Kaisur Rahiman @ Kaisur Rahiman vs The State Of Karnataka
2021 Latest Caselaw 3403 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 25TH DAY OF SEPTEMBER, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL.RP.NO.2254/2013

BETWEEN:

KAISUR RAHIMAN @ KAISAR RAHIMAN
AGE: MAJOR, OCC: DRIVER,
R/O: KURADI, TQ: MANVI
DT: RAICHUR
                                             ...PETITIONER
(BY SRI.N.D.GUNDE, ADV.)

AND:

THE STATE OF KARNATAKA
BY RON POLICE,
RPTD.BY STATE PUBLIC PROSECUTOR, HIGH
COURT BUILDING, BANGALORE-560001
                                          ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 28.06.2013 PASSED BY THE ADDL. DIST. & SESSIONS
JUDGE, GADAG, IN CRL.A.NO.32/2007 THEREBY CONFIRMING
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 23.07.2007 PASSED BY THE JMFC COURT, AT RON, IN
C.C.NO.07/2006 THEREBY CONVICTING THE PETITIONER FOR
THE OFFENCES U/S 279, 337, 338 & 304(A) OF IPC.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 21.09.2021 COMING
ON FOR ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
                                  2




                              ORDER

This criminal revision petition is filed by the

accused/revision petitioner against the concurrent findings

of conviction passed by the JMFC, Ron in C.C.No.7/2006

dated 23.07.2007 and confirmed by the Additional District

and Sessions Judge, Gadag in Crl.A.No.32/2007 dated

28.06.2013 for the offences punishable under Sections

279, 337, 338 and 304-A of IPC.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial court.

3. The brief facts leading to the case are that, on

29.03.2005 at about 5.30 a.m. near Ron Petrol bunk, the

accused drove his lorry bearing No.KA-21/U-5045 in a rash

and negligent manner and dashed to a 407 tempo bearing

No.KA-28/8200. Due to which, the complainant and

C.Ws.7 to 27 who were travelling in the said tempo

sustained grievous injuries, while the driver of the tempo

suffered fatal injuries and succumbed because of the

injuries in the hospital. On the basis of the complaint, the

investigating officer has registered the case in crime

No.29/2005. He investigated the matter and submitted

charge sheet against the accused for the offences

punishable under Sections 279, 337, 338 and 304-A of

IPC. After submission of the charge sheet, as there are

sufficient grounds to proceed against the accused, the

learned Magistrate has taken cognizance of the alleged

offences. He has also secured presence of the accused and

he was enlarged on bail. The accused has denied the

accusation made against him. Then the prosecution has

examined in all 19 witnesses as P.Ws.1 to 19 and also

placed reliance on 29 documents as Exs.P1 to P29 to prove

the guilt of the accused. After conclusion of the evidence of

the prosecution, the statement of the accused under

Section 313 of Cr.P.C. was recorded to enable him to

explain the incriminating evidence appearing against him

in the case of the prosecution. The case of the accused is

of total denial. Further, he did not choose to lead any oral

or documentary evidence in support of his defence.

4. After hearing the arguments, the learned

Magistrate has convicted the accused for the offences

punishable under Sections 279, 337, 338 and 304-A of

IPC. The accused has challenged this judgment of

conviction before the Additional District and Sessions

Judge, Gadag in Crl.A.No.32/2007 and the learned

Sessions Judge by his judgment dated 28.06.2013

dismissed the appeal by confirming the judgment of

conviction. Being aggrieved by these concurrent findings,

the revision petitioner/accused has filed this criminal

revision petition challenging the concurrent findings of

both the courts below.

5. Heard the arguments advanced by the learned

counsel for the revision petitioner and the learned HCGP

for the respondent and perused the trial court records.

6. Learned counsel for the revision

petitioner/accused would contend that judgments and

orders passed by both the courts below are contrary to

law, facts and evidence on record. He would further

contend that both the courts below have failed to give

proper reasons and the judgments and orders are

erroneous resulted in miscarriage of justice. That both the

courts below have failed to appreciate the contradictions in

the evidence of P.Ws.2 to 6 and their evidence being

unnatural, artificial and were not creditworthy. That none

of the eye-witnesses were able to say the speed of the

vehicle and both the courts below have not raised proper

probabilities and inferences. Hence, he would contend that

that both the courts below erred in convicting the accused

and sought for allowing the revision petition by acquitting

the accused.

