Allowed

Nanjegowda v. State of Karnataka

Karnataka HC10 Feb 2023CRL.RP/331/2014

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Karnataka allowed the appeal and acquitted the petitioner. The court held that the prosecution failed to prove rash and negligent driving, as witness evidence was contradictory and a mechanic's report suggested mechanical defect caused the accident.

What did the court decide?

Impugned judgments set aside; accused acquitted and set at liberty.

Nanjegowda Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL REVISION PETITION NO.331 OF 2014

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BETWEEN:

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SRI NANJEGOWDA, S/O LAKKEGOWDA, AGED 36 YEARS, NARIHALLI VILLAGE, HIRISAVE HOBLI, CHANNARAYAPATNA TALUK-573 116, HASSAN DISTRICT.

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...PETITIONER

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(BY SRI. BHAGAT VENKATESH R., ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY NUGGEHALLI POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560 001.

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...RESPONDENT

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(BY SRI. K. NAGESHWARAPPA, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W SECTION 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 25.04.2014 PASSED BY THE P.O., FTC - CHANNARAYAPATNA IN

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CRL.A.NO.64/2013 AND THE JUDGMENT PASSESD BY THE ADDL.C.J. AND JMFC, CHANNARAYAPATNA IN C.C.NO.571/2006, DATED 18.02.2013 CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S 279, 337, 338 AND 304-A OF IPC AND SENTENCING HIM TO UNDERGO S.I. FOR A PERIOD OF SIX MONTHS FOR THE OFFENCE P/U/S 279 OF IPC, TWO MONTHS FOR THE OFFENCE P/U/S 337 OF IPC, SIX MONTHS FOR THE OFFENCE P/U/S 338 OF IPC AND FURTHER SENTENCING HIM TO UNDERGO S.I. FOR TWO YEARS FOR THE OFFENCE P/U/S 304-A OF IPC.

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THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR ORDER ON 03.02.2023, POSTED FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The Revision Petitioner being accused in C.C.

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NO.571/2006, before the learned Addl. Civil Judge and JMFC, Channarayapatna, has preferred this revision petition being aggrieved by the Judgment of his conviction and sentence passed in the said case dated 18.02.2013 convicting him for the offences punishable under Sections 279, 337, 338 and 304-A of IPC and sentencing him to undergo S.I. for a period of six

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months for the offence punishable under Section 279 IPC, to undergo S.I. for a period of two months for the offence under Section 337 of IPC, to undergo S.I. for a period of six months for the offence under section 338 of IPC and further sentencing him to undergo Rigorous Imprisonment for two years for the offence under section 304-A of IPC and also sentencing him to pay fine on each count, so also to undergo simple imprisonment on default of payment of fine.

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Brief relevant facts up to this revision petition are as under:

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A crime was registered against the accused person on 04.02.2006 alleging that at about 7.30 p.m., the accused being the driver of a tempo vehicle bearing Registration No.KA-136263 near Kalkere, drove the said vehicle in a rash and negligent manner, dashed to a tree. Thereby, it is alleged that, he caused the death of Sri. Javaraiah and caused grievous injuries to the inmates of the said vehicle i.e., C.W.3 and C.W.4 and simple injuries to C.Ws.1, 2 and 5 to 8. Accordingly, crime was registered against the accused. After investigation, the

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Nuggehalli police filed charge-sheet against the accused for the aforesaid offences.

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After filing the charge-sheet, the jurisdictional Magistrate took the cognizance of the offence, registered C.C.No.571/2006, secured the presence of the accused and he was enlarged on bail. Copies of the police papers are furnished to the accused persons as contemplated under Section 207 of Cr.P.C.

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Thereafter, substance of accusation for the offences under Sections 279, 337, 338 and 304-A of IPC framed, read over and explained to the accused in the language known to him. He pleaded not guilty and claims to be tried.

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To prove the guilt of the accused, prosecution in all examined 13 witnesses from P.W.1 to P.W.13 and got marked Exs.P1 to P17, closed prosecution evidence. After closure of the prosecution evidence, accused was questioned under Section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.

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Having heard the arguments of both the sides, the learned Addl. Civil Judge and JMFC, Channarayapatna, convicted the accused for the aforesaid offences and sentenced him as stated supra.

