Karnataka High Court
Kasheppa vs The State on 7 February, 2023
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 200077 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 200077 OF 2022
(397)
BETWEEN:
KASHEPPA
S/O GUNDAPPA KABADAGI,
AGED ABOUT 62 YEARS,
OCC. PENSIONER R/O VILLAGE ASHTOOR,
TQ. AND DIST. BIDAR-585401.
...PETITIONER
(BY SRI. MANURE ASHOK KUMAR.,ADVOCATE)
AND:
THE STATE BY TRAFFIC POLICE,
Digitally REPRESENTED BY ADDITIONAL PUBLIC
signed by B PROSECUTORS, HIGH COURT BUILDING,
NAGAVENI KALABURAGI-585101.
Location: ...RESPONDENT
High Court
of (BY SRI. GURURAJ V. HASILKAR., HCGP.)
Karnataka
THIS REVISION PETITION IS FILED U/S.397 OF CR.P.C
PRAYING TO CALL FOR THE RECORDS OF THE TRIAL COURT
AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 02.07.2022 PASSED BY PRL. DIST. AND
SESSIONS COURT AT BIDAR IN CRL. APPEAL No.25 OF 2021
PUNISHABLE UNDER SECTION 279, 338, 304(A) OF IPC R/W
187 OF INDIAN MOTOR VEHICLE ACT.
THIS REVISION PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 200077 of 2022
ORDER
This petition is filed under Section 397 Cr.P.C., with the following prayer:
"WHEREFORE, it is prayed that this Hon'ble may be pleased to call for the records of the lower court and set aside the judgment of conviction and order of sentences dated 02-07-2022 passed by Prl. Dist. And Sessions court at Bidar in Crl. Appeal No. 25 of 2021 punishable under section 279, 338, 304(A) of IPC R/w 187 of Indian Motor Vehicle Act. and set aside judgment of conviction and order of sentence passed by Prl. JMFC and Civil Judge Jr. Division Bidar, in CC No. 867 of 2013 passed on dated 02- 03-2021 and acquitted the criminal revision petitioner of the punish charged against him in the interest of justice and equity."
2. The case of the prosecution in brief is that:
On 22.02.2013 at about 2.45 p.m., the Revision Petitioner/accused being the driver of KSRTC Bus bearing No.KA-38/F-139 drove the said bus in a rash and negligent manner and dashed against a motor cycle bearing No.KA-03/EN- 4503 and thereby the Revision Petitioner was convicted for the -3- CRL.RP No. 200077 of 2022 offence punishable under Sections 279, 338, 304A IPC read with Section 187 of the Indian Motor Vehicles Act.
3. It is contended that the Motor cyclist was proceeding towards Mangalpet with a pillion rider namely. On account of the accidental injuries sustained by the rider of the motor cycle by name Syed Mukthar, he succumbed to the injuries on the spot. Pillion rider complained the incident to the police and also informed the police that the driver of the bus left the bus on the spot and ran away from the scene. On receipt of such a complaint from the pillion rider, the police thoroughly investigated the matter and filed the charge sheet.
4. The presence of the accused was secured and charges were framed. Accused pleaded not guilty and Therefore, trial was held.
5. Prosecution in all examined 11 witnesses to bring home the guilt of the accused as PWs.1 to 11 and relied on 13 documents in respect of its case which were exhibited and marked as Exs.P1 to P13.
6. On conclusion of recording of the prosecution witnesses, accused statement as contemplated under Section 313 Cr.P.C., was recorded, wherein accused has denied all the -4- CRL.RP No. 200077 of 2022 incriminatory circumstances found against him in the prosecution evidence and did not choose to offer any explanation about the incident as contemplated under Section 313(5) Cr.P.C., nor adduced any defence evidence.
7. Thereafter, the learned Trial Magistrate heard the parties in detail and convicted the accused for the aforesaid offences and passed an order of sentence as under:
The accused shall pay fine of Rs. 1,000/- for offence punishable U/Sec. 279 of IPC in default shall undergo SI for 30 days.
