Karnataka High Court
Rahath Ali vs State By Sorab Police on 3 December, 2018
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.682 of 2011
BETWEEN
RAHATH ALI,
S/O NAZIR SAB,
AGED ABOUT 25 YEARS,
MINI LORRY DRIVER,
RESIDENT OF SHIRALAKOPPA,
SHIKARIPUR TALUK.
...PETITIONER
(BY SRI A S KULKARNI, ADVOCATE)
AND
STATE BY SORAB POLICE,
SORAB.
...RESPONDENT
(BY SMT. B G NAMITHA MAHESH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE
THE ORDER DATED 18.10.2005 PASSED BY THE CIVIL JUDGE
(JR.DN.) AND JMFC, SORAB IN C.C.No.1021/2003 AND ORDER
DATED 20.12.2008 PASSED BY THE SESSIONS JUDGE, FTC-I,
SHIVAMOGGA IN CRIMINAL APPEAL No.95/2005.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner has preferred this revision petition under Section 397 read with 401 of the Cr.P.C. against the judgment of conviction and sentence passed by the Civil Judge (Jr.Dn.,) and JMFC, Sorab, in CC No.1021/2003, dated 18.10.2005, which was confirmed by the Sessions Judge, I Fast Track Court, Shivamogga, in Criminal Appeal No.95/2005, dated 20.12.2008.
2. The petitioner is the accused and the respondent is the State before the Trial Court. The ranks of the parties are retained for the sake of brevity.
3. The factual matrix of the prosecution case is that, on 04.08.2003, the accused being the driver of 407 Mini Lorry bearing No.KA 31 954 drove the said vehicle from Chandragutti-Sorab road near Ankaravalli in a rash and negligent manner, so as to endanger human life and caused the accident by hitting the vehicle to a road side tree on the right side of road and the lorry turtled. Due to 3 which, one Irfan, the Cleaner of the said lorry suffered injury and died on the spot. PW.2-Suresh Gowda and PW.3-Riyaz Ahmed, who were said to be travelling in the said lorry as passengers of the said lorry, have also sustained injuries. They took treatment in the Hospital at Sorab, where the Police obtained the complaint from PW.2 and registered a case and after investigation, the charge sheet came to be filed against the accused.
4. The Trial Court framed charges for the offences punishable under Sections 279, 337 and 304(A) of IPC. The accused pleaded not guilty and claimed to be tried. Accordingly, the prosecution was called upon to lead evidence. The prosecution examined in all 11 witnesses as PWs.1 to 11 and got marked 10 documents as Exs.P.1 to P.10 and after closing of the evidence, the statement of the accused under Section 313 of Cr.P.C was recorded. The case of the accused was one of total denial, but not entered any defence evidence. On hearing the learned counsel on both sides, the Trial Court found the accused 4 guilty of the offences punishable under Sections 279, 337 and 304(A) of IPC and sentenced the accused to undergo simple imprisonment for three months and to pay a fine of Rs.500/-, in default of payment of fine, simple imprisonment for one month for the offence punishable under Section 337 of IPC; and to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, simple imprisonment for three months for the offence punishable under Section 304(A) of IPC. Both the sentences were ordered to run concurrently, but no sentence was passed under Section 279 of IPC vide judgment dated 18.10.2005.
Being aggrieved by the same, the accused preferred Criminal Appeal No.95/2005 before the Sessions Judge, I Fast Track Court, Shivamogga, which came to be dismissed vide order dated 20.12.2008 confirming the judgment of conviction and sentence passed by the Trial Court.
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Being aggrieved by the same, the accused/petitioner has preferred this revision petition before this Court on the grounds that the conviction of the accused is not sustainable in law and facts. The alleged eyewitnesses have not spoken about the rash and negligent driving of the vehicle by the accused. Out of the eight witnesses examined by the prosecution, PW.1 is the inquest panch witness and the court below has only accepted the evidence of the alleged eyewitness and convicted the accused. There are contradictions in the evidence of PWs.2, 6 to 8 and PW.5 turned hostile. None of the witnesses have spoken about the rash and negligent driving of the lorry by its driver. The Court below have wrongly come to the conclusion that the accused is guilty of the offences punishable under Sections 279, 337 and 304(A) of IPC. Thus, he prays for setting aside of the judgment of conviction and sentence passed by the Courts below.
