Karnataka High Court

Sri Manikya Vasaga vs State Of Karnataka on 21 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.263/2013

BETWEEN:

SRI MANIKYA VASAGA
S/O SUBRAMANYA
AGED 33 YEARS
R/AT MASAKIMATTI VILLAGE
HIRIYUR TALUK-572 143.                     ... PETITIONER

           (BY SRI A.N.RADHA KRISHNA, ADVOCATE)
AND:

STATE OF KARNATAKA
BY GUBBI POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560 001.                         ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION OF SENTENCE DATED
23.05.2012 PASSED BY THE SENIOR CIVIL JUDGE & J.M.F.C.,
GUBBI   IN   C.C.NO.333/2010  AND   CONFIRMED    DATED
16.02.2013 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-I, TUMAKURU IN CRIMINAL APPEAL NO.83/2012.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This petition is filed under Section 397 and Section 401 of

Cr.P.C., praying to call for the records and set aside the

judgment of conviction and order on sentence dated 23.05.2012

passed in C.C.No.333/2010 by the Senior Civil Judge and JMFC.,

Gubbi, and confirmed in Crl.A.No.83/2012 dated 16.02.2013 on

the file of the Fast Track Court-I, Tumakuru.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The factual matrix of the case of the prosecution is

that on 28.12.2009 at about 6:00 a.m., in front of the house of

Lingappa near Jai Maruthi Petrol Bunk on N.H.206 road, the

deceased Venkatesh was going from Gubbi side towards

Tumakuru side in his two wheeler, at that time, this accused

drove his Lorry in a rash and negligent manner from Tumakuru

side towards Gubbi and dashed against the motorcyclist, as a

result, he has sustained the grievous injuries all over the body

and he died at the spot. Hence, a case has been registered for

the offences punishable under Sections 279, 304-A of IPC and

Section 134(B) read with Section 187of the IMV Act. The police

have investigated the matter and filed the charge-sheet.

4. The prosecution in order to prove the case against

the petitioner herein examined PWs.1 to 7 and got marked the

documents as Exs.P1 to P13(b). The petitioner/accused has not

led any defense evidence before the Trial Court.

5. The trial Judge after considering the oral evidence of

PWs.1 to 7 and also the documentary evidence, convicted the

petitioner for all the offences and substantive sentence of one

year was imposed against the petitioner for the offence

punishable under Section 304-A of IPC and in respect of an

offence punishable under Section 279 of IPC, ordered to pay a

fine of Rs.1,000/- and in respect of the other offences also

ordered to pay a fine of Rs.500/-. The petitioner being aggrieved

by the judgment of conviction and order on sentence, an appeal

was filed in Crl.A.No.83/2012. The Appellate Court on re-

appreciation of both oral and documentary evidence placed on

record, vide judgment dated 16.02.2013, confirmed the

judgment of conviction and order on sentence of the Trial Court.

Hence, the present revision petition is filed before this Court.

6. The learned counsel appearing for the petitioner

would vehemently contend that the prosecution mainly relies

upon the evidence of P.W.2. According to the prosecution, he is

an eyewitness and the learned counsel also brought to the notice

of this Court paragraph No.10 of the judgment of the Trial Court,

wherein, the Trial Court also not accepted the evidence of P.W.2

that he is an eyewitness and an observation is made that even if

it is presumed that he has not seen the accused, if the

prosecution is able to establish the link between accused and the

vehicle, then the said deposition does not adversely affect the

case of the prosecution. Hence, the learned counsel would

vehemently contend that the evidence of P.W.2 cannot be

accepted as eyewitness. Apart from that, the other witnesses

are not the eyewitnesses to the incident. Hence, question of rash

and negligence driving on the part of the petitioner has not been

proved. Hence, it requires an interference of this Court.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

P.W.2 in his evidence categorically deposed that how he had

witnessed the incident and in the cross-examination of P.W.2, he

withstood the cross-examination and nothing is elicited to

disbelieve the evidence of P.W.2, who is an eyewitness and he

categorically says that after the accident, this petitioner was

running away from the spot and the same has been witnessed

by P.W.2. P.W.2 categorically says that he only contacted the

family members of the victim. Hence, the evidence of P.W.2

cannot be dis-believed. P.W.2 also given clear evidence in the

cross-examination.

8. In reply to the arguments of learned High Court

Government Pleader appearing for the State, the learned

counsel appearing for the petitioner also brought to the notice of

the Court the sketch - Ex.P7, which clearly discloses that the

accident was occurred in the middle of the road and according to

the prosecution the victim was riding the two wheeler and the

petitioner was driving the heavy vehicle i.e., lorry. This benefit

ought to have been given in favour of the petitioner and the

same is not extended in favour of the petitioner. Hence, it

requires an interference of this Court.

9. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record, the points that would arise for consideration of this

Court are:

(i) Whether both the Courts have committed an error in convicting and confirming the conviction and the same amounts to a perverse order and whether this Court can exercise the revisional jurisdiction?

(ii) What order?

Point No.(i):

10. Having heard the respective counsel and on perusal

of the material available on record, both oral and documentary

evidence placed on record, P.W.2 is the eye witness according to

the prosecution. P.W.2 in his evidence, he says that he had seen

the petitioner. He took the vehicle on hire purpose and went to

Sampige and returned to Gubbi at around 6 a.m. It is also his

evidence that in front of the Petrol Bunk at the distance of 10 to

15 meters, he saw the two wheeler rider, at that time, a lorry

came from Tumakuru side in a rash and negligent manner and

dashed against the two wheeler, as a result, the victim had

sustained the injuries and the driver of the lorry ran away from

the spot. He identifies the petitioner as the driver of the Lorry.