The accused shall pay fine of Rs. 1,000/- for offence punishable U/Sec. 338 of IPC in default shall undergo SI for 30 days. The accused shall pay fine of Rs. 500/- for offence punishable U/Sec. 187 of IMV Act in default shall undergo SI for 30 days.
The accused shall undergo simple
imprisonment for 6 months for offence
punishable U/Sec. 304 (A) of IPC.
8. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Trial Judge, the -5- CRL.RP No. 200077 of 2022 accused preferred an appeal before the District and Sessions Judge in Criminal Appeal No.25/2021.
9. The learned Judge in the First Appellate Court after re-appreciating the material evidence on record and after securing the Trial Court records and considering the arguments of both sides and on re-appreciation of the material on record dismissed the appeal of the Revision Petitioner by confirming the order of judgment of conviction and order of sentence.
10. Being aggrieved by the same, the Revision Petitioner is before this Court by raising following grounds:
The judgment and order passed by the both hon'ble lower court is wrong, in violation of principles of justice and equity. And is contrary to the provisions of law and principles of natural justice.
The both hon'ble lower court has failed to consider the evidence on record in judicious manner and the findings arrived at are not supported by the evidence on record.
The both hon'ble lower court has failed to appreciate and interpret Judiciously on the face of it, the records placed by the prosecution. The reading of the complaint and the FIR would reveal -6- CRL.RP No. 200077 of 2022 that, the revision petitioner is indicted for the sole purpose of claiming the compensation amount from the KSRTC.
The both hon'ble lower court it seems to have first jumped to the conclusion of evicting the revision petitioner for the reasons best known to it and then wrapped around it the reasons to justify its decision. The non appreciation and misinterpretation of the evidence on record by the both hon'ble lower court buttresses the above proposition of the revision petitioner. The reading of the impugned judgment would reveal that, the both hon'ble lower court has not properly appreciated the testimonies of the prosecution witnesses and has wrongly convicted the revision petitioner.
The case of the prosecution is that, the revision petitioner driving the KSRTC bus hit the moped of the deceased from behind and caused the accident. But, the fact is that, the revision petitioner was driving the bus cautiously and taking all precautions and following the traffic roles, but the victim in his haste to reach his destination was riding the moped rashly and negligently and tried to overtake the bus from the wrong side and that too at a steep turn and being -7- CRL.RP No. 200077 of 2022 unable to control the moped, the victim crashed into the rear left tire of the bus and caused the accident.
After sifting through the evidence of the prosecution witnesses, the both hon'ble lower court was required to ascertain whether the moped ridden by the deceased was hit from behind or the deceased himself came from wrong side and crashed into the rear wheel of the bus. But, the hon'ble lower court placed much reliance on PW1, 2 and 7 and wrongfully came to the conclusion that the revision petitioner driving the bus hit the moped from behind and caused the accident.
The PWI and PW2 are the injured and the wife of deceased respectively in the said accident and have filed the motor vehicle case to claim the compensation from the KSRTC, and hence, the lower court was required to approach the testimony of these witnesses with lot of caution, but the both hon'ble lower court has placed much reliance on the testimony of PW1 and PW2 and convicted the revision petitioner wrongly.
The other witness upon which much reliance is placed by the both hon'ble lower court is PW7, -8- CRL.RP No. 200077 of 2022 who is alleged to be the eye witness to the alleged accident. PW7 deposes in his testimony that, he has witnessed the alleged incident and yet he testifies the place of accident, which is altogether different from the spot of accident as alleged by the prosecution. In 2013 the Bidar Hyderabad road branched towards Mangalpet taking steep left turn. Now, the spot of accident testified by the PW7 is well before the left turn, but as per the prosecution case and deposition of other witnesses, the spot of accident is after the left turn is taken, which proves that, the PW7, who has stated that he was acquaint of deceased is not eye witness, but has been implanted and tutored to give false evidence, so as to indict the revision petitioner and succeed in extracting compensation amount from the KSRTC, Hence, the conviction based on wrong and illegal allegations is liable to be.
