Raju S/O Beeka Marati Vs the State of Karnataka

RAJU S/O. BEEKA MARATI, AGE: 50 YEARS, OCC: N.P.C. EMIPLOYEE, R/O: KAIGA TOWN SHIP, MALLAPUR, TQ: KARWAR, DIST: UTTARA KANNADA, NOW R/AT: D-46/2, KAPS TOWNSHIP, POST: ANUMALA,TQ: VYARA, DIST: TAPI, STATE: GUJARATH-394651.

¶12

…PETITIONER

¶13

(BY SRI. GANAPATI M. BHAT, ADVOCATE)

¶14

AND:

¶15

Digitally signed by SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench

¶16

THE STATE OF KARNATAKA BY ITS YELLAPUR POLICE, NOW REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BENCH BUILDING,DHARWAD.

¶17

…RESPONDENT

¶18

(BY SRI. PRAVEEN. K. UPPAR, AGA)

¶19

THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 AND 401 OF CR.P.C., PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 02.03.2018 PASSED BY THE COURT OF 1ST ADDL. DISTRICT & SESSIONS JUDGE, U.K. KARWAR, SITTING AT: SIRSI IN CR. A. NO.82/2012 AND CONFIRM THE JUDGEMENT & ORDER DATED 28.02.2012 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, AT: YELLAPUR IN C.C. NO.211/2011 FOR THE CHARGES U/SEC.279, 304-A OF INDIAN PENAL CODE, IN THE INTEREST OF JUSTICE AND EQUITY.

¶20

2 -

¶21

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶22

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE ORDER THEREIN AS UNDER:

¶23

CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

¶24

ORAL ORDER

¶25

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

¶26

This Revision Petition is directed against the judgment of conviction and order of sentence in Criminal Appeal No.82/2012 dated 02.03.2018 by the I Additional District and Sessions Judge, Karwar (sitting at Sirsi), Itinery Court at Yallapur, as the judgment of acquittal passed in CC No.211/2011 dated 28.02.2012 by the JMFC, Yallapur wherein the accused was charge sheeted by the Yallapur Police for the offences punishable under Sections 279 and 304A of IPC.

¶27

Parties to this revision petition are referred to as per their rank before the Trial Court for convenience.

¶28

According to the case of the prosecution, the present petitioner-accused was charge-sheeted by the Police Inspector of Yallapur Police Station for the offences

¶29

3 - NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶30

punishable under Sections 279 and 304A of IPC on the ground, that the accused herein on 05.09.2011 at about 7:00 PM, on National Highway No.63 near Chikamavalli Cross, being the driver of the car bearing Registration No.KA-30/M-3528 drove his car in a rash and negligent manner endangering human life, lost control over the car and moved to the extreme right side of the road and dashed to the motorcycle bearing Registration No.KA31/Q-1384 and as a result of which, the rider and pillion rider fell down. The pillion rider of the said vehicle Smt.

¶31

Swetha Sridhar Nayak, sustained grievous injuries and died in the hospital. With these allegations, a complaint came to be filed and the crime was registered against the accused for the aforesaid offences in Crime No.178/2011. Thus, criminal law was set in motion. The investigation officer, after conclusion of the investigation, filed the charge sheet against the accused for the aforesaid offences.

¶32

4 -

¶33

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶34

The jurisdictional Magistrate took cognizance of

¶35

the offences, presence of the accused was secured and he was enlarged on bail.

¶36

Substance of accusation came to be framed , read over to the accused in Kannada, in the language known to him for which he pleaded not guilty and claimed to be tried.

¶37

Before the trial Court, to prove the guilt of the accused, the prosecution, in all examined 8 witnesses as P.Ws.1 to P.Ws.8 and got marked documents as per Exs.P.1 to P.10 with respective signatures thereon. On behalf of the defence, Exs.D1 and D2 came to be marked during the course of cross-examination. After closure of the evidence of the prosecution, 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 the prosecution. He denied his complicity in the crime and he did not choose to lead any defence evidence on his behalf.