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5. Heard learned counsel for the petitioner and learned HCGP for the respondent-State and perused the material on record as also the LCR.
6. Learned counsel for the accused/petitioner, during the course of arguments, strenuously contended that as per the evidence of PW.1, there was no eyewitness at the time of the accident. The injured themselves went to the hospital and obtained treatment, where the Police came and obtained the complaint. Whereas, the Investigating Officer, built-up the case by planting three eyewitnesses for the accident. Out of them, PW.5 totally turned hostile. The evidence of PWs.6 and 7 are also not believable as they have not seen the accident and they might have come to the spot after the accident has occurred and found a dead body in the spot. Learned counsel further contended that though there was no eyewitness to the accident, these three witnesses are important witnesses and even then, they have not stated anything about the rash and negligent driving of the vehicle by its driver. There are lot 7 of contradictions in their evidence and none of them identified the driver. Learned counsel also contended that the Inspector of Motor Vehicles was not examined by the prosecution and merely saying that the driver was rash and negligent in driving the said vehicle, cannot be interfered with. Therefore, he prayed to allow the revision petition. Learned counsel for the petitioner, in support of his arguments relied upon a judgment of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA vs. SATISH reported in (1998) 8 SCC 493.
7. On the other hand, learned HCGP contended that there are eyewitness to the accident. Even otherwise, the accused has not explained about the accident under Section 313 of Cr.P.C. It is the duty cast upon the accused to explain as to how the accident has occurred, but he remained silent. She supports the judgments of the Courts below and prays for dismissal of the revision petition.
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8. It is not in dispute that the accident dated 04.08.2003 occurred on Chandragutti-Sorab road at 8.00 a.m., involving 407 Mini lorry, which was driven by the accused. PWs.2 and 8 were passengers in the said vehicle and one Irfan, who is said to be the Cleaner of the said lorry, was also travelling in the said lorry and died on the spot, is also not in dispute. 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. Therefore, there is a material error committed by the Trial Court warranting interference by this Court. On this background, this Court cannot re-appreciate the evidence under revisional power.
9. PW.2-Suresh Gowda, the complainant has stated in his evidence that he boarded the lorry as he was unable to 9 get any bus on that day and when the vehicle was moving, at some distance, two other persons also boarded the said vehicle. The Cleaner was also travelling in the vehicle. When the vehicle was proceeding near Ankaravalli Choladhagudde, the vehicle hit against a road side tree and fell down, due to which, the Cleaner of the said vehicle died at the spot. He was thrown out through the front window glass. He sustained injuries and nobody was found at the spot and then he went to the hospital and there the Police came and obtained the complaint and he identified the complaint as per Ex.P.2. In the cross- examination, he admitted that while proceeding in the vehicle, a huge sound was heard, later the vehicle hit against the road side tree. He also admitted that the road was not in a good condition and was also not in a motorable condition. He also stated that the driver of the lorry lost the control of the vehicle and dashed against the tree. As per the evidence of this witness, after the accident, except himself and other injured and driver, no other persons were found at the spot and they themselves 10 went to the hospital and obtained treatment. The same was corroborated with the wound certificate marked by the prosecution, where no other person accompanied with these injured persons when they came to the hospital for treatment except saying that the injured was accompanied with others. As per the evidence of PW.2, there were no eyewitness found on the spot at the time of the accident, except himself, injured and the driver, apart from the Cleaner, who died on the spot. PW.5-Showkath Ali, who is said to be the eyewitness as per the prosecution evidence turned hostile and has not supported the prosecution case. Even otherwise, as per the evidence of PW.1-Abdul Majid Sab, no person was present at the time of the accident. Therefore, the presence of this witness at the spot cannot be acceptable. PWs.2 and 7, examined as eyewitnesses by the prosecution, have stated before the Trial Court that when they were proceeding on the road talking together, a lorry came and dashed to the tree and the accident has occurred. They stated that one of the persons died on the spot and PW.6-Ramappa says that he 11 did not know what happened to the remaining persons. Though he stated that the accused was the driver of the lorry on that day, but in the cross-examination, he has admitted that before going to the spot, the accident has already occurred and he is unable to say the speed of the lorry and what was the reason for the accident. PW.7- Phakeerappa also stated in his cross-examination that when they went to the spot, one person was found dead and do not know about other persons and nobody was present at the spot. This goes to show that when this PW.7 went to the spot, nobody was present there except the dead body, which means he also went to the spot only after the accident and after PWs.2 and 8 themselves went to the hospital, which goes to show that they are not eyewitnesses to the accident. Otherwise, they could have seen the driver and the injured.
