Sri Harish vs The State Of Karnataka By
2022 Latest Caselaw 11072 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22 ND DAY OF JULY 2022

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION No.1053 OF 2012

BETWEEN:

Sri Harish,
S/o. Huligowda,
Aged about 31 years,
Residing at Goni Somanahalli Village,
Halebeedu Hobli,
Belur Taluk-573 115,
Hassan District.                             .. Petitioner

 ( By Sri S.V.Lakshminarayana, Advocate )

AND:

The State of Karnataka by
Banavara Police Station,
Arasikere Taluk,
Represented by
Special Public Prosecutor
High Court Building
Bangalore-560 001.                           .. Respondent

 ( By Sri K.Nageshwarappa, HCGP)

      This Criminal Revision Petition is filed under Section
397(1) of Cr.P.C. praying to call for the records in
C.C.No.448/2009 in the Court of the Junior Judge and J.M.F.C.,
Arasikere and set aside the judgment and order dated
02.06.2012 passed by the Fast Track Court-II and Sessions
Court at Hassan in Crl.A.No.77/2011 and also set aside
judgment and order dated 18.07.2011 passed by the Junior
                                                     Crl.R.P.No.1053/2012
                                     2


Judge and J.M.F.C. at Arasikere in C.C.No.448/2009 and to
grant such other relief/s as this Hon'ble Court deems fit in the
circumstances of the case for the ends of justice.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
08.07.2022, coming on for pronouncement of orders this day,
the Court made the following:

                               ORDER

The present petitioner was tried as accused by the

Court of learned Junior Judge and Judicial Magistrate First

Class, Arasikere, (hereinafter for brevity referred to as the

`trial Court') in C.C.No.448/2009, for the offences

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

Penal Code, 1860 (hereinafter for brevity referred to as the

`IPC') and Section 187 of Motor Vehicles Act, 1988,

(hereinafter for brevity referred to as `M.V.Act') and was

convicted by the judgment of conviction and order on

sentence dated 18.07.2011 and was sentenced

accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.77/2011, before the learned

Fast Track Court-II and Sessions Judge, Hassan, Crl.R.P.No.1053/2012

(hereinafter for brevity referred to as the `Sessions

Judge's Court'), which after hearing both side, dismissed

the appeal filed by the accused by its judgment dated

02.06.2012. Being aggrieved by the same, the accused

has preferred the present revision petition.

2. The summary of the case of the prosecution in the

trial Court was that on 07.01.2009, at about 3.45 p.m.,

when CW-1/PW-1 Samiulla and the deceased Syed Akram

were going on TVS motorcycle bearing registration

No.KA-13-U-4448, on Banavara-Javagal road, near

Kachighatta Gate within the limits of respondent-Police

Station, a mobile goods vehicle bearing registration

No.KA-13-A-4181, being driven by the accused in a rash

and negligent manner, coming from Javagal side towards

Banavara, dashed to the motorcycle on which CW-1/PW-1

and Syed Akram were going on. Due the said accident,

Syed Akram sustained multiple injuries on different parts

of his body and while being shifted to higher medical

centre for treatment, he succumbed to the injuries.

Crl.R.P.No.1053/2012

CW-1 - Samiualla also sustained multiple injuries to the

different parts of his body. The accused who caused the

accident, did not attend for the medical treatment of the

injured nor informed the nearest Police Station about the

accident, rather, he ran away from the spot and thereby

has committed the offences punishable under Sections

279, 337, 338, 304-A of IPC and Section 187 of M.V.Act.

3. The accused appeared in the trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the guilt

against the accused, the prosecution got examined in all

ten witnesses from PW-1 to PW-10 and got marked

documents from Exs.P-1 to P-10. However, neither any

witness was examined nor any documents were got

marked on behalf of the accused.

4. The learned counsel for the petitioner and learned

High Court Government Pleader for the respondent are

physically present in the Court.

Crl.R.P.No.1053/2012

5. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court

records.

6. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

7. After hearing from both side, the only point that

arise for my consideration in this revision petition is:

Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code, 1860, and Section 187 of Motor Vehicles Act, 1988, warrants any interference at the hands of this Court?

8. Learned counsel for the petitioner in his argument

submitted that the petitioner/accused was sentenced

twice for the offence punishable under Section 338 of IPC

by the trial Court. He also stated that the driver of the

offending vehicle has not been identified by any of the Crl.R.P.No.1053/2012

witnesses. No witnesses have stated in their evidence that

it was the accused who was driving the alleged offending

vehicle. He also stated that the deceased who was the

rider of the motorcycle is also a contributory to the road

traffic accident. Stating that PW-8, the Head Constable

has no where stated about who shown him the alleged

spot of the accident, as such, the same is not believable,

learned counsel prayed to allow the revision petition.

9. Learned High Court Government Pleader for the

respondent in his argument submitted that several of the

charge sheet witnesses examined by the prosecution have

supported the case of the prosecution. No witnesses have

spoken about the contribution by the deceased to the road

traffic accident. He also submitted that if the accused was

not driving the goods vehicle, then, it was for him to

explain as to how the accident took place and who was the

driver of the offending vehicle, otherwise, an adverse

inference is required to be drawn against him. In this

regard, learned High Court Government Pleader relied Crl.R.P.No.1053/2012

upon a judgment of Hon'ble Apex Court in Ravi Kapur -vs-

State of Rajasthan, reported in [(2012) 9 SCC 284]. With

this, he prayed for dismissal of the revision petition.

10. The petitioner has not denied or disputed the

occurrence of the alleged road traffic accident involving

TVS-XL motorcycle bearing registration No.KA-13-U-4448

and a goods vehicle bearing registration No.KA-13-A-4181,

on the date, time and place mentioned in the charge sheet.

The petitioner has also not denied or disputed the death of

Syed Akram due to the injuries sustained by him in the

said road traffic accident. However, the main contention of

the petitioner is that the prosecution has not proved that it

was the accused who was the driver of the offending

vehicle and that he was rash and negligent in his driving.

11. Among the ten witnesses examined by the

prosecution, PW-1, PW-3, PW-4 and PW-5 are examined as

eye witnesses to the alleged incident. All these witnesses

have supported the case of the prosecution.

Crl.R.P.No.1053/2012

PW-1 - Samiulla has stated that on 07.01.2009, he

was also going with the deceased as a pillion rider in the

motorcycle bearing registration No.KA-13-U-4448 towards

Javagal. At about 3.30 p.m. to 4.00 p.m. near Kachighatta

village, a Mahindra Maxi Cab vehicle being driven by its

driver in a rash and negligent manner coming from Javagal

side, dashed to the motorcycle on which these riders were

going. In the said accident, his right leg got cut and he

sustained injuries to his right hand and other parts of the

body. He also stated that, in the said accident, his friend

deceased Akram sustained injuries to his head, face and

limbs. Somebody shifted them to hospital at Banavara and

thereafter for higher treatment to a hospital at Arasikere.

The witness also stated that the driver of the offending

vehicle ran away from the spot and he could not see who

the driver was. Stating that he has given his complaint to

the police in the hospital, the witness has identified the

same at Ex.P-1.

Crl.R.P.No.1053/2012

In his cross-examination, suggestions were made to

show that road was curvey at the spot of the accident,

which, this witness has admitted as true. A suggestion

made to him that accident had occurred due to the fault of

rider of the motorcycle was not admitted as true by this

witness. He denied a suggestion that accident in question

has occurred at the fault of the rider of the motorcycle.

