Karnataka High Court
Gadigeppa S/O Mallappa Desai vs State Of Karnataka on 29 November, 2022
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CRL.RP No. 100169 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CR.R.P.NO.100169/2014
BETWEEN:
GADIGEPPA S/O MALLAPPA DESAI,
AGE : 56 YEARS, OCC: DRIVER,
R/O TAVARAMALAHALLI, TAL: SAVANUR.
DIST: HAVERI.
...PETITIONER
(BY SRI M.B.GUNDAWADE, ADV.)
AND:
STATE OF KARNATAKA
BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DAHRWAD BENCH, AT DHARWAD.
HAVERI TOWN POLICE.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
Digitally signed by
ROHAN
HADIMANI T
Date: 2022.12.30 THIS CRIMINAL REVISION PETITION IS FILED
13:17:44 +0530
UNDER SECTION 397 READ WITH SECITON 401 OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF
CONFICTION AND ORDER OF SENTENCE DATED
15.05.2012 PASSED BY SENIOR CIVIL JUDGE AND CJM
COURT HAVERI AND JUDGMENT OF CONFIRMATION OF
CONVICTION PASSED BY THE I ADDITIONAL DISTRICT
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CRL.RP No. 100169 of 2014
AND SESSIONS JUDGE, HAVERI IN CRIMINAL APPEAL
NO.27/2012 DATED 10.07.2014 AND TO ACQUIT THE
PETITIONER/ACCUSED FROM CHARGES U/S. 279, 337,
338 AND 304A OF INDIAN PENAL CODE AND SUCH OTHER
RELEIFS.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.09.2022
COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure ("Cr.P.C." for short) by the accused seeking to call for records from the Courts below and set aside the judgment dated 15.05.2012 passed in Crl.A.No.27/2012 by the I Additional District & Sessions Judge at Haveri and judgment and order of conviction dated 15.05.2012 passed in C.C.No.109/2010 by the Senior Civil Judge & CJM, Haveri and acquit the accused for the offences punishable under Section 279, 337, 338 and 304A of the Indian Penal Code ("IPC" for short) -3- CRL.RP No. 100169 of 2014
2. The parties are referred to as per their rank before the Trial Court.
3. Heard Sri M.B.Gundawade, learned counsel appearing for the accused and Sri V.M.Banakar, learned Additional State Public Prosecutor appearing for the State.
4. Brief facts of the case are that, on 20.03.2010 at about 5.30 p.m. on P.B.Road, near Ajjayya Temple, the accused drove his Tata Ace vehicle bearing registration No.KA.27/9114 from Haveri side towards Hubli in a rash and negligent manner which is endangering to human life suddenly took the said vehicle towards left side and the same was toppled down and caused simple injuries and as well as grievous injuries to CWs.6 to 8 and caused death of one Neelakanthappa Badiger, who were traveling in the said vehicle. Accordingly, the accused has committed the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. On the basis of the complaint, the jurisdictional police have registered a case and filed the -4- CRL.RP No. 100169 of 2014 charge sheet before the Trial Court against the accused in C.C.No.109/2010 for the aforesaid offences as alleged.
5. After taking cognizance, case was registered in C.C.No.109/2010. In pursuance of the Summons, the accused appeared before the Trial Court. Plea was recorded. The accused has pleaded not guilty and claims to be tried.
6. To prove the case of the prosecution, prosecution in all 12 witnesses have been examined as PWs.1 to 12 and got marked 17 documents as Exs.P.1 to P.17. On closure of evidence of prosecution side, accused was questioned under Section 313 of Cr.P.C. He has totally denied all the incriminating evidence appearing against him, but he has not chosen to lead any defence evidence on his behalf.
