Dismissed

Sri Ganeshan K v. the State

Karnataka HC21 Oct 2024CRL.RP/74/2023

Case brief

AI extract

What is this about?

Road traffic accident revision: lorry driver's conviction for negligent driving causing a pillion rider's death was upheld by trial and appellate courts; the High Court found the prosecution evidence cogent and dismissed the revision, upholding both conviction and six-month sentence.

What the court decided

AI extract

Sri Ganeshan K Vs the State — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 74 OF 2023

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BETWEEN:

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SRI. GANESHAN K, S/O LATE KULANDAISAMY, AGED ABOUT 56 YEARS, R/A NO. 38, PERIYA, THATHAMPALAYM, PALLA MURUTHAPPATTI POST, KARUR TALUK AND DISTRICT, TAMILNADU.

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…PETITIONER

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(BY SRI. DENNY M.R, ADVOCATE)

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AND:

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THE STATE THROUGH TRAFFIC EAST P.S., MANGALURU, NOW REPRESENTED BY SPP, HIGH COURT BUILDING, BANGALORE.

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…RESPONDENT

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. VINAY MAHADEVAIAH, HCGP)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE AND ORDER DATED 20.12.2022 PASSED AND SENTENCE IN CRL.A.NO.187/2021 (ANNEXURE-A) AFFIRMING THE CONVICTION IMPOSED BY THE COURT OF JMFC III COURT, MANGALURU IN C.C.NO.3470/2017 (ANNEXURE-B) BY JUDGMENT DATED 25.11.2021 FOR THE OFFENCE P/U/S.279, 337, 304-A OF IPC AND OFFENCE P/U/S.134(A)(b) R/W SEC.187 OF IMV ACT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard learned counsel for the revision petitioner and learned High Court Government Pleader for the

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State/respondent.

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The present revision petition is filed by the revision petitioner/accused challenging the order of conviction and sentence passed in C.C.No.3470/2017 dated 25.11.2021 on the file of JMFC (III) Court, Mangaluru for the offence punishable under Sections 279, 337, 304A of IPC and Sections 134(a)(b) read with Section 187 of IMV Act which was confirmed in Criminal Appeal No.187/2021 dated 20.12.2022 on the file of I Addl. District and Sessions Judge, Mangaluru.

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The order of conviction and sentence passed by the learned Trial Magistrate reads as under:

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“Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offences punishable under Sections 279,337 and 304(A) of IPC and for the offence punishable under Section 134(a)(b) read with Section 187 of IMV Act.

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3 - NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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For the offence punishable under Section 279 of IPC, the accused is sentenced to pay fine of Rs.1,000/- and in default of payment of fine he shall undergo SI for a period of 15 days.

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For the offence punishable under Section 337 of IPC, the accused is sentenced to pay fine of Rs.500/- and in default of payment of fine he shall undergo SI for a period of 15 days.

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For the offence punishable under Section 304(A) of IPC the accused is sentenced to undergo SI for a period of 6 months and shall also pay fine of Rs.5,000/- and in default of payment of fine he shall undergo further SI for a period of 3 months.

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For the offence punishable under Section 134(a)(b) read with Sec.187 of IMV Act the accused is sentenced to pay fine of Rs.500/- and in default of payment of fine he shall undergo SI for a period of 10 days.

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The bail bond of the accused stands canceelled and the cash security amount deposited by him stands forfeited to state.

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Office to supply free copy of the judgment to the accused forthwith in compliance of Section 363 of Cr.P.C.”

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Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:

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4.1. Upon the complaint lodged by Sri.Nowfal, traffic

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East Police, Mangalore registered a case against the accused for the offence punishable under Sections 279,

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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337, 304A of IPC and Sections 134(a)(b) read with Section 187 of IMV Act.

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4.2. Complaint averments reveal that on 12.04.2017 around 2.30 p.m., accused being the driver of the lorry bearing No.TN.47.T.9832 drove the same in rash and negligent manner from KPT towards Kottara Chowki. While driving the vehicle, dashed against the motorcycle bearing No.KA.19.EP3506 which was ridden by Sri.T.A.Abdul Ajij and as a result of said collusion, the rider of the motorcycle fell down on the left side of the road and pillion rider fell down on the right side of the road and lorry driver ran over the pillion rider whereby pillion rider by name Smt.Kamrunnisa died on the spot.

