The High Court
Case Details
- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.248 OF 2013 BETWEEN: K. DINESH S/O PARAMESHWARA POOJARY AGED ABOUT 36 YEARS R/A KOTEPALU HOUSE NAVOOR VILLAGE AND POST BANTWAL TALUK-574211, DK (BY SRI.RAKESH KINI, ADVOCATE) AND: ...PETITIONER THE STATE BY PANAMBUR POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE-560001 (BY SRI.VENKAT SATYANARAYAN.A, HCGP) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT IN C.C.NO.4424/2006 PASSED BY THE J.M.F.C. II COURT, CRL.A.NO.363/2006 DATED MANGALORE, D.K., 07.01.2013 PASSED BY THE II ADDL. DISTRICT & SESSIONS JUDGE, D.K, MANGALORE. 15.11.2006 ORDER DATED AND AND THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER: - 2 - CORAM: HON'BLE MS JUSTICE J.M.KHAZI CAV ORDER In this petition filed under Section 397 r/w 401 of Code of Criminal Procedure, petitioner who is accused
Legal Reasoning
before the trial Court has challenged his conviction and sentence for the offences punishable under Sections 279, 338 and 304-A IPC imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. A charge sheet came to be filed against the accused alleging that on 03.05.2006, accused being the driver of Tata Spacio Jeep ('Offending vehicle' for short) drove the same in a rash or negligent manner on NH-17 from Panambur towards Suratkal and on Baikampady over Bridge, drove it towards wrong side and dashed against TVS moped bearing registration No.KA–19/K–4313 ('Moped' for short) which was coming from the opposite - 3 - direction from Baikampady towards Panambur. As a result of the accident, the rider of the moped John Cyril D'Mello and pillion rider Beer Bahadur sustained grievous injuries. John Cyril D'Mello succumbed to the injuries while undergoing treatment and thereby accused committed the offences punishable under Sections 279, 338 and 304-A IPC. 4. Accused pleaded not guilty and claimed trial. 5. In order to prove the allegations against the accused, the prosecution has relied upon the evidence of PWs-1 to 7 and Exs.P1 to 12. 6. During the course of his statement under Section 313 Cr.P.C, the accused denied the incriminating evidence led by the prosecution. 7. Accused has not let any defence evidence. 8. Vide the impugned judgment and order the trial Court convicted the accused and sentenced him as detailed in the order. - 4 - 9. Accused challenged the same before the Sessions Court in Crl.A.No.363/2006. However, the same was dismissed, upholding the judgment and order of the trial Court. 10. Aggrieved by the concurrent findings of trial Court as well as the Sessions Court, petitioner is before this Court, contending that the conviction and sentence passed by the trial Court is illegal, arbitrary and without proper appreciation of evidence on record. The Courts below have failed to appreciate the fact that there are no witnesses whose evidence could be relied upon to convict the accused. PW-1, who is the complainant is a planted witness. He is also an employee of the factory where the deceased and injured were working. The hospital records does not reflect the fact that he is an eye witness. PW-4, who is injured has not deposed that the offending vehicle was coming in a high speed, in a rash or negligent manner. PW-7 has not supported the prosecution case. The medical officers who has conducted the post examination of accused, who also treated the injured are - 5 - not examined. In the light of such evidence, there is nothing to connect the accused with the crime and therefore, the impugned judgment and order are liable to be set aside. 11. In support of his arguments, learned counsel for accused has relied upon the decision in State of Karnataka Vs. Satish (Satish)1. 12. On the other hand, learned High Court Government Pleader supported the judgment and order and submit that PW-1, who is the complainant is an eye witness to the accident. Similarly, PW-4 Beer Bahadur was a pillion rider of the Moped. The offending vehicle collided against the Moped from the front side i.e, accident was a head on collision and therefore he was able to see how the accident took place and who was the driver of the offending vehicle and identified accused. PW-7 Vittal Acharya is the owner of the offending vehicle. Even though before this Court, while giving oral evidence, he has turned hostile, the report given by him in response to 1 (1998) 8 SCC 493 - 6 - the notice issued by the investigating officer clearly establish that accused was the driver of the offending vehicle when the accident took place. While getting the vehicle released, he has produced the accused before the investigating officer, who has arrested him and released on bail. The investigating officer has given evidence to that effect. 12.1 He would further submit that the inquest, PM report and injury certificates are marked with consent and therefore the witnesses to the inquest, the medical officers who have treated the injured as well as conducted PM examination are given up. Therefore, it is not open to the accused to dispute the said documents. The evidence by the prosecution prove the allegation against accused beyond reasonable doubt and consequently, the trial Court as well as the Sessions Court are justified in convicting the accused. 12.2 Learned HCGP further submitted that accused has not stepped into the witness box and depose as to how exactly the accident occurred. In the above facts and - 7 - circumstances, there are no justifiable grounds to interfere with the findings recorded by the trial Court and Sessions Court and pray to dismiss the petition. 