Dismissed

Sri H B Gangadharaiah v. State by Kamakshipalya

Karnataka HC19 Aug 2021CRL.RP/819/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging conviction and sentence for a rash and negligent driving accident resulting in death. The court affirmed the lower courts' findings, finding no material illegality or perversity in the evidence proving the accused's guilt.

What did the court decide?

Revision petition dismissed; judgment of conviction and sentence affirmed.

Sri H B Gangadharaiah Vs State by Kamakshipalya — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR CRL. R. P. NO.819 OF 2012

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BETWEEN:

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SRI H.B.GANGADHARAIAH S/O.BORAIAH AGED ABOUT 47 YEARS NO.56, KEBBEHALLA,RAJEEV GANDHI NAGAR,OPPOSITE OF SUNKADAKATTE SAMUDAYA BHAVAN, BENGALURU – 560 091

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... PETITIONER (BY SMT.RAKSHITHA V.N FOR SRI K.RAGHAVENDRA RAO, ADVOCATES)

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AND:

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STATE BY KAMAKSHIPALYA TRAFFIC POLICE STATION BENGALURU – 560 019 ... RESPONDENT (BY SMT.RASHMI JADHAV, HCGP)

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THIS CRL.R.P IS FILED U/S 397(1) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF SENTENCE AND CONVICTION DT 18.10.2011 PASSED BY MMTC-II BENGALURU IN CC.NO.405/2010 AND SET ASIDE THE JUDGMENT OF CONVICTION DT 18.07.2012 PASSED BY P.O, FTC-8 BENGALURU IN CRL.A NO.757/2011 FOR THE O/P/U/S 279,304A IPC, 134(A)&(B) R/W SEC.187 OF THE IMV ACT AND ACQUIT PETITIONER

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

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ORDER

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The Petitioner-Accused lays a challenge to the Judgment of conviction and order of sentence dated 18.10.2011 in C.C. No.405/2010 passed by the Metropolitan Magistrate Traffic Court-II, Bangalore, convicting the accused person for the offences punishable under Sections 279, 304-A of IPC and Section 134(a&b) read with Section 187 of IMV Act and sentenced him to pay fine of Rs.1,000/- in default of payment of fine to undergo simple imprisonment for 1½ months for the offence punishable under Section 279 IPC; to undergo simple imprisonment for a period of six months and pay fine of Rs.3,000/- for the offence punishable under Section 304-A IPC in default of payment of fine to undergo simple imprisonment for three months and to pay fine of Rs.500/- for the offence punishable under Section 134(a&b) read with Section 187 of IMV Act in default of payment of fine to undergo simple imprisonment for a period of six months.

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2. Said Judgment of conviction and order of

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sentence having been taken up in appeal and was dismissed by the order dated 18.07.2012 in Crl. A. No.757/2011 by the Fast Tract No. VIII, Bangalore City by confirming the Judgment of conviction and order of sentence passed by the trial court.

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3. The case of prosecution is as follows:

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On 25.02.2010 at 10.30am the accused was driving Goods Auto bearing Registration No.KA-02 C- 5977 and while driving the vehicle through Kabbehallai Main Road from Rajeev Gandhi Circle, Sunkadakatte towards Kottegepalya of ring road drove the vehicle in a rash and negligent manner and negligently negotiated the curve taking the vehicle into extreme right of road and dashed against on coming two wheeler TVS XL bearing Registration No. KA-41 L-5113 causing severe injuries to the rider by name Vishwanath.N. Due to the impact of the said accident the victim succumbed to the injuries. Further, the accused failed to inform the police and provide medical assistance to the injured.

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In this regard a complaint came to be registered against the accused. On receipt of the complaint police registered a case, visited the spot, prepared the mahazar and recorded the statement of witnesses. After completion of investigation a charge sheet is laid for the offences punishable under Sections 279, 304-A of IPC and Section 134(a&b) read with Section 187 of IMV Act against the Accused.

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After issuance of summons, the accused appeared before the Court and substance of accusation was read over to him and his plea was recorded. Accused pleaded not guilty and claimed to be tried.

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In order to prove the guilt against the accused, the prosecution in all examined 5 witnesses as PW1 to 5 and got marked 9 documents as Ex.P1 to P9. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the incriminating material evidence and did not choose to lead any evidence or produce any documents in his favour. After considering the evidence both oral and

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documentary placed on record the trial court convicted the accused for the aforesaid offences.

