Shri.a. Prabhakar Achutan Vs the State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.PC., PRAYING TO QUASH THE ORDER OF CONVICTION DATED 12.04.2018 PASSED IN CRL.APL.NO.141/2007 ON THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE, KARWAR THEREBY CONFIRMING THE ORDER OF CONVICTION DATED 20.08.2007 PASSED IN CC NO.1051/2005 ON THE FILE OF JMFC-II COURT, KARWAR FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304A OF THE IPC, 1860 BY ALLOWING THE TOP NOTED REVISION PETITION TO MEET THE ENDS OF JUSTICE.

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

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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 passed in CC No.1051/2005 dated 20.08.2007 by the II Additional JMFC Karwar, confirmed and Crl.A. No.141/2007 dated 12.04.2018 by the Principal District and Sessions Judge Uttar Kannada, Karwar.

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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 a case of the prosecution, that on 05.12.2004 at 4:30 PM on NH.17 in between Karwar and

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Ankola at Argha village, there was work in progress of tarring the tar road. The accused being the driver of a Tipper lorry bearing registration No.KA-30/3118 came from Karwar side towards Ankola side in high speed in a rash and negligent manner, dashed to one Iravva who was sitting on the heap of jelly stored by the side of the road.

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Because of that, the said Iravva’s head was beheaded and she died on the spot. It is alleged that, because of the rash and negligent driving of the driver of the Tipper lorry only, the said accident has taken place. With these allegations, a complaint came to be filed by the husband of

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the deceased and a criminal law was set in motion. The Investigation Officer on completion of investigation filed the chargesheet against the accused. During the crime stage itself, accused was enlarged on bail. Copies of the Police papers were furnished to the accused as contemplated under Section 207 of Cr.P.C.

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Plea of the accused was recorded and he pleaded no guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution in all examined 5 witnesses from PW.1 to 5 and got marked Ex.P.1 to P.6 and closed prosecution evidence.

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On 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

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his complicity in the crime. During the course of 313 statement, accused has stated that, when he was driving

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his Tipper lorry from Karwar to Ankola, the tarring work on the highway was in progress. He was driving his vehicle in a slow manner and when he went near the scene of offence, the deceased was standing on the heap of the jelly and she lost her balance and came under the wheel of the vehicle, thus she died.

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The learned trial Court on hearing the

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arguments and on evaluation of the evidence found the

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accused guilty of committing the offence under Section 279 and 304-A of IPC and sentenced him as under:

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“zÀAqÀ ¥ÀæQæAiÀiÁ ¸ÀA»vÉ PÀ®A 255(2) gÀ Cr EgÀÄªÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹ DgÉÆÃ¦UÉ ¨sÁ zÀ ¸ÀA PÀ®A 279, 304(C) gÀ Cr EgÀÄªÀ C¥ÀgÁzsÀUÀ½UÁV ²PÉë «¢ü¸À¯ÁVzÉ.

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¨sÁ zÀ ¸ÀA PÀ®A 279 gÀ C¥ÀgÁzsÀUÀ½UÁV. DgÉÆÃ¦, 1000.00 gÀÆ¥Á¬Ä zÀAqÀ PÀlÄÖªÀAvÉ vÀ¦àzÀÝ°è 3 wAUÀ¼À PÁ® PÁgÁUÀÈºÀªÁ¸À C£ÀÄ¨sÀ«¸ÀÄªÀAvÉ DzÉÃ±À ªÀiÁrzÉ.

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¨sÁ zÀ ¸ÀA PÀ®A 304(C) gÀ C¥ÀgÁzsÀUÀ½UÁV DgÉÆÃ¦ MAzÀÄ ªÀµÀðzÀ ¸ÁzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀÄ¨sÀ«¸ÀÄªÀAvÉ ªÀÄvÀÄÛ 2000.00 gÀÆ¥Á¬ÄUÀ¼ÀzÀAqÀ PÀlÄÖªÀAvÉ vÀ¦àzÀÝ°è E£ÀÆß ºÉaÑ£À 3 wAUÀ¼À ¸ÁzÁ PÁgÁUÀÈºÀªÁ¸À C£ÀÄ¨sÉÆÃV¸À®Ä DzÉÃ±À ªÀiÁrzÉ.”

