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2019 DIGILAW 392 (KAR)

Ramesh Kuppa Devadiga v. State of Karnataka

2019-02-11

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. This revision petition is filed under Section 397 read with Section 401 of Cr.P.C. challenging the judgment of conviction and sentence passed in C.C.No.1228/2008 dated 20.04.2010 convicting and sentencing the revision petitioner for the offences punishable under Section 279, 338 and 304-A of IPC and so also the judgment passed in Crl.Apl.No.65/2010 dated 01.08.2011 on the file of the District and Sessions Judge, Uttara Kannada, Karwar confirming the judgment of conviction passed by the lower Court. 2. The brief facts of the case is that the allegation made in the complaint and the charge sheet against this revision petitioner that on 31.10.2008 at 5.30 p.m. this revision petitioner has caused the accident on National Highway No.17 towards Bhatkal on the motorcycle and as a result the rider and the pillion rider who were proceeding in the motorcycle have sustained injuries and the rider succumbed to the injuries and the pillion rider has taken the treatment for the injuries sustained by him and this accident is on account of the rash and negligent driving of the KSRTC bus i.e. the revision petitioner and based on the complaint of one Mohan Moger, the case has been registered and this revision petitioner is tried for the offences punishable under Sections 279, 337, 338 and 304-A of IPC. The Court below after considering both the oral and documentary evidence, convicted this revision petitioner for the offences punishable under Sections 279, 338 and 304-A of IPC and sentenced him to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of IPC and in default shall undergo simple imprisonment for one month. The revision petitioner is also sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1,000/- and in default shall undergo simple imprisonment for a period of one month for the offence punishable under Section 338 of IPC. The revision petitioner is also sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 3,000/- and in default shall undergo simple imprisonment for three months for the offence punishable under Section 304-A of IPC. The revision petitioner is also sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 3,000/- and in default shall undergo simple imprisonment for three months for the offence punishable under Section 304-A of IPC. Being aggrieved by the judgment of conviction and sentence, the revision petitioner has preferred an appeal before the District and Sessions Judge, Uttara Kannada, Karwar in Crl.Apl.No.65/2010 and the First Appellate Court also confirmed the judgment of conviction and sentence of the trial Court. Being aggrieved by the judgment of conviction and sentence and also the confirmation made by the District and Sessions Judge, this revision petitioner has preferred this revision petition before this Court. 3. The main contention of the revision petitioner is that the very judgment of both the Courts suffers from illegality, irregularities and incorrectness and failed to consider the evidence of PWs.2 and 3, the spot panchas who have clearly admitted that the spot of accident is only three feet from the left side of edge of the road which reveals that this revision petitioner was on the extreme left side of the road moving towards Honnavar on the correct side and so also the evidence of PSI, who has been examined as PW.8 categorically admitted in his evidence that the spot of accident is about three feet from the eastern edge of the road and hence the bus was driven by this revision petitioner is on the correct side of the road and it is the deceased who has come on the right side and dashed to the front right side of the bus resulting in an accident. The other contention is that the investigation in the matter is tainted and no independent eyewitnesses though available have not been cited as witnesses nor examined and the place of accident is 8 k.m. away from the village of the deceased and the witnesses who have been examined as eyewitnesses are tutored and the Courts below did not appreciate the evidence available on record which are material contradictions to each other and in spite of it the Court below in the absence of corroboration, convicted this revision petitioner and the same has been erroneously affirmed by the First Appellate Court and hence the judgment of conviction and sentence is liable to be set aside. 4. 4. The revision petitioner's counsel did not appear and address the arguments in spite of an opportunity was given to address the arguments and in the absence of the revision petitioner's counsel, this Court has heard the arguments of the learned HCGP on behalf of the respondent. 5. The learned HCGP in his argument he contends that PW.1 is the complainant and PWs.2 and 3 are the pancha witneses and PWs.4 to 6 are the eye witnesses and PW.7 is the brother of the deceased and PW.10 is the Investigating Officer and PW.11 is the CPI who has filed the charge sheet and the Court below taking into note of the evidence available on record before the Court, has rightly convicted the revision petitioner and the First Appellate Court appreciated the evidence and confirmed the judgment of the Court below and there are no grounds to interfere with the order of the Court by exercising powers under Section 397 read with Section 401 of Cr.P.C. and the scope of revision is very limited and hence the revision petition is liable to be dismissed. 