Allowed

Balchandra S/O Shivaram Bhandari v. the State of Karnataka

Karnataka HC22 Feb 2021CRL.RP/2129/2012

Case brief

AI extract

What is this about?

This Criminal Revision Petition sought to set aside a conviction for rash and negligent driving causing death. The High Court allowed the petition, holding the lower courts' findings perverse as the evidence indicated the deceased and injured cyclist came onto the wrong side of the road, entitling the accused to the benefit of doubt.

What did the court decide?

The judgment of conviction and sentence of the trial court and appellate court is set aside and the accused is acquitted of the offences.

Balchandra S/O Shivaram Bhandari Vs the State of Karnataka — Karnataka HC (2021) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^nd DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2129/2012

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BETWEEN:

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BALCHANDRA, S/O SHIVARAM BHANDARI AGE 33 YRS, OCC: DRIVER, R.O GOLIMAKKI, SIDDAPUR TALUKA DIST. KARWAR.

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.. PETITIONER

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(BY SRI.M.M. PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REP. BY PUBLIC PROSECUTOR UTTARA KANNADA, KARWAR.

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.. RESPONDENT

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(BY SMT. SEEM SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF R/W SECTION 401 OF CR.P.C. PRAYING TO SET SIDE THE JUDGMENT AND ORDER DATED 6.1.2012 PASSED BY THE PRL. JUDICIAL MAGISTRATE FIRST CLASS, SIRSI IN CRIMINAL CASE NO.32/2010 AND JUDGMENT AND ORDER DATED 10.5.2012 PASSED IN CRIMINAL APPEAL NO.7/2012 BY THE FAST TRACK COURT SIRSI AT SIRSI, AND PASS SUCH OTHER RELIEF/S WHICH THIS COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 17.02.2021 AND COMING ON FOR PRONOUNCEMENT

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THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Criminal Revision petition is filed by the accused under Section 397 of the Code of Criminal Procedure, 1973, for setting aside the judgment of conviction and sentence passed by the learned Principal JMFC, Sirsi (hereinafter referred to as the ‘trial Court’) in C.C. No.32/10 dated 6.1.2012 and upheld by the Fast Track Court, Sirsi (hereinafter referred to as the ‘first appellate Court’) in Crl.A. No.7/2012 dated 10.05.2012 whereby the trial Court has convicted the accused for the offence punishable under Sections 279, 337 and 304A of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’, for brevity).

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Heard the arguments of the learned counsel for the petitioner/accused and the learned High Court Government Pleader for the respondent-State.

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The case of the prosecution is that, the CPI, Sirsi, filed the charge sheet against the accused under Sections 279, 337 and 304A of IPC. It is alleged that, on 30.11.2010 at 5.30 pm, at

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Keregundi cross of Swarnavalli Math, the accused being the driver of the 407 tempo bearing registration No.KA.15/2302 drove the vehicle in a rash and negligent manner came from Sirsi towards Swarnavalli mutt and dashed to the Achut-deceased and one Pinak, who were riding the bicycles due to which Pinak sustained simple injuries and Achut sustained grievous injuries. Achuta was taken to the hospital, who was declared dead. A complaint came to be lodged and after investigation charge sheet was filed against the accused. The accused appeared before the Court and denied the charges and was tried by the trial Court.

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The prosecution, to prove its case, examined seven witnesses and got marked ten documents and one material object. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. The accused denied the entire evidence adduced against him and contended the deceased and the injured themselves came down from the upper gradient road and dashed to the tempo and fell down on a stone, thereby, he sustained injuries. But he has not chosen to lead any defence evidence. After hearing the arguments,

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the trial Court found the accused guilty and convicted and sentenced as under:

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“ The accused is sentenced to pay a fine of _1,000/- for the offence under Section 279 of IPC and in default of payment of fine, to undergo simple imprisonment for two months; further sentenced to pay fine of_ 500/- in default of payment of fine to undergo simple imprisonment for one month for offence under Section 337 of IPC and further sentenced to undergo simple imprisonment for two years and to pay fine of ` 5,000/- in default of payment of fine to undergo further simple imprisonment for six months for the offence under Section 304A of IPC.”

