Partly allowed

Vishwanath v. the State

Karnataka HC8 Dec 2020CRL.RP/2002/2012

Case brief

AI extract

What is this about?

In a criminal revision, the High Court upheld the conviction of an accused for driving a motorcycle without a license and insurance despite an acquittal on IPC charges. The court held the burden was on the accused to produce documents proving the presence of a valid license and insurance, as they fell within his knowledge. The sentence was modified to include only fines without imprisonment.

What did the court decide?

Revision petition allowed in part; conviction upheld; sentence modified to impose a fine of Rs. 500/- and Rs. 1,000/- in place of imprisonment for both offences.

Vishwanath Vs the State — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR VISHAL NPATTIHAL CRIMINAL REVISION PETITION NO.2002 OF 2012Digitallysigned byVISHAL NPATTIHALDate:2020.12.1515:37:49+0530

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BETWEEN:

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SHRI VISHWANATH S/O SURENDRA PAWAR, AGE : 27 YEARS, OCC : STUDENT, R/O. AKKIPET, OLD HUBLI, DISTRICT : DHARWAD.

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... PETITIONER

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(BY SRI SADASHIV S.PATIL, ADVOCATE) AND:

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THE STATE OF KARNATAKA BY ITS DANDELI GRAMEENA POLICE INSPECTOR, REP : BY SPECIAL PUBLIC PROSECUTOR.

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... RESPONDENT

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(BY SRI RAMESH CHIGARI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 05.04.2010 PASSED BY THE CIVIL JUDGE (JR.DN) AND J.M.F.C., HALIYAL IN C.C.NO.347/2009 AND ALSO TO SET ASIDE THE JUDGMENT DATED 03.06.2011 PASSED BY THE FAST TRACK COURT, SIRSI IN CRIMINAL APPEAL NO.64/2010.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused against the Judgment of conviction and order of sentence passed by Civil Judge (Jr.Dn) and J.M.F.C., Haliyal in Criminal Case No.347/2009 dated 05.04.2010 convicting the accused for the offence punishable under Section 3 read with Section 181 of the M.V.Act sentencing the accused to undergo simple imprisonment for 03 months and to pay fine of Rs.500/-, in case of default, accused to undergo simple imprisonment for 15 days. Further, convicting the accused for the offence punishable under Section 156 read with Section 196 of the M.V.Act and sentencing the accused to undergo simple imprisonment for 03 months and to pay fine of Rs.500/- and in default, to undergo simple imprisonment for 15 days, which came to be confirmed by the Fast Track Court, Sirsi in Criminal Appeal No.64/2010 dated 03.06.2011.

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For the sake of convenience, parties herein shall be referred to as per their status before the trial Court.

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The brief facts leading to filing of this petition is as under :

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It is the case of complainant that accused being rider of motorcycle bearing registration No.KA-25/X-2203 was riding his motorcycle without licence and uninsured on 09.02.2009 at about 4.30 p.m. in a rash and negligent manner so as to endanger human life on Haliyal-Dandeli road. While riding the motorcycle, accused dashed to the oncoming motorcycle from opposite direction bearing registration No.KA-31/J8130. Due to rash and negligent driving by the accused, CW.1 sustained simple imprisonment and one Basavaraj succumbed to the injuries and died on the spot.

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Due to accident, a case came to be registered in Crime No.7/2009 against the accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC and Section 3 read with Section 181 and Section 156 read with Section 196 of the M.V.Act. On the basis of information given by CW.1 who is P.W.2, FIR came to be registered and

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after recording the statement of witnesses a final report came to be filed.

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Thereafter cognizance was taken by the Court and on receipt of summons accused appeared and was enlarged on bail. Plea of accused came to be recorded, wherein he pleaded not guilty and claimed to be tried, accordingly he was tried.

