IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.279 OF 2011 BETWEEN:
RAJENDRA, S/O. K. NACHIMUTHU, AGED ABOUT 41 YEARS, NELAMANGALA BYE-PASS, BANGALORE DISTRICT. … PETITIONER [BY SRI. GANAPATHY BHAT VAJRALLI, ADVOCATE] AND:
THE STATE OF KARNATAKA, BY: KYATSANDRA POLICE STATION, TUMKUR DISTRICT. … RESPONDENT [BY SRI. S.CHANDRASHEKARAIAH, HCGP] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 12.08.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE & JMFC, TUMKUR IN C.C. NO.2143/2006 AND ORDER DATED 22.12.2010 PASSED BY THE PRESIDING OFFICER, FTC-2, TUMKUR IN CRL.A.NO.111/2010 AND ACQUIT HIM OF ALL THE CHARGES.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER In this revision petition, the accused/petitioner has challenged the concurrent findings of the courts below, wherein the trial Court convicted him for the offence punishable under sections 279 and 304-A of the Indian Penal Code [‘IPC’ for brevity] and sentenced him to undergo simple imprisonment for a period of 2 months and to pay a fine of Rs.1,000/-, in default to undergo further simple imprisonment for a period of 15 days for the offence punishable under Section 279 of IPC and for the offence punishable under Section 304-A of IPC., he was sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.1,000/-, in default, to undergo further simple imprisonment for a period of 15 days, which Judgment and Order of conviction and sentence was confirmed by the appellate Court in Crl.A. No.111/2010.
2. I have heard learned counsel appearing for the petitioner and learned HCGP., representing the respondent/State.
3. It is the case of the prosecution that on 05.06.2006 at about 9.00 a.m., the accused/petitioner being the driver of TATA Indica car bearing reg. No.KA-52/M-4419, drove the same in a rash and negligent manner on Bengaluru-Tumakuru road and near Hirehalli bus-stop, he dashed the said car against one Shivakumar @ Kumar, on account of which, said Shivakumar @ Kumar sustained injuries and subsequently succumbed to the injuries on 24.06.2006 and thereby the accused committed offences punishable under Sections 279 and 304-A of IPC.
Before the trial Court, the prosecution got examined 6 witnesses and got marked Exs.P1 to 13. The defence of the accused was one of total denial.
The trial Court considering the evidence and material on record, convicted the accused for the offence punishable under Sections 279 and 304-A of IPC and passed the sentence as noted supra, which was confirmed by the appellate Court.
4. Challenging the concurrent findings of the courts below the learned counsel for the petitioner contended that both the courts have failed to properly appreciate the evidence on record and not considered that it is on account of the victim himself, while he was trying to cross the road, the accident occurred and there is no rash and negligent driving on the part of the petitioner. He would submit that the prosecution examined two eye-witnesses and out of the said witnesses viz., P.Ws.1 and 2, P.W.2 has not supported the prosecution case and the evidence of P.W.1 is not sufficient to hold that the accused was driving the vehicle in a rash and negligent manner. He submits that the courts below have not arrived at a conclusion that the accused was driving the vehicle in a rash and negligent manner and therefore, the ingredients of Section 304-A of IPC has not been established by the prosecution and accordingly seeks to allow the petition.
Per contra, the learned High Court Government Pleader vehemently contended that both the Courts have concurrently held that the accused is guilty of the offences punishable under Sections 279 and 304-A of IPC. P.W.1, who is the eye- witness to the incident has categorically stated that the accused was driving the vehicle in a rash and negligent manner and dashed against the victim. He further submitted that P.W.1 has also identified the accused and the registration number of the vehicle and therefore, there is no doubt with regard to the fact that the accident occurred on account of the rash and negligent driving by the accused and accordingly seeks to dismiss the petition.
5. From the material on record it is seen that the prosecution got examined P.Ws.1 to 6 and got marked Exs.P1 to 13. P.Ws.1 and 2 are said to be the eye-witnesses to the incident. However, P.W.2 has turned hostile to the prosecution case. Therefore, the case of the prosecution squarely rests on the evidence of P.W.1.
6. P.W.1 is none other than the brother of the deceased and the complainant in this case. According to P.W.1, he along with his brother Shivakumar@ Kumar and their mother went to Hirehalli to the house of his relative and while coming back, they were waiting near Hirehalli bus stand. At that time, a Maruti car came from Bengaluru side and dashed his brother. On account of which, his brother sustained injuries on the head and other parts of the body.
The victim was shifted to the District Hospital in the same car and for higher treatment, he was later sent to NIMHANS., Bengaluru and from there to M.S.Ramaiah Hospital. Again he was shifted to NIMHANS., Bengaluru. According to P.W.1, the vehicle was driven in a high speed. The evidence on record also discloses that the injured died 18 days after the accident while he was being shifted from Victoria Hospital to S.D.M. Hospital. He has admitted in the cross-examination that it was National High-way, where the accident took place and in the centre there is a road divider. It was suggested to P.W.1 that the accident occurred while the victim was trying to cross the road, which was denied by P.W.1.
7. I have perused the rough sketch at Ex.P10. The rough sketch would show that the accident occurred on the left side of the road towards Tumakuru. The car was proceeding from Bengaluru to Tumakuru. From the evidence of P.W.1, it cannot be conclusively held that the vehicle in question was being driven in a rash or negligent manner. The evidence of P.W.1 is silent with regard to the manner in which the accident has occurred. He has only stated that the vehicle was being driven in high speed and dashed the victim.
P.W.1 has admitted in the cross-examination that there were number of persons waiting for the bus in the Hirehalli bus stop. He has further stated that the complaint was got written through some one but, he does not know the name and address of the said person. It is to be noted that the accident occurred at about 9.00 a.m. on 05.06.2006 and the complaint came to be lodged on 06.06.2006 at about 1.00 p.m. No- doubt the trial Court has observed that it is on account of the treatment which was given to the injured that there is delay in lodging the complaint at Ex.P1. However, in the absence of any corroboration to the evidence of P.W.1, the delay in lodging the complaint raises a doubt with regard to the veracity of his evidence. P.W.1 has admitted in the cross- examination that he signed the mahazar in the police station.
8. It is no-doubt true that there is no dispute with regard to identity of the accused and involvement of the vehicle in question in the accident. However, the evidence of P.W.1 is not sufficient to hold that the accused was driving the car in a rash or negligent manner and that it is only on account of such rash or negligent driving the accident occurred. The fact remains that immediately after the accident the victim was shifted to the hospital in the same vehicle. There is no corroboration to the evidence of P.W.1 as P.W.2, who is another eye-witness to the accident in question has totally turned hostile to the prosecution case. Both the courts below have convicted the accused on the sole evidence of P.W.1, which in my view is not sufficient to hold that the accused was driving the vehicle in a rash or negligent manner and the accident occurred only on account of the rash or negligent driving by the accused. The evidence of other witnesses is not helpful to the prosecution to prove the rash or negligent driving by the accused. The prosecution has failed to establish its case against the accused beyond all reasonable doubts. For the foregoing reasons, I pass the following:
ORDER The Criminal Revision Petition is allowed. The impugned Judgment and Order dated 12.08.2010 passed by the Court below in C.C. No.2143/2006 on the file of the Principal Civil Judge and JMFC., Tumkur and the Judgment and Order dated 22.12.2010 of the appellate Court in Crl.A. No.111/2010 are set aside.
The accused is acquitted of the offences punishable under Sections 279 and 304-A of IPC. The bail bonds executed by the petitioner is cancelled.
Sd/- JUDGE Ksm*