13. Heard arguments of both sides and perused the record. 14. Evidence placed on record establish the fact that the accident took place on the Baikampady bridge. While the moped driven by deceased was coming from Baikampady towards Panambur, the offending vehicle was proceeding from Panambur towards Baikampady. The evidence placed on record more particularly the testimony of PW-4 Beer Bahadur, who is the injured and the pillion rider of the moped prove that he and deceased were proceeding on the moped when the accident took place. Offending vehicle came from the opposite side and dashed against the moped and as such PW-4 had opportunity to see the driver of offending vehicle. He has denied the suggestion that immediately after accident, he lost consciousness and therefore he could not see who was the driver of the offending vehicle. - 8 - 15. In fact, the evidence of PW-1, who is the complainant and also eye witness to the incident clearly indicate that despite sustaining grievous injuries, PW-4 was conscious and was in a position to speak. PW-2 Ashfaq is also a witness to the incident. PWs-1, 2 and 4 have in unequivocal terms deposed that accused was the driver of the offending vehicle and while trying to overtake another vehicle, he came on the wrong side and dashed against the moped resulting in the accident. They have also identified the accused before the Court. It is pertinent to note that after the accident, the accused along with the offending vehicle remained at the spot and the eye witnesses, including the injured were in a position to see him. 16. PW-7 Vittal Acharya is the Manager of the Manipal Package Industries. The offending vehicle belongs to the said company and he is given GPA regarding the said vehicle. After the accident when the investigating officer issued notice to the RC owner, as per Ex.P11, he has submitted reply as per Ex.P12 stating that as on the date of accident, accused was the driver of the offending vehicle - 9 - and he was holding a valid driving license, which includes permission to drive HMV. However, before the Court, though he has deposed that he know the accused and the offending vehicle belongs to his company and it met with an accident, he has not supported the prosecution case to the effect that accused was the driver of the offending vehicle as on the date of the accident. However, he admits his signatures in Ex.P1 and 12 and claimed that he signed them at the police station when he went to get the vehicle released. 17. During his cross-examination by the prosecution, he has admitted that accused was one of the drivers of the company and he was also driving the offending vehicle. He has also conceded that usually before affixing signature to any document he would go through them. The contents of Exs.P11 and 12 are contrary to the evidence given by the PW-7 before the Court, which clearly indicates that in order to help the accused, he is giving false evidence. The testimony of PWs-1, 2 and 4 clearly prove that it was the accused who was driving the - 10 - offending vehicle when the accident took place. The testimony of PW-6, the investigating officer also prove that when he issued notice as per Ex.P11, not only PW-7 submitted reply as per Ex.P12, but also produced the accused before him. He arrested the accused and released him on bail. 18. As evident from the order sheet dated 21.10.2006, the inquest, PM report, IMV report as well as wound certificate are marked with the consent of the counsel for accused as per Exs.P3 to 7 and therefore CWs- 5 to 8, 10 to 15 are given up. Such being the case it is not open to the accused to claim that these witnesses are not examined and therefore prosecution has not proved the allegations against him. The fact that in the accident rider of the moped and pillion rider sustained injuries and the rider succumbed to the injuries cannot be disputed by the accused, though he may claim that he was not the driver of the offending vehicle. 19. In Satish, referred to supra and relied upon by the accused, it is held that the onus of proof of rash or - 11 - negligent driving is on the prosecution and on the basis of maxim res ipsa loquitur, it cannot be presumed. Of course in the present case, the prosecution has proved beyond reasonable doubt that it was the accused who was driving the offending vehicle and there was negligence on his part. Therefore, accused cannot take advantage of this decision. 20. The trial Court as well as the Sessions Court, on appreciation of the oral and documentary evidence placed on record have rightly held that the allegations against the accused are proved beyond reasonable doubt. The conclusions arrived at and findings given by the them is consistent with the evidence placed on record. This Court finds no perversity in the same. Consequently, there are no grounds to interfere with the judgment and order passed by the courts below. The punishment imposed is also reasonable and commensurate with the crime in question. There is also no scope for interference on that aspect. 21. In the result the petition fails and accordingly the following: - 12 -
Decision
ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. (ii) The impugned judgment and order dated 15.11.2006 in C.C.No.4424/2006 on the file of JMFC II Court, D.K.Mangalore and judgment and order dated 07.01.2013 in Crl.A.No.363/2006 on the file of II Addl.District & Sessions Judge, D.K.Mangaluru are confirmed. (iii) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR