Karnataka High Court
Yallappa Nagu Naik vs The State Of Karnataka on 6 March, 2024
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NC: 2024:KHC-D:4927
CRL.RP No. 100214 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100214 OF 2016 (397)
BETWEEN:
YALLAPPA NAGU NAIK,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: DESUR, TQ: DIST: BELAGAVI.
- PETITIONER
(BY SRI. HARISH S MAIGUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY CPI,
KHANAPUR, TAL: KHANAPUR,
THROUGH S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C SEEKING TO ALLOW THE PETITION AND SET ASIDE
THE IMPUGNED JUDGMENT PASSED IN CRIMINAL APPEAL NO.
Digitally signed by
SAROJA
SAROJA HANGARAKI
Location: HIGH COURT
OF
202/2013 DATED 06.11.2015 PASSED BY THE LEARNED VIII ADDL.
HANGARAKI KARNATAKA,DHARWAD
BENCH
Date: 2024.03.07
DISTRICT AND SESSIONS JUDGE, BELAGAVI, CONFIRMING THE
10:37:14 +0530
ORDER PASSED IN C.C. NO. 593/2010, PASSED BY THE PRL. CIVIL
JUDGE & JMFC., KHANAPUR, DATED 19.11.2013 AND
COUNSEQUENTLY ALLOW THE PETITION FILED BY THE PETITIONER
& ETC.
THIS CRIMINAL REVISION PETITION, HAVING HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS ON 29.02.2024
COMING ON 'FOR PRONOUNCEMENT OF ORDER', THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:4927
CRL.RP No. 100214 of 2016
ORDER
Revision petitioner/ accused feeling aggrieved by judgment of the first appellate Court on the file of The VII Addl. District and Sessions Judge, Belagavi in Criminal Appeal No. 202/2013 dated 06.11.2015 in confirming the judgment of conviction and order of sentence passed by the trial Court on the file of Prl. Civil Judge & JMFC, Khanapur in C.C. No. 593/2010 dated 19.11.2013, preferred this revision petition.
2. Parties to the revision petition are referred with their ranks as assigned in the trial Court, for the sake of convenience.
3. Heard arguments of both sides.
4. After hearing arguments of both sides and on perusal of trial court records, so also the impugned judgment under revision, the following points arise for consideration.
i) Whether the impugned judgment under revision passed by the first appellate Court in confirming the judgment of conviction and order of sentence passed by the trial Court for the offences punishable U/s 279, 338, 304A of IPC r/w Section 184, 66 and 192 of M.V. Act is perverse, capracious and legally not sustainable?-3-
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ii) Whether interference of this Court is required?
5. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that the complainant- Manohar Maruti Bharankar and others on 18.05.2010 at 1.00 A.M. after attending Attarwadi fair, were returning to their village in jeep No. KA-22-M-2378 driven by Manohar Irappa Sulebhavikar. When they reached near Katgali factory by keeping left side of the road, at that time, the rider of the motorcycle No.KA-22-ED-1464 came with high speed in rash and negligent manner so as to endanger human life and on coming to the wrong side, dashed against the jeep from its right side due to which, right side of the wheel of the jeep was broken and detached from the jeep. The rider of motorcycle and two pillion riders also fell on the road and sustained injuries. One of the pillion rider, Satish, succumbed to the injuries on 21.05.2010 while he was under treatment in K.L.E. Hospital, Belagavi. Accused was the rider of motorcycle and another pillion rider, Prasad sustained injuries in the said accident.
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6. The prosecution further alleges that accident in question has occurred due to rash and negligent riding of the rider of motorcycle resulting into the death of one of the pillion rider, Satish and causing injuries to accused being the rider of the motorcycle and another pillion rider Prasad. The prosecution further alleges that accused was riding the motorcycle by violating the permit conditions and without displaying register number of the vehicle.
7. The prosecution to prove the allegations made against the accused relied on the oral testimony of PWs.1 to 8 and the documents Exs.P.1 to P.9. The trial Court after hearing the arguments of both sides and on appreciation of the oral and documentary evidence placed before it, has convicted the accused for the offences alleged against him and imposed sentence as per order of sentence.
8. Accused challenged the said judgment of conviction and order of sentence before the first appellate Court in Criminal Appeal No. 202/2013. The first appellate Court after hearing arguments of both sides and on re-appreciation of the material evidence placed on record, dismissed the appeal and confirmed -5- NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 the judgment of conviction and order of sentence passed by the trial Court.
