Karnataka High Court
Ishwar S/O Shivappa Pawar vs The State Of Karnataka on 11 March, 2024
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NC: 2024:KHC-D:5096
CRL.RP No. 100063 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100063 OF 2017 (397)
BETWEEN:
ISHWAR S/O. SHIVAPPA PAWAR,
AGE: 34 YEARS,
R/O: NEKAR NAGAR,
RAGHAVENDRA CIRCLE,
4TH CROSS, HUBBALLI, KARNATAKA.
...PETITIONER
(BY SRI. GOURISHANKAR H. MOT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH THE INVESTIGATION OFFICER,
ANKOLA POLICE STATION,
Digitally signed
by SAMREEN
REPRESENTED BY ITS SPP,
AYUB
DESHNUR
HIGH COURT BUILDING,
Location: HIGH BENCH AT DHARWAD.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. M.B. GUNDAWADE, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., PRAYING TO CALL FOR
RECORDS AND ALLOW THIS CRIMINAL REVISION PETITION BY
SETTING ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED
08.08.2012 PASSED IN CRIMINAL APPEAL NO. 74 OF 2007 BY THE
LEARNED COURT OF THE HON'BLE SESSION JUDGE AND FAST
TRACK COURT-I UTTARA KANNADA, KARWAR WHICH HAS
CONFIRMED THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 29.03.2007 PASSED IN CRIMINAL CASE NO. 367
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NC: 2024:KHC-D:5096
CRL.RP No. 100063 of 2017
OF 2006 BY THE LEARNED 1ST JMFC COURT, ANKOLA, THEREBY
CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 279, 304(A) OF IPC AND ACQUIT THE PETITIONER
FROM ABOVE CASE.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is directed against the judgment in Criminal Appeal No.74/2007 dated 08.08.2012 by the Sessions Judge, Fast Track Court-I, Uttara Kannada, Karwar (herein after referred to as the 'I-Appellate Court'), whereby the Sessions Judge has confirmed the judgment of conviction and order of sentence passed in C.C.No.367/2006 by the JMFC, Ankola (hereinafter referred to as the 'Trial Court'), vided judgment dated 29.03.2007 for the offences punishable under sections 279 and 304-A of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC').
2. Parties to this revision petition are referred to as per the rank before the Trial Court for convenience.
3. That one Laxman Puttu Gouda (PW1), the complainant, filed the complaint before Ankola Police -3- NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 Station stating that, he is resident of Belse village. He is running a bunk shop within the jurisdiction of Belse village of Panji-Mangalore National Highway to its right side. It is stated that, on 12.08.2006, in the morning hours, to open his bunk shop, himself and one Venkudev Gouda were going towards his shop by walk. At that time, his brother Raju Puttu Gouda along with cattle was also moving on the other side of the said National Highway and after leaving the cattle he was returning to the house. It was about 6.30 a.m., on that day. It is stated that, when the complainant and Venkudev Gouda were moving by walk, at that time, from the opposite direction one lorry came from Mangalore side towards Ankola side and dashed against the brother of the complainant by name Raju Puttu Gouda, who was walking on the left side of the road. After dashing the said lorry to the brother of the complainant, the lorry driver stopped the said lorry at some distance. Immediately, complainant and Venku Gowda rushed to the spot where Raju Putta Gouda was found fallen. He had sustained injuries. He had lost his consciousness. -4-
NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 Immediately, his villager by name Bommayya Shankareppa Gouda came and they shifted said Raju Puttu Gouda in an auto rickshaw of one Bommayya Gouda to Arya Medical hospital. The lorry which has caused the accident was bearing registration No.KA-25/B-4271. On enquiry the driver told his name as Ishwar S/o. Shivappa Pawar, resident of Hubballi, who is the petitioner in this case. When the treatment was in progress at about 9.45 p.m., his brother Raju Puttu Gouda succumbed to the accidental injuries. With these allegations, complaint came to be filed which was registered in Crime No.184/2006 of Ankola Police Station and the criminal law was set in motion.
4. The Investigating Officer, after completion of investigation and after following all the formalities of the investigation, filed the charge sheet against the accused for the offences punishable under Sections 279 and 304-A of IPC.
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5. Before the Trial Court, to substantiate and prove the guilt of the accused, the prosecution, in all examined 10 witnesses as PW1 to PW10 and got marked documents as per Ex.P1 to Ex.P12 with respective signatures of witnesses thereon and closed the prosecution evidence.
