Allowed

Azmath v. State by Thalaku Police Station

Karnataka HC15 Feb 2023CRL.RP/28/2019

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, setting aside conviction and acquitting the petitioner. The court held there was no clear evidence proving the accused's rash and negligent driving caused the accident, granting him the benefit of doubt.

What did the court decide?

Revision petition allowed; impugned judgments set aside; accused acquitted of offences under Sections 279, 337, 338, 304A IPC and Section 187 MV Act.

Azmath Vs State by Thalaku Police Station — Motor Accident Claims | Karnataka HC (2023)

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CRL.RP No. 28 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 28 OF 2019

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BETWEEN:

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AZMATH S/O BAIJU SAB, AGED 56 YEARS, R/O HALALLI VILLAGE, NEAR SLUM BOARD, MANDYA TOWN AND DISTRICT-571402.

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…PETITIONER

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(BY SRI. SREENIVASAN M.Y., ADVOCATE)

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AND:

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STATE BY THALAKU POLICE STATION, THALAKU, MOLAKALMURU TQ., CHITRADURGA DISTRICT-577539 R/P BY SPP, HCK, BANGALORE-560001.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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…RESPONDENT (BY SRI. KRISHNAKUMAR K.K., HIGH COURT GOVERNMENT PLEADER)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE JUDGMENT DATED 16.11.2018 IN CRL.APPEAL NO.83/2016 PASSED BY THE SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE AT CHITRDURGA AND SET ASIDE THE JUDGMENT DATED 11.11.2016 IN C.C. NO.452/2013 PASSED BY CIVIL JUDGE AND JMFC., MOLAKALMURU.

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CRL.RP No. 28 of 2019

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

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ORDER

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The petitioner has challenged the Judgment of conviction dated 11.11.2016 passed by the Judicial Magistrate First Class, Molkalmuru, (for short, 'the Trial Court') in C.C. No.452/2013, by which, he was convicted for the offences punishable under Sections 279, 337, 338, 304A of the Indian Penal Code, 1860 (for short, 'the IPC') read with Section 187 of the Motor Vehicles Act, 1988 ('the M.V. Act' for short) and the consequent sentence. The petitioner has also challenged the Judgment dated 16.11.2018 passed by the Special II Additional District and Sessions Judge, Chitradurga, in Criminal Appeal No.83/2016 by which the Appellate Court confirmed the Judgment of conviction and sentence passed by the Trial Court.

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The petitioner was the sole accused in C.C. No.452/2013 and henceforth shall be referred accordingly.

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A prosecution of the accused was set in motion on the basis of a report dated 22.07.2013 (Ex.P1) lodged by PW.1 that on 21.07.2013, PW.1 and others traveled from Pavagada

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CRL.RP No. 28 of 2019

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to Gulbarga in an Innova Car bearing registration No.KA-22-N1689 (for short, the 'car') and after completion of their work, on their return journey when they were proceeding on State Highway No.19 through Bellari on 22.07.2013 at about 7.20 a.m., near Kodihalli - Mannakote gate, the accused who was driving a Lorry bearing Registration No.KA-04-9682 (henceforth referred to as ‘the offending vehicle’) from Challakere, drove it in a rash and negligent manner and dashed against the car as a result of which, the car toppled and fell on the right side of the road and caused severe injuries to the passengers in the car and the death of one of the passengers in the car.

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Based on such a complaint, the jurisdictional Police registered Crime No.95/2013 for the offences punishable under Sections 279, 337, 304A of IPC read with Section 187 of the M.V. Act.

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CW.23 (PW.8) registered a FIR (Ex.P22) and on the instructions of CW.24 (PW.7), he conducted an inquest of the dead body of Smt. Indumathi and recorded the statement of the inquest witnesses. He later conducted a spot inspection of the spot and drew a sketch of the scene of the crime. He also

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CRL.RP No. 28 of 2019

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seized the two vehicles involved in the accident and a mahazar was drawn. He recorded the statements of witnesses to the mahazar. He thereafter placed the file before CW.24. CW.24 (PW.7) recorded the further statements of the complainant and the other occupants in the car. He arrested the accused on 24.07.2013 and released him on bail. A notice was issued to the owner of the offending vehicle to furnish details of the driver of the offending vehicle who later furnished information and got the vehicle released by furnishing an indemnity. Later, he issued notice to the owner of the car, who submitted his reply and thereafter got the vehicle released after furnishing indemnity. CW.24 obtained a report of the inspection of the vehicle in question from the motor vehicle inspector and after receipt of report of post mortem, after recording the statement of the injured victims, a chargesheet was filed against the accused for the offences punishable under Sections 279, 337, 338 and 304A of the IPC. The Trial Court took cognizance of the said offences and issued process to the accused and secured his presence and released him on bail. The Trial Court recorded the plea of the accused who pleaded not guilty and claimed to be tried. The prosecution examined four witnesses

