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2022 DIGILAW 118 (KAR)

Chamansab Mohammad Gouse v. State of Karnataka

2022-02-01

MOHAMMAD NAWAZ

body2022
JUDGMENT 1. This Criminal Revision petition is preferred by the accused against his conviction and sentence passed by the trial Court for offence punishable under Ss. 279, 304 (A) of IPC and Sec. 184 of M.V. Act, which is confirmed by the appellate Court. 2. Heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent/State and perused the material on record. 3. The case of the prosecution is that on 15/4/2009 at 11:15 am, the accused being the driver of goods Auto Rickshaw bearing registration No.KA-31/4160 drove the same in a rash and negligent manner from Sirsi to Banvasi endangering human life and public sa fety and hit against the motorcycle of Shivanand Veerabadrappa Gouda, at Sugavi, as a result of which he sustained grievous in juries and later succumbed to the said injuries. 4. To establish the guilt o f the accused, the prosecution got examined PWs.1 to 12 and marked Ex.P1 to 10 . The trial Court vide judgment dtd. 17/9/2010 in Criminal Case No.14/2009, convicted and sentenced the accused for the of fence punishable under Ss. 279 , 304(A) o f IPC R/w. 184 of M.V. Act. 5. The accused preferred Criminal Appeal No.115/2010 on the file of the Fast Track court Sirsi, which was dismissed vide judgment dtd. 30/12/2011. 6. The trial Court relied on the evidence of PWs.3 , 6 and 7, namely the eye witnesses and held that in view of their evidence , the evidence of PWs. 4 and 5 is doubtful. It is observed that the accused has not explained in his statement the reason for the accident and there are no circumstances made out to suspect the oral evidence o f PWs.6 and 7 and evidence o f o fficial witnesses namely PWs.8 to 12 . 7. The Appellate Court has come to the conclusion that the vehicle of the accused went beyond the middle portion of the road and caused the accident and the accused did not control the vehicle in the curve. It is further observed that the accused has not taken any precautionary measure and even a slow going vehicle can be said to have driven rashly and negligently. The accused crossed the middle partition o f the road and proper precautionary steps are not taken, so as to avoid possible accident. It is further observed that the accused has not taken any precautionary measure and even a slow going vehicle can be said to have driven rashly and negligently. The accused crossed the middle partition o f the road and proper precautionary steps are not taken, so as to avoid possible accident. It is held that the accused drove his goods Auto Rickshaw in a rash and negligent manner and caused the accident and there fore he is guilty o f o ffence punishable under Ss. 279, 304(A) o f IPC R/w.184 o f M.V. Act. 8. According to the prosecution PWs.3 to 7 are the eye witnesses to the accident in question. Out of them PWs.4 and 5 have not supported the case of prosecution. The said witnesses were traveling in the goods Auto Rikshaw which was driven by the accused. The trial court has observed that, PWs.4 and 5 turning hostile is not fatal to the prosecution, since the said witnesses used to carry the vegetables in the vehicle of the accused and there fore it is quite natural that they have not supported the prosecution case . 9. According to PWs.6 and 7 they were proceeding in their respective motorcycles behind the motorcycle o f the deceased. They saw the goods Auto Rikshaw driven by the accused coming from the opposite direction from Sirsi side in a high speed and hit against the motorcycle o f the deceased near Sugavi cross, where were there is a curve . On account o f the said accident deceased Shivanand Gouda sustained grievous in juries and he was shifted in an Ambulance to the hospital and for further treatment while he was being shifted to KIMS hospital he died on the way to the hospital. 10. From the evidence o f the aforesaid prosecution witnesses it can be gathered that the accused was driving the Auto Rikshaw and near Sugavi cross, the Auto Rikshaw hit against the motorcycle ridden by the deceased, which resulted in his death. 11. According to PW.3 he was riding his motorcycle about 50 to 75 ft., behind the motorcycle of the deceased and the accident occurred at a distance o f 200 meter from Sugavi Cross. He has stated in the cross examination that he cannot say at what speed the deceased was riding the motorcycle. 11. According to PW.3 he was riding his motorcycle about 50 to 75 ft., behind the motorcycle of the deceased and the accident occurred at a distance o f 200 meter from Sugavi Cross. He has stated in the cross examination that he cannot say at what speed the deceased was riding the motorcycle. He has stated that he went to the Police Station and lodged the complaint at about 3:00 pm. 12. PW .6 has stated that the Auto Rikshaw was coming from Sirsi side in a high speed and near the curve it lost the balance and hit against the motorcycle ridden by the deceased. 13. Insofar as the evidence of PW .7 is concerned though he has stated that he was riding the bike and when he was about 200 meters away from Sugavi cross he saw Auto Rikshaw coming from the opposite direction in a high speed, but he has further stated that he heard some noise , as such he went to the spot and saw the deceased fallen in a gutter. From his evidence it cannot be said that he has witnessed the accident. In the cross examination he has admitted that he heard the sound but he has not witnessed the accident. Therefore the evidence which is available on record to prove the rash or negligent driving by the accused is that of PWs.3 and 6. It is relevant to see that, the appellate Court has relied on the spot sketch at Ex.P.2 and held that the spot of accident is just on the right side from middle partition of the road and further held that the accused did not take proper care and caution while driving his Auto Rikshaw. Neither PW.3 or 6 have deposed that the accused took the Auto Rikshaw to the wrong side and caused the accident. The panch witnesses to the spot mahazar - Ex.P.1 and spot sketch - Ex.P.2 namely PWs.1 and 2 have not supported the case of prosecution. 14. PW .11 the ASI has deposed that after getting the information about the accident he went to the spot and prepared Ex.P1 and 2. He has not stated that the spot was shown by PW.3 . Therefore, the evidence of PW .3 that he showed the spot is not corroborated by PW.11 who has conducted the mahazar . 14. PW .11 the ASI has deposed that after getting the information about the accident he went to the spot and prepared Ex.P1 and 2. He has not stated that the spot was shown by PW.3 . Therefore, the evidence of PW .3 that he showed the spot is not corroborated by PW.11 who has conducted the mahazar . Though PW .11 has stated that he recorded the statement of PW.3 as per Ex.P.4 in the hospital, but according to the PW.3 he went to the Police Station and lodged the complaint. In the said circumstances, the evidence of PWs.4 and 5 assumes importance and merely because they turned hostile, their evidence cannot be brushed aside . 15. PW .4 has categorically stated that the Auto Rikshaw was moving slowly and the motorcycle was coming in a zig-zag manner in a opposite direction. Therefore he requested the accused to take the Auto Rikshaw to the side of the road. He has stated that the rider of the bike was responsible for the accident. PW.5 has also stated that the accused was driving the Auto Rikshaw on the left side o f the road and the bike came in a high speed and hit against the Auto Rikshaw . Therefore , a reasonable doubt arises in the mind of the Court as to the cause of accident. The accused is therefore entitled for benefit of doubt. The Revision Petition there fore deserves to be allowed. Hence, the following; ORDER i) Criminal Revision Petition is allowed. ii) The judgment and order passed in Criminal Case No.14/2009 dtd. 17/9/2010 on the file o f the Court o f Prl. Judicial Magistrate F.C . Sirsi and in Criminal Appeal No .115/2010 dtd. 30/12/2011 on the file o f the Fast Track Court, Sirsi, are hereby set aside . iii) Accused is acquitted o f the offence punishable under Ss. 279, 304(A) o f IPC R/w. Sec. 184 of M.V. Act. iv) His bail bond stands cancelled.