Allowed

Sri.Srinivasa Reddy v. State of Karnataka

Karnataka HC24 Aug 2023CRL.RP/1186/2015

Case brief

AI extract

What is this about?

The High Court set aside a conviction and sentence for rash and negligent driving causing death. Finding the prosecution's investigation perfunctory and evidence deficient, the court acquitted the petitioner, ordering a refund of the fine and release on bail.

What did the court decide?

Revision petition allowed; judgments of conviction and sentence set aside; accused acquitted of charges under Sections 279, 337, and 304(A) IPC; bail cancelled and liberty granted; fine refunded if pa

Sri.Srinivasa Reddy Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO.1186/2015

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BETWEEN:

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SRI. SRINIVASAREDDY S/O. DODDA CHOWDAREDDY 54 YEARS, OCC: AGRICULTURE, MALAPALLI, CHINTAMANI TOWN-563125.

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…PETITIONER

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(BY SRI. VEERANNA G. TIGADI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, REP BY INSPECTOR OF POLICE, RURAL POLICE STATION, CHINTAMANI TOWN, CHINTAMANI-563125.

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…RESPONDENT

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(BY SRI. K. S. ABHIJITH, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S.397 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT IN CRL.A.NO.54/2014 DATED 15.10.2015 PASSED BY THE II ADDL. DIST AND S.J., CHIKKABALLAPURA AND THE JUDGMENT AND CONVICTION PASSED BY THE CIVIL JUDGE AND JMFC, CHINTAMANI IN C.C. NO. 34/2012 DATED 19.08.2014 AND TO ACQUIT HIM OF THE OFFENCE P/U/S 279, 338, AND 304A OF IPC.

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THIS CRIMINAL REVISION PETITION, COMING ON FOR HEARING ON 17.07.2023 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This petition is preferred by the accused/petitioner

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being aggrieved by the judgment of conviction and sentence passed against him in C.C.No.34/2012 dated 19.08.2014 by learned Civil Judge and JMFC, Chintamani for the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code (hereinafter referred to as the ‘IPC’ for brevity) and such a sentence being confirmed by learned II Additional District and Sessions Judge, Chickaballapur (sitting at Chintamani) in Criminal Appeal No.54/2014 dated 15.10.2015.

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The parties to this revision petition are referred as per their rank before the Trial Court for the purpose of convenience.

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Facts of the case:

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That complainant by name Shri. Muniswamy S/o. Late Bachappa gave a statement on 07.08.2011 at 8.40 p.m. by appearing before the Police Sub-Inspector, Rural Police Station, Chintamani stating that, on 06.08.2011 at about 8.00 p.m. when he was in his house,

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received a telephone call stating that, his brother’s son Narasimha Reddy S/o. Late Venkateshappa aged 30 years while moving on two wheeler on Hero Honda vehicle bearing registration No.KA-02/EQ-2670 at about 7.20 p.m. on that day met with an accident because of rash and negligent driving of a jeep bearing registration No.KA07/M-3174 being driven by its driver in rash and negligent manner near Madikeri cross on Srinivasapura, Chintamani road and has sustained injuries. The said injured was taken to government hospital for treatment.

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Immediately, he went to the scene of offence, noticed the damages caused to Hero Honda and went to the hospital and got the information that, one Narayan Reddy S/o.Venkat Reddy resident of Kalluru village and others have shifted Narasimha Reddy to NIMHANS hospital, Bengaluru. Therefore, complainant along with a resident of his village K.K. Manjunath S/o.Krishna Reddy went to Bengaluru to the said NIMHANS hospital. He noticed that, the said Narasimha Reddy was unconscious and was not able to speak. He had sustained head injuries and other injuries on other parts of the body.

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5. With these allegations a complaint came to be

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filed and a criminal law was set in motion. The said complaint was marked as Ex.P.1.

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The said complainant went to Chintamani Rural Police Station on 08.08.2011 at 8.30 a.m. and gave another statement stating that, the injured Narasimha Reddy because of the accidental injuries sustained by him inspite of giving treatment, he breathed his last at 3.30 a.m. on 08.08.2011. Initially the crime was registered in Crime No.219/2011 of Chintamani Rural Police Station for the offences under Sections 279, 337 of IPC. Based on further statement as per Ex.P.3, Section 304A of IPC was inserted.

