Karnataka High Court
Basavaraj S/O Appanna Sobanad vs The State Of Karnataka on 22 September, 2022
Bench: G Basavaraja
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CRL.RP No. 100196 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 100196 OF 2014 (397-)
BETWEEN:
1. BASAVARAJ S/O APPANNA SOBANAD
AGE: 33 YEARS,
OCC: KSRTC DRIVER
R/O. HIRE ULLIGERI
TQ: SAUNDATTI
DIST: BELGAUM
...PETITIONER
(BY SRI. R H ANGADI.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
(TRAFFIC POLICE STATION DHARWAD )
BY SPP DHARWAD
HIGH COURT OF KARNATAKA
DHARWAD
...RESPONDENT
(BY SRI. ADDL SPP.,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION PASSED IN THE CRL.A.NO.42/2013, DATED
27.08.2014, PASSED BY THE PRL. SESSIONS JUDGE, DHARWAD,
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CRL.RP No. 100196 of 2014
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION PASSED
IN C.C.NO.359/2011 DATED 15.02.2013 PASSED BY THE PRL.
SENIOR CIVIL JUDGE & CJM, DHARWAD AND THERE BY ACQUIT THE
PETITIONER.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
05.09.2022 FOR ORDERS AND COMING ON FOR PRONOUNCEMENT,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This revision petition is filed under Section 397 R/w.
401 of Cr.P.C. seeking to set aside the judgment dated
27/8/2014 passed in Crl.A.No.42/2013 passed by the Prl.
District and Sessions Judge, Dharwad, confirming the
judgment and order of conviction passed in CC.No.359/2011
dated 15/02/2013 passed by the Prl. Senior. Civil Judge &
CJM, Dharwad.
2. Brief facts of the prosecution case is that on
6/11/2011 at about 7.30 p.m. in PB road, opposite to
Bharuka Textiles, the accused being the driver of the KSRTC
bus bearing Reg.No.KA-27-F-436, drove the same with high
speed, rash and negligent manner endangering to human life
CRL.RP No. 100196 of 2014
from Dharwad towards Hubballi and dashed tractor bearing
Registration No.KA-25-4393-4394, which was stationed on
the side of the road and caused damage to it and thereby,
he has committed the offence punishable under Section 279
of IPC.
3. After filing of the charge sheet, the learned
Magistrate has taken cognizance against the accused for the
offence punishable under Section 279 of IPC and a case was
registered in CC.No.359/2011. Charge is framed by the
learned Magistrate and the same is read over to the accused.
The accused pleaded guilty and claims to be tried. To prove
the case of prosecution, 6 witnesses are examined as PWs.1
to 6. 6 documents got marked as Exs.P.1 to 6. On closure of
the prosecution side evidence, accused is question under
Section 313 of Cr.P.C., as to the evidence appearing against
him. Accused has denied the evidence appearing against
him, but he has not chosen to lead any defence evidence on
his behalf.
CRL.RP No. 100196 of 2014
4. On hearing the arguments of both sides, the trial
Court has convicted the accused for the offence punishable
under Section 279 of IPC and sentenced to pay a fine of
Rs.800/-, in default he shall pay fine. Being aggrieved by the
same, the petitioner/accused has preferred the criminal
appeal before the Prl. District and Sessions Judge, Dharwad
in Crl.A.No.42/2013, same was dismissed on 27/8/2014.
Being aggrieved petitioner has filed this revision petition.
5. Learned counsel for the Revision Petitioner submits
that both Courts below have not properly appreciated the
evidence on record. PWs.2 and 3 said to be attesting witness
to the mahazar, and they have not supported the case of
prosecution. PW.5-Prakash Basalingappa Gali, who is the
brother of the complainant also not supported the case of
prosecution. PW.4-Gangadhar Mallappa Dubasi, conductor of
the KSRTC bus has not supported the case of prosecution.
