Karnataka High Court
Mohammed Arif vs State By Malur Police Station on 20 July, 2023
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NC: 2023:KHC:25338
CRL.RP No. 1331 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1331 OF 2019
BETWEEN:
Digitally
MOHAMMED ARIF
signed by N S/O ABDUL SATTAR
UMA
AGED ABOUT 39 YEARS
Location:
HIGH R/AT MUTTINAKOPPA
COURT OF
KARNATAKA N.R. PURA TALUK, CHIKKAMAGALURU - 577 134.
...PETITIONER
(BY SRI. ASHWATH C M, ADVOCATE)
AND:
STATE BY MALUR POLICE STATION
THIRTHAHALLI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
---
THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING
TO SET ASIDE THE JUDGMENT DATED 27.09.2019 PASSED BY
THE III ADDITIONAL SESSIONS JUDGE AT SHIVAMOGGA IN
CRL.A.NO.49/2019 AND THE JUDGMENT DATED 16.02.2019
PASSED BY THE I ADDITIONAL CIVIL JUDGE AND JMFC AT
THIRTHAHALLI IN C.C.NO.1179/2015 AND ETC.,
THIS CRIMINAL REVISION PETITION, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2023:KHC:25338
CRL.RP No. 1331 of 2019
ORDER
1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 16.02.2019 in C.C.No.1179/2015 on the file of the Court of the I Additional Civil Judge and J.M.F.C., Thirthahalli, and its confirmation judgment dated 27.09.2019 in Crl.A.No.49/2019 on the file of the Court of III Additional Sessions Judge at Shivamogga, has filed this revision petition seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offences punishable under Sections 279, 337 and 304(A) of Indian Penal Code (for short 'IPC').
2. The petitioner is the accused before the Trial Court and appellant before the Appellate Court.
Brief facts of the case are:
3. It is the case of the prosecution that, on 03.03.2015 at about 05.30 p.m., the petitioner being the driver of motorbike bearing registration No.KA-18/V-2886 was riding his motorbike along with pillion rider, drove the said motorbike -3- NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 on Shivamogga - Thirthahalli road in high speed and in a rash and negligent manner and caused accident to the bike which was coming from opposite direction. The said accident caused due to overtaking of the lorry by the petitioner. Due to said accident, all the three persons of their respective bikes fell down. PW.1 and the petitioner stated to have sustained injuries. They have been shifted to the hospital along with the pillion rider who sustained grievous injuries. The pillion rider however succumbed to the injuries. The statement of PW.1 was recorded through the scribe and a case was registered against the petitioner. The jurisdictional police conducted investigation and submitted charge sheet for the offences stated supra.
4. The prosecution, in order to prove its case, has examined 8 witnesses namely PWs.1 to 8 and got marked Ex.P1 to Ex.P14. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioner for the offences stated supra. On appeal being filed, the Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the -4- NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 same, the petitioner has preferred this revision petition seeking to set aside the concurrent findings.
5. Heard Shri Ashwath.C.M., learned counsel for the petitioner and Shri Rahul Rai.K., learned High Court Government Pleader for the respondent / State.
6. It is the submission of the learned counsel for the petitioner that, the concurrent findings recorded for conviction by the Courts below are perverse, erroneous and opposed to law and facts. Hence, the conviction recorded by the Courts below is required to be set aside.
7. It is further submitted by the learned counsel for the petitioner that, the Trial Court failed to consider the evidence of all the witnesses properly and convicted the petitioner which appears to be erroneous and requires to be set aside. It is his further contention that, even though none of the witnesses have deposed about the rashness and negligence of the petitioner in driving his motorbike, the Trial Court and the Appellate Court presuming that, the petitioner was riding -5- NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 the said motorbike in high speed and also in a rash and negligent manner appears to be erroneous and the said conviction requires to be set aside.
8. It is further submitted that, Ex.P3 - spot mahazar indicates that, the accident occurred in the road from the middle 3 feet away towards north and the sketch - Ex.P7 corroborates Ex.P3. If really PW.1 was coming from left side of the road, even the petitioner overtaking another vehicle, accident would not have occurred. It is his further contention that, the theory of doctrine of res ipsa loquitor could have been applied by the Trial Court and acquitted the petitioner for the above said offences. Since the Courts below failed to appreciate both the oral and documentary evidence properly and committed error in convicting the petitioner, learned counsel for the petitioner seeks indulgence of this Court to interfere with the judgments of conviction passed by the Courts below and prays to acquit the petitioner.