¶38

5 -

¶39

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶40

The learned trial Magistrate after hearing the

¶41

arguments and on evaluation of the evidence, found that the accused is not guilty of the offences and thereby passed an order of acquittal of the accused for the offences under Sections 279 and 304A of IPC. Being aggrieved by same, the State preferred appeal before the I Additional District and Sessions Judge, Karwar, sitting at Sirsi, in Criminal Appeal No.82/2012. The first Appellate Court, on hearing the arguments and on reassessment of the evidence found the accused guilty of committing the offences under Sections 279 and 304A of IPC and sentenced him as under:-

¶42

“Acting U/s 255(1) of Cr.PC., the accused is convicted for the offence punishable U/s.279, 304A of IPC.

¶43

The accused is sentenced to undergo SI for period of six months and to pay fine of Rs.5,000/for the offence punishable U/s.304A of IPC., in default, SI for one month.”

¶44

6 -

¶45

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶46

This is how now the accused is before this Court by filing this revision petition under Section 397 of Cr.P.C. The learned counsel for the accused-revision petitioner, Sri. Ganapathi Bhat submits that, the learned trial Court has properly appreciated the evidence and found that there was no rash and negligent driving of the car by its driver and none of the witnesses have supported the case of the prosecution and rightly acquitted the accused.

¶47

He further submits that the first Appellate Court, without appreciating the evidence in a proper manner and without applying its mind in proper perspective, has set aside the impugned judgment and convicted the accused. In addition to his admissions, he referred, the grounds urged in the revision petition. He disputes the findings in the judgment passed by the learned first Appellate Court, and submits that, it is required to be set aside and the judgment of acquittal passed by the trial Court is to be restored. He prays to allow the revision petition.

¶48

7 - NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶49

As against this submission, the learned AGA

¶50

submits that, as the learned trial Court has committed a

¶51

grave error in acquitting the accused, an appeal was preferred by the State before the District and Sessions Judge, Karwar, sitting at Sirsi. The learned first Appellate Court by appreciating the evidence placed on record, and on re-appreciation of the same had rightly set aside the impugned judgment and convicted and sentenced the accused. He submits that, no fault can be found with the reasoning and findings of the learned first Appellate Court.

¶52

He submits that, the eyewitnesses even the injured complainant has supported the case of prosecution and in the said accident, the pillion rider has lost her life. He submits that there are no grounds to interfere into the judgment of the learned first Appellate Court. Hence, he prays to dismiss the revision petition.

¶53

I have given my anxious consideration to the arguments advanced by both the side and meticulously

¶54

8 -

¶55

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶56

perused the papers. The point that would arise for consideration is as under:

¶57

i) Whether the judgment of the learned first Appellate Court suffers from any illegality and infirmity and it requires interference by this Court?

¶58

ii) If so, whether the judgment of trial Court requires to be restored?

¶59

It is a case of accident. The main allegation of

¶60

the prosecution against the accused is that, because of the rash and negligent driving of the car, on that ill-fated day, the said accident has taken place. The said car dashed against the motorbike bearing Registration No.KA-31Q/1384 driven by the complainant Sridhar along with his wife Swetha Nayak as a pillion rider. Because of this impact, both the rider and pillion rider fell down and deceased Swetha Nayak sustained injuries on her person and died in the hospital. Thus, according to the case of the prosecution, because of the rash and negligent driving of the car by the accused, the said accident has taken place.