6. After having heard the arguments of the learned HCGP and having considered the grounds urged in the revision petition, this Court has to examine whether this Court can exercise revisional jurisdiction interfering with the order of the Courts below whether both the Courts below have committed an error in appreciating the evidence and error apparent on record. 7. Having heard the arguments and the grounds urged in the revision petition, this Court has to consider both the oral and documentary evidence available on record. The main contention of the revision petitioner is that both the Courts below did not appreciate the evidence in a right perspective and failed to consider the material contradictions available on record, particularly, the evidence of PWs1, 2 and 3 and also PWs.4 to 7 and in spite of the material contradictions both the Courts below have lost sight of the same. 8. Now let me consider the material on record both oral and documentary evidence. The prosecution relied upon the evidence of PWs.1 to 11 and also the Exs.P.1 to P.10 and the revision petitioner did not choose to lead any evidence. 8. Now let me consider the material on record both oral and documentary evidence. The prosecution relied upon the evidence of PWs.1 to 11 and also the Exs.P.1 to P.10 and the revision petitioner did not choose to lead any evidence. The prosecution mainly relied upon the evidence of PWs.1, 4 and 5 contending that they are the eyewitnesses and PW.6, who is the pillion rider of the deceased and the Investigating Officers who have been examined as PWs.10 and 11. 9. Pw.1 who is the complainant has lodged the complaint stating that he has witnessed the accident and that he was proceeding behind the motorcycle in which the deceased and the injured were proceeding. It is his allegation that the driver of the bus came in a rash and negligent manner came towards the side in which the motorcycle was proceeding and dashed against the deceased as well as the pillion rider and in his chief-examination he says that the people who have gathered near the place of accident have sent the injured to Murdeshwar R.N.S. Hospital and he identified the revision petitioner as the driver of the bus and while taking the injured he passed way on the way to the hospital and thereafter the body was taken to R.N.S. Hospital and then he has given the complaint in terms of Ex.P.1. He identifies the signature and also identifies the signature in the spot mahazar as Ex.P.2. In the cross-examination it is elicited that he was proceeding at the distance of ten yards from the vehicle in which the deceased was proceeding but he admits that he heard the accident sound, then only he came to know about the accident. Further, in the cross-examination it is elicited that the bus was proceeding from Bhatkal towards Honnavar and they were proceeding from Honnavar to Bhatkal and hence it is clear that they were proceeding in the opposite direction. Further, in the cross-examination it is elicited that the bus was proceeding from Bhatkal towards Honnavar and they were proceeding from Honnavar to Bhatkal and hence it is clear that they were proceeding in the opposite direction. Further, he admits that after 5-10 minutes of the accident, the witnesses of this case came to the spot and front portion of the motorcycle of the deceased was damaged and the police have drawn the mahazar at the spot and he has also signed the mahazar and he is not aware whether the police have produced the sketch or not and further he admits that he is the only eyewitness to the accident and also he cannot say at what distance from western direction the accident was taken place. 10. Pw.2 who is the mahazar witness, he says that he went to the spot after preparing the panchanama and the police have conducted the panchanama and he has signed the panchanama. In the cross-examination he claims that he himself, Nagesh and Mohan and the police were there at the time of drawing the mahazar and further he categorically admits that in the accident spot the police have not prepared the sketch and when they went to the spot, the vehicles which are involved in the accident were not there at the spot. 11. Pw.3 also claims that he is also one of the signatory to the panchanama and in the crossexamination he admits that the accident was taken place at the distance of three feet from western direction and the police have taken only his signature and he read the contents of the panchanama. He admits the complainant is belongs to his village and he is having acquaintance with him. He claims that the police have prepared the sketch at the spot, but he admits that the police have not taken any signature on the sketch and does not know who gave instructions to prepare the sketch. 12. He admits the complainant is belongs to his village and he is having acquaintance with him. He claims that the police have prepared the sketch at the spot, but he admits that the police have not taken any signature on the sketch and does not know who gave instructions to prepare the sketch. 