Manjialpal vs State By Challakere
2022 Latest Caselaw 8372 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8TH DAY OF JUNE, 2022

                              BEFORE

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

    CRIMINAL REVISION PETITION No.747 OF 2012

BETWEEN:

Manjialpal,
S/o. Amruthpal,
Aged about 30 years,
Driver,
Allahabad,
Uttarpradesh.
                                                     ..Petitioner
(By Smt. Archana K.M., Amicus Curiae)

AND:

State by Challakere
Police, represented by
Public Prosecutor,
Chitradurga District,
Chitradurga.
                                                    .. Respondent

(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                     ****
       This Criminal Revision Petition is filed under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973, praying
to set aside the judgment dated 12-06-2012 passed by the
                                                      Crl.R.P.No.747/2012
                                   2


Additional District and Sessions Judge (FTC) Chitradurga in Criminal
Appeal No.18/2012 and consequently the judgment of conviction
and   sentence    passed    by   the   learned   JMFC,   Challakere   in
C.C.No.1210/2009 dated 25-01-2012, in the interest of justice and
equity.


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day, the
Court made the following:


                             ORDER

The present petitioner was accused in

C.C.No.1210/2009, in the Court of the learned Judicial

Magistrate First Class, at Challakere, (hereinafter for brevity

referred to as "the Trial Court"), who, by the judgment of

conviction and order on sentence dated 25-01-2012 of the

Trial Court, was convicted for the offences punishable under

Sections 279, 304A of the Indian Penal Code, 1860

(hereinafter for brevity referred to as "the IPC") and Section

187 of the Motor Vehicles Act, 1988, (hereinafter for brevity

referred to as "the M.V. Act") and was sentenced accordingly.

Crl.R.P.No.747/2012

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.18/2012, in the Court of the learned

Additional District and Sessions Judge (Fast Track Court),

Chitradurga, (hereinafter for brevity referred to as the "the

Sessions Judge's Court"), which, after hearing both side,

dismissed the appeal, confirming the impugned judgment of

conviction and order on sentence passed by the Trial Court.

It is challenging the judgments passed by both the Trial Court

as well the learned Sessions Judge's Court, the

accused/revision petitioner has preferred the present revision

petition.

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

Trial Court was that, on 14-11-2009, at about 11:45 a.m., the

accused, being the driver of a Tanker Lorry bearing

Registration No.JJ-6/TT-8342, drove the said Tanker Lorry

from Challakere side towards Bellary on the public road, in a

rash and negligent manner and dashed against one Ms. Jyothi, Crl.R.P.No.747/2012

D/o. M.R. Ananda, who was going by walk on the left side of

the road, in front of the house of one Rama Setty near

Sujimalleswaranagara on State Highway No.19, Challakere.

As a result of the said road traffic accident, the said Ms.Jyothi

sustained grievous injuries on her head, hands and other parts

of her body and succumbed to the injuries on the spot.

It is further the case of the prosecution that, after the

accident, the accused ran away from the spot and thus has

committed the offences punishable under Sections 279, 304A

of the IPC and under Section 187 of the 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 seven (07)

witnesses from PW-1 to PW-7 and got marked documents

from Exs.P-1 to P-9. However, neither any witness was Crl.R.P.No.747/2012

examined nor any documents were got marked on behalf of

the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

6. Learned Amicus Curiae for the accused/revision

petitioner and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Perused the materials placed before this Court

including the impugned judgments passed by both the Courts

and also the Trial Court and learned Sessions Judge's Court's

records.

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

henceforth referred to as per their rankings before the Trial

Court.

Crl.R.P.No.747/2012

9. After hearing the learned counsels for the parties, 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 learned Sessions Judge's Court that, the accused committed the alleged offences punishable under Sections 279, 304A of the Indian Penal Code, 1860, and Section 187 of the Motor Vehicles Act, 1988, warrants any interference at the hands of this Court?

