Karnataka High Court
Ramalingeshwara vs State Of Karnataka on 9 December, 2020
Crl.R.P.No.736/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.736/2011
BETWEEN:
RAMALINGESHWARA
S/O YESHWANTH ROY BIRADHAR
AGED ABOUT 31 YEARS
R/AT FOURWALL BUILDING
INDI ROAD, BIJAPUR ...PETITIONER
(BY SRI AMIT DESHPANDE, ADVOCATE)
AND:
STATE OF KARNATAKA
BY POLICE INSPECTOR OF
SURATKAL POLICE STATION ...RESPONDENT
(BY SRI H.R. SHOWRI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 05.08.2010 PASSED BY
THE JMFC (II COURT) MANGALORE IN C.C.NO.3333/2009
AND TO SET ASIDE THE ORDER DATED 08.04.2011 PASSED
BY THE I ADDL.S.J., D.K., MANGALORE IN CRIMINAL APPEAL
NO.117/2010.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT THROUGH PHYSICAL
HEARING MADE THE FOLLOWING:
Crl.R.P.No.736/2011
2
ORDER
"Whether the impugned orders of conviction and sentence passed against the petitioner by the Courts below for the offences punishable under Section 279 and 304A of IPC suffer perversity, impropriety or incorrectness?" is the question involved in this case.
2. The petitioner was prosecuted in C.C.No.3333/2009 on the file of J.M.F.C. II Court, Mangaluru for the offences punishable under Section 279 and 304A of IPC on the basis of the charge sheet filed by Surathkal police in Crime No.129/2009 of their police station.
3. On 29.05.2009 at 7.30 p.m. on National Highway 17 running from Mangalore to Udupi at Honnakatte junction, Kulai Village, Mangalore Taluk, lorry bearing No.KA-28-A-7154 hit one Umesh Shetty and caused his death. Regarding the incident, PW.1 Yadava Devadiga filed the complaint as per Ex.P1 before CW.14 Suresh, Assistant Sub-Inspector of Police, Surathkal police station.
Crl.R.P.No.736/20113
4. On the basis of complaint Ex.P1, CW.14 registered the first information report in Crime No.129/2009 of Surathkal police station for the offences punishable under Section 279 and 304A of IPC and handed over the further investigation to PW.5. PW.5 conducted the investigation and filed the charge sheet against the petitioner for the offences punishable under Section 279 and 304A of IPC and Section 184 of the Motor Vehicles Act, 1988 ('the MV Act' for short).
5. The learned Magistrate on taking cognizance summoned the petitioner and tried him for the offences punishable under Sections 279 and 304A of IPC. The trial Court did not frame the charge for the offence punishable under Section 184 of the MV Act and try him for the said offence.
6. The trial Court on hearing the parties convicted the petitioner for the offences punishable under Sections 279 and 304A of IPC and sentenced him to rigorous imprisonment of one month and fine of Crl.R.P.No.736/2011 4 Rs.750/- for the offence punishable under Section 279 of IPC and rigorous imprisonment of six months and fine of Rs.1,000/- for the offence punishable under Section 304A of IPC with default sentence clause.
7. The petitioner challenged the said order of conviction and sentence in Crl.A.No.117/2010 before the I Additional Sessions Judge, Dakshina Kannada, Mangalore. The First Appellate Court on hearing the parties by the impugned judgment and order dismissed the appeal and confirmed the order of conviction and sentence passed by the trial Court.
8. The order of conviction and sentence were based on the following grounds:
(i) The charge against the petitioner was proved by the evidence of PWs.1 to 4 eyewitnesses; &
(ii) Evidence of the eyewitnesses was corroborated by the evidence of PW.5 the Investigating Officer, PW.6 Motor Vehicle Inspector and PW.7 the registered owner of the lorry.Crl.R.P.No.736/2011 5
9. Sri Amit Deshpande, learned Counsel for the petitioner reiterating the grounds of petition seeks to assail the impugned orders of conviction and sentence on the following grounds:
(i) PWs.1 to 4 being the eyewitnesses was apparently doubtful and they did not speak about rashness and negligence on the part of the petitioner;
(ii) The accident occurred in highway and the deceased himself was negligent in crossing the road ignoring the moving traffic;
(iii) There were material contradictions in the oral and documentary evidence; &
(iv) The impugned orders of conviction and sentence suffer perversity and have caused miscarriage of justice.
