Karnataka High Court
R. Kempegowda vs State Of Karnataka on 7 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2245, 2019 (1) AKR 335, (2019) 2 KCCR 1832
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION No.328 of 2011
BETWEEN
R. KEMPEGOWDA,
AGED ABOUT 41 YEARS,
S/O. H. RAMANNA,
RAILWAY QUARTERS,
PANDAVAPURA,
MANDYA.
... PETITIONER
(BY MR. RENUKARADHYA, ADVOCATE FOR
M/S. P NATARAJU ASSOCIATES)
AND
STATE OF KARNATAKA,
BY F-1 TRAFFIC POLICE,
MYSORE.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU.
... RESPONDENT
(BY SMT. B G NAMITHA MAHESH, HCGP)
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THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 (1) CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 29.11.2010 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE
IN CRL.A.No.17/2010 AND ORDER DATED 25.01.2010
PASSED BY THE I ADDITIONAL CIVIL JUDGE (SR.DN.) AND
C.J.M, MYSURU, IN C.C.No.992/2005.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 30.11.2018 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner under Section 397(1) of Cr.P.C. seeking to set aside the judgment of conviction and sentence dated 25.01.2010 passed by the I Additional Civil Judge (Sr.Dn.,) and CJM, Mysuru, in CC No.992/2005 and confirmed by the II Additional District and Sessions Judge, Mysuru, in Criminal Appeal No.17/2010, dated 29.11.2010.
2. The petitioner is the accused before the Trial Court and the respondent is the complainant. The ranks of the parties before the Trial Court are retained for the sake of brevity.
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3. The case of the prosecution is that the Traffic Police, Mysuru, filed the charge sheet against the accused for the offences punishable under Sections 279, 304(A) of IPC and Sections 146 and 196 of the Motor Vehicles Act alleging that on 21.07.2010, at about 8.00 p.m., on Hunsur- Mysuru road, near Valmiki junction at Kukkarehalli village, the accused drove the Maxi Cab bearing No.KA 09 3549 in a rash and negligent manner. As a result of which, a passenger by name Ajay Shetty, who was traveling on the footboard fell down and the said vehicle ran over him, due to which, he sustained grievous injuries and succumbed to the injuries while he was shifted to the hospital by PW.2, the Police Constable. The PW.2 lodged a complaint. Thereafter, a case was registered against the accused and after investigation, Police filed the charge sheet against the accused. When the accused was secured and was represented by a counsel, his plea was recorded. The accused pleaded not guilty and claimed to be tried. The 4 prosecution was called upon to adduce evidence. The prosecution in all examined 6 witnesses and got marked 7 documents. After the closing of evidence of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. The case of the accused was one of total denial, but not entered any defence evidence. After hearing the arguments, the Trial Court found the accused guilty of the offences punishable under Section 279 and 304(A) of IPC and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 304(A) of IPC,. However, the accused was acquitted of the offences punishable under Section 146 read with 196 of the Motor Vehicles Act and there is no separate sentence passed against the accused for the offence punishable under Section 279 of IPC.
Being aggrieved by the same, the accused preferred Criminal Appeal No.17/2010, before II Additional District 5 and Sessions Judge, Mysuru, which came to be dismissed confirming the judgment of conviction and sentence. However, the Appellate Court by its judgment dated 29.11.2010 reduced the sentence to three months' simple imprisonment and to pay a fine of Rs.1,500/- for the offence punishable under Section 304(A) of IPC and imposed a fine of Rs.500/- for the offence punishable under Section 279 of IPC.
Being aggrieved by the same, the accused/petitioner preferred the present revision petition on various grounds that the courts below have wrongly relied upon the evidence of the interested witnesses. There was inconsistency in the evidence. The so-called complainant is not believed to have seen the deceased victim traveling in the Maxi Cab. The eyewitness was the friend of the deceased victim. The statements of other passengers in the Maxi Cab were not recorded. The entire evidence of prosecution is taken on its face value. There is no case made out against the accused to convict him for the 6 offences alleged. There is manifest error committed by the courts below, which is arbitrary, illegal and otherwise opposed to law. Hence, prayed for setting aside of the judgments of the courts below .