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Being aggrieved by the same, accused preferred Crl.A. No.64/2013.

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The Appellate Court, after securing the records and on hearing the arguments on both the side, affirmed the Judgment of conviction and sentence passed by the Trial Court in C.C. No.571/2006, vide Judgment dated 25.04.2014.

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Being aggrieved by the said affirmation of Judgment of conviction and sentence passed by the Trial Court, now the revision petitioner is before this Court challenging the said Judgments of conviction and sentence on the following grounds:

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That the Judgments of both the Courts are illegal, perverse, capricious and arbitrary. They are against the principles of criminal jurisprudence and rendered against the existing laws in force. Both the Courts have lost their sight in assessing the evidence on record as no positive evidence has

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been adduced by the prosecution to prove the rash and negligent driving on the part of the petitioner - accused. Erroneously both the Courts have held the accused guilty ignoring the defence set up by the accused. Therefore, the Judgment of conviction and sentence passed by both the Courts are against the principles of natural justice. Both the Courts are wrong in appreciating the evidence. They have failed to take note of the fact that none of the witnesses have stated the factum of speed of the vehicle and width of the road at the accident spot. The material on record do not warrant to pass a judgment of conviction and sentence. The material witnesses have turned hostile which is not being appreciated. Thus, the conclusions arrived at by both the Courts is based on presumptions and surmises. Both the Court have erroneously arrived at a conclusion. Reliable evidence of the material witnesses is not properly appreciated. Both the Courts have failed to take note of the fact that the accident in question was due to mechanical defect and is not a culpable accident as the accident occurred due to steering problem. But evidence of P.W.1, 3, 4, 7, 9 and 13 though supports but erroneously the

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Courts have appreciated the evidence. The Appellate Court has failed to appreciate the evidence in proper perspective. Amongst other grounds, it is prayed to allow the revision petition and seek acquittal of the accused petitioner.

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After filing this revision petition, notice came to be issued to the respondent. Learned High Court Government Pleader took notice of this revision petition. Trial Court record as well as Appellate Court records are secured.

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Heard the arguments of both the sides. meticulously perused the records.

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It is argued by the advocate for the Revision Petitioner - accused that, right from the day of filing the complaint, the identity of the accused is disputed. This Revision Petitioner has been subsequently implicated by changing the name of one Ravi by recording the statement of witnesses after lapse of sufficient time after registering the crime. He further submits that the rash and negligent driving is not duly proved in accordance with law. Because of the damage being caused the steering of the said tempo, the said vehicle swerved towards

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right side of the road and because of mechanical defect, the said accident has occurred. Thus, he submits that there is no fault of the driver of the said tempo in driving the vehicle. The inmates of the vehicle have not supported the case of prosecution except stating that the driver of the said vehicle was driving the vehicle in high speed. He further submits that in view of the factual evidence with regard to mechanical defect in the said vehicle as per the motor vehicle report, it do suggest that there was no fault on the part of the driver in causing the said accident. Amongst other formal submissions, it is submitted to allow this Revision Petition and it is prayed to acquit the accused.

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As opposed to this submission, the learned Addl. SPP submits that as there is a factual finding of both the Courts with regard to the rash and negligent driving of the tempo of the accused and accused having been identified by the inmates of the vehicle as the driver of the said vehicle at the relevant time, this factual finding cannot be interfered with. He further submits that both the Courts have categorically held that there was a rash and negligent driving of the tempo by the accused and

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hence, they are right in convicting and sentencing accused person. He submits that there should not be any interference into the impugned Judgments by this Court.

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In the light of the submissions made by both the parties and in view of the materials placed on record, the following point arises for my consideration:

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"Whether the Trial Court and First Appellate Court are justified in passing the Judgment of conviction and sentence against accused finding him guilty for the offences punishable under Sections 279, 337, 338, 304-A of IPC?"

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As stated supra, to prove the guilt of the accused, prosecution relies upon various evidence so adduced before the Trial Court. In all, 13 witnesses are examined by the prosecution and substantial documents from Exs.P1 to 17 are marked.

