Karnataka High Court
Mahadev S/O. Ningappa Mali vs The State Of Karnataka on 6 April, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION NO.2170/2013
BETWEEN:
MAHADEV S/O. NINGAPPA MALI
AGE: 40 YEARS,
R/AT: KALBILAGI,
TQ: JAMKHANDI, DIST: BAGALKOTE
...PETITIONER
(BY SMT.DEEPA J., ADVOCATE FOR SHRI MRUTYUNJAY TATA
BANGI, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
REP. BY CIRCLE INSPECTOR OF POLICE
BAGALKOTE RURAL POLICE STATION
BAGALKOTE
...RESPONDENT
(BY SMT.GIRIJA HIREMATH, HCGP.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, SEEKING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
23.10.2010, PASSED BY THE PRL. CIVIL JUDGE & JMFC,
BAGALKOTE, IN C.C.NO.366/2010 AND AFFIRMING THE
PUNISHMENT AND REDUCING THE SENTENCE BY THE SESSIONS
JUDGE, BAGALKOTE, BY JUDGMENT DATED 19.03.2013, PASSED
IN CRL.A.NO.90/2010 AND ACQUIT THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304(A) OF
IPC, ETC.,.
2
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This revision petition is filed challenging the judgment of conviction and order of sentence dated 26.10.2010, passed by the Prl. Civil Judge and JMFC, Bagalkote, in C.C.No.366/2010, and the judgment dated 19.3.2013, passed by the District and Sessions Judge, Bagalkote, in Crl.A.No.90/2010 convicting and sentencing the accused/petitioner for the offences punishable under sections 279, 304A of IPC.
2. The accused/revision petitioner was convicted by the trial Court and sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.1,000/- for the offence punishable under section 279 of IPC and also sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- for the offence punishable under section 304A of IPC. The revision petitioner preferred the appeal. The criminal appeal was partly allowed. The learned Sessions Judge 3 modified the sentence of imprisonment from one year to six months for the offence under section 304A of IPC and also sentenced to pay a fine of Rs.1,000/- for the offence punishable under section 279 of IPC. Aggrieved by the same, this revision petition is filed.
3. Heard Smt.Deepa J., the learned counsel appearing on behalf of Shri Mrutyunjay Tata Bangi, learned counsel for the petitioner and Smt.Girija Hiremath, the learned HCGP for the respondent State and perused the records.
4. The learned counsel for the revision petitioner argued that the judgment of conviction passed by both the Courts are not based on proper appreciation of evidence. There is no eye witness to the incident. The prosecution not proved the spot of accident. It is stated that the accident has taken place on highway and there are speed breakers. Therefore, the question of rash and negligent driving does not arise, because one cannot drive the vehicle in a rash manner over the speed breakers. The Courts have not considered the circumstances in which the 4 accident took place. The learned counsel argued that while overtaking the lorry which was parked on the road, where there were speed breakers; the boy dashed to the bus. The petitioner was not rash and negligent in driving. Hence the order of conviction cannot sustain. The Courts have not given proper reasons. The learned counsel argued that the petitioner is working as KSRTC driver and the evidence of all witnesses show that just to help the family of the deceased to get compensation they are deposing. Hence, the learned counsel argued to acquit the accused by setting aside the conviction as it is not based on evidence on record.
5. Against this, the learned HCGP argued that both the Courts have concurrently held that accident occurred due to rash and negligent driving of the bus by its driver. Admittedly the hand sketch and the spot panchanama shows that the accident occurred on the extreme right side of the road and that itself shows that the driver of the bus took the vehicle to the extreme right side and dashed to the boy. The learned HCGP also argued 5 that the eye witnesses have supported the prosecution case. Both the Courts have rightly appreciated the evidence in a proper perspective and found the revision petitioner guilty of the offence and rightly convicted him. Hence the said order of conviction and sentence needs no interference by this Court.
6. I have perused the impugned judgment of the trial Court and also the Sessions Judge. Perused the evidence on record.
7. The revision petitioner who was the accused before the trial Court was the driver of the offending vehicle bearing registration No.KA-28/F-1320 on the date of accident is not disputed and the death of the boy due to injuries sustained to his head is also not disputed. The learned Sessions Judge though he is required to re-appreciate the evidence of witnesses being the first appellate Court, has not discussed in detail the evidence and in one sentence he has stated that PW.1-Chidanand lodged the complaint and while enquired, he came to know that the driver drove the bus in a rash and negligent 6 manner. He is the hearsay witness. The learned Sessions Judge has stated that PW.3 to PW.5 who are the eye witnesses have clearly stated before the Court that they saw the accused and the boy sitting by the side of road answering nature call. Due to that the boy fell down and sustained head injury. In one sentence it is stated that there is nothing in the cross-examination of the witness. There is no detail discussion or re-appreciation of evidence of the witnesses by the learned Sessions Judge.
