Karnataka High Court
Athaulla vs State Of Karnataka on 9 November, 2018
Author: K.Somashekar
Bench: K.Somashekar
:1: R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 117 OF 2011
BETWEEN
ATHAULLA,
S/O ABDUL GAFFOOR,
AGED ABOUT 34 YEARS,
R/AT 8TH BLOCK,
BAGEPALLI TOWN,
CHIKKABALLAPURA DISTRICT.
... PETITIONER
(BY SRI. HASHMATH PASHA, ADVOCATE)
AND
STATE OF KARNATAKA
BY GUDIBANDE POLICE,
CHIKKABALLAPUR DISTRICT.
(REP. BY LEARNED STATE PUBLIC PROSECUTOR)
... RESPONDENT
(BY SRI. K.P. YOGANNA, HCGP.)
THIS CRL.R.P. FILED U/S 397 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTIONS AND
SENTENCE DATED 31.08.2009 PASSED BY THE CIVIL
JUDGE (JR.DN.) AND JMFC., GUDIBANDE IN C.C.NO.
16/2007 AND THE JUDGMENT OF CONFIRMATION DATED
:2:
06.01.2011 PASSED BY THE ADHOC SESSIONS JUDGE,
FAST TRACK COURT - I, CHICKBALLAPUR IN CRL.A.
39/2009 AND CONSEQUENTLY HE MAY BE ACQUITTED
FOR THE ALLEGED CHARGES.
THIS CRL.R.P. COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition has been preferred by the petitioner/accused against the judgment rendered by the first Appellate Court in Crl.A.No.39/2009 dated 06.01.2011 confirming the order of conviction and sentence passed by the Trial Court in CC.No.16/2007 dated 31.08.2009.
2. The petitioner/accused was convicted by the Trial Court for the offences punishable under Sections 279, 337, 338 and 304-A IPC and directing him to pay fine of Rs.500/- for the offence under Section 279 of IPC, Rs.500/- for the offence under Section 337 of IPC and further Rs.500/- in default of payment of fine, imprisonment for one month for the offence punishable under Section 338 IPC. Further, he was directed to pay fine of Rs.1000/- and to undergo SI for 1½ years for the offence punishable under Section 304-A of :3: IPC. Being aggrieved by the judgment and order of conviction and sentence passed by the Trial Court, the petitioner/accused preferred appeal in Crl.A.No.39/2009, wherein the first Appellate while dismissing the appeal, confirmed the judgment and order passed by the Trial Court. The same has been challenged by the petitioner/accused by urging various grounds.
3. The factual matrix of the revision petition is as under:
On 12.02.2006 at about 1.45 p.m. a mini tempo bearing registration No.KA-40-5949 driven by the petitioner/accused in a rash and negligent manner met with an accident on Gudibande-Bagepalli road while plying towards Bagepalli near Narashivappanavar groundnut oil mill of Upparahalli village, due to which the inmate Ashwathamma died at the spot and CW.1, 4 to 15 sustained simple injuries and CW.2 and CW.3 sustained grievous and simple injuries. On filing of a complaint by the complainant, case in Cr.No.18/2006 was registered for the offences punishable under Sections 279, 337, 338 and 304-A of IPC :4: and Section 156 read with Section 196 and Section 3 read with Section 181 of the Motor Vehicles Act.
4. The IO who investigated the case, laid the charge sheet against the accused for the aforesaid offences before the Trial Court in C.C.No.16/2007. The prosecution in all examined PWs.1 to 22 and got marked Ex.P1 to P26. Thereafter, the Trial Court recorded the incriminating statement as contemplated under Section 313 of Cr.P.C. Subsequently, the Trial Court after hearing the arguments advanced by the counsel on both side, convicted the accused for the offences punishable under Sections 279, 337, 338 and 304-A of IPC. The judgment and order of conviction and sentence passed by the Trial Court was challenged by the accused before the first Appellate Court in Crl.A.39/2009. The first Appellate Court after re- appreciating the evidence on record, dismissed the appeal by confirming the order of conviction and sentence passed by the Trial Court in CC.No.16/2007 dated 31.08.2009. :5:
5. Heard Sri.Hashmath Pasha, learned counsel for the petitioner/accused and Sri K.P.Yoganna, learned HCGP for respondent - State.