Only on the basis of the interested testimony of CW.1 in the
absence of evidence as to the rash and negligent act on the
part of the accused, the trial Court has convicted the
CRL.RP No. 100196 of 2014
accused, which is not sustainable in law. Further he has
submitted his arguments that driver of the tractor was not
having valid driving license, which is admitted by PW1 but
investigating officer has not submitted the charge sheet
against the accused for the offence punishable under Section
3 R/w. Section 181 of M.V.Act. The Investigating Officer has
also not submitted the charge sheet against the owner of the
tractor under Section 180 of the MV.Act. On all these
grounds, he sought for allowing the Revision Petition.
6. As against this, learned Addl. SPP submits his
arguments that both Courts below have properly appreciated
the evidence on record and passed the impugned judgment
and hence, he sought for dismissal of the Revision Petition.
7. I have carefully considered the arguments of both
sides and perused the material on record.
8. PW.1-Murgappa S/o Basalingapa Gali said to be the
complainant has deposed that about one year back, he was
proceeding in the tractor from Mummigatti towards Hubballi,
CRL.RP No. 100196 of 2014
the sugar cane loaded tractor got punctured and stopped in
the road. At that time, one KSRTC bus came from Dharwad
side and dashed against standing tractor-trailer on its right
side. As a result, the tractor capsized and it started moving
ahead for some distance. Due to the accident, his own
brother sustained injuries on his hand. Thus, he lodged
complaint to the police as per Ex.P.1.
9. PW.2-Karveerappa Rachappa and PW.3-Basavaraj
Gundappa Betasur said to be the attesting spot mahazar,
they have not supported the case of prosecution. Even
during the course of cross examination by learned APP after
treating them as hostile witness, they have categorically
denied the contents of spot mahazar. PW.4-Gangadhar M
Dubasi, who is conductor, he has not deposed as to the rash
and negligent on the part of the accused. This witness
treated as hostile witness with the permission of the Court
by learned APP and cross examined. In his cross examination
also he has categorically denied the statement under Section
161 of Cr.P.C. said to have been recorded by the
CRL.RP No. 100196 of 2014
Investigating Officer as per Ex.P.3. PW.5-Prakash Baslingapa
Gali, who is the alleged eye witness has not supported the
case of the prosecution. This witness also treated as hostile
witness, in his cross examination has categorically denied
the statement under Section 161 of Cr.P.C. said to have
been recorded by the Investigating Officer as per Ex.P.4.
PW.6-Shivasharan Mallappa Avaji, who is the Sub Inspector
of police has deposed as to the investigation conducted by
him and also submitted a charge sheet against the accused.
The alleged eye witnesses PW.4 and 5 have not supported
the case of prosecution. Though PW.5, who is the own
brother of PW.1, has categorically denied the statement with
regard to rash and negligent Act on the part of the accused
as recorded by investigating officer under Section 161 of
Cr.P.C. which is marked as Ex.P.4. The prosecution has not
elicited anything as to why the PW.6 being the own brother
of PW.1 has not supported to the case of the prosecution.
The evidence of PW.1 is not substantiated by other
witnesses, same is also not consistent with the contents of
CRL.RP No. 100196 of 2014
the aforesaid Ex.P.2-Mahazar, for the reason that PW.1 has
stated that, due to the accident the tractor and trailer was
capsized on the spot where as in Ex.P.2-spot mahazar it is
stated that "F C¥ÀWÁvÀzÀ eÁåUÀz°
À è gÀ¸ÉÛAiÀÄ ¥ÀƪÀðzÀ CAa£À°è C¥ÀWÁvÀQÌqÁzÀ
mÁæPÀÖgï zÀQëtPÉÌ ªÀÄÄRªÀiÁr ¤AwvÀÄÛ." PW.6 investigating officer also
stated that he has conducted mahazar as per Ex.P.2. If
really the tractor and trailer was capsized on the spot the
investigating officer would have mentioned the same in the
EX.P.2-spot mahazar but he has not done so. This
contradictory statement will create doubt about nature of
accident as alleged by the prosecution. Apart from this,
during the cross examination of PW.1, he has clearly
admitted that he was not having driving license at the
relevant point of time, but the Investigating Officer has not
disclosed the same in the charge sheet, when the driver of
the tractor was not having valid driving license at the
relevant point of time, the Investigating Officer ought to
have investigated the matter and submitted the charge
sheet against the driver of the tractor under Section 3 R/W.
