Allowed

Abbasali S/O. Allisab Bidari v. State of Karnataka

Karnataka HC18 Jul 2022CRL.RP/2063/2013

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Karnataka acquitted the petitioner accused of driving rashly and negligently causing death (Sections 279 and 304A IPC). The court found that the trial and appellate courts erred in accepting evidence from witnesses who arrived at the accident scene after the incident had occurred, thereby failing to prove negligence beyond reasonable doubt.

What did the court decide?

Conviction and sentence for Sections 279 and 304A IPC set aside; accused acquitted; bail bonds cancelled; fine ordered to be refunded.

Abbasali S/O. Allisab Bidari Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JULY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO. 2063 OF 2013

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BETWEEN:

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ABBASALI S/O. ALLISAB BIDARI AGE: 42 YEARS, OCC: DRIVER, R/O. JAINAPUR, TQ. BIJAPUR.

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… PETITIONER

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(BY SRI. K. H. BAGI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, PSI, SAVALGI P.S, JAMAKANDI, REP BY SPP.

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... RESPONDENT

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(BY SMT. GIRIJA S. HIREMATH, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. 1973, SEEKING TO SET ASIDE THE JUDGMENT DATED 31.12.2012 PASSED BY THE FAST TRACK COURT, JAMAKANDI IN CRIMINAL APPEAL NO.11/2012 DISMISING THE APPEAL THEREBY UPHOLDING THE ORDER DATED 23.01.2012

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PASSED BY COURT OF PRL. CIVIL JUDGE AND JMFC, JAMAKHANDI IN C.C. NO.16/2010 AND CONSEQUENTLY THE PETITIONER BE ACQUITTED.

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

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O R D E R

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This revision petition is filed by the petitioner-applicant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) for setting aside the judgment of conviction and order of sentence passed by the Principal Civil Judge and JMFC, Jamakandi in C.C.No.16/2010 for the offences punishable under Sections 279 and 304A of Indian Penal Code (for short ‘IPC’) and the same was up held by the Fast Track Court, Jamakandi (hereinafter referred to as ‘first Appellate Court’) in Criminal Appeal No.11/2012 dated 31.12.2012.

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Heard the arguments of learned counsel for the

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petitioner and the learned High Court Government Pleader.

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The ranks of the parties before the Trial Court is retained for the convenience of the Court.

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The case of the prosecution is that the Savalgi Police Station, Jamakandi filed the charge sheet against the petitioner/accused for the offences punishable under Sections 279 and 304A of IPC alleging that on 15.10.2009 near Kawatagi Cross, near the land of the complainant, the accused being the driver of the tractor bearing No.AP-28/U-3686 and trailer numbers KA-28/T-833 and KA-28/TA-2503 drove the same in rash and negligent manner so as to endanger human life and dashed to the son of the complainant Gaibusab Sikhandar Kudachi who was coming on bicycle from the opposite direction, due to which he sustained injuries and died on the spot. After registering the case, the Police arrested the petitioner, he was released on bail and the charge sheet came

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to be filed by the Police. The plea was recorded in which the accused denied the charges and claims to be tried. Accordingly, the prosecution examined 12 witnesses and got marked 14 documents at Ex.P.1 to P.14. After completion of the evidence, the statement under Section 313 of Cr.P.C. has been recorded. The accusations are one of the total denial by the accused and he entered in defense by examined himself as DW-1, but no documents were marked. After filing the written arguments by the accused counsel, the Trial Court has passed the judgment of conviction and sentence to undergo simple imprisonment for six months and imposed fine amount of Rs.8,000/- for the offence punishable under Section 304A of IPC and sentenced to undergo for simple imprisonment for three months and imposed fine amount of Rs.1,000/- for the offence punishable under Section 279 of IPC. Being aggrieved by the same, the petitioner approached the Sessions Judge in Criminal Appeal No. 11/2012, which came to be dismissed. Hence, the petitioner is before this Court.