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After registering the case, police thoroughly investigated the case and filed charge sheet against the accused. Presence of the accused was secured and plea was recorded. Accused pleaded not guilty and therefore, trial was held.

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In order to prove the case of the prosecution, in all thirteen witnesses were examined by the prosecution as P.W.1 to P.W.13. Prosecution placed reliance on twenty seven documents on record, which were exhibited and marked as Exs.P.1 to Ex.P.27 comprising of spot mahazar, spot sketch, seizure mahazar, inquest mahazar, P.M.report, lorry and bike photos, IMV report, notice under Section 133 of the IMV Act, reply to the notice, indemnity bond, wound certificate and FIR.

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Detailed cross-examination of material

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witnesses i.e., P.W.1, 2 and 4 did not yield positive material on record so as to disclose the case of prosecution.

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In the cross-examination of P.W.1, 2 and 4, it was suggested that accident has occurred on account of negligence of the rider of the motorcycle which were denied by them. P.W.1 has specifically stated in his crossexamination that he was coming from the opposite side and he has witnessed the accident. P.W.2 also supported

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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the case of the cross-examination in toto . P.W.4 to 6 have also deposed in corroboration with the version of the complainant and other eye witnesses.

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Thereafter, the learned Trial Magistrate

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recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein accused has denied all the incriminatory materials and did not chose to place on record any written submissions as is contemplated under Section 313(4) of Cr.P.C. nor placed any defence evidence on record.

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Subsequent there to, learned Trial Magistrate heard the arguments of the parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced as referred to supra.

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Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.187/2021.

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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The learned Judge in the First Appellate Court after securing the records and hearing the arguments of both the sides, vide judgment dated 20.12.2022, dismissed the appeal of the accused.

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Being further aggrieved by the same, accused is before this Court, in this revision on following grounds:

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The impugned order is opposed to law, facts and evidence in the case. The courts below have acted illegally and with material irregularity in passing the impugned judgments convicting the petitioner for the offence punishable u/s 304 A of IPC.

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The conviction and sentence are contrary to law, weight of evidence on facts of the case and against the principles of natural Justice.

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The First appellate court has failed to consider the fact that, the Trial court has grossly failed to appreciate the evidence on record and as a wrong connotation proceeded to convict the Petitioner for the alleged offences.

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The Appellate Court and the trial court erred on placing reliance on the evidence of PW.1 to PW.13 for convicting the appellant, particularly in view of the material contradiction brought out on the records. The trial court erred in closely scrutinizing the evidence of PW.1 and PW.13.

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The trial court failed to observe that the injury to the child was to the chest, but in the evidence PW.1 deposed that due to accident the tyre of the accused vehicle was passed over the body of the

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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pillion rider by name Kamarunnisa. That the PW.1 to PW.13 are interested witnesses and they suppressed the true fact of the accident. The evidence of PW.1 to PW.13 are not corroborated by any other independent witnesses.

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The trial court ought to have held that the accident occurred only due to rash and negligent driving of the PW.1. But the learned magistrate has lost sight of these facts and not even discussed as to how the Hon'ble Court come to the conclusion that the accused is rash and negligent in driving the same.

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The trial court ought to have held that the PW.1 to PW.3 are the interested witnesses. All the witnesses admitted that the place of incident is busy locality there are several residential house shops bank etc., but prosecution not examined independent witness.

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The place of incident is busy traffic area of Mangalore City. There was no chance to drive the lorry with high speed by the appellant.

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The appellant in the above case from Tamil Nadu State. he knows only Tamil Language. Hence at the time of 313 statement appellant have not given explanation regarding the prosecution case.

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The trial court ought to have held that the prosecution failed to prove that the accused vehicle was not in moving condition at the time and date of alleged accident as per prosecution case. Moreover it is not the case of the prosecution that due to the said accident the front wheel of the accused vehicle detached it is not revealed in IMV report.

