Sri Manikya vs The State Of Karnataka
2023 Latest Caselaw 5434 Kant

                              -1-
                                    CRL.RP No. 696 of 2022


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 09TH DAY OF AUGUST, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 696 OF 2022
BETWEEN:
SRI MANIKYA
S/O ANNI NAIK
AGED ABOUT 40 YEARS
R/O DURGAPRASAD NIVAS
PADUKONAJE, MOODUBIDRI
MOODUKONAJE
MANGALURU TALUK - 574 236.

                                               ...PETITIONER
(BY SRI. AMRUTHESH C, ADVOCATE)

AND:
THE STATE OF KARNTAKA
REPRESENTED BY CPI, BRAHMAVARA CIRCLE
(BRAHMVARA POLICE STATION)
BRAHMAVARA, UDUPI DISTRICT - 576 213.

REPRESENTED BY THE STATE PUBLIC PROSECTOR
HIGH COURT OF KARNATAKA
DR. B.R. AMBEDKAR VEEDHI
BENGALURU - 560 001.

                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
25.03.2022 PASSED IN CRL.A.NO.60/2017 BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, UDUPI AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 17.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                   -2-
                                         CRL.RP No. 696 of 2022




                                ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 21.11.2017 in C.C.No.1096/2015 on

the file of the Court of the Additional Civil Judge and J.M.F.C.,

at Udupi and its confirmation judgment and order dated

25.03.2022 in Crl.A.No.60/2017 on the file of the Court of the

Principal District and Sessions Judge, Udupi seeking to set aside

the concurrent findings recorded by the Courts below, wherein

the petitioner / accused is convicted for the offences punishable

under Sections 279, 337 and 304-A of Indian Penal Code (for

short 'IPC').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. The case of the prosecution is that, on 23.02.2015

at about 16.15 hours, the petitioner being the driver of the

lorry bearing No.KA-19-B-7363 driven the same at National

Highway 66 from Bhramavara towards Sasthana, in a rash and

negligent manner so as to endanger human life and dashed

CRL.RP No. 696 of 2022

against the motorcycle bearing No.KA-20-W-1010 near Bharani

Petrol Bunk, Varamballi Village, Udupi. The accident stated to

have occurred when the driver of the offending vehicle was

trying to overtake another vehicle. As a result of which, the

pillion rider fell down on the right side of the road, the tyre of

the lorry ran over on the head of the pillion rider.

Consequently, she died at the spot. However, the rider of the

motorcycle sustained simple injuries. A case was registered

against the petitioner, the jurisdictional police have registered a

case in Crime No.38/2015. After conducting the investigation,

they submitted the charge sheet.

4. To prove the case of the prosecution, the

prosecution examined, in all, 7 witnesses namely PWs.1 to 7

and got marked Exhibits P1 to P17. The Trial Court after

appreciating the oral and documentary evidence on record,

convicted the petitioner for the offences stated supra. Being

aggrieved by the same, the petitioner preferred an appeal

before the Appellate Court, the Appellate Court dismissed the

appeal by confirming the judgment of conviction rendered by

the Trial Court. Being aggrieved by the same, the petitioner

has preferred this revision petition seeking to set aside the

concurrent findings.

CRL.RP No. 696 of 2022

5. Heard Shri Amruthesh C, learned counsel for the

petitioner and Shri Rahul Rai K, learned High Court Government

Pleader for the respondent - State.

6. It is the submission of learned counsel for the

petitioner that, the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court require to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

7. It is further submitted that, in the absence of

specific evidence with regard to high speed, rash and negligent

manner, conviction of the petitioner should not have been

recorded by the Courts below.

8. It is further submitted that, evidence of PWs.1 and

2 not supported with regard to rash and negligent driving of the

lorry by the petitioner. Even the sketch did not indicate the

place of occurrence properly. In spite of not proving the case

by the prosecution, the Trial Court convicted the petitioner

which is required to be set aside.

CRL.RP No. 696 of 2022

9. It is further submitted that, even though the

identity was not established by the prosecution, the Courts

below failed to consider the same and passed the impugned

judgments, which is required to be set aside.

10. It is further submitted that, the IMV report which is

marked as Ex.P10 clearly discloses that, there was no damage

to the lorry. However, damage to the front side of the

motorcycle was noticed. Such being the fact, the evidence of

PW.2 that, the lorry had hit the motorbike from the hind side of

the motorcycle should not have been accepted by the Courts

below. The evidence of PW.2 ought not to have considered as

eyewitness to the incident. Having submitted thus, learned

counsel for the petitioner seeks to allow the revision petition

and set aside the concurrent findings recorded by both the

Courts below.

11. Per contra, learned High Court Government Pleader

(for short 'HCGP') justifying the concurrent findings and

submits that, the evidence of PW.1 who was the rider of the

motorcycle and evidence of PW.2 who is the eyewitnesses to

the incident is consistent with respect to the accident and the

lorry ran over the head of the deceased.

CRL.RP No. 696 of 2022

12. It is further submitted that, the Courts below

appreciated the evidence properly and arrived at a conclusion

that, the petitioner was the driver of the vehicle and dashed

against the motorcycle and caused the death of the deceased.

Hence, the prosecution has proved the case beyond all

reasonable doubt and the Trial Court concurrently held that, the

petitioner is found guilty of the offence and therefore,

interference with the order passed by the Courts below may not

be appropriate and unwarranted. Having submitted thus, the

learned HCGP prays to dismiss the petition.

13. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Sections 