12. PW-3 - Asif and PW-4 -Anu @ Anwar, have stated

that they too were going on a motorcycle on the date of

the accident to attend a vehicle repair at Javagal. While

they were going on motorcycle, the deceased Syed Akram

and PW-1 were going ahead of them in a motorcycle. At

that time, they saw the Mahindra vehicle going from

Javagal side in high speed and dashing to the motorcycle

in which the deceased was riding. The driver of the

offending motor vehicle stopped the vehicle near the spot

of the accident and ran away from there. It is them (these

witnesses) who shifted the injured to the hospital at

Banavara. They stated that deceased Akram had Crl.R.P.No.1053/2012

sustained injuries to his head, face and limbs and PW-1

had sustained injuries to his legs. The witnesses have

further stated that they also admitted the injured from

Banavara hospital to hospital at Arasikere, however, while

the deceased was being taken to a higher medical centre,

he died on the way. Both of them have stated that the

accident had occurred at the fault of the offending goods

vehicle.

Both these witnesses were subjected to a detailed

cross-examination from the accused side, however, they

adhered to their original version. They denied a

suggestion that the accident had occurred at the fault of

rider of the motorcycle.

13. PW-5 - Syed Akram has stated that he knows

deceased Syed Akram. On 07.01.2009, while he was

coming from his work from Kachighatta Gate towards the

road, he saw the occurrence of the accident. He has

stated that, at about 3.30 p.m. to 4.00 p.m., the motor Crl.R.P.No.1053/2012

vehicle bearing registration No.KA-13-6181, being driven

by its driver in a high speed and in a rash and negligent

manner, dashed to the motor cycle on which the deceased

Akram was riding, due to which, Akram fell down. Since

he was a known person, he shifted him to Banavara

hospital. The witness has stated that after the accident,

the accused ran away from the spot, whom he can identify.

The witness also stated that he shifted the injured from

Banavara hospital to Arasikere hospital and from there to

Hassan, however, he came to know that injured Akram

succumbed to the injuries.

In his cross-examination, the witness has admitted a

suggestion as true that the road is curvy in the spot of the

accident. He also stated that he has seen the accused in

the place of the accident.

14. PW-2 - Syed Muktiyar, is admittedly a hearsay

witness. He is the brother of deceased Syed Akram, who

has stated that, on the evening of the date of the accident, Crl.R.P.No.1053/2012

he came to know about the accident through phone.

Thereafter, he went to Banavara hospital and he got his

brother admitted to the hospital. However, while the

injured was being shifted to Bengaluru for higher

treatment, he died near Tiptur. As such, the body was

brought to hospital at Arasikere and post mortem

examination was got done there. He stated that he has

given a complaint to the police in that regard as per

Ex.P-2. He also stated that in the said accident, PW-1

sustained injuries to his leg, hands and other parts of the

body.

15. PW-6 - Arif and PW-7 - Syed Pheer, have stated

that the scene of offence panchanama as per Ex.P-3 was

drawn in their presence by the police.

16. PW-8 - Chandrashekar, then Head Constable of

the respondent-Police Station has stated that on

07.01.2009, while he was in-charge of the Station, at

about 4.45 p.m., based upon a telephonic information, he Crl.R.P.No.1053/2012

went to the Government Hospital and recorded the

statement of the injured Samiulla. After returning to the

Station, he registered a crime in their Station and

submitted FIR to the Court and has identified the FIR at

Ex.P-7. He also stated that on the same evening between

6.10 p.m. to 7.00 p.m., he drew a mahazar and seized the

vehicles involved in the accident and also prepared a rough

sketch of the spot as per Ex.P-8. He identified the

mahazar at Ex.P-3.

17. PW-9 - T.D.Raju has stated that, while he was

working as the Circle Police Inspector of Arasikere Rural,

he continued the investigation in this matter, wherein he

recorded the statements of CW-3 and CW-4 and collected

the injury certificate of injured Samiulla and post mortem

examination report of deceased Syed Akram. After

collecting the Motor Vehicle Inspection Report, he filed the

charge sheet against the accused in the Court. He has

identified the Post Mortem Examination Report at Ex.P-5, Crl.R.P.No.1053/2012

Wound Certificate at Ex.P-9 and Motor Vehicle Inspection

Report at Ex.P-4.