The PWI in his zeal to pin the guilt upon the revision petitioner, so as to claim false compensation from the KSRTC states that, the deceased was run over by the bus, but the PW8, the doctor who performed the post mortem examination clearly stated in his cross examination, that, if a person were to run over by heavy vehicle, his ribs, bones and soft are -9- CRL.RP No. 200077 of 2022 fractured, but in the present case there were no such injuries, which clearly proves that, the deceased was not run over by the bus. The improvement by the PWI shows that, he is tutored and was deposing against the facts of the case. The fact of the case being, the deceased himself was riding the moped rashly and negligently and while overtaking the bus he himself crashed into the rear wheel and sustained the injuries and later died. The testimony of the PW2 is clearly hearsay, hence cannot be relied upon, but both the hon'ble lower court gave much emphasis to it and wrongly convicted the revision petitioner.
The testimony of PW6 is vital to the establishment of facts, as to what could have transpired on the alleged date of incident. The PW6 his clearly stated for his cross examination that, the deceased came from behind and tried to overtake the bus from wrong side and caused the accident. The both hon'ble lower court ought to have weighed the testimony of the PW6 in its totality, but both the hon'ble lower court, in its prejudiced mind to convict the revision petitioner, selectively extracted the part of testimony and convicted the revision petitioner, hence the
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conviction of revision petitioner is liable to be set aside.
The Exp9, IMV report is very important piece of evidence which clearly proves that, the bus was hit from behind by the moped of the deceased. The Exp9, which is marked by PW10, discloses the damages to the KSRTC bus was in the form of "scratches to the outer side of the tire of the rear left side wheel", which makes it clear that, the deceased was riding the moped rashly and negligently and coming from behind tried to overtake the bus from wrong side and crashed into the rear left side wheel of the bus and caused the accident. The PW10 in his cross examination has admitted that, "if any vehicle coming behind the bus dashes to it, there are possibility of causing. such scratches on the tire" But, both the hon'ble lower court in its discussion in para no 16 of the judgment, speculated that, the bus has hit the moped from behind and ran over it and hence, the scratches to the rear wheel tire might have occurred, and has substantiated its vague and imaginary story by placing reliance on the statement of the PWI and PW7, "The moped was run over by the bus", which is improvement and omission amounting to contradiction and could not have been relied
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upon. The both hon'ble lower court further corroborates it by reasoning that the PW10 has nowhere denied such possibility of the moped being run over by the bus. Now, the case of the prosecution must stand or fall on its own legs and is not derive any strength from the weakness of the defence. Hence, the conviction of the revision petitioner is liable to be set aside.
The prejudiced mind of both the hon'ble lower court to convict the revision petitioner is apparent from its discussion in para no 19 of the judgment. The hon'ble lower court posed a provision of law that, "the drivers should over take other vehicles from right side" to be a fact, when it is universal fact that, in India the riders and drivers usually overtake the ongoing vehicles from left side. The proposition of traffic rule of overtaking from right side cannot be considered to be a fact and ought not to have been relied upon by the both hon'ble lower court to convict the revision petitioner, therefore, the conviction of the revision petitioner is liable to be set aside.
There are glaring contradictions and omissions in the testimony of the witnesses examined by the prosecution. But the both hun'ble lower court failed to observe these glaring contradiction
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between testimonies of the witnesses, hence, the impugned judgment is liable to be set aside.
In view of the grounds and reasons discussed above, it is clear that, the prosecution has hopelessly fallen short of bringing home the guilt of the revision petitioner, and hence the petitioner was entitled to acquittal from all the charges, but the both hon'ble lower court has completely failed to appreciate this fact and erroneously and prejudicially passed the impugned judgment convicting the revision petitioner, hence the same is liable to be set aside. The both hon'ble lower court has also erred in not extending the benefit of provision of Probation of Offenders Act.