6. Learned counsel for the petitioner has taken me through the evidence adduced by the prosecution witnesses. He contends that both the courts below failed to appreciate the evidence on record, that the offending Maxicab fell not due to rash and negligent driving of the accused, but it was due to the potholes on the road and when the vehicle passed on the said pit, the left front wheel tyre got bursted, as a result the maxicab turtled towards left side which was not under the control of the driver. The presence of potholes on the road at that spot was proved in the evidence of PW.14, PW.17, PW.18 and PW.22, the IO. PW.18 has deposed that tyre of Maxicab got bursted due to the said pothole. This evidence has not been properly appreciated by the courts below which has caused miscarriage of justice.
7. He further contends that the courts below have committed serious illegality in misinterpreting the provision of law and misdirecting themselves to come to a wrong :6: conclusion. The burden of proof of guilt is on the prosecution. The prosecution has not led any evidence to prove that the Maxicab was driven in a rash and negligent manner due to which the accident occurred. The accident caused is not due to collision of vehicles but only because of presence of pothole on the road and due to the said pothole, the left front wheel of the maxi cab got bursted as a result of which the vehicle turtled.
8. He further contends that the accused was not the driver of the maxicab bearing registration No.KA-40-5949 at the time of the accident, but one Nasir was said to be the driver and the said driver had given the vehicle for driving to one cleaner by name Manju and the said Manju was the driver of vehicle at the time of accident. This fact is proved through the evidence of prosecution witnesses itself. The courts below failed to appreciate this evidence in proper perspective.
9. It is further contended that the alleged spot mahazar at Ex.P4 and Ex.P26, the rough sketch of the spot were not tallying with the alleged incident and there is no :7: identification of tyre marks on the road and the mahazar witnesses PW.17, PW.18 and injured PW.16 have given a gobye to the case of prosecution and PW.15 has clearly stated in his examination chief that at the time of accident, one cleaner was driving the vehicle and not the petitioner. On all these grounds, it is prayed to allow this revision petition by setting aside the judgments passed by the courts below.
10. Counter to the arguments advanced by the learned counsel for the petitioner as stated supra, learned HCGP while supporting the judgments passed by the courts below contends that the Trial Court has rightly appreciated the entire evidence adduced by the prosecution and has rightly convicted the accused for the aforesaid offences. He contends that due to rash and negligent driving of the petitioner/accused the accident was caused and one Ashwathamma died at the spot due to the grievous injuries. The other passengers also sustained grievous and simple injuries. He contends that the first Appellate Court in Crl.A.No.39/2009 has rightly dismissed the appeal filed by :8: the petitioner by confirming the order passed by the Trial Court. He contends that the courts below have not committed any mistake in recording the finding so as to identify the involvement of the accused as the driver of the offending maxicab. He contends that the judgment and order passed by the courts below is fully justified under law and there are no good grounds muchless no grounds shown by the accused seeking intervention of this Court. Therefore, he contends that there is no need for this court to interfere with the impugned judgments passed by the courts below and seeks for dismissal of the revision petition.
11. Having regard to the facts and circumstances of the case and the strenuous contentions taken by learned counsel for the petitioners as well as learned HCGP, it is relevant to note that PW.1 - Ramalingappa, who has stated in his evidence that about 1 year three months back, near Narashivappa Mill, Upparhalli village, the maxicab in which he was traveling turtled, as a result of that accident, one Ashwathamma being the passenger in the aforesaid maxicab died at the spot. He also sustained injuries along with other :9: 15 passengers. He sustained injuries on various parts of the body. He initially took treatment at Government Hospital, Gudibande and thereafter he was admitted at Sanjay Gandhi Hospital, Bengaluru for treatment. Due to the rash and negligent driving by the driver of the aforesaid maxicab, the accident occurred. He deposed that he do not know the name of the driver of the maxicab and he also do not know the number of the said vehicle. In the cross- examination he has stated the place of incident and that several persons were traveling and also that potholes were also there. Nearby 50 meters from the place of accident there was sound and thereafter, the maxicab turned turtle on the left side of the road as a result, the front wheel of the maxicab bursted. He has stated that he do not know the name of the driver of the aforesaid maxicab.