10. On a perusal of evidence of PWs.2, 7 and 8, the alleged eyewitnesses and also the injured witnesses, they have not spoken anything about the rash and negligent 12 driving of the lorry by the driver. Though PWs.6 and 7 were said to be the eyewitnesses, they have also not spoken about the rash and negligent driving of the lorry by its driver. Though the counsel for the accused suggested to PW.2 that the accident occurred due to cutting of the steering, but the same was not suggested to PW.11 the Investigating Officer. However, the Police came to the hospital and obtained the complaint and thereafter investigated the matter and filed the charge sheet. Both the courts below even though accepted the evidence of PWs.2, 7 and 8 as eyewitnesses, but not considered the admission made by them in the cross-examination and committed an error in accepting their evidence, even though they have not stated anything about the rash and negligent driving by the accused. Even on perusal of Ex.P.2-complaint, PW.2 stated that the accident has occurred due to losing control of the vehicle, but not stated about rash and negligent driving by the accused. However, in the last paragraph of the complaint, it was inserted as the accident occurred was due to rash and 13 negligent driving, which cannot be acceptable. The Hon'ble Supreme Court in the case of STATE OF KARNATAKA vs. SATHISH reported in (1998) 8 SCC 493, at paragraph-4 has held as follows;
"Merely because the truck was driven at a "high speed" does not speak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High Speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed"
in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no 14 presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
The facts of the said case are identical to the facts of the present case. The Trial court has come to the conclusion that there was rash and negligent driving based upon the non-explanation by the accused under Section 313 Cr.P.C. The Hon'ble Supreme Court held that Court cannot interfere only on the basis of non-explanation by the accused under Section 313 Cr.P.C. and the prosecution was required to prove the case beyond all reasonable doubts. Merely driving the vehicle in a high speed itself 15 will not constitute rash and negligent driving of the lorry by its driver. In view of the ratio laid down by the Hon'ble Supreme Court and the records of the Trial Court, it is clear from the evidence that none of the witnesses have spoken about the rash and negligent driving by the driver of the lorry, even though it was admitted by the accused as driver. Merely an accident has occurred and some persons sustained injuries itself will not constitute rash and negligent driving by the accused. Therefore, it is held that both the Courts below have not properly appreciated and re-appreciated the prosecution evidence and have wrongly come to the conclusion that the accused is guilty of the offences. Therefore, this Court is warranted to interfere with the judgment of conviction and sentence passed by the courts below.
11. In the result, the revision petition is allowed. The judgment of conviction and sentence passed by the Civil Judge (Jr.Dn.,) and JMFC, Sorab, in CC No.1021/2003, dated 18.10.2005, which was confirmed by the Sessions 16 Judge, I Fast Track Court, Shivamogga, in Criminal Appeal No.95/2005, dated 20.12.2008 are hereby set aside. The accused/petitioner is acquitted of the offences punishable under Sections 279, 337 and 304(A) of IPC, The bail bond, if any, stands cancelled. The fine amount paid, if any, is ordered to be refunded to the accused.
A copy of this order be sent to the courts below along with LCR.
SD/-
JUDGE mv