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The learned counsel for the petitioner contended

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that both the Courts below committed the error in conviction of accused, even though there is no eye witness to the incident. They projecting the PWs-2, 6, 7, 8 and 11 as witnesses they are came to the spot after the accident. Even the PW-11 said that he came to the spot at 3.00 p.m. that the accident was occurred on 1.30 p.m. The PW-2 father of the deceased was in the land, after the accident he came to the spot by that time he found the accused on the spot, though he has said in the complaint at Ex.P.3 as eye witness but he has not seen the accused on the spot, he has seen him only in

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in the Police Station and even when he has not seen the accused. PW-7 who is the uncle of the deceased also not seen the incident, he came to the spot after hearing noise of the people. There is no evidence to show the accused was driven his tractor in rash and negligent manner. The case of the accused is that the deceased came in bicycle after seeing the child he stopped the tractor, the child himself fell down and

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caused injuries on the head which cause to death. Suspecting the case, the evidence of DW-1 categorically stated that there is no negligence on his part. The same was not considered by both the Courts below and hence they convicted the accused. Hence he prayed for allowed the petition.

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Per contra, the learned High Court Government Pleader supported the case of the prosecution and judgment passed by both the Courts below and contended that PW-2 the father of the deceased and complainant-eye witness and his wife PW-7 also the eye witness, PW-6 brother also eye witness apart from PW-10 and 11 eye witnesses and categorically stated about the accident and rash and negligent driving by the accused. Therefore, considering the aspects the Trial Court rightly convicted the accused.

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The learned counsel for the petitioner also

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contended that the sketch at Ex.P.3 does not reveals the accident spot except the road and no spot. The place of

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accident was not shown in the sketch through which the accident was not proved.

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Having heard the both counsel and perused the

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records.

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On perusal of the records of the same as per the Ex.P.9 post mortem examination report the child was aged about 13 years was sustained grievous injuries and died due to cardio-Respiratory failure. The death of the deceased due to the injuries is not in dispute. However the doctor was not examined by the prosecution, where the post mortem examination report reveals there was injury and brain injury due to which cardio-Respiratory failure and caused death. There was one injury that is on the CLW over parieto occipital area spinal shaped with under laying bone fractured and bone chip missing due to which there was bleeding from both nostrils and caused death. On coming to the evidence of PW-1 who is the punch witness not supported the case of the

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prosecution. PWs-3 and 4 seizure punch witnesses to the spot punchanama at Ex.P.4 were also turned hostile. PW-10 punch is also turned hostile. PW-12 is the photographer was stated about the taking photographs of the deceased. The remaining witnesses are PW-2 who is the father of the deceased, PW-6 the brother of the complainant and PW-7 the wife of the complainant, PW-10 and 11 are the alleged eyewitness and PWs-8 and 9 police witness.

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PW2-father of the deceased has stated in his evidence that he came to the spot after hearing the noise and he came to know through his relative i.e., his son-in-law and he also stated that he has not seen the accused on the spot. Some body written the complaint, he has signed that and he do not written the complaint and he came to the spot accused was not there only vehicle was there. Perhaps in Ex.P.3 he has stated he is present at the time of accident but in the evidence he has stated he came to the spot after he came to know about the accident through his son in law. Therefore,

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the question of seeing this accused by the eye witness is not correct, as per his evidence he came to the spot after coming to know about the accident and he has not seen the accident. Therefore relying upon the evidence of PW-2 by the Trial Court is not correct.

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PW-6 is the brother of the complainant. He has stated about the incident that the tractor was proceeding towards Kavatagi. The tractor came in a high speed and that the injury sustained by the deceased was on the head. Immediately after the accident, he had gone and seen the accident and the accused was driving the tractor. He has stated that when the accident occurred it was in the afternoon at 1.00 to 1.30. In the cross-examination, he has stated that

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the spot is approximately 300 meters away from Kavatagi. When the accident occurred, he was in his land and supplying the water in the land. He has further stated that his land is 2 km away from Kavatagi cross and the road is a kachcha road and tar has gone and it has become kachcha road. He admits

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that as he was in the land, he could not see how the accident occurred. He came to know about the accident by the people gathered on the spot. He has further stated that the driver of the tractor ran away from the spot leaving vehicle there itself. It shows that this witness was not in the spot and he came to the spot only after the accident.

