Mr. Mohammed Ashraf Vs the State of Karnataka

MR. MOHAMMED ASHRAF AGED 27 YEARS, SON OF ABOOBAKAR RESIDING AT C M MANZIL HONGADI VILLAGE, PERINJE POST BELTHANGADY TALUK DAKSHINA KANNADA DISTRICT-574237.

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…PETITIONER

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(BY SRI.P P HEGDE, SENIOR ADVOCATE FOR SMT. SAMEEKSHA T R, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M THE STATE OF KARNATAKA Location: HIGH COURT OF THROUGH THE POLICE SUB INSPECTOR, KARNATAKA AGUMBE POLICE STATION, THIRTHAHALLI REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-1.

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…RESPONDENT

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(BY SRI. DIVAKAR MADDUR,HCGP)

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HC-KAR

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 16.06.2017 PASSED IN C.C.NO.197/2016 BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT THIRTHAHALLI, AND ALSO THE JUDGMENT DATED 05.05.2018, PASSED BY THE III ADDITIONAL SESSIONS JUDGE, AT SHIVAMOGGA IN CRL.APPEAL NO.49/2017 AND ACQUIT THE PETITIONER HEREIN IN C.C.NO.197/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This matter is listed for final hearing.

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This revision petition is filed against the concurrent finding of the trial Court convicting the accused for the offence punishable under Section 279, 304A of Indian Penal Code, 1860 and Section 134(a) and (b) of the Motor Vehicles Act, 1988, with a maximum sentence of 6 months for the offence punishable under Section 304A of Indian Penal Code and the appellate Court in Crl.Appeal

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HC-KAR

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No.49/2017 has confirmed the judgment of conviction and

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order of sentence passed by the trial Court.

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The main contention of the counsel appearing for

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the revision petitioner is that the evidence of P.W.1 is hearsay evidence and he was not present at the spot. As

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such, his evidence cannot be considered. The counsel also brought to notice of this Court that P.W.2-Jayachandra who claimed to be the eyewitness has stated in his cross examination that he does not know on account of whose fault, the accident has taken place and his evidence clearly goes to show that he came to the spot after the accident.

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The counsel also brought to notice of this Court

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that the trial Court made an observation that P.W.2-

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Jayachandra came to the spot after the accident and so also P.W.3 -Girisha in his cross examination, categorically admits that he came to the spot after 15 minutes of the accident and his evidence also cannot be relied upon.

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HC-KAR

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Further, the counsel would submit that other

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witnesses though they are panch witnesses to the mahazar, they turned hostile and their evidence cannot come to the aid of prosecution. The counsel would also contend that P.W.3-Girisha in his evidence, who categorically stated that

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he was travelling along with P.W.2-Jayachandra in the same bike and he saw the spot of the accident but he does not know due to whose fault the accident took place. Hence, the evidence of the aforesaid witnesses cannot be accepted as they are not the eyewitnesses to the incident. Even though the trial Court noticed the discrepancies in the evidence of both PWs.2 and 3, erroneously concluded that there was an accident and the accused only committed the offence.

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The counsel also vehemently contend that the trial Court has not considered the material available on record i.e., both oral and documentary in a proper perspective and hence, it requires interference of this Court.

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HC-KAR

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Per contra, the counsel appearing for

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respondent/State submits that, the evidence of PWs.2 and 3 are very clear that they have seen the accident and witnessed the same. The canter vehicle was proceeding ahead of PWs.2 and 3. Though there is an admission on the part of these PWs.2 and 3, they were not aware of at whose fault, the accident was taken place but they witnessed the accident and both of them only intimated P.W.1- A G Thimma, who is the brother of the victim at 04.30 p.m. The trial Judge taking into note of the evidence of prosecution witnesses and documentary evidence available on record, rightly come to the conclusion that prosecution has proved the case.

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The counsel also submits that the appellate

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Court also on re-appreciation of evidence available on record and identified the accused by P.W.3, and father of the accused who has been examined as P.W.9-Abubakar, stated that on the date of the accident, accused was driving

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HC-KAR

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the offending canter. The appellate Court has taken note of

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the same and considered the said aspect.

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9. Having considered the submission of the counsel

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appearing for the revision petitioner as well as the counsel appearing for the respondent, the points that would arise

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for the consideration of this Court are-

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a. Whether the trial Court and appellate court committed an error in accepting the evidence of prosecution and the order impugned is sustainable in the eye of law and the same suffers from its legality and correctness?

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b. What order?

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Having considered the evidence of prosecution witnesses i.e.,PWs.1 to P.W.10, P.W.1 is the brother of the deceased and he came to know about the same through PWs.2 and 3 according to the prosecution witness and he is

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not an eyewitness but he is a hearsay witness. The prosecution mainly relies upon the evidence of PWs.2 and

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Having considered the evidence of P.W.2 before the Court, who categorically deposed that there was an

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HC-KAR

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accident between the canter and TVS. Further, he also deposes in his chief examination that due to the high speed of the canter, accident was occurred and injured has sustained bleeding injuries and he was shifted by him and also PW.3 But in the cross-examination, he says he went to spot at 02.00 p.m. But according to the prosecution, accident was taken place at 01.45 p.m.

