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Karnataka High Court · body

2020 DIGILAW 2067 (KAR)

Ibrahim Pasha v. State

2020-10-16

K.S.MUDAGAL

body2020
JUDGMENT K.S.Mudagal, J. - Aggrieved by the order of conviction and sentence for the offences punishable under Sections 279, 337 and 304A of IPC passed by the trial Court and confirmed by the first appellate Court, the accused has preferred the above revision petition. 2. On 04.07.2009 at about 5.15 p.m. on NH 206 near Bhadrapura Gate, Kibbanahalli Hobli, Tiptur Taluk, an accident took place between motor cycle bearing No.KA-44 H 9622 and lorry bearing No.AP 21 V 3469. The petitioner was the driver of the said lorry. In the said accident one Gangadhar died and PW3 Nanjegowda and his 6 year old son suffered injuries. 3. Nanjegowda filed complaint as per Ex.P2 alleging that when himself, his son Yashwant and Gangadhar were proceeding on Motor cycle No.KA-44-H-9622 from Moodlakoppa to Guddadapalya lorry No.AP-21-V-3469 came from the opposite side in a rash and negligent manner and hit the motor cycle. In the complaint, he alleged that Gangadhar was riding his motor cycle. He further alleged that on learning about the incident PW.1 Raghu and PW.2 Jagadish shifted them to Tiptur Hospital in the ambulance of the said hospital and Gangadhar died on the spot. 4. On such complaint, Tiptur Rural Police registered FIR EX.P7 in Crime No.90/2009 of their Police Station. After conducting the investigation, Tiptur Rural Police charge-sheeted the petitioner for the offences punishable under Sections 279, 337 and 304A of IPC. In the charge sheet, it was alleged that Nanjegowda the complainant was riding the motor cycle and Gangadhar was the pillion rider. It was further alleged that the said accident took place due to the rash and negligent driving of the lorry by the petitioner. 5. On the basis of charge sheet records, the Principal Civil Judge and JMFC took cognizance of the offence and registered the case in CC No.92/2010. The trial Court tried the petitioner for the charge that Nanjegowda was the rider of motor vehicle No.KA-44 H 6922 and the petitioner drove the lorry No.AP 21 V 3469 in rash and negligent manner, hit the motor cycle from the opposite side and caused death of Gangadhar and injuries to Nanjegowda and Yashwant. 6. On trial, the trial Court convicted the petitioner for the offence punishable under Sections 279, 337 and 304A of IPC. 6. On trial, the trial Court convicted the petitioner for the offence punishable under Sections 279, 337 and 304A of IPC. The trial Court sentenced the petitioner to simple imprisonment of three months and fine of Rs.1000/- for the offence under Section 279 of IPC, SI of three months and fine of Rs.500/- for the offence punishable under Section 337 IPC and SI for three months and fine of Rs.3000/- for offence under Section 304A IPC with default sentence under each head on the following grounds: i) The evidence of injured witness PW.3 is corroborated by the eye witnesses PWs.1 and 2. The accused failed to impeach their evidence. ii) The mahazar Ex.P1, the evidence of mahazar witness, eye witnesses and injured corroborate each other to prove the guilt of the accused. iii) Ex.P9 The motor vehicle Inspector s report coupled with his evidence and other evidence prove the guilt of the accused. 7. The petitioner challenged the said order of conviction and sentence before the Fast Track Court, Tiptur in Crl.A.No.109/2010. The first appellate Court in one paragraph reasoning agreed with the trial Court judgment and order and dismissed the appeal. The first appellate Court solely relied upon the evidence of PWs.1 to 3. 8. Sri Vinayakeerthy, learned counsel for the petitioner seeks to assail the impugned order on the following grounds: i) The whole prosecution theory is full of suspicion. When the complainant himself alleged that the deceased Gangadhar was riding the vehicle and deposed accordingly, the charge sheet was filed showing the complainant as the rider and even the substance of accusations were formulated accordingly. ii) Admittedly on the two seater motor cycle three persons were traveling. Therefore, they were responsible for the accident. iii) The Investigating Officer has no explanation for planting PW.3 as the motor vehicle rider. He has not made any efforts to ascertain whether Gangadhar was having driving licence or not. Even during trial, the Investigating Officer did not make any effort to explain the contradictions in the complaint and the charge sheet regarding the rider of the motor vehicle. iv) The evidence of PWs.1 to 3 was not properly appreciated. The trial court and first appellate court failed to note that the genesis of the prosecution case itself was doubtful. v) As admitted by the witnesses themselves, there were several curves on the road close to the scene of offence. iv) The evidence of PWs.1 to 3 was not properly appreciated. The trial court and first appellate court failed to note that the genesis of the prosecution case itself was doubtful. v) As admitted by the witnesses themselves, there were several curves on the road close to the scene of offence. Therefore, it is difficult to hold that in such place, the petitioner could drive the Lorry in high speed. 9. Per contra, learned HCGP submits that PW.3 is the injured eye witness and presence of PWs.1 and 2 eye witnesses was established, therefore, there was no reason for the Courts below to reject the said evidence. 10. This Court is aware that when there are concurrent findings of the Courts below in convicting and sentencing the accused, the scope for interference in the revisional proceedings is very limited. However, if the revisional Court finds that appreciation of evidence suffer perversity and the judgments of the Courts below have lead to failure of justice, this Court can interfere in the matter in the revisional jurisdiction. 11. There cannot be any dispute that when the accused contested the case, the burden of proving charge/substance of accusation is on the prosecution. Similarly, in this case also, when the respondent Police filed the charge sheet alleging that PW.3 was the rider of motor vehicle and petitioner drove his lorry in rash and negligent manner so as to endanger the human life and caused the accident, consequent death and injuries to victims, the burden was on the prosecution to prove the said accusation. 