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CRL.RP No. 28 of 2019

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out of whom, driver of the car was examined as PW.2 and passengers in the car were examined as PWs.1, 3 and 4. It examined PWs.5 and 6, who were witnesses to the spot mahazar and they turned hostile. PW.9 was the owner of the offending vehicle who did not identify the accused as the person driving the vehicle on the date of the accident. However, he deposed that he got the vehicle released from the Police Station after furnishing an indemnity. He deposed that the Police had not issued any notice calling upon him to furnish the details of the driver and other vehicle particulars. This witness was treated as hostile and he denied about the involvement of the accused in the offence. The prosecution marked documents as Exs.P1 to P25. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') was recorded and he denied the incriminating evidence against him. The accused did not lead any evidence in his defence.

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Based on the oral and documentary evidence, the

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Trial Court held that the prosecution had proved the involvement of the two vehicles in the accident and that the accused was driving the vehicle at the time of the accident. It

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CRL.RP No. 28 of 2019

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also considered the evidence of PW.1, 2, 3 and 4 who deposed that the accused was driving the offending vehicle in a rash and negligent manner which dashed against the car resulting in the death of a passenger in the car and severe injuries to the other passengers.

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The Trial Court held that the prosecution had proved the rash and negligent driving of the offending vehicle by the accused and hence, convicted him for the offences punishable under Sections 279, 337, 338 and 304A of the IPC read with Section 187 of the M.V. Act and sentenced him to undergo: simple imprisonment for three months and to pay fine of Rs.500/- for the offence punishable under Section 279 of IPC; simple imprisonment for three months and to pay fine of Rs.500/- for the offence punishable under Section 337 of IPC; simple imprisonment for a period of four months and to pay fine of Rs.500/- for the offence punishable under Section 338 of IPC; undergo simple imprisonment for two years and to pay fine of Rs.4,000/- for the offence punishable under Section 304A of IPC and simple imprisonment for one month and to pay fine of Rs.300/- for the offence punishable under Section 187 of

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CRL.RP No. 28 of 2019

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the MV Act. It was ordered that the said sentences shall run concurrently.

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Being aggrieved by the said Judgment of conviction and sentence, the accused filed Criminal Appeal No.83/2016.

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The Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties and framed points for consideration. It re-appreciated the evidence and cursorily held that the prosecution had indeed proved the guilt of the accused beyond doubt and hence, dismissed the appeal and confirmed the Judgment of conviction and order of sentence dated 11.11.2016 passed by the Trial Court.

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Being aggrieved by both the Judgments of the Trial Court and the Appellate Court, the accused has filed this revision petition.

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Learned counsel for the accused/petitioner submitted that both the Courts have deliberately ignored the evidence on record more particularly the evidence of PWs.1, 2, 3 and 4 which indicated that it was not the accused who was negligent but it was PW.2, the driver of the car who was negligent and responsible for the accident. The learned counsel

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invited the attention of the Court to Ex.P24 - sketch and contended that the accident occurred on the right lane from Challakere to Bellari and therefore, it was the driver of the car who was responsible for the accident. He further submitted that the car was found on the left side of the road leading from Challakere to Bellari and therefore, it is clear that it was the driver of the car who was negligent and responsible for the accident. Further, he contended that the spot mahazar witnesses had turned hostile and there was no evidence of any eye witness who had seen the accident. He contended that PWs.1, 3 and 4 were occupants travelling in the car and they were therefore interested in the outcome of the case. He submitted that PW.2 was the driver of the car and he deposed that he was driving the car on the right side of the road. He also deposed that the accident occurred on the right lane of the road. The learned counsel therefore contended that it was PW.2 who was responsible for the accident and the accused was in no way responsible for the accident and the Trial Court as well as the Appellate Court glossed over this fundamental aspect of the matter. He therefore, prayed that the impugned Judgment of conviction and sentence passed by the Trial Court

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CRL.RP No. 28 of 2019

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and the affirming Judgment passed the Appellate Court be set aside.

