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2022 DIGILAW 1512 (KAR)

Prakash v. State of Karnataka

2022-11-29

G.BASAVARAJA

body2022
JUDGMENT/ORDER 1. The revision petitioner has filed this revision petition under Sec. 397 r/w 401 of Cr.P.C. to set aside the judgment dtd. 12/9/2014 passed by the Principal District & Sessions Judge, Dharwad, in Crl.A.N.15/2013 and also to set aside the judgment of conviction and order of sentence dtd. 9/1/2012 by the II Addl. Civil Judge & JMFC II Court, Dharwad, in C.C.No.593/2009. 2. The brief facts leading to the filing of this petition are as follows: 2.1 On 12/2/2009, around 9.30 p.m., on the Marewad-Karadigudda road, near the house of Basayya Hiremath (C.W.13) at Thimmapur village, the accused, who is the driver of a tractor trailer bearing registration No. KA-25/T6467-68, drove the same from Marewad towards Karadigudda village in a rash and negligent manner so as to endanger human life. As a result, the inmates of Minidoor C.W.4 to C.W.8 sustained simple injuries. One Yallappa, father of the complainant sustained grievous injuries and later succumbed to them on 13/2/2009 at 4.30 a.m. at the hospital. The accused ran away from the spot without reporting the incident. Thus, accused has committed the offence punishable under Ss. 279 and 304A of the IPC and Sec. 134 r/w 187 of the Motor Vehicles Act, 1988 (for short, 'MV Act'). 3. After investigation the Investigating Officer has charge-sheeted against the accused for the alleged commission of offenses. After taking cognizance, the case was registered in C.C.No.593/2009 and a plea was recorded under Sec. 251 of Cr.P.C. The accused having understood the same, has pleaded not guilty and claimed to be tried. 4. To prove the case of prosecution, in all 14 witnesses have been examined as P.W.1 to P.W.14 and 13 documents were got marked as Exs.P-1 to P-13. On closure of prosecution side evidence, the statement under Sec. 313 of Cr.P.C. was recorded as to the incriminating evidence found against the accused in the language known to him. Accused has totally denied the evidence of prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf. 5. On hearing the arguments, the trial court has passed the impugned judgment of conviction and order of sentence. Being aggrieved by this judgment of conviction and order of sentence, accused has preferred an appeal in Crl.A.No.15/2013. The said appeal came to be partly allowed. 5. On hearing the arguments, the trial court has passed the impugned judgment of conviction and order of sentence. Being aggrieved by this judgment of conviction and order of sentence, accused has preferred an appeal in Crl.A.No.15/2013. The said appeal came to be partly allowed. The conviction of accused for the offence punishable under Sec. 134 r/w 187 of MV Act is maintained, however, sentence was modified. In view of this modification, accused is sentenced to undergo simple imprisonment for 1 year for the offence punishable under Sec. 304A of IPC and pay a fine of Rs.1, 000.00 for the offence punishable under Sec. 187 of the MV Act. Being aggrieved by this judgment, accused has filed this revision petition. SUBMISSIONS OF PETITIONER COUNSEL: 6. Learned counsel for the petitioner has submitted his arguments that both the Courts have not properly appreciated the evidence on record in accordance with law. P.W.4 - Shankarappa Yallappa Sabarad is the elder brother of C.W.1 and son of Yallappa and driver of minidoor vehicle bearing registration No.KA31/2661. He has deposed in his evidence that accused/driver of the tractor came from opposite side, then he took his vehicle towards right side of the road as there was no place towards left side, then the Minidoor vehicle went and fell into the ditch. This evidence of P.W.4 reveals that there is no negligence on the part of accused. The evidence of P.W.1 and contents of Ex.P-1 are quite inconsistent to the evidence of PW.4. 6.1. Further it is submitted that in spot panchanama - Ex.P-2 and MV Report-Ex.P-10 it is clearly stated that there is no damage caused to the tractor, but the damages have caused to the Minidoor vehicle bearing registration No.KA31/2661. This Minidoor vehicle being a goods vehicle, has carried 7 passengers, which is not permissible under law. Though accident occurred due to the negligent act of the driver of Minidoor vehicle, the tractor is falsely implicated in this case only to get compensation from the insurance company of this tractor. 