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2013 DIGILAW 1161 (KAR)

Rajesh Pasha v. State of Karnataka

2013-09-26

B.V.PINTO

body2013
Order B.V. Pinto, J. 1. The parties are referred to as per their rankings before the trial Court for the purpose of clarity and convenience. This criminal revision petition is filed challenging the judgment dated 3.3.2010 passed by the Additional Sessions Judge, Raichur in Criminal Appeal No. 29/2009 dismissing the appeal filed by the accused challenging his conviction for the offence under Sections 279 and 304(A) of IPC while allowing the said appeal insofar as the offence under Section 134 r/w Section 187 of Motor Vehicles Act is concerned. The Chief Judicial Magistrate, Raichur by the Judgment dated 26.5.2009 passed in CC No. 60/2008 was pleased to convict the accused for the offence under Sections 279 and 304-A of IPC and for the offence under Section 134 r/w Section 187 of Indian Motor Vehicles Act and sentenced him to undergo simple imprisonment for one month and to pay fine of Rs. 1,000/- for the offence under Section 279 of IPC and further sentenced accused to undergo simple imprisonment for three months and to pay fine of Rs. 1,000/- for the offence under Section 304-A of IPC and also to pay fine of Rs. 200/- for the offence under Section 134r/w Section 187 of the Indian Motor Vehicles Act with default sentences. 2. It is the case of the prosecution that, the accused being driver of the motor vehicle which is Tata ACE bearing Registration No. KA36-5053 drove the same in a rash and negligent manner on 20.12.2007, at about 10.30 a.m., on the road in front of Jilla Nirmith Kendra Office and dashed against one Siddannagouda and caused his death, therefore, he is alleged to have committed the offences under Sections 279 and 304-A of IPC and under Section 134 r/w Section 187 of Indian Motor Vehicles Act. 3. The prosecution in order to prove the case has examined in all 11 witnesses and got marked Ex. P1 to 11. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Magistrate has convicted the accused and sentenced him as aforestated. 3. The prosecution in order to prove the case has examined in all 11 witnesses and got marked Ex. P1 to 11. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Magistrate has convicted the accused and sentenced him as aforestated. Accused thereafter filed an appeal challenging the judgment of conviction and sentence before the learned Sessions Judge, Raichur and the learned Additional Sessions Judge partly allowed the appeal and acquitted the accused of the offences under the Motor Vehicles Act and confirmed the order of conviction for the offences under Sections 279 and 304(A) of IPC. It is these orders which are under challenge in this revision petition. 4. The proceedings in this case commenced with filing of the complaint by one Sudhakar before the Raichur Traffic Police Station on 20.12.2007. In the complaint, it is stated by the complainant that, on 20.12.2007, when he was going to his shop in Jawaharnagar, the injured by name Siddannagouda was walking in front of him along with another person. At that time, a vehicle coming in the opposite direction dashed against the said Siddannagouda. Siddannagouda fell down. When he went near and saw, Siddannagouda had sustained injuries on his head and on his right forehead. There were scratch injuries on his cheek and nose. When he observed the vehicle which caused the accident, it was an autorickshaw bearing registration No. KA36-5053. The incident has happened at about 10.30 a.m. on 20.12.2007. Thereafter, the injured was brought to the Landmark Hospital. Hence, he has requested for taking action against the guilty auto driver. 5. The Traffic Police Raichur registered the said complaint in Crime No. 148/2007 for the offences under Sections 279 and 338 of IPC and Section 134 r/w Section 187 of the Indian Motor Vehicles Act. The injured subsequently died in the hospital. Hence, an offence under Section 304-A of IPC is added to earlier case. After conducting the necessary investigation, PW. 10-Ramesh, Circle Inspector of Police filed the charge sheet against the accused. 6. After summoning the accused before the Court and recording his denial to the accusation, the prosecution examined one Jaising as PW. 1 who is a signatory to Ex. P1-inquest Panchanama conducted on the dead body of the deceased. P.W. 2-Nagesh is yet another witness to panchanama. Both PWs. 1 and 2 are also signatories to spot mahazar-Ex. 6. After summoning the accused before the Court and recording his denial to the accusation, the prosecution examined one Jaising as PW. 1 who is a signatory to Ex. P1-inquest Panchanama conducted on the dead body of the deceased. P.W. 2-Nagesh is yet another witness to panchanama. Both PWs. 1 and 2 are also signatories to spot mahazar-Ex. P2.7. 