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2023 DIGILAW 343 (KAR)

Anthony v. State

2023-03-01

S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER 1. This criminal revision petition under Sec. 397 read with 401 of Cr.PC is filed by the sole accused challenging the judgment and order of conviction and sentence dtd. 23/8/2010 passed by the Civil Judge (Sr.Dn.) and JMFC, Nagamangala, in C.C.No.177/2010 (Old No.138/2005) and the judgment and order dtd. 21/11/2013 passed by the II Addl. District & Sessions Judge, Mandya, in Crl.A.No.74/2010. 2. Heard the learned Counsel for the petitioner and the learned HCGP for the respondent-State. 3. Brief facts of the case as revealed from the records that would be necessary for the purpose of disposal of this petition are, on 25/10/2010 at about 9.20 p.m. between Hanumanakoppalu and Bidarakere gate near Turubanahalli, Nagamangala, the petitioner who was the driver of the goods vehicle bearing registration No.KA-09-4646 allegedly drove the said vehicle in a rash and negligent manner from Bidarakere towards Bindiganavaile and when the vehicle reached near Turubanahalli bridge, he lost control of the vehicle which thereafter turned turtle towards the left side and fell into a ditch and as a result, out of about 23 inmates in the vehicle, 8 of them died on the spot and several other inmates suffered simple and grievous injuries. 4. On the basis of the complaint lodged by one of the injured inmate - Subbannachar, the Bindiganavile Police registered a case against the petitioner for the offences punishable under Ss. 279 , 337 , 338 & 304-A IPC. After completion of investigation, the police had filed charge sheet against the petitioner for the alleged offences. The petitioner had claimed to be tried before the Trial Court, and therefore, the prosecution to prove its case had examined 15 witnesses as PWs-1 to 15 and got marked 28 documents as Exs.P-1 to P-28 and had closed its side. The accused during the course of his statement under Sec. 313 Cr.PC., had denied the incriminating circumstances available on record against him. However, he did not choose to lead any defence evidence nor produced any documents. The Trial Court, thereafter, heard the arguments on both sides and by its judgment and order dtd. The accused during the course of his statement under Sec. 313 Cr.PC., had denied the incriminating circumstances available on record against him. However, he did not choose to lead any defence evidence nor produced any documents. The Trial Court, thereafter, heard the arguments on both sides and by its judgment and order dtd. 23/8/2010 convicted the petitioner for the alleged offences and sentenced him to undergo simple imprisonment for three months for the offence under Sec. 279 IPC, simple imprisonment for three months for the offence under Sec. 337 IPC, simple imprisonment for six months for the offence under Sec. 338 IPC and simple imprisonment for one year and fine of Rs.3,000.00 for the offence under Sec. 304-A IPC, and in default of payment of fine, to undergo simple imprisonment for three months. 5. Being aggrieved by the said judgment and order of conviction, the petitioner had preferred Crl.A.No.74/2010 before the Appellate Court, and the said appeal was dismissed on 21/11/2013. It is under this factual background, the petitioner is before this Court in this revision petition. 6. Learned Counsel for the petitioner submits that the courts below have erred in convicting the petitioner for the alleged offences. He submits that the material on record do not disclose that the petitioner was driving the vehicle in question in a rash and negligent manner, and on the other hand, the accident had taken place due to mechanical failure in the vehicle in question. He submits that undisputedly, the left front wheel of the vehicle in question was found detached from the vehicle and this was the cause for the accident in question. He submits that the prosecution has not examined CW-74 - Investigation Officer who was the material witness and this has seriously prejudiced the case of the petitioner and he has been denied the opportunity to confront the omissions and contradictions to the Investigation Officer. He submits that the Investigation Officer has not even prepared the rough sketch of the accident spot and even the Motor Vehicles Inspector has not visited the spot. He submits that the inspection of the vehicle in question was held after five days from the date of accident and admittedly the vehicle was shifted from the spot and no explanation is offered for shifting the vehicle and also for the delay in inspecting the vehicle. He submits that the inspection of the vehicle in question was held after five days from the date of accident and admittedly the vehicle was shifted from the spot and no explanation is offered for shifting the vehicle and also for the delay in inspecting the vehicle. In support of his arguments, he has relied upon the judgment of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA VS SATISH - (1998)8 SCC 493 and ABDUL SUBHAN VS STATE - 2007 CRL.L.J. 1089. 7. Per contra, learned HCGP appearing for the respondent has argued in support of the impugned judgment and order and submits that the evidence of the eye-witnesses clearly prove that the petitioner was the driver of the vehicle in question and he was driving the same in a rash and negligent manner. She submits that non-examination of the Investigation Officer does not in any manner prejudice the case of the petitioner. She also submits that the courts below after appreciating the oral and documentary evidence available on record, have concurrently recorded a finding of guilt against the petitioner and the same cannot be interfered by this Court in exercise of its revisional power. Accordingly, she prays to dismiss the petition. 