9. Per contra learned High Court Government Pleader (for short "HCGP") vehemently justified the concurrent findings recorded by the Courts below and submitted that, the place -6- NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 where the accident occurred, as per the sketch appears, that is a cross road, the petitioner was not supposed to overtake on that area and the evidence of PW.1 is that the accident occurred while the petitioner was overtaking the lorry which was moving in front of the said vehicle. Ex.P7 also indicates the place of occurrence and the Courts below after considering the both the oral and documentary evidence on record and also hearing the arguments of the respective counsels, concurrently held that the petitioner herein is found guilty of the offences stated supra and convicted him. Such being the fact, interference with the well reasoned order passed by the Courts below may not be warranted. Having submitted thus, learned HCGP prays to dismiss the petition.
10. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the concurrent findings and the documents available on record, now it is relevant to refer the evidence of all the witnesses by way of cursory look to analyse properly and to ascertain as to whether any error committed by the Courts below in appreciating the evidence.
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11. PW.1 is the complainant, PWs.2 and 3 are the mahazar witnesses, PW.4 is the Police Constable of Malur Police Station, PW.6 is the owner of the motorbike bearing No.KA.18.V.2886. Rest of the witnesses are police officers and Investigating Officers. Except the evidence of PWs.1 and 6, the evidence of other witnesses may not be appropriate for consideration. As per the evidence of PW.1, when he was coming from Thirthahalli towards Shivamogga on the left side, near Kudamallige - Kunnali cross, the accident occurred when the petitioner was trying to overtake the lorry. It is stated in his evidence that, the petitioner was riding his motorbike in high speed, however, on reading of the entire evidence of PW.1, nowhere it is stated it was driven in a rash and negligent manner. In the absence of evidence in respect of rashness and negligence, conviction for the offence under Section 279 of IPC cannot be recorded.
12. On careful perusal of Exs.P3 and P7, it appears that, the width of the road is 18 feet and in the middle of the road, there is a partition. The vehicle can move easily from either side. The prosecution has not produced any document to -8- NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 show that, over-taking of the vehicle is prohibited in that place. Overtaking the vehicle in the National Highway is not an offence. However, while overtaking the said vehicle, the rider of the vehicle who wants to overtake the vehicle, should take care of the road safety and with due diligence, he can overtake the vehicle and move away. It is also important to mention here that, the person who happens to come in the opposite direction, has to take precautionary measures to keep his vehicle almost left side of the road.
13. Even though PW.1 stated that, he was riding his motorcycle along with pillion rider on the left side of the road, Ex.P7 appears to be contrary to the evidence of PW.1. The place of accident has been mentioned in Ex.P7 which shows that the said accident occurred in the middle of the road. On reading of Ex.P7 in conjunction with doctrine of res ipsa loquitor theory, the evidence of PW.1 cannot be accepted. Accidents in the road cannot be occurred always on the negligence of the offending vehicle, however, there must be some contributory negligence by the other party also.
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14. Now, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA v. SATISH1, in para No.4, which reads thus:
4. 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 1 (1998) 8 SCC 493
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NC: 2023:KHC:25338 CRL.RP No. 1331 of 2019 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."
15. On reading of the dictum of the Hon'ble Supreme Court, it appears that, mere riding the vehicle in high speed cannot be considered as negligence, unless the prosecution specifically proves that it was being driven in a rash and negligent manner. In this way, the prosecution failed to establish that, the petitioner committed offence under Sections 279, 337 and 304-A of IPC. However, the Courts below recorded the conviction ignoring the facts and circumstances of the case. Therefore, the said conviction is liable to be set aside.
16. In the light of the observations made above, I proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 16.02.2019 passed in
C.C.No.1179/2015 by the Court of the I
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NC: 2023:KHC:25338
CRL.RP No. 1331 of 2019
Additional Civil Judge & J.M.F.C., Thirthahalli and judgment and order dated 27.09.2019 passed in Crl.A. No.49/2019 by the Court of III Additional Sessions Judge, Shivamogga are set aside.
(iii) The petitioner is acquitted for the offences under Sections 279, 337 and 304-A of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE BSS List No.: 1 Sl No.: 49