12. PW.2 - Anjinamma who is also said to be the injured has stated in her evidence that she has sustained injuries on her left leg and also injuries on the right leg and also sustained fracture on the right leg. She has taken treatment initially at Government Hospital, Gudibande and : 10 : thereafter, she was shifted to Sanjay Gandhi Hospital. She cannot remember the number of the maxicab and she does not know the name of the driver of the maxicab. She was also subjected to cross-examination where she has stated that the police did not make any enquiry about the incident and she do not know the contents recorded by the IO. She cannot state before the police relating to the number of the maxicab.
13. PW.3 - Anjinappa who is also said to be the injured has stated that he has sustained injuries on his left face and also left hand and in all 15 persons sustained injures. Because of the accident one Ashwathamma died at the spot. He had taken treatment initially at Government Hospital, Gudibande and thereafter hospital at Chickballapur. He do not know the number of maxicab and also he do not know the driver of the maxicab. If he sees the driver, he would be able to identify him. Due to the accident he fell unconscious and thereafter what had happened he do not know.
14. PW.4 - Doddanarayanappa said to be the injured has stated in his evidence that due to the accident of the : 11 : maxicab, he sustained injuries on the head and also on the waist parts. Due to the accident one Ashwathamma died at the spot. He took treatment at Government Hospital, Gudibande and thereafter he was shifted to Chickballapur hospital. He does not remember the number of the maxicab and if the driver is shown to him, he would be able to identify. He does not know the name of the driver of the maxicab but he has given a statement before the police relating to the case. In the cross-examination he has specifically denied the suggestion that the driver of the offending maxicab did not drive in a rash and negligent manner.
15. PW.5 - G.V.Ravichandra said to be the injured has stated in his evidence that due to the accident he has sustained injuries on the left wrist and also on the cheeks as well as left leg. He has subscribed his signature on Ex.P1. This witness was incisively cross-examined. There was pothole at the scene of crime and the maxicab got turtled and the front wheel was punctured. He does not know as to whether the maxicab fell into the drainage. : 12 :
16. PW.6 - Salemma, has stated in her evidence that one Ashwathamma who was a passenger in the maxicab died at the spot by sustaining grievous injuries. Other passengers also sustained injuries due to the rash and negligent driving of the driver of the minibus. On seeing the driver she will identify him. In the cross-examination she has specifically stated that the police had enquired her and she do not know what she had stated before the police. She had not said the number of the maxicab. She had not said the police about the injuries sustained by deceased Ashwathamma who died at the spot.
17. PW.9 -Adilakshmamma who is also said to be the injured has stated in her evidence that Aswathamma who was the passenger in the minibus died at the spot due to the injuries sustained. If the driver is shown to her she will be able to identify him as she was standing beside the driver. She does not know the number of the bus. The driver of the minibus was driving the minibus in high speed. This witness in her cross-examination has stated that she do not : 13 : know that the accident occurred due to the burst of the wheel of the minibus.
18. PW.9 - Rathnamma, PW.10 - Adi Reddy, PW.11 - Obalamma who are also said to be injured were the passengers in the minibus. These witnesses were also incisively cross examined. PW.12 - Narayana Swamy has turned hostile to the case of the prosecution. He had stated that on 22.3.2006 he had not given any statement regarding the incident that occurred on 12.02.2006. He had not seen the number minibus. He has denied that the accident was caused due to the rash and negligent driving of the driver of the vehicle. He has stated that he does not know about the pothole at the place of accident and he had not heard the sound of falling of the minibus. He does not remember that the left wheel bursted and got punctured.
19. PW.22 is the IO who laid the charge sheet. He conducted the spot mahazar as per Ex.P4 in the presence of witnesses. He has stated that the mahazar has been conducted in the presence of the panch witnesses and has recorded the statement of the witnesses. He has received : 14 : the post mortem report of deceased Ashwathamma as per Ex.P6. He has deposed in his evidence that there was potholes on Gudibande-Bagepalli road and it was not repaired. There is a drainage at the place of the accident. The minibus got turtled on the left side of the road. He has denied the suggestion that due to the potholes the minibus got turtled on the left side of the road. He has stated he do not know as to whether the cleaner was driving the minibus.
