IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1273 of 2011 BETWEEN MUNEGOWDA, S/O NARAYANAPPA, AGED ABOUT 42 YEARS, RESIDENT OF KALAHASTHIPURA, KOLAR TALUK.
(BY SRI A.S. KULKARNI, ADVOCATE) AND STATE OF KOLAR TRAFFIC POLICE STATION, KOLAR.
(BY SRI S.T. NAIK, HCGP) …PETITIONER …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 r/w 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 30.03.2009 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR. DN.,) AND CJM, KOLAR IN CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 304-A OF IPC IN C.C.No.964/2009 AND SET ASIDE THE ORDER DATED 02.11.2011 PASSED BY THE I ADDITIONAL SESSIONS JUDGE AT KOLAR IN DISMISSING THE CRIMINAL APPEAL No.23/2011 AND CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE TRIAL COURT FOR THE OFFENCE PUNISHABLE UNDER SECTION 304-A IPC AND ACQUIT THE PETITIONER FOR THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 304-A OF IPC.
THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The revision petitioner, who is accused in CC No.964/2009 on the file of the Principal Civil Judge (Sr.Dn.) & CJM, Kolar, has been convicted for the offences under Section 279, 337, 338 and 304-A of IPC by judgment dated 30.03.2011 and the I Additional Sessions Judge, Kolar, modified the judgment of conviction and sentence of imprisonment only in respect of Section 304A of IPC and acquitted the accused under Section 279, 337 and 338 of IPC by judgment dated 02.11.2011 in Crl.A.No.23/2011. Being aggrieved by the same, the petitioner is before this Court raising various grounds.
2. Learned counsel for the petitioner strenuously argued that though the prosecution examined in all eleven witnesses, only PWs.1 and 2 are the eyewitnesses. Both the eyewitnesses have not at all spoken anything about the rash and negligent driving, though both of them deposed that the motorcycle came and hit the deceased and the deceased sustained injuries, later shifted to the Hospital at Kolar and thereafter, the injured was shifted to NIMHANS, Bengaluru, where she succumbed to the injuries. But, without the proof of rash and negligent driving on the part of the accused/petitioner, convicting the petitioner is not legal and both the Courts below have committed illegality in convicting the petitioner. Hence, prayed for setting aside of the same.
3. Per contra, learned High Court Government Pleader contended that there are infirmities in the evidence of the prosecution witnesses, but both the eyewitnesses have categorically deposed before the Trial Court that the accused, who drove the motorcycle dashed to the injured victim, who was standing on the side of the road to cross the road after attending to nature call. The Investigating Officer also conducted spot panchanama. The accused also sustained injuries and was treated in the Hospital. The same was proved by the prosecution beyond all reasonable doubt. Both the Courts below have rightly convicted the petitioner for the said offence as well as causing death of the deceased by negligent driving. Therefore, this Court is not required to interfere with the judgment by the Trial Court as all as the Appellate Court. Hence, prayed for dismissal of the revision petition.
4. Heard the arguments of learned counsel on both sides and perused the record.
5. It is well settled by the Hon’ble Supreme Court that the concurrent findings of both the Courts below cannot be interfered with by the High Court except there is a grave injustice caused to the petitioner and this Court also cannot sit as appellate court and re-appreciate the evidence. On this background, coming to the evidence on record and the documents placed by the prosecution, it is clear that PWs.1 and 2 are eyewitnesses to the accident. PW.3-Dinesh came to know about the accident and after hearing the death of the deceased, he has given information to the Investigating Officer and from his statement, the Police have registered the case against the accused for the offence under Section 304A from Sections 337 and 338 of IPC. PW.4-Naresh son of the deceased came to know about the accident. PW.5- Ramakrishnareddy also says that he came to know of the accident. PW.6-Anand is the panch witness. PW.7- Jayashankar Reddy is the inquest panch witness. PW.8- Santhoshkumar is the owner of the motorcycle, which the accused rode at the time of the accident. PW.9-Srinivasa and PW.10-K.Chandrappa are the PSI, who conducted inquest as well as registered the case against the accused. PW.11-Renuka Prasad is the Investigating Officer.