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Ex.P1 is the complaint, wherein it is stated by the complainant that he boarded the said tempo after finishing his

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work on 04.02.2006 and was sitting behind the driver seat. At about 7.30 p.m. when the said tempo was nearing the scene of occurrence at about 2 furlongs away after Channarayapatna, the driver of the tempo, by driving tempo in high speed and negligently, dashed against a right side tree. He sustained injuries on his person. So also other inmates also sustained injuries. According to his complaint, one Ravi was the driver of the said tempo bearing registration No.KA.13-6263. This complaint was lodged on 04.02.2006. The prosecution papers show that the I.O. has recorded the statement of the witness by name Ravi @ Ravish, S/o Lakshmana Gowda on 10.03.2006. These witnesses while giving their statement under S.161 of Cr.P.C., stated the name of one Nanjegowda, i.e., the present petitioner as the driver of the said tempo at the time of accident. That means, after one month six days, the statement of these witnesses is recorded by the I.O. and there is complete change of name of driver of the accused from Ravi to Nanjegowda. So also the same day itself, I.O. has recorded the statement of Rangaswamy, being the Conductor of the said tempo at the relevant time. He too has stated that one N.L. Nanjegowda was

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the driver of the said tempo at the relevant time. That means after lapse of one month six day, the name of petitioner is recorded as the driver of the tempo at the time of accident. Either the complainant or the I.O. have not given any explanation during their evidence that what made them to tell the name of this present petitioner as the driver of the said tempo. There must be plausible and acceptable explanation for this. But nothing is explained.

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In this case, there are certain admissions between both the sides. The present Revision Petitioner being accused does not dispute the said accident at the place as shown in the scene of occurrence, panchanama as per Ex.P4, so also, death of one A. Javaraiah in the said accident. P.M. Report Ex.P5 shows that the said A. Javaraiah died because of the injuries being sustained by him in the said accident. Doctor has given opinion to that effect. So also the inmates of the said tempo by name Tayavva, Puttaraju, Krishna Gowda, Rangaswamy, Thimmegowda, Ashoka and Nagappa sustained simple injuries in the said accident is also not disputed. Likewise, one Annappa, Ravish sustained grievous injuries is also not disputed. To prove

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that the aforesaid witnesses have sustained simple injuries and grievous injuries, the prosecution has produced Exs.P6 to P12 and P15, P16, P17 the wound certificates. While marking these documents, defence has not raised any objections perhaps conceding that the aforesaid injured have sustained the injuries in the manner stated in these wound certificates. Therefore, prosecution is able to prove that in this accident, A. Javaraiah died and other injured have sustained accidental injuries. So these admitted facts need not be proved.

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So far as evidence of P.W.1 is concerned, he simply says in his evidence that on the day of accident, about three years back prior to giving of his evidence, he boarded the tempo. The driver of the said tempo was driving the tempo in high speed and dashed against the right side tree. He sustained injury on his chest, waist hands and other parts of the body. Likewise four five other inmates also sustained injury. He lodged complaint as per Ex.P1.

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In the cross-examination he states that he boarded the said tempo near Hunaseghatta which is 30 kms. away from

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Kalkere. From Hunaseghatta to Kalkere, driver of the said tempo was driving the vehicle in order. Though he states the name of one Ravi as the driver of the tempo at the relevant time, but in the cross-examination, he deposes ignorance that who was the driver of the said tempo at that time. he being the person who was sitting behind the said driver seat, states that there was a noise near the steering and thereafter the said tempo dashed against the tree. He says he has not stated the name of Ravi as the driver of the said tempo in his complaint. He cannot say the speed of the tempo at the time of accident. He being the passenger, being inmate of the said tempo, sitting behind the driver seat, though states about rash and negligent driving of the tempo but his evidence spoken to before the Court on oath is quite contrary to the contents of Ex.P1.

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P.W.2 Ravi Lakshmana Gowda, being the inmate of the tempo having sustained injuries, has been examined by the prosecution but he has been turned hostile. According to him, he cannot identify the accused as the driver of the said tempo at the time of the accident. He cannot say how the accident took

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place. Though he was cross examined but nothing worth is elicited. The evidence of P.W.2 would not help the case of the prosecution.

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P.W.3 Tayamma was also an injured in the said tempo being inmate. she simply says that driver drove the said tempo in high speed and dashed against the right road side tree and she sustained injuries.