6.2. It is submitted that Ex.P-10-MV Report itself reveals that class of vehicle is a 'delivery van'. Though driver of goods vehicle has violated the MV Act and Rules, the Investigating Officer has not filed any charge sheet against the driver of the vehicle bearing registration No.KA-31-2661. It is further submitted that tractor has not hit the Minidoor vehicle. 6.2. It is submitted that Ex.P-10-MV Report itself reveals that class of vehicle is a 'delivery van'. Though driver of goods vehicle has violated the MV Act and Rules, the Investigating Officer has not filed any charge sheet against the driver of the vehicle bearing registration No.KA-31-2661. It is further submitted that tractor has not hit the Minidoor vehicle. On all these grounds, sought for allowing the revision petition. SUBMISSIONS OF LEARNED ADDL.SPP FOR STATE : 7. Per contra, learned Addl. SPP has submitted that trial court has properly appreciated the evidence on record in accordance with law. During the course of crossexamination of prosecution witnesses, the accused has not disputed the alleged accident, instead, he has suggested to the prosecution witnesses that since the road was not in good condition, the alleged accident has occurred. On all these grounds, sought for dismissal of the revision petition. DISCUSSIONS AND DECISION: 8. Having heard the arguments and perusing the records, the following point would arise for my consideration: "Whether the revision petitioner proves that Courts below have erred in convicting the revision petitioner for the offence punishable under Ss. 279, 304-A, 134 of IPC and Sec. 187 of M.V.Act and the said judgment of conviction and order of sentence call for any interference by this Court?" 9. It is to be noted here that the accused/revision petitioner has been prosecuted for the offence punishable under Ss. 279, 337, 304A of IPC and Sec. 34 of r/w Sec. 187 of MV Act. This Court being a Revisional Court, the powers under revision are very limited and the revisional powers are required to be exercised sparingly, unless it is shown that there is injustice caused apparently on the face of records. 10. I have carefully gone through the prosecution papers, evidence and impugned judgments passed by both Courts, as well as submissions of both the counsel before this Court. 10.1. This case arises out of a complaint-Ex.P-1 filed by M.Y.Sabarad. 10. I have carefully gone through the prosecution papers, evidence and impugned judgments passed by both Courts, as well as submissions of both the counsel before this Court. 10.1. This case arises out of a complaint-Ex.P-1 filed by M.Y.Sabarad. The substance of complaint is that on 12/2/2009 Shankarappa, the elder brother of P.W.1, his father Yallappa, his wife Suma, his sister-in-law Neelavva, Basavva, Shankaravva and his younger brother's daughter Pavithra were proceeding in a Minidoor vehicle to go to Garag and when the vehicle was proceeding near the house of Basayya Swamy, Thimmapura Village, one vehicle driver came in a high speed and took the said vehicle towards the wrong side and hit the Minidoor vehicle, as a result, the alleged accident has occurred. However, in the examination in chief of P.W.1, he has stated that the driver of tractor came from the opposite side and dashed to the Minidoor vehicle. 10.2. Admittedly, this witness is not the eye witness to this incident. As per the charge sheet, C.W.6 to C.W.13 are the eye witnesses. Among them, C.W.6 -Shankarappa, C.W.7 - Basavva, C.W.8- Neelavva, C.W.9 - Shakuntala, C.W.10 - Pavithra, C.W.11- Suma, C.W.12 -Mallikarjuna and C.W.13 - B.Bharath, are examined as P.W.4 to P.W.10 and P.W.12 respectively. P.W.12 has not supported the prosecution's case. Even in the cross examination made by Addl. SPP, after considering him as hostile witness, he has categorically denied the statement recorded by the Investigating Officer, which is marked Ex.P-11. As P.W.4 to P.W.10 deposed in their evidence, on the relevant date, while they were travelling in a Minidoor vehicle bearing registration number KA-31/2661, in front of Swamy's house in Thimmapura village, one tractor came from the opposite side at high speed and also from the wrong side and collided with their vehicle. There was no place to take their vehicle to the left side, so Minidoor fell into the ditch, injuring inmates and killing one of the inmates, who was the father of P.W.4. 