7. Per contra, learned HCGP would contend that

both the courts below have appreciated the oral and

documentary evidence in detail and arrived at a just

decision. He would contend that both the courts below

have imposed reasonable sentence, which does not call for

any interference and prayed for rejection of the revision

petition.

8. Having heard the arguments and perusing the

records, it is evident that lorry bearing No.KA-21/U-5045

and 407 tempo bearing KA-28/8200 have met with an

accident on 29.03.2005 at 5.30 a.m. near Ron Petrol Bunk.

It is also not under serious dispute that there is a head on

collision between the vehicles and the driver of the tempo

succumbed because of the injuries. However, it is to be

noted here that, investigating officer has charge sheeted

only the driver of the lorry. Apart from that, all the injured

witnesses were travelling in the tempo and the tempo was

loaded with more than 25 passengers, which is undisputed

fact. But interestingly, it is to be noted here that the very

capacity of the tempo is 10-12 passengers. These facts

were not noticed by the investigating agency.

9. P.W.1 is the complainant and in his

examination-in-chief he has specifically deposed that they

were proceeding from Shahapur to Yamanur and there

were 25-30 passengers in the tempo but the very capacity

of the tempo is about 12. But admittedly, in the said

tempo about 25-30 passengers were travelling. In his

examination-in-chief P.W.1 deposed that accident has

occurred at 5.30 in the evening, but in the cross-

examination, he claims that it was morning at 5.30 a.m.

He simply asserts that accident is because of the

negligence of the driver of the lorry, but he did not explain

how the accident exactly occurred. Hence, when there is a

head on collision between two vehicles, his evidence does

not establish rash and negligent act against the driver of

the lorry as alleged.

10. P.W.2 is mahazar witness, P.Ws.3 to 5 are

eye-witnesses who were inmates of the tempo. They also

simply deposed that accident is because of the negligence

of the driver of the lorry, but they did not disclose how the

tempo was moving. P.W.6 is an eye-witness. Though he

supported the case of the prosecution, but his cross-

examination reveals that he was tutored by the

prosecution to give evidence in a particular manner.

Further, he admits that lorry was parked by the side of the

road. Under these circumstances, the entire case of the

prosecution becomes doubtful considering his evidence and

admission.

11. P.Ws.7, 8, 9, 10, 11, 12, 13 and 14 are all

eye-witnesses who were inmates of the tempo and they

simply deposed that lorry came in a high speed and

accident occurred because of the negligence on the part of

the driver of the lorry, but they are unable to explain what

was the speed. Further, they did not say how the tempo

was proceeding and they admit that tempo was overloaded

with passengers.

12. P.W.16 is the cleaner of the lorry and he

turned hostile. In his evidence, he stated that lorry was

parked near petrol bunk, as there was a puncture of tyre

and the tempo came in a high speed and dashed to the

lorry resulting in the accident. His evidence is corroborated

by the admission given by P.W.6, who admitted that lorry

was parked. The same evidence is given by P.W.16.

13. Ex.P3 is the sketch of scene of offence and it

discloses that lorry was moving on the left side of the

road. However, there was a head on collision between the

two vehicles. The sketch is also not properly drawn by the

investigating officer and he did not mention width of the

road in the sketch and he did not identify the point of

impact. Ex.P29 is the spot mahazar. On perusal of Ex.P3

along with Ex.P29, it is evident that, at the accident spot,

the road is running from East-West direction and lorry was

moving from West to East. Further, from Ex.P29 it is

evident that width of the road is 18 feet. The accident spot

is not shown in the sketch, but only where the vehicles

were stationed is shown in the mahazar and it does not

disclose the place of impact. Admittedly, it is a head on

collision. Apart from that, front side of the lorry was

completely damaged. Further, mahazar itself clearly

establish that left side front wheel of the lorry was burst

and chassis was completely damaged. Hence, this

evidence regarding left side front wheel of the lorry was

being burst is supported by the evidence of P.Ws.6 and 16.

