Sri Mohiddin vs State Of Karnataka
2021 Latest Caselaw 471 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF JANUARY, 2021

                       BEFORE

          THE HON'BLE MRS.JUSTICE M.G.UMA


  CRIMINAL REVISION PETITION NO.183 OF 2015

BETWEEN:

SRI. MOHIDDIN
SON OF IDDINABBA
AGED ABOUT 66 YEARS
DRIVER
RESIDING AT BADRIYA VILLA
ADDOOR VILLAGE
MANGALORE-574 145.
                                    ... PETITIONER

(BY SRI:S.RAJASHEKAR, ADVOCATE (PH))

AND:

STATE OF KARNATAKA
REPRESENTED BY
BAJPE POLICE STATION
MANGALORE-574 142.
                                    ...RESPONDENT

(BY SRI:VINAYAKA V.S., HCGP (PH))

      THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING
TO SET ASIDE THE JUDGMENT DATED 01.12.2014 PASSED
BY THE IV-ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALORE IN CRIMINAL APPEAL NO.35 OF 2008
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AND THE JUDGMENT OF CONVICTION PASSED AGAINST
THE PETITIONER BY THE JMFC-II COURT, AT MANGALORE,
D.K., BY THE JUDGMENT DATED 18.12.2007 IN
C.C.NO.4823 OF 2007 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 279, 337 AND 304(A) OF IPC AND
ACQUIT THE PETITIONER.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:

                         ORDER

The accused has preferred this revision petition

aggrieved by the impugned judgment of conviction and

order of sentence dated 18.12.2007 passed in CC No.4823

of 2007 on the file of the learned JMFC-II Court, Dakshina

Kannada, Mangaluru (for short 'the Trial Court), convicting

him for the offences punishable under Sections 279, 337

and 304A of Indian Penal Code (for short 'IPC') and

sentenced him to undergo simple imprisonment for a

period of three months and to pay a fine of Rs.1,000/- for

the offence punishable under Section 279 of IPC,

sentenced to undergo simple imprisonment for a period of

one month and to pay a fine of Rs.500/- for the offence

punishable under Section 337 of IPC and sentenced to

undergo simple imprisonment for a period of six months

and to pay a fine of Rs.5,000/- for the offence punishable

under Section 304A of IPC, with default sentences, which

was confirmed by the judgment dated 01.12.2004 passed

in Criminal Appeal No.35 of 2008 on the file of the IV

Additional District and Sessions Judge, Dakshina Kannada,

Mangaluru (for short 'the Appellate Court').

2. Brief facts of the case are that, the accused

was charged for having committed the offences stated

above by contending that he being the driver of the bus

bearing registration No.KA-21-822 had driven the same in

rash and negligent manner endangering human life, which

resulted in the death of the deceased Neeriksha Alva, and

thereby committed the above said offences. The accused

appeared before the Trial Court and pleaded not guilty for

the charges leveled against him. The prosecution

examined 7 witnesses and got marked 8 documents in

support of its contention. The accused denied all the

incriminating materials available on record in his statement

recorded under Section 313 of Cr.P.C., but has not chosen

to lead any evidence in support of his defence. The Trial

Court after taking into consideration all these materials

proceeded to convict the accused for the above said

offences and the same was confirmed by the Appellate

Court.

3. Heard Sri.S.Rajashekar, learned Counsel for

the revision petitioner and Sri.V.S.Vinayaka, learned High

Court Government Pleader for the respondent.

4. Learned Counsel for the revision petitioner

contended that the prosecution has not discharged its

burden to prove the rash and negligent driving of the

offending bus by the accused. Even though the accused

has not denied that he was the driver of the offending

vehicle at the time of accident, it has not proved the rash

and negligent driving by the accused. Except PW2, none

of the eye witnesses were examined by the prosecution in

order to support its contention. The evidence of PW2 is

not helpful for the prosecution to prove the offence in

question. The accused has taken specific defence that the

axle of the offending vehicle was cut, which has resulted in

the accident. Under such circumstances, the Trial Court

could not have convicted the accused. The Trial Court and

the Appellate Court committed an error in convicting the

accused and confirming the judgment of conviction.

Hence, he prays for allowing the revision petition by

setting aside the impugned judgment of conviction and

order of sentence.

5. Per contra, learned High Court Government

Pleader for the respondent supporting the impugned

judgment of conviction and order of sentence submitted

that PW2 is the eye witness who was working as conductor

in the offending vehicle and he is the injured witness. His

evidence stands on the higher pedestal. This witness

specifically stated that the vehicle in question was parked

in up-gradient place. Therefore, the vehicle started

moving downwards and when he tried to stop the vehicle

by keeping a katta, he sustained injuries. Thereby, the

rashness and negligence on the part of the accused who

was admittedly the driver of the bus in question is proved.

It is for the accused to explain as to how the accident has

occurred as per Section 106 of the Evidence Act.

Therefore, the Trial Court has rightly convicted the accused

and the impugned judgment of conviction and order of

sentence do not call for interference. Accordingly, he

prays for dismissal of the revision petition.

6. Perused the materials on records including the

Trial Court records in the light of the rival contentions.

