Shri Navanath Dattatreya Pullari ... vs The State Of Karnataka (Tarikere ...
2022 Latest Caselaw 2314 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 14 T H DAY OF FEBRUARY, 2022

                                BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.15 OF 2015


BETWEEN:

Shri Navanath Dattatreya Pullari,
S/o Dattatreya,
Aged about 40 years,
Occ: Driver,
R/o b ehind KEB, Turuvekere,
Tumkur District,
N/o Aland, (behind Syndicate Bank)
Gulb arg e District.
                                                             ...Petitioner
(By Sri Ashok R Kalyana Shetty, Advocate)

AND:

The State of Karnataka (Tarikere Police)
By it's State Public Prosecutor,
Advocate General's Office,
High Court Build ings Premises,
Beng aluru-560001.
                                                            ...Respondent
(By Sri K.S.Abhijith, HCGP)


        This    Criminal    Revision     Petition      is    filed   under
Section 397 read with 401 of Cr.P.C., praying to set
aside     the    judg ment      of     conviction      and     ord er   of
sentence dated 10.07.2013 passed by the Senior Civil
Judge          and   Prl.       JMFC         Court,     Tarikere        in
C.C.No.152/2010            as   well    as    the     judgment       dated
                                  :: 2 ::


01.12.2014      passed      by     the      Prl.     Sessions    Judge,
Chikmagalur        in      Criminal         Ap peal      No.244/2013
confirming the said judgment of Trial Court and acquit
him of all the charg es.


      This Criminal      Revision          Petition   coming    on   for
hearing this d ay, the Court made the following:


                             ORDER

This revision petition is preferred by the

accused, who has stood convicted and sentenced

for the offences under section 279, 338 and 304A

IPC. In brief the prosecution case is as follows:

2. On 15.12.2009, at about 7.15 a.m., on

N.H.206, in front of Pre-Metric Boys Hostel at

Betadahalli Village, an accident took place

between KSRTC bus bearing registration No.KA-06-

F-0478 coming from Tarikere and a Maruthi Omni

Van bearing registration No.KA-14-M-2419 coming

in the opposite direction. It was alleged that the

driver of the bus was rash and negligent in driving

the bus and this resulted in dashing against :: 3 ::

Maruthi Omni Van. As a result of this accident,

five inmates of the car were killed at the spot and

a few others were injured. The police registered

an FIR, held investigation and charge sheeted the

petitioner for the offences stated above.

3. During trial, the prosecution examined 10

witnesses, PW.1 to 10 and relied upon 22

documents as per Ex.P.1 to P.22. The petitioner

accused also adduced evidence as DW.1 and got

marked two documents as per Ex.D.1 and D.2.

Relying upon the evidence given by PW.2 to 5, the

trial court convicted the petitioner and sentenced

him to rigorous imprisonment for six months and

fine of Rs.1,000/- with default sentence of one

month rigorous imprisonment for the offence under

section 279 IPC; rigorous imprisonment for six

months and fine of Rs.1,000/- with default

sentence of one month rigorous imprisonment for

the offence under section 338 IPC, and rigorous :: 4 ::

imprisonment for two years and fine of Rs.8,000/-

with default sentence of three months rigorous

imprisonment for the offence under section 304-A

IPC. Questioning the judgment of conviction

passed by the learned Magistrate, the petitioner

approached the Sessions Court by filing Criminal

Appeal No.244/2013. The learned Sessions Judge

by her judgment dated 1.12.2014 dismissed the

appeal confirming the judgment of the Magistrate

and therefore the petitioner is before this court

questioning the correctness of the judgment of the

appellate court.

4. I have heard the argument of Sri. Ashok

R. Kalyana Shetty, learned counsel for the

petitioner and Sri. K.S. Abhijith, HCGP, learned

Government Advocate for the respondent.