CRL.RP No. 100196 of 2014
Section 181 of MV Act and Section 5 R/w. 180 of M.V.Act
against the owner of the vehicle, who has entrusted this
vehicle to PW.1 was not having driving license. This
admission of PW.1 clearly goes to show that the
Investigating Officer has not properly investigated the
matter in accordance with law.
10. The investigating officer has not investigated
whether PW.1 being a driver of the tractor and trailer has
taken all precautionary measures to avoid inconvenience to
the other road users as required under Section 122 of MV.
Act, 1988, Rule (3) of the Motor Vehicles (Driving)
Regulations, 2017 and also relevant provision of the
Karnataka Traffic Control Act, 1960 and the Karnataka
Traffic Control Rules, 1979, the investigating officer has not
offered any explanation as to the non-compliance of the
aforesaid mandatory provisions by PW.1.
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CRL.RP No. 100196 of 2014
11. I view of para 1245 chapter of the Karnataka
Police Manual xxvi in Motor Accident Cases, the sketches
prepared should show:
a) point of impact;
b) track marks of the vehicles concerned in
the accident;
c) position of vehicles after the accident;
d) width of the road and nature of road
surface (whether metalled or otherwise);
e) skid marks;
f) brake impressions;
g) position on the road of glass or other
debris from the accident;
h) dimensions of vehicles concerned;
i) width and nature of the 'Katcha' portion
of the road and roadside lands;
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CRL.RP No. 100196 of 2014
j) if visibility is obscured by hedges, fences,
walls, poles etc., and if so measurements
thereof;
k) any fixed object such as tree, telephone,
telegraph or electric pole which might
have a bearing on the accident or which
might help to fix the exact position on the
road of any vehicles or injured persons
concerned;
l) road directions (traffic signs located at
some distance ahead of the point to
which they refer should be shown in such
a way as to indicate the distance from
the sign to the scene of the incident);
m) compass points;
n) scale;
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CRL.RP No. 100196 of 2014
o) time of accident and the weather
condition at that time;
p) position of blood stains;
q) position and direction of the dead body or
the injured; and
r) all other important details.
12. That in view of para 1248 of Chapter xxvi of
the Karnataka Police Manual contemplates that:
1248. Where a sketch prepared contains:
a) details of Investigating Officer's
observations at the spot furnished to the
sketcher;
(b) details of points and places ascertained
by Investigating Officer from witnesses during
investigation and furnished to the sketcher, the
sketch in so far as it contains the details
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CRL.RP No. 100196 of 2014
contained in (a) is admissible in evidence and in
so far as it contains the details mentioned in (b)
is inadmissible being hit by the provision of
Section 162 Cr.P.C.
13. In the case on hand, the investigating officer
has not offered any explanation as to non compliance of the
aforesaid provisions.
14. On careful examination of the evidence placed
by the prosecution it is crystal and clear that absolutely
there is no cogent, consistent, convincing and corroborative
evidence to prove the rash and negligent act on the part of
the accused. The Courts' below have not considered all these
aspects and have passed the impugned judgment, which is
not sustainable in law. Accordingly, I proceed to pass the
following:
ORDER
i) The Revision Petition is allowed.
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CRL.RP No. 100196 of 2014
ii) The impugned judgments passed by the Courts below
are set aside. Accused is acquitted for the offence
punishable under Section 279 of IPC.
iii) Fine amount, if any deposited by the accused shall
be returned to him with proper identification.
iv) Send records to the both the Courts below along
with copy of the order passed in this Revision Petition.
Sd/-
JUDGE
VB