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In order to prove the guilt of accused, prosecution examined 11 witnesses as P.W.1 to 11 and got marked Exs.P.1 to 15 and M.Os.1 and 2 and closed its side. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., wherein accused denied all the incriminating evidence against him. However, accused did not choose to lead any evidence. On the basis of material evidence, both oral and documentary, trial Court came to a conclusion that the witness evidence was not trustworthy to bring home the guilt of accused and prosecution utterly failed to prove the guilt of accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. But for the

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offence punishable under Section 3 read with Section 181 of the M.V.Act and Section 156 read with Section 196 of the M.V.Act, the trial Court convicted the accused sentencing to undergo simple imprisonment for 03 months and sentenced to pay fine of Rs.500/-, in case of default, the accused shall undergo simple imprisonment for 15 days.

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Aggrieved by the Judgment of trial Court, accused approached the Fast Track Court, Sirsi in Criminal Appeal No.64/2010. After re-appreciating and reevaluating the entire material evidence on record, appellate Court came to the conclusion that trial Court rightly convicted the accused for driving the vehicle without holding driving licence and without insurance policy and accordingly confirmed the order of conviction for the aforesaid offence.

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Aggrieved by the conviction by trial Court and confirmation by the appellate Court, accused is before this Court challenging the illegality, correctness and propriety of orders passed by both the Courts.

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Heard Sri Sadashiv S.Patil, learned counsel for

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petitioner and Sri Ramesh Chigari, learned HCGP for respondent-State.

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Learned counsel for the petitioner/accused

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contends that the Judgment of conviction and order of sentence passed by trial Court and confirmed by appellate Court is contrary to the material evidence on record and hence the same is liable to be set aside and reversed. Learned counsel further contends that prosecution has not led any evidence to show that accused was riding the motorcycle and he failed to produce any document to show that accused was not having driving licence and insurance for the motorcycle. He further contends that as the prosecution failed to prove the negligence of accused, the trial Court acquitted the accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. In view of acquittal of accused for the aforesaid offences, the trial court ought not to have convicted the accused for the offence punishable under Section 3 read with Section 181 and also

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for the offence punishable under Section 156 read with Section 196 of the M.V.Act. Learned counsel further contends that the burden of proof was laid on the prosecution to show that accused was not having valid driving licence and valid insurance policy while driving the motorcycle which caused the accident.

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He further contends that no material has been produced by the prosecution, evidence led-in to prove beyond reasonable doubt that accused was not having a valid driving licence to drive the vehicle and insurance policy of the vehicle in question. He further contends that the trial Court has not appreciated these material facts and has mechanically convicted the accused without application of mind for the aforesaid offences, which is erroneous in law. Learned counsel further contends that there being no sufficient evidence to prove the fact that the accused was riding motor cycle, conviction of accused by trial Court for the said offences, is arbitrary and illegal. Impugned Judgment of conviction by the trial Court and affirmation of

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the same by the Appellate Court without appreciating these facts and in consistency in the statement of witnesses, conviction of the accused is erroneous in law and the same deserves to be set aside. On the basis of these submissions learned counsel for petitioner seeks to allow this petition and set aside the judgment of conviction and order of sentence passed by both the Courts.

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Per contra, learned High Court Government Pleader contends that the judgment of conviction and order of sentence passed by the trial Court is on the basis of the material evidence, statement of witnesses, documents produced and the same is in accordance with law and hence, there is no requirement of interference by this Court. He further contends that no doubt issue has been framed to the effect that whether the prosecution to prove the case beyond reasonable doubt. But in the present case, it is duty of the accused to have produced the valid driving licence and insurance policy of the motor cycle. It is bounded duty of the accused when he is charged for the aforesaid offences, to

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come out with material evidence which is within his knowledge and possession to show that he is having a valid licence to drive the motor cycle, thereby to discharge the accusation made against him by the prosecution.