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This judgment of conviction and order of sentence was challenged by the accused in Crl.A. No.141/2007 before the Principal District and Sessions Judge, Uttara Kannada Karwar. The learned lower Appellate Court on hearing the arguments and on reassessment of the evidence confirmed the judgment of conviction and order of sentence passed by the trial Court vide judgment dated 12.04.2018. This is how, now the revision petitioner is before this Court challenging the said judgments of Courts below.

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Learned counsel Sri.Shivaraj S. Balloli

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appearing for the revision petitioner, in addition to narrating the facts of the case and grounds urged in the revision petition submits that, the deceased was standing on the heap of the jelly and the road work was in progress. He would further submit that, when deceased, as she was standing on the heap of the jelly, she lost the balance and without noticing the vehicle coming from the Karwar, she fell down and came under the lorry. He would further submit that, the scene of offence where the

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incident has taken place is having a width of 10 feet only. As the road was very much narrow and repair of the road work was in progress, therefore, the accused could not have driven his vehicle in a high speed and in a rash and negligent manner. He had taken all available precautions so as to avoid any casualty. As the deceased by losing her balance who was standing on the heap of jelly fell down and came under the Tipper. Therefore, according to his submission, in view of the facts brought on record in the cross-examination and also the nature of the offence alleged by the prosecution, no rash or negligent driving of the Tipper lorry by the accused can be attributed against him. He would submit that, there was no possibility of driving the Tipper in a high speed at the place where the work was in progress. In support of his submission, the learned counsel Sri.Shivraj S. Balloli relied upon the crossexamination directed to the eye-witness, so also the other evidence brought on record and submits that the Courts below have committed a grave error in coming to the conclusion that, the accused is guilty of committing the

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offences under Sections 279 and 304-A of IPC. He would submit that, such judgments which are erroneous have to be set aside and this Court by exercising its power under Section 397 of Cr.P.C have to interfere into such wrong judgments of the Courts below. He prays to allow the revision petition and acquit the accused by setting aside the impugned judgments.

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Smt. Mala Bhute, the learned Additional Government Advocate would submit that, there is no evidence brought on record by the prosecution to show that, the deceased had lost her balance and came under the vehicle driven by the accused. She submits that, PW.1 is the complainant and an eye-witness to the said incident. He has noticed that,S the said vehicle was coming in a high speed and in a rash and negligent manner and dashed against his wife who was sitting on the heap of the jolly. She submits that, there was no necessity for the driver to drive the vehicle towards the right side of the road when the work was in progress. The driver of the said vehicle ought to have taken sufficient care to drive the

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vehicle when it is the highway. When the driver knew, about the work was in progress, as per the sign boards placed on the road itself, the rash and negligent driving is proved from the evidence of the eye-witnesses examined by the prosecution. She submits that, both the Courts below have rightly come to the conclusion that, accused is guilty of committing the offences under Sections 279 and 304-A IPC. According to the learned Additional Government Advocate, Smt.Mala Bhute, no error is committed by both the Courts. Hence, she prays to dismiss this revision petition by upholding the judgments of the Courts below.

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I have given my anxious consideration to the arguments of both the sides and perused the records.

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In view of the rival submissions of both the side, the point that would arise for my concentration is, whether the trial Court as well as the First Appellate Court

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have committed any illegality or infirmity in appreciating the evidence and coming to a wrong conclusion that the accused is guilty of the aforesaid offences, if so, whether

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the judgments of the Courts below require any interference by this Court?