8. I have given my anxious consideration to the arguments addressed on both sides and also perused the material available on record. 9. The prosecution in order to prove its case had, in all examined 15 witnesses before the Trial Court as PWs-1 to 15. PW-1 - Subbannachar is the complainant and the injured witness who was one of the inmates in the vehicle in question at the time of accident. PWs-2 to 9 & 11 are also the other inmates of the vehicle in question who have suffered simple and grievous injuries in the accident in question. All these witnesses have consistently stated that they had boarded the vehicle in question which was a goods vehicle at about 9.00 p.m. on 25/10/2010. These witnesses have stated that the vehicle in question was loaded with chairs, tables and pendal material and in addition to the same, about 20 to 23 people also had boarded the vehicle. They have also stated that the vehicle was driven in high speed by the petitioner, and therefore, they were requesting him to go slow. These witnesses have stated that the vehicle in question was loaded with chairs, tables and pendal material and in addition to the same, about 20 to 23 people also had boarded the vehicle. They have also stated that the vehicle was driven in high speed by the petitioner, and therefore, they were requesting him to go slow. They have stated that when the vehicle reached near Hanumanakoppalu bridge, the same turned turtle towards left side, and thereafter, fell into a ditch and in the said accident, 8 of the inmates who were traveling in the vehicle had died and many other inmates had suffered simple or grievous injuries. 10. PW-12 is the doctor and PWs-13 and 15 are the spot and seizure mahazar panch witnesses. PW-10 is the Police Officer who had registered the FIR on the basis of the complaint of PW-1 and also had prepared the spot and seizure mahazar. PW-14 is the Motor Vehicle Inspector, who has issued motor vehicle inspection report - Ex.P-28. 11. It is the specific defence of the petitioner that when the vehicle in question had reached near the bridge, the left front wheel of the vehicle broke down and as a result, the vehicle's control was lost and it turned towards the left side and fell into the ditch. This suggestion is made by the defence to all the eye-witnesses who were examined before the Trial Court including PW-1 - complainant. PW-1 during the course of his cross-examination states that he does not know whether the left front wheel of the vehicle was detached. However, he has stated that since the left wheel had got detached the vehicle fell on the rock and when it so fell, the tables, chairs and the dias loaded in the vehicle fell on him and caused injuries to him. PW-2 who is another eye-witness, during the course of his cross-examination has admitted that before the vehicle turned turtle and fell down, initially vehicle leaned towards its left side and as a result, the dias, tables and chairs loaded inside the vehicle fell on him causing injuries to him. PW-2 who is another eye-witness, during the course of his cross-examination has admitted that before the vehicle turned turtle and fell down, initially vehicle leaned towards its left side and as a result, the dias, tables and chairs loaded inside the vehicle fell on him causing injuries to him. Though the eye- witnesses have not admitted that because of the break down of the left front wheel of the vehicle in question the accident had taken place, a perusal of their evidence would go to show that prior to the vehicle capsizing, it had leaned towards its left side and the dias and tables which were inside the vehicle had fallen on the inmates of the vehicle and caused them injuries. 12. The IMV report at Ex.P-28 would clearly disclose that the left front wheel of the vehicle in question was completely detached from the vehicle. Therefore, the case of the petitioner that the accident had taken place because of the detachment of the wheel or breaking down of the wheel cannot be completely ruled out. The perusal of Ex.P-28 - IMV report would go to show that except recording the damages to the vehicle, the Motor Vehicle Inspector - PW-14 has not done anything. He has not recorded the condition of the brake or any other parts of the vehicle so as to arrive at a conclusion that there was no mechanical defect in the vehicle in question at the time of accident. Admittedly, the inspection of the vehicle was conducted after a lapse of five days from the date of accident. No satisfactory explanation is offered for the delay caused in inspecting the vehicle. The vehicle was shifted from the place of accident as on the date of inspection. The Motor Vehicle Inspector who was required to make an observation regarding the spot of accident or give particulars about the cause of the accident, has failed to furnish the same in his report and even the general remarks column of the report is found blank. 