5. Sri. Ashok R. Kalyana Shetty submits that

the trial court has just taken into consideration

the evidence of PW.1 to 5 for believing the :: 5 ::

prosecution case. He submits that the trial court

has conveniently ignored the evidence given by

PW.7 and DW.1, the petitioner himself. If the

testimonies of PW.7 and DW.1 had been

considered, it would have been possible for the

learned Magistrate to entertain a doubt in the

prosecution case. PW.7 was the conductor of the

bus and his evidence is so clear that the driver of

the Maruthi Omni Van was speaking to somebody

over his mobile phone without noticing the bus

coming in the opposite direction. Using the mobile

phone while driving was the reason for the

accident. PW.10 has also given the evidence in

the same way. Being the bus driver, he would have

noticed the car driver using the mobile phone

while driving. He refers to Ex.D.1, the newspaper

in which the news regarding the accident had been

published. PW.10, the Police Sub-Inspector gave

the information to the press about the accident

and the same news was published in the :: 6 ::

newspaper on the day of the accident itself. The

trial court has simply held that the news item

published in the news paper cannot be believed.

Therefore it is his submission that the trial court

erred in appreciating the evidence in proper

perspective and that the appellate court did not

re-appreciate the evidence and it has just

endorsed all the findings given by the Magistrate

without applying mind. There is perversity in

appreciation of evidence and in this view the

judgments of the trial court as well as the

appellate court are to be set aside and the

petitioner is to be acquitted of the offence.

6. Sri. K.S. Abhijith, Government Pleader

submits that both the courts below have held

against the petitioner on facts. Therefore there is

no scope for re-appreciating the evidence. It is

his clear argument that PW.2 to 4 are the

independent eye witnesses to the incident. Their :: 7 ::

testimonies cannot be disbelieved at all. PW.5

was an inmate of the car. All these four witnesses

have consistently spoken that the accident

occurred due to negligence of the bus driver.

Though it is true that PW.7 has stated that the car

driver was using mobile phone while driving, he is

an interested witness, in the sense he was the

conductor of the bus and it is quite possible that

he does not support the prosecution. He was

treated hostile also. Ignoring the evidence of

PW.7, the evidence given by PW.2 to 5 can be

relied upon. DW.1 is the petitioner himself and it

is quite clear that he gave the evidence reading

the news item found in Ex.D.1. In this view, both

the courts have come to right conclusion to convict

the petitioner and hence this revision petition is to

be dismissed.

7. I have considered the points of arguments

and perused the entire evidence, both oral and :: 8 ::

documentary. There is no dispute about the

accident that took place on 15.12.2009 at 7.15

a.m. Ex.P.22 is the sketch of scene of occurrence.

No inference can be drawn from Ex.P.22. It is true

that as has been argued by the Government

Pleader, the independent witnesses PW.2,3 and 4

have given evidence that the driver of the bus was

driving rashly and negligently. According to them

this was the reason for the accident. The evidence

of PW.5, also indicates that the bus driver was

negligent. If the evidence of these witnesses is

considered, an inference may be drawn that the

bus driver was negligent. But if the judgment of

the trial court is perused, it becomes very clear

that it has not appreciated the evidence of PW.7

correctly. The trial court has disbelieved the

evidence of PW.7 giving the reason that he is the

colleague of the accused and an interested

witness. The appellate court while re-appreciating

the evidence, has not referred to the evidence of :: 9 ::

PW.7 in detail at all, it has just recorded a finding

that the evidence of PW.7 shows that the cause for

the accident was the driver of the KSRTC bus.

Except this, there is no discussion whether the

evidence of PW.7 is believable or not. This is the

error that the appellate court has also committed

while re-appreciating the evidence.

8. PW.7 has stated in examination-in-chief

that the driver of the bus was driving at a speed of

50 kms. per hour and that the driver of the car

was driving at a speed of 100 kms. per hour. He

has stated that the car driver was speaking to

somebody else using his mobile phone while

driving and therefore the car came and dashed

against the bus. According to PW.7 the car driver

was responsible for the happening of the accident.

Since he did not support the prosecution case, the

prosecutor treated him hostile and subjected him

to cross-examination. In the cross-examination, :: 10 ::

his attention was brought to a portion of his

statement under Section 161 Cr.P.C. which is

marked as per Ex.P.8. According to Ex.P.8, the

bus driver, in order to avoid two dogs in the road,

took the bus to right side and then dashed against

Maruthi Omni Van coming in the opposite

direction. Now this was the contradiction that the

public prosecutor brought out while cross-

examining PW.7. It was further necessary for the

public prosecutor to have brought the same to the

notice of the investigating officer, examined as

PW.9. Now, if the evidence of PW.9 is seen, it

may be stated that the portion marked as Ex.P.8,

in the statement of PW.7 under section 161

Cr.P.C., was not bought to his notice at all and

thereby there was no due proof of the

contradiction as contemplated under section 162

Cr.P.C. In this view, whatever PW.7 has stated in

the examination-in-chief becomes believable.