PW1 is the informant who lodged the information after

coming to know about the accident. She is the teacher in

the school to which the offending bus belongs to. Witness

has specifically stated that she reached the spot after the

accident.

7. PW2 was working as conductor in the offending

bus and he is the injured witness. Initially, this witness

has not supported the case of prosecution and therefore,

he was treated as hostile. However, witness stated that he

was informed by the accused that axle of the bus was cut

and therefore, it has started moving backwards.

Immediately, he tried to stop the bus by putting katta

behind the front wheel and in the meantime, he sustained

injuries. Thereafter, it has hit the deceased which has

resulted in her death. Witness specifically stated that as

the axle was cut, the bus started moving backwards and it

has caused the accident. Learned APP cross examined this

witness to elicit that he and the accused belongs to the

same village and he has given statement before the police

regarding the cause of accident and rash and negligent

driving of the accused.

8. During cross examination by the learned

Counsel for the accused, witness re-iterated his say that

he himself has put the katta behind the front wheel to stop

the vehicle when it was moving downwards. After putting

the katta about 10 to 15 minutes later, the accident had

occurred. He himself had assisted the children from

getting down the bus. Witness also stated that at the time

of accident, engine of the bus was off. It was suggested to

the witness that since the stone kept behind the front

wheel was slipped, the bus started moving backwards.

The same has been admitted by the witness. It is also

admitted by the witness that at the time of accident, there

was heavy rain. The learned APP has not chosen to further

cross examine/re-examine this witness, when the witness

has admitted crucial suggestions put to him by the learned

Counsel for the accused.

9. PWs.3 and 4 are the spot mahazar witnesses

who spoke about the position of the bus and drawing of

spot mahazar. PW5 is the Motor Vehicle Inspector who

examined the bus in question and had issued the Motor

Vehicle Inspection report as per Ex.P6. As per Ex.P6,

there was no mechanical defect in the vehicle and the

accident in question is not as a result of any mechanical

defect. However, during cross examination, this witness

stated that he had not noticed the axle cut as contended

by the accused. He admitted that if there is axle cut, the

bus cannot be driven.

10. PW6 is the Correspondent of Sahara English

Medium School, to which the offending vehicle belongs to.

Witness stated that he has paid repair charges through

cheque or through cash after the same was repaired in

Ganesh garage. He pleaded his ignorance regarding the

axle cut of the bus, but however, stated that he was

informed so by the accused.

11. PW7 is the Circle Inspector who filed the

charge sheet against the accused. It is pertinent to note

that the Investigating Officer who conducted major portion

of the investigation is not examined before the Trial Court.

Now it is clear that except PW2, none of the eye witnesses

are examined by the prosecution.

12. It is the golden rule of criminal jurisprudence

that the burden to prove the commission of offence is on

the prosecution and it has to prove it beyond reasonable

doubt. It is not the contention of the prosecution that

except PW2 there were none else at the scene of

occurrence who have seen the accident. Interestingly, the

prosecution has not stated anything as to how PW2

sustained injuries, even though, it has produced Ex.P5 -

the wound certificate issued by S.C.S Hospital, Mangaluru.

As per this document, PW2 has sustained contusion over

right thigh which is simple in nature. This witness has not

supported the case of prosecution and the learned APP

chosen to cross examine him. Nothing is suggested to the

witness as to the manner in which he sustained injuries.

13. If all these materials are taken into

consideration, none of the witnesses have spoken to about

the rash or negligent driving of the accused in causing the

death of the deceased. Even though the accused did not

dispute the fact that he was the driver of the offending bus

and it had met with an accident resulting in the death of a

girl, the same is not sufficient to form an opinion that the

accused was either rash or negligent in driving the bus.

When the prosecution has not independently proved the

rashness and negligence of the accused in causing the

accident, it cannot be presumed that simply because the

girl Neeriksha Alva died in the accident, there was

rashness and negligence on the part of the accused. When

the accused has taken specific defence that the axle was

cut and for that reason the accident had occurred, the

prosecution has not made any efforts to prove the

rashness and negligence by adducing positive evidence.

The prosecution has to stand on its own legs and it cannot

succeed on the weaknesses of the defence taken by the

accused. Therefore, I am of the opinion that the accused is

entitled for the benefit of doubt and he is to be acquitted.

The impugned judgment of conviction and order of

sentence is liable to be set aside.

14. In view of the discussions held above, I

proceed to pass the following:

ORDER

The appeal is allowed. The impugned judgment of

conviction and order of sentence dated 18.12.2007 passed

in CC No.4823 of 2007 by the learned JMFC-II Court,

Dakshina Kannada, Mangaluru, and confirmed vide

judgment dated 01.12.2014 passed in Criminal Appeal

No.35 of 2008 by the learned IV Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru, are set

aside.

The accused is acquitted for the offences punishable

under Sections 279, 337 and 304A of IPC.

Bail bond of the accused and that of his sureties shall

stand cancelled.

The fine amount, if any, deposited by the accused is

ordered to be refunded on due identification.

Send back the Trial Court records.

Sd/-

JUDGE

*bgn/-