The High Court · 2016
Case Details
- 1 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 1136 OF 2018 (397(Cr.PC) / 438(BNSS)) BETWEEN: VASANTHA KUMAR C. L ., S/O NINGEGOWDA @ LINGEGOWDA, AGED ABOUT 37 YEARS, DRIVER OF TANKER LORRY, BEARING REGN. NO.KA-52-405 R/AT CHOWDANAHALLI, CHIKKAARAKALAGOODU POST, ARAKALAGOODU TALUK, HASSAN DISTRICT - 573 102. (BY SRI. SUNIL KUMAR PATEL., ADVOCATE) …PETITIONER Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA AND: STATE OF KARNATAKA BY KUDUR POLICE, MAGADI TALUK, RAMANAGARA DISTRICT - 561 101 REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU - 560 001. (BY SRI. M. R. PATIL, HCGP.) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 30.08.2016 PASSED IN C.C.NO.151/2011 ON THE FILE OF THE ADDITIONAL CIVIL - 2 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR JUDGE AND JMFC, MAGADI AND JUDGMENT DATED 4.12.2017 PASSED IN CRL.A.NO.12/2016 BY THE P.O OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA BY ALLOWING THIS THE ACCUSED/PETITIONER OF THE CHARGES LEVELED AGAINST HIM IN C.C.NO.151/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, MAGADII FOR THE OFFENCE P/U/S 279,304A OF IPC. CONSEQUENTLY ACQUIT AND R.P. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA ORAL ORDER Accused has preferred this revision petition against the judgment of conviction and order of sentence dated 30th August 2016 passed in CC No.151 of 2011 by the Civil Judge & JMFC, Magadi (for short hereinafter referred to as the ‘trial Court’)
Legal Reasoning
which is confirmed by Judgment dated 04th December 2017 passed in Criminal Appeal No.12 of 2016 by the III Additional District & Sessions Judge, Ramanagara. (for short hereinafter referred to as the ‘appellate Court’). 2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court. 3. Brief facts leading to this revision petition are that Kudur Police have submitted charge-sheet against accused for - 3 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR offence punishable under Sections 279 and 304(A) of Indian Penal Code and Section 187 of Motor Vehicles Act, 1988. After filing of charge-sheet, the Court has taken cognizance against the accused for the alleged commission of offences and case came to be registered in CC No.151. 2011. In response to the summons, accused appeared before the Court and was enlarged on bail. The substance of accusation was recorded. Same was read over and explained to the accused. Having understood the same accused pleaded, not guilty and claimed to be tried. 4. To prove the case, prosecution, in all, examined eight witnesses as PWs1 to 8 and seven documents were marked as per Exhibits P1 to P7. On closure of prosecution side evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence appearing against him but had not chosen to lead any defence evidence on his behalf. Having heard arguments on both sides, the trial Court has convicted the accused for punishable under Sections 279 and 304(A) of Indian Penal Code and passed sentence to undergo simple - 4 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR imprisonment for two years with fine of Rs.9,000/- for offence punishable under Section 304(A) of Indian Penal Code and further sentenced to undergo simple imprisonment for six months with five of Rs.1,000/- for offence punishable under Section 279 Indian Penal Code. Being aggrieved by the said Judgment of conviction and order on sentence, accused preferred appeal before the III Additional District & Sessions Judge, Ramanagara in Criminal Appeal No.12 of 2016. The said appeal came to be dismissed by Judgment dated 04th December 2017. Being aggrieved by the same, accused has preferred this revision petition. 5.
