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2021 DIGILAW 884 (KAR)

Kaisur Rahiman v. State Of Karnataka

2021-09-25

RAJENDRA BADAMIKAR

body2021
JUDGMENT : 1. This criminal revision petition is filed by the accused/revision petitioner against the concurrent findings of conviction passed by the JMFC, Ron in C.C.No.7/2006 dtd. 23/7/2007 and confirmed by the Additional District and Sessions Judge, Gadag in Crl.A.No.32/2007 dtd. 28/6/2013 for the offences punishable under Ss. 279, 337, 338 and 304-A of IPC. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court. 3. The brief facts leading to the case are that, on 29/3/2005 at about 5.30 a.m. near Ron Petrol bunk, the accused drove his lorry bearing No.KA-21/U-5045 in a rash and negligent manner and dashed to a 407 tempo bearing No.KA-28/8200. Due to which, the complainant and C.Ws.7 to 27 who were travelling in the said tempo sustained grievous injuries, while the driver of the tempo suffered fatal injuries and succumbed because of the injuries in the hospital. On the basis of the complaint, the investigating officer has registered the case in crime No.29/2005. He investigated the matter and submitted charge sheet against the accused for the offences punishable under Ss. 279, 337, 338 and 304-A of IPC. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Magistrate has taken cognizance of the alleged offences. He has also secured presence of the accused and he was enlarged on bail. The accused has denied the accusation made against him. Then the prosecution has examined in all 19 witnesses as P.Ws.1 to 19 and also placed reliance on 29 documents as Exs.P1 to P29 to prove the guilt of the accused. After conclusion of the evidence of the prosecution, the statement of the accused under Sec. 313 of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. Further, he did not choose to lead any oral or documentary evidence in support of his defence. 4. After hearing the arguments, the learned Magistrate has convicted the accused for the offences punishable under Ss. 279, 337, 338 and 304-A of IPC. The accused has challenged this judgment of conviction before the Additional District and Sessions Judge, Gadag in Crl.A.No.32/2007 and the learned Sessions Judge by his judgment dtd. 28/6/2013 dismissed the appeal by confirming the judgment of conviction. 279, 337, 338 and 304-A of IPC. The accused has challenged this judgment of conviction before the Additional District and Sessions Judge, Gadag in Crl.A.No.32/2007 and the learned Sessions Judge by his judgment dtd. 28/6/2013 dismissed the appeal by confirming the judgment of conviction. Being aggrieved by these concurrent findings, the revision petitioner/accused has filed this criminal revision petition challenging the concurrent findings of both the courts below. 5. Heard the arguments advanced by the learned counsel for the revision petitioner and the learned HCGP for the respondent and perused the trial court records. 6. Learned counsel for the revision petitioner/accused would contend that judgments and orders passed by both the courts below are contrary to law, facts and evidence on record. He would further contend that both the courts below have failed to give proper reasons and the judgments and orders are erroneous resulted in miscarriage of justice. That both the courts below have failed to appreciate the contradictions in the evidence of P.Ws.2 to 6 and their evidence being unnatural, artificial and were not creditworthy. That none of the eye-witnesses were able to say the speed of the vehicle and both the courts below have not raised proper probabilities and inferences. Hence, he would contend that that both the courts below erred in convicting the accused and sought for allowing the revision petition by acquitting the accused. 7. Per contra, learned HCGP would contend that both the courts below have appreciated the oral and documentary evidence in detail and arrived at a just decision. He would contend that both the courts below have imposed reasonable sentence, which does not call for any interference and prayed for rejection of the revision petition. 8. Having heard the arguments and perusing the records, it is evident that lorry bearing No.KA-21/U-5045 and 407 tempo bearing KA-28/8200 have met with an accident on 29/3/2005 at 5.30 a.m. near Ron Petrol Bunk. It is also not under serious dispute that there is a head on collision between the vehicles and the driver of the tempo succumbed because of the injuries. However, it is to be noted here that, investigating officer has charge sheeted only the driver of the lorry. Apart from that, all the injured witnesses were travelling in the tempo and the tempo was loaded with more than 25 passengers, which is undisputed fact. However, it is to be noted here that, investigating officer has charge sheeted only the driver of the lorry. Apart from that, all the injured witnesses were travelling in the tempo and the tempo was loaded with more than 25 passengers, which is undisputed fact. But interestingly, it is to be noted here that the very capacity of the tempo is 10-12 passengers. These facts were not noticed by the investigating agency. 