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The Investigation Officer after completion of the investigation by following all the formalities of investigation, filed the charge sheet against the accused person for the offences punishable under Sections 279, 337 and 304A of IPC.

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To substantiate the allegations made in the charge sheet prosecution in all examined 13 witnesses and

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got marked as Ex.P.1 to P.12 and closed the prosecution evidence.

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On hearing the arguments and on evaluation of the evidence, the learned jurisdictional Magistrate found the accused guilty for the offences punishable under Sections 279, 337 and 304A of IPC and sentenced him to undergo simple imprisonment for 6 month for the offence punishable under Section 279 of IPC and to pay fine of Rs.1000/-, for the offence punishable under Section 337 of IPC he was sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.500/- and for the offence punishable under Section 304A of IPC, the accused was sentenced to undergo simple imprisonment for 1 year and to pay fine of Rs.8000/-. Out of fine amount so deposited Rs.7000/- was ordered to be released as compensation to the legal representatives of the deceased Narasimha Reddy with a direction to run the sentences concurrently with default sentence clause.

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This judgment was challenged by the revision petitioner by preferring an appeal before the II Additional District and Sessions Judge, Chickaballapur (sitting at

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Chintamani) in Criminal Appeal No.54/2014. Learned II Additional District and Sessions Judge, Chickaballapur (sitting at Chintamani) vide judgment dated 15.10.2015 confirmed the judgment of conviction and sentence passed against the petitioner/accused. This is how the revision petitioner is before this Court challenging both judgments by filing this revision petition.

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Arguments of counsel for the revision petitioner

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It is submitted by Shri. V.G. Tigadi, learned counsel for the revision petitioner/accused that, though the so called accident has taken place on 05.08.2011 at 7.20 p.m. but a complaint was lodged on 07.08.2011 which is fatal to the case of the prosecution. He submits that the revision petitioner/accused disputes the very accident. According to him no such accident has taken place. The Trial Court as well as the appellate Court have ignored the evidence that the motorcycle was driven in rash and negligently. There is no proper appreciation of the evidence by both the Courts. Whereby the revision petitioner was convicted based upon inadmissible

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evidence. The very sentencing of the accused for the offences punishable under Sections 279, 337 and 304A of IPC is illegal.

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It is further submitted that on perusal of the evidence on record by the prosecution, most of the witnesses have been turned hostile, even then the Trial Court has passed sentence illegally and perusal of the sketch as well as the motor vehicle report, find no break marks at the scene of the occurrence and motor inspector being a material witness was not examined. The very nature of damages caused to the jeep indicates that there was no accident at all in the manner alleged by the prosecution. If really a jeep had dashed against the motorcycle, the damages to the motorcycle would have been possible. There were not damages to the jeep. There was immediate shifting of both the vehicles to the police station compound. He submits that, it was a hasty decision of Investigation Officer to shift the vehicles to the police station. He further submits that, there were no corresponding damages to the jeep. Despite all these lacunas , the conviction and sentence order was passed by

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the Trial Court. He further submits that, death must be a direct result of accident. According to his submission the ingredients of Sections 279, 337 and 304A of IPC are not fulfilled by the prosecution. Therefore, he submits that accused is entitled for acquittal. He prays to set aside both the judgments by allowing this revision petition.

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As against the submission, learned Additional State Public Prosecutor submits that, the trial court and the first appellate Court have rightly appreciated the evidence and have rightly convicted and sentenced the accused. In support of his submission he relies upon various evidences placed on record by the prosecution. He justifies the findings of the Trial Court in arriving at the conclusion. He prays to dismiss the revision petition.

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I have given my anxious consideration to the arguments of both the sides. Perused the records.

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The point that would arise for my consideration is:

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(i) Whether the Trial Court and the first appellate Court have committed any factual or legal error in finding the accused guilty for the

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offences leveled against this

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petitioner/accused?

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Before adverting to the other aspects of the

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case let me analyze the admitting the facts by both the side.

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A complaint was lodged as per Ex.P.1 initially on 07.08.2011 at 8.40 p.m. alleging that, because of rash and negligent driving of jeep bearing registration No.KA07/M-3174 the said accident had taken place. It is alleged that the deceased Narasimha Reddy was traveling on Hero Honda bearing registration No.KA-02/EQ-2670 at about 7.20 p.m. on Srinivaspura, Chintamani road near Madikeri cross and at that time the alleged accident had taken place. No complaint was lodged immediately but, on 08.08.2011 at about 8.30 a.m. the said complainant submits a report by appearing before Chintamani Rural Police Station stating that at 3.30 a.m. on 08.08.2011 Narasimha Reddy died. Initially the crime was registered for the offences punishable under Sections 279 and 337 of IPC and subsequently in view of the death of Narasimha

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Reddy, Section 304A of IPC was inserted.