8. PW.2-Dyavappa, the pancha witness has also admitted that there was a road breaker at the spot of accident. He has stated about drawing panchanama Ex.P.2.
9. PW.3-Muchakhandeppa, stated that he is having a kirana shop at the spot of accident and he was sitting in front of katta of his shop. Nowhere either in the panchanama or in the hand sketch any shop near the scene of offence is shown. On the other hand, there is a temple of Paramalingeshwar on the right side of the road and it was on the platform of three feet above the scene of offence place. He has stated that a shop is situated in 7 Simikeri village. But neither spot panchanama nor sketch map Ex.P.7 shows any shop there. It is further stated that just to avoid the road humps, the driver of the bus took the vehicle to the right side and dashed to the deceased, who was sitting by the side of the road. In the cross- examination he has stated that the scene of offence place is about 50-60 feet away from his shop and there were no customers on that day. And he states that the scene of offence place is on the eastern side of his shop. He has stated that when he went to the spot, already 30-40 persons were present at the accident place and he has not observed on which part of the body the said boy sustained injuries. He cannot say who are the other persons present. He has denied the suggestion that the said boy while crossing the road without seeing the bus, touched the bumper of the bus and sustained injuries. He has denied it. If at all this witness is of the same village and having shop, his shop should have been shown either in the panchanama or in the sketch map. He states that when he went there, already 30-40 persons were gathered and he saw the bus only after the accident. He cannot say on 8 which part of the body the deceased sustained injuries. Even he cannot say the name of any persons present there. If he is of the same village or locality, he must be knowing the names of some persons of the locality who have gathered there, if he was present there. Therefore, the presence of this witness seeing the incident itself is doubtful.
10. PW.4-Vitthal has stated that about three months prior to he giving evidence, he was standing in front of a tea chop. At that time the deceased Krishna was sitting by the side of the road to attend nature call. A bus came in a high speed and as there are speed breakers, in order to avoid it, the driver took the vehicle to the extreme right side and dashed to Krishna. He sustained grievous injuries. He also identified the accused. But in his cross- examination he states that he was standing in front of tea shop of one Chawadi. But who is that Chawadi is not forthcoming, nor there is anything in the sketch of place of accident to show that there was any tea shop near the scene of offence place. He has stated that the said tea 9 shop is just 15 feet away from the scene of offence place which is again contrary to the scene of offence panchanama and the hand sketch. Even he also stated that there were 2-3 persons present along with him, but he cannot say their names. He has stated that he has not seen the bus prior to the accident. This creates a doubt about this witness witnessing the accident. He states that the said bus ran on the said Krishna which is not proved. Whether actually the bus touched the said deceased is not stated by him. If at all he has seen the accident, he would have stated the manner in which the bus touched the deceased. Simply stating that the bus dashed to the deceased boy who was sitting by the side of the road does not help the prosecution to prove the ingredients of offence. Therefore the presence of this witness witnessing the accident itself is also doubtful.
11. Similar is the evidence of PW.5-Muttappa, who again states that he was standing in front of the tea shop by the side of the road. The manner of accident stated by this witness also cannot be believed. He never stated that 10 the accused drove the bus in a rash and negligent manner. On the other hand he stated, just to avoid the road breakers, the accused took the bus to the right side of the road and caused accident to Krishna. Again his cross- examination shows that he was not present at the spot. He clearly stated that he has not given statement before the police as per Ex.D.1. But as per Ex.D.1 he was in bus- stand. So these are the only witnesses based on their evidence the trial Court has convicted the accused.
12. The learned Sessions Judge has not discussed anything, not a single sentence in cross-examination is considered or re-appreciated the evidence. Simply in one sentence the learned Sessions Judge stated that PW.3 to PW.5 have stated that near the spot they saw the accused coming in a high speed and dashed against deceased Krishna. Though their cross-examination clearly indicates that their presence itself is doubtful, nothing is stated by the learned Sessions Judge. If at all the bus was in a very high speed and it dashed to a boy sitting, then definitely it could have ran over the said boy. There is no injury or 11 crush injury or marks of tyre on the body of the deceased as per the postmortem report. The defence of the revision petitioner that a lorry was parked on the right side of the road and without seeing the bus coming, the boy suddenly crossed the road and lorry and touched the bumper of the bus. That possibility also cannot be ruled out in view of spot panchanama and sketch map.