9. P.W.1 is the complainant and in his examination-in-chief he has specifically deposed that they were proceeding from Shahapur to Yamanur and there were 25-30 passengers in the tempo but the very capacity of the tempo is about 12. But admittedly, in the said tempo about 25-30 passengers were travelling. In his examination-in-chief P.W.1 deposed that accident has occurred at 5.30 in the evening, but in the cross- examination, he claims that it was morning at 5.30 a.m. He simply asserts that accident is because of the negligence of the driver of the lorry, but he did not explain how the accident exactly occurred. Hence, when there is a head on collision between two vehicles, his evidence does not establish rash and negligent act against the driver of the lorry as alleged. 10. P.W.2 is mahazar witness, P.Ws.3 to 5 are eye-witnesses who were inmates of the tempo. They also simply deposed that accident is because of the negligence of the driver of the lorry, but they did not disclose how the tempo was moving. P.W.6 is an eye-witness. Though he supported the case of the prosecution, but his cross- examination reveals that he was tutored by the prosecution to give evidence in a particular manner. Further, he admits that lorry was parked by the side of the road. Under these circumstances, the entire case of the prosecution becomes doubtful considering his evidence and admission. 11. P.Ws.7, 8, 9, 10, 11, 12, 13 and 14 are all eye-witnesses who were inmates of the tempo and they simply deposed that lorry came in a high speed and accident occurred because of the negligence on the part of the driver of the lorry, but they are unable to explain what was the speed. Further, they did not say how the tempo was proceeding and they admit that tempo was overloaded with passengers. 12. P.W.16 is the cleaner of the lorry and he turned hostile. Further, they did not say how the tempo was proceeding and they admit that tempo was overloaded with passengers. 12. P.W.16 is the cleaner of the lorry and he turned hostile. In his evidence, he stated that lorry was parked near petrol bunk, as there was a puncture of tyre and the tempo came in a high speed and dashed to the lorry resulting in the accident. His evidence is corroborated by the admission given by P.W.6, who admitted that lorry was parked. The same evidence is given by P.W.16. 13. Ex.P3 is the sketch of scene of offence and it discloses that lorry was moving on the left side of the road. However, there was a head on collision between the two vehicles. The sketch is also not properly drawn by the investigating officer and he did not mention width of the road in the sketch and he did not identify the point of impact. Ex.P29 is the spot mahazar. On perusal of Ex.P3 along with Ex.P29, it is evident that, at the accident spot, the road is running from East-West direction and lorry was moving from West to East. Further, from Ex.P29 it is evident that width of the road is 18 feet. The accident spot is not shown in the sketch, but only where the vehicles were stationed is shown in the mahazar and it does not disclose the place of impact. Admittedly, it is a head on collision. Apart from that, front side of the lorry was completely damaged. Further, mahazar itself clearly establish that left side front wheel of the lorry was burst and chassis was completely damaged. Hence, this evidence regarding left side front wheel of the lorry was being burst is supported by the evidence of P.Ws.6 and 16. But quite contrary to it, the Motor Vehicle Inspector who was examined as P.W.19, did not notice that left side front wheel of the lorry was burst and he deposed that there was no mechanical defect. Even in the cross-examination, he has specifically stated that he did not notice that left side front wheel of the lorry was burst, but the spot mahazar Ex.P29 itself establish this aspect. If this version is taken into consideration, then it is evident that P.W.19- Motor Vehicle Inspector has not visited the spot and mechanically prepared the report as per Ex.P25. He has concealed the material aspects. If this version is taken into consideration, then it is evident that P.W.19- Motor Vehicle Inspector has not visited the spot and mechanically prepared the report as per Ex.P25. He has concealed the material aspects. When the left side front wheel of the lorry was burst, question of lorry moving does not arise at all and it should have been stationed. Further, the evidence clearly discloses that there were more than 25-30 passengers in the tempo and it is overloaded. Then, it is for the eye-witnesses to explain all these aspects, but none of the eye-witnesses were able to explain any of these aspects. The