7. PW. 3-Parvathamma is the wife of the deceased-Siddannagouda. She is not an eyewitness to the incident. 8. PW. 4-G. Sudhakar Reddy is the complainant. He has stated that, on the date of the incident one vehicle dashed against the deceased Siddannagouda, as a result of which he fell down and sustained injuries. Thereafter, he was taken to Landmark hospital. PW. 4 has given the complaint as per Ex. P4. He has stated that the injured Siddannagouda died while taking the treatment. He has given the autorickshaw number before the Court. However, the Assistant Public Prosecutor has treated him as hostile insofar as his identifying the accused is Concerned. He has not identified the accused before the Court as the person who was driving the vehicle on the date of the incident. 9. PW. 5-Shashimouli is an eyewitness to the incident. He has stated that on the date of the incident the accused was driving an autorickshaw in a rash and negligent manner and it dashed against Siddannagouda who was walking towards Jawaharnagar. Siddannagouda had sustained injuries on his head. He has stated that, thereafter, the deceased had died in the hospital. In the cross-examination, it is elicited that, he had not given any statement to the police that he knew the deceased Siddannagouda. The said portion of his statement is marked as Ex. D.1. Though at first he states that he does not know the children of Siddannagouda, subsequently in the evidence, he has stated that he knew the son of Siddannagouda by name Shankargowda, who had also come to the Court. He has further admitted that the said Shankaragowda is his friend. 10. PW. 6-Shabir Pasha is the owner of the vehicle. But he has not supported the case that the accused was the driver of the vehicle on the date of the incident. 11. PW. 7-Abdul Rashid is the Sub-Inspector of Police who has registered the case and transmitted FIR to the Court. PW. 10. PW. 6-Shabir Pasha is the owner of the vehicle. But he has not supported the case that the accused was the driver of the vehicle on the date of the incident. 11. PW. 7-Abdul Rashid is the Sub-Inspector of Police who has registered the case and transmitted FIR to the Court. PW. 8-S.V. Ramesh is the Junior Engineer of PWD who has prepared the sketch of the scene of occurrence. PW. 9-Eranna is the Motor Vehicles Inspector who states that the accident is not caused due to any mechanical defect of the vehicle. 12. PW. 10-Ramesh is the Circle Inspector of Police who has conducted the investigation in this case and has filed the charge-sheet. 13. PW. 11-Siddaramappa is examined by the prosecution as an eye-witness to the incident. He has stated that, the accused was driving the vehicle on the date of the incident. He has also stated that he had driven the vehicle in a rash and negligent manner and dashed against Siddannagouda. 14. It is from the above evidence on record that the learned Magistrate has convicted the accused which order has been confirmed by the learned Sessions Judge in appeal. 15. Heard Mr. Prakash Yeli, learned Counsel for the accused and Mr. Sanjay A. Patil, learned Addl. SPP for the State/respondent. 16. Mr. Prakash Yeli, learned Counsel for the accused submits that, on perusal of the sketch-Ex. P11 it is seen that the accident has occurred on a tar road and the distance between right hand edge of the tar road is three feet and towards left hand edge is about 9 feet 8 inches which indicates that at the time of collision the deceased was on the tar road. Therefore, he submits that eyewitnesses have falsely deposed before the Court that the deceased was walking on the side of the road. He further submits that, though PWs. 5 and 11 are examined as the eyewitnesses, both PWs. 5 and 11 do not find their place in the complaint given by PW. 4-Sudhakar. 17. He further submits that, PW. 5 states before the Court that, he is friend of the son of the deceased Siddannagouda. However, name of PW. 5 is not mentioned in the complaint as an eyewitness to the incident. So far as the eyewitness account of PW. 4 is concerned, PW. 4-Sudhakar. 