7. On hearing the arguments, the Trial Court has convicted the accused for the offences punishable under Sections 279, 337, 338 and 304A of IPC and sentenced to -5- CRL.RP No. 100169 of 2014 pay fine of Rs.750/- in default he shall undergo simple imprisonment for a period of 2 months for the offence punishable under Section 279 of IPC, accused shall pay fine of Rs.400/- in default he shall undergo simple imprisonment for a period of 1 month for the offence punishable under Section 338 of IPC, the accused shall pay fine of Rs.800/- in default he shall undergo simple imprisonment for a period of 4 months for the offence punishable under Section 338 of IPC and the accused shall undergo simple imprisonment for a period of 6 months for the offence punishable under Section 304(A) of IPC.
8. Being aggrieved by the judgment of conviction and order of sentence dated 15.05.2012 passed in C.C.No.109/2010, the accused has preferred an appeal in Crl.A.No.27/2012 before the learned I Additional District & Sessions Judge at Haveri ("the Sessions Judge" for short). The Sessions judge has dismissed the said appeal by his order dated 10.07.2014. Being aggrieved by the order -6- CRL.RP No. 100169 of 2014 dated 10.07.2014 passed by the Sessions Judge, the accused has preferred this criminal revision petition.
9. Sri M.B.Gundawade, learned counsel appearing on behalf of the petitioner has submitted his argument that, the Courts below have not properly appreciated the evidence on record in proper perspective manner. The orders of conviction and sentence passed by the Courts below are not proper and legal. PW.1, the complainant who is the injured witness has not supported the case of the prosecution. PW.2 is the circumstantial and spot mahazar witness, PWs.4 and 5 are not eye witnesses to the incident, PW.6 insured witness has not supported the case of the prosecution. PW.7-Basappa Shiddappa Kabbur is the owner of the vehicle is also not supported the case of the prosecution. None of the witnesses have stated as to the speed of the vehicle. At the time of accident one truck came from opposite side, then the accused took his vehicle towards left side, then the vehicle was capsized. Hence there is no rash and negligent act on the part of the -7- CRL.RP No. 100169 of 2014 accused. PW.3 has clearly admitted in his evidence that at the time of accident, one lorry came from opposite side and the same has not been considered by the Courts below. It is pure accident. Though the accused has taken all reasonable precautionary steps to avoid the accident, unfortunately beyond control of the driver of the vehicle, the vehicle was capsized. Hence, there are no ingredients to attract alleged commission of the offences punishable under Sections 279, 337, 338 and 304A of IPC. On these grounds, he sought to allow this criminal revision petition.
10. Sri V.M.Banakar, learned Additional State Public Prosecutor has submitted his argument that, the Courts below have properly appreciated the evidence on record in accordance with law and passed the orders of conviction. Hence, there are no valid grounds to interfere with the judgment and orders passed by both the Courts below. To substantiate his argument, he has relied on the decisions of this Court in the case of STATE OF KARNATAKA VS. BASAVARAJ SIDDAPPA JADHAV reported in 2008 (2) -8- CRL.RP No. 100169 of 2014 KCCR 1257 and sought for dismissal of the criminal revision petition.
11. I have carefully examined the prosecution papers, evidence on record and impugned judgments and order of both the Courts below. In all 16 witnesses have cited as witnesses in charge sheet. Out of them, 12 witnesses have been examined as PWs.1 to 12. CW.1- Parasappa Basavanneppa Kubusad said to be the complainant and also injured witness examined as PW.1. He has deposed in his evidence that at the relevant point of time, he was proceeding in a Tata Ace vehicle along with Neelakanthappa Badiger, Vishnu Shivappa Shivannavar. He was sitting in a cabin. The accused drove the vehicle in slow manner. When the vehicle was proceedings near RTO Office, Haveri between 10.30 a.m. and 5.00 p.m., the vehicle capsized towards left side. As a result he and other inmates traveling in the vehicles sustained injuries. One Neelakantappa Badiger was died in the Hospital at Hubballi. The Police have taken his -9- CRL.RP No. 100169 of 2014 signature on Ex.P.2 in Hospital. Further he has categorically stated that, he has not stated before the police that the accused drove the vehicle in a speed manner, as a result, vehicle was toppled down. This witnesses has treated has hostile witness by the prosecution with the permission of the Court and cross- examined by Assistant Public Prosecutor. During the course of cross-examination also, he has categorically denied as to the rash and negligent act on the part of the accused. Further he has stated that, he do not know the contents of Ex.P.2.