20. It is relevant to note here that PW.22 being the IO who recorded the statement of the injured PW.7 to 12 including other witnesses, has not recorded the statement of one Manju said to be the cleaner of the minibus who was crucial witness to the incident. The said Manju had not given any statement before the IO during the course of investigation and even the IO had not made any venture to record the statement of said Manju. This vital aspect has not been considered by the Trial court in C.C.No.16/2007. Even the first Appellate Court has failed to re-appreciate the evidence adduced by the prosecution on a proper perspective manner which has led to miscarriage of justice : 15 : to the case of the petitioner. The ingredients of Section 279 IPC i.e., rash driving or riding on a public way have not been established by the prosecution to prove the guilt of the accused. Therefore, in this petition it requires re- appreciation of the entire evidence on record.
21. It is relevant to state that Ex.P4 is the spot mahazar said to be conducted by PW.22 being the IO. He has drawn the rough sketch at Ex.P26. There is no identification of tyre marks on the road. One PW.15 has clearly stated in his evidence that at the time of alleged incident one cleaner was driving the alleged minibus. But he has not given any statement before the IO and the IO had not ventured to record his statement who was a crucial witness in order to prove the guilt of the accused. The Trial Court has wrongly come to the conclusion that the prosecution has proved the case beyond all reasonable doubts. Even the first Appellate Court has failed to re- appreciate this aspect of the matter while dismissing the appeal filed by the accused.
: 16 :
22. The courts below have failed to notice that the Doctor who conducted the Autopsy over the dead body of Ashwathamma and given the report as per Ex.P6, and the wound certificates as per Ex.P7 to P21 issued by him and included in the charge sheet laid by the PW.22, was not examined by the prosecution. This has led to the miscarriage of justice to the case of the petitioner. In this revision petition it is relevant to extract Sections 279, 337, 338 and 304-A IPC for the purpose of ingredients as to constitute the offence.
Section 279: Rash driving or riding on a public way.-Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 337: Causing hurt by act endangering life or personal safety of others.-Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
: 17 :Section 338: Causing grievous hurt by act endangering life or personal safety of others.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Section 304-A: Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
23. The burden to establish the case against the accused is for the prosecution. Whereas the prosecution is required to establish the guilt of the accused relating to the ingredients of Section 279 IPC. Though the prosecution has examined several witnesses and got marked several documents in order to prove the guilt of the accused is not able to establish its case with regard to who was driving the offending minibus at the time of the accident. The ingredients relating to Section 279 of IPC has not been established by the prosecution by placing cogent and corroborative evidence. There was serious dispute that one : 18 : Nazir was said to be the driver and the said driver has given the offending vehicle for driving to the cleaner Manju and the said Manju was the driver of vehicle at the relevant point of time. The said Nazir got absconded and the petitioner/accused has been inducted in the present case.
24. PW.9 Rathnamma in her evidence has admitted that there were potholes in the road and due to that potholes the minibus could not be driven in high speed. Due to the potholes the minibus turtled on the left side of the road causing death of one passenger and injuries to other passengers. However, the fulcrum of the mahazar has not been established by the prosecution in order to prove the guilt of the accused. There is no dispute that Ashwathamma said to be the passenger died at the spot for the injuries sustained. So also there is no dispute about the injuries sustained by the other witnesses who were examined in order to prove the guilt of the accused. The courts below have failed to notice the defence taken by the petitioner/accused regarding his identity and involvement in the crime by alleging that it was one Nazir was the driver on : 19 : the wheel on the alleged hours of accident and immediately thereafter he absconded and the present petitioner has been falsely foisted in this case as a driver who is innocent of the alleged offences. Even PWs.12, 15 and 16 have not identified the petitioner was driver of the minibus on the date of incident.
25. The courts below erred in rejecting the evidence of PW.21 the owner of the vehicle only because he is the father of accused whereas, PW.21 has categorically denied that accused is not his son. PW.21 name is Abdul Gaffar and not Abdul Gafoor. This approach of the Trial Court has lead to miscarriage of justice to the case of the petitioner.
26. The courts below have failed to notice that in the cross examination of prosecution witnesses that before the accident there was a loud sound heard when the minibus moved into the ditch and thereafter capsized due to burst of the left front wheel of the vehicle on the left side of road which is denied by all the witnesses. This part of the evidence is not considered by both the courts below. When the defence of the accused is proved by virtue of admissions : 20 : elicited in the evidence of prosecution witnesses, the accused need not have to mention in his statement under Section 313 of Cr.P.C. The courts below have committed illegality in misinterpreting the provision of law and misdirecting themselves in coming to a wrong conclusion.