¶61

9 -

¶62

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶63

To that effect, prosecution relies upon the complaint at Ex.P1. This complaint is filed by the complainant Sridhar

¶64

Nayak by stating that, on 05.09.2011, after the school hours, himself and his wife Swetha Nayak were moving on their motorcycle bearing Registration No.KA-31-Q-1384 towards Yellapur Bazaar from Mavalli. When they reached Mavalli cross from Yellapur side towards Hubballi, one car

¶65

came in high speed, in a rash and negligent manner, dashed to the motorbike. Because of this impact, both fell down and sustained injuries and subsequently, his wife Swetha Nayak died. To that effect, he lodged a complaint as per Ex.P1. Ex.P2 is the panchanama of the scene of offence, wherein where it states, where exactly the said accident has taken place. Ex.P3 is the sketch and it shows that, where exactly the said accident has taken place. Ex.P4 is the inquest panchnama on the dead body of deceased Swetha. The cause of death of Swetha Naik was

¶66

because accidental injuries which is not in dispute. Ex.P5 is the PM report and this PM report shows the nature of the injuries sustained in the said accident by the deceased.

¶67

10 - NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶68

Ex.P6 is the seizure panchnama of the vehicle. Ex.P7 is the Motor Vehicle Mechanical Examination Report showing the number of damages sustained to both the vehicles. The Motor Vehicle Inspector is of the opinion that, the said accident had taken place not because of any mechanical defects. This fact is admitted by both the side. Ex.P8 is the FIR. There are certain portions of the statements of the witnesses marked at Exs.D1 and D2.

¶69

So far as oral evidence lead by the prosecution is concerned, PW1-complainant though reiterates the contents of the complaint in his chief-examination, he states that, the said car was coming towards Hubballi from Yellapura side and he was driving his motorbike, the said car came and dashed on the right side of his motorbike. He fell down on the left side of the road so also his wife.

¶70

Then the car went ahead and rolled on his wife. For the first time, without any recital in the complaint, he stated so in his examination-in-chief. He sustained some lacerated injuries and his wife sustained injuries on her

¶71

11 -

¶72

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶73

forehead and blood started oozing. She also sustained injuries on her legs, left side of the chest etc. But, on perusal of the PM report, Ex.P5, the doctor has not at all noticed any such injuries in the manner stated by the complainant. No such injuries are noticed by the doctor when he conducted the post mortem except the injuries on the right medial aspect of eyebrow, abrasion over right ankle and multiple abrasions over lateral aspect of right upper limb so also braised abrasion over right upper abdomen. That means, altogether a different evidence has

¶74

been spoken to by this PW.1 with regard to the injuries suffered by his wife in the said accident. He states that initially, his wife took first aid treatment at Government Hospital, Yallapur. Thereafter, she was shifted to KIMS Hospital, Hubballi, there she died. He lodged a complaint as per Ex.P1.

¶75

He has been intensively cross-examined by the defense. According to him, he obtained the driving licence in the month of August 2009. The said accident has taken

¶76

12 -

¶77

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶78

place on 05.09.2011, i.e. within one month of taking his driving licence. According to him, as it was a Ganesha Chaturthi, he wanted to go to his brother's house at Yellapura. Therefore, he was moving along with his wife on the said motorbike. According to him, when he was about to pass the National Highway, the motorbike face was towards the northern side. He further states that when he entered the Chikamavalli Main Road, his motorbike face was on the left side. There was no dashing of the offending car on the left side of his motorbike. There was

¶79

no head on collision in between both the vehicles. He further states that, if one has to go towards Hubbali from Chikamavalli Cross, the road is towards the right side of the Chikamavalli cross. He denied a suggestion that he was moving towards Chikamavalli from Yellapura side towards Hubbali. He denied a suggestion that the car was moving behind his motorbike. He denied a suggestion that because of falling of his wife on the ground, she sustained the rib fracture etc.

¶80

13 -

¶81

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶82

On scrupulous reading of the evidence of this

¶83

PW1, he has completely changed the contents of the complaint as well as the scene of offence. Where exactly the said accident has taken place has not been properly stated by this PW1. When such an evidence is placed on record by the prosecution through this PW1, it requires corroboration.