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As per the case of the prosecution, because of the rash and negligent driving of the Tipper lorry by the accused, the said accident has taken place. In a case of present nature, it is a bounden duty of the prosecution to prove the rash and negligent driving of the vehicle by the accused and accused only. The prosecution is under the obligation to prove that the accused was driving the said vehicle at the time of the accident and he was driving the

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said vehicle on the National Highway i.e., public way and his driving was rash or negligent, endangering human life or likely to cause hurt or injury to any other person.

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In this case, the defence is not disputing that, accused was the driver of the said vehicle at the time of the accident. Even the place of accident is a public way which is the National Highway. This is also not in dispute.

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In a case of present nature, the prosecution is under the obligation to bring the evidence on record that, the accused was rash and negligent in driving his vehicle and

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categorically the prosecution is under obligation to emphasize that, because of the rash and negligent driving of the vehicle only, the said accident has taken place. Unless these ingredients of these offences are fulfilled by the prosecution, it can never be stated that, the prosecution has proved its case with a legal evidence.

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Now let me analyze the evidence recorded by the prosecution. Sofar as Ex.P.1 is concerned, it is a complaint filed by Choudappa Hanumantappa Choudappanavar. He is stated to be the husband of the deceased Iravva. According to his complaint, on 05.12.2004 at about 9:00 AM, himself, his wife Iravva with others went to carry out the patchwork on the National Highway. After completion of the work, his wife was sitting on the heap of a jelly along with some other coolies like Lakkavva, Parvati, Yamuna and Hanumavva. He further narrates in the complaint that, his wife was sitting by the side on the jelly on its edge. At about 4:30 PM on that day, when they were so sitting, a Tipper lorry came from Karwar side towards Ankola and Tipper lorry

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driver came in a high speed and dashed against the said heap of the jelly where his wife was sitting. On seeing the said lorry, the coolies so sitting jumped themselves and his wife also tried to rescue herself, but, the said lorry came towards the right side and dashed to her because of that, her head was beheaded and she died on the spot. These are the allegations made by the complainant in the complaint alleging that, though the other coolies jumped and rescued themselves, but, his wife succumbed to the injuries because of this accident.

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Ex.P.2 is the scene of offence Panchanama wherein the nature of the scene of offence has been narrated in para No.2 of the Panchanama. It is stated that “the said lorry was not having any bumper on the front side. It is noticed that there was a bending of the mudguard. It is also stated that, the said front right wheel was stained with blood.” Even the place of offence also have been stated in this Panchanama. Ex.P.3 is a sketch according to the case of prosecution. It is a National Highway. When the said road was under repair, the

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accused could not have driven the said Tipper lorry in a rash and negligent manner. The road is having 22 feet width as per the sketch. But, it has come in the evidence that, where the work was in progress, the road was having 10 feet width only. On the said road, if any other vehicle comes from the opposite direction, it is not possible to move two vehicles simultaneously on the said road. Ex.P.4 is the Inquest Panchanama. Sofar as the death of Iravva in the said accident is concerned, it is not in dispute. By producing Ex.P.4 and by examining the Inquest Panchas,

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the prosecution has proved the death of the deceased Iravva in the said accident. It is stated that there was beheading of the head of the deceased in the said accident and she had sustained the crush injuries over her neck. Ex.P.5 is the Postmortem report, wherein it is stated that, because of the injuries suffered by the deceased, she died. This fact is also not disputed by the defence. Even it is not in dispute that, the said accident has taken place not because of any mechanical defects. For this aspect, Ex.P.6-the Motor vehicle accident report is relied upon by

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the prosecution. Even the defence also do not dispute the contents of these exhibits.

