Allowed

K N Venkateshan v. the State of Karnataka

Karnataka HC6 Nov 2020CRL.RP/754/2011

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, holding that conviction for rash and negligent driving causing death was erroneous as key prosecution witnesses were inconsistent and material witnesses were not examined. The court set aside the lower courts' orders.

What did the court decide?

Impugned orders of conviction and sentence set aside; petitioner acquitted; fine refunded; bail bonds discharged.

K N Venkateshan Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2020)

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Crl.R.P.No.754/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.754/2011

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BETWEEN :

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K.N.VENKATESHAN S/O K.NATARAJ AGED ABOUT 41 YEARS NO.2/100, MANINUR ROAD NEAR PRIMARY SCHOOL NETTUMEDE VILLAGE SALEM TALUK AND DISTRICT TAMIL NADU STATE … PETITIONER

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(BY SRI IQBAL AHMED KHAN, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001 … RESPONDENT

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(BY SRI.H.R.SHOWRI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 26.09.2008 PASSED BY THE II ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) AND JMFC, CHITRADURGA IN C.C.NO.1327/2006 AND ORDER DATED 11.06.2010 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT, CHITRADURGA IN CRIMINAL APPEAL NO.102/2008.

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THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

Crl.R.P.No.754/2011

O R D E R

“Whether the impugned order of conviction and sentence passed against the petitioner for the offences punishable under Sections 279, 337, 338 and 304A of IPC by the trial Court and confirmed by the first appellate Court suffer illegality, impropriety and incorrectness?” is the question involved in this case.

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The petitioner was the accused in C.C.No.1327/2006 on the file of II Additional Civil Judge

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and JMFC, Chitradurga. He was prosecuted in the said case for the offences punishable under Sections 279, 337, 338 and 304A of IPC on the basis of the charge sheet filed in Crime No.39/06 of Bharamasagara police station.

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The case of the prosecution in brief was as follows:

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i) On 20.03.2006 at 3.45 p.m. when PWs.1 to 8 were traveling in Tata Sumo bearing KA-05 M 4830 on NH No.4 within Kolhal village limits of Chitradurga Taluk, the accused drove his lorry KA-01 AG 2599 in

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Crl.R.P.No.754/2011

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rash and negligent manner and hit the Tata Sumo. At that time CW.13 was driving the Tata Sumo. In the said accident PWs.1 to 8 suffered injuries and Manjunath an inmate of the Tata sumo died due to the injuries suffered by him.

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ii) On learning about the incident PW.11 the Head Constable of Bharamasagara Police Station visited Bharamasagara Government hospital where the injured were being treated, recorded the statement of PW.1 as per Ex.P1 and on that basis registered FIR Ex.P19.

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iii) CW.24 took up further investigation, conducted the spot mahazar as per Ex.P5 and inquest mahazar as per Ex.P6, recorded the statements of the witnesses and filed the charge sheet.

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The learned Magistrate on taking cognizance summoned the petitioner. Petitioner did not plead guilty. Therefore, he was tried. The prosecution relied upon the evidence of PWs.1 to 8 the alleged injured eye witnesses, Pws.9 and 10 the spot mahazar witnesses,

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PW.12 the Head Constable who registered the FIR and PW.13 the Motor Vehicle Inspector.

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In the trial, the petitioner disputed that he was the driver of the lorry at the time of the accident. He contended that accident occurred due to rashness and negligence on the part of the driver of Tata Sumo itself.

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The trial Court rejecting the petitioner’s defence convicted him for the aforesaid offences and sentenced him to fine of Rs.1,000/- for the offence under Section 279 IPC, to Rs.500/- for the offence under Section 337 of IPC, to Rs.1,000/- for the offence punishable under Section 338 of IPC and Simple Imprisonment for six months and fine of Rs.4,000/- for the offence punishable under Section 304A of IPC with default sentences for each offence.

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The trial Court held that though PWs.10 and 11 spot mahazar witnesses turned hostile, the charges brought against the petitioner were proved by the

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evidence of the injured eye witnesses PWs.1 to 8 and the motor vehicle Inspector PW.13.

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Petitioner challenged the said order of conviction and sentence in Crl.A.No.102/2008 before the Addl. District and Sessions Judge and Fast Track Court, Chitradurga. Learned Sessions Judge by the impugned order concurring with the reasoning and findings of the trial Court dismissed the appeal.

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This being the revision petition against the concurrent findings of the trial Court and the first appellate Court, unless it is shown that the impugned orders suffer perversity, glaring illegality and incorrectness, this Court cannot interfere in such findings.

