Karnataka High Court

Sri Adimurthy vs State Of Karnataka on 14 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

        CRIMINAL REVISION PETITION NO.62/2013

BETWEEN:

SRI ADIMURTHY
S/O SHIVAREDDY
AGED ABOUT 43 YEARS
RESIDENT OF BOMMAKIPALLI GRAMA
RYADURGA, ANANTHAPUR
ANDRA PRADESH-515 865.                       ...PETITIONER

             (BY SRI RAJAKUMAR C., ADVOCATE)
AND:

STATE OF KARNATAKA
BY RURAL POLICE CHICKBALLAPUR
PIN - 562 101.                            ...RESPONDENT

              (BY SMT.RASHMI JADHAV, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 29.10.2011 PASSED BY THE SR. CIVIL JUDGE AND
C.J.M., CHIKKABALLAPUR IN C.C.NO.53/2010, FOR THE
OFFENCES PUNIHSHABLE UNDER SECTIONS 279 AND 304(4) OF
IPC, WHICH WAS CONFIRMED BY THE ADHOC SESSIONS
JUDGE, FTC-I, CHICKBALLAPUR IN CRL. APPEAL NO.50/2011,
DATED 21.11.2012.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

This criminal revision petition is filed to set aside the

judgment of conviction passed by the learned Civil Judge

(Sr.Dn.) & CJM at Chickballapur dated 29.10.2011 in

C.C.No.53/2010 which was confirmed by the Adhoc District &

Sessions Judge, Fast Track Court-I at Chickballapur in Criminal

Appeal No.50/2011 dated 21.11.2012 and acquit the petitioner.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader for the State.

3. The factual matrix of the case is that on 24.03.2008

at about 11.00 a.m., near Chickballapura Nandikuppahalli Road

in front of Dharga, this petitioner drove the mini transport tempo

from Nandi Village in a rash and negligent manner and dashed

against the deceased Vivek, who succumbed to the injuries in

the Hospital on 30.08.2008. Hence, at the first instance, case

has been registered for the offence punishable under Sections

279, 337 and 338 of IPC and during the course of the

investigation, the injured victim also passed away. Hence,

invoked the offence under Section 304-A of IPC.

4. The prosecution, in order to prove the case,

examined 13 witnesses as P.Ws.1 to 13 and got marked the

documents as Exs.P1 to P13. The petitioner has not led any

evidence.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the petitioner

for both the offences i.e., 279 and 304-A of IPC, considering the

evidence of P.Ws.1 to 3, who are the eye witnesses according to

the prosecution and also relied upon the evidence of P.W.9, who

is the General Power of Attorney holder of the vehicle. Apart

from that, considered the evidence of P.W.6 and P.W.10, who

gave the treatment when the victim had suffered injuries and

also subsequent to the death of the victim.

6. Being aggrieved by the said judgment and order of

conviction, sentencing the petitioner for simple imprisonment for

a period of one year and imposing fine of Rs.5,000/- for the

offence punishable under Section 304-A of IPC and also

sentencing the petitioner for simple imprisonment of six months

and imposing fine of Rs.1,000/- for the offence punishable under

Section 279 of IPC, the petitioner herein filed the

Crl.A.No.50/2011. The Appellate Court, on re-appreciation of

the material available on record, dismissed the appeal,

confirming the judgment and order of conviction and sentence

passed by the Trial Court. Hence, the present revision petition is

filed before this Court.

7. Learned counsel for the revision petitioner mainly

contends that, first of all, P.Ws.1 to 3 are the eye witnesses

according to the prosecution and all of them have not identified

the petitioner and even the very involvement of the vehicle in

the accident is disputed and no finding is given with regard to

the involvement of the vehicle. The Trial Court, failed to take

note of the material available on record and particularly, the

contradictions in the evidence of P.Ws.1 to 3. Though the

Appellate Court comes to the conclusion that the witnesses, who

have been examined as P.Ws.1 to 3 have not identified the

petitioner, but erroneously comes to the conclusion that the Trial

Judge appreciated both oral and documentary evidence placed

on record and the very approach of both the Courts are

erroneous. Hence, it requires interference of this Court.