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Sofar as the oral evidence is concerned, as per the case of the prosecution, PW.1 complainant is an eyewitness to the said accident. PW.1 has reiterated the complaint averments in his chief examination. He categorically stated that, his wife was sitting on the heap of the jelly stones. He states that, by the side of the heap of jelly, the road was having 10 feet width. It is further stated that, the said heap was under the bridge. According to him, because of the driving the vehicle in a high speed and coming towards the right side of the road, the said accident has taken place. It is further stated that, as she was sitting on the heap of a jelly, before leaving from the heap of a jelly by his wife, the lorry came and dashed against her. But, in the cross-examination, he has given a different and inconsistent evidence with that of the contents of the complaint. According to him, there were 10 coolies were working at the scene of offence. But, the prosecution has examined only two witnesses i.e., PW.1

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and another eye-witness. He speaks that, his wife was sitting on the Katta. According to him, on seeing the lorry, himself and others jumped from the Katta and they rescued themselves. It is suggested that, when his wife Iravva was sitting on the said heap of the jelly, on seeing the lorry, she tried to rescue but, she lost balance and fell down under the lorry. But this suggestion is denied by PW.1.

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The evidence of PW.1 spoken in the crossexamination narrated above shows that, if at all, he could

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see the driving of a lorry in a zigzag manner by the accused, he would have attempted to avoid the accident. He is categorical that, his wife was sitting on the heap of the jelly. He further states that, immediately after dashing the said lorry to his wife, the said lorry stopped. Further he states that, he has not witnessed about beheading of the head of his wife in the said incident. Further, he improves and says that, at that time, he was washing his hands and legs in a pond situated by the side of the road. Thus, this evidence spoken to by PW.1 shows that, he has

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not witnessed the said accident. Therefore, in view of the evidence spoken to by PW.1, it cannot be stated that, he is an eye-witness to the said incident. He further clarifies in the further cross-examination at page No.5 that, where the road work was in progress, there was a vehicular traffic. Once in 15 minutes vehicle ply on the road. He further clarifies that, at the place of accident, two vehicles cannot move together. Even he states that, it was a narrow road. If the vehicle comes from the opposite directions, there is a possibility of accident.

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PW.2-Bharamappa Hanumantappa Kattimani is stated to be another eye-witness to the said incident. Though, corroborates the evidence of PW.1 in material particulars and contents of his statement before the Police under Section 161 of Cr.P.C. In the cross-examination he has given a clear go by. According to his chief examination, the said lorry brushed to the bridge and then caused the said accident. PW.1 never stated so either in his examination-in-chief or in the cross-examination. In the cross-examination, it is stated that, suddenly he heard

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the bombardment of the people gathered there, and thereafter he saw the said accident. If this evidence of PW.2 is scruplessly perused, he saw the said accident only after hearing the bombardment of the people gathered there. If that is so, PW.2 cannot be termed as eyewitnesses who had witnessed the said accident. The other cross-examination so directed and suggestions put to him or denied by him.

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When prosecution case is that these PW.1 and 2 are the eye-witnesses but, these eye-witnesses cannot

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be termed as an eye-witnesses as alleged by the prosecution in view of their evidence spoken in their crossexamination.

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PW-3-M. V. Nanjundayya was the

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Motorvehicle Inspector who had issued report after mechanically examining the Tipper. It is not in dispute that the said accident has taken place because of any mechanical defects. Therefore, the evidence of PW.3 has to be accepted to the extent that he has not noticed any

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mechanical defects in the vehicle. To that extent, I believe his evidence.

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PW.4-Manjunath Kavari is the Inquest Pancha and also scene of offence Pancha. The place of accident or the preparation of the Inquest Panchnama on the dead body of the deceased is not disputed by the defence. He is not an eye-witness to the said accident. Even defence also does not dispute about the presence of this PW.4 at the time of conducting the Inquest Panchanama as well as the seen of offence Panchanama and preparation of the sketch

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as per Ex.P.3 to that extent, I believe the evidence of PW.4.

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PW.5-S.N. Ramesh was the PSI at the relevant time, who raised the crime and set the criminal law in motion. He has conducted the part of the investigation. The filing of the chargesheet by conducting Investigation by him is not disputed by the defence. The other Investigation Officers have not examined by the prosecution. The evidence of this PW.5 has to be accepted to the extent of registering the crime and setting the

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criminal law in motion. To that extent, I believe the evidence of PW.5.