6. On hearing the arguments and on evaluation of evidence placed on record by the prosecution, the Trial Court found the accused guilty of committing offence under Sections 279 and 304-A of IPC and sentenced him to undergo simple imprisonment for a period of one year and directed him to pay fine of Rs.1,000/- with default sentence for the offence punishable under Section 304-A of IPC. This judgment of conviction and order on sentence was challenged by the accused before the I-Appellate Court by filing Criminal Appeal No.74/2007. The I- Appellate Court, on hearing the arguments and on reappreciation of the evidence, confirmed the judgment of conviction and order on sentence passed by the Trial Court -6- NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 vide its judgment dated 08.08.2012. This is how the petitioner is before this Court in this revision petition challenging the judgments of both the Courts below.
7. The learned counsel for the revision petitioner submits that, in this case, the contents of the complaint are quite contrary with regard to witnessing of the incident by the complainant-Laxman Puttu Gouda. In complaint, he has stated one fact and in his evidence he has stated that in front of him, the deceased was moving on the road. He further submits that there is inconsistency in the evidence of the prosecution witnesses, however the Trial Court as well as the I-Appellate Court, without properly assessing the evidence have wrongly come to the conclusion that because of rash and negligent driving of the lorry by its driver, the said accident has taken place. According to him, both the Courts have committed illegality and perversity in arriving at such a conclusion. After dismissal of the appeal by the I-Appellate Court, the accused was arrested and was sent to jail and he was in custody for -7- NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 about 5 months 20 days. After filing this revision petition, the sentence so imposed was suspended and he was released on bail. He submits that the principle of res ipsa loquitur cannot be applied to the present case, as it is not strictly applicable to criminal cases. In support of his arguments, he has relied upon various evidence of the witnesses examined in this case and submits that in view of inconsistencies in the evidence and also the discrepancies in the evidence spoken to by the witnesses, the whole case of the prosecution cannot be accepted. The driver of the said offending lorry is not at all liable for any of the offences muchless alleged against him. He further submits that in view of the grounds so stated in the revision petition and also inconsistencies pointed out, he prays to allow this revision petition and acquit the accused.
8. As against this submission, the learned Additional SPP submits that the conduct of the accused and the manner in which the accident has taken place has -8- NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 to be taken into consideration. He submits that, as per the complaint allegations as well as prosecution papers, initially accused dashed against the deceased-Raju Puttu Gouda and thereafter went towards left side of the road and stopped there. That means, after dashing the said lorry to the deceased, he did not stop his vehicle. There exist no break marks or scratch marks on the tar road to show that all available precautions were taken by the driver of the lorry to avoid the accident. The said accident has taken place not because of any mechanical defect in the vehicle. The deceased was moving on the road. When there was sufficient place available on the left side of the road, why the driver of the lorry came on the extreme right side of the road and dashed against pedestrian is not explained by the accused. The eyewitnesses have also spoken to that effect. The complainant is none else than the brother of the deceased. The other witnesses have also supported the case of the prosecution. Therefore, he submits that there is no merit in the revision petition and same is liable to be dismissed.
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9. I have given my anxious consideration to the arguments advanced by both the sides and perused the papers. The points that would arise for consideration of this Court are as under:
i) Whether the judgment of conviction and order on sentence passed by the Trial Court and confirmed by the I-Appellate Court suffers from infirmity, illegality and requires interference by this Court?
ii) What order?
10. My answer to the above points is partly affirmative for the following:
REASONS
11. It is a case of accident. In the case of present nature, it is the duty of the prosecution to prove the accident first, so also death of the deceased. To prove the same, the prosecution relies upon the contents of Ex.P1- complaint. In the said complaint, it is specifically stated that on 12.08.2006 in the morning hours when the brother of the complainant i.e. deceased was moving by walk towards his house on NH-17, at that time the driver of the
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 offending lorry bearing registration No.KA-25/B-4271, while driving lorry from Mangalore to Ankola side, dashed against the brother of the complainant by driving his lorry towards wrong side of the road i.e. towards right and because of that, the brother of the complainant sustained grievous injuries. When the complainant and his friend Venku Devu Gouda rushed to the scene of offence, they noticed that the deceased had lost his consciousness. Immediately after the accident, he was shifted to hospital in rickshaw. At 9.45 a.m., in hospital, he succumbed to the injuries. These facts have been stated by the complainant in his complaint in unequivocal terms. Ex.P2 is the scene of offence panchanama. It shows where exactly the said accident has taken place. Ex.P3 is inquest panchanama prepared by the investigating officer after the demise of deceased, thereafter the dead body of the deceased was sent for postmortem. The doctor in the civil hospital has conducted postmortem as per Ex.P11.
