M Vinod Kumar vs State Of Karnataka

Karnataka High Court

M Vinod Kumar vs State Of Karnataka on 16 May, 2024

                              -1-
                                    CRL.RP No. 1224 of 2017


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 16TH DAY OF MAY, 2024
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1224 OF 2017
BETWEEN:
   M VINOD KUMAR
   S/O MANI M, AGED 27 YEARS
   NO. 78, 7TH CROSS, RAMAKRISHNA LAYOUT
   NAGARBHAVI 2ND STAGE
   SUMNAHALLI CROSS
   MALAGALA ROAD
   BANGALORE - 560 091.

                                               ...PETITIONER
(BY SMT. S.NIRMMALA, ADVOCATE)

AND:
   STATE OF KARNATAKA
   BY VIJAYANAGARA POLICE
   BANGALORE
   REP. BY SPP HIGH COURT
   BANGALORE - 560 001.

                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)

     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 30-08-2011
PASSED IN C.C.NO.2977/2008 ON THE FILE OF THE
METROPOLITAN MAGISTRATE, TRAFFIC COURT-II BANGALORE
AND    JUDGMENT    DATED    26-10-2017  PASSED   IN
CRL.A.NO.636/2011 ON THE FILE OF THE LXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-
62).

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 22.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                               -2-
                                      CRL.RP No. 1224 of 2017




                            ORDER

1. This revision petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 30.08.2011 in C.C. No.2977/2008 on the file of the Metropolitan Magistrate, Traffic Court-II, Bangalore and its confirmation judgment dated 26.10.2017 passed in Crl.A. No.636/2011 on the file of the LXI Additional City Civil and Sessions Judge, Bangalore, by which both the Courts have concurrently held that the petitioner herein is guilty for the offences punishable under Sections 279, 337, 304-A of Indian Penal Code (for short 'IPC') and Sections 3(1) r/w Section 181 of Indian Motor Vehicle Act (for short 'IMV Act') and Section 146 r/w Section 196 of IMV Act.

2. The ranks of the parties in the Trial Court will be considered henceforth for convenience Brief facts of the case:

3. It is the case of the prosecution that on 23.07.2008 around about 8.00 a.m., the accused being the rider of the motorcycle bearing its No.KA-02-ER-7517 along with CW.9 dashed against the pedestrian who was crossing the road near Sharavathi Nursing Home, M.C.Road, Bengaluru. The injured -3- CRL.RP No. 1224 of 2017 succumbed to the said injuries. In fact, the accused even did not have a valid driving license. A complaint came to be registered against the accused. The jurisdictional police have registered a case in Crime No.134/2008 for the offences stated supra. After conducting the investigation, charge sheet was submitted.

4. To prove the case of the prosecution, the prosecution examined 7 witnesses as PWs.1 to 7 and got marked 16 documents as Exs.P.1 to P.16. The Trial Court recorded the conviction against the accused and passed the order of sentence. Being aggrieved by the same, the accused approached the Appellate Court wherein the Appellate Court dismissed the appeal. Hence this revision petition.

5. Heard Smt. S. Nirmmala, learned counsel for petitioner and Shri Rahul Rai K., learned High Court Government Pleader for the respondent - State.

6. It is the submission of learned counsel for petitioner that the concurrent findings of the Courts below are perverse and illegal and also against to the evidence on record and therefore, the conviction is liable to be set aside. -4- CRL.RP No. 1224 of 2017

7. It is further submitted that the alleged accident took place due to the negligent act of the deceased as he suddenly rushed towards the road. In fact, the accused and CW.9 both have sustained injuries. However, the Courts below did not consider the contributory negligence of the deceased.

8. It is further submitted that the evidence of PWs.3 and 4 ought not to have been accepted for the reason that both PWs.3 and 4 were friends of deceased Mahadevappa and they said to have gone there to meet him. Both these witnesses even though stated in their evidence that the accident occurred due to rash and negligent driving of the accused, they did not forget to say that the accused and the pillion rider had also suffered severe injuries in the said accident and all three were shifted to the hospital for treatment. The wound certificates of the accused and pillion rider are marked as Exs.P1 and P2. These aspects should have been considered by the Trial Court to conclude that the deceased suddenly rushed towards the road without observing the vehicles and sustained injuries due to the accident.