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Being aggrieved by the orders passed by the trial court, the matter being taken up in appeal, the Appellate Court after re-evaluation and re-analysis the entire evidence placed on record, having not found any material to interfere in the matter dismissed the appeal filed by the accused and confirmed the Judgment of conviction and order of sentence passed by the trial court. Hence, challenging the same the accused is before this Court in this Petition.

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Heard Smt Rakshitha.V.N., appearing on behalf of Sri K.Raghavendra Rao, learned counsel for appellant and Smt. Rashmi Jadhav, learned High Court Government Pleader for respondent – State.

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It is the vehement contention of the learned counsel for the petitioner – accused that the impugned order is illegal, arbitrary, unjust and unreasonable as the Courts below have not considered the material evidence placed by the parties and accordingly same

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requires to be set aside. Learned counsel further contends that the evidence of PW1, 2 and also of PW5 – Investigating Officer with regard to accident and place of accident, is contrary to the material placed before the Court, which has been ignored by the Courts below while passing the impugned order. She further contends that the very place of occurrence of the accident is contrary to the statement made by PW1, 2 and 5 and also against the sketch which is produced by the prosecution at Ex.P6.

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Learned counsel further contends that witness examined by the prosecution are all interested witness and no independent witness is examined to prove the guilt of accused beyond all reasonable doubt as required in criminal jurisprudence. There is was no difficulty for the prosecution to examine any independent evidence in view of the fact that it is a busy road and many people would have been available at the place of occurrence.

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Learned counsel further contends that witness PW2 and 3 have stated in their cross examination that if a person falls while taking a turn at a curve, he could sustain the said injuries, ought to have been appreciated by the Courts below, which has not been done. She further contends that there is discrepancies in the evidence of the witness about the description of the vehicle as in the FIR it is stated as Tempo and PW2 says it is an Auto. Therefore, when there is no proper identification of the vehicle itself, the presence of the accused with his vehicle on the date of accident at the spot, which is questioned, has been ignored by both the Courts.

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Learned counsel further contends that accused was a passerby, who went with good intention to help the victim at the time of accident, but he has been implicated in the case. She further contends that prosecution has not been able to prove the guilt of accused beyond all reasonable doubt and the impugned order of conviction passed by the trial court and up held by the Appellate Court is perverse and has led to

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miscarriage of justice. On these submissions she prays to set aside the Judgment of conviction and order of sentence and set him at liberty.

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Per contra, learned High Court Government Pleader contends that there is no dispute with regard to accused being the driver of the said goods auto, who was driving the said vehicle. She further contends that due to rash and negligent manner of driving by the accused and due to his inability to negotiate the curve moved towards extreme right side of the road, thereby going wrong side of the road and dashed against the on coming two wheeler, which the victim was riding leading to the death of the rider of the vehicle and no injuries to the pillion rider was caused. She further contends that the prosecution has proved the guilt of the accused beyond all reasonable doubt by examining five witnesses.

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She further contends that PW1 is none other than the pillion rider, who was sitting pillion along with rider of the vehicle – Vishwanath, PW2 is another

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person who was traveling in another vehicle at a distance along with the deceased. These two witnesses – PW1 and 2 are the eye witnesses to the incident. PW1 and 2 have narrated in their evidence with regard to occurrence of the accident and the negligent driving of the driver of the goods auto, namely, accused herein. She further contends that the evidence of the prosecution has not been demolished by the defence at any stage and Judgment of conviction and order of sentence passed by the trial court and confirmation of the same by the Appellate Court is inconsonance with the material evidence and legal requirements under the provisions of law, implicating the accused rather inconsonance with each other. She further contends that the IMV report by the RTO as well as sketch prepared by the prosecution corroborate each other with regard to damage caused to the offending vehicle driven by the accused and that of the victim. Therefore, on the basis of this submission she pleads to reject the contention of the petitioner and dismiss the revision and

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confirm the Judgment of conviction and order of sentence of the Courts below.

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Having heard the learned counsel Smt. Rakshitha, appearing on behalf of petitioner – accused and learned High Court Government Pleader the point that arises for consideration is:

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“Whether the Courts below have committed any illegality or perversity in passing the impugned order and convicting the accused for the aforesaid offences?”