13. The Investigation Officer has not even prepared the rough sketch of the spot so as to give a fair idea as to how the accident in question had taken place. In addition, the Investigation Officer has not been examined before the Trial Court by the prosecution and no explanation is offered for the said lapse on its part. 13. The Investigation Officer has not even prepared the rough sketch of the spot so as to give a fair idea as to how the accident in question had taken place. In addition, the Investigation Officer has not been examined before the Trial Court by the prosecution and no explanation is offered for the said lapse on its part. Because of the same, the petitioner has been denied the opportunity to confront the material omissions and contradictions in the case and this definitely prejudices his case. 14. The eye-witnesses who have been examined before the Court have merely stated that the petitioner was driving the vehicle in a high speed, but none of the eye-witnesses have stated that he was driving the vehicle in a rash and negligent manner. The fact remains that in a goods vehicle which was already loaded with chairs, tables and pendal material, 20 to 23 people had boarded and this would clearly go to show that the vehicle in question was overloaded. Therefore, the negligence of the inmates of the vehicle who had boarded the goods vehicle also cannot be completely overlooked in the present case. In addition to the same, the material on record would also go to show that the left front wheel of the vehicle was found detached and the injured eye-witnesses have stated that before the vehicle turned turtle, the vehicle had leaned towards the left and as a result, the chairs, tables and dias which were loaded in the vehicle had fallen on them causing injuries to them. Therefore, the defence of the petitioner that the accident in question had taken place due to the detachment of the left front wheel appears to be quite probable. 15. The Hon'ble Supreme Court in Satish's case supra at paragraphs 4 & 5, has observed as under: "4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged." 16. The High Court of Delhi in Abdul Subhan supra at paragraph 12 has observed as under: "12. The present case is on a similar footing. Apart from the allegation of having driven the truck at a high-speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act which would amount to a rash and/or negligent act. The present case is on a similar footing. Apart from the allegation of having driven the truck at a high-speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act which would amount to a rash and/or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of sec. 279 and 304A IPC. The courts below have committed a grave error in convicting the petitioner and this error needs to be corrected in revision. The impugned order is, therefore, liable to be set aside and the petitioner is entitled to an order of acquittal." 17. In the said case, the High Court of Delhi had also taken note of the fact that the vehicle inspection report and the rough sketch produced by the prosecution are totally unsatisfactory. In the present case, the Investigation Officer instead of preparing an eye sketch of the spot of accident, has prepared a minuscule sketch, from which nothing can be made out. In the vehicle inspection report, except noting the damages found in the vehicle, it is not stated as to whether the vehicle in question was mechanically sound or not prior to the accident. Unless all these aspects are brought on record, the court would not be in a position to arrive at a conclusion as to whether the accident in question had taken place due to human rashness or negligence or due to mechanical failure which would not be in the control of the driver of the vehicle. In the present case, the petitioner has taken a plausible defence which is quite probable. 18. From the overall appreciation of the oral and documentary evidence, it is evident that the left front wheel of the vehicle was found detached and just prior to the accident, the vehicle had leaned towards its left side which had resulted in falling of chairs, tables and dias which were loaded in the vehicle on the inmates of the vehicle. Therefore, it cannot be said that the accident in question had taken place solely due to rash and negligent driving of the vehicle in question by the petitioner. Therefore, it cannot be said that the accident in question had taken place solely due to rash and negligent driving of the vehicle in question by the petitioner. For the purpose of proving the alleged charges against the petitioner, the prosecution is required to successfully prove before the Court that the petitioner was driving the vehicle in question in a rash and negligent manner endangering the life of public and has caused the accident. But the said aspect has not been proved in the present case beyond reasonable doubt by the prosecution. Under the circumstances, I am of the considered view that the courts below were not justified in convicting the petitioner for the alleged offences, and therefore, the impugned judgment and order of conviction and sentence passed by the courts below cannot be sustained. Accordingly, the following order: 19. The criminal revision petition is allowed. The judgment and order of conviction and sentence dtd. 23/8/2010 passed by the Civil Judge (Sr.Dn.) and JMFC, Nagamangala, in C.C.No.177/2010 (Old No.138/2005) and the judgment and order dtd. 21/11/2013 passed by the II Addl. District & Sessions Judge, Mandya, in Crl.A.No.74/2010, are set aside. The petitioner is acquitted of the offences under Ss. 279 , 337 , 338 and 304-A IPC.