4. Heard the arguments of learned counsel for the petitioner and learned HCGP appearing for the respondent. Perused the LCR and other material available on record.
5. Learned counsel for the petitioner has strenuously contended that though there is no eyewitness to the accident, the Police Constable, who is said to be on duty near the spot on that day, came to the spot after the accident has occurred and filed the complaint. The evidence of PW.4-Yathish relied upon by the court below was planted as an eyewitness, who is none other than the friend, classmate and from the native place of the victim. There is a clear admission by PW.4 in the cross- examination that he has not seen as to who has shifted the 7 victim to the hospital. Even, if he has seen the accused, he could have shifted the victim to the hospital or could have lodged the complaint, but he has not lodged any such complaint. The passengers, who were said to be traveling in the Maxi Cab were not at all examined by the Investigating Officer. No eyewitnesses were examined by the Investigating Officer. The sole testimony of PW.2- Police Constable, who lodged the complaint, was accepted by the court below, which is an apparent error. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of MOHAMMED AYNUDDIN ALIAS MIYAM vs. STATE OF ANDHRA PRADESH reported in (2000) 7 SCC 72.
6. On the other hand, learned HCGP appearing for the State contended that PW.4 was not considered as an eyewitness. The evidence of PW.2 is acceptable as he is a Police Constable and there is nothing to disbelieve his evidence to show that he was not present at the spot. 8 Therefore, the evidence of PW.2 can be the base for the conviction. Hence, she supported the judgments passed by the courts below and prayed to dismiss the revision petition.
7. On perusal of the evidence of PWs.2 and 4, the said witnesses are shown as eyewitnesses by the prosecution. PW.2-Constable, who was posted to duty near the place of the accident, has stated that on 21.07.2005, at 7.45 p.m., one Shankar, Police Constable came and relieved him and he went to a Tea Stall and while coming back, the said accident has occurred due to rash and negligent driving of the accused. Immediately, after the accident, he says that he had shifted the deceased to the hospital and on the way, the deceased succumbed to the injuries and he intimated the same to his higher officers and the Police Station through wireless and went to the Police Station and lodged the complaint as per Ex.P.1. During the course of cross-examination, he admitted that the place of accident 9 was a very busy area with huge traffic. There is a traffic signal about 200 meters away from the place of the accident and he has witnessed the accident that while going towards the junction, a vehicle came from the opposite direction. It shows that when he was coming from the opposite direction, a passenger boarded the said vehicle and the deceased was traveling on the footboard, which could be the left side of the vehicle and he could not have seen the person traveling in the footboard. It is well settled by the Hon'ble Supreme Court in a catena of decisions that the evidence of the Police cannot be discarded merely they are interested. If they are trustworthy, their evidence could be relied upon for basing the conviction, if it is corroborated with the evidence of other witnesses. But, in this case, the Police Constable is not able to show whether persons gathered near the spot and he has stated that there were number of passengers traveling in the Maxi Cab in question. PW.4-Yethish, who is said to be the eyewitness to the accident, has also 10 stated that he saw the accident. The deceased, who was traveling in the footboard fell down, sustained injuries, then people gathered and shifted him to the hospital. When he came near the accident spot, he came to know that the deceased person was known to him and belong to his native place. However, he has stated that people who gathered near the accident spot shifted the deceased to the hospital. Thereafter, he went to the hospital and he came to know that the deceased succumbed to the injuries. In the cross-examination, he has clearly admitted that the deceased was his friend, classmate and belongs to the same native place and he has also stated that near the spot, some people gathered and were shifting the deceased to the hospital and has not lodged any complaint and he is unable to say about the speed of the vehicle. Though he has stated in the cross-examination that he has seen only the injured was falling down from the vehicle, which part of the cross-examination and admission go to show that this witness was not able