9. The accused has challenged the correctness and legality of the concurrent findings of both the Courts below in holding that accused is guilty for the offences alleged against him. It is contended that both the Courts below have not properly appreciated the evidence of PW1-Manohar Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5-Prakash Laxman Kadam with reference to their admission in the cross examination and as a result recorded improper findings which is against the evidence on record and same cannot be legally sustained. The evidence of PW7-Prasad Ashok Lohar who was another pillion rider of the motorcycle driven by the accused has been conveniently ignored by both the Courts below. The spot features at the place of accident recited under the spot panchanama-Ex.P.2 and the defence of accused has not been properly appreciated by both the Courts below. The findings recorded by both the Courts below that the accident in question has occurred due to culpable rashness or negligence of the accused in riding the motorcycle No. KA-22-ED-1464 cannot be -6- NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 legally sustained and therefore interference of this Court is required.
10. Per contra, learned HCGP has argued that the Courts below have rightly appreciated the evidence on record and recorded proper findings on appreciation of evidence placed on record by the prosecution. There are absolutely no valid reasons to disbelieve the evidence of eyewitnesses, PW1- Manohar Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5-Prakash Laxman Kadam and their evidence is consistent enough regarding the manner in which the accident took place leading to the death of pillion rider-Satish and injury to PW7-Prasad Ashok Lohar.
11. The factum of accident and the place of accident, so also both the vehicles moving in opposite direction prior to the accident, has not been disputed by the accused. The alleged negligence of driver of Jeep No. KA-22-M-2378, PW4-Manohar Irappa Sulebhavikar, leading to the accident in question has not been established by the accused out of the evidence placed on record. Therefore, the findings recorded by both the Courts -7- NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 below being based on material evidence on record, does not call for any interference by this Court.
12. PW1-Manohar Maruti Bharunkar has deposed to the effect that Jeep No. KA-22-M-2378 was driven by PW4-Manohar Irappa Sulebhavikar wherein himself, CWs.8, 9 and 11 were returning to Katgali village after attending Attarwadi fair on 18.05.2010 at 1.00 AM. While they were so proceeding, accused came driving his motorcycle No. KA-22-ED-1464 with two pillion riders in rash and negligent manner and dashed to the front wheel on the driver side of the jeep due to which they fell to the ground and all of them sustained injuries. One of the pillion rider-Satish succumbed to the injuries sustained in the accident.
13. PW4-Manohar Irappa Sulebhavikar was the owner and driver of Jeep No.KA-22-M-2378 has deposed to the effect that on 18.05.2010 at about 1.00 AM they were returning to Katgali village after attending Attarwadi fair. At that time, the rider of motorcycle No. KA-22-ED-1464 came from the opposite side with two pillion riders in rash and negligent manner and dashed to the right side of the jeep due to which the right side wheel of -8- NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 the jeep was broken and jeep was stopped after traveling to some distance. The accused was rider of the motorcycle and another pillion rider Prasad sustained injuries and one of the pillion rider-Satish succumbed to the injuries sustained in the accident.
14. PW5-Prakash Laxman Kadam who was inmate of the jeep No. KA-22-M-2378 driven by the accused has deposed to the effect that on 18.05.2010 at 1.00 AM they were turning to Katgali village after attending Attarwadi fair. PW4-Manohar Irappa Sulebhavikar was driving the jeep slowly and at that time accused being the rider of the motorcycle No. KA-22-ED- 1464 with two pillion riders came from opposite side in high speed rash and negligent manner and dashed against the right side of the tyre of the jeep, due to which it was dislocated and the jeep was stopped. On getting down from the jeep found that accused who was riding the motorcycle and one pillion rider-Prasad sustained injuries and another pillion rider-Satish who sustained fatal injuries, later succumbed to the injuries sustained in the accident.
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15. The evidence of above referred three witnesses who were the inmates of the jeep No. KA-22-M-2378 driven by PW4- Manohar Laxman Kadam, would go to show that they have spoken about the accident having occurred due to culpable rashness or negligence on the part of accused who was the rider of the motorcycle No.KA-22-ED-1464. The pillion rider of the motorcycle No. KA-22-ED-1464 driven by the accused who suffered injuries has been examined as PW7-Prasad Ashok Lohar who has deposed to the effect that himself and Satish being the pillion riders, were returning on the motorcycle No.KA-22-ED-1464 driven by the accused on Katgali road near Haddi factory after attending the marriage of their relative. At that time, the driver of the jeep No. KA-22-M-2378 came from opposite side and dashed against the motorcycle ridden by the accused, due to which himself and accused suffered injuries, another pillion rider Satish succumbed to the injuries sustained in the accident. This witness has been declared as hostile witness by the prosecution and though he has been subjected to cross examination, nothing worth material has been brought on record so as to discredit his evidence.