10. Learned Amicus Curiae for the accused/revision

petitioner submitted that, none of the witnesses examined by

the prosecution are admittedly the eye witnesses to the

incident, as such, the attempt of the prosecution to prove the

alleged guilt against the accused was only through the

circumstantial evidence, however, the prosecution has failed in

the said attempt. She further submitted that, admittedly, the

accused was not identified by any of the prosecution witnesses

as the driver of the offending vehicle in question. Though the Crl.R.P.No.747/2012

learned Amicus Curiae for the petitioner submitted that she

would not deny or dispute the occurrence of the road traffic

accident and also the involvement of the Tanker Lorry bearing

Registration No.JJ-6/TT-8342 on the date, time and place

mentioned in the charge sheet and also the death of

deceased Ms. Jyothi in the said accident, but since the alleged

involvement of the accused as the driver of the said Tanker

Lorry bearing Registration No.JJ-6/TT-8342 has not been

proved by the prosecution even to the slightest extent, the

present revision petition deserves to be allowed, by setting

aside the impugned judgments of conviction and order on

sentence passed by both the Courts.

11. Per contra, learned High Court Government Pleader

for the respondent-State, in his brief arguments submitted

that, there is nothing on record to show that the accused was

not the driver of the alleged offending Lorry in question.

Mere fact that the offending Tanker Lorry bearing registration Crl.R.P.No.747/2012

No.JJ-6/TT-8342 was got released by its owner itself would go

to show that, the accused was engaged by him (owner) as a

driver and it was at the rash and negligent driving of the

accused only, the accident in question has occurred. As such,

both the Trial Court and the learned Sessions Judges Court

have rightly convicted the accused for the alleged offences,

which deserves to be confirmed by this Court.

12. The revision petitioner herein (accused) does not

dispute the occurrence of the road traffic accident on

14-11-2009, at about 11:45 a.m. on the State High Way

No.19, in front of the house of Rama Setty near

Sujimalleswaranagara, Challakere. The petitioner also does

not deny nor dispute the occurrence of the said road traffic

accident by a Tanker Lorry bearing Registration No.JJ-6/TT-

8342, dashing against a pedestrian by name Ms. Jyothi and

that due to the injuries sustained by her in the said accident,

she succumbed to it on the spot. The said occurrence of the Crl.R.P.No.747/2012

road traffic accident as well as the involvement of the Tanker

Lorry bearing Registration No.JJ-6/TT-8342 and also the death

of one Ms.Jyothi, aged about 13 years, due to the injuries

sustained by her in the said road traffic accident have been

further corroborated by the evidence of PW-1, PW-2, PW-3,

PW-5 and the Investigating Officer who was examined as

PW-7.

13. The evidence of PW-1 (CW-1) - Sri.M.R. Anand, who

claims himself to be the father of the deceased Ms.Jyothi

would go to show that, it is after the accident and hearing

about the said accident, which is said to have taken place at a

distance of about 100 meters from his house, he rushed to the

spot only to see the mutilated body of his deceased daughter

Ms. Jyothi. No doubt, the witness has stated that in the spot,

he also saw the Tanker Lorry bearing registration No.JJ-6/TT-

8342 and came to know that it was the said vehicle which

dashed against his daughter and caused her death, but the Crl.R.P.No.747/2012

witness, at more than one place, himself has specifically

stated that, he was not an eye witness to the accident. In

fact, even in his complaint also, he has stated that he is not an

eye witness to the incident, but it is only after he coming to

know about the occurrence of the accident and going to the

spot, he saw the alleged offending Tanker Lorry standing there

at a shorter distance to the place where the dead body of his

daughter was found lying on the ground. He has specifically

stated both in his complaint as well in his evidence that, he

had not seen the accused in the spot of the accident since he

(accused) had already run away from the place. However, the

said witness proceeded to say further in the very same

evidence that, after some time of the accident, the Police have

shown him the accused, stating to him that, it was him who

has caused the accident, as such, he has believed that it was

the said accused who caused the said road traffic accident,

resulting in the death of his daughter Ms. Jyothi. Therefore,

being himself the complainant and also the father of the Crl.R.P.No.747/2012

deceased Ms. Jyothi, though this witness could speak about

the accident, but not about the alleged involvement of the

accused as the driver of the offending Tanker Lorry in the said

road traffic accident. Though some attempts were made to

shaken his evidence about the occurrence of the accident and

the involvement of the offending vehicle in question, but the

witness has withstood to his original stand about the

occurrence of the road traffic accident, involvement of the

alleged offending vehicle therein and also the death of his

daughter Ms. Jyothi due to the injuries sustained by her in the

road traffic accident.