27. The courts below having held that the defence in the cross examination of prosecution witnesses suggested consistently the road at spot consist of a big ditch, the road is not in a fit condition to drive the minibus in high speed and the minibus was not moving in high speed, but in low speed, is not responsible for the accident. Many of the prosecution witnesses have deposed that the accused was not the driver of vehicle. Further it is also proved that the regular driver has given the vehicle to drive to another person after some distance. Therefore, the accident has not occurred because of rash and negligence driving of petitioner/accused. The courts below failed to appreciate this evidence on record in proper perspective and thereby reached to a wrong conclusion. Therefore, in this petition it requires reappreciation of the entire evidence in a proper : 21 : perspective manner as wherein the accused has been convicted for the offences punishable under Sections 279, 337, 338 and 304-A of IPC.
28. Learned counsel for the petitioner has taken a contention that the speed of a vehicle is not always determinative of the factor whether the vehicle was driven in a rash and negligent manner. Where the road is free and road condition is perfect, the driver is justified in driving his vehicle at normal speed. In the instant case the very fact that the minibus/maxicab bearing registration No.KA-40- 5949 turtled due to several potholes which were found on the road and it went on the left side of the road and it was turtled as a result of that one Ashwathamma died at the spot due to the said accident and other passengers sustained injuries. The accused was charged of driving the said minibus in a high speed but there is no evidence that the vehicle was driven by him in rash and negligent manner. It was held that offence was not made out by the prosecution to prove the guilt of the accused. : 22 :
29. In so far as offence under Section 304-A of IPC is concerned the provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. Section 304-A postulate a rash and negligent act entailing death of another. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence; and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in a tort for damages also. There is no criminal liability for harm thus caused by inadvertence.
30. Whereas in this case, the accused was found guilty of driving the vehicle in a rash and negligent manner which caused death of one Ashwathamma and causing injuries to other passengers and he was convicted by the Trial Court under Sections 279, 337, 338 and 304-A of IPC. So far as ingredients of offence under Section 279 of IPC, the onus is upon the prosecution to prove the guilt of the accused. It is no doubt that in a theory as projected by the : 23 : prosecution that one death of Ashwathamma has taken place and also injuries have been caused to other persons being the passengers in the aforesaid minibus/maxicab. One Manju being the cleaner of the said minibus is not examined and even the IO has not made any endeavor to record his statement as well as secure his presence as witness in order to prove the guilt of the accused for the aforesaid offences. Therefore, the theory as projected by the prosecution in so far as accused has caused the death of Ashwathamma and also he was driving the offending vehicle in a rash and negligent manner has not proved the guilt of the accused.
31. At a cursory glance of the evidence of the aforesaid witnesses and so also the materials placed by the prosecution, it is said that the minibus/maxicab which was driven by the accused on the date of incident, there were several potholes found on the road and due to that the front wheel of the said vehicle was punctured and went on to the left side of road and the same turtled as a result of which Ashwathamma died at the spot due to grievous injuries and : 24 : other passengers sustained injuries. In this case, the prosecution has not led any evidence to prove that the maxicab was driven in a rash and negligent manner and due to which the accident occurred. It is not the case of the prosecution that the minibus met with an accident by hitting to a tree or there was head-on collision of the opposite vehicles or even by any other object on either side of the road. This aspect of the matter has not been appreciated by both the courts below in a proper perspective manner. However, at a cursory glance of evidence of the prosecution it requires re-appreciation of the entire evidence on record. The Trial court in C.C.No.16/2007 and the first Appellate court in Crl.A.No.39/2009 have misdirected and misread the entire evidence of the prosecution relating to the averments made in the complaint and so also have erroneously come to the conclusion by convicting the accused person. However, in this revision petition it requires intervention by reappreciating the entire evidence on record and revisit the impugned judgments passed by the courts below.
: 25 :For the aforesaid reasons, the revision petition filed by the petitioner/accused is hereby allowed. Consequently, the judgment and order of conviction and sentence passed by the Trial Court in C.C.No.16/2007 dated 31.08.2009 and confirmed by the first appellate court in Crl.A.No.39/2009 dated 06.01.2011 are hereby set-aside. The petitioner/accused is hereby acquitted of the charges levelled against him.
Sd/-
JUDGE DKB