10. In support of his contentions, he relies upon the following judgments:
1. Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh1
2. S.N.Hussain v. The State of Andhra Pradesh2 1 AIR 2000 SC 2511 2 AIR 1972 SC 685 Crl.R.P.No.736/2011 6
3. Abdul Subhan v. State (NCT of Delhi)3
4. The State by Traffic West Police Station v.
Dayananda4
5. State of Karnataka v. Bangarashetty5
6. Shivakumar v. State of Karnataka6
11. Per contra, Sri H.R.Showri, learned HCGP seeks to justify the impugned orders of conviction and sentence on the following grounds:
(i) Since the trial Court and the First Appellate Court on appreciation and re-appreciation of the evidence have concurrently held that rashness and negligence on the part of the petitioner in driving the vehicle is proved this Court in revisional jurisdiction cannot interfere with such concurrent findings;
(ii) The presence of PWs.1 to 4 at the scene of offence is natural and probable. They not speaking in 3 2007 Crl.L.J. 1089 4 Crl.A.No.363/2019, DD 18.02.2020 5 Crl.A.No.53/ 2011, DD 11.06.2018 6 Crl.R.P.No.1022/2011, DD 21.12.2018 7 2001 Cri.L.J.5 Crl.R.P.No.736/2011 7 very specific words about rashness and negligence cannot be blown out of proportion; &
(iii) There were no major contradictions in spot mahazar Ex.P2 and the sketch of scene of offence Ex.P5.
12. In support of his contentions, he relies upon the following judgments:
1. Duli Chand v. Delhi Administration8
2. State of Karnataka v. Appa Balu Ingale9
3. State of Kerala v. Puttumana Illath Jathavedan Namboodiri10
4. Jagannath Choudhary v. Ramayan Singh11
5. Bindeshwari Prasad Singh alias B.P.Singh v. State of Bihar12
6. Naresh Giri v. State of M.P13
7. State of Karnataka v. Muralidhar14
13. This Court is aware that while exercising the revisional jurisdiction under Section 397 of Cr.P.C. that too when there are concurrent findings, the scope of 8 AIR 1975 SC 1960 9 AIR 1993 SC 1126 10 AIR 1999 SC 981 11 AIR 2002 SC 2229 12 AIR 2002 SC 2907 13 (2008) 1 SCC 791 14 (2009) 4 SCC 463 Crl.R.P.No.736/2011 8 interference in the orders of the Courts below is very limited. However, Section 397 of Cr.P.C. itself states that on examining the records of the trial Court and the First Appellate Court, if the revisional Court is satisfied that there is any incorrectness, illegality or impropriety in the findings, sentence or order passed by such Courts or irregularity in the proceedings of such Courts, the revisional Court may suspend sentence or may reverse the said order or judgment. The same principle is reiterated in Duli Chand's and Appa Balu Ingale's cases referred to supra relied upon by learned HCGP.
14. There cannot be any second opinion about the aforesaid view. But the fact remains that on examination of the records of the Courts below, if the High Court finds that the impugned orders passed by the Courts below suffer illegality, impropriety or incorrectness leading to miscarriage of justice, hands of the revisional Court are not fettered.
15. Therefore, what is to be examined in this case is whether the trial Court and the First Appellate Crl.R.P.No.736/2011 9 Court committed any error, illegality, impropriety or incorrectness in holding that the charges brought against the petitioner were proved by the evidence of PWs.1 to 4 the alleged eyewitnesses.
Regarding Rashness and negligence:
16. The charge was that when Umesh Shetty was standing on road median/divider to cross the road, the petitioner drove his lorry bearing No.KA-28-A-7154 in rash and negligent manner so as to endanger human life, hit him and caused his death.
17. Perusal of Section 279 of IPC makes it clear that to constitute an offence under Section 279 of IPC there should be rashness and negligence on the part of the driver of the offending vehicle so as to endanger the human life in public road. Reading of Section 304A of IPC also shows that in causing death of the person, the act of driving should be covered under Section 279 IPC. Whether that was made out by the prosecution was the question.
Crl.R.P.No.736/201110
18. The complaint Ex.P1 was filed soon after the incident. In Ex.P1, PW.1 himself states that the victim after completing his work in Suprabhat Hotel at about 7.30 p.m. crossed the one part of the road and reached the road median/divider to cross the other part of the road and when he proceeded to cross the other part of the road, the petitioner drove the lorry in a high speed and negligently.