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Learned Government Pleader further contends

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that even according to Sections 103 and 106 of Evidence Act, the burden of proving the fact and establishing the same, which is within the knowledge, is upon the accused and in the present case it was incumbent upon the accused to have produced the valid driving licence and insurance policy for driving the vehicle on public road, which is not been done and hence the trial Court has rightfully convicted the accused for the aforesaid offences. Therefore, he contends that when a particular fact is within the knowledge of a person then the burden of proof and it is bounden duty of the accused to prove such fact, which is only within his knowledge and since the same has not been done in the present case, the trial Court has rightfully convicted the accused and there is no illegality and perversity or lacuna in the investigation and

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the judgment of conviction passed by both the Court. On these submissions he seeks to dismiss the petition and confirm the order passed by both the Courts.

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Having heard the learned counsel for petitioner –

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accused and learned High Court Government Pleader for respondent – State, the point that arises for consideration before this Court is:

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“Whether there is any illegality or perversity in the judgment of conviction and order of sentence passed by the trial Court and confirmed by the Appellate Court?”

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In order to answer the above point, it is

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necessary to have a cursory look at the facts of the case. It is not in dispute that on 09.02.2009 at 4.30pm accused met with an accident by dashing his vehicle against another on coming motor cycle bearing registration No.KA-31/J-8130. It is also not in dispute that due to the said accident PW2 sustained injuries and her husband – Basavaraju, who was

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riding the motor cycle succumbed to the injuries and died at the spot itself.

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Though it is vehemently argued by the learned

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counsel for petitioner – accused that there is no piece of evidence to show that accused was riding the motor cycle. But the fact remains that accident has occurred leading to the death of Basavaraj and injuries to PW2. No doubt, the accused has not been convicted for the offences punishable under Sections 279, 337 and 304-A IPC but for the offence punishable under Section 3 r/w 181 of IMV Act and for the offence punishable under Section 156 r/w 196 of IMV Act, trial Court convicted the accused since there is sufficient material evidence on record and prosecution has made out a case to attract the said offences. The Appellate Court reappreciated the said evidence of the witnesses and has come to a right conclusion that PW2 has seen the accused while he was riding the motor cycle. Though there is some inconsistency in the statement of witnesses, the same may not be fatal to the case of the prosecution. Nothing

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prevented the petitioner – accused from producing the valid driving licence and insurance policy of the motor cycle for driving the same.

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In view of Sections 103 and 106 of Evidence Act, the petitioner – accused ought to have produced the said documents to discharge accusation made against him. Under these circumstances, the trial Court has rightfully convicted the accused for the aforesaid offences, which cannot be found fault with. I do not find any material irregularity or perversity in the judgment passed by the trial Court and confirmed by the Appellate Court. Accordingly, I answer the above Point in the negative.

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In view of the above, I do not find any illegality or perversity in the judgments of both the Courts. However, in view of the fact that petitioner – accused was aged 25 years at the time of accident, working in a private job, earning his livelihood and his family depending upon his only source of income, some leniency deserves to be shown by

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considering the mitigating circumstances. Hence, I pass the following order:

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ORDER

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(1) Revision petition is allowed in part.;

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(2) Judgment of conviction passed by the Civil Judge (Jr.Dn) and J.M.F.C., Haliyal in Criminal Case No.347/2009 dated 05.04.2010 & confirmed the Fast Track Court, Sirsi in Criminal Appeal No.64/2010 dated 03.06.2011, is hereby upheld.;

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(3) The order of sentence passed by the trial Court and confirmed by the Appellate Court is hereby modified to the following effect:

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(a) The accused is sentenced to pay a fine of Rs.500/- for the offence punishable under Section 3 r/w 181 of IMV Act.;

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(b) The accused is also sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 156 r/w 196 of IMV Act.;

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(4) In default to pay the aforesaid fine, the accused shall undergo simple imprisonment for three months for both the offences.

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Sd/JUDGE

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CKK/VK

Vishwanath v. the State

Case brief

What is this about?

What did the court decide?

Vishwanath v. the State

Case brief

What is this about?

What did the court decide?

What the court decided

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