18. PW-10 - Nanjudegowda has stated that while he

was working as Police Sub-Inspector of respondent-Police

Station on 08.01.2009, he took up the case file after FIR

was filed in it. On the same day, he received the

additional complaint filed by Syed Myktiyar reporting the

death of Syed Akram. As such, incorporating Section

304-A of IPC in the crime, he submitted second FIR to the

Court. He has identified the additional complaint at

Ex.P-2.

19. The evidence of PW-1, PW-3, PW-4 and PW-5

speaks about the occurrence of road traffic accident on

07.01.2009, at about 3.45 p.m., near Kachighatta village

involving a TVS-XL Moped bearing registration

No.KA-13-U-4448 and a goods vehicle. Their evidence

also reveals that in the said accident, PW-1 sustained

injuries, which PW-1 himself has described as cutting of his Crl.R.P.No.1053/2012

right leg and other injuries, which means, PW-1 sustained

both simple and grievous injuries. The Wound Certificate

at Ex.P-9, which has not been disputed from the accused

side, shows that injured Samiulla had sustained fracture in

the right thigh, fracture in the right wrist, both of them

were grievous in nature and two abrasions, two contusions

and lacerated injuries on the other parts of the body,

which were considered as simple in nature.

20. The inquest panchanama at Ex.P-6 shows that as

per the opinion of panchas, deceased Syed Akram

sustained injuries and succumbed to it. The post mortem

examination report at Ex.P-5, which document is not

disputed from the accused side, apart from mentioning the

injuries sustained by the deceased, including linear

fracture of fronto-parieto occipital bone on left side

measuring 7 inches in length, also mentioned few more

wounds on the other parts of the body and the doctor has

opined that the death of Syed Akram was due to head

injury.

Crl.R.P.No.1053/2012

Thus, the undenied evidence of PWs.1 to 5 that

deceased Syed Akram sustained injuries in the accident

and succumbed to the same establishes that Syed Akram,

who sustained injuired in the accident, succumbed to it.

21. The next question would be whether the

petitioner herein was the driver of the alleged offending

vehicle bearing registration No.KA-13-U-4448 and whether

he was driving the said vehicle in a rash and negligent

manner.

In this regard, as analysed above, PW-1, PW-3, PW-4

and PW-5 have claimed themselves to be the eye

witnesses to the incident. None of these witnesses have

stated that it was the accused who was driving the alleged

offending vehicle. PW-1 who is one among the injured in

the accident has stated that driver of the offending vehicle

ran away from the place and that he has not seen as to

who was driving the offending vehicle. Therefore, being an Crl.R.P.No.1053/2012

eye witness to the incident, he could not see as to who

was driving the offending vehicle.

PW-2 admittedly is only a hearsay witness, as such,

he cannot say as to who was driving the offending vehicle.

Though PW-3 and PW-4 also have claimed to be the eye

witnesses to the incident, but, neither of them have stated

that they have seen as to who was driving the offending

goods vehicle. Both of them have stated that the driver of

the offending vehicle after stopping the vehicle near the

spot, ran away from the place. However, neither of them

could say as to who was that driver who is said to have ran

away from the place. Interestingly, though it is the case of

the prosecution that the registration number of offending

vehicle was KA-13-A-4181, PW-4 has stated its registration

number as KA-13-4118. Thus, even in mentioning the

registration number of the alleged offending vehicle also,

PW-4 has committed a mistake. Thus, the evidence of

PW-3 and PW-4 also could not be able to establish that it Crl.R.P.No.1053/2012

was the accused and accused only who was driving the

vehicle.

22. The last eye witness who is PW-5 though has

stated that the accused ran away from the spot after the

accident and that he can identify him, but, nowhere he has

stated that accused was driving the offending vehicle.

Therefore, merely because accused is said to have ran

away from the spot, by that itself, it cannot be inferred

that accused was the driver of the offending vehicle at the

time of the accident.

Added to the above, none of the above witnesses i.e.,

PWs.1, 3, 4 and 5 have identified the accused in the Court.