12. Pws.4 and 5 are the other eyewitness to the accident and in their evidence they say that the accident was taken place between KSRTC bus and the bike and while proceeding from Bhatkal the accident was taken place on the right side of the road and it its width is 20 feet and the right portion of the bus came in contact with motorcycle and as a result, the occupants of the bike fell down from the motorcycle. Thereafter they have shifted the injured person to R.N.S. Hospital and the police recorded their statement. In the crossexamination of PW.4, he claims that he was talking to PW.5 standing near the accident spot at the distance of five feet and the bus was coming in the speed of 70 k.m. but he did not give any statement to the police that it was proceeding in the 70 k.m. speed. He claims that except he himself and PW.5 others were came to the spot after five minutes of the accident. He admits that the deceased belongs to his village and he is having acquaintance with him. PW.5 in his chief evidence he says that the accident was occurred on the eastern side of the road and they have shifted the injured person to R.N.S. Hospital and the bus was coming in high speed. In the cross-examination he admits that the accident was occurred at the distance of 10 feet of western direction on the tar road. He further admits that the accident was taken at the distance of two feet from the eastern portion and there were no other vehicles at the time of the accident either front side or back side. He further admits that he was having acquaintance with the deceased from childhood and claims that he himself and PW.4 witnessed the accident and after five minutes others came to the spot. 13. He further admits that he was having acquaintance with the deceased from childhood and claims that he himself and PW.4 witnessed the accident and after five minutes others came to the spot. 13. Pw.6 is the other injured of the accident and he claims that he himself and the deceased both were going to Bhatkal Tahasildar Office to get the caste certificate since both were selected as police constables and the bus came in the wrong side and dashed against the motorcycle and as a result they fell down and he lost the conscious on the spot and he regained the conscious in the R.N.S. Hospital. In the crossexamination, he admits on either of the side there was a mud road to the extent of 4-5 feet and the accident was occurred at the distance of 19 feet from the western direction on the tar road and he admits that the accident was occurred at the distance of 4-5 feet from eastern direction of the road. 14. The other material evidence is PW.8-P.S.I., who went to the spot based on the complaint and prepared the panchanama and conducted only partial investigation and thereafter handed over the further investigation to PW.11. He also identifies the sketch which is marked as Ex.P.5 and his signature in the cross-examination. He admits that both the sides there are kachha roads and no other vehicles were proceeding at the time of the accident. He claims that the accident was occurred at the distance of 5-6 feet from the western direction and there are houses at the distance of 100 meter from the place of the accident. He admits that he only drawn the panchanama and sketch, but he claims that rough sketch was prepared at the spot and he prepared the actual sketch in the police station and in the presence of the panchas he only drawn the sketch and the pancha witnesses have not given any information and as pointed out by the complainant he has prepared the panchanama. It is suggested that the panchanama and the sketch are prepared in the police station and the same was denied. 15. Now let me appreciate whether the Court below in a right perspective appreciated the evidence. It is suggested that the panchanama and the sketch are prepared in the police station and the same was denied. 15. Now let me appreciate whether the Court below in a right perspective appreciated the evidence. On perusal of the evidence of PW.1 though he claims that he was proceeding behind the motorcycle, in his chief evidence itself he says that the public only sent the injured to Murdeshwar R.N.S. Hospital and further important to note that in another breath he says that he came to know about the accident only after hearing the accident sound and further, he admits that the other witnesses have came to the spot after 5-10 minutes of the accident and he was only the eyewitness to the accident and PWs.4 and 5 who have been arrayed as eyewitnesses to the accident they claim that the other persons came to the spot after 5-10 minutes of accident. Having taken note of the evidence of PW.1, it is clear that PWs.4 and 5 were not there in the accident spot and they came to the spot after five minutes and according to PW.1 he is the only eyewitness and further it is elicited in the cross-examination that he cannot say at what distance from western direction the accident was taken place and he is unable to depose with regard to the place of the accident and hence it is clear that when he deposes before the Court that he came to know about the accident only after hearing the accident sound, he did not witness the accident. Further more, he claims that the people who gathered near the spot shifted the injured person to the hospital but on perusal of the complaint-Ex.P.1, he claims that he himself shifted the injured to the hospital and the material contradictions available on Ex.P.1-complaint and the evidence of PW.1 has not been appreciated by both the Courts and hence it is clear that he was not in the place of accident and if really he was in the place of accident he would have shifted the injured to the hospital and not the public who gathered have shifted the injured to the hospital and he claims that the deceased is none other than his sister's son and also he is unable to tell the accident spot and also the speed in which the driver was driving the bus. 16. 