Allowed

Sanjeeva Shetty v. State of Karnataka

Karnataka HC14 Feb 2023CRL.RP/382/2014

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition, setting aside the conviction and sentence of the petitioner for offences under Sections 279, 337, 338, and 304-A IPC. The Court held that relying solely on the statement of a non-eyewitness bus company employee to convict the driver was unjustified, as all eyewitnesses failed to identify the petitioner.

What did the court decide?

The judgment and order of conviction and sentence dated 12.12.2012 passed by the Civil Judge & JMFC, Hosanagara, and the order dated 19.05.2014 passed by the I Addl. Sessions Judge, Shivamogga, are se

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

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CRL.RP No. 382 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF FEBRUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRL.R.P.No.382 OF 2014

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BETWEEN:

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SANJEEVA SHETTY S/O SRI SHIVARAM SHETTY AGED ABOUT 33 YEARS DRIVER, R/O SAMPADAMANE NAGODI, HOSANAGARA TALUK SHIMOGA PIN: 577 418.

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…PETITIONER

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(BY SRI PRAMOD M MALLUR, AMICUS CURIAE)

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AND:

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Digitally signed by B A KRISHNA KUMAR Location: High Court of Karnataka

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STATE OF KARNATAKA REPRESENTED BY HOSANAGARA POLICE, SHIMOGA - 577 418.

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(BY SRI MAHESH SHETTY, HCGP)

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…RESPONDENT

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THIS CRL.RP FILED IS U/S.397 AND 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND JUDGMENT PASSED BY THE C.J. AND JMFC, HOSANAGARA IN C.C.NO.635/10 DATED:12.12.12 AND THE CONFIRMING THE ORDER DATED:19.5.14 PASSED BY THE I ADDL. S.J., SHIVAMOGGA IN CRL.A.NO.239/12. I.A.NO.1/14

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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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This criminal revision petition is filed challenging the judgment and order of conviction and sentence dated 12.12.2012 passed by the Civil Judge & JMFC, Hosanagara, in

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CRL.RP No. 382 of 2014

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C.C.No.635/2010, and the judgment and order dated 19.05.2014 passed by the I Addl. Sessions Judge, Shivamogga, in Crl.A.No.239/2012.

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Heard Sri Pradeep, Amicus Curiae, who was appointed to assist the Court on behalf of the petitioner and also the learned HCGP on behalf of the State.

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Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, on 18.10.2009 at about 3.00 p.m., the bus bearing No.KA-20-A-8114 belonging to Hanuman Bus Company, which was driven by the petitioner in a rash and negligent manner dashed against the Omni Car bearing registration No.KA-32-M2917 on Shivamogga-Hosanagara Road, near Chandana Park.

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As a result, the inmates of the omni car as well as the bus, suffered injuries and a seven year old girl by name Prerana who was traveling in the omni car succumbed to the injuries suffered by her in the accident. PW-1 - Ramesha who was one of the inmates of the bus was admitted in Hosanagara Hospital and his statement was recorded by the police in the hospital and on the basis of the same, a case was registered against the

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CRL.RP No. 382 of 2014

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petitioner in Crime No.154/2009 for the offences punishable

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under Sections 279, 337, 338 & 304-A IPC.

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The police after investigation had filed charge sheet against the petitioner for the alleged offences. The petitioner claimed to be tried, and therefore, in order to substantiate its case, the prosecution had examined in all 13 witnesses as PWs1 to 13 and got marked 17 documents as Exs.P-1 to P-17. On behalf of the defence, no witnesses were examined nor was any document marked. The Trial Court, thereafter, heard the arguments on both sides and vide the impugned judgment and order dated 12.12.2012 convicted the petitioner for the offences punishable under Sections 279, 337, 304-A & 338 IPC and sentenced him to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 279 IPC and the accused was further sentenced to pay fine of Rs.500/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 337 IPC, and he was also sentenced to undergo simple imprisonment of six months and pay fine of Rs.3,000/for the offence punishable under Section 304-A IPC and in default to undergo simple imprisonment for one month. The

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CRL.RP No. 382 of 2014

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accused was also sentenced to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 338 IPC. Being aggrieved by the said judgment and order of conviction and sentence passed by the Trial Court, the petitioner had preferred Crl.A.No.239/2012 and the said appeal was dismissed by the I Addl. Sessions Judge, Shivamogga, vide its judgment and order dated 19.05.2014. It is in this factual background, the petitioner has preferred this criminal revision petition before this Court.

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Learned Counsel Sri Pramod who was appointed as Amicus Curiae by this Court in this case submits that the courts below have erred in placing reliance on the sole evidence of PW-11 for the purpose of convicting the petitioner. He submits that all the other eye-witnesses who have been examined on behalf of the prosecution have failed to identify the petitioner as the driver of the bus in question at the time of accident. He submits that PW-11 was not a eye-witness to the accident and he was only an employee of the bus company which had authorized him to get the bus released which was seized in connection with the accident in question. He submits that a

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CRL.RP No. 382 of 2014

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mere stray statement of PW-11 cannot be the sole basis for convicting the petitioner for the alleged offences when undisputedly the other eye-witnesses have failed to identify the petitioner as the driver who had caused the accident.

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Per contra, learned HCGP appearing on behalf of the respondent-State submits that even though the other eyewitnesses have not identified the petitioner as the driver of the vehicle in question which had caused the accident, PW-11 has categorically stated that the petitioner was appointed as the driver of the bus in question by the company and PW-11 has not been cross-examined by the accused, and therefore, the said statement of PW-11 has remained uncontroverted, and hence, no fault can be found in the judgment passed by the courts below in holding the petitioner guilty in respect of the alleged offences. He submits that the courts below have recorded a concurrent finding of guilty against the petitioner and unless it is pointed out that the said finding recorded by the courts below are perverse, this Court in exercise of its revisional jurisdiction cannot interfere. He, accordingly, prays to dismiss the revision petition.

