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2020 DIGILAW 559 (KAR)

Elayavannan v. State Of Karnataka

2020-02-26

K.NATARAJAN

body2020
JUDGMENT K. Natarajan, J. - This revision petition is filed by the petitioner/accused assailing the judgment of conviction and sentence dated 24.03.2011 passed by the Principal Civil Judge & JMFC, Nanjangud (hereinafter referred to as the Trial Court) which was confirmed by the II Additional Sessions Judge, Mysore (hereinafter referred to as the First Appellate Court) in Crl.A. No. 56/2011 vide order dated 30.09.2011. 2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader. 3. The status of the parties before the Trial Court is retained for the sake of convenience. 4. The case of the prosecution is that Nanjangud Rural Police filed charge sheet against the accused for the offence under Sections 279, 337, 304A of Indian Penal Code (for short IPC). It is alleged that on 08.12.2007 between 5.00 a.m. and 5.30 a.m. Nanjangud-Guldlupet road, near Elachagerebore village, the accused being the driver of the Lorry bearing No. TN-29/AZ- 9488 drove the vehicle from Gundlupet towards Nanjangud in a rash and negligent manner endangering human life and dashed against the Lorry bearing No. KA-09/6064 which was parked on the left side of the road with cement load as the tyre was punctured, in which the cleaner Mahesha was sleeping and died due to the collision. The cleaner of the lorry of the accused sustained injury thereby the police after registering the case, filed charge sheet against the accused. The accused after his appearance was released on bail. He pleaded not guilty and claimed to be tried. The accused was put on trial. The prosecution in all examined seven witnesses and marked nine documents. Thereafter, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of total denial but not entered into any defendant. Though some photographs were referred as Exs.D.1 to D.11, those documents were not shown as annexures and produced. After hearing the arguments, the Trial Court found the accused guilty, convicted and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 10,000/-, in default, to undergo simple imprisonment for another six months. Being aggrieved, the accused preferred an appeal before the First Appellate Court. After hearing the arguments, the Trial Court found the accused guilty, convicted and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 10,000/-, in default, to undergo simple imprisonment for another six months. Being aggrieved, the accused preferred an appeal before the First Appellate Court. The First Appellate Court affirmed the judgment of conviction for the offences punishable under Section 279 and 304A of IPC and sentence awarded for the offence under Section 304-A of IPC and acquitted for the offence under Section 337 of IPC. Assailing the same, the accused is before this Court by way of revision petition. 5. Learned counsel for the petitioner strenuously contended that the judgment of the Trial Court and the First Appellate Court are not sustainable in law as there are no eyewitnesses to the accident. The lorry of PW.4-Krishnamurthy, the driver, parked the lorry on middle of the road without any reflector or indicator or parking light due to puncture of the tyre. The lorry driver has not taken any precautionary measure to avoid the accident while parking the vehicle in the National Highway road. Due to which, the accident might have occurred. There is no negligence on the part of the accused. Absolutely, there is no independent evidence except the panch witness and the evidence of the Investigating Officer. PW.1-complainant turned hospital. PW.7-eyewitness also turned hostile. PW.4 driver of the stationary lorry was not at all present and he went to Mysore for bringing a spare wheel. He was not present at the spot. He was only an hearsay. There is no adequate evidence to prove the guilt of the accused. Therefore, the benefit of doubt has to be extended to the accused. Hence, prayed for setting aside the judgment of conviction and sentence passed by the Trial Court. 6. Per contra, learned High Court Government Pleader supported the judgment of the Courts below and contended that the prosecution witnesses are sufficient to prove the guilt of the accused. The photographs may not reveal keeping of stones by the side of the vehicle. After the accident, it might have disappeared. Merely because there was no reflector or indicator put on the vehicle, that itself is not a ground to reject the evidence of the prosecution. There is sufficient material placed on record to prove the guilt of the accused. The photographs may not reveal keeping of stones by the side of the vehicle. After the accident, it might have disappeared. Merely because there was no reflector or indicator put on the vehicle, that itself is not a ground to reject the evidence of the prosecution. There is sufficient material placed on record to prove the guilt of the accused. Hence, prayed for dismissing the revision petition. 