The prosecution did not got the accused identified by any

of these witnesses. Therefore, the evidence of these

alleged eye witnesses would not help in prosecution's

attempt to establish that it was the accused and accused

alone who was driving the offending vehicle.

Crl.R.P.No.1053/2012

23. Added to the above, though PWs.3, 4 and 5 claim

themselves to be the eye witnesses to the accident and

that they shifted the injured to different hospitals, but,

there are variations in their statements in that regard.

According to PW-3, deceased succumbed to the injuries

while he was being shifted to a higher medical centre at

Hassan. According to PW-4, deceased succumbed to the

injuries while he was being shifted to a higher medical

centre at Bengaluru. According to PW-5, the injured died

in a hospital at Hassan, whereas, according to PW-2, the

brother of the deceased, the injured died near Tiptur while

he was being shifted to Bengaluru.

24. Thus, all these four witnesses, who claim that

they did accompany the injured Syed Akram while he was

being shifted to a higher medical centre, have given

different versions as to the place where the injured Syed

Akram is said to have been died due to injuries.

Therefore, the evidence of PWs.3, 4 and 5, who could not

give either the description of the accused nor the place of Crl.R.P.No.1053/2012

death of the deceased nor even the correct registration

number of the alleged offending vehicle, is not safe to

believe.

Thus, even though by the evidence of PWs.6, 7 and 8

it is established that the accident in question was between

TVS-XL Moped bearing registration No.KA-13-U-4448 and

goods vehicle bearing registration No.KA-13-A-4181, but,

from the evidence of these witnesses, including PW-9 and

PW-10, it could not be established that it was the accused

and accused alone who was driving the offending vehicle

bearing registration No.KA-13-A-4181.

25. Thus, the prosecution though could able to

establish the occurrence of the accident and death of Syed

Akram due to the injuries sustained by him in the accident

and also PW-1 sustaining simple and grievous injuries in

the accident and further though it could establish that after

the accident, the driver of the offending vehicle ran away

from the place without getting medical treatment to the

injured or without informing about the accident to the Crl.R.P.No.1053/2012

nearest Police Station, but, the prosecution could not able

to establish that it was the accused and accused alone who

caused the accident in question. However, both the trial

Court and Sessions Judge's Court without noticing these

discrepancies in the case of the prosecution, have

embraced the evidence of PWs.1 to 5 and merely because

some of them have stated that accused ran away from the

place, they hastily jumped to a conclusion that it was the

accused and accused alone who was driving the offending

vehicle and proceeded to convict him for the alleged

offences.

26. Since the said finding now proved to be perverse

and erroneous, the same warrants interference at the

hands of this Court. Further, the trial Court has even

committed an error by ordering sentence upon the accused

twice for the offence punishable under Section 338 of IPC.

For these reasons, I proceed to pass the following order:

Crl.R.P.No.1053/2012

ORDER

[i] The Criminal Revision Petition stands

allowed.

     [ii]    The      impugned         judgment      of

conviction    and     order    on   sentence      dated

18.07.2011, passed by the learned Junior Judge

and Judicial Magistrate First Class, Arasikere,

in C.C.No.448/2009, which was further

confirmed by the judgment and order dated

02.06.2012, passed by the learned Fast Track

Court-II and Sessions Judge, Hassan, in

Criminal Appeal No.77/2011, are hereby set

aside;

[iii] The revision petitioner (accused) -

Harish, S/o. Huligowda, aged about 31 years,

residing at Goni Somanahalli Village, Halebeedu

Hobli, Belur Taluk, Hassan District, stands

acquitted of the offences punishable under

Sections 279, 337, 338, 304-A of the Indian Crl.R.P.No.1053/2012

Penal Code, 1860, read with Section 187 of the

Motor Vehicles Act, 1988.

The bail bonds executed by the accused and sureties,

if any, stands cancelled.

Registry to transmit a copy of this order to both the

trial Court, along with the record, and also to the Sessions

Judge's Court immediately.

Sd/-

JUDGE

bk/