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It is not in dispute that on 08.08.2011 itself the inquest was conducted at 9.45 a.m. by the Police Sub-

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Inspector, Rural Police Station, Chintamani as per Ex.P.8 noticing the injuries being sustained by the deceased. Thereafter, the dead body of the deceased was subjected to postmortem as per ExP.12 wherein, it is noticed by the doctor that, the cause of death was due to ‘cardio respiratory arrest because of head injury’ sustained in a road traffic accident. That means deceased sustained accidental injuries as noticed in P.M. report marked at Ex.P.12.

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The motor vehicle inspector had conducted inspection of both the vehicles and had issued MVI report as per Ex.P.11 noticing the damages to the so called alleged offending jeep and the Hero Honda. He was of the opinion that the accident was caused not because of any mechanical defects. These are all the admitted facts which need not be proved.

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So far as oral evidence adduced by the prosecution, evidence of PW.1 - Muniswamy Bachappa was a complainant but not an eyewitness to the said incident.

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He deposed with regard to lodging the complaint and preparing panchanama. But according to him, he signed the panchanama in the police station and was not aware that who wrote the panchanama. He identified the place of occurrence of the accident. To the extent of submitting complaint, his evidence is to be accepted.

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PW.2 – Narayanreddy Venkatreddy and PW.3 - K.K. Manjunatha are the so called witnesses who received the information regarding the accident. But have not supported the case of the prosecution. So also PW.4 – C. Jagadish the owner of the car also been turned hostile. Therefore, evidence of PWs.2 to 4 would not help the case of the prosecution.

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PW.5 – K.M. Narayanswamy was a signatory to Ex.P.2 but deposed that he does not know the contents of Ex.P.2. PW.6 - Babu Reddy was a seizure pancha to Ex.P.4 under which both the vehicles were seized by the police. He was ignorant about the contents of Ex.P.4. Thus, the evidence of PWs.5 and 6 also cannot be accepted as a truthful evidence.

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PW.7 – K.S. Gopalkrishna S/o. Sriramppa was

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pancha to Ex.P.4 and P.8, PW.8 - Shivanand was pancha to Ex.P.2. Both have been turned hostile. PW.9 - Shrinivasappa K. Muniyappa was the person who submitted the FIR to the Magistrate as per Ex.P.9 along with complaint Ex.P.1. This fact of reaching the FIR is not denied by the defense. PW.12–T. C. Venkatesh was the ASI who registered the crime in Crime No.219/2011 and got information about death of Narasimha Reddy. Based upon such information he inserted Section 304A of IPC and reported the same to the Court. He has prepared the sketch of the scene of occurrence. PW.12-T C Venkatesh was the CPI who has conducted the investigation and filed the charge sheet. PW.13-Nandakumar being the Investigation Officer at the relevant time arrested the accused and enlarging him on bail.

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In all criminal cases panchas are the authors of the panchanamas and the Investigation Officers are the supervisors of the investigation. If panchas do not support the case of the prosecution, no evidentiary value can be attached to the panchanama.

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In this case except the evidence of the Investigation Officers and evidence of PW.11-Santosh Venkatssamy being a pillion rider on the said motor bike, there is no other evidence placed on record by the prosecution.

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Now we have to ascertain that, only on the basis of evidence of PW.11-Santosh and the Investigation Officer, is it sufficient to convict the accused and sentence him as done by the Trial Court and confirmed by the appellate Court.

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PW.11 – Santosh deposed that, on the day of accident he was returning to his village, as a pillion rider on the motor bike of the deceased Narasimha Reddy. When they were moving on Chintamani, Srinivaspura ahead of a Madikeri cross, one car came in high speed and dashed to the motor bike. In the accident himself and Narasimha Reddy sustained injuries. One Narayan Reddy and others who were known to them shifted both the injured to the hospital. As per the advice of the doctors, they were again shifted to Bengaluru hospital. Narasimha Reddy was shifted to Chintamani hospital. In the

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Chitnamani hospital he died. He further deposed that he

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can identify the driver of the Bolero.