:: 11 ::

9. The petitioner being the accused adduced

evidence as DW.1 and stated that the accident

occurred due to negligence of the car driver, who

was speaking in the mobile phone while driving the

car. Ex.D.1 is the newspaper, which he got

marked while giving evidence. As regards this,

Ex.D.1, the trial court has held that the news item

published in the newspaper cannot be relied upon

as per the judgment of this court in the case of

Babu Rao Vs. Basavaraj and others (AIR 2011

Karnataka 165). The trial court has held that

Ex.D.1 cannot be considered because the source of

information is not disclosed. Because of this

finding, if the judgment of this court in Babu Rao

is seen, what is held is as below:

"16. The gist of these cases is, it is very difficult for a Court to rely on news items published on the information given by correspondents because they may not represent the true state of affairs. A news item without any further :: 12 ::

proof of what had actually happened through other witnesses is of no value. It is at best a second hand or secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth, might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is plausible. The evidence must be clear and cogent and if there is vagueness in the allegations, it would not help the petitioner. The evidence cannot be too general so as to accept the same as material on a serious issue. Whatever is stated in the pleadings has to be established. Whenever a false statement regarding the personal character of the rival candidate is alleged, burden is on the petitioner to prove such allegations beyond reasonable doubt. Apart from bringing material to establish that such accusation assassinating the personal :: 13 ::

       character         or    conduct        of   the    rival
       candidate         was    made,        the   petitioner

must also be able to establish that such accusation actually affects the election prospects of the candidate. Unless sufficient evidence is adduced in order to establish how the statement was understood either by the audience or the reader of the newspaper, it would not be possible for the Court to come to conclusion that such statements made by the 1st respondent in this case has affected the election prospects of the petitioner."

10. What actually is held by this court is that

the news item without any further proof is of no

value. It is quite clear that both the courts have

committed an error in not noticing the probative

value found in Ex.D.1. If the trial court had

properly assessed the evidence of PW.10, it was

possible for it to understand that the news

reporter collected information about the accident

from PW.10. PW.10 has clearly admitted the :: 14 ::

suggestion in the cross-examination that the

reporters met him and collected information about

the accident. Of course, when a suggestion was

given to him that the very same information that

he gave to the reporter was published in the

newspaper, he answered that the press would not

report the information given to them correctly.

Whatever may be the answer of PW.10 in the

cross-examination in this regard, it becomes clear

that for publication of the news in the newspaper,

'Jayamitra', it was he who gave the information.

Therefore it becomes quit clear that the trial court

has totally ignored the evidence of PW.10, the

finding that source information is not forthcoming

is thus wrong. Now if Ex.D.1 is seen, what was

published was that the driver of the Maruthi Omni

Van was speaking in the mobile phone while

driving. If the evidence given by PW.7, 10 and

DW.1 is assessed in the light of Ex.D.1, it becomes

clear that probably the car driver was speaking in :: 15 ::

the mobile phone while driving and this led to

occurrence of accident. The evidence of PW.10

provides corroboration for the news item published

in Ex.D.1 and thus the news item published in

Ex.D.1 leads to doubt the case projected by the

prosecution. In this view, though eye witnesses

have given evidence that they saw the occurrence

of the accident, in view of the probability of the

evidence given by PW.7 and DW.1, corroborated to

some extent by the evidence of PW.10, the

defence version is probable to be believed. Thus

seen, the benefit of doubt should be given to the

accused. Therefore it may be stated that both the

courts have totally erred in appreciating the

evidence. The approach of the Sessions Court is

just casual. This leads to arriving at a conclusion

that this revision petition deserves to be allowed

and hence the following order:

:: 16 ::

ORDER

Petition is allowed. The judgment dated

1.12.2014 passed by the Sessions Court in

Criminal Appeal No.244/2013 is set aside. The

appeal is allowed. Consequently the judgment of

the Magistrate in C.C.No.152/2010 is reversed.

The petitioner is acquitted of the offence under

section 279, 338 and 304A IPC. The bail bonds

stand cancelled. If the petitioner has deposited

the fine amount, the same shall be returned to

him.

Sd/-

JUDGE

sd