Allowed

Ganesh S/O Anant Acharya v. the State of Karnataka

Karnataka HC10 Feb 2021CRL.RP/2083/2012

Case brief

AI extract

What is this about?

Revision petition filed by a driving accused challenging conviction under Sections 279 and 304A IPC for causing death by rash and negligent driving. Court set aside conviction and acquitted accused due to discrepancies in vehicle identification, lack of mechanical defect, and contributory negligence of the deceased.

What did the court decide?

Acquittal of the accused under Sections 279 and 304A of the Indian Penal Code, 1860. Bail bond cancelled and fine refunded.

Ganesh S/O Anant Acharya Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶2

DATED THIS THE 10^th DAY OF FEBRUARY 2021

¶3

BEFORE

¶4

THE HON’BLE MR.JUSTICE K. NATARAJAN

¶5

CRIMINAL REVISION PETITION NO.2083/2012

¶6

BETWEEN:

¶7

GANESH, S/O ANANT ACHARYA AGE:39 YEARS, OCC:BUSINESS R/O OPPOSITE, SRI. MAHA VISHNU TEMPLE, RAYAR PETE, SIRSI, TAL. SIRSI (U.K.)

¶8

.. PETITIONER (BY SRI. HARISH S. NAYAK AND SRI. R.H. ANGADI, ADVOCATES)

¶9

AND:

¶10

THE STATE OF KARNATAKA, KARWAR RURAL POLICE STATION. REPTD. BY SPP

¶11

HIGH COURT OF KARNATAKA CIRCUIT BENCH, AT DHARWAD.

¶12

.. RESPONDENT

¶13

(BY SMT. SEEMS SHIVA NAIK, HCGP)

¶14

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SEC.401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT PASSED IN CRL.A.NO.123/2006 DATED 8.3.2012 PASSED BY THE LEARNED SESSIONS JUDGE FAST TRACK COURT II UTTAR KANNADA, KARWAR AND JUDGMENT AND ORDER OF CONVICTION PASSED IN CC NO.1948/2004 DATED 30.06.2006 PASSED BY THE LEARNED JMFC COURT II KARWAR AND ACQUIT THE PETITIONER IN THE INTEREST OF JUSTICE.

¶15

¶16

THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶17

O R D E R

¶18

This criminal revision petition is filed by the petitioner/accused being aggrieved by the judgment of conviction and sentence dated 30.06.2006 passed by the learned JMFC-II, Karwar (U.K.) in Criminal Case No.1948/2004 (hereinafter referred to as the ‘trial Court’, for brevity) and confirmed by the learned Sessions Judge, Fast Track Court-II, Uttara Kannada, Karwar in Criminal Appeal No.123/2006 dated 08.03.2012 (hereinafter referred to as the ‘first appellate Court’, for brevity) whereby the trial Court has convicted the accused for the offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’, for brevity) and sentenced to pay fine of Rs.1,000/- for the offence under Section 279 of IPC in default to undergo simple imprisonment for ten days and further sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for thirty days for the offence under Section 304A of IPC.

¶19

¶20

Heard the arguments of the learned counsel for the petitioner as well as the learned High Court Government Pleader for the respondent-State.

¶21

The rank of the parties before the trial Court is retained

¶22

for convenience.

¶23

The case of the prosecution in brief is that, the Circle Inspector of Police filed the charge-sheet against the accused for the offence punishable under Sections 279 and 304A of IPC. It is alleged by the complainant one Sri. Mohan Soma Gouda that he is running a pan shop near National Highway-17 near Malasa Hotel of Amdaalli. On 06.10.2004 at about 12.30 pm when he was sitting in his shop, he found a lady by name Sannu Chandra Gouda walking by the left side of the Ankola-Karwar Road. At that time, a car bearing registration No.KA-31/P-7799 being driven by its driver in a rash and negligent manner, dashed to Sannu Chandra Gouda from her backside. Due to which she was thrown to a distance of 50’ and died on the spot. After registering the case by the police in Crime No.93/2004, investigation was taken up by the CPI, who arrested

¶24

¶25

the accused and seized the vehicle. The dead body was subjected to postmortem examination and filed charge-sheet.