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In the cross examination he deposed that, at the curves on Madikeri road number of vehicles ply. He admits that, at Madikeri curve no vehicle can move fast. The said accident has taken place at about 7 to 7.20 p.m. He does not remember the registration number of the vehicle which caused the accident. He admits that he filed

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a petition seeking compensation.

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On perusal of the evidence of the PW.11 being the injured witness, he is specific that at Madikeri curve no vehicle can move fast. As per the sketch produced by the prosecution the said accident has taken place on Madikeri cross road moving towards Srinivaspura. The said sketch shows that towards the northern side of the road the said accident has taken place.

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According to the case of the prosecution LMV jeep Mahindra Bolero bearing registration No.KA-07/M3174 dashed against the motor bike bearing registration No.KA-02/EW-2670. The motor vehicle inspector at the time of inspection had noticed scratch marks found on

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right side front bumper. It was the only damage noticed

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by the vehicle inspector on the alleged offending jeep. PW.11 states that, it was car dashed against their motor bike. But MV accident report shows, it was Mahindra LMV jeep.

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The MV inspector also noticed the following damages to the said Hero Honda motor bike bearing registration No.KA-02/EQ-2607.

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“1. Head lamp assembly and wind shield

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broken.

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2. Both real view mirrors broken 3. Front mudguard broken

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4. Steering handle bar was bent

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5. Front forks were bent 6. Crash guard was bent at right side 7. Front wheel rim was bent

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8. Front Reg. mark plate damaged

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9. Fuel tank was dented at right side ”

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Relying upon the evidence of PW.11 and other

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oral and documentary evidence, it is submitted that, the very involvement of the offending jeep in causing the accident is doubt full. According to the submission of counsel for the accused, the said offending jeep if at all

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involved in the accident would have sustained more

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damages. But just it was a scratch mark where as, the said motor bike sustained in all 9 damages. Looking to the damages caused to the motor bike, speed of a motor bike has to be seen dashing some other vehicle and also the so called offending jeep bearing registration No.KA07/M-3174. On scrupulous reading of the sketch as well as the MVI Report, the damages caused to motor bike are severe and whether the said Bolero Mahindra jeep had really caused the accident by dashing to the motor bike is not clear. Except the evidence of PW.11, no other concrete evidence is adduced by the prosecution so as to connect the said offending jeep alleged to have caused the accident.

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On reading the panchanama, the Investigation Officer has not noticed any break marks or other marks at the place of accident. There is no proper conduction of scene of occurrence panchanama by the Investigation Officer.

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On reading the entire investigation paper as rightly submitted by the counsel for the accused, there is

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no proper scientific investigation done by the Investigation Officer so as to prove its case beyond all reasonable doubt. We find a casual approach of the Investigation Officer in conducting investigation and it appears to be perfunctory in nature.

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As discussed supra, in this case, except the evidence of PW.11, the pillion rider of the said motor bike, no other concrete evidence is placed on record by the prosecution. Even on perusal of his evidence, it appears that he is quite ignorant about the manner in which the said accident has taken place.

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The seizure panchanama Ex.P.4 shows the damages caused to both the vehicles. There was just a scratch mark on the right front bumper of the Bolero jeep. The MVI report is very much silent that whether the said scratch mark was a old scratch mark or a new scratch mark. Whereas, the Hero Honda Splendor plus bike bearing registration No.KA-02/EQ-2670 has sustained the damages as noted by the MV Inspector.

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On comparison of the said damages and impact toe the said accident, as rightly submitted by the counsel

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for the accused, the very involvement of Bolero jeep in causing the accident is doubtful. Even the nature of the injuries sustained by the deceased were on backside of his scalp, abrasion on the left eye, abrasion over right eye. The allegation of the prosecution is that, there was a direct dashing of Bolero jeep to the motor bike ridden by the deceased. If that is so, because of the impact of both the vehicles, the deceased would have suffered injuries on his forehead or the front portion of his body. Therefore, on this account also it can be stated that, the very involvement of the Bolero jeep in causing the accident is doubtful.

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It has come in the evidence of injured that, he has filed a petition seeking compensation before the MACT. Perhaps to get more compensation, insured vehicle must have been implicated as offending vehicle. This possibility cannot be ruled out in view of the evidence brought on record.

