Basavaraj S/O Channaveerappa Katenahalli Vs State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.PC., PRAYING TO CALL FOR THE RECORDS AND TO ALLOW THE PRESENT REVISION PETITION AND TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 28.02.2014 IN C.C.NO. 1050/2012 AND ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the judgment of conviction and order of sentence dated 28.02.2014 passed in C.C.No.1050/2012 by the Principal Civil Judge and I Additional JMFC, Ranebennur, confirmed in Crl.A.No.15/2014 vide judgment dated 28.12.2017 by the II Additional District and Sessions Judge Haveri, sitting at Ranebennur.

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Parties to this revision petition are referred to as per their rank before the trial Court.

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It is the case of the petitioner/accused, that he was charge sheeted by the PSI, Halageri Police Station, Ranebennur for the offences under Sections 279, 304(A) of IPC on the ground, that on 16.08.2012 at about 6 p.m, the accused herein being the driver of the Lorry bearing Registration No.KA-23-8011 drove the same from Rattihalli to Halageri in high speed, in a rash and negligent

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manner endangering human life and near Harogoppa Bus Stand, dashed to a boy by name Rajabaksh, who was crossing the road and the said boy died on the spot.

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The Investigation Officer on completion of the investigation filed the charge sheet against the accused for the aforesaid offences. The Jurisdictional Magistrate took cognizance of the offence. Presence of the accused was secured and he was enlarged on bail. Copies of the police papers were furnished to him as contemplated under Section 207 of Cr.P.C. Thereafter, the learned Jurisdictional Magistrate recorded the plea of the accused for the offences under Sections 279, 304(A) of IPC, for which accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution in all examined 9 witnesses from PW.1 to PW.9 and got marked Exs.P1 to P12 and closed prosecution evidence. Thereafter accused was questioned under Section 313 of Cr.P.C. so as to enable him to answer the incriminating

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circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.

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The learned trial Court on hearing the arguments and on assessment of the evidence found the accused guilty of committing the offences under Sections 279, 304(A) of IPC and sentenced him as under:

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“ Accused is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1000/- for the offence punishable under Section 279 of IPC, in case of default of payment of fine, the accused shall further undergo simple imprisonment for one month.

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Accused is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1000/- for the offence punishable under section 304(A) of IPC, in case of default of payment of fine, the accused shall further undergo simple imprisonment for one month.

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All sentences shall run concurrently.”

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This judgment of conviction and order of

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sentence was challenged by the accused before the II Additional District and Sessions Judge at Haveri sitting at Ranebennur by preferring Crl.A.No.15/2014. The learned lower appellate Court, on hearing the arguments and on evaluation of the evidence confirmed the said judgment and order of sentence by passing judgment dated 28.12.2017. Now the petitioner is before this Court challenging the judgments of the Courts below.

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The learned counsel for the petitioner/accused,

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Sri. A.M.Gundawade submits that, all is not well with the case of the prosecution. He would submit that, the complaint averments themselves show that, when the deceased was crossing the road, the said accident has taken place. Because of sudden crossing of the road by the deceased, the accused as he was driving the vehicle in a cross road, where four roads are approaching, it was not possible for the driver to control the vehicle. Therefore, according to him, no rashness and negligence can be

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attributed against the accused in causing the said accident. He would submit that, though PW.1 is stated to be an eye witness, but in view of his evidence stated in his chief examination as well as in the cross-examination, he cannot be branded as an eye witness. The other eye witnesses examined by the prosecution in the shape of PW.4 to PW.6 have been turned hostile. The only evidence of IO is available which will not prove the rash and negligent driving of the Lorry by the accused. He would submit that, the learned trial Court as well as the first appellate Court have committed illegality in appreciating the evidence and convicting the accused. In addition to the grounds urged in the revision petition and also the evidence placed on record, he prays to allow this revision petition and set aside the impugned judgments.

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As against this submission, the learned Smt. Mala Bhute, Additional Government Advocate submits that, the learned trial Court as well as the first appellate Court have considered the evidence of PW.1, so

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also the Investigation Officer and hence, no interference is required into the impugned judgments. According to her submission, as it was a cross road, the drivers of the vehicles must be very diligent and vigilant in driving the vehicles in the cross roads. But in this case, the accused being the driver of a Lorry was not diligent and he was driving the Lorry in a rash and negligent manner in high speed and suddenly dashed to the deceased Rajabaksh. According to her submission, both the Courts have properly appreciated the evidence and have rightly concluded that, the said accident has taken place because of the rash and negligent driving of the Lorry by the accused. Hence, she prays to dismiss the revision petition.

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Sofaras provisions of Section 397 of Cr.P.C is concerned, the scope to interfere into the judgments of the Courts below is very much limited, unless the judgments of the Courts below are perverse and capricious and without properly appreciating the evidence, then only

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the revisional Court can interfere into such judgments. Now let me analyze that, whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubts.

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11. Sofaras death of the deceased Rajabaksh in

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the said accident is concerned, it is not in dispute. To prove the said fact, the prosecution relies upon contents of the complaint, spot panchanama, photographs, inquest panchanama, PM report marked at Exs.P1 to P5 and P9 respectively. These documents to demonstrate about the accident, so also death of Rajabaksh in the said accident. It is also not in dispute that, the said accident has taken place not because of any mechanical defects. To prove the said fact, prosecution relies upon the Motor Vehicle report as per Ex.P12.