14. PW-2 (CW-5)- Mallikarjuna M.Y. only stated that

the inquest panchanama of the dead body of the deceased

Ms. Jyothi was drawn in his presence as per Ex.P-2.

15. PW-3 (CW-2) - Mahalinganna, though was projected

as an eye witness to the incident, he has not supported the

case of the prosecution to the extent of its expectation but has Crl.R.P.No.747/2012

only stated that, it was only after the accident, having seen

the large gathering assembled there, he too went to the spot

and saw the spot of the accident. Even after treating him as

hostile and cross-examining him, the prosecution could not

elicit any favourable response from him.

16. Though the evidence of PW-4 (CW-4) - Noorulla

that, he was a pancha for a panchanama has not been denied

from his cross-examination, but it is best known only to the

prosecution as to, for what purpose and to which

panchanama, he was taken as a pancha.

17. The evidence of PW-5 (CW-13) - N.M. Subbaiah, the

Motor Vehicle Inspector corroborates the evidence of PW-1 to

the extent that, the offending vehicle involved in the accident

was a Tanker Lorry bearing Registration No.JJ-6/TT-8342.

The said Motor Vehicle Inspector has described the damages

caused to the offending vehicle in question stating that, he has Crl.R.P.No.747/2012

noticed the damages caused to the offending vehicle and given

a report as per Ex.P-6, which in the light of the evidence of

PW-2 and the Investigating Officer i.e. PW-7 would go to show

that, it was the Tanker Lorry bearing Registration No.JJ-6/TT-

8342, which was the offending vehicle which caused the

accident in question.

18. In addition to the above, the inquest panchanama at

Ex.P-2 which was corroborated by the evidence of PW-2 would

go to show that, the panchas to the panchanama have opined

that the death of deceased Ms. Jyothi was due to the injuries

sustained by her in the road traffic accident which is the

subject matter of the case. However, the un-denied Post-

Mortem Examination report at Ex.P-5, after giving a detailed

description of the injuries sustained by the deceased

Ms.Jyothi, aged about 13 years, notices fracture of all the

bones of the scalp, which, according to the Doctor, who

conducted autopsy had resulted into several pieces and the Crl.R.P.No.747/2012

fractured ribs have resulted in haemorrhage and the said

shock and haemorrhage due to traumatic injury to scalp and

other parts of the body was the cause for the death of the

deceased Ms.Jyothi. He has opined that those injuries are on

account of a road traffic accident.

Thus the evidence of PW-1, PW-2, PW-3, PW-5 and PW-7

corroborated by the documentary evidence at Ex.P-2, Ex.P-5

and Ex.P-6 would go to show that, on the date, time and place

alleged in the charge sheet, a Tanker Lorry bearing

Registration No.JJ-6/TT-8342 dashed against the deceased

Ms. Jyothi, aged about 13 years and caused her death.

19. The remaining question for consideration would be,

whether the prosecution has proved beyond all reasonable

doubts that it was the accused and accused alone who was the

driver of the said offending Tanker Lorry bearing No.JJ-6/TT-

8342 and that it was due to his rash and negligent driving, the Crl.R.P.No.747/2012

road traffic accident in question has occurred, resulting in the

death of deceased Ms. Jyothi.

20. As observed above, none of the witnesses examined

by the prosecution have spoken about either the involvement

of the accused as the driver of the offending vehicle or about

the rash and negligent driving of the offending vehicle.

21. In order to prove the alleged rash and negligent

driving of the offending vehicle, either the evidence of the eye

witnesses, provided they are available, can be relied upon

primarily or the circumstantial evidence, if any, if they could

prove the alleged rash and negligent driving.

22. In the instant case, as observed above, none of the

prosecution witnesses have spoken that they were the eye

witnesses to the alleged incident. The fond hope placed upon

the evidence of PW-3 by the prosecution also was of no use to

them since the said witness did not support the case of the

prosecution in that regard. The evidence of the other Crl.R.P.No.747/2012

witnesses including the Police witnesses i.e. PW-6 and PW-7

nowhere whispers that, it was the accused who has caused the

accident.