The revision petitioner fervently submits that, he deserves kind and sympathetic consideration, and accordingly prays for the mercy of this hon'ble court, at least, on humanitarian grounds.
The other grounds upon which the revision petitioner ready to prove his innocence in the above case will be urged at the time of the arguments.
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That, entire materials produced by the prosecution do not lead to the irresistible conclusion that this revision petitioner is responsible for the death of the deceased.
That the conviction has resulted in miss-carriage of justice.
That the revision petitioner is entitled for an order of acquittal.
That, the revision petitioner has earlier filed the Criminal Appeal over sighted instead of Criminal Revision petition and the same was withdrawn as not pressed order passed by this Hon'ble court on dated 04-11-2022 with liberty has given to petitioner to file a Revision Petition.
11. Sri M.Ashok Kumar, learned counsel for the Revision Petitioner reiterating the grounds urged in the Revision Petition, contended that both the courts have not properly considered the material evidence on record and wrongly passed judgment of conviction and order of sentence and so also, the sentence passed by the Trial Court confirmed by the First Appellate Court is excessive and sought for allowing the Revision Petition.
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CRL.RP No. 200077 of 2022
12. Per contra, Learned High Court Government Pleader Sri Gururaj V. Hasilkar, supported the impugned judgment and contended that having regard to the scope of the Revision Petition, no lenience can be shown to the accused Revision Petitioner and sought for dismissal of the Revision Petition in toto.
13. In view of the rival contentions of the parties, this Court perused the material on record.
14. In the case on hand, admittedly, CW-1 the complainant is a witness who is none other than the pillion rider of the motor cycle bearing No.TVS XL - KA-03/EN-4503. He has specifically deposed before the Court stating that the KSRTC bus driver bearing No. KA-38/F-199 and dashed against TVS XL bearing No.KA-03/EN-4503, and caused the death of the rider of the motor cycle.
15. He also stated that after so dashing, the driver of the bus ran away from the spot and on account of the accident injuries sustained by the rider of the motor cycle, Syed muktar died on the spot.
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CRL.RP No. 200077 of 2022
16. It is also the testimony of the complainant that the accidental injuries sustained by the deceased is only on account of the rash and negligent driving of the driver of the bus who is the Revision Petitioner herein.
17. Admittedly, the police after thorough investigation filed charge sheet and other prosecution witnesses also supported the case of the prosecution in toto. Only on account of the testimony of PWs.1, 6 and 7 to establish that the accidental injuries sustained by the deceased was sufficient enough to loose his life.
18. Further, in respect of the incident, the Revision Petitioner did not offer any explanation while he was examined under Section 313 Cr.P.C., nor any written submission was furnished by him as is contemplated under Section 313(5) Cr.P.C.,
19. Suffice to say that the material evidence on record especially PWs.1, 6 & 7 having not nurtured any previous enmity or animosity against the Revision Petitions, did not falsely implicate the Revision Petitioner in the case on hand and thus, their testimony has been rightly appreciated by the Trial Court
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CRL.RP No. 200077 of 2022by passing the judgment of conviction and order of sentence as stated supra.
20. Learned Judge in the First Appellate Court has also rightly re-appreciated the material on record and rightly dismissed the Criminal Appeal No.25/2021.
21. This Court having regard to the limited jurisdiction, re-considered the material evidence on record following the dictum of the Hon'ble Apex Court in the case of State of Punjab Vs. Sourabh Bakshi reported in (2015) 5 SCC 182, this Court is of the considered opinion that no case is made out by the Revision Petitioner to admit the Revision Petition and to reconsider the matter. Hence, following order is passed:
ORDER Admission declined. Revision Petition is dismissed. The accused-Revision Petitioner is directed to surrender before the Trial Court on or before 28.02.2023 for serving the remaining part of the sentence.
Sd/-
JUDGE PL* List No.: 1 Sl No.: 63