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P.W.1 says that accused and canter was there at the spot. But record discloses that in terms of Ex.P3, the seizure mahazar of the canter, the accused caused the accident and he did not stop the vehicle and vehicle was seized later and it was there in front of the police station. This evidence is contrary to the evidence of PW.2, who claims both the accused and canter was there at the spot. P.W.2 also says that he saw both the vehicles at the spot. But the documentary evidence is contrary to the oral evidence of these two witnesses. It is also important to note that P.W.2 says that canter was proceeding ahead of his vehicle and he did not notice at whose fault the accident

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HC-KAR

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was occurred. But claims that canter was running in a high speed of 60 kms.

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Further, the evidence of P.W.3 is very clear that both PWs.2 and 3 were proceeding together and witnessed the accident. But he did not support the case in his chief examination and he was treated as hostile. But the suggestion made to him that he was an eyewitness along with P.W.2 was admitted. He also admits that P.W.1 was informed by himself and P.W.2. But in the cross examination, he categorically admits that both P.W.3 and himself went together and they went to spot at 02.30.p.m. But P.W.1 claims that they went to spot at 02.00 p.m. But the clear admission was given by P.W.2 that they went to spot after 15 minutes of the accident and found both the vehicles. His evidence is also contrary to the document of Exs.P2 and P3. It is clear that with regard to the seizure of the vehicle of the victim at the spot and when such evidence available before the Court, i.e., both documentary evidence as well as the oral evidence, the very presence of

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HC-KAR

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PWs.2 and 3 is doubtful at the time of accident and it is very clear that they are the circumstantial witnesses came to the spot after the accident and not witnessed the accident. The trial court ought to have taken note of the same. But trial court committed an error in coming to the conclusion that evidence of PW2 and PW3 inspires the confidence of the court.

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But in paragraph No.14 of the judgment of the trial Court, it held that evidence of P.W.2 discloses that he is not an eyewitness to the accident, but saw the spot a little later. And even evidence of P.W.3 is discussed in paragraph No.16 that the evidence of P.W.3 also discloses that he is not an eyewitness to the accident, but saw the spot a little later. This aspect is taken note of by contentions taken by the learned counsel for the accused that this witness and P.W.2 have stated that the canter was at the spot. However as per the police, the accused is alleged to have fled from the place with the canter. The same evidence is a fact in terms of Ex.P3- mahazar and

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HC-KAR

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when these material contradictions fails to consider the

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same, however, an observation is made that vehicle belongs to the victim was seized at the spot and mahazar was drawn in front of the police station in respect of offending vehicle. But trial court comes to the conclusion taking into note of that accused has surrendered and he was released on police bail. The very approach of the trial Court is erroneous and fails to consider the evidence of PWs.2 and 3. There are contrary evidence of PWs2 and 3

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and their evidence also not inspires the confidence that they were very much present at the time of the accident and both of them came to the spot later and no doubt both the Courts have taken note of the evidence of P.W.9 who is the father of the accused deposes before the Court that the said vehicle was driven by the accused and the same cannot be a ground to come to a conclusion that accident was occurred due to rash and negligence on the part of the accused.

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HC-KAR

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In the absence of cogent evidence before the Court, both the trial Court and appellate Court committed an error in coming to the conclusion that accused only caused the accident and believed the evidence of PWs.2 and 3. Their evidence is contrary to each other and where the case of the prosecution is doubtful considering the documents and contents of the document Ex.P3, Though PWs.2 and 3 deposed before the Court that they found the vehicle at the spot. But according to the document Ex.P3, after causing the accident, the accused did not stop the vehicle. He fled away from the spot along with the vehicle. But vehicle was seized later on and these are the material contradictions which were not taken note of by the trial Court as well as the first appellate Court and hence it is a fit case to exercise the revisional jurisdiction. Both the Courts have committed an error in considering the material available on record and both the judgments suffer from its legality and hence, answered in the point in affirmative.

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HC-KAR

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In view of the discussions made above, I pass

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the following:

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ORDER

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a. Revision petition is allowed.

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b. Impugned judgments of the trial Court and Appellate court are set aside. Consequently accused is acquitted for the offence invoked against him.

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c. if any amount of fine is deposited before the trial court, ordered to be refunded in favour of the appellant on proper identification.

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d. The amount of Rs.50,000/- which was deposited before this Court on 29.04.2026 is also ordered to be refunded in favour of the review petitioner on proper identification.

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e. Registry is directed to transfer the amount of Rs.50,000/- to the bank account of the revision petitioner, if the same is furnished in the Registry.

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Sd/(H.P.SANDESH) JUDGE

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SSD/List No.: 1 Sl No.: 71

Mr. Mohammed Ashraf v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Mohammed Ashraf v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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What the court decided

Issues for consideration

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