Karnataka High Court
Sri S Palani vs State Of Karnataka on 18 January, 2024
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NC: 2024:KHC:2478
CRL.RP No.132 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.132 OF 2018
BETWEEN:
SRI S PALANI
D/O SRI SHIVALINGAM,
R/AT:ADAVI BUDGURU VILLAGE AND POST,
Digitally signed
by SANDHYA S KUPPAM TALUK,
Location: High CHITTOR DISTRICT AP
Court of
Karnataka ...PETITIONER
(BY SRI. VEERANNA G TIGADI, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ELECTRONIC CITY POLICE STATION,
BANGALORE.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
UNDER SECTIONS 279,304 A OF IPC AND SECTION 146 R/W
SECTION 196 OF MV ACT PASSED BY THE HON'BLE CHIEF
JUDICIAL MAGISTRATE, BANGALORE RURAL DISTRICT,
BANGALORE IN C.C.NO.2558/2016, DATED 11 DAY OF APRIL
2017 AND THEREAFTER THE SAME WAS CONFIRMED BY THE
HON'BLE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE IN CRL.APPEAL
NO.49/2017, DATED 28.11.2017.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:2478
CRL.RP No.132 of 2018
ORDER
The Revision petitioner/accused has preferred this revision petition against the judgment of conviction and order of sentence dated 11th April, 2017 passed in CC No.2558 of 2016 by the Chief Judicial Magistrate, Bangalore Rural District, Bangalore (for brevity, hereinafter referred to as the "trial court"), which is confirmed by VIII Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Criminal Appeal No.49 of 2017 dated 28th November, 2017 (for brevity, hereinafter referred to as the "appellate court").
2. For the sake of convenience, the parties in this revision petition are referred to as per their status and rank before the trial Court.
3. Facts leading to the present revision petition are as under. It is alleged in First Information Report that on 22nd July, 2015 at about 8.40 am, near Seasons Hotel situate on National Highway-7, Electronics City, Bengaluru, the accused was riding motorcycle bearing Registration No.AP-03/BL-1503 without valid insurance, in a rash and negligent manner and dashed against one V. Elavarasan, who was crossing the road. -3-
NC: 2024:KHC:2478 CRL.RP No.132 of 2018 As a result, the victim sustained grievous injuries all over the body and the injured died on account of accidental injuries while taking treatment. Thus the accused has committed offence punishable under Sections 279, 304A of Indian Penal Code and Sections 146 read with 196 of Motor Vehicles Act, 1988. After filing of charge sheet, cognizance was taken against the accused for the alleged commission of offence and case was registered in CC No.2558 of 2016 and summons was issued. In response to summons, accused appeared before the trial Court and enlarged on bail. The substance of plea was recorded. Accused pleaded not guilty and claimed to be tried.
4. To prove the guilt of the accused, four witnesses were examined as PWs1 to 4 and six documents were marked as Exhibits P1 to P6. With consent of the accused, inquest, post- mortem report and IMV report were marked. On closure of prosecution side evidence, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused has totally denied all the evidence against him, however, has not chosen to lead any defence evidence on his behalf.
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5. Upon hearing both the parties, the trial Court has convicted the accused for the offence punishable under Section 279 and 304A of Indian Penal Code and Section 146 read with 196 of Indian Motor Vehicles Act, 1988. The accused was sentenced to undergo simple imprisonment for a period of six months and shall pay a fine of Rs.1,000/- for the offence punishable under Section 279 of Indian Penal Code; further the accused shall undergo simple imprisonment for a period of one year and shall pay fine of Rs.3,000/- for the offence punishable under Section 304A of the Indian Penal Code. Further, the accused shall also pay fine of Rs.1,000/- for the offence punishable under Sections 146 read with 196 of Indian Motor Vehicles Act, 1988. Being aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, the accused preferred appeal before the appellate court in Criminal Appeal No.49 of 2017. The said appeal came to be dismissed by order dated 28th November, 2017. Being aggrieved by the judgment of conviction and order of sentence passed by the both the courts below, the accused is before this Court in this revision petition.
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6. Sri Veeranna G. Tigadi, learned counsel appearing for the revision petitioner submits that the impugned judgment of conviction and order of sentence passed by the trial Court which is confirmed by the Appellate Court are arbitrary, capricious and opposed to law and facts. He submits that PW1 is the father of the deceased who is not an eye-witness to the accident. It has come in the evidence of PW1 that he has received a phone message as to the accident from CW5, who is not examined by the prosecution. According to the case of the prosecution PW2-Sridhar, PW3-Ganesh Babu are the eye- witnesses to the incident. PW2-Sridhar is the close relative of the deceased. If really PW2, who is the close relative of the deceased, had witnessed the incident, he would have informed the same to PW1 father of the deceased. But he has not done so. PW3-Ganesh Babu is the close friend of PW2-Sridhar. This evidence of PW2 reveals that he is not an eye-witness to the incident. Though PWs2 and 3 have not witnessed the accident, the Investigating Officer has planted them as eye-witnesses. Hence, their evidence cannot be accepted. On receiving the complaint, police have registered the case in crime No.126 of 2015 for commission of offence punishable under Section 279 -6- NC: 2024:KHC:2478 CRL.RP No.132 of 2018 and 337 of Indian Penal Code and submitted First Information Report to the court against unknown person. Even in the inquest panchanama also, the name of the accused has not been disclosed. The Investigating Officer has not been examined by the prosecution. The accident occurred on 22nd July, 2015 at 8.40 am. Without any cogent, convincing, corroborative or legally acceptable evidence, the trial Court has convicted the accused, which is confirmed by the Appellate Court. Accordingly, both the courts have failed appreciate the evidence in accordance with law and facts. On all these grounds, the learned counsel for the revision petitioner sought for allowing the revision petition.
7. On the other hand, Sri Channappa Erappa, learned High Court Government Pleader appearing for the respondent- State submitted that the trial Court has appreciated the evidence on record in accordance with law and facts and passed the judgment of conviction and order of sentence. The appellate Court has also confirmed the same. Absolutely, there are no grounds to interfere with the impugned judgment of judgment of conviction and order of sentence passed by both the courts below and hence, the learned High Court -7- NC: 2024:KHC:2478 CRL.RP No.132 of 2018 Government Pleader sought for dismissal of the revision petition.
8. Having heard the learned counsel for the parties, the following points would arise for my consideration in this appeal:
1. Whether the revision petitioner has made out a ground that the judgment of conviction and order of sentence passed by the trial Court which is confirmed by the trial Court is illegal, capricious, perverse and opposed to law and facts?
2. What order?
9. My answer to the above points is as under:
Point No.1: partly in the affirmative;
Point No.2: as per final order Regarding Point No.1:
10. I have carefully examined the material placed before this Court. It is the case of the prosecution that on 22nd July, 2015 at about 8.00 am, near Seasons Hotel at Electronics City, Bengaluru, the accused was riding motorcycle bearing Registration No.AP-03/BL-1503 with having insurance, in a rash -8- NC: 2024:KHC:2478 CRL.RP No.132 of 2018 and negligent manner and dashed against one V. Elavarasan, who was crossing the road, resultantly, the victim sustained grievous injuries all over the body and died on account of accidental injuries while taking treatment in the hospital. To prove the guilt of the accused, four witnesses were examined as PWs1 to 4 and six documents are marked as Exhibits P1 to P6. PW1-N. Vallalpiran, father of the deceased, in his evidence has deposed that 22nd July, 2015 at about 8.30 am, he has received the telephonic message through CW5 as to the occurrence of accident while his son was proceeding on footpath near Electronics City and his son was admitted to Blossom Hospital, Bengaluru. He came to know that a two- wheeler bearing Registration No.AP-03/BL-1503 hit his son. Immediately, he rushed to the Hospital where his son was taking treatment. Then he shifted his son to Sagar Hospial. Thereafter, he lodged complaint with the police as per Exhibit P1. After two days, doctors have informed as to the death of his son. As per the information, S.Palani-the rider of the motorcycle, is the cause for the said accident.
11. PW2-Sridhar has deposed in his evidence that on 22nd July, 2015 at about 8.45 am, he was standing near Seasons -9- NC: 2024:KHC:2478 CRL.RP No.132 of 2018 Hotel at Electronics City bus stop, deceased-Elavarasan was going on road, at that time, the rider of motorcycle bearing Registration No.AP-03/BL-1503 came in a high speed and in negligent manner and hit to said Elavarasan, as a result, he fell and received fatal injuries to his head. Immediately, he and others have shifted the injured to hospital. The accused was the rider of the motorcycle. On the next date, the police came to spot and conducted the mahazar as per Exhibit P2.
12. PW3-Ganesh Babu has deposed in his evidence that on 22nd July, 2015 at about 8.30 am, when he was waiting for his friends near Seasons Hotel, Electronics City Bus Stop, the accused came in a high speed on his two-wheeler and dashed against the deceased who was crossing the road on Zebra cross. By the identity card of the injured, he came to know the name of the deceased is Elavarasan, and he shifted him to the hospital in the ambulance. Thereafter, police came to the spot and conducted mahazar as per Exhibit P2.