¶26

After taking cognizance, secured the presence of the accused. The trial Court read over the accusations to the accused. The accused pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, examined 9 witnesses and got marked 7 documents and after completion of the evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded. The incriminating evidence which were against the accused was read over. The case of the accused is one of total denial and contended that the deceased, after seeing the vehicle jumped and fell down and sustained injuries and he has not dashed to the victim. The accused did not lead any oral evidence.

¶27

The trial Court, after hearing the arguments of the learned counsel on both sides, found the accused guilty of the offence and accordingly convicted and sentenced the accused as stated above. Assailing the same, the accused approached the first appellate Court by filing an appeal which also came to be dismissed confirming the judgment of conviction and sentence passed by the

¶28

¶29

trial Court. Being aggrieved the impugned orders of the Courts below, the accused is before this Court.

¶30

Learned counsel for the petitioner strenuously

¶31

contended that the judgment of both the Courts below is not sustainable in law. The evidence of PWs.1 and 5 who are the alleged eyewitnesses are the relatives of the deceased and the presence of PWs.1 and 5 cannot be acceptable. PW.1 the complainant is running a pan shop business by the side of NH-17 near Malasa Hotel and he could not have seen the accident but he might have come after the accident. PWs.2 and 3 are the panch witnesses, who have not supported the case of the prosecution. The presence of PW-5 is suspicious. Both the Courts below failed to appreciate the evidence on record and the contention of the petitioner/accused that deceased herself without observing the traffic, was crossing the road and as per the evidence of PWs.1 and 5 the speed of the vehicle was low. It is the National Highway and the vehicles ply both ways and that the accident occurred purely due to the negligence of the deceased herself who crossed the road without observing the traffic and plying of the vehicles. Learned

¶32

¶33

counsel further contended that the evidence of PWs.1 and 5 is contradictory with respect to identifying the car, as, according to PW-1 it was a Maruti car but according to PW-5 it was a Indica car. But the vehicle involved was a santro car. Therefore, this aspect is not appreciated by the trial Court. Hence, prayed for allowing the petition.

¶34

Learned Government Pleader supports the impugned judgment of conviction and sentence passed by both the Courts below and contended that the evidence of PWs.1 and 5-eyewintesss have categorically stated about the accident. Postmortem report is not disputed by the accused. The death of Sannu Chandru Gouda is also not disputed. The sketch prepared by PW-8 clearly shows that there are eyewitnesses to the incident/accident. IMV report and the evidence of PW-9 show that the accident occurred not due to any mechanical defect. Considering the evidence on record, the trial Court as well as the first appellate Court has rightly convicted the accused and prayed for dismissal of the revision petition as the same does not call for interference.

¶35

¶36

Upon hearing the arguments of the learned counsel for the petitioner and the learned Government Pleader and on perusal of the records, the points that arises for consideration is:

¶37

Whether the judgments of conviction and sentence passed by the trial Court and upheld by the first appellate Court call for interference by this Court in the facts and circumstances of this Court?

¶38

On perusal of the records especially the trial Court records reveal that the deceased Sannu Chandra Gouda met with an accident, sustained injuries and died on the spot at NH-17. The inquest panchanama Ex.P-3 and the evidence of PW-1 go to show that the death occurred due to the impact of the accident. Ex.P-4 is the postmortem examination report which was marked with consent which reveals that due to the injuries sustained by Sannu Chandru Gouda she died. Exs.P5 and P6-the sketch prepared by the police as well as the Engineer go to show that the vehicle was coming from Ankola to Karwar and the dead body was found in the middle of the road and the impact was near the foothpath. The accused under Section 313 Cr.P.C. statement admitted that he was driving the car and the deceased herself jumped and fell down which shows