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It is seen from the records that there is no dispute with regard to the fact that the accused being a driver of the goods auto and driving the said vehicle on the said date, ie., on 25.02.2010, through Kabbehallai Main Road from Rajeev Gandhi Circle, Sunkadakatte towards Kottegepalya of ring road and a two wheeler TVS XL bearing Registration No. KA-41 L-5113 driven by one Vishwanath.N. along with a pillion rider – PW1, and PW2 in another vehicle, were coming from the opposite direction. There is no dispute with regard to the fact that the goods auto was driven by the accused on the said day while the victim met with accident causing

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injuries to rider of the TVS XL moped and victim was immediately shifted to the medical assistant and there after he succumbed to the injuries.

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A Complaint having been registered against the accused herein for the aforesaid offences, though the accused denied the incriminating evidence made at the time of recording statement under Section 313 Cr.P.C., nothing has been stated in his defence while an opportunity was provided to him and no evidence has been adduced on his behalf.

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It is, no doubt, trite law that in criminal jurisprudence, it is not for the accused to prove the case but it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. In the present case, the witnesses PW1, 2 and 5 have narrated the theory of accused having driven vehicle in a rash and negligent manner and dashed to the on coming vehicle TVC XL moped ridden by the deceased. Such evidence of the witnesses has not been dislodged by worthwhile cross examination by the defence, through there is clear

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evidence but nothing worthwhile is elicited in the cross examination to prove to the contrary.

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The evidence of PW3 – RTO Inspector, has stated with regard to damages that has been caused to the vehicle, which corroborate the statement made by evidence of PW1 and 2. Doctor has been examined as PW4, has stated in the PM report that the death is due to shock and hemorrhage due to the injuries sustained and said injuries could be sustained through a road traffic accident. PW5 is the Investigating Officer, who has conducted the investigation and nothing material has been elicited by defence to dislodge the theory of the prosecution.

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It is the vehement contention of the learned counsel for petitioner that death of the victim could have been caused by own fall rather than the negligence of the accused in driving the goods auto. The entire cross examination of the defence is pointing out towards the self infliction of the injuries to the victim by himself as rash and negligent manner of

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driving of the vehicle which he was riding. But unfortunately the defence was unable to point out the negligence attributable to the victim or pillion rider or even for that matter to the friend – PW2, who was in another vehicle. If it is the case of the accused that he was not at all involved in the accident and he was only a passer by driving towards that direction and stopped only to help the victim having sustained injuries in the accident, nothing prevented the accused from stating so in his statement recorded under Section 313 of Cr.P.C.

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Be that as it may, witness PW1 and 2, who are eye witnesses have identified the accused both at the Court and at the place of occurrence and this fact has not been controverted and no worthwhile evidence is elicited by the accused. Therefore, all these evidence and the materials placed has been appreciated by the trial court and the same is re-appreciated and reanalyzed by the Appellate Court and the points that are urged by the learned counsel for petitioner – accused before this Court have been considered by the Courts below with regard to vehicle of the accused

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having not been involved and also with regard to question of discrepancies of the vehicle direction as contended here and the negligence attributable to the accused. Considering all these material evidence Appellate Court having not found cogent reason to interfere with the material illegality dismissed the appeal and affirmed the Judgment of conviction and order of sentence.

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Having heard the learned counsel in detail, I am of the opinion that the trial court based on the material placed convicted the accused and the same after re-appreciation of the evidence, the Appellate Court confirmed the same.

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This Court cannot sit in the arm chair of the Appellate Court in re-appreciating and re-evaluating the evidence once again unless there is grave error or material irregularity pointing out the arbitrariness of either non appreciation / glaring evidentiary material discrepancies of the prosecution witnesses. Only under these circumstances revisional Court would interfere

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with the concurrent findings passed by both the Courts below.

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In the present case on hand, no such thing has been pointed out with regard to discrepancy in the evidence and material illegality or irregularity committed by both the Courts below. I do not find any reason to interfere with the well reasoned order passed by the Courts below. Accordingly, I pass the following:

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ORDER

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Revision petition is dismissed.

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The Judgment of conviction and order of sentence dated 18.10.2011 in C.C. No.405/2010 passed by the Metropolitan Magistrate Traffic Court-II, Bangalore, confirmed by the order dated 18.07.2012 in Crl. A. No.757/2011 by the Fast Tract No. VIII, Bangalore City, is hereby affirmed.

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Sd/JUDGE

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Sri H B Gangadharaiah v. State by Kamakshipalya

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Sri H B Gangadharaiah v. State by Kamakshipalya

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