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After closure of the evidence of the

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prosecution, when the accused was questioned under Section 313 of Cr.P.C, he specifically states in his 313 Cr.P.C statement as under:

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“PÁgÀªÀgÁ¢AzÀ CAPÉÆ¯ÁUÉ ¯Áj ZÀ¯Á¬Ä¸ÀÄwÛzÉÝ DUÀ gÀ¸ÉÛ PÉ®¸À £ÀqÉAiÀÄÄwÛvÀÄÛ ¸ÉÊr£À°è UÁr ¤zsÁ£ÀªÁV ºÉÆUÀÄwÛzÉÝ. §®§¢ PÀmÉÖAiÀÄ ªÉÄÃ¯É ¤AwzÀÝ ªÀÄ»¼É DAiÀiÁ vÀ¦à £ÀªÀÄä UÁr ZÀPÀæPÉÌ ¹QÌzÀ¼ÀÄ.”

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If the explanation offered by the accused is

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perused and compared to the suggestions so directed to PW.1 and 2, and also the nature of the offence so alleged

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by the prosecution, it can be stated that, it is not in dispute that the deceased Iravva was sitting on the heap of the jelly. It was a narrow road. There cannot be movement of 2 vehicles together from opposite directions eachother. The road work was in progress. A sign board was put at the scene of offence to show that the road work was in progress. Then, when it is within the knowledge of the accused being the driver of the said Tipper, he could

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not have driven his vehicle in high speed. He has taken all available precautions. When the road was narrow and when this deceased was sitting on the heap of the jelly, on seeing the said lorry, she must have lost the balance. According to the PW.1 and PW.2 the other colleagues were also sitting and on seeing the said lorry, they jumped and rescued themselves and escaped from sustaining any injuries in the said accident. Except the evidence of PW.1 and 2, the other colleagues who were really sitting on the heap of the said jelly jumped on seeing the said lorry, are not examined by the prosecution. So, in the absence of evidence of other coolies, so arrayed as witnesses in this case, only on the basis of evidence of PW.1 and 2, it can never be stated that, the driver of the Tipper lorry was rash and negligent in driving the lorry in high speed.

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In a case of present nature, the death must

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be proximate because of the rash and negligent driving of vehicle by the offending vehicle. Such ingredients as defined under IPC are not fulfilled by the prosecution with acceptable evidence. The learned counsel for the accused,

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Sri.Shivraj S. Balloli submits that, as the said road was narrow, the deceased was sitting on the heap of a jelly, she lost her balance and came under a lorry, when a said vehicle was moving in a narrow road. Even there was no possibility for the driver of the vehicle to avoid the accident by taking the vehicle towards the left side of the road as the road work was in progress. There is some substance in the submission of the counsel for the accused. If all these factual features are put together, coupled with the inconsistent evidence of PW.1 and 2, the learned Courts below have not appreciated the evidence in proper perspective and have wrongly come to the conclusion that, the said accident has taken place because of the rash and negligent driving of the lorry.

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The learned Courts below have lost sight with

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regard to losing of balance by the deceased and coming under a lorry which was moving on the 10 feet width road. So, possibility of losing balance by the deceased cannot be ruled out. Hence, there arise a doubt in the case of the prosecution and that benefit of doubt has to be extended

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to the accused. Accordingly, the points raised supra are answered in favour of the accused-petitioner and the judgments of the Courts below are liable to be set aside. Consequently, the revision petition filed by the petitioner deserves to be allowed. 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) The judgment of conviction and order

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of sentence passed in CC No.1051/2005 dated 20.08.2007 by the Judicial Magistrate First Class (II Court), Karwar, and confirmed in Crl.A No.141/2007 dated 12.04.2018 by the Principal District and Sessions Judge, Uttara Kannada, Karwar, are hereby set aside.

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iii) Consequentially, accused is acquitted of the charges punishable under

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