19. Keeping in mind the fact that the accident occurred in highway, the Court has to examine whether the evidence of PWs.1 to 4 the eyewitnesses was sufficient to hold that the petitioner drove the lorry in rash and negligent manner and in a high speed. PWs.1 to 3 only state that the petitioner drove the lorry in high speed and they do not speak about rashness and negligence in driving the lorry so as to endanger the human life.
20. PW.4 in chief examination itself states that he came to know that Umesh Shetty met with accident and died. Apparently his evidence was hearsay Crl.R.P.No.736/2011 11 evidence. The evidence of PWs.1 to 3 has to satisfy the requirements of charge namely rashness and negligence on the part of the petitioner. Except evidence of PW.1 to PW.3 there was no other evidence in proof of the said charge.
21. It is material to note that the petitioner was charge sheeted for the offence punishable under Section 184 of the MV Act which reads as follows:
"184. Driving dangerously: Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both."
22. Section 184 of the MV Act stipulates driving in the context of different conditions roadwise, trafficwise etc. Actually Section 184 of the MV Act was much comprehensive than Section 279 of IPC. Learned Magistrate while framing the charges dropped Section Crl.R.P.No.736/2011 12 184 of the MV Act, thereby implicitly he discharged the petitioner of the allegations that he drove against expected norms of traffic in the High way.
23. Learned Magistrate dropping the charge for the offence punishable under Section 184 of MV Act and convicting the petitioner for the offences punishable under Section 279 and 304A of IPC is self contradictory. The conclusions of the courts below that accident was due to rash and negligent driving so as to endanger human life despite the alleged eyewitnesses not speaking about the rashness or negligence on the part of the petitioner in driving the vehicle amount to perversity, hence unsustainable.
Reg. PWs.1 to 4 being eyewitnesses to the incident:
24. According to the prosecution, PWs.1 to 4 were eyewitnesses to the incident. It was further case of the prosecution that the scene of offence was road median/divider on national highway. As per Sections 101 and 102 of the Indian Evidence Act, 1872 the burden of proof of the fact that the petitioner hit Umesh Crl.R.P.No.736/2011 13 Shetty while he was standing in road median was on the prosecution, more particularly in the light of the defence of the petitioner that the victim himself in his attempt to cross the highway when the traffic was moving, contributed for the accident.
25. In Ex.P1 the complaint, the complainant the alleged eyewitness himself states that the victim after reaching the road median was trying to cross the road and the accident occurred. Thereafter PWs.1 to 4 before the Court have improved their version and state that the victim was standing near road median/divider.
26. To prove that the scene of offence was road divider/median, the other evidence relied was Ex.P5 the sketch of the scene of offence allegedly drawn by PW.5 the Investigating Officer. PW.5 states that he took up investigation on 29.05.2009. On 30.05.2009 he visited the Primary Health Centre, Surathkal and conducted inquest mahazar between 8.00 am to 10.00 a.m. Thereafter he visited the scene of offence, conducted the spot mahazar as per Ex.P2 between 11.00 am to Crl.R.P.No.736/2011 14 12.00 noon and drew sketch Ex.P5. He says thereafter, he seized the offending lorry. Thus, according to him, when he prepared Ex.P2 spot mahazar and Ex.P5 sketch of the scene of offence the offending vehicle was still there at the scene of offence.
27. PWs.1 to 3 were said to be the witnesses to Ex.P2 the spot Mahazar. PW.1 in his cross-examination states that the lorry was taken to the police station even before the mahazar was drawn and at the time of mahazar, the lorry was not there at the scene of offence. PW.2 in his cross-examination states that he does not know when the lorry was taken to the police station from the scene of offence. He further states that one Suresh took his signature in Surathkal police station. PW.3 the other alleged mahazar witness in his cross-examination states that the police took the lorry to the police station at 9.00 p.m. on the date of accident and he subscribed his signature in the police station. Under the circumstances, the sketch of the scene of offence Ex.P5 becomes doubtful document. Therefore, Crl.R.P.No.736/2011 15 the prosecution has failed to prove satisfactorily that the scene of offence was road divider.
28. According to the prosecution, as per the sketch of the scene of offence the accident took place near auto-rickshaw stand and PWs.1 and 2 used to park their vehicles in the auto-rickshaw stand and they witnessed the incident. The accident occurred at 7.30 p.m. As per the sketch of the scene of offence itself there was no source of light near the scene of offence. Under such circumstances, how could PWs.1 and 2 sitting in the auto rickshaw stand, witness the incident was not made clear.