12. The accused also does not dispute the accident. His contention is that the rider and occupants of the motor vehicle themselves were rash and negligent. Even the scene of offence was not disputed. The Courts below relied mainly upon the evidence of PWs.1 to 3 the alleged eye witnesses and the injured witness. Out of them, the evidence of PW.3 is most important. 13. Pw.3 in his chief examination itself contrary to the case of the prosecution states that it was he who was riding the motor cycle and not Gangadhar. In the cross-examination he states that he does not know the contents of the complaint and he only subscribed his signature on the same at the behest of the Police. He further states that he does not know the distance between Tiptur and Bhadrapura Gate. 14. In the cross-examination he states that he does not know the contents of the complaint and he only subscribed his signature on the same at the behest of the Police. He further states that he does not know the distance between Tiptur and Bhadrapura Gate. 14. Pw.3 admits that before Bhadrapura Gate, there is a curve in that road. He further admits that since he was a pillion rider and his son was positioned between him and rider, he was not able to see the on coming vehicle. Further he clearly admits that he does not know how the accident took place. To crown all this, he says that he is seeing the accused for the first time in the Court. This is the quality of the evidence of the injured eye witness. However, the trial Court says that his evidence is acceptable. 15. Then the next question is whether the trial Court and the first appellate Court were justified in believing that Pws.1 and 2 were eye witnesses and they corroborate the evidence of PW.3. To believe that PWs.1 and 2 have witnessed the accident or the overtacts of the accused, the prosecution has to probabilise the presence of PWs.1 and 2 at the scene of offence. 16. In the complaint, the complainant himself states that after learning about the incident Jagadish and Raghu viz., PWs.1 and 2 respectively came to the scene of offence and shifted the injured to the General Hospital, Tiptur. In his chief examination PW.3 does not speak to the presence of PWs.1 and 2 at the scene of offence. 17. The wound certificate Ex.P5 states that PW.3 was brought to the hospital by his relative Sandeep Kumar. It does not say that he was brought by PWs.1 and 2. 18. Pws.1 and 2 in their chief examination say that on that day they were proceeding together on the motor cycle of PW.2 near K.B.Cross and the lorry of the petitioner over took them, went ahead and dashed against the motor cycle which was coming from the opposite side. Their presence at the scene of offence as eye witnesses is not figured in the complaint and the deposition of PW.3 the injured witness. PW.1 in his cross-examination admits that PW.3 is the full brother of deceased Gangadhar, whereas PW.2 in his crossexamination disputes that. 19. Their presence at the scene of offence as eye witnesses is not figured in the complaint and the deposition of PW.3 the injured witness. PW.1 in his cross-examination admits that PW.3 is the full brother of deceased Gangadhar, whereas PW.2 in his crossexamination disputes that. 19. Apart from that PW.1 in his crossexamination admits that there are 5 to 6 curves between K.B.Cross and Bhadrapura Gate and the distance between K.B.Cross and the scene of offence. That probabilise the defence of the accused that there were 5 to 6 curves within 8 kilometers and it was not possible to drive the lorry in a high speed. 20. Though PWs.1 and 2 were cited as eye witnesses, PW.1 admits that he does not know the contents of mahazar and he was not aware of drawing up of the mahazar. PW.2 also admits that there are 5 to 6 curves between K.B.Cross and Bhadrapura Gate. He further admits that generally when there are curves, it is not possible to drive the vehicle in a high speed. 21. According to PW.1 and PW.2 the lorry over took their vehicle and dashed against motor cycle which was coming from opposite direction. PW.2 states that since they were going behind the lorry he did not see how the accident took place. 22. Unfortunately, the trial Court and the first appellate Court without noticing these material contradictions and admissions in the evidence of PWs.1 to 3 jumped to the conclusion that they were the eye witnesses, their evidence should be accepted as a gospel truth. 23. The sketch of the scene of offence Ex.P8 also does not depict clear picture. When the complainant states that they were proceeding from Moodlakoppa to Guddadapalya, the direction of these two places is not shown in the sketch of scene of offence. To find out who were on the right side of the road, Ex.P8 should have shown the directions of starting point and destination of both vehicles. 24. It is the contention of the petitioner that Police have woven a story of rash and negligent driving on the part of the petitioner to help PW.3 and parents of the deceased Gangadhar to claim compensation for the motor vehicle accident. 25. 24. It is the contention of the petitioner that Police have woven a story of rash and negligent driving on the part of the petitioner to help PW.3 and parents of the deceased Gangadhar to claim compensation for the motor vehicle accident. 25. Over looking the material admissions and contradictions in the evidence of PWs.1 to 3, the complaint, the charge sheet and the doubtful genesis of the prosecution case, the trial Court erroneously held that prosecution has proved the charge against the accused. The first appellate Court by a cryptic order simply says that PWs.1 to 3 are eye witnesses, therefore their evidence should be believed. In saying so, the first appellate Court shirked its duty of reappreciation of the evidence. Therefore, the impugned orders of conviction and sentence are contray to the basic rules of appreciation of evidence and law. Under the circumstances, the impugned orders are liable to be set aside. 26. Accordingly, the revision petition is allowed. allowed. The impugned order dated 10.08.2010 passed by the trial Court in C.C.No.92/2010 and the order dated 30.04.2011 passed by the first appellate Court in Crl. A.No.109/2010 are hereby set aside. 27. The petitioner is acquitted of the offences punishable under Sections 279, 337 and 304A IPC. The bail bonds of the petitioner and his surety shall stand discharged. The fine amount in deposit, if any shall be refunded to the petitioner.