13. PW4-Sharath, attester to the seizure mahazar has not supported the case of the prosecution.
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14. A careful, examination of complaint Exhibit P4, makes it clear that PW1-complainant has not disclosed the name of the eye-witnesses PWs2 and 3 in his complaint. Investigating Officer has not produced any material to show PWs2 and 3 who have witnessed the accident, have shifted the injured to the hospital through ambulance. Prosecution papers reveal that the Investigating Officer has recorded statement of the alleged eye-witnesses Sridhar and Ganesh Babu on 24th July, 2015. During the course of cross-examination of PW2-Sridhar, he has clearly admitted that the deceased is his close relative. Investigating Officer has not recorded the statement of eye- witnesses as to the presence of the accused after the accident. They have also not disclosed the name of the accused. If really PWs2 and 3 have witnessed the incident, they would have informed the same to the complaint PW1 as they have identified the name and address of the deceased by his identity card. On the contrary, the evidence of PW1 reveals that he has received the phone message as to the accident of his son through CW5, who is not examined before the Court. The contents of Exhibit P1 reveals that when the deceased was crossing the road on Zebra cross, the accident occurred. PWs1
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NC: 2024:KHC:2478 CRL.RP No.132 of 2018 and 2 have not deposed in their evidence that the accident occurred while the deceased crossing the road. The existence of Zebra cross is also not shown in Exhibit P5-spot mahazar. There is no consistency in the evidence of material witnesses PWs2 and 3 and contents of Exhibit P1, as to the manner of the occurrence of accident at the relevant point of time. Apart from this, the material witness-Investigating Officer has not been examined by the prosecution. At this juncture, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of NANJUNDAPPA AND ANOTHER v. STATE OF KARNATAKA reported in 2022 SCC ONLINE SC 628 wherein it is observed that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case. In the said, judgment it is observed as under:
"Indian Penal Code. 1860; Section 304A - Doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case - For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim.
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15. In the case of STATE OF KARNATAKA v. SATISH reported in (1998)8 SCC 493, at paragraph 4 of the judgment, the Hon'ble Supreme Court has observed thus:
"4. Merely because the truck was being driven at a "high speed" does not bespeak 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 presumption of "rashness" or "negligence" could be drawn by involing the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle,
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NC: 2024:KHC:2478 CRL.RP No.132 of 2018 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."
16. Considering the facts and circumstances of the case, absolutely there is no cogent, corroborative, convincing, clinching, believable and trustworthy evidence before the Court to convict the accused for the alleged commission of offence punishable under Section 279 and 304A of Indian Penal Code. Therefore, keeping in mind the aforesaid decisions of the Hon'ble Apex Court, this Court is of the considered opinion that the prosecution has failed to prove the guilt of the accused for the commission of offence punishable under Section 279 and 304A of Indian Penal Code and both the Courts have not appreciated the evidence on record in accordance with law and facts.
17. With regard to the commission of offence punishable under Sections 146 read with 196 of Motor Vehicles
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NC: 2024:KHC:2478 CRL.RP No.132 of 2018 Act, 1988 is concerned, the accused S. Palani has executed indemnity bond before the police in which he has clearly admitted that the offending vehicle was not insured. Even at the time of trial, on examination of Section 313 of Code of Criminal Procedure, the accused has not produced the policy of insurance with respect to the offending vehicle. Accordingly, both the courts have properly appreciated the evidence on record in accordance with law and facts with regard to commission of offence punishable under Sections 146 and 196 of Motor Vehicles Act, 1988. The accused has also remitted the fine amount. Accordingly, I answer the point No.1 partly in the affirmative.
Regarding Point No.2:
18. For the foregoing reasons and discussions, I proceed to pass the following:
ORDER
1. Revision Petition is partly allowed;
2. Judgment of conviction order of sentence dated 11th April 2017 passed in CC No.2558 of 2016 by the Chief Judicial Magistrate, Bangalore Rural
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NC: 2024:KHC:2478 CRL.RP No.132 of 2018 District, Bangalore, which is confirmed by the VIII Additional District and Sessions Judge, Bengaluru in Criminal Appeal No.49 of 2017 dated 28th November, 2017 for commission of offence punishable under Sections 279 and 304A of Indian Penal Code, are set aside;
3. The revision petitioner/accused is acquitted for the offence punishable under Section 279 and 304A of Indian Penal Code.
4. Order of sentence passed in respect of commission of offence under Sections 146 read with 196 of Motor Vehicles Act, 1988 is confirmed;
5. Rs.1,000/- fine amount which is already remitted by the accused for commission of offence punishable under Section 196 of Motor Vehicles Act, 1988, shall be forfeited to Government and the remaining fine amount shall be returned to the accused, in accordance with law;
6. Send the copy of the order along with the trial Court record to the concerned court.
Sd/-
JUDGE LNN List No.: 1 Sl No.: 36