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Sofaras contents of the complaint is

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concerned, PW.1 being the complainant has submitted a complaint alleging, that the said Rajabaksh came to the

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Harogoppa bus stand so as to enable this complainant to board the bus. He boarded the bus leading towards Rattihalli. At that time, deceased Rajabaksh was crossing the road from Rattihalli side towards Halageri. At the time a Lorry came from his behind and dashed against him. The contents of the complaint itself establish that, the said Rajabaksh, when he was crossing the road, the said accident has taken place. Coupled with that, Ex.P2, the panchanama shows, where exactly the said accident has taken place. Photographs shows the place of accident,

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which is being snapped by the police at the time of conducting the panchanama. Inquest panchanama is also produced to show that, after death of the deceased Rajabaksh, the inquest panchanama was conducted. The most important document relied upon by the prosecution is the Sketch. It is marked at Ex.P11. It shows that, the scene of offence is at the middle of the four cross roads, i.e., four roads approaches at the said place and the Rajabaksh while crossing the main road itself, the said accident has taken place. That means when an attempt

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was made by the deceased to cross the road, that is, at the public highway, at that time a Lorry came and dashed against him. When it is a main highway having four approaching roads, the deceased would have been more cautious to cross the road. But it is not so. Therefore, as rightly submitted by the counsel for the accused, because of sudden crossing of the road by the deceased, the said accident must have taken place. This possibility cannot be ruled out.

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13. Further, sofaras oral evidence is concerned,

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PW.1 though cited as an eye witness, but he specifically states that, when deceased was crossing the road at the said circle, where four roads approaches, Lorry came from Rattihalli side and dashed to the deceased Rajabaksh and he died on the spot i.e., when there was sudden crossing of a road by the deceased, the said accident has taken place. He has been cross-examined at length by the defence. As per his evidence, after boarding the bus he sat in the bus by the side of the window facing towards

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Rattihalli. The said accident has taken place behind him. That means, he could not have seen the said accident in the manner stated in the complaint. Therefore, the evidence of PW.1 does not inspire any confidence that, he is really an eye witness to the said incident. Hence, the evidence of PW.1 would not help the case of the prosecution.

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PW.2 – Manjappa Lamani and PW.3 -

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Chandrappa Malladad are stated to be a panchas to Ex.P2. Contents of this panchanama are not disputed by the defence. Therefore, from the evidence of PW.2 and 3, it is proved that, in the presence of PW.2 and 3, the scene of offence panchanama was conducted by the police. No effective cross-examination is directed to these PW.2 and 3 by the defence.

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PW.4 – Shabudeen Gavenavar, PW.5 – Mrutunjaya Choudakkanavar, PW.6 – Shareefsab

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Gavenavar are the eye witnesses cited by the prosecution.

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According to the case of the prosecution, these three eye witnesses have witnessed the said accident. But they have been turned hostile. Nothing worth is elicited so as to disbelieve their version given in this examination-inchief. Therefore, evidence of these witnesses would become inconsequential to the case of the prosecution.

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PW.7 – Devroy is the PSI and PW.8 -K.C.Giri

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is the Circle Inspector at the relevant time, who have conducted investigation and filed the charge sheet respectively. In all criminal cases, panchas are the authors of the panchanama and investigation officers are the supervisors of the investigation. Unless there is corroborative evidence, the evidence of these Investigation Officers become formal in nature. To the extent of conducting investigation and filing of the charge sheet, the evidence of these PW.7 and PW.8 is to be accepted.

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On overall reading of the entire evidence

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placed on record by the prosecution, it do suggests that, because of sudden crossing of Rajabaksh in the middle of the road, i.e. , where four roads approach, the said accident has taken place. When the driver of the Lorry was driving the Lorry on the main road, no doubt he is under duty to take care, but when he was driving on the main highway, they cannot be stated that, he was really rash and negligent in driving the Lorry. Because of sudden crossing of Rajabaksh in a cross road, the said accident has taken place. No eye witnesses have supported the case of the prosecution. That means the ingredients of the offences so alleged against the accused are not fulfilled by the prosecution.

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The learned trial Court as well as the first appellate Court have not properly appreciated the evidence in proper perspective. Just believing the evidence of PW.1 and evidence of the IO’s have wrongly come to the conclusion that, accused is guilty of the

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offences so alleged against him. When there is no proper appreciation of the evidence by both the Courts below, this

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Court can very well exercise its power under Section 397 of Cr.P.C and interfere into such judgments. In view of discussions made above, the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubts. A doubt arises in the case of prosecution and that benefit of doubt has to be extended to the accused. Therefore, the accused is entitled for acquittal by giving benefit of doubt.

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Resultantly, I pass the following:

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ORDER

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i) The Revision Petition is allowed .

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ii) Consequentially, the judgment of conviction and order of sentence dated 28.02.2014 passed in CC.No.1050/2012 by the Principal Civil Judge and I Additional JMFC, Ranebennur, confirmed in Crl.Appeal No.15/2014 vide judgment dated

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