7. Upon hearing the arguments and on perusal of the records, the point that arises for consideration is as follows: 'Whether the judgment of the trial Court and the First Appellate Court call for interference?' 8. On perusal of the record, admittedly, the accused was the driver of the lorry bearing No. TN-29/AZ-9488 at the time of the accident. He was driving the same from Gundlupet towards Nanjangud and dashed to the stationed lorry bearing No. KA-09/6064 which was parked on the road, due to which, the cleaner of the lorry bearing No. KA-09/6094 Mahesha sustained injuries and died on the spot. It is alleged that the accused also sustained grievous injuries in the accident. Admittedly, there are no eyewitnesses to the accident. PW.1 who is the complainant has turned hostile. He came to the spot after the accident and lodged the complaint. Therefore, his evidence is not useful to the prosecution case except for setting the law into motion. PW.2 the panch witness also not supported the case. PW.3 the owner of the stationary lorry is only a formal witness. PW.4 driver of the stationed lorry has spoken about puncturing of the tyre of the lorry and parking the lorry on the left side of the road. He says that the lorry was parked on the footpath. In the cross-examination he has admitted that he was not present at the time of the accident. He had been to Mysore for bringing a spare wheel. However, he has stated that he had parked the lorry on the road immediately after the puncture of the tyre. Though he has stated that the lorry was parked on the left side of the road, but he further said that he has put reflector only on the backside of the lorry towards Gundlupet side, which goes to show that there was no reflector put by him in the front side of the lorry. Though he has stated that the lorry was parked on the left side of the road, but he further said that he has put reflector only on the backside of the lorry towards Gundlupet side, which goes to show that there was no reflector put by him in the front side of the lorry. Even by looking to the photographs, the lorry has been parked on the middle of the road almost half of the tar road, which goes to show that the vehicle was not parked on the extreme left side or on the footpath. Even the Ex.P.8-sketch of the Investigating officer shows that the lorry was not parked on the extreme left side or on the footpath which was almost near the divider line. PWs.5 and 6 are the Investigating Officers. Except PW.4, who is the driver of the stationed lorry, no other witnesses supported the prosecution witnesses. PW.4 is not the eyewitness. He was only a circumstantial witness but speaks about parking of the lorry on the road. Absolutely there are no eyewitnesses to the incident. The sketch and the evidence of the Investigating Officer shows that the lorry was not parked on the extreme left side of the road. However, the accused drove the lorry and dashed to the stationed lorry near the middle divider of the road, there cannot be sole negligence on the part of the accused. Though the learned counsel submits that there was contributory negligence on the part of PW.4, on perusal, it can be inferred that there is contributory negligence on the part of PW.4, the driver of the stationed lorry, who parked it on the road. On perusal of the entire evidence on record, as already stated above, there are no eyewitnesses except the evidence of PW.4 and the evidence of PW.4 also not convincing. There is inconsistency in his evidence and Ex.P.8 that the vehicle was not parked on the extreme left side of the road. Learned counsel for the accused has brought to the notice that the accident has occurred in December, during which period even at 5 Oclock in the morning it will be dark. Therefore, there is a chance of accident occurring due to the darkness and not having the reflector of the stationed lorry on the highway is not ruled out. Learned counsel for the accused has brought to the notice that the accident has occurred in December, during which period even at 5 Oclock in the morning it will be dark. Therefore, there is a chance of accident occurring due to the darkness and not having the reflector of the stationed lorry on the highway is not ruled out. The evidence of the prosecution is not sufficient to prove the negligence of the accused beyond all reasonable doubts. Therefore, the benefit of doubt shall have to be extended to the accused and he is entitled for acquittal. Hence, the following order: The Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by the Courts below are set aside. The petitioner/accused is acquitted. Bail Bond stands cancelled. Fine amount deposited, if any, shall be refunded to the petitioner/accused.