17. He further submits that, PW. 5 states before the Court that, he is friend of the son of the deceased Siddannagouda. However, name of PW. 5 is not mentioned in the complaint as an eyewitness to the incident. So far as the eyewitness account of PW. 4 is concerned, PW. 4 has not identified the accused as the person who drove the vehicle on the date of the offence. PW. 11-Siddaramappa has stated before the Court that, he was examined by the police 12 days after the incident, though PW. 11 is an eyewitness to the incident. Hence, he submits that there is no clear and cogent evidence to hold that the deceased was walking on the side of the road. On the other hand from the sketch and the spot Mahazar, it is established that the deceased was walking in the middle of the road. Hence, he submits that the accused may be given benefit of doubt. 18. Mr. Sanjay A. Patil, learned Addl. SPP on the other hand submits that in an accident case motive need not be proved. Whereas the evidence of P.Ws. 4, 5 and 11 clearly establishes the rashness and negligence on the part of the accused in driving the auto rickshaw. Since this is a revision petition, threadbare discussion of the evidence on record may not be carried out and in that view of the matter, he submits that the order passed by the learned Magistrate as confirmed by the learned Sessions Judge requires no interference. Hence, the revision petition may be dismissed. I have carefully gone through the evidence on record. In the first instance, the complaint-Ex. P4 nowhere states that PW. 5-Shashimouli and PW. 11-Siddaramappa were present near the scene of occurrence. It is the case of P.W. 5 that he knew the deceased and his son thereon. If at all P.W. 5 were present at the scene of occurrence when P.W. 4 went to give the complaint to the police station, he would have definitely accompanied P.W. 4 and necessarily his name would have found place in the complaint. But he has not done so. Hence his name is not found in the complaint. During the evidence before the Court, P.W. 5 at one place states that he does not know the deceased and his children. But he has not done so. Hence his name is not found in the complaint. During the evidence before the Court, P.W. 5 at one place states that he does not know the deceased and his children. However after sometime in the same witness box, he says that the knows Shankargowda s/o Siddannagouda and that he is his friend. Except P.W. 5 other witnesses have not identified the accused as the driver of the vehicle. The evidence of P.W. 5 is shaky and untrustworthy since in the same breath, he states truth and untruth. Excluding the evidence of P.W. 5, the evidence of P.W. 6-Shabbir Pasha who is the owner of the vehicle does not support the case of the prosecution that on the date of the incident, the accused was the driver of the vehicle. The other evidence on record is that of P.W. 11. P.W. 11 states that he was questioned by the police 12 days after the incident and his name is also not found in the complaint of P.W. 4-Sudhakar. Under the circumstances the presence of P.W. 11 at the scene of occurrence is also doubtful. The reasons why it is held that the presence of P.Ws. 5 and 11 at the scene of occurrence is doubtful is because of the sketch-Ex. P11. In Ex. P11 the scene of occurrence is shown as tar portion of road and towards right side edge there is a distance of three feet and to wards left side edge, there is a distance of 9 feet and 8 inches on either sides. Hence, necessarily at the time of impact the deceased was in the middle of the tar road, whereas the evidence of the eyewitnesses is that he was walking by the side of the road. In that view of the matter, the eyewitnesses are not stating truth, but supporting the deceased. In view of what is discussed above, no trust can be reposed on the eyewitness account. Therefore, the learned Magistrate could not have convicted the accused for the offences under Sections 279 and 304A of IPC and, therefore, the accused is entitled for an order of acquittal of the said offences. Accordingly, the following order is passed: ORDER The revision petition is allowed. The order of conviction passed against the accused is set aside and he is acquitted of the offences levelled against him. Accordingly, the following order is passed: ORDER The revision petition is allowed. The order of conviction passed against the accused is set aside and he is acquitted of the offences levelled against him. Bail bond executed by the accused stands discharged. Fine amount, if any, deposited is directed to be refunded to him.