¶84

PW2-Deepak Narayan Borekar is stated to be an eyewitness to the said accident. According to him, when the said accident took place, he was moving towards Ganapati temple from Hittinabail. At that time, the complainant and his wife were traveling on the other motorbike from Chikamavalli cross. At that time, the car came in a high speed in a rash and negligent manner and dashed to the motorbike. Because of this accident, both the rider and pillion rider fell down. He has been crossexamined at length by the defence. On scrupulous reading of the cross-examination, it shows that when the said accident took place, he was moving towards the Ganapathi

¶85

14 -

¶86

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶87

temple. The said Ganapathi temple is by the side of Chikamavalli cross towards Yellapur side. That means, the said temple is about one and half kilometers away from Chikamavalli. According to him, he was coming towards Chikamavalli cross, at that time, he was about 15 to 20

¶88

feet away from the motorbike from the said National Highway. He further states that, the place of accident is abutting the highway. Further he states that the said motorbike fell at a distance of 4 to 5 feet from the Chikkamvalli cross. Further he states that, he noticed

¶89

falling of both complainant and his wife. There was a damage caused to the headlight of the motorbike. But, PW1 never says about sustaining of damage to his vehicle. According to him, to the front portion of the motorbike, the car dashed. This evidence is quiet against the contents of the motor vehicles report prepared by the Motor Vehicle Inspector. If this evidence is scrupulously perused, it can

¶90

be stated that, he is not an eye witness to the said accident, but, simply has spoken about the accident, stating that he has seen this accident. But, his evidence

¶91

15 -

¶92

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶93

does not inspire confidence that he has really witnessed the said accident in the manner stated by him.

¶94

PW3 Mahabaleshwar J. Borekar is another

¶95

witness who states that at about 7:00 PM, on that day, he came towards Chikamavalli cross along with his cattle. At that time, he noticed that PW1 was coming from Chikamavalli cross. At that time, a car bearing Registration No.K-30-M-3528 came from Yellapura towards Hubli and dashed to the motorbike. Both PW1 and his wife fell down and his wife sustained grievous injuries on her person. But, in the cross-examination, he says that after the accident only, he saw by side of the accident. That means, he has not really witnessed the accident when it occurred and only on hearing the noise of the accident, he came to know about the said accident. Therefore, much value cannot be attached to the evidence of this PW3 that he is an eye witness to the said accident.

¶96

PW4 - Dr. Deepak Bhat is a doctor who has conducted the post mortem of the deceased. He noticed

¶97

16 -

¶98

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶99

the injuries. Whatever the injuries so stated by PW1 is quite against the contents of the injuries stated by this PW4 mentioned in the postmortem of the deceased. It is not denied by the defence, but, how the said accident has taken place and the nature of the injuries so spoken to by PW4 is not at all corroborative with that of the evidence of PW1 in material particulars. Therefore, to the extent of conducting the postmortem on the person of the deceased, his evidence is to be accepted.

¶100

PW5 Mahesh Shivanand Nayak is a pancha to Ex.P6. His presence at the time of conducting the said panchnama is not denied by the defence in material particulars. To the extent of his presence with regard to the preparation of the panchanama at Ex.P6, his evidence is to be accepted.

¶101

PW6- Vijay Kumar D.H. the Motor Vehicle Inspector has conducted the mechanical examination of the offending vehicle and issued the report as per Ex.P.7. As discussed above, he has noticed the damages sustained

¶102

17 -

¶103

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶104

by both the vehicles and according to him, there is no mechanical defects in the said vehicles. To the extent of the contents of the IMV report, his evidence is to be accepted.

¶105

PW.7-S.V.Nagvekar is Police Sub Inspector,

¶106

who registered the crime and set the criminal law in motion and conducted the spot panchanama, recorded the statement of the witness etc. To the extent of conducting the investigation, his evidence is to be accepted.