Having taken note of the documents, which are in two wheeler,

he made phone call and informed the same to his relatives. This

witness was subjected to cross-examination. He admits that he

is an illiterate and not knowing reading and he does not know

the contents of the Mahazar. He did not identify the victim at

the spot. He admits that there is a bifurcation mark in the

middle of the road by painting in white colour. He claims that

the lorry was on the right side of the road i.e., he had crossed

the white mark on the road. He also admits that the rider of the

motorcycle went towards the right side towards 1½ meters and

no vehicle was proceeding in front of the two wheeler. He claims

that in front of him, the petitioner ran away from the spot and

he could not catch-hold of him since he went near the victim.

When the prosecution is mainly relies upon the evidence of

P.W.2 and his evidence is also clear that immediately after the

accident, the driver of the lorry ran away from the spot. It is

also not in dispute that he was not having any acquaintance

with the driver of the Lorry, prior to the accident. But he claims

that he can identify him and he identified before the Court. He

claims that he has seen the driver of the Lorry at the distance of

4 feet. No other witnesses had witnessed the accident. Apart

from that, sketch-Ex.P7 is clear that, the accident is almost

occurred in the middle of the road, the same is elicited in the

cross-examination of P.W.2. He also categorically admitted that

the rider of the motorcycle went towards the right side i.e.,

almost 1½ meter. On perusal of the sketch - Ex.P7 also

towards the left side of the road, there is an 11 feet and towards

other side, there is a 13 feet. The total width of the road is 24

feet. When such being the material available on record, the Trial

Court also not taken note of Ex.P7-sketch and the accident is

also on account of the negligent driving on the part of the victim

by looking into the document - Ex.P7. The answer is also

elicited from the mouth of P.W.2. This document is not relied

upon by the Trial Court as well as the Appellate Court while

considering the matter on merits.

11. Having considered Ex.P7, benefit of doubt goes in

favour of the accused that he was proceeding from Tumakuru

towards Gubbi on the left side of the road. The very evidence of

P.W.2, that the lorry driver came towards the right side cannot

be accepted. If really the vehicle is on the right side of the road,

if any accident is occurred as deposed by P.W.2, then there

would have been a force in the contention of the prosecution

witness i.e., P.W.2.

12. It is also important to note that the accident was

occurred in the early morning at 6 a.m., and no other persons

were there on the road. P.W.2 claims that no other vehicles were

proceeding on the road at the time of the accident. When such

being the factual aspects of the case, both the Courts have

committed an error in not considering Ex.P7, which depicts that

the accident almost occurred in the middle of the road. The

driver of the Lorry proceeding towards Gubbi, on the left side of

the road and the very sketch discloses that the victim himself

was driving the vehicle on the middle of the road instead of

proceeding on the left side of the road, when he was proceeding

towards Tumakuru from Gubbi side. These are the materials are

not been considered by both the Trial Court as well as the

Appellate Court. The Trial Court comes to the conclusion that in

paragraph No.10 that there is a link between the accident and

also the evidence of P.W.1 and not accepted the evidence of

P.W.2 that he was an eyewitness and the Trial Court ought to

have given the benefit of doubt in favour of the petitioner, when

the evidence is not accepted in certainty. When the Trial Court

comes to the conclusion that in paragraph No.10 that, even if it

is presumed that he has not seen the accused, if the prosecution

is able to establish the link between accused and the vehicle,

then the said deposition does not adversely affect the case of the

prosecution. Though this observation is made by the Trial Court,

failed to extend the benefit in favour of the petitioner herein.

When such perversity is found in the evidence of the Trial Court

as well as the Appellate Court, the Appellate Court also not

considered the material on record in proper perspective except

mentioning in paragraph No.11 that P.W.2 is an eyewitness and

only general observation is made that nothing is brought out in

the cross-examination of P.W.2 and observed that P.W.1 has

stated regarding rash and negligence driving of the Lorry by the

accused. The said suggestion was denied.

13. In paragraph No.12 it is observed that, contrary to

Ex.P7, comes to the conclusion that in spite of there was

sufficient place towards the left side of the lorry, he crossed

middle line of the road, which was indicated by white colour

paint and dashed against the motorcycle. The said observation is

also not in consonance with Ex.P7. Hence, the petitioner is

entitled for benefit of doubt regarding rash and negligence on

the part of the petitioner since he drove the vehicle on the left

side of the road. Mere crossing little bit on the white colour paint

on the road, which is marked on the middle of the road, cannot

be a ground to convict the petitioner since the vehicle is a heavy

vehicle. The Court has to take note of the nature of vehicle

involved in the accident and the victim instead of proceeding on

the left side of the road; he himself went towards right side of

the road to the extent of 11 feet. This aspect has not been

considered. Hence, I am of the opinion that the petitioner has

made out a ground that both the Courts have failed to take note

of both oral and documentary evidence placed on record in a

proper perspective.

14. I have already pointed out except the evidence of

P.W.2 no other eye witnesses are examined before the Trial

Court and the evidence of P.W.2, not inspires the confidence of

the Court with regard to witnessing the accident and his

evidence is also contrary to particularly Ex.P7. Hence, I answer

point No.(i) as 'affirmative'.

Point No.(ii):

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

following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned judgment of conviction and order on sentence dated 23.05.2012 passed in

C.C.No.333/2010 by the Senior Civil Judge and JMFC., Gubbi, and confirmed in Crl.A.No.83/2012 dated 16.02.2013 on the file of the Fast Track Court-I, Tumakuru, are set aside.