29. PW.3 was chance witness and he says that he had come to the complex near the scene of offence for purchasing some articles and that is how he witnessed the incident. Since he was chance witness, unless his presence in the scene of offence was made probable by examining the other relevant witnesses, his evidence could not have been relied.
Crl.R.P.No.736/201116
30. PW.4 in his chief examination itself stated that he came to know that the accident occurred and Umesh Shetty died in the accident. Therefore, as already pointed out his evidence was hearsay evidence. Even assuming that PW.1 to PW.4 witnessed the incident, as pointed out the scene of offence was not proved. The evidence of the prosecution witnesses and Ex.P1 itself revealed that the accident occurred while the victim was trying to cross the national highway. They did not speak to the rashness and negligence on the part of the petitioner so as to endanger human life.
31. All the aforesaid facts and circumstances probabalises the defence of the accused that the accident occurred when the victim himself attempted to cross the road negligently. Therefore, the conclusion reached by the trial Court and the First Appellate Court that the accident occurred due to rash and negligent driving of the vehicle by the petitioner in high speed was contrary to the evidence on record. Crl.R.P.No.736/2011 17
32. In Mohammed Yusuf's case referred to supra, the Hon'ble Supreme Court held as follows:
"4. I have carefully evaluated the evidence on the record in the light of the submissions that have been canvassed. One or two factors stand out very prominently, the first of them being that the incident has taken place on the highway. The situation that prevails on the open highway is slightly different to one that the Court would take into account had the incident taken place within the city limits. One needs to take into account the factors that on the highway, vehicles would legitimately be moving at a relatively high speed. The more important aspect is that on the highway the vehicles have right of way and if a person desires to cross the highway, the rules of the road require that the person would have to wait until the traffic has passed and only then embark on crossing the highway. It is a very familiar error committed by pedestrians even on the national highway that they saunter on to the road regardless of the movement of the traffic and if a person does a suicidal act of this type, then it would be impermissible for a Court in situation of this type to hold the driver of the vehicle responsible for the consequences of the Act. I need to take into account one or two aspects submitted by the defence, the first of them being that the incident has taken place at night and we have no indication on the record as to what the light conditions were like. One may presume therefore that the light conditions were relatively poor and in this background if the deceased, as often happens, alighted from the jeep and was impatient to get to the other side of the road and made his way across the highway regardless of the oncoming vehicles, there is every possibility that he was the main contributory to the incident in question. We do have generalized evidence to the effect that the impact took place between Umesh and the motorcycle but we do not have a really specialized description from which the Court can 100% hold that it was the driver who was responsible and it was because of his rashness and negligence that the incident took place. It is true that in motor accident cases that the principle that the facts speak for themselves is applicable but in the present instance even those facts are not free from doubt. Having regard to this position, I am of the view that this Court must bear in mind one fact, that this is an appeal against acquittal and unless the Court is satisfied that the acquittal order is not only wrong but has also resulted in miscarriage of justice, it would not be permissible for Crl.R.P.No.736/2011 18 this Court to interfere with the order of acquittal. Having regard to this position, no interference is called for. The appeal accordingly fails and stands disposed of. The bail bond if executed by the respondent, to stand cancelled."
(emphasis supplied)
33. In Mohammed Aynuddin's case and S.N.Hussain's case referred to supra, the Hon'ble Supreme Court while considering the case under Section 304A of IPC held that mere speed on the part of the driver of the vehicle is not sufficient to convict the accused for the offence punishable under Section 304A of IPC.
34. In convicting and sentencing the petitioner, the trial Court and the First Appellate Court acted contrary to the ratio of aforesaid judgments of the Supreme Court and the evidence on record. That has led to miscarriage of justice. Under the circumstances, the impugned order of conviction and sentence warrant interference of this Court under the revisional jurisdiction. Therefore, the petition is allowed.
The impugned order of conviction and sentence passed by the trial Court and upheld by the First Crl.R.P.No.736/2011 19 Appellate Court for the offences punishable under Section 279 and 304A of IPC are hereby set aside.
The petitioner is acquitted of the said charges. Fine amount deposited, if any, shall be refunded to the petitioner.
Sd/-
JUDGE KSR