Legal Reasoning
Sri Sunil Kumar Patel, learned Counsel appearing for the revision petitioner would submit that both the Courts have erred in coming to the conclusion that the accused has committed offences punishable under sections 279 and 304(A) of Indian Penal Code. The Courts have erred in not properly appreciating the evidence of PWs1 & 2 who are the alleged eye- witnesses to the incident. There is no proof that the accused was the driver of the lorry at the time of accident. Both the Courts have not properly appreciated the evidence in - 5 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR accordance with law and facts. Hence, the Judgment of conviction passed by the trial Court which is confirmed by the appellate Court is liable to be set aside. In support of his submissions, learned Counsel placed reliance on the Judgment of Hon'ble Apex Court in the case of GURU BASAVARAJ @ BENNE SETTAPPA v. STATE OF KARNATAKA reported in (2012)8 SCC 734. On all these grounds, he sought to allow the revision petition. 6. As against this, Sri M.R. Patil, learned High Court Government Pleader appearing for the State would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts and convicted the accused which is confirmed by the appellate Court. Absolutely, there are no grounds to interfere with the impugned Judgment of conviction and order on sentence, which is confirmed by the appellate Court. On all these grounds, he sought for dismissal of revision petition. 7. Having heard the learned counsel appearing for the parties, the point that would arise for my consideration is, Whether the Judgment of conviction and order of sentence - 6 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR passed by the trial Court, which is affirmed by the appellate Court is illegal, perverse, capricious, and suffers from legal infirmities? 8. I have carefully examined the materials placed before me. Though the prosecution has cited sixteen witnesses in the charge-sheet, out of them only eight witnesses are examined as PWx.1 to 8 and seven documents are marked as Exhibits P1 to P7. In the charge-sheet, CW1-N R Shivanna, who is the complainant, and CW2-Honnaiah are shown as eye- witnesses. CW3-Ravikumar is shown as mahazar witness, CW4 is the attester to inquest panchanama and spot panchanama witness, CW5-Sridhar is attester to inquest mahazar, CWs6 to 9 are also attesters to inquest panchanama, CW10 is the attestor to seizure panchanama, CW11 is the owner of offending lorry bearing registration number KA–52–405, CWs12 & 13 are Inspector of Motor Vehicles and Medical Officer, respectively, CWs14 to 16 are the investigating officers. Out of these, the material witness, N.R. Shivanna is examined as PW1. He has deposed in his evidence that on 06th February 2011 at 1:30 PM, he and CW2-Honnaiah, were standing near High School - 7 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR Narasandra. At that time, a lorry bearing registration numberKA-52-405 coming from Nelamangala side towards Kunigal, was driven by its driver in a High speed, rash and negligent manner and dashed against the cyclist-Manjunatha, who was proceeding on the left side of the road. As a result, cyclist died on the spot. The driver did not stop the Lorry and sped away. In this background, he has lodged complaint before the Police as per Exhibit P1. After filing the complaint, police came to the spot and conducted manager as per exhibit P2. 9. PW2-Honnaiah said to be the eye-witness has deposed in his evidence that he and CW1-Shivanna were standing near the high school at Narasandra and 06th February 2011 at 1:30 PM and at that time, the lorry coming from Nelamangala side dashed to the cyclist who was proceeding on the left side of the road, as a result of which cyclist died on the spot. After the accident, the accused did not stop the lorry. Thereafter, he has given complaint to the police in this regard. - 8 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR 10. PWs3 & 4 Ravi Kumar and Nanjappa, have deposed in their evidence as to the mahazar conducted by the police as per exhibit P2. 11. PW5-Sridhar has deposed in his evidence as to mahazar conducted by police as per exhibits P2 & P6. This witness is treated as partly hostile witness. 12. PW6-Ramesh Rangaswamaiah has deposed in his evidence as to the mahazar conducted by the police, as per Exhibit P2. This witness is also treated as partly hostile witness. 13. PW7-Ramesha, Head Constable has deposed in his evidence that on 07th February 2011, he was deputed to trace out vehicle involved in crime No.30 of 2011. He located the lorry parked near Kunigal Bus stand, and he brought the same and produced before the Station House officer. 14. PW8-S H Rayappa, Police Constable, has deposed in his evidence as to receiving of complaint from the complainant and also as to initiation of case in Crime No.31 of 2015 and submitting of FIR to the Court as per Exhibit P7 and also - 9 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR deposed as to request made to Inspector of Motor Vehicles to give report. 