12. CW.5 Shivappa Mahadevappa Kabbur said to be the attester to the spot mahazar Ex.P.3 examined as PW.2. He has deposed in his evidence that the police have taken his signature on Ex.P.3. This witness also has not fully supported to the case of the prosecution.
13. CW.7-Vishnu Shivappa Mahadevappa Kabbur examined as PW.3. He has deposed in his evidence that on 20.03.2010, he himself, Neelakantappa Badiger, Ramesh
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CRL.RP No. 100169 of 2014 Harijan, Ashok Doddamani, and Basappa Kubusad, came to Haveri city from their village in Tata Ace vehicle on the same day about about 5.30 p.m. They left Haveri by carrying the construction materials in Tata Ace vehicle and proceedings along with Neelakantappa Badiger, Ramesh Harijan, Ashok Doddamani and Basappa Kubusad. The accused was traveling the vehicle and when the vehicle was proceeding near RTO, the driver driving the vehicle in a high speed by that time one lorry came from opposite side, then the accused all of a sudden took his Tata Ace towards left side, as a result the vehicle was capsized at about 5.30 p.m. Due to this accident, he himself Ramesh, Neelakantappa Badiger and Parasappa have sustained injuries. After lapse of 2-3 days from the accident, Neelakantappa Badiger passed away due to accidental injuries. Since the driver of the Tata Ace drove the same in high speed and rash and negligent manner the accident occurred.
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CRL.RP No. 100169 of 2014
14. CW.9-Shanmukhappa Neelakantappa Badiger examined as PW.4 has deposed in his evidence that on 20.03.2010 his father Neelakantappa Badiger died in the accident occurred near RTO Office, Haveri. The same was informed to him through his villagers. Immediately he rushed to KIMS Hospital, Hubballi, and saw the dead body of his father in Mercury. Then he has received the dead body of his father. The Police have also issued receipt in this regard which has been marked at Ex.P.8.
15. CW.8-Ramappa Fakirappa Harijan examined as PW.5 said to be the inmate of the vehicle has deposed in his evidence that, he himself, Neelakantappa Badiger and others were proceeding in the Tata Ace vehicle at about one and half years back in the evening driven by the accused. Since the driver of the said vehicle drove the same in high speed. The vehicle was toppled down near RTO Office, P.B.Road. Due to this accident, he has sustained injuries. The inmates of the vehicle Neelakantappa Badiger, Vishnu, Parasappa and Ashok also
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CRL.RP No. 100169 of 2014 sustained injuries. They have taken for treatment in District Hospital, Haveri. Neelakantappa Badiger was shifted to KIMS Hospital for further treatment. After lapse of two days while taking treatment, Neelakantappa Badiger passed away.
16. CW.6-Ashok Ningappa Doddamani, said to be the eyewitness to the accident examined as PW.6 has not supported the case of the prosecution. This witness was treated as hostile witness by the Assistant Public Prosecutor with the permission of the Court. During his cross-examination, he has categorically denied the statement recorded by the Investigating Officer under Section 161 of Cr.P.C which is marked at Ex.P.9.
17. CW.10-Basappa Siddappa Kabbur, the owner of the vehicle bearing registration No.KA.27/9114 examined as PW.7 has deposed in his evidence that, he is the owner of the Tata Ace vehicle bearing registration No.KA.27/9114. Since 5.6 years, the accused is working as driver in the said vehicle and he did not know about the
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CRL.RP No. 100169 of 2014 accident. Hence, this witness was treated as hostile witness by the APP with the permission of the Court and cross-examined. During his cross-examination, he has denied all the statements recorded by IO under Section 161 of Cr.P.C., which is marked as Ex.P.12.
18. CW.4-Rudragouda Bangaragouda Patil attestor to the Ex.P.6-panchanama has not supported the case of the prosecution.
19. CW.14-K.R.Govindappa and CW.16- M.Murugendraiah who are the Sub Inspector of Police and Police Inspector respectively examined as PWs.9 and 12. Both are deposed as to their respective investigation.
20. PW.10-doctor-Adamali Allasab Nadaf has deposed in his evidence as to the post mortem examination of the deceased Neelakantappa Badiger and also issuance of post mortem report as per Ex.P.15.
21. PW.11-Anila Balakrishna Masur, Motor Vehicle Inspector has deposed in his evidence as to the inspection
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CRL.RP No. 100169 of 2014 of offending vehicle and also issuance of report as per Ex.P.16.
22. On careful scrutiny of the evidence placed before this Court, it is crystal clear that on 20.03.2010 at 05:30 PM when the vehicle bearing Reg.No.KA-27/9114 TATA Ace was proceeding near P.B. Road, near Ajjayya temple, the accused all of a sudden took the vehicle towards left side, as a result, the vehicle toppled down and the inmates of the vehicle received injuries. The complainant Parasappa Basavanneppa Kubusad has not supported to the case of the prosecution. In Ex.P.2- complaint, it is not stated why the accused all of a sudden took the vehicle towards the left side of the road. None of the prosecution witnesses except PW.3 have deposed anything as to why the accused took his vehicle towards the left side of the road. PW.3 has clearly stated in his evidence that at the time of the accident, one lorry came from the opposite side therefore, the accused all of the sudden took his vehicle towards the left side of the road
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CRL.RP No. 100169 of 2014 but complaint is silent about this fact and other witnesses have not deposed in this regard. Investigating Officer has also not investigated as to this aspect. Ex.P.3/spot panchanama reveals that the width of the tar road is 30ft. and there is about 20ft. kaccha road on both the sides. Ex.P.4/rough sketch prepared by the Investigating Officer also reveals as to the width of the road. At least the Investigating Officer ought to have explained as to why the accused all of the sudden took his vehicle towards the left side of the road. In the absence of this material peace of evidence, the evidence of prosecution witnesses will create doubt about the act of the accused. The Investigating Officer has suppressed the material fact before the Court which creates reasonable doubt about the act of the accused.
23. The admission made by PW.3 clarifies as to the cause of the accident that since the lorry came from opposite side and in order to avoid the accident, the accused all of a sudden took his vehicle towards the left
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CRL.RP No. 100169 of 2014 side of the road. Though the accused had taken all reasonable precautionary steps to avoid the accident, unfortunately beyond his control, the vehicle was capsized. In this regard, there is a force in the arguments submitted on behalf of the accused. The Investigating Officer has not properly investigated and mechanically submitted the charge sheet. Accordingly, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.
24. The Courts below have not appreciated the evidence on record in proper perspective manner. Hence, the impugned judgments are required to be set aside. Hence, I proceed to pass the following:
ORDER i. The revision petition is allowed. ii. The judgment of conviction and sentence passed by the learned Senior Civil Judge and CJM, Haveri dated 15.05.2012 which is
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CRL.RP No. 100169 of 2014
confirmed by the learned I Additional District & Sessions Judge at Haveri dated 10.07.2014 are set aside.
iii. The accused is acquitted for the offences punishable under Sections 279, 337, 338 and 304(A) of the IPC.
iv. The fine amount deposited by the accused if any, shall be returned to the accused with proper identification.
v. Transmit the Trial Court Records to the concerned Trial Court along with a copy of this order.
Sd/-
JUDGE EM/RH