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12. On perusal of these documents, they do demonstrate that, because of the injuries sustained by the deceased in the said accident, he died in the hospital. These factual features are not denied by the defence. So also, it is the case of the prosecution that the said accident has taken place not because of any mechanical defects in the vehicle. To substantiate the said fact, the prosecution relies upon Ex.P5-IMV report. On mechanical examination of the vehicle by M.V.Inspector, he opined that, the said accident has taken place not because of any mechanical defects. The report is marked in evidence as per Ex.P5. These documents are not denied by the defence. Thus, in this case, the prosecution is able to establish that there was an accident on 12.08.2006 at 6.30 a.m. in the morning and in the said accident, Raju Puttu Gouda succumbed to the accidental injuries. Therefore, the prosecution is able to establish the said fact with legal and acceptable evidence.
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13. Merely because the prosecution is able to establish the said accident and death of deceased-Raju Puttu Gouda in the said accident, it does not mean that because of rash and negligent driving of the offending vehicle by its driver, the said accident has taken place. Heavy burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt.
14. So far as rash and negligent driving is concerned, it is settled principle of law that, if the road is open, the drivers of the vehicles can drive vehicles as rash as they can. In this case the driver of the offending lorry bearing registration No.KA-25/B-4271, while driving lorry from Mangalore to Ankola side, dashed against the brother of the complainant by driving his lorry at a high speed towards wrong side of the road, which itself amounts to rashness. Though there was sufficient space available on the left side of the road, the driver of the lorry came on the extreme right side of the road and dashed against the pedestrian causing severe injuries, which resulted in death
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 of the pedestrian. This itself as stated supra amounts to rash and negligent driving of the offending lorry by the accused.
15. PW1, being the complainant in this case, has reiterated the contents of Ex.P1-complaint in his evidence on oath. As per the argument of the counsel for the accused, in the complaint, the complainant has stated that his brother was moving ahead in front of them and at that time, the said accident has taken place. But in the evidence, he has stated that his brother was coming from opposite direction. Therefore, according to him, there is inconsistency in the evidence of PW1. However, when the accident is admitted and when PW1 is consistent in his evidence with regard to the nature of accident, which has taken place, the said discrepancy would not shake the basic case of the prosecution and because of stray sentence spoken to by PW1 it will not shake the very case of the prosecution. When the witnesses are examined after lapse of some time, it is quite common that human
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 memory may fade and we cannot expect human memory like video clip. However, the evidence of PW1 is corroborated with regard to the nature of the incident. So this lacuna pointed out by the learned counsel for the accused will not go to the root of the case.
16. PW1, being eyewitness, has spoken before the Court about he witnessing the incident. It is elicited in the cross-examination that after writing of the complaint by the police, he put his signature on it. He deposed that the said accident has taken place on National Highway leading to Panaji, near Belase village Panchayat. According to him, the accident has taken place at a little distance of Mandal Panchayat. He denied all the suggestions directed to him by the defence. According to him, his brother-Raju Puttu Gouda was about 10 ft ahead of him and at that time the said accident has taken place. According to him, the offending lorry came from behind and dashed against his brother. He denied other suggestions of the defence.
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17. PW2-Kamalakar Devu Gouda was a pancha to Ex.P3-inquest panchanama. But he has been turned hostile to the case of the prosecution and nothing worth is elicited from his mouth.
18. PW3-Mangu Beera Gouda is another pancha to Ex.P3. According to him, he was very much present when the inquest panchanama was conducted by the police. Except denial, nothing worth is elicited from his mouth by the defence.
19. PW4-Narayan Agera is a pancha to Ex.P2. According to him, in his presence scene of offence panchanama was drawn as per Ex.P2. But in the cross- examination, he states that he does not know the contents of Ex.P2, however he denies the suggestion that at the instance of the police, he put his signature to the said panchanama. His presence at the time of conducting of panchanama is being stated by him. His evidence is corroborated with the evidence of the investigating officer.
