MOHAMMED RIYAZ v. STATE BY PSI, LINGADAHALLI POLICE STATION

THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVCTION DATED 08.08.2016 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.98/2015 CONFIRMING THE ORDER OF CONVICTION PASSED BY THE CIVIL JUDGE AND ADDL. JMFC, TARIKERE DATED 24.06.2015 IN C.C.NO.147/2013 CONVICTING THE PETITIONER FOR THE - 2 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304(A) OF IPC BY ALLOWING THIS CRL.RP. WHICH IS NECESSARY. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard the learned counsel for the revision petitioner and also the learned High Court Government Pleader for the respondent State.

#2. This revision petition is filed against the concurrent finding of the Trial Court convicting and sentencing the accused for the offences punishable under Section 279 and 304A of I.P.C. and punishment of Rs.1,000/- fine for the offence under Section 279 of I.P.C. and 2 years of imprisonment and fine of Rs.1,000/- for the offence under Section 304A of I.P.C.

#3. The factual matrix of the case of the prosecution is that on 01.02.2013 at about 4.00 p.m., the driver of the bus drove the vehicle in a rash and negligent manner and dashed against the motorcycle which was coming in the opposite direction by taking the vehicle from left side to right side, as a result the motorcyclist sustained injuries and succumbed to the injuries. The police have investigated the matter and filed the - 3 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 charge sheet and the accused was secured and he did not plead guilty. The prosecution relied upon the evidence of P.W.1 to P.W.7 and got marked the documents at Exs.P1 to Ex.P13. The accused was examined under Section 313 of Cr.P.C and he did not lead any defence evidence. The Trial Court having considered the evidence of P.Ws.2, 3 and 5 comes to the conclusion that they are the eye-witnesses and their evidence is credible and accepted the case of the prosecution and convicted the accused.

#4. Being aggrieved by the said order, an appeal is filed before the Appellate Court and the Appellate Court on re- appreciation of the evidence available on record, particularly taking note of the answers elicited from the mouth of P.W.5 that in order to avoid the branch of the tree, accident was occurred and not on account of the negligence on the part of the driver of the bus, comes to the conclusion that suggestion of the accused is very clear that he has admitted the fact that due to branch of the tree he took the bus towards the right side of the road and caused the accident. The Appellate Court on re-appreciation of the evidence of P.W.2 and P.W.3 and the photographs which are not disputed, concurred with the order of the Trial Court. - 4 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016

#5. Being aggrieved by the said judgment of conviction and confirmation, the present revision petition is filed before this Court.

#6. The main contention of the learned counsel for the petitioner is that though there are major contradictions in the evidence of P.Ws.2, 3 and 5, both the Courts accepted the evidence of the prosecution theory and committed an error. Both the Courts failed to take note of Ex.P.11 sketch and the accident was occurred in the middle of the road and also failed to take note of the IMV report Ex.P.12, which clearly discloses that the centre of the bus bumper was damaged and fails to take note of the damages caused to the motorcycle and also fails to take note of photographs Exs.P.2 to 7 and hence it requires interference of this Court since the findings of both the Courts are not legal.

#7. Per contra, the learned High Court Government Pleader appearing for the respondent State would contend that the evidence of P.W.1 to P.W.5 is clear that P.Ws.2, 3 and 5 are the eye-witnesses and they categorically deposed that the driver of the bus suddenly took the bus on the right side from left side and as a result the accident occurred. The Trial Court and the - 5 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 Appellate Court have not committed any error in appreciating both oral and documentary evidence placed on record.

#8. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State and also looking into the material available on record, the points that arise for the consideration of this Court are: (i) Whether both the Courts have committed an error in appreciating the evidence available on record and whether the findings are not legal and suffers from any infirmity and whether it requires interference of this Court by exercising the revisional jurisdiction? (ii) What order?