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The learned counsel for the accused/petitioner in support of his submission relied upon a judgment of the 1Hon’ble Apex Court in Nageshwar Shri Krishna Ghobe Vs.

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State of Maharashtra¹ and submits that the testimony of PW.11 cannot be accepted as a credible evidence. There is no proper investigation done by the Investigation Agency.

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In the said judgment it is held with regard to

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the investigation in accident cases as under:

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(i) Where investigation has been conducted in a very casual and superficial manner and important evidence which was available and should easily have been forthcoming has not been brought before the Court for wholly inadequate, if not fhmay, reasonsexamination of the marks of wheels on the road and evidence of the state of traffic at the relevant time-it cannot be said that the accused was driving his vehicle rashly or negligently.

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(ii) If a criminal court feels that the evidence of a particular witness is necessary in the interest of justice, then a witness should be examined as a court witness, defence objection notwithstanding. Parties cannot control the Court’s discretion to have before it further evidence if it is considered necessary for finding the truth for promoting the cause of justice. Justice would fail not only by unjust conviction of the innocent but also by acquittal of the guilty for unjustified failure to produce available evidence.

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1 (1973) 4 Supreme Court Cases 23

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(iii) Where the testimony of a defence witness did not impress the courts below, they should have expressed their opinion in temperate language usually associated with and reflecting the impersonal dignity of judicial restraint. The strong language used in condemning him and otherwise aspersions on him which were unnecessary is uncalled for and we cannot approve of those observations.”

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Whenever investigation in accident is required to be done, it is the duty of the Investigation Agency to see that, there must be proper investigation and also the Investigation Agency has to follow the scientific method of investigation. To prove such cases, it is the duty of the prosecution that, causing the death by negligence or rashness have to be proved with legal evidence by the driver of the offending vehicle. A stress has to be on rashness and negligence. In the absence of reliable and cogent evidence showing the negligence of the accused, merely based upon the sole self serving evidence of PW.11, accused cannot be convicted under Section 304A and 337 of IPC. It is settled principle that, where accused is convicted under Section 304A of IPC, a separate

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sentence under Section 279 of IPC need not be passed. However, in this case the Trial Court has convicted the accused for the said offence under Section 279 of IPC which is incorrect.

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Law is that a rash is primarily an over hasty act and is opposed to a deliberate act, even if it is partly deliberate, it is done without due thought and caution. Criminal rashness is hazardous and dangerous act with a knowledge that, it is so and that it may cause a injury. Such ingredients in this case about the rash and negligent under Section 279 of IPC are lacking. The Trial Court and the first appellate Court have not considered the evidence

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in proper perspective and based upon the evidence of PW.11 and the Investigation Officers have found the accused guilty which is incorrect. Except evidence of PW.11 and Investigation Officers, the other evidence is of a formal nature.

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The prosecution has not proved its case beyond all reasonable doubt. It is settled that, in criminal cases, it is the duty of the prosecution to prove the guilt of the accused to the hilt. Even a slightest doubt arises in the

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case of the prosecution, that benefit has to be extended to the accused. Therefore, in this case the prosecution has not proved its case with legal evidence. Hence accused is entitled for acquittal by giving benefit of doubt. Consequentially, the judgment of the Trial Court, affirmed by the first appellate Court are liable to be set aside.

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Accordingly the point for consideration raised

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supra is answered in favor of the accused/petitioner.

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Resultantly, I pass the following:

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ORDER

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(i) Revision petition filed by the

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petitioner under Section 397 read with Section 401 of Cr.P.C. is allowed.

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(ii) Judgment of conviction and sentence

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passed in C.C. No.34/2012 by the Additional Civil Judge and JMFC, Chintamani, dated 19.08.2014 and confirmed in Criminal Appeal No.54/20014 by the II Additional District and Sessions Judge, Chickaballapur (sitting at Chintamani) are hereby set aside.

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(iii) Accused/petitioner is acquitted of the

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charges punishable under Section 279, 337 and 304(A) of IPC.

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(iv) His bail bond stands cancelled and set at liberty.

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(v) If the accused has paid the fine amount, the same may be refunded to the accused digitally after collecting necessary documents.

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(vi) Send back the Trial Court and first appellate Court records forthwith along with copy of judgment.

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Sd/JUDGE

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SMM

Sri.Srinivasa Reddy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri.Srinivasa Reddy v. 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

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