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20. PW5-Venku Devu Gouda is another eyewitness to the said accident. He corroborates the evidence of PW1 in material particulars. According to him, when deceased was moving towards his house, at that time, from Mangalore side one lorry came in a high speed and dashed to the deceased due to which he sustained grievous injuries on his person. Thereafter, the said lorry stopped at a distance. He and PW1 rushed to the spot of the accident and noticed injuries on the person of the deceased and they shifted him to hospital. He identified the accused as driver of the offending lorry as well as he states the registration number of the said lorry in his evidence on oath. According to the prosecution, he is an eyewitness to the said accident. He has been cross-examined by the defence at length. But nothing is elicited from his mouth. It is the defence of the accused that, the deceased was in sleepy mood and in sleepy mood he was taking cattle on road. But the said suggestion is denied by this witness. There is no evidence placed on record by the defence to prove that the deceased was in drowsy mood. PW1 and
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 PW5 are the eyewitnesses to the said accident and they have supported the case of the prosecution.
21. PW6-Bommayya Sukrappa Gouda was the driver of the auto-rickshaw, who shifted the injured to the hospital. According to him, after the accident, he shifted the deceased to the hospital in his rickshaw. He noticed injuries on the person of the deceased while shifting him to the hospital. He is not an eyewitness to the said accident. His evidence has to be accepted to the extent of he shifting the injured to the hospital.
22. PW7-Nityananda Pandit was PSI at the relevant point of time. He received complaint and registered the same in Crime No.184/2006 and handed over further investigation to Police Inspector of Ankola. Except receipt of complaint and registering the same, he has not done any further investigation. His evidence has to be accepted to the extent of accepting the complaint, registering the same and setting the law into motion.
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23. PW8-Laxminarayan Naik was the motor vehicle inspector, who mechanical examined the offending lorry. According to him, at the request of the police, he mechanically examined the offending lorry bearing registration No.KA-25/B-4271 on 15.08.2006 and issued IMV report as per Ex.P5. It is his evidence that, the said accident has taken place not because of any mechanical defect in the lorry. Except denial, nothing is elicited from the mouth of this PW8. Thus, from the evidence of PW8 and the contents of Ex.P5, it is proved by the prosecution that, the said accident has taken place not because of any mechanical defect in the said lorry.
24. PW9-Venkatesh Halamani is the owner of the offending lorry. According to him, when the said accident has taken place, the accused was the driver of the lorry. But this witness has turned hostile. It is quite natural to expect such evidence from the owner of the lorry.
25. PW10-Bhaskar Rai was the investigating officer at the relevant time. According to him, on taking up
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 investigation, he went to the scene of offence and conducted panchanama, arrested the accused, recorded the statement of witnesses and after completion of investigation, has filed charge sheet against the accused. It is elicited in the cross-examination that the place of the accident is a National Highway, where 24 hours vehicles ply on it and by the side of the said road, some bunk shops are also situated. He has denied all other suggestions.
26. In all criminal cases, panchas are the authors of panchanama and investigating officers are the supervisors of investigation. When PW1 and PW5, being eyewitnesses, have categorically stated in their evidence about their presence at the time when the said accident has taken place and they witnessed the said accident, nothing more is required to be proved by the prosecution to prove that the deceased died due to accidental injuries. So far as documentary evidence is concerned, scene of offence panchanama is at Ex.P2, which plays an important role in
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 this case. According to the contents of Ex.P2, the scene of offence is situated within the jurisdiction of Ankola police station at Belase village on Panaji-Mangalore NH-17 near milestone No.145-146. At the scene of offence, the road is having 24 ft width and the said road runs from north to south from Ankola side towards Kumta. Towards eastern side, there exists 8 ft tar road and towards western side there is a kachcha road of 8 ft width. The scene of offence is about 2 ft away from the eastern edge of the tar road. Towards eastern side, additional 5 ft kachcha road exists. At the said kachcha road, Hawai chappal of the deceased was fallen. Where exactly the scene of offence is situated has been narrated as spot of the accident by the investigating officer.
27. The sketch prepared by the investigating officer when the panchanama was drawn also plays an important role in this case. Ex.P9 is the scene of offence sketch wherein the place where exactly the accident has taken place is narrated. That means at a distance of 2 ft away
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 from the eastern edge of the tar road, the said accident has taken place. Evidently, the said lorry came from Kumta side and was moving towards Ankola side. On going through the sketch, as per the panchanama, the road is having width of 24 ft and the accident has taken place 2 ft away from the eastern edge. That means, the driver had sufficient 22 ft road available to drive his lorry towards Ankola. But he suddenly has taken the said lorry towards eastern side of the road and dashed against the deceased and thereafter he went ahead for a distance of 120 ft away and stopped his lorry towards western side of the road. That means, after dashing the said lorry to the deceased, the lorry driver went towards western side of the road and stopped his lorry towards left side of the said road. So from the very nature of the accident, which has been narrated in the panchanama as well as Ex.P9-sketch, go to establish that the driver was rash and negligent in driving the said offending lorry.