investigating officer has also not bothered to consider this material evidence recorded in Ex.P29 regarding left side front wheel of the lorry was burst. This fact is completely ignored by the investigating officer and he has not even bothered to submit 'B' charge sheet against the driver of the tempo. There is no material evidence to show that accident is because of the actionable negligence on the part of the driver of the lorry. When the lorry was parked by the side of the road, negligence act cannot be attributed against the driver of the lorry, i.e., revision petitioner. There may be some contributory negligence, but that cannot be attributed due to mechanical failure, i.e., left side front wheel of the lorry being burst. Under these circumstances, the entire approach of both the courts below is completely erroneous. 14. Very interestingly, the trial court instead of appreciating Exs.P3 and P29 as well as evidence of P.Ws.6 and 16 has gone to the extent of observing that accused has taken two inconsistent defences and failed to establish the same and that he is not certain regarding his defence. But the learned Magistrate has failed to note the fact that initial burden is on the prosecution to establish the guilt of the accused beyond all reasonable doubt. The accused is at liberty to take any defence. Merely because accused is unable to establish his defence that does not assist the prosecution in proving its case. The prosecution must prove its case beyond all reasonable doubt. But in the instant case, the facts are entirely different. The learned Magistrate has directly come to a conclusion that driver of the lorry was rash and negligent. He did not consider Exs.P3 and P29 and did not appreciate other evidence. 15. The prosecution must prove its case beyond all reasonable doubt. But in the instant case, the facts are entirely different. The learned Magistrate has directly come to a conclusion that driver of the lorry was rash and negligent. He did not consider Exs.P3 and P29 and did not appreciate other evidence. 15. It is also to be noted here that there is a head on collision and the investigating officer has also not taken photographs. Sketch is also not properly drawn and place of impact is also not shown. In this context, learned counsel for the revision petitioner has placed reliance on the decision of the Hon'ble Apex Court in the case of State of Karnataka Vs Satish. The Hon'ble Apex Court in the said case observed as under: "Penal Code (45 of 1860) , S.337, S.338, S.304A-- Motor Vehicles Act (59 of 1988) , S.168-- Negligence of driver - Proof - Making his ipsa to quitor - Invocation of - Merely because truck is driven at "high speed" - Does not bespeak of either "negligence" or "rashness" by itself - Evidence to show that immediately before truck turned turtle there was big jerk - Whether jerk was because of uneven road or mechanical failure, not explained - Report submitted by motor vehicle inspector not forthcoming from record - Said Inspector not examined - Serious infirmity and lacuna in prosecution case - No evidence on record to establish "negligence" or "rashness" in driving truck - Maxim res ipsa loquitur cannot be involved - Acquittal not liable to be interfered with." 16. The principles enunciated in the said judgment are applicable to the facts of the present case in hand. In the instant case also, all along it is stated that lorry was in high speed, but none of the witnesses who were travelling in the tempo are able to explain the speed. Further, when it was early in the morning, it is hard to notice the speed of the vehicle, as the accident has taken place at 5.30 a.m. None of the witnesses were able to explain how the driver of tempo managed the load of 30 passengers in the tempo, when the capacity itself is hardly 12. All these aspects clearly establish that prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. All these aspects clearly establish that prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. The learned Magistrate has not considered these aspects and the appellate court did not appreciate the evidence in proper way and in a mechanical way observed that trial court has appreciated the evidence in proper way in one paragraph. The approach of both the courts below is erroneous resulting in miscarriage of justice. Under these circumstances, the criminal revision petition needs to be allowed. Accordingly, I proceed to pass the following: ORDER The criminal revision petition is allowed. The judgment of conviction passed by the JMFC, Ron in C.C.No.7/2006 dtd. 23/7/2007 and confirmed by the Additional District and Sessions Judge, Gadag in Crl.A.No.32/2007 dtd. 28/6/2013 for the offences punishable under Ss. 279, 337, 338 and 304-A of IPC stand set aside and revision petitioner/accused is acquitted of the alleged offences. The fine amount if any deposited by the revision petitioner/accused shall be returned to him.