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Assailing the same, the accused preferred an appeal before the first appellate Court in Crl.A. No.7/2012 which came to be dismissed on 10.5.2012 confirming the judgment of conviction and sentence passed by the trial Court. Assailing the same, the petitioner is before this Court.

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The learned counsel for the petitioner has contended the trial Court as well as the first appellate Court committed an error in accepting the evidence of PWs.3 and 4. They are not eyewitnesses to the accident. The complainant also came later. He

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is also not an eyewitness. The trial Court has not properly

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appreciated the evidence on record. The deceased and PW.3, i.e. the children directly came on the middle of the road and they themselves dashed to the vehicle and fell down. The sketch produced by the police goes to show that the accused is not guilty of negligence. It is a curve road and the children came on bicycle from up gradient to down gradient cross road and dashed to the tempo. Therefore, there is no negligence on the pat of the petitioner/accused. Hence, prayed for acquitting the accused.

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Per contra, learned High Court Government Pleader supported the judgment passed by both courts below and contended that the evidence of PW-3 who is the rider of the bicycle has been corroborated by the evidence of PW-4-eyetwintess to the accident and also corroborates the evidence of PW-1 and panch witness PW-2. All of them have supported the case of the prosecution. The accused did not lead any defence evidence. Government Pleader further contended the accused was involved in 3 more such cases and is acquitted and he is Habitual Offender in causing the accident. Hence, there is no reason to interfere with the

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judgment of the Courts below. Hence, prayed for dismissing the revision petition.

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

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Whether the trial court justified in convicting the Accused for the offences punishable under Sections 279, 337 and 304A of IPC, which calls for interference?

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Perused the record. It is well settled by the Hon’ble Apex Court that the concurrent findings of the trial Court and he first appellate Court cannot be ordinarily interfered by the High Court unless the finding of the trial Court is perverse and against the evidence on record.

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The prosecution examined totally 7 witnesses. PW-1 is the complainant who came to the spot immediately after the accident and shifted the injured and the deceased to the hospital where Achut was declared dead and he lodged the complaint as per Ex.P-1 and he has stated in the compliant that he was following

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PW-3 and the deceased who were riding the bicycle. The deceased Achut was pillion rider and after the accident, he shifted the injured in 108 ambulance. During the cross examination, it is suggested by the accused that the deceased and the rider themselves came and dashed to the vehicle. The cycle and tempo had stopped on the spot adjacent to each other. The impact was on the middle of the road. The cycle dashed to the left front side of the tempo. PW-1 admitted there is a curve near the spot and the cyclist were coming on the left side of the road and normally the opposite vehicle should come on the right side of the road. PW-1 admitted the same. He further admitted that, when suddenly a vehicle comes in the center of the road, the accident could occur. The same is admitted by PW-

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However, the suggestion made by the accused that the PW-3 himself came and dashed to the tempo of the accused is denied by him.

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PW-3 who is the rider of the bicycle is a child at the time of the accident. He has stated that he along with the deceased were riding bicycle form Sonda Math to Sonda cross. At that time, a tempo came in opposite direction without making horn

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and dashed to the cycle, due to which the pillion rider sustained injury and he was shifted in Omni vehicle and the accident occurred due to fault of the tempo driver. In cross examination, he admitted that the place of accident is down gradient road and there was a curve and he has stated that, immediately after the impact, he do not know where the cycle had gone. The tempo dragged him for 20 feet but the deceased fell down on the spot. He has denied that the cycle came and dashed to the left side of the tempo and further, he admits, he was on the left side of the road and the tempo came and dashed to him and he says, the tempo dashed to cycle on the right side of the tempo and further denied that, after the accident, people came and assembled and the driver also came down. But he has denied that, he came by the bicycle on the down gradient road and without observing the tempo coming on the main road and dashed to the tempo and accident has occurred due to his mistake has been denied by him.