10.3. During the cross examination, P.W.4 stated that the road was narrow and vehicles could not travel at high speed on it. In the cross examination of P.W.5, he has stated that he does not know how the accident occurred and in the cross examination of P.W.6, he has also clearly admitted that the road was narrow and that, on the said narrow road, only one vehicle can move. In the cross examination of P.W.5, he has stated that he does not know how the accident occurred and in the cross examination of P.W.6, he has also clearly admitted that the road was narrow and that, on the said narrow road, only one vehicle can move. Further, he has stated that he cannot say whether the vehicle can move at a high speed on a narrow road. 10.4. In the cross examination of P.W.10, he has stated that there is a curve in the place of the accident. The MV report (ExP-10) reveals that no damages were caused to the tractor. The same is also evident from the evidence of Motor Vehicle Inspector - B.M.Kalisingh, who is examined before the Court as P.W.11. Ex.P-2 spot mahazar reveals that the place of accident is near Thimmapura Village, MarewadKaradigudda dambar road and the width of said road is 19 feet and there is a 3 foot katcha on both sides of the road. This mahazar also reveals that there is no damage to this tractor. Ex.P-13, a rough sketch prepared by the Investigating Officer, reveals that the width of the road is 18 feet. However, the complainant and other prosecution witnesses have not deposed in their examination-in-chief as to the width of the road, but it is clear from the evidence of material witnesses that the road in question is a narrow road and the driver of tractor cannot drive the vehicle in a high speed when the width of road is only 18 feet. Why did the tractor driver drive on the wrong side of the road? When there is no space to move two vehicles at the same time, the question of driving on the wrong side does not arise and one of the witnesses stated that there is a curve near the location of the accident, but this is not disclosed in a spot panchanama or rough sketch and no damage is admittedly caused to the tractor. 10.5. In the said circumstances, the investigating officer has partially suppressed the facts before the Court and there is no consistency in the evidence of the prosecution witnesses regarding rash and negligent acts on the part of the accused. If the tractor driver truly drove his tractor recklessly and negligently at high speed, the tractor would have undoubtedly incurred some damage. In the said circumstances, the investigating officer has partially suppressed the facts before the Court and there is no consistency in the evidence of the prosecution witnesses regarding rash and negligent acts on the part of the accused. If the tractor driver truly drove his tractor recklessly and negligently at high speed, the tractor would have undoubtedly incurred some damage. This accident occurred only when the Minidoor fell into the ditch and the inmates of the vehicle have suffered injuries as shown in the wound certificate and even one of the inmates succumbed to the injuries. For the aforesaid reasons, evidence placed before the Court will create a reasonable doubt as to the alleged act of accused. 10.6. Apart from this, Ex.P-10-MV Report reveals that the vehicle bearing registration No.KA-31/2661 is a delivery van. No doubt this is a goods vehicle and the same is admitted by the prosecution witnesses, though there is no provision to carry passengers in a goods vehicle, the driver of the Minidoor vehicle has carried seven passengers, which is contrary to the provisions of the MV Act and Rules. However, for reasons best known to him, the Investigating Officer has not laid any charges against the driver of this goods vehicle. For the aforesaid reasons, evidence placed before the Court will create a reasonable doubt as to the accused act. 11. The Courts below have failed to appreciate the evidence on record in a proper perspective manner. Accordingly, impugned judgments passed against the accused are not sustainable under law, which requires interference by this Court. Hence, I proceed to pass the following: ORDER (1) Criminal revision petition is allowed. (2) The judgment dtd. 12/9/2014 passed by the Principal District and Sessions Judge, Dharwad, in Crl.A.No.15/2013 and judgment of conviction and order of sentence dtd. 9/1/2012 passed by the II Addl. Civil Judge and JMFC II Court, Dharwad, in C.C.No.593/2009, are set aside. (3) Accused is acquitted from the offence punishable under Ss. 279, 337, 304A of IPC and Sec. 34 of r/w Sec. 187 of MV Act. (4) Registry is directed to transmit the records to the trial court along with the copy of this order. (5) Trial court is directed to refund the fine amount deposited by the accused, if any, on proper identification.