#9. Having heard the learned counsel for the respective parties and on perusal of the material available on record, Ex.P.1 complaint was given immediately at 4.45 p.m. when the accident was taken place at 4.00 p.m. and it is the averment in the complaint that the motorcyclist was proceeding in the opposite direction of the bus and the bus came in a rash and negligent manner and dashed against the motorcyclist, as a result he sustained injuries and succumbed to the injuries. It is - 6 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 important to note that Ex.P.2 photograph of the bus shows that the middle front portion of the bus was damaged including the number plate and hence it is clear that the motorcyclist went and dashed against the front portion of the bus that too on the middle of the bus. It is important to note that the bus was on the left side of the road in terms of Ex.P.7. It is important to note that the documentary evidence of Ex.P.11 sketch is clear that the accident spot was on the middle of the road and sketch discloses that the road measures 17 feet and either side of the road 8½ feet is shown and this document is not disputed. Ex.P.12 is very clear with regard to the damages caused to the bus is in the middle of the front portion of the bus and front portion of the motorcycle was damaged and hence it is clear that the motorcyclist went and dashed against the middle portion of the bus.

#10. It is important to note that the prosecution relies upon the evidence of P.W.1 to P.W.5, who are the star witnesses. P.W.1 speaks about he came to know about the accident was occurred due to negligence on the part of the driver of the bus, but he is not an eyewitness. He admits that he did not witness the accident and the deceased is his maternal uncle. P.Ws.2, 3 and 5 claims that they are the eyewitnesses. - 7 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 P.W.2 says that the driver of the bus suddenly took the bus from left side to right side, but in the complaint there is no such statement that the driver of the bus suddenly took the bus from left side to right side. It is important to note that he categorically says that he has not given any statement before the police with regard to the accident and also admits that when he saw the bus, the bus was parked on the left side of the road. He also says that it was on the left side of the road and hence his evidence is not credible. He says that in terms of Ex.P.4 the accident was occurred on the left side of the road and hence his evidence is also not credible since accident spot clearly discloses that it was in the middle of the road.

#11. The other witnesses also reiterated that the driver of the bus took the bus from left side to the right side and the accident was occurred. In the cross-examination of P.W.3, he admits that near Kenchapura gate turn, normally the driver of the bus used to drive the vehicle in a slow manner and he says that the accident occurred on the right side of the road and P.W.2 says that it was on the left side. P.W.3 says that it was on the right side of the road and again says that it was in the middle of the road. There were branches of the tree and the accident was occurred. P.W.4 categorically admits that she did - 8 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 not witness the accident. P.W.5 also deposes like P.W.2 and P.W.3, but in the cross-examination he admits that he saw the bus at a distance of 30 to 40 metres. He says that there is a bus stand near Kenchapura gate and they used to park the private buses and also they drove the vehicle in a slow manner near the bus stop. He admits that there is a curve near Kenchapura gate and he says that the accident was occurred on the right side of the road of Tarikere, but he says that bus came from right side and took the bus towards the left side and the same is contrary to the evidence of P.W.2 and P.W.3. These discrepancies and contradictions are not properly appreciated by the Trial Court and the Appellate Court and the findings of the Trial Court is against both oral and documentary evidence placed on record and contradictions are found in the evidence of the witnesses. The documentary evidence reveals that the accident was occurred in the middle of the road and the witnesses speaks about the driver of the bus took the bus from left side to the right side and one witness says that the accident was occurred on the left side and another witness says that the accident was occurred on the right side. The photographs which are marked are clear that the motorcyclist went and dashed against the middle of the bus and as a result, middle portion of - 9 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 the bus was damaged and the number plate was also damaged and the findings given by the Trial Court is against Exs.P.11 and

#12. When such material contradictions are found, both the Courts failed to consider the same. The very finding is not legal and perverse, since material on record was not appreciated in a proper perspective. Hence, the matter requires interference and the benefit of doubt goes in favour of the accused having considered both oral and documentary evidence placed on record that there was no any rash and negligent driving on the part of the driver in view of the admission on the part of the witnesses that the accident was occurred near Kenchapura gate where private vehicles bus parking was there and admitted the same in the cross-examination of the prosecution witnesses that the vehicle would slow down near the bus stand. Hence, it requires interference of this Court to exercise the revisional jurisdiction.

#12. In view of the discussions made above, I pass the following: ORDER (i) The criminal revision petition is allowed. (ii) The impugned judgment of conviction and sentence is set aside and the confirmation - 10 - NC: 2025:KHC:3411 CRL.RP No. 1211 of 2016 order passed by the Appellate Court is also set aside. If any bond is executed by the petitioner, the same is cancelled and if any fine amount is deposited, the same is ordered to be refunded in favour of the petitioner, on proper identification. Sd/- (H.P.SANDESH) JUDGE RHS,MD List No.: 1 Sl No.: 64