Karnataka High Court
Sharanabasappa vs State Of Karanataka By Cpi, on 29 November, 2018
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.202 of 2011
BETWEEN
SHARANABASAPPA,
S/O MARADAPPA NALLURA,
AGED ABOUT 30 YEARS,
R/A No.322, KOTHABAL VILLAGE,
RONA TALUK,
GADAG DISTRICT.
...PETITIONER
(BY SRI VISHNUMURTHY, ADVOCATE)
AND
STATE OF KARNATAKA BY CPI,
HARIHARA CIRCLE.
...RESPONDENT
(BY SMT. B G NAMITHA MAHESH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 29.4.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE &
JMFC, HARIHARA, IN CC No.110/2009 AND ORDER DATED
04.11.2010 PASSED BY THE II ADDITIONAL SESSIONS JUDGE,
DAVANAGERE, IN CRL.A.No.66/2010.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This revision petition is filed by the petitioner under Section 397 of Cr.P.C. challenging the judgment of conviction and sentence passed by the Principal Civil Judge and JMFC, Harihara, in CC No.110/2009, dated 29.04.2010, which was confirmed by the II Additional Sessions Judge, Davanagere in Criminal Appeal No.66/2010 vide judgment dated 04.11.2010.
2. The ranks of the parties before the Trial Court are retained for the sake of brevity.
3. The case of the prosecution is that the CPI, Harihara Circle, filed a chare sheet against the accused herein for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC alleging that on 11.01.2009, at about 2.30 p.m., PW.1-P.Hanumanthappa, the complainant, was driving the Tractor-Trailer bearing Regn.No.KA 17 T 7902/ KA 17 TA 6864. While he was passing near Byaladahalli on Harihara-Shivamogga road, due to exhaust in diesel, he 3 parked the said tractor-trailer by the side of the road and went with a can to take a vehicle to bring diesel. At that time, the accused, who said to be the driver of the Lorry bearing Regn. No. KA 25/B 8813, drove the lorry in a rash and negligent manner and hit behind the stationed tractor- trailer. Due to which, one Suresh, who was standing by the side of the tractor-trailer sustained grievous injuries and another person Sridhar, who is said to be the Cleaner also sustained injuries and were taken to Harihara Hospital and later, the said Suresh was shifted to C.G. Hospital, Davanagere, where he succumbed to the injuries. Subsequently, the Police after obtaining the complaint from PW.1-complainant, registered a case and after completion of investigation, the charge sheet was filed. The accused appeared before the Court and pleaded not guilty. Hence, the prosecution was called upon to lead evidence. The prosecution examined in all 11 witnesses and got marked 8 documents and during cross- examination of PW.6, Ex.D.1 got marked. Thereafter, the statement of the accused under Section 313 of Cr.P.C was 4 recorded. The case of the accused was one of a total denial, but no rebuttal evidence was let in. After hearing the arguments of learned counsel on both sides, the Trial court found the accused guilty of the offences punishable under Sections 279 and 304(A) of IPC. However, there was no order in respect of the offences punishable under Sections 337 and 338 of IPC. The Trial Court, by its judgment dated 29.04.2010, convicted the accused and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 304(A) of IPC; and imposed a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 279 of IPC.
Being aggrieved by the same, the accused preferred Criminal Appeal No.66/2010 before the II Additional Sessions Judge, Davanagere. After hearing the arguments, the II Additional Sessions Judge, Devanagere, 5 by judgment dated 04.11.2010 confirmed the judgment of conviction and sentence passed by the JMFC, Harihara. Being aggrieved by the same, the accused/petitioner has preferred this revision petition before this Court.
4. The accused/petitioner challenged the judgments of both the courts below on various grounds stating that the courts below have gravely erred in not looking into the sketch of the accident spot. He has disputed the evidence of PWs.5 and 6. The evidence of the alleged eyewitnesses were not properly appreciated by the courts below. That Exs.D.1 to 3 marked during the cross-examination were not looked into. There are lot of contradictions in the evidence of the prosecution witnesses, which were not properly dealt with by the courts below. It is contended that the courts below have erred in holding the accused guilty. Therefore, he prayed for setting aside of the judgments of the courts below.