16. Pw.2 also in his evidence he claims that the police have not drawn the sketch in his presence but he claims that he himself, PW.3 and Mohan were there at the spot but it is his evidence that the vehicles were not there at the time of drawing panchanama and hence it is clear that in his presence either the panchanama and the sketch were not drawn and the contents of Ex.P.2 is contrary to the evidence of PW.2. PW.3 also claims that he only signed the panchanama but PW.2 says that no sketch was drawn in his presence but PW.3 claims that the sketch was drawn in his presence but the police have not taken the signature on the sketch. PW.4 in his cross-examination he admits that the bus was coming at the speed of 70 k.m. and he claims that except he himself and PW.5, others came to the spot after five minutes of the accident and hence it is clear that taking into the evidence of PW.1 according to him he is the only eyewitness and according to PW.4 he himself and Shridhar are the eyewitnesses and PW.5 in his evidence categorically says that the accident was occurred on eastern portion of the road and in the crossexamination also he categorically admits that at the distance of 10 feet from the western side of the road the accident was occurred. Further, he categorically admits that the accident was occurred at the distance of two feet from the eastern side and PW.5 also admits that the accident was witnessed by him and PW.4 and others came to the spot after five minutes. 17. Further, he categorically admits that the accident was occurred at the distance of two feet from the eastern side and PW.5 also admits that the accident was witnessed by him and PW.4 and others came to the spot after five minutes. 17. Having taken note of the evidence of PWs.1, 4 and 5, there are material contradictions with regard to they were at the spot at the time of the accident and on perusal of the wound certificate which is marked as Ex.P.8 nowhere in the wound certificate it is mentioned that who have brought the injured Vijay, who is examined as PW.6 to the hospital and the same is very blank and hence taking into note of the evidence of PWs.1, 4 and 5, the same is not connecting that who shifted the injured to the hospital and if really they were in the spot they would have shifted the injured to the hospital and PWs.1, 4 and 5 claims that they are the eyewitnesses and there are material contradictions. The other witness is PW.6 who is the other injured and in the cross-examination he categorically admits that the accident was occurred at the distance of 19 feet from the western side and hence it is clear that the accident was not occurred at the western direction of the sketch. The sketch which is marked as Ex.P.5, it is clear that the accident spot is shown almost on the right side of the road of the western side and the evidence which has been elicited from the mouth of the witnesses, it is clear that the accident was occurred at the distance of 2-3 feet from the eastern side. The sketch which is marked as Ex.P.5, it is clear that the accident spot is shown almost on the right side of the road of the western side and the evidence which has been elicited from the mouth of the witnesses, it is clear that the accident was occurred at the distance of 2-3 feet from the eastern side. Hence, it is clear that the bus was proceeding on the eastern side and the sketch also discloses that the bus was parked on the eastern side and only accident spot is shown on the right direction and it is further important to note that the Investigating Officer in his cross-examination he categorically admits he has prepared the rough sketch at the spot and he has drawn the main sketch in the police station and none of the pancha witnesses have given any instructions to prepare the sketch and the I.O. categorically says the complainant gave the instructions but PW.1 says that he cannot say the distance from western side and very accident spot is disputed and all the witnesses have stated that the accident was taken place on eastern portion of the road but sketch discloses on the western portion of the road and there are material contradictions in the evidence of PWs.1, 4 and 5 and also PW.6, who is also the injured witness he categorically admits in the cross-examination that the accident was occurred at the distance of 19 feet from western direction and it is clear that the accident is occurred on the eastern portion of the road but the sketch is shown on the western side of the road and the very contention of the revision petitioner also that the accident was occurred due to the negligence of the deceased and they came and hit the bus, no doubt the bus has sustained damages as per the IMV report on the right portion and both the vehicles have sustained damages to the right portion of the respective vehicles and the evidence of the prosecution is inconsistent and there are material contradictions not only in respect of the manner in which the accident was taken place and also in respect of spot in which the alleged accident was taken place. The evidence of witnesses is clear that the accident taken place at the distance of three feet from the eastern direction and in which the bus was proceeding in the correct way. These are the material contradictions which are not appreciated by both the Courts below and hence I am of the opinion that the both the Courts below have committed an error in appreciating the material evidence on record and the benefit of doubt goes in favour of the revision petitioner herein that there is no any ample evidence before the Court that the accident is on account of the rash and negligent driving on the part of the driver who is the revision petitioner herein and in the absence of any cogent evidence, I am of the opinion that the revision petitioner get the benefit of doubt and hence I reverse the findings of both the Courts below. 18. In view of the discussions made above, I proceed to pass the following: ORDER The revision petition is allowed. The judgment of conviction and sentence is hereby set aside.