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The testimony of the witnesses is highly inconsistent and untrustworthy that being so the trial court ought to have acquitted the appellant.

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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The trial court appears to have laboured more to convict the appellant that acquitting him. Hence prayed to allow the appeal and to set aside the judgment of conviction and order of sentence passed by the trial court.

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The Trial judge has failed to observe the cardinal principle of criminal jurisprudence that is the guilt of the accused must prove beyond reasonable doubt.

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The trial judge has wrongly interpreted the decision cited by the Complainant and convicted the appellants/Accused's without there being any incriminating evidence and the trial judge has in a casual manner arrived at a conclusion basing on presumptions and sumarises that, the Petitioner/Accused has committed an offence punishable U/s 279, 337 & 304 (A) of IPC and offences punishable under section 134(a)(b) R/w Section 187 of IMV Act.

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The Trial judge has failed to take note of the fact that, the Respondents has utterly failed to produce convincing cogent evidence to bring home the guilt of the Petitioner.

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The Hon'ble Trial Court has failed to give its findings in the disputed facts and the documents related to the alleged transactions.

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The Hon'ble Trial court and the Session Court have erroneously relied upon the evidence of the PW1 which is inconsistent with the complaint and the entire transactions pleaded in the Complaint.

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Reiterating the grounds urged in the revision

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petition, learned counsel for the revision petitioner vehemently contended that both the Courts have not

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properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice and sought for admitting the revision petition for further consideration.

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Per contra, learned High Court Government Pleader supports the impugned judgment by contending that P.W.1, 2 and 4 were totally strangers to the deceased and injured and they did not nurture any previous enmity or animosity as against the accused or extra affinity towards the deceased and rider of the motorcycle. Therefore, their testimony cannot be an treated as interested testimony which has been rightly appreciated by the learned Trial Magistrate in the impugned judgment and rightly reappreciated by the learned Judge in the First Appellate Court. As such, this Court having regard to the scope of the revisional jurisdiction, cannot upset the finding recorded by both the Courts and sought for dismissal of the revision petition.

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, loss of life of Kamrunnisa in the road traffic accident that occurred on 12.04.2017 near KPT circle, involving the motorcycle bearing No.KA.19.EP.3506 and lorry bearing No.TN.47.T.9832 has been established by the prosecution by placing cogent and convincing evidence on record.

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After registration of the complaint, police have thoroughly investigated the matter and filed charge sheet against the driver of the lorry which remains unchallenged. Suggestion made to the prosecution witnesses is to the effect that accident has occurred on account of the negligent riding of the motorcycle by the rider of the motorcycle. Same is not established by placing material evidence on record. Atleast cleaner of the lorry could have been examined to establish that it is on account of the negligent riding by the rider of the motorcycle resulted in accident. No such effort is made by the accused.

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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Thus, following the principles of law enunciated in various judgments and also having regard to the principles of law enunciated in the case of Ravi Kapur V/s. State of Rajasthan reported in 2012 (9) SC 284 , this Court is of the considered opinion that the order of conviction passed by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference.

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Insofar as the, sentence is concerned, learned Trial Magistrate using the discretion, has granted six months imprisonment and same is not challenged by the State.

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Having regard to the principles of law enunciated by the Hon’ble Apex Court in the case of State of Punjab V/s. Saurabh Bakshi reported in (2015) 5 SCC 182 , this Court is of the considered opinion that six months imprisonment for the aforesaid offences is just and proper and thus, requires no interference.

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NC: 2024:KHC:42210 CRL.RP No. 74 of 2023

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Accordingly, following:

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ORDER

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i. Grounds urged in the revision petition are meritless. Accordingly, admission declined. Consequently, revision petition is dismissed .

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ii. Time is granted for the revision petitioner to surrender before the Trial Court for remaining part of the sentence till 10.11.2024.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 47 CT: BHK

Sri Ganeshan K v. the State

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Sri Ganeshan K v. the State

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