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CRL.RP No. 382 of 2014

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I have carefully considered the arguments on both

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sides and also perused the material available on record.

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It is the case of the prosecution that on 18.10.2009 at about 3.00 p.m., the bus bearing registration No.KA-20-A-8114 which was owned by Hanuman Bus Company driven by the petitioner in a rash and negligent manner had dashed against the omni car bearing registration No.KA-32-M-2917 and had caused the accident, wherein a girl by name Prerana who was the inmate of the omni car had succumbed to the injuries caused in the accident and several other inmates of the bus and the omni car had suffered grievous injuries.

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In order to substantiate its case, the prosecution had examined altogether 13 witnesses. PWs-1 & 2 are the inmates of the bus. PW-1 is the complainant and he had suffered grievous injuries in the accident. The inmates of the bus have stated that the bus was driven in a rash and negligent manner and it had dashed against the omni car which was coming from the opposite side viz., Hosanagara side. However, PW-1 as well as PW-2 have stated that they could not see the driver who was driving the bus, and therefore, they had stated before the

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CRL.RP No. 382 of 2014

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Court that they are not in a position to identify the driver of the bus.

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PWs-3 to 8 are the inmates of the omni car and they

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have consistently stated that the driver of the offending bus belonging to Hanuman Bus Company was driving the bus in a rash and negligent manner and had dashed against the omni car and thereby caused the accident. PW-4 who was the driver of the omni car has stated that he was driving the car on the extreme left side of the road and the bus which was coming in a rash and negligent manner dashed against his car. All these witnesses have consistently stated that the driver of the bus was driving in a rash and negligent manner. However, even these witnesses i.e., PWs-3 to 8 who were the inmates of the omni car have stated that they have not seen the driver of the bus at the time of the accident and thereby they have stated before the Court that they were not in a position to identify the driver of the bus. Therefore, all the eye-witnesses who have been examined by the prosecution have failed to identify the petitioner as the driver of the bus which had caused the accident in question.

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CRL.RP No. 382 of 2014

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PW-9 is the person who has drawn the spot mahazar, whereas PW-10 is the panch witness for the spot mahazar. PW11 who was working as a clerk in Hanuman Bus Company was authorized by the bus company for getting the bus in question released as the same was seized by the police after the accident. He has deposed to the effect that he was authorized by the company for getting the bus released and accordingly, he has taken the custody of the bus from the police station. He has also stated that at the time of the accident, petitioner was the driver of the vehicle. Placing reliance on this statement made by PW-11, the Trial Court had passed the order of conviction against the petitioner which has been upheld by the Appellate Court.

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PWs-1 to 8 who were the inmates of the offending bus and the omni car, have categorically deposed before the court that they have not seen the petitioner at the time of accident and they have stated that they are not in a position to identify the driver of the bus. PW-11 is admittedly not the eyewitness to the accident in question. He has been examined on 09.03.2012 before the Trial Court and he has stated that the bus bearing registration No.KA-20-A-8114 belongs to Hanuman

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CRL.RP No. 382 of 2014

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Bus Company, in which he is working and he was authorized by the company to get the said bus released, and accordingly, he has taken possession of the bus. He has not stated as to from which date he is in service in the bus company. He has not stated that the petitioner was an employee of the bus company in which he is working. He has also not identified the petitioner. Under Section 133 of the Motor Vehicles Act, a duty is cast on the owner of the vehicle to give the particulars of the driver who was driving the vehicle which had caused the accident. The prosecution has not produced any material to show that such a notice was issued in the present case to the owner of the bus. It is also not its case that PW-11 was authorized by the bus company to depose before the court pursuant to such a notice issued under Section 133 of the Motor Vehicles Act to the owner of the bus. Under the circumstances, it cannot be said that PW-11 who was only working as a clerk in the bus company which owned the offending bus, had the authorization on behalf of the company/owner of the offending vehicle to give the particulars of the driver of the offending vehicle as provided under Section 133 of the Motor Vehicles act. The eye-witnesses to the accident in question including the injured complainant have failed to identify the petitioner as the driver of the vehicle

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10 -

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CRL.RP No. 382 of 2014

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in question who had caused the accident, and therefore, solely

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on the basis of a stray statement made by PW-11, who admittedly is not an eye-witness to the accident, the courts below could not have held the petitioner guilty of the alleged offences and convicted him for the same. Merely for the reason that PW-11 was not cross-examined by the petitioner, it cannot be said that the prosecution has successfully proved that the petitioner was driving the bus in question at the time of accident. The courts below have failed to appreciate that the evidence of PW-11 is not corroborated and on the other hand, all the eye-witnesses who were examined by the prosecution have failed to identify the petitioner as the driver of the offending bus which had caused the accident.

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Under the circumstances, I am of the considered view that the courts below were not justified in convicting the petitioner for the alleged offences, and therefore, the impugned judgment and order of conviction and sentence passed by the courts below cannot be sustained. Accordingly, the following order:

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This revision petition is allowed. The judgment and order of conviction and sentence dated 12.12.2012 passed by

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CRL.RP No. 382 of 2014

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the Court of Civil Judge & JMFC, Hosanagara, in C.C.No.635/2010, and the judgment and order dated 19.05.2014 passed by the Court of I Addl. Sessions Judge, Shivamogga, in Crl.A.No.239/2012, are set aside. The petitioner is acquitted of the offences under Sections 279, 337, 338 & 304-A IPC.

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The fee of Amicus Curiae is fixed at Rs.5,000/-.

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Sd/JUDGE

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Sanjeeva Shetty v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sanjeeva Shetty v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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