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28. Ex.P10 is the photograph showing the stopping of said lorry after the accident. The scene of offence is also shown as accident spot in the said photograph. While marking Ex.P9 and Ex.P10, no little finger was raised by the defence. That means, the defence also admits the scene of offence where exactly the accident has taken place.
29. The Trial Court as well as the I-Appellate Court have rightly appreciated the evidence placed on record by the prosecution and have come to the conclusion that, because of rash and negligent driving of the said lorry by its driver, the said accident has taken place.
30. PW1 and PW5 are the eyewitnesses to the accident, who have categorically stated before the Trial Court about witnessing the accident with their own eyes. Though there is intensive cross-examination directed to them, nothing worth is elicited to disbelieve their evidence given in examination-in-chief. So if all these factual features coupled with the contents of the documents i.e.
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 panchanama and scene of offence sketch are put together, it can very well be said that because of rash and negligent driving of the offending lorry by the accused, the said accident has taken place. I do not find any factual or legal error being committed by the Trial Court or the I-Appellate Court in holding the accused guilty of committing the aforesaid offences. The Trial Court as well as the I- Appellate Court have rightly found the accused guilty of committing the aforesaid offences.
31. So far as sentence is concerned, the Trial Court has convicted the accused for the aforesaid offences and sentenced him to undergo simple imprisonment for a period of one year with fine of Rs.1,000/- for the offence punishable under Section 304-A of IPC with default sentence. This judgment of conviction and order on sentence was confirmed by the I-Appellate Court in Criminal Appeal No.74/2007.
32. It is argued by the counsel for the revision petitioner that, the petitioner-accused was aged about 24
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 years when the said accident has taken place and now he is aged about 40 years. He is having a family. Except the accused, there is no other person to take care of his family. Therefore, he submits that a lenient view may be taken by this Court and modify the sentence imposed by the Trial Court.
33. As against this submission, learned Additional SPP submits that, the accused has committed the offence which is heinous in nature, due to which, he has taken a life of the deceased. There shall not be modification of sentence imposed by the Trial Court.
34. Evidently, the offence has taken place in the year 2006. Now this revision has come up for disposal in the year 2024. Already more than 17 years have been lapsed. Because of pendency of this criminal case, as rightly submitted by the learned counsel for the petitioner, the petitioner must have suffered mentally and he must have been put to inconvenient and discomfort. It is only in mitigating circumstances. The courts can show some
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 leniency in modifying the sentence. So also it is submitted by the learned counsel for the petitioner that the petitioner-accused has got a family with small school going children. This fact is not disputed by the State also. In view of the facts and circumstances of the case and also the time spent in litigation from the year 2006 onwards, if some lenient view is shown by modifying the sentence by reducing it to six months simple imprisonment, it would meet the ends of justice. Therefore, I am of the view that, the accused has to be sentenced to undergo simple imprisonment for a period of six months instead of one year as imposed by the trial Court and affirmed by the I- Appellate Court, which would meet the ends of justice. Accordingly, I answer the above point partly in affirmative. Resultantly, I pass the following:
ORDER
i) The revision petition is allowed in part.
ii) So far as judgment of conviction passed by the Trial Court and confirmed by the
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NC: 2024:KHC-D:5096 CRL.RP No. 100063 of 2017 I-Appellate Court against the accused for the offence punishable under section 279 and 304-A of IPC is concerned, the same is confirmed. However the order on sentence passed by the Trial Court and confirmed by the I-Appellate Court is modified to the extent that the accused shall undergo simple imprisonment for a period of six months instead of one year as imposed by the Trial Court.
iii) As the accused was in custody for a period of 5 months and 20 days, the said period shall be given set off under Section 428 of the Cr.P.C.
iv) Accused shall surrender himself before the Trial Court and shall undergo remaining sentence of simple imprisonment.
v) Registry is directed to send back the records to the Courts below along with copy of this judgment for compliance.
Sd/-
JUDGE SMM - para 1 to 4 YAN- para 4 to till end