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Likewise, the evidence of PW-7 though she also stated that at the time of incident, she came to the spot and at that time it was 1.30 p.m. She could not see the registration number of the vehicle. She says that her house is situated in the farm. After the accident, she went and saw the accident. She also stated that she did not know how the accident had occurred which reveals that this witness was not present at the time of accident. Therefore, presence of this witness is doubtful. Therefore, her evidence cannot be acceptable.

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PW-8 and PW-9 are the Police witnesses who after the investigation filed charge sheet.

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PW-10 is stated to be an eyewitness. He has stated that he has seen the accident. In the crossexamination, he has stated that he was in the land and he was watering the land. He came to know the accident after hearing the voice of some ladies and when he went to the spot, a child was already dead which reveals this witness had also went to the spot after the accident and not seen the accident.

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PW-11 is the owner of neighbouring land of the complainant. also said to be a eyewitness to the accident. He has also stated in the examination-in-chief that deceased was coming on the bicycle from the village to the farm. At that time accident was occurred and it was 1.30 p.m. In the crossexamination, he has stated that after the accident he came to know from the lady who was going on the road that the son of the complainant has met with accident. He went to the spot

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and saw the accident. He came to know that the accident had occurred due to the negligent driving of the tractor and accused was already ran away from the spot. It reveals that this witness also went to the spot after the accident.

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Considering the all these evidences which clearly reveal that all the witnesses came to the spot only after the accident but none of the witnesses was present at the spot and seen the accident. As the lands were situated nearby the spot and the eyewitnesses were working in the land, they all were projected as eyewitnesses by the Police. Considering the evidence of these witnesses, the trial Court has committed error in holding that they are the eyewitnesses.

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The accused has entered witness box and stated in the statement recorded under Section 313 of Cr.P.C. that how the accident occurred and he has not committed any mistake. He has categorically stated that a child came in a bicycle and on seeing the child was coming, the accused stopped his

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tractor. Thereafter, the child crossed the tractor and the accused saw the same in his mirror of the tractor. Then the said child fell down on the gravel stones and the accused went to see him. As there was bleeding in the nose of the child, the accused went back and brought water. He poured water on him and the child started to struggling. Then the accused saw that some ladies were coming for coolie work and nobody were there. The child sustained head injury due to which he died on the spot. Thereafter all the witnesses came to the spot and then he ran away from the spot. This aspect of the statement is not seriously disputed by the prosecution.

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That apart, Ex.P-8 a sketch prepared by the Investigating Officer which reveals about the spot of accident and arrival of the tractor and bicycle of the deceased. Simply it says about the lands situated and nothing else mentioned about the place of occurrence.

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That apart, panch witnesses PW-3, PW-4 and PW-5

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have not supported the case of the prosecution.

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Considering these aspects, I am of the view that normally the concurrent findings of both the Courts below should not be interfered by this Court, however, the evidences of the witnesses were wrongly read by the trial Court and the

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first appellate Court and accepted the same as all the witnesses came to the spot only after the accident and taking the advantage of the vehicle parked, the complaint was lodged. Accordingly, the police filed charge sheet projecting these witnesses as eyewitnesses. Therefore, the benefit of doubt is available to the accused and hence, he is entitled for acquittal. Accordingly, I pass the following order.

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The judgment of the trial Court convicting and sentencing the accused for the offence punishable under Sections 279 and 304A of IPC and upheld by the first appellant is set aside. The petitioner/accused is acquitted for

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the offence under Section 279 and 304A of IPC . His bail bonds stand cancelled.

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Any fine amount recovered by the accused is

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ordered to be refunded to him.

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Sd/JUDGE

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SMM-Para 01 to 10 NAA- Para 11 to till end

Abbasali S/O. Allisab Bidari v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Abbasali S/O. Allisab Bidari v. State of Karnataka

Case brief

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