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5. Heard learned counsel for the accused/petitioner and learned HCGP appearing for the State. Perused the material available on record and the LCR.
6. Learned counsel for the petitioner, during the course of arguments, strenuously contended that there is contradiction in the evidence of PW.1-complainant, who is said to be the eyewitness. There are road humps or speed breakers as per the evidence of PW.1 and there is no chance of driving the vehicle in a high speed. The eyewitness and the injured witness Sridhar were not examined by the prosecution. There are contradictions in the evidence of PWs.1 and 5 with regard to shifting of deceased to the Hospital. The wife of the deceased has also stated that her husband went to coolie work and has not stated that her husband went for driving the vehicle. There are bridges on both sides of the accident spot and speed-breakers, and it is not possible to drive the vehicle in high speed. These aspects were not considered by the courts below. The courts below have come to the wrong 7 conclusion that the accused is guilty of rash and negligent driving of the vehicle.
7. Learned HCGP does not dispute the accident and the death of Suresh in the said accident. During the course of arguments, she contended that in spite of speed breakers, the accused has driven the vehicle in a rash and negligent manner and caused the accident and the evidence of the prosecution was appreciated and re-appreciated by courts below. There are no errors committed by the courts below warranting interference by this Court. Hence, learned HCGP supports the judgments of the courts below.
8. After hearing the learned counsel on both sides and on perusal of the material on record, the point that arises for consideration is whether both the courts below have committed error in holding the accused/petitioner guilty of the offences alleged by the prosecution?
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9. It is well settled principle that this Court being the Revisional Court cannot appreciate or re-appreciate the evidence to take a contrary view against the one taken by the courts below while passing the judgment, unless it is an exceptional case of some procedural irregularity or lacking of any material evidence or misleading, which is manifest and which has resulted in flagrant mis-carriage of justice.
10. On a careful perusal of the evidence of PW.1- complainant, he has stated before the court below in his evidence that on the date of the accident, he was driving the tractor-trailer, and while he was passing near Byaladahalli on Harihara-Shivamogga, due to exhaust in diesel, he parked his vehicle by the side of the service road on Harihara-Shivamogga road and went to bring diesel. Before he could come back with diesel, the driver of the lorry came in a rash and negligent manner and dashed to the stationed tractor-trailer, due to which, the tractor- trailer dashed against Suresh, who was standing near the 9 tractor engine and sustained injuries and was taken to the Hospital at Davanagere. To corroborate his evidence, PW.5, who is stated to be the alleged eyewitness to the accident, has also stated that himself and one PW.6- Revanasiddappa were proceeding on a motorcycle, at that time, a lorry overtook them and went ahead and dashed to the tractor-trailer and the person standing by the side of the tractor-trailer sustained injuries and on enquiry, he came to know that his name was Suresh and both PW.1 and himself took the deceased Suresh to Harihara Hospital and thereafter, shifted him to C.G Hospital, Davanagere. Learned counsel for the accused contended that PW.1, who is stated to be the eyewitness as per the prosecution case, has not stated that the deceased was taken to Harihara Hospital by himself along with PW.5, whereas PW.5 says that himself and PW.1 took the deceased Suresh to Harihara Hospital and thereafter shifted him to C.G. Hospital, Davanagere, but PW.1 stated, that the deceased was taken directly to Davanagere Hospital. Even on perusal of the evidence of PW.6, it is seen that he has also 10 stated on par with the evidence of PW.5 that both PW.5 and himself shifted the deceased Suresh to the Hospital and he does not speak about which Hospital the deceased was taken to either Harihara Hospital or C.G. Hospital, Davanagere. In the evidence of PW.1, the eyewitness to the accident, he could have stated that he along with PWs.5 and 6 shifted the deceased to Harihara Hospital and thereafter shifted to C.G. Hospital, Davanagere, but he has stated that directly the deceased Suresh was taken to the C.G. Hospital, Davanagere. Apart