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16. On going through the aforementioned evidence placed on record by the prosecution, it would go to show that there are two versions regarding the manner in which the accident took place. The first version is that the accident in question has occurred due to rash and negligent riding of motorcycle No.KA- 22-ED-1464 by the accused which dashed against the right side wheel of the jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa Sulebhavikar and PW5-Prakash Laxman Kadam, who were all the inmates of the jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa Sulebhavikar. The another version is in the form of evidence of PW7-Prasad Ashok Lohar who was pillion rider of the motorcycle driven by the accused that driver of jeep No. KA-22-M-2378 came with high speed in rash and negligent manner and dashed against the motorcycle due to which the accident had occurred. The defence of the accused is that the driver of the jeep No. KA-22-M-2378 taking undue advantage of there being none to file the complaint on behalf of the injured rider of motorcycle and the pillion riders, filed false complaint alleging negligence of rider of motorcycle leading to the accident in question. The aforementioned two versions leading to the accident in question and the defence of accused
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 is to be appreciated with reference to the spot features at the place of accident recited under spot panchanama Ex.P.2 and the cross examination of the material witnesses PW1-Manohar Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5- Prakash Laxman Kadam, who were all the inmates of the jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa Sulebhavikar.
17. The independent panch witness to the spot panchanama- Ex.P.2, Deepak Krishna Rangapurkar-PW2 and Bhujang Yashwant Kadrolkar-PW3, have not supported the case of the prosecution. The evidence of investigating officer, PW8-Arun Ramchandra Naik, would go to show that he took up further investigation from CW18 and spoken about the investigation carried by him. The evidence of PW6-Divakar Maruti Payak would go to show that he has only filed requisition to incorporate the offence U/s 304(A) of IPC on receiving the death intimation of Satish from K.L.E. Hospital, Belagavi. On perusal of the spot panchanama-Ex.P.2, it would go to show that the same was drawn by CHC No. 1508 of Khanapur Police Station and he is cited as CW17 in the charge sheet but the prosecution has not chosen to examine the said witness to
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 prove the correctness of the spot panchanama drawn Ex.P.2. Therefore, the prosecution out of the above referred evidence has failed to prove correctness and the recitals of spot panchanama-Ex.P.2.
18. Now it is only the oral testimony of PW1-Manohar Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5- Prakash Laxman Kadam, that remains on record to prove the culpable rashness or negligence of accused, who was rider of the motorcycle No.KA-22-ED-1464 leading to the accident in question. The accident in question took place on 18.05.2010 at 1.00 AM. PW1-Manohar Maruti Bharunkar admits in cross examination that the accident took place during the night hours and it was dark, he was sitting by the left side of the driver of the jeep. The jeep driven by PW4-Manohar Irappa Sulebhavikar was stopped after traveling 5 feet from the place of accident due to dislocation of the right side wheel and there were crush mark on the road at distance of 5 to 6 feet while proceeding on the road East to West. He further admits if the wheels of the vehicle was dislocated then the vehicle will not be under the control of the driver of the vehicle.
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19. PW4-Manohar Irappa Sulebhavikar claimed in his evidence that while he was driving the vehicle took the vehicle to the side of the road, the rider of motorcycle dashed against front right side tyre of the jeep due to which the right side wheel of the jeep was dislocated. PW4-Manohar Irappa Sulebhavikar admits in his cross examination that after the accident the vehicle traveled about 4 to 5 feet and stopped on the middle of the road. He further admits that if the wheel of the vehicle was dislocated, then the same will not be in control of the driver of the vehicle. He further admits that if the right side wheel was dislocated then the vehicle will be dragged to the right side and if the left side wheel of the wheel was dislocated, then the vehicle will be dragged to the left side.
20. PW5-Prakash Laxman Kadam admits in his cross examination that the accident occurred on the middle of the road and the jeep in which they were traveling, right side wheel was dislocated and it was dragged for about 5 feet and then stopped.