¶39

¶40

he has admitted the fact of death of the deceased on the road when he was driving the car. The evidence of PWs.1-the complainant and PW-5 who are the eyewitnesses have stated that the car was coming from Ankola to Karwar and the deceased was standing by the side of the road and the vehicle hit the deceased and she was thrown out but in the cross-examination it was suggested by the counsel that the deceased was crossing the road without observing the traffic and due to which, the accident occurred. PW-1 denied the same and the same suggestion was put to PW-5, who is another eyewitness, who has also denied the same. The fact remains that the body of the victim was thrown in the middle of the road and the car was passing from Ankola to Karwar and the car was parked on the left side of the footpath. Though PWs.1 and 5 stated that the car was driven by the accused in a speed manner, but in the cross examination, they have admitted that it was a Highway and other vehicles were also plying on the road with the same speed. Admittedly, it is a National Highway leading to Karwar-Ankola. The vehicles pass on both sides. The distance between the pan shop of PW-1 is almost more than 70’ from the impact and a bus stop is also situated almost about 36’ from the

¶41

¶42

place of impact. Except the evidence of PWs.1 and 5, the police have not examined any person from the Malasa Hotel which is situated on the left side of the road where the pan shop of PW-1 is situated on the opposite direction which leads from Karwar to Ankola. The accident occurred on the left side of the road leading from Ankola to Karwar. The shop of PW-1 is situated more than 60 feet from the place of occurrence which reveals that definitely PW-1 could not have seen the accident but might have come to know immediately after the occurrence of the accident. The suggestion made to PWs.1 and 5 by the accused that the dead body of the deceased was lying on the middle of the road clearly corroborates that the accident might have occurred on the middle of the road when the deceased was crossing the road without observing the vehicle coming from Ankola to Karwar. The sketch prepared by PW-7-Engineer as well as the PW-8-police as per Exs.P-5 and P-6 clearly suggest that the accident occurred on the middle of the road when the victim was crossing the road. The Court can presume that the accident might have occurred only on the middle of the road when the deceased was crossing the road.

¶43

¶44

Death is not in dispute. The evidence of PW-9 and

¶45

Ex.P-7 reveals that the accident occurred not due to any mechanical defect. However, Motor Vehicles Accident Report shows left side front portion and front bannet were dent. Its left headlight was damaged and broken left front portion body shape was damaged and the brake system was found in order. The dent on left side front portion bannet shows the car hit to the deceased on the left side of the car and the dead body fell on the right side of the car which reveals that the accident occurred due to contributory negligence on the part of the deceased also. Both the Courts below have not considered this aspect while appreciating the evidence. That apart, there is discrepancy in identifying the car as according to PW-1 it was Maruti car and according to PW-5 it was a Indica car but admittedly, it was a Santro car. However, by looking to the facts and circumstances of the case, the dead body was lying on the middle of the road as the deceased was crossing the road and thereby the Courts below could not have opined and found the accused guilty and solely responsible for the rash and negligent driving in causing the accident. Hence, benefit of doubt should have to be extended to the accused and the judgment of the trial

¶46

¶47

court as well as the first appellate Court has to be interfered with for not properly appreciating the evidence on record and the impugned judgment of conviction and sentence is liable to be set aside.

¶48

10. Accordingly, I pass the following order.

¶49

The Criminal Revision Petition is allowed. The judgment of conviction and sentence dated 30.06.2006 passed by the learned JMFC-II, Karwar (U.K.) in CC No.1948/2004 and confirmed by the learned Sessions Judge, Fast Track Court-II, Uttara Kannada, Karwar in Criminal Appeal No.123/2006 dated 08.03.2012 for the offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860, is hereby set aside. The accused is acquitted of the offence under Sections 279 and 304A of IPC.

¶50

Bail bond stands cancelled.

¶51

Fine amount deposited, if any, shall be refunded to the

¶52

accused.

¶53

kmv

Ganesh S/O Anant Acharya v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Ganesh S/O Anant Acharya v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Fayaz @ Fhayu S/O. Abdul Sab Tailar Vs State of Karnataka

Ashok S/O. Late Sathyavanta Vs the State of Karnataka

Santosh S/O Vittal Badiger Vs State of Karnataka

Kesarimal S/O. Lakmaji Jain Vs Zakirahameds/O. Davalsab Kanavi

Balchandra Madev Karikantra Vs Uday Vaman Nayak

Kalappa S/O Dodda Eranna Vs State of Karnataka