¶107

In all criminal cases, panchas are the authors of the punchnama and investigation officers are the Supervisors of investigation. In the absence of acceptable evidence from the prosecution, the evidence of the police officers becomes formal in nature.

¶108

PW.8 G.I. Nayak, the Police Inspector who has filed the charge sheet against the accused after completion of the investigation. This fact is not denied by the defence.

¶109

18 - NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶110

On overall reading of the entire evidence placed

¶111

on record by the prosecution, as rightly observed by the learned trial Court, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. But, the first Appellate Court has re-appreciated the evidence and has come to the conclusion that rash and negligent driving of the car is proved by the prosecution. The evidence of the complainant cannot be accepted so also the eye witnesses. The place of accident so shown is a mystery in this case. Where exactly, the said accident has taken place

¶112

is not proved in accordance with law. In a case of present nature, when rash and negligent driving of the vehicle is attributed against the accused persons, it is the bounden duty of the prosecution to prove the ingredients of Section 279 of IPC in material particulars. As per this Section, the prosecution is under obligation to prove that, when a person drives any vehicle or rides the vehicle, such driving or riding on any public way and such driving must be rash and negligent so as to endanger human life or to be likely to cause hurt or injury to any other person. Though the

¶113

19 -

¶114

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶115

prosecution is able to prove that accused is the driver of this offending car, so also he was driving the car towards Hubbali side on that day, but the ingredients that he was really driving the vehicle endangering the human life is not proved in accordance with law. Specific evidence is required to be adduced by the prosecution to prove the rash and negligent driving of the offending car on the part of the accused. In this case, including the complainant, none of the witnesses of the prosecution have stated anything with regard to the rash and negligent driving on

¶116

the part of the accused at the time of accident. Even similarly, none of the prosecution witnesses stated anything specific with regard to the speed of the car driven

¶117

by the accused and dashing the said motorbike. Rightly, the learned trial Court has acquitted the accused. In a case of present nature, the rash and negligent driving must be the proximate cause. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Even when one is driving a vehicle in a slow

¶118

20 -

¶119

NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶120

speed, but, recklessly and negligently, it would amount to rash and negligent driving, but in this case, it is not so. Element of speed is not a criteria for rash driving, it cannot be automatically imagined that the offending vehicle was rash but it should also necessarily be coupled with high speed, but, none of the ingredients are proved in this case. The accused being the driver of the car when he was driving the car towards Hubballi from Yellapur side, the straight road is there and what made the said driver to come towards the right side towards the Chikamavalli

¶121

Cross is not properly explained by any of the witnesses in their examination-in-chief by the prosecution . Therefore, the first Appellate Court has committed illegality in appreciating the evidence placed on record. The accused has been charged by the police for the offences under Sections 279 and 304A of IPC, but, the ingredients of the rash and negligent driving is not proved and there is no evidence about the rash and negligent driving of car. The very scene of offence so mentioned by the complainant is not properly proved and stated either in the panchanama

¶122

21 - NC: 2025:KHC-D:2045 CRL.RP No. 100071 of 2018

¶123

or in the sketch. So, in view of all these factual features, as rightly submitted the counsel for the revision petitioneraccused, the first Appellate Court has committed illegality in appreciating the evidence and coming to a conclusion that accused is guilty of said offences under Section 279 and 304A of IPC. Therefore, the judgment of the first Appellate Court requires interference and consequentially, the judgment passed by the trial Court in CC No.211/2011 dated 28.02.2012 is required to be restored by setting aside the judgment in Crl.A.No.82/2012. Accordingly, Point No.1 is answered in favour of accused and against prosecution.

¶124

Resultantly, I pass the following:

¶125

ORDER

¶126

i) The revision petition is allowed. ii) The judgement of conviction passed in Crl.A No.82/2012 dated 02.03.2018 by the I Additional District and Sessions Judge, Karwar (sitting at Sirsi), Itinery at Yallapur, is hereby set aside and consequently,

¶127