from that, he has not whispered anything about Sridhar, who also sustained injuries in the accident. Even PWs.5 and 6 have not whispered about another injured person, who is said to have sustained injuries in the same accident as alleged by the prosecution. PW.1 has also stated that before he came back to the spot with the diesel, the accident took place and from the evidence, it is seen that the accident took place in front of the petrol bunk and if the petrol bunk is stated to be nearer to the accident spot, the question of PW.1 waiting for a vehicle with a can for bringing diesel 11 does not arise. This itself goes to show that he might not have been present on the spot at the time of the accident. That apart, PWs.5 and 6 have also stated that there is a petrol bunk and road humps or speed breakers near to the place of the accident and PW.5, who is said to be the eyewitness, is not able to say the colour of the tractor- trailer, which contradicts from Ex.P.2-panchnama. The material witness CW.8-Sridhar, who is said to have suffered injuries in the alleged accident, was not examined by the prosecution, though his wound certificate was marked by the prosecution as per Ex.P.4 and examined the Doctor-PW.8. It is also seen from the cross-examination of PWs.5 and 6 that they are related to the brother of the deceased Suresh, who is said to be an advocate. Therefore, the arguments of the counsel that there is a chance of planting these two witnesses as eyewitnesses to the accident, is not ruled out. Merely because the accused did not dispute the accident and the death of the deceased Suresh, that itself is not a ground to hold the accused guilty of the alleged offences, unless the 12 prosecution proves that there was rash and negligent driving of the lorry by its driver at the time of the accident. Learned counsel for the petitioner also disputed about the accused driving the said vehicle at the time of the accident. The Investigating Officer-PW.11, who filed the charge sheet, was required to call upon the owner of the vehicle to furnish the details of the driver of the vehicle as to who drove the vehicle at the time of the accident. But no notice has been issued and obtained the particulars to show that the accused/petitioner was driving the vehicle at the time of the accident, as required under the Section 133 of the Motor Vehicles Act. Merely due to the pressure of the Police, the accused surrendered before the Police and he has been arrested. That itself cannot be said to be the basis to hold that the accused committed the offence by driving the vehicle in a rash and negligent manner. There are contradictions in the so-called evidence of the eyewitness and the complainant, which were not properly appreciated and re-appreciated by the courts below and on the basis of which the courts below have wrongly come to 13 the conclusion that the accused was guilty of the offences punishable under Section 279 and 304(A) of IPC.
11. Apart from that, the Trial Court has not discussed anything about Sridhar, the Cleaner, who also sustained injuries in the accident though his wound certificate was marked as Ex.P.4 and there is no finding with regard to offences punishable under Sections 337 and 338 of IPC. Therefore, there is a material error committed by the courts below holding the accused/petitioner guilty. As already stated above, normally, this Court will not interfere with the concurrent findings of conviction by the courts below, but in this case, the so-called evidence of the eyewitnesses cannot be believed and their presence is also suspected, since there was delay in recording their statements by the Investigating Officer, which was not explained by the prosecution. Therefore, it is held that non-examination of the material injured eyewitness and contradictions in the evidence of the eyewitnesses and the presence of PWs.4 and 5, the alleged eyewitnesses also 14 leads to suspicion. Hence, both the courts below have committed error in holding the accused guilty of the offences alleged. Therefore, this Court is required to interfere with the judgment of conviction and sentence passed by the courts below.
12. In the result, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by the Principal Civil Judge and JMFC, Harihara, in CC No.110/2009, dated 29.04.2010, and confirmed by the II Additional Sessions Judge, Davanagere, in Criminal Appeal No.66/2010, dated 04.11.2010, are hereby set aside. The accused/petitioner is acquitted of the offences punishable under Sections 279 and 304(A) of IPC and his bail bond stands cancelled.
A copy of this order be sent to the courts below along with LCR.
SD/-
JUDGE mv