21. If the cross examination of the aforementioned three witnesses, PW1-Manohar Maruti Bharunkar, PW4-Manohar
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 Irappa Sulebhavikar, who was the driver of the jeep and another inmate of the jeep, PW5-Prakash Laxman Kadam, are perused, then it would go to show that the right side wheel of the jeep was dislocated and the vehicle was dragged to some distance for about 5 to 6 feet and then stopped on the middle of the road. However, they claimed that it is on account of impact of accident due to culpable negligence in driving the motorcycle by accused, the wheel of the jeep was dislocated. The jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa Sulebhavikar is a heavy vehicle than compared to the motorcycle. According to their evidence, the vehicle was in order and the M.V. Report-Ex.P.9 would go to show that accident was not due to mechanical defect of any of the vehicle.
22. Therefore, in view of the said evidence placed on record, possibility of light motor vehicle, i.e., the motorcycle No. KA- 22-ED-1464 dashing against the right side of the bumper of the jeep can cause dislocation of the wheel of jeep which is heavy vehicle on the face of it appears to be too remote. The claim of PW4-Manohar Irappa Sulebhavikar that he took the vehicle to the side of the road, is not supported by the evidence on record
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 since all the above referred witnesses have spoken about the accident having taken place on the middle of the road. If the placement of both the vehicles immediately after the accident in view of the evidence of the aforementioned witnesses would go to show that the motorcycle fell on the Northern side of the road which was to the left side to the rider of the motorcycle while proceeding from West to East.
23. The spot features of the place of accident as could be made out from the evidence of aforementioned witnesses and the placement of the vehicle immediately after the accident would rule out the possibility of alleged culpable rashness in riding the motorcycle by the accused leading to the accident in question.
24. Indisputably, there was none to file the complaint immediately after the accident by accused, since accused being the rider of motorcycle and pillion rider-PW7 Prasad Ashok Lohar sustained injuries and another pillion rider Satish succumbed to the injuries sustained in the accident while he was under treatment in K.L.E. Hospital. Therefore, under these circumstances it is unsafe to rely only on the evidence of
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 inmates of the Jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa Sulebhavikar. The evidence of PW7-Prasad Ashok Lohar, one of the pillion rider also suffered injury in the said accident cannot be totally brushed aside. Therefore, under these circumstances the evidence placed on record by the prosecution is insufficient to prove the alleged culpable rashness or negligence on the part of accused in riding the motorcycle No. KA-22-ED-1464 leading to the accident in question. The benefit of doubt shall have to be extended to the accused.
25. The prosecution alleges that accused has violated permit conditions while riding the motorcycle No.KA-22-ED-1464. The evidence on record would go to show that accused was riding the motorcycle with two pillion riders. Whereas the seating capacity of the motorcycle is 1+1, i.e., rider and one pillion rider. The Courts below have held that the same amounts to violation of permit conditions and attract penal action in terms of Section 177 of M.V. Act. The accused was also charged with the offence U/s 184 of M.V. Act for having riding the motorcycle dangerously. What amounts to dangerous driving has been given in explanation (a) to (f) of M.V. Act. The evidence placed
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 on record does not meet any of the said legal requirement. Therefore, the punishment of accused for the offence U/s 184 of M.V. Act cannot be legally sustained.
26. The courts below have proceeded on the presumption of alleged culpable rashness or negligence of accused in riding the motorcycle No. KA-22-ED-1464 on the death of one of the pillion rider of motorcycle Satish and the injury to PW7-Prasad Ashok Lohar and mere fact of not denying the accident in question, has held that the prosecution has proved the offences alleged against the accused only relying on the evidence of inmates of the jeep which is one sided. The findings recorded by both the Courts below cannot be legally sustained since the said findings are against the evidence on record. However the fine amount imposed for the offence U/s 66 of M.V. Act is ordered to be maintained. Insofar as the other offences are concerned, interference of this Court is required. Consequently, proceed to pass the following order.
ORDER Revision petition filed by the revision petitioner is hereby partly allowed.
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NC: 2024:KHC-D:4927 CRL.RP No. 100214 of 2016 The judgment of first appellate Court on the file of VIII Addl. Dist. & Sessions Judge, Belagavi in Criminal Appeal No. 202/2013 dated 06.11.2015 in confirming the judgment of the trial Court on the file of Prl. Civil Judge & JMFC, Khanapur in C.C. No. 593/2010 dated 19.11.2013, are hereby modified as under.
The conviction of accused for the offence U/s 66 of M.V. Act and imposition of sentence is ordered to be maintained.
The accused is acquitted of the offences punishable U/s 279, 338 and 304(A) of IPC and Sec. 184 of M.V. Act.
Registry is directed to transmit the records to the trial court with a copy of this order.
Sd/-
JUDGE BVV CT:GSM List No.: 1 Sl No.: 37