8. Per contra, learned High Court Government Pleader

for the State would submit that the evidence of P.Ws.1 to 3 is

consistent and the Trial Court as well as the Appellate Court

have considered the material on record. She would also submit

that P.W.9, who is the General Power of Attorney holder of the

vehicle also not denied that this petitioner was the driver of the

company and taking note of the evidence of P.Ws.1 to 3 and

P.W.9, the Appellate Court comes to the conclusion that the

prosecution has proved the case.

9. Having heard the respective counsel and also on

perusal of the material on record, the points that would arise for

consideration of this Court are:

(i) Whether both the Courts have committed an error in convicting the petitioner and whether this Court can invoke the revisional jurisdiction, in coming to the conclusion that the findings of both the Courts are perverse?

      (ii)     What order?


Point No.(i)

10. Having considered the submission of the learned

counsel for the petitioner and the learned High Court

Government Pleader for the State and also looking into the

factual aspects of the case, it is the case of the prosecution that

this petitioner drove the goods vehicle in a rash and negligent

manner and dashed against the boy, who is aged about 2 years.

11. In order to prove the charges against the petitioner,

P.W.1, in his evidence says that he himself and P.W.2 were there

near the house at 11.00 a.m. At that time, his son, who went to

attend the nature call was returning and this petitioner drove the

vehicle in a rash and negligent manner and dashed against him.

As a result, he has sustained injuries. Immediately, he was

taken to the hospital and he also gave the complaint in terms of

Ex.P1. This witness says that he was not there at the time of

drawing mahazar as per Ex.P2. However, he has signed Ex.P2

and hence, he was treated as hostile to the extent of second

complaint given by him which is marked as Ex.P3 and also his

signature. He was cross-examined. In the cross-examination,

he admits that he cannot tell what his mother-in-law has stated

in her statement and also he admits that, in the place of the

accident, always vehicles move. He claims that he has

mentioned the vehicle number and also the name of the

petitioner and he admits that Police Constable told the name of

the petitioner. He also says that before going to the hospital, he

gave the complaint and no need of treatment before giving any

complaint. But, in the cross-examination, he admits that he

knows the contents of the mahazar and he read the contents of

the mahazar also. But, again says that he has signed the

mahazar in the police station. He admits that his son died in the

house and not in the hospital. It is suggested that this petitioner

was not driving the vehicle and the said suggestion was denied

and also suggestion was made that, for the first time, he is

seeing the petitioner before the Court and the said suggestion

was also denied.

12. The other witness is P.W.2, who is the sister of

P.W.1. She claims that, at the time of the accident, the victim

was playing in the road and herself and P.W.1 were there in the

house. The petitioner drove the vehicle in a rash and negligent

manner and dashed against the victim, who was playing in the

road. As a result, he fell down. In the cross-examination, she

admits that, from the house, she cannot see the road and also

admits that she has not seen the vehicle which has involved in

the accident. Subsequently, again she says that the vehicle was

parked near the place of the accident.

13. The other witness is P.W.3, who is an auto driver.

He claims that the driver drove the vehicle in a rash and

negligent manner and ran away from the spot after the accident.

But, he did not identify the petitioner before the Court. In the

cross-examination, suggestion was made that he also witnessed

the accident and he had seen the petitioner at the spot and the

said suggestion was denied. He also volunteers to state that he

has not seen the petitioner and admits that, for the first time, he

is seeing the petitioner.

14. The other witness is P.W.9, who is the General Power

of Attorney holder of the owner of the vehicle. In his evidence,

he says that he took the vehicle to his possession and also

executed a bond. But, he claims that he cannot tell, who was

driving the vehicle at the time of the accident but, says that this

petitioner was not the driver. However, he says that the

petitioner was the employee of the company. This witness was

treated as hostile and cross-examination was made suggesting

that he was the driver at the time of the accident and the said

suggestion was denied. He admits that for having appointed this

petitioner as the driver in the company, he is not having any

document. The other witnesses are formal witnesses and their

evidence is not material regarding identity and negligence.

