it is only after the occurrence that they had witnessed it from a distance of 100 mts or so. It is their assumption that the lorry had hit the motorcyclist. The inconsistencies noticed in the evidence of the said witnesses are of such serious nature which go to the root of the matter. The IMV report of the lorry clearly discloses the fact that there is abraded mark seen on the rear wheel of the lorry which is said to have entangled the deceased causing head injury as indicated in the Post mortem report said to be issued by the doctor. Hence, it can be inferred that it is the deceased who had hit the lorry from behind and got entangled in the rear wheel of the lorry and contributed to his own death. Hence, I am of the opinion that the prosecution has not established the guilt of the accused beyond all reasonable doubt for negligence and caused the death of the deceased. Moreover, the theory put forth by the prosecution does not repose confidence. Consequently, the benefit of doubt needs to be extended to the accused. It is the well-established Doctrine in the criminal justice system. Hence, I proceed to pass the following:
ORDER This revision petition is allowed. The judgment of conviction and order of sentence passed by the Trial Court in C.C.No.155/2009 dated 24.09.2016 which was confirmed by the Appellate Court in Crl.A.No.16/2016 dated 07.11.2017 are hereby set-aside. Consequently, the accused – petitioner herein is hereby acquitted of the offences under Sections 279 and 304A IPC.
If any fine amount is deposited by the petitioner / accused, the same shall be refunded to the accused, on proper identification.
Sd/- JUDGE KS