23. Though the learned High Court Government Pleader

in his argument vehemently submitted that, the act of the

owner of the offending Tanker Lorry in getting the offending

vehicle released itself would go to show that the accused was

engaged by him as the driver of the offending vehicle, but it

has to be noticed that it is only an assumption of the learned

High Court Government Pleader, for the simple reason that,

neither the documents relating to the release of the vehicle

have been marked as exhibits nor the alleged owner of the

alleged offending Tanker Lorry was examined as a witness in

the case. Nothing had prevented the Investigating Officer to

examine the owner of the vehicle as a witness and to elicit

from his mouth as to who was the driver of the offending

vehicle on the said date, time and place of occurrence of the

road traffic accident. However, to cure the curiosity of the Crl.R.P.No.747/2012

learned High Court Government Pleader, when the affidavit

shown to have been sworn to by the alleged owner of the

offending vehicle in the Trial Court, while getting the interim

custody of the offending vehicle is perused, it can only be

noticed that the alleged owner of the offending Tanker Lorry

has spoken about the involvement of his Tanker Lorry bearing

registration No.JJ-6/TT-8342 in the alleged road traffic

accident and the death of Ms.Jyothi in the said accident, but

nowhere has he whispered as to who was the driver of the

said offending vehicle at the time of the occurrence of the

accident. Though he has mentioned at more than one place in

his affidavit about the driver of the vehicle, but for the reasons

best known to him, he has not disclosed the name or identity

of the driver of the offending vehicle. Thus, even the

documents pertaining to the release of the interim custody of

the alleged offending Tanker Lorry bearing No.JJ-6/TT-8342

also throws no light in the identification as to, who was the

driver of the alleged offending vehicle, on the said date, time Crl.R.P.No.747/2012

and place of the occurrence of the road traffic accident in

question.

24. However, both the Trial Court as well the learned

Sessions Judge's Court, going by the statement of PW-1, who,

in his evidence has stated that, as told and shown to him by

the Police that it was the accused who was the driver of the

offending vehicle, both the Courts have arrived at an

erroneous finding, holding that the prosecution has proved

beyond reasonable doubts that it was the accused and

accused alone who was the driver of the offending vehicle at

the time of occurrence of the accident. While jumping to the

said conclusion, both the Courts have ignored the fact that

even according to the complainant (PW-1), his knowledge

about the accused being the driver of the alleged offending

vehicle was based upon a hear-say and more importantly,

based upon the alleged information said to have been given to

him by none else than the Police themselves. As such, as a Crl.R.P.No.747/2012

father in grief of his deceased daughter in the road traffic

accident, he has accepted the representation of the Police that

it was the present accused who was the driver of the alleged

offending vehicle and repeated the same in the Court,

however, without concealing the fact that his knowledge was

based upon an information given to him by none else than the

complainant Police themselves. Thus, against the finding of

the Trial Court holding the present accused as the driver of the

alleged offending vehicle and also hastily holding him as guilty

for the alleged rash and negligent driving of the offending

vehicle in question and causing the death of the deceased

Ms.Jyothi, the accused has preferred the present revision

petition. Since by the analysis made above, it has been now

clearly established that the finding of both the Trial Court as

well the learned Sessions Judge's Court are perverse, the said

impugned judgments warrant interference at the hands of this

Court and it has to be necessarily held that the prosecution

has failed to prove the alleged guilt against the accused.

Crl.R.P.No.747/2012

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

allowed.

[ii] The impugned judgment of conviction

and order on sentence dated 25-01-2012, passed

by the learned Judicial Magistrate First Class, at

Challakere, in C.C.No.1210/2009, which was

further confirmed by the judgment and order dated

12-06-2012, passed by the learned Additional

District and Sessions Judge (Fast Track Court),

Chitradurga, in Criminal Appeal No.18/2012, are

hereby set aside;

[iii] The revision petitioner (accused) -

Manjialpal, S/o. Amruthpal, Aged about 30 years,

Driver, Allahabad, Uttar Pradesh, stands acquitted

of the offences punishable under Sections 279, Crl.R.P.No.747/2012

304-A of the Indian Penal Code, 1860, read with

Section 187 of the Motor Vehicles Act, 1988.

The Court, while acknowledging the services rendered by

the learned Amicus Curiae for the revision petitioner -

Smt. Archana K.M., recommends honorarium of a sum of not

less than `4,000/- payable to her by the Registry.

Registry to transmit a copy of this order to both the Trial

Court and also the learned Sessions Judge's Court along with

their respective records forthwith for doing needful in the

matter.

Sd/-

JUDGE

BMV*