15. A careful scrutiny of the entire case made before this Court makes it crystal clear that that on the basis of the complaint filed by PW1-Shvianna, the Kudur Police registered in crime No.31 of 2011 against the driver of lorry No.KA-52-405 for the offence punishable under Sections 279 and 304(A) of Indian Penal Code and Section 187 of Motor Vehicles Act and submitted First Information Report to the Court as per Exhibit P7 on 07th February, 2011 at 12.00 pm as endorsed by the learned Magistrate. The accident took place on 6th February, 2011 at 7:30 PM. The First Information Report is registered against the driver of lorry bearing No.KA-52-405, but the name of the accused is not shown in the First Information Report. Further, though the First Information Report was despatched from the Police Station on 06th February 2011 at 2.45 pm, same was submitted to the Court only on 07th February 2011 at 12.00 noon. The delay in submitting the First Information Report to the Court has not been explained by the prosecution. Though the accused was not known at the time of registration - 10 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR of First Information Report, the Investigating Officer has not issued notice to the owner of the vehicle to ascertain as who was the driver of the vehicle at the relevant point of time, as required under Section 133 of Motor Vehicles Act, 1988. The name of the accused is also not shown in the complaint or First Information Report. PW1 has not furnished the name of the accused to the police. How the Investigating Officer has secured the name and address of the accused has not been disclosed by the prosecution. Even the Investigating Officer has not been examined by the prosecution to explain as to how he has traced the accused. Though the name of the accused is not shown in the FIR, and no notice is issued under Section 133 of Motor Vehicles Act, Police papers reveals that the accused has executed a bond to the police on 07th February, 2011. The First Information Report submitted to the Court on 07th February, 2011 at 12.00 noon. However, the name of the accused is not shown in the First Information Report. The Investigating Officer has also not collected the driving licence particulars of the accused. These lapses create serious doubt as to whether the accused was the driver of the vehicle at the relevant point of time or not. - 11 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR 16. During the course of cross-examination of PW1, he has clearly admitted that he cannot say the exact speed of the vehicle. PW2 has clearly admitted in his cross-examination that he has witnessed the incident only after the accident. Both witnesses have clearly admitted in their evidence that the road construction was going on in the place of accident. The same is also reflected in the spot mahazar Exhibit P2. The width of the road was only 30 feet and there was heap of mud near the place of accident and one side there is divider and under such circumstances the vehicle cannot be driven in high speed. PW1 has not deposed as to the rash and negligent act on the part of the driver of the lorry. Viewed from any angle, absolutely there are no materials placed by the prosecution to prove that the accused, being the driver of the lorry bearing registration No.KA-52-405, drove the same in rash and negligent manner and dashed against the cyclist-Manjunath, causing his death. Both the Courts have not appreciated the evidence on record in accordance with law and facts. Since there is no cogent and convincing evidence before the Court, so also, non-examination of Investigating Officer is fatal to the case of the prosecution. - 12 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR 17. With regard to offence punishable under Section 187 of Motor Vehicles Act is concerned, though the trial Court has framed charges for offence punishable under the said Section, the trial Court has not given any finding as to the offence punishable under Section 187 of Motor Vehicles Act. Even the trial Court has not convicted the accused for the offence punishable under the said Section. In paragraph 38 of the judgment, the Appellate Court has observed the same. For the aforesaid reasons, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, the point formulated is answered in the affirmative. In the result, I proceed to pass the following: i) ii)
Decision
O R D E R Revision Petition is allowed; Judgment of conviction and order of sentence dated 30th August 2016 passed in CC No.151 of 2011 by the Civil Judge and JMFC, Magadi, which is confirmed by Judgment dated 4th December 2017 passed in criminal appeal - 13 - NC: 2025:KHC:20479 CRL.RP No. 1136 of 2018 HC-KAR No.12 of 2016 by the III Additional District & Sessions Judge, Ramanagara, are set aside; iii) Accused/revision petitioner is acquitted of the offences punishable under Section 279 and 304(A) of Indian Penal Code; iv) The fine amount, if any, deposited by the accused/revision petitioner shall be refunded to him, in accordance with law; v) The Registry to send the trial Court records along with copy of this Order to the concerned Court forthwith. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 21