But quite contrary to it, the Motor Vehicle Inspector who

was examined as P.W.19, did not notice that left side front

wheel of the lorry was burst and he deposed that there

was no mechanical defect. Even in the cross-examination,

he has specifically stated that he did not notice that left

side front wheel of the lorry was burst, but the spot

mahazar Ex.P29 itself establish this aspect. If this version

is taken into consideration, then it is evident that P.W.19-

Motor Vehicle Inspector has not visited the spot and

mechanically prepared the report as per Ex.P25. He has

concealed the material aspects. When the left side front

wheel of the lorry was burst, question of lorry moving does

not arise at all and it should have been stationed. Further,

the evidence clearly discloses that there were more than

25-30 passengers in the tempo and it is overloaded. Then,

it is for the eye-witnesses to explain all these aspects, but

none of the eye-witnesses were able to explain any of

these aspects. The investigating officer has also not

bothered to consider this material evidence recorded in

Ex.P29 regarding left side front wheel of the lorry was

burst. This fact is completely ignored by the investigating

officer and he has not even bothered to submit 'B' charge

sheet against the driver of the tempo. There is no material

evidence to show that accident is because of the actionable

negligence on the part of the driver of the lorry. When the

lorry was parked by the side of the road, negligence act

cannot be attributed against the driver of the lorry, i.e.,

revision petitioner. There may be some contributory

negligence, but that cannot be attributed due to

mechanical failure, i.e., left side front wheel of the lorry

being burst. Under these circumstances, the entire

approach of both the courts below is completely erroneous.

14. Very interestingly, the trial court instead of

appreciating Exs.P3 and P29 as well as evidence of P.Ws.6

and 16 has gone to the extent of observing that accused

has taken two inconsistent defences and failed to establish

the same and that he is not certain regarding his defence.

But the learned Magistrate has failed to note the fact that

initial burden is on the prosecution to establish the guilt of

the accused beyond all reasonable doubt. The accused is at

liberty to take any defence. Merely because accused is

unable to establish his defence that does not assist the

prosecution in proving its case. The prosecution must

prove its case beyond all reasonable doubt. But in the

instant case, the facts are entirely different. The learned

Magistrate has directly come to a conclusion that driver of

the lorry was rash and negligent. He did not consider

Exs.P3 and P29 and did not appreciate other evidence.

15. It is also to be noted here that there is a head

on collision and the investigating officer has also not taken

photographs. Sketch is also not properly drawn and place

of impact is also not shown. In this context, learned

counsel for the revision petitioner has placed reliance on

the decision of the Hon'ble Apex Court in the case of State

of Karnataka Vs Satish reported in AIRONLINE 1996

SC 95. The Hon'ble Apex Court in the said case observed

as under:

"Penal Code (45 of 1860) , S.337, S.338, S.304A-- Motor Vehicles Act (59 of 1988) , S.168-- Negligence of driver - Proof - Making his ipsa to quitor -

Invocation of - Merely because truck is driven at "high speed" - Does not bespeak of either "negligence" or "rashness" by itself - Evidence to show that immediately before truck turned turtle there was big jerk - Whether jerk was because of uneven road or mechanical failure, not explained - Report submitted by motor vehicle inspector not forthcoming from record - Said Inspector not examined - Serious infirmity and lacuna in prosecution case - No evidence on record to establish "negligence" or "rashness" in driving truck - Maxim res ipsa loquitur cannot be involved - Acquittal not liable to be interfered with."

16. The principles enunciated in the said judgment

are applicable to the facts of the present case in hand. In

the instant case also, all along it is stated that lorry was in

high speed, but none of the witnesses who were travelling

in the tempo are able to explain the speed. Further, when

it was early in the morning, it is hard to notice the speed

of the vehicle, as the accident has taken place at 5.30 a.m.

None of the witnesses were able to explain how the driver

of tempo managed the load of 30 passengers in the

tempo, when the capacity itself is hardly 12. All these

aspects clearly establish that prosecution has failed to

bring home the guilt of the accused beyond all reasonable

doubt. The learned Magistrate has not considered these

aspects and the appellate court did not appreciate the

evidence in proper way and in a mechanical way observed

that trial court has appreciated the evidence in proper way

in one paragraph. The approach of both the courts below is

erroneous resulting in miscarriage of justice. Under these

circumstances, the criminal revision petition needs to be

allowed. Accordingly, I proceed to pass the following:

ORDER

The criminal revision petition is allowed.

The judgment of conviction passed by the JMFC, Ron in C.C.No.7/2006 dated 23.07.2007 and confirmed by the Additional District and Sessions Judge, Gadag in Crl.A.No.32/2007 dated 28.06.2013 for the offences punishable under Sections 279, 337, 338 and 304-A of IPC stand set aside and revision petitioner/accused is acquitted of the alleged offences.

The fine amount if any deposited by the revision petitioner/accused shall be returned to him.

Sd/-

JUDGE

MBS/-