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PW-4 is another alleged eyewitness, who followed the

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tempo of the accused and he came down after the accident. His evidence shows he was coming on the back side of the tempo and

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after causing the accident, he got down and seen the accident. Therefore, he cannot be said that he is eyewitness. PW-1 also came to the spot and saw PW-3 and deceased belongs to Sonda Math. Therefore, these two persons cannot be considered as eyewitnesses to the accident. The only witness is PW-3 and on perusal of the sketch-Ex.P-9 and hand sketch-Ex.P-3 differs from each other. Ex.P-9 is a fair sketch obtained by the Investigating Officer through PWd Engineer but without examining PWD Engineer, this document cannot be acceptable. PW-7 is the Investigating Officer, who prepared Ex.P-3 where he has shown the Swarnalli Math road and Sirsi road and the tempo was coming from Sirsi to Swarnavalli Math road and the children came from left side of the road i.e., left side of the tempo and dashed to the tempo. If at all a person riding the bicycle from the opposite direction, the cyclist must have on the right side of the tempo and if there is any accident, the impact should be on the right side of the tempo but not on the left side. But the scene of occurrence-Ex.P-3 shows, the tempo was on the right side and the bicycle was on left side. The accident took place on the middle of the road in a curve which reveals that PW3 and the deceased came on bicycle from up

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gradient road towards the down gradient road. The tempo was coming from downwards to upwards and the tempo was on the right side and bicycle was on the left side which is nothing but the cyclist came by wrong side and hit the tempo. The same is corroborated with Ex.P5-the Motor Vehicle Inspection report which shows there are two damages to the tempo. First one is, front left side indicator damaged and front left side bumper scratched which goes to show that the children rode bicycle on the road by coming from wrong side and dashed to the tempo. And the cyclist while avoiding the impact could have turned the cycle and the same was dashed to the deceased, who was pillion rider was hit with the tempo and the rider of the motorcycle sustained only simple injuries as per Ex.P-8 where as the deceased sustained more injuries on the head as per Ex.P-6-post mortem report which clearly goes to corroborate the contention of the accused that, the deceased and PW-3 came and dashed to the tempo by coming on the wrong side i.e. left side of the tempo.

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The accused also stated in 313 of Cr.P.C. statement that the deceased and PW-3 came and dashed to the tempo when

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he was coming from Sirsi. Therefore, the evidence of these witnesses and admission in the cross-examination of PWs.1 and 4 were not properly appreciated by the trial Court. On the other hand, it has presumed that the accused was involved in 3 more cases and he was acquitted and therefore presumed to have committed the offence which is against the evidence on record. Even the first appellate Court has not properly re-appreciated the evidence on record and gave a perverse finding holding that the accused was guilty of the rash and negligent driving. As the accident was admitted, the death of the Achut was admitted and sustaining injuries by PW-3 also admitted but the records shows that accident occurred purely due to fault of the cyclist PW-3 and pillion rider Achut, aged about 9 years who came on wrong side and hit due to which PW-3 sustained injury and Achut died on the way to the hospital. Hence, benefit of doubt had to be extended and the trial Court should have acquitted the accused instead of convicting the accused. Therefore, I hold the Courts below were not justified in convicting the accused which is a perverse finding against the evidence on record and is liable to be set aside.

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Accordingly, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by the learned Principal JMFC, Sirsi, in C.C. No.32/10 dated 6.1.2012 and upheld by the Fast Track Court, Sirsi, in Crl.A. No.7/2012 dated 10.05.2012 for the offence punishable under Sections 279, 337 and 304A of the Indian Penal Code, 1860, is hereby set aside. The petitioner/accused is acquitted of the aforesaid offences.

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His bail bond stands cancelled.

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Fine amount, if any paid, is ordered to be refunded to him.

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Sd/JUDGE

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kmv

Balchandra S/O Shivaram Bhandari v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Balchandra S/O Shivaram Bhandari v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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