6. On perusal of the evidence and the findings given by both the Courts below, it is admitted that the accident has occurred on the Kolar-Mulabagal road on 23.10.2009 at Tamaka Industrial Area in front of Cauvery Industries and due to the injuries sustained by the wife of PW.1, she later succumbed to the injuries at NIMHANS Hospital, Bengaluru, on 24.10.2009. Though the accused tried to plead that he was not riding the motorcycle and one Papanna was riding the motorcycle, but he did not enter into the witness box by giving explanation or led any defence evidence to show that the said Papanna rode the motorcycle at the time of the accident. On the other hand, the evidence of PWs.1 and 2 and Ex.P.1-complaint clearly goes to show that at the time of the accident, the accused was the rider of the Pulsor motorcycle, which also fell on the spot and seized by the Investigating Officer under the panchanama, in the presence of panchas. Though, PW.3 the owner of the motorcycle deposed that the motorcycle has been handed over to one Papanna, but he is not aware that the motorcycle was driven by the accused, it appears, thereafter the accused started changing the defence that Papanna was riding the motorcycle, but not him. On the other hand Ex.P.13-wound certificate shows that the accused also sustained injuries in the accident and he has taken treatment in R.L.Jalapa Hospital, which is also not in dispute. Therefore, the prosecution is required to prove whether the accused was riding the motorcycle in a rash and negligent manner at the time of the accident or the accident has occurred due to the negligence of the deceased, who abruptly crossed the road.
7. In this background, learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court in the case of State of Karnataka vs. Satish reported in 1998(8) SCC 493 wherein, at paragraph-4, the Hon’ble Apex Court has held as follows;
“ Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”
8. Keeping in view the principle laid down by the Apex Court, on perusal of the evidence of PW.1-complainant, the husband of the deceased has deposed that when he was in the Tea stall on the side of the road near Kaveri Pipe Factory, his wife, the deceased, went to attend nature call by crossing the road and while she was coming back, at that time a motorcycle came from Kolar side and hit her, due to which, she fell down and sustained injuries. At that time PW.1-Ramareddy and PW.2-Krishna were standing near the stall and drinking tea. Thereafter, they shifted the deceased to the hospital. He further says that the motorcycle also fell on the ground and the rider also sustained injuries. Thereafter, he gave complaint to the Police as per Ex.P.1 and he identified the accused as the person who rode the motorcycle on that day. PW.2- Krishna, who is also an eyewitness has deposed that on 22.10.2009 near Kaveri Pipe Factory on the opposite road, the accident has occurred, at that time, it was 4.00 p.m. when he came for drinking tea. At that time, the victim went to the other side of the road for attending nature call and while coming back, the two wheeler came and hit on her due to which, she sustained injuries on her head and ear and then she was shifted to the hospital. Thereafter, she was referred to NIMHANS hospital. He also deposed that the Police came to the spot and prepared the spot panchanama as per Ex.P.2 and he has identified accused as the rider of the motorcycle.
9. On perusal of the evidence of both the eyewitness, they have categorically stated that the motorcycle came and hit the deceased and she sustained injuries, but they have not at all stated anything about the rash and negligent riding or speed of the motorcycle rode by the accused. Even the prosecutor has not at all elicited anything from the mouth of both the witnesses in respect of the manner of occurrence of the accident or details as to how the accident has occurred. There is absolutely failure on the part of the prosecution for not having elicited anything about the rash and negligent driving of the motorcycle and the speed on the part of the accused at the time of the accident from the mouth of these witnesses. Though the defence stated that there was no accident, they have not seen, but both the witnesses have denied the same. However, the fact remains that both the witnesses have not at all spoken anything about the rash and negligent driving of the motorcycle on the part of the accused and also they have never spoken anything about the speed. As held by the Apex Court, stated supra, mere high speed is not a criteria to prove the rash and negligence on the part of the rider of the motorcycle. The judgment relied on by the learned counsel for the petitioner is squarely applicable to the case on hand. Therefore, learned counsel for the petitioner rightly contended that both the witnesses have not spoken about the rash and negligent riding of the motorcycle.
Therefore, merely because the motorcycle came and hit the deceased, it cannot be held to be proved by the prosecution against the accused for the offence either under Section 279 or 304(A) of IPC. Though, the learned High Court Government Pleader contended that there is some infirmity in the evidence, but without any legal evidence, the Court cannot convict the accused and it cannot be held that the charges against the accused was proved beyond all reasonable doubt. Therefore, I hold that both the Courts below have committed illegality and erred in coming to the conclusion that the accused is guilty of the offence under Section 304(A) IPC. Therefore, this Court is required to interfere with the findings recorded by both the Courts below and the revision petition deserves to be allowed.
10. Accordingly, the Criminal Revision Petition is allowed.
The judgment of conviction and sentence dated 30.03.2011 passed by the Principal Civil Judge (Sr.Dn.) & CJM, Kolar in CC No.964/2009 and modified by the judgment dated 02.11.2011 passed by I Additional Sessions Judge, Kolar, in Crl.A.No.23/2011 are set aside. The petitioner is acquitted of the charges leveled against him.
Bail bonds, if any, stands cancelled. Fine amount, if any deposited, is ordered to be refunded to the petitioner.
A copy of this order be sent to the Courts below along with LCR.
SD/- JUDGE mv