13. Because if the boy came in contact with the moving bus, definitely, the boy should have fell on the road and there is every possibility that he should have sustained injury to his head, if in case the accident occurred on the road. Here, the scene of offence place is shown as 'by the side of the road'. The boy was very young and aged about 06 years and if at all he was sitting by the side of the road, definitely, the bus could not have ran over him, if the accident occurred as stated by these witnesses. It appears, the witnesses who are examined on behalf of prosecution are all of the same village and in order to help the parents of the deceased, to get compensation for the death of their son, they might be deposing in favour of them. 12
14. Admittedly, the sketch and the panchanama shows that there were speed breakers in the said road. If the driver of the bus was driving the bus with high speed and in a rash and negligent manner, if the boy suddenly came in contact with the bus, he would have stuck under the wheels of the bus, and the same would ran over him. But here there is no reason for the driver of the offending bus to take the bus to the extreme right side of the road in order to avoid speed breaker as he was moving towards Bagalkote, i.e., on the left side of the road there is Kachcha road. Therefore, the possibility of accident occurred as stated by these witnesses appears to be very remote.
15. Looking into the evidence of PW.6, it is evident that there were speed breakers on the road, where the accident took place. It is also evident that though the incident took place around 04:30 p.m. according to the prosecution, but the FIR was registered on 11.03.2010 at about 08:45 p.m. as per Ex.P6 and the endorsement of the magistrate made on Ex.P6 shows that it reached the Court on the next day i.e., on 12.03.2010 at about 11:00 a.m. So this unexplained delay in registering the FIR, sending the same to 13 the magistrate also creates doubt about the case of the prosecution. Further the names of PWs.3 and 4 is not forthcoming in the FIR. The name of PW.2 is shown in FIR as eye witness to the incident, but he is examined as pancha witness only. None of the names of the alleged eye witnesses are shown in the FIR. From the photos produced in the records, one can see there is no speed breakers at all at the place of accident. Then the fact that the driver of the bus in order to avoid speed breakers, has caused the accident cannot be accepted. Therefore, impugned judgment of learned Sessions Judge is very cryptic as the same is rendered without re-appreciating the evidence and thereby confirming the judgment of conviction and order of sentence passed by trial Court is illegal. Further, being the appellate court, it is the duty of the first appellate court to re-appreciate the evidence meticulously. But in this case, learned sessions judge held that there is no reason to disbelieve the evidence of PWs.3 to 5 which corroborates with other evidence and held that there is sufficient material to hold that the accused has committed the offence and convicted him for the charges leveled against him. The 14 learned Sessions Judge has not kept in mind, the settled principles regarding the appreciation of evidence in the case where due to rash and negligent driving, the accident occurred. The driver of the offending vehicle not pleaded anywhere that he is not driving the vehicle in a rash and negligent manner at the time of accident. If at all the allegations of prosecution is considered regarding the manner in which the accident occurred as stated by the prosecution, then such injury could not have caused to the boy, on the other hand, the bus would have ran over the boy. It is also not forthcoming from the evidence of prosecution witnesses that why that boy came there or as to whether any relative of deceased was present or his parents were present there, why deceased was sitting by the side of the road at the time of accident is also not forthcoming. Only the relative of PW.1 after taking deceased to the hospital, belatedly lodged the complaint. In criminal justice system, the prosecution has to prove its case, beyond all reasonable doubt. There is a lot of difference between 'may be true' and 'must be true'. The prosecution has to prove the fact that as to in which manner the accident occurred. But the theory of accident stated by 15 prosecution itself is doubtful which does not inspire the confidence in them.
16. In view of settled principle that if two views are possible, then the view favourable to the accused will have to be accepted. But the learned Sessions Judge without assigning any reasons, simply concluded in four lines at paragraph No.18 of its judgment that oral and documentary evidence produced discloses that the prosecution has proved guilt of the accused beyond all reasonable doubt. Such a finding is perverse, illegal and not based on settled principles regarding appreciation of evidence. This has resulted in miscarriage of justice. This Court being the revisional Court, has to examine legality and correctness of the judgment passed by the trial court and appellate Court. But the findings and reasoning of the trial Court and the first appellate Court are illegal.
17. In view of these principles, if the present petition is considered in my view, the benefit of doubt goes to the revision petitioner/accused. Accordingly, the petition deserves to be allowed.
16
In the result, I pass the following:
ORDER
1) The judgment of conviction and order of sentence passed by Principal Civil Judge and J.M.F.C, Bagalkot, in C.C.No.366/2010 dated 26.10.2010 which is confirmed by the learned Sessions Judge, Bagalkot in Crl.A.No.90/2010 dated 19.03.2020 are hereby set aside.
2) The Revision petitioner/accused is found not guilty for the offence under Sections 279 and 304A of IPC and he is acquitted of the said offences.
3) Bail bonds, if any, executed by the revision petitioner/accused shall stand cancelled. Fine amount, if any paid by him shall be refunded to him.
4) Send back the records to the trial court.
5) Pending I.A's if any stands disposed of.
Sd/-
JUDGE Mrk & HJ