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Per contra, the learned High Court Government Pleader submitted that PWs.1, 3 and 4 were the passengers travelling in the car while PW.2 was driving the car and all four of them in one voice had deposed that it was the accused who was negligent and responsible for the accident. He submitted that this evidence proved the guilt of the accused, notwithstanding the fact that PW.5 and PW.6 had turned hostile. He submitted that PW.7 - Investigating Officer had clearly stated that it was the accused who caused the accident as he surrendered before the Police. He submitted that the involvement of the two vehicles is not in dispute and the involvement of the accused is also not in dispute. Therefore, the Trial Court and the Appellate Court were justified in returning a finding of guilt of the accused.

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I have considered the submissions made by the learned counsel for the accused as well as the learned High Court Government Pleader. I have also perused the records of

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CRL.RP No. 28 of 2019

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the Trial Court and its judgment as well as the judgment of the Appellate Court.

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It is not in dispute that PW.1, PW.3 and PW.4 were the passengers travelling in the car. PW.2 was the driver who was driving the car at the time of the accident. PW.1, the complainant deposed that the accident occurred in the middle of the road and denied that the accident occurred on the right lane of the road. He deposed that he was sitting on the rear seat of the car. He also deposed that there were no vehicles coming from behind or there was no vehicle parked on the right side of the road. Contrarily, PW.3 claimed that the road was straight. She claimed that PW.2 was driving the vehicle on the left side of the road. However, she contended that the vehicle toppled and landed on the right side of the road from Bellari to Challakere. PW.4 on the contrary claimed that as a result of the accident, the car toppled and landed on the right side of the road from Bellari to Challakere. The evidence of PW.2 is more than interesting since he claimed that after the accident, the car toppled and fell on the left side of the road. He could not identify the accused. The spot sketch at Ex.P24 is not seriously disputed by the parties. A perusal of Ex.P24 discloses that the

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accident occurred on a road leading from Bellari to Challakere. The accused was driving the offending vehicle from Challakere to Bellari i.e., from South towards North while the car was driven from Bellari to Challakere i.e., from North towards South. Therefore, both the vehicles were moving in the opposite directions. The driver of the car had strayed into the right lane and the accident spot also appears to be on the right lane of the road. The driver of the offending vehicle seems to have applied brake which is evident from the spot sketch as well as the spot mahazar which discloses that there was a 20 feet tyre mark on the road. The sketch at Ex.P24 discloses that the car landed on the right side of the road from Challakere to Bellari. This only shows that the driver of the car was driving the vehicle at a high speed and strayed on to the right side lane and dashed against the oncoming offending vehicle driven by the accused. The evidence of PWs.1, 3 and 4 indicates that the accident occurred on the right side lane while PW.2 too claimed that he was driving the vehicle on the right side lane of the road. Therefore, there is no clear evidence that the accused was responsible for the accident. The accused was driving the vehicle from South towards North and was in his own lane and

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the brake marks on the road stand testimony to the above fact.

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The Trial Court without considering the evidence available on record, merely held that the evidence of PWs.1, 3 and 4 established the guilt of the accused beyond doubt. The evidence of PWs.1, 3 and 4 actually disproved the case of the prosecution and indicated that it was the driver of the car who was negligent. Be that as it may, since there is no clear evidence regarding the complicity of the accused in the offence, he was entitled to the benefit of doubt which the Trial Court and the Appellate Court failed to grant. In that view of the matter, the impugned Judgment of conviction and sentence passed by the Trial Court and upheld by the Appellate Court warrants interference. Hence, the following:

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ORDER

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(i) This revision petition is allowed.

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(ii) The impugned Judgment of

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conviction and sentence dated 11.11.2016 passed by the Civil Judge and JMFC., Molakalmuru, in C.C. No.452/2013 and the impugned Judgment dated 16.11.2018 passed

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CRL.RP No. 28 of 2019

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by the Special II Additional District and Sessions Judge, Chitradurga, in Crl.Appeal No.83/2016 are all set aside. The accused is acquitted of the offences punishable under Sections 279, 337, 338 and 304A of the IPC read with Section 187 of the Motor Vehicles Act, 1988.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 21

Azmath v. State by Thalaku Police Station

Case brief

What is this about?

What did the court decide?

Azmath v. State by Thalaku Police Station

Case brief

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What did the court decide?

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