15. Having considered the main evidence available

before the Court particularly, the evidence of P.Ws.1 to 3 and

also P.W.9, since the prosecution mainly relies upon the

evidence of P.Ws.1 to 3, P.W.1 in the evidence claims that the

victim was returning after attending the nature call. Nothing is

stated in the evidence that he has seen the petitioner but, only

says that accident has occurred due to negligence on part of the

driver of the vehicle. But, in the cross-examination, when

suggestion was made that he did not witness the petitioner, he

denies the said suggestion. He also turned hostile in respect of

Ex.P3. He also admits that victim passed away in the house but,

P.W.2 claims that victim was playing at the time of the accident

in the road. The very version of P.Ws.1 and 2 is contrary to

each other. P.W.1 claims that the victim was returning after

attending nature call and P.W.2 claims that the victim was

playing in the road and at that time, the accident has occurred.

It is not in dispute that, in front of the house, there is a road.

16. The very evidence of P.Ws.1 and 2, who are the

main witnesses is contrary to each other. It is also important to

note that P.W.2 claims that she has witnessed the accident but,

says that she did not see the vehicle and again she volunteers to

state that she saw the vehicle, when it was parked by the side of

place of the accident but, not stated in her evidence that she has

witnessed the accident. Hence, the evidence of P.W.2 is

contrary to the evidence of P.W.1.

17. P.W.3 is the witness, who claim that accident has

occurred due to the negligence on the part of the driver of the

auto rickshaw but, the petitioner is not the driver of the auto

rickshaw. Though this witness was treated as hostile, nothing is

elicited regarding identity.

18. The other witness is P.W.9, who is the General Power

of Attorney holder of the owner of the vehicle. Though the

vehicle was involved in the accident, he only got released the

vehicle. His evidence is also not clear and he claims that this

petitioner was not driving the vehicle on the date of the accident,

but only admits that he is the employee of the company and

categorically says that this petitioner was not driving the vehicle.

19. Having considered the contradictions in the evidence

of P.Ws.1 and 2 regarding the accident is concerned and also the

fact that the witnesses P.W.1, P.Ws.3 and 4 have not identified

the petitioner, P.W.1 has not deposed before the Court that this

petitioner was driving the vehicle and no doubt, in the cross-

examination, he denies the suggestion that he was not driving

the vehicle. There is no positive evidence before the Court

regarding identification of the petitioner. Apart from that, the

evidence of P.W.2 is contrary to the evidence of P.W.1.

20. When such being the material on record, both the

Courts failed to consider the fact that the evidence of P.Ws.1 to

3 and 9 not inspires the confidence of the Court, that too,

coming to the conclusion that this petitioner only hit the boy and

involvement of the vehicle is not disputed and the only dispute is

with regard to the identity of the petitioner and there is no any

positive evidence before the Court with regard to the identity of

the petitioner.

21. Hence, looking into the material available on record,

both the Courts ought not to have convicted the petitioner when

there is a weak piece of material before the Court. Both the

Courts failed to take note of the contradictions in the evidence of

P.Ws.1 and 2 though they claim that they witnessed the

accident. P.W.2 claims that P.W.1 was there in the house and

not in the road and the other witness i.e., P.W.3 cannot be relied

upon by the prosecution, since the said witness has not

identified the petitioner. P.Ws.1 and 2 are the relatives.

22. When such being the case, it is a fit case to exercise

the revisional jurisdiction since, the findings of both the Trial

Court as well as the Appellate Court is not based on the evidence

available on record and this Court finds perversity in passing

such an order, though the Appellate Court, on re-appreciation of

evidence comes to the conclusion that the identity of the

petitioner has not been proved and liable to be set aside. But,

while passing the operative portion of the order, it is mentioned

that, no grounds to allow the appeal and confirmed the

judgment and order of conviction and sentence of the Trial

Court. Hence, the Appellate Court also committed an error in

confirming the judgment of the Trial Court. Therefore, both the

Courts have committed an error in passing the order. Hence, I

answer point No.(i) as 'Affirmative'.

Point No.(ii)

23. In view of the discussions made above, I pass the

following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned judgment of conviction passed by the learned Civil Judge (Sr.Dn.) & CJM at Chickballapur dated 29.10.2011 in C.C.No.53/2010 which was confirmed by the Adhoc District & Sessions Judge, Fast Track Court-I at Chickballapur in Criminal Appeal No.50/2011 dated 21.11.2012 is hereby set aside.