9. It is further submitted that the evidence of PWs.3 and 4 though appears to be true as eyewitnesses to the incident, the rash and negligent driving of the accused is not -5- CRL.RP No. 1224 of 2017 forthcoming in their evidence. Even assuming that they are the eyewitnesses to the incident, as per their evidence, both were standing on the other side of the road and the deceased was crossing the road on their instruction. The accident took place at the fag end of the road. The manner in which the deceased was crossing the road had to be considered while analyzing the evidence. Having failed to consider the same, the impugned judgments have been passed which are required to be set aside.

10. Per contra, learned High Court Government Pleader vehemently justified the concurrent findings and submitted that PW.3 being the complainant categorically stated in his complaint that the accused was driving the motorbike in a rash and negligent manner and the complaint was registered on the same day by mentioning the vehicle registration number. Both PWs.3 and 4 are consistent in their evidence that the accident occurred due to rash and negligent driving, therefore, their evidence cannot be discarded as both these witnesses have been subjected to cross-examination and nothing has been elicited in the evidence of defence. Therefore, the findings of the Courts below cannot be found fault with. Making such -6- CRL.RP No. 1224 of 2017 submission, learned High Court Government Pleader prays to dismiss the petition.

11. Having heard the learned counsel for the respective parties and also perused judgments of the Courts below, it is relevant to refer to the evidence of PWs.3 and 4 as they claimed to be the eyewitnesses to the incident. PW.3 is the complainant. According to him, he had been to meet the deceased Mahadevappa, on his motorbike near Sharavathi Hospital, Vijayanagara, Bengaluru. In the meantime, PW.4 had also gone there. Both PWs.3 and 4 were standing on the other side of the road and Mahadevappa was about to cross the road to meet PWs.3 and 4. By that time, the accused said to have ridden his motorbike in a rash and negligent manner and dashed Mahadevappa, consequently, Mahadevappa, the accused and the pillion rider have sustained injuries. Even though Mahadevappa was admitted to various hospitals, he succumbed to the injuries.

12. It is needless to say that, PW.4 also stated in his evidence in consonance with the evidence of PW.3. Both these witnesses even though they are consistent in their evidence that the accused was driving the motorbike in a rash and negligent manner, they did not state in their evidence as to -7- CRL.RP No. 1224 of 2017 how the said rash and negligent had been determined. In fact, both these witnesses have stressed about the high speed of the vehicle.

13. Be that as it may, mere driving the vehicle in high speed cannot be construed as rash and negligent manner, unless, it is specifically stated as to how such rash and negligent act can be determined. Both PWs.3 and 4 are consistent in their evidence that Mahadevappa was crossing the road to meet them, but they did not speak as to whether the rider of the motorbike was driving the said vehicle contrary to any road safety measures. In the absence of any such violations of the road safety measures, it is not appropriate to infer that the rider of the vehicle driven it in a rash and negligent manner. Having said thus, it can be inferred that both the Courts have committed error in recording the conviction.

14. It is needless to say that mere driving the vehicle in high speed cannot be termed as rash and negligent driving. To fortify the said fact, it is appropriate to refer the judgment of -8- CRL.RP No. 1224 of 2017 the Hon'ble Supreme Court in the case of STATE OF KARNATAKA v. SATISH1.

4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for 1 (1998) 8 SCC 493 -9- CRL.RP No. 1224 of 2017 reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. On careful reading of the judgment of the Hon'ble Supreme Court, it can be inferred that mere riding of the vehicle in a high speed cannot be termed as rash and negligent act unless it is specifically proved regarding rash and negligent act.

15. In the present case, none of the witnesses have spoken about the manner in which the accused was riding the vehicle in a rash and negligent manner. In the absence of specific evidence regarding rash and negligent act, the conviction in respect of all the offences stated supra cannot be sustained. Hence, I am of the considered opinion that both the Courts have committed error in appreciating both facts and law.

16. In the light of the observations made above, I am of the considered opinion that the concurrent findings are required to be set aside. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of sentence dated 30.08.2011 in C.C.No.2977/2008 on the file of the Metropolitan Magistrate, Traffic

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Court-II, Bangalore and judgment and order dated 26.10.2017 passed in Crl.A No.636/2011 on the file of the LXI Additional City Civil and Sessions Judge, Bangalore, are set aside.

(iii) The petitioner is acquitted for the offences under Sections 279, 337, 304-A of IPC and Sections 3(1) r/w Section 181 of IMV Act and Section 146 r/w Section 196 of IMV Act.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE Bss