to say 11 as to who shifted the deceased to the hospital. If at all, PW.2-Police Constable, who was on duty on that day shifted the injured to the hospital, PW.4, the so-called eyewitness might have stated that the Police Constable shifted the injured to the Hospital. Even otherwise, when he himself claims to be the deceased's friend, classmate and from same native place of the deceased, he ought to have shifted the deceased to the hospital and might have lodged the complaint to the Police, if he is really an eyewitness to the accident. No ordinary prudent man would leave his friend unnoticed, when he has met with an accident without shifting him to the hospital for providing treatment or lodging a complaint. Non-shifting of the injured to the hospital and non-lodging a complaint, clearly goes to show that PW.4 was not an eyewitness and he might have come to know about the accident at a later stage and might have given statement to the Police. Apart from that, if PW.4 was present at the spot, PW.2, who is an eyewitness to the accident and a Police Constable might 12 have stated that the friend of the deceased Ajay Shetty also came to the spot. He has pleaded ignorance. He did not know the names of other persons who gathered there and did not know the names of the passengers. PW.2 could have taken other eyewitness to the hospital along with him, but no such evidence is forthcoming in the prosecution evidence, which clearly goes to suggest that the presence of PW.2 at the accident spot and witnessing the accident is doubtful. Likewise, PW.4 might not have seen the accident, but later on, came to the hospital and identified the deceased. Therefore, based on the evidence of PWs.2 and 4 as eyewitnesses, the courts below have wrongly come to the conclusion that the accused is guilty of rash and negligent driving of the Maxi Cab. PW.2 is said to have informed his higher officer and Police Station on the way to the hospital after the deceased breathed his last. PW.5-Police Sub-Inspector, who received the complaint, clearly admitted in the cross-examination that he has not received any such information about the 13 accident prior to lodging of the complaint by PW.2. The admission of PW.5 itself goes to show that the evidence of PW.2 cannot be accepted that he has witnessed the accident. Probably, PW.2 might have come to the spot after the accident and nobody came forward for shifting the deceased to the hospital and therefore, he might have shifted the deceased to the hospital. Therefore, the Trial Court and the First Appellate Court have not properly appreciated the evidence of PWs.2 and 4 and have come to the wrong conclusion that the accused is guilty of rash and negligent driving and thereby causing the death of the deceased Ajay Shetty. The contention of learned HCGP that there is no explanation of the accused under Section 313 Cr.P.C. and therefore, the Court can presume that the accused was rash and negligent, cannot be acceptable. In this regard, the Hon'ble Supreme Court in the case of Mohammed Aynuddin alias Miyam, supra, has held that it is a wrong proposition that for any motor 14 accident, negligence of the driver should be presumed. It has been held at paragraph 7 as follows:
" 7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely, because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus."
8. The ratio of the aforesaid case is similar to that of the case on hand and the same is squarely applicable to the present case, as in this case also, the passenger fell down from the vehicle, who is said to have traveled on the footboard of the Maxi Cab and sustained injuries and died. The Investigating Officer has also not examined the 15 Cleaner of the vehicle and other passengers of the vehicle to prove the guilt of the accused. Therefore, both the Courts below could have extended the benefit of doubt to the accused.
9. In the view of the discussions supra, this Court is of the view that the prosecution has failed to prove the case against the accused. Hence, both the courts below have committed an error in holding the accused guilty of the offences alleged and convicting him. Therefore, this Court is required to interfere with the judgment of conviction and sentence passed by the courts below.
10. In the result, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by the I Additional Civil Judge (Sr.Dn.,) and CJM, Mysuru, in CC No.992/2005, dated 25.01.2010 and confirmed by the II Additional District and Sessions Judge, Mysuru, in Criminal Appeal No.17/2010, dated 29.11.2010, are hereby set aside. The accused is acquitted of the charges 16 leveled against him. 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