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It is suggested to her that because of cut in steering the said accident has taken place. But she says because of high speed accident took place. She denied other evidence.

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There is no corroboratory evidence being spoken to by this evidence.

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P.W.4 Rangegowda was the conductor of the relevant tempo. He says that driver of the said tempo was driving the tempo in slow manner. But there was a cut in steering hence the accident has taken place. He has been declared as hostile by the prosecution and cross examined. He says in the crossexamination that accused was driver of the tempo at the

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relevant time and denied other suggestions. He has been crossexamined by the defence. He says that before the said accident, there was a noise emitting of cut in steering. Because of cut in steering, the said accident has taken place.

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No doubt, this P.W.4 was the conductor and must be an interested witness to save the skin of the accused. But he is the best person to say that how the accident has taken place. To that effect, he has spoken before the Court.

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P.W.5 Devaraja is pancha to the scene of occurrence Ex.P4 so also P.W.6 Nanjundengowda. Both these witnesses have been turned hostile. Nothing worth is elicited so as to disbelieve their version given in the examination in Chief. In all criminal cases, panchas are the authors of the panchanama. If they turn hostile no evidentiary value can be attachéd to the evidence of prosecution witnesses. Therefore evidence of P.W.5 and P.W.6 would not come to the rescue of prosecution in proving the contents of Ex.P4.

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P.W.7 Annappa, P.W.8 Krishnegowda were the inmates of the said tempo being the passengers. PW.7 says that when the

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said vehicle was moving towards Channarayapatna near Kalkere, it dashed against a banyan tree situated on the right side of the road. Accused was the driver of the said tempo. He being the inmate of the said tempo states that he does not know that because of the cutting the steering the said tempo dashed against the tree. That means he deposes ignorance about the reason for accident. Even he cannot identify the accused as the driver of the said tempo.

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Likewise, P.W.8 Krishnegowda also has deposed ignorance about the cause of the accident and also cutting of the steering of the tempo.

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If the evidence of these inmates of this tempo is scrupulously perused, we find inconsistent, discrepant and contradictory evidence spoken to by the witnesses with regard to cause of the accident.

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P.W.9 Nanjappa was the Head Constable. He too was the inmate of the said tempo and he has given statement before the police on 10.03.2006. He says that because of the rash and negligent driving of the said tempo accident has taken place. He denied other suggestions.

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P.W.10 Krishnegowda says being the owner of the tempo says that accused was the driver of the tempo at the relevant time and at the time of accident he was possessing two vehicles. It is the case of the accused that he was not the driver of the tempo at the relevant time. It is submitted by advocate for the accused that the said Ravi must not have possessed the driving licence and so as to avoid payment of compensation by the owner, this accused must have been implicated in this case. In view of the factual evidence brought on record by the prosecution, the possibility of implicating the present accused to avoid payment of compensation cannot be ruled out as the name of present accused has been inserted after one month six days of the accident.

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P.W.11 is a vital witness in this case being the Senior Motor Vehicle Inspector who had inspected the said tempo after the accident in the Nuggehalli police station compound. He says that, he noticed the following damages to the said vehicle as shown in Ex.P13 the motor vehicle accident report. The contents of the said report read as under:

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"1. Front wind screen glass broken.

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Right side window glass broken (3no)

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Driver door damaged.

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Head light assembly damaged.

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Steering system damaged.

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Top damaged. (front side)

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Radiator grills damaged.

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Chassi twisted front right side"

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He is of the opinion that in all, the said vehicle had 8 damages and damage No.5 shows steering system damaged. He speaks on par with the contents of Ex.P13 but denies that because of mechanical defects there is cutting steering rod and hence the said accident has taken place. He admits that the complete right portion of the said tempo was pushed inside when he inspected the said vehicle.

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P.W.13 is the I.O. In all criminal cases, I.Os. are the supervisors of the investigation. Unless there is a corroborative evidence, the evidence of I.O. becomes formal in nature.

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Now we have to appreciate the contents of Ex.P14 the sketch of the scene of occurrence wherein it is noticed that width

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of the road is about 18 feet and from the left side towards the extreme right side, the said tempo had swerved and dashed against the banyan tree. On seeing the said sketch, there is a sudden swerving of the said tempo towards right side of the road. What was the reason for such swerving of the said tempo towards right side is to be ascertained by reading the contents of M.V. report and the evidence of other witnesses so examined in this case.