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The date, time and place of accident were not in dispute. It was also not disputed that the Tata Sumo bearing No.KA-05 N 4830 and lorry bearing No.KA-01 AG 2599 were involved in the accident. The death of

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Crl.R.P.No.754/2011

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one Manjunath and that PWs.1 to 8 were injured in the said accident was also not disputed.

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The petitioner being the driver of the lorry at the time of the accident and rashness and negligence on the part of the driver of the lorry were disputed. It was further contended that since CW.13 was not holding a driving licence, to succeed in their claims before the Motor Accidents Claims Tribunal against the Insurance Company, PWs.1 to 8 and the Police have falsely implicated the petitioner and imputed rashness and negligence to the driver of lorry No.KA 01 AG 2599.

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Under the above said circumstances, this Court has to examine whether the trial Court and the first appellate Court acted in a perverse, illegal and improper manner in rejecting the defence of the petitioner.

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To prove the charges brought against the accused, the prosecution was expected to prove beyond reasonable doubt the following aspects:

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i) That on the date of the accident, petitioner was the driver of the lorry;

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ii) That the petitioner drove the lorry rashly and negligently in a high speed and caused the accident;

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Though in the complaint and FIR the name of the petitioner appeared, in his cross-examination PW.1, stated that he does not know what all is written in the complaint and he signed the complaint at the behest of the Police.

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PW.1 complainant in the chief examination itself stated that he does not know the name of the driver of the lorry and number of the lorry. He states that he came to know that name of the driver of the lorry was Venkatesh. But, in the cross-examination he states that since the driver of the lorry escaped after causing the accident, he did not see him. He further

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states that he saw the driver of the lorry in the Police station. He also admitted that since he was sitting in the hind seat of the Tata Sumo, he was not able to see

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the things which were happening in the front side of the Tata Sumo.

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The evidence of PWs.2 to 8 regarding they sighting the accused at the scene of offence and the occurrence of the accident is same as that of PW.1.

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To prove that accused was the driver of the

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lorry and he drove the lorry in a rash and negligent manner the driver of the Tata sumo vehicle would have been the best witness. He was cited at Sl.No.13 in the charge sheet. But for the reasons best known to the prosecution, he was not examined. Non examination of such material witness prejudiced the defence of the accused as he lost opportunity to cross examine him.

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The other best person to speak about the accused being the driver of the lorry on the date of the accident would have been the owner of the lorry. For the reasons best known to the Investigating Officer, he does not cite him as the witness to the charge sheet. There was no explanation for not citing the owner of the

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lorry as charge sheet witness and not examining the driver of the Tata Sumo before the court.

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Under such circumstances, the trial Court was not justified in holding that the petitioner was the driver of the lorry at the time of the accident. The trial Court convicts the accused on the sole ground that PWs.2 to 8 were the injured eye witnesses, therefore their evidence that the accused was the driver of the vehicle at the time of the accident and he drove the vehicle in a rash and negligent manner and caused the accident has to believed. The witnesses were the injured witnesses cannot be the sole ground to hold that the charge is proved without weighing the quality of their evidence and unless that is cogent consistent and credible.

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As already discussed, their evidence regarding the identity of the driver of the vehicle was unsatisfactory. That was not cogent, consistent and leading to the only one hypothesis that the accused was the driver of the vehicle.

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Similarly regarding the rashness and negligence or high speed on the part of the driver, all the eye witnesses said that because of their position in the vehicle, they were not able to see what was going on in the front side of the vehicle. All of them admitted that they have filed claim petitions under the Motor Vehicles Act. Therefore, the contention of the accused that they were deposing to support the prosecution to succeed in their claim petition carries more weight.

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The above discussions go to show that the trial Court and the first appellate Court ignoring the material inconsistencies and contradictions in the evidence of PWs 1 to 8 jumped to the conclusion that since they were injured witnesses, their version that the petitioner was the driver of the vehicle and he caused the accident by rash and negligent driving shall be accepted. The Courts below failed to evaluate the evidence objectively. Therefore, the orders of the Courts below suffer perversity, illegality, impropriety and liable to be set aside.

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Therefore, the petition is allowed. The impugned orders of conviction and sentence passed by the trial Court and confirmed by the first appellate Court against the petitioner are hereby set aside. The petitioner is acquitted of the charges under Sections 279, 337, 338 and 304A of IPC.

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The fine amount deposited, if any shall be refunded to the accused.

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The bail bonds of the accused and the surety shall

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stand discharged.

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Sd/JUDGE

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akc

K N Venkateshan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

K N Venkateshan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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