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It is the case of the prosecution that because of rash and negligent driving of the said tempo accident has taken place. S.304-A of IPC is attracted wherein a person caused death of another by such acts as are rash or negligent, but there is no intention to cause death and no knowledge that the act will cause death. To bring a case of injuries, homicide, under sections 337, 338 and 304-A of IPC, the following conditions must exist:

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(i) There must be injuries and death of a

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person in question;

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(ii) the accused must have caused injuries and

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death and

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(iii) that such act of the accused was rash or negligent.

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The Hon'ble Supreme Court of India in STATE OF KARNATAKA Vs. SATISH reported in (1998) 8 SCC 493 has held as under:

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"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "High speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness"

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or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."

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The ratio laid down in the said case can be applied to the present facts of this case.

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In this case, though the injuries on the aforesaid witnesses and death of Javaregowda is admitted, but, it is for the prosecution to prove the direct intervention being the proximate cause of such injuries and death. Without the intervention of others negligence is to be proved.

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Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. the criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the

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consequences. Criminal negligence on the other hand is a gross and culpable neglect or failure to exercise the reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances, out of which the charge has arisen, it was imperative duty of the accused person to have adopted.

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Negligence is a specific tort and in any given circumstances, is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. Merely because some witnesses speak about driving the vehicle in high speed itself is not sufficient.

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Now it is to be seen that whether the primary reason given by Trial Court and Appellate Court while convicting the Revision Petitioner that the petitioner was driving the tempo with high speed and dashed to the tree from its right side. The evidence shows that petitioner had swerved the tempo to the extreme right side of the road when the unfortunate accident occurred. In my opinion, taking the vehicle on the right side of

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the road did not mean that the petitioner was driving the vehicle rashly and negligently and failed to exercise due care and control on the tempo. It is the explanation or the defence of the accused that because of cutting of steering rod, the said vehicle swerved to the right side. Though M.V. Report shows about steering system damaged and even it is spoken to by M.V. Inspector having mechanically examined the said tempo, shows that because of cutting of the steering rod, the said vehicle must have swerved to the right side.

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From the statements of the eye witnesses, the inmates of the said tempo, statement of the accused and the site plan that is sketch, the only picture which emerges about this occurrence is that because of cutting of the steering rod, the said accident must have occurred.

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The further independent factor again lend credence primarily to the plea taken in the defence rather than in any way adding to the prosecution case.

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If all these factual features coupled with evidence placed on record by the prosecution are put together, it can be stated

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that the prosecution case suffers from material particulars. The evidence placed on record through the witnesses is full of contradictions, discrepancies, inconsistencies and omissions. These factors have not been properly explained by the prosecution.

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The learned HCGP submits that, as a general rule, the High Court will not interfere in revision with a finding of fact. The contention of the learned HCGP may be correct. But the High Court interferes with the finding of fact where the finding has been arrived at contrary to the well established principles of law or no reasonable man could have arrived at such a finding on the evidence produced.

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In the light of the above principles, if the aforesaid evidence is analysed, definitely it requires interference into the findings of the Trial Court as well as Appellate Court. Hence, the Trial Court and the Appellate Court have committed mistake in appreciating the evidence placed on record and have wrongly come to the conclusion that accused has committed the rash and negligent act in driving the tempo and wrongly has found him

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guilty which is against the factual evidence brought on record by the prosecution and against the law laid down in various Judgments with regard to the proof of the ingredients of the offences under Sections 279, 337, 338 and 304-A of IPC. Therefore, I record my finding on the above points in favour of the petitioner.

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In view of my foregoing discussions and the reasons stated thereon, the Revision Petition filed by the Revision Petitioner under S.397 read with S.401 of Cr.P.C. succeeds and deserves to be allowed.

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51. Resultantly, I pass the following:

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ORDER

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Revision Petition filed by the respondent is allowed.

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Impugned Judgments are hereby set aside as they cannot be sustained. Accused is on bail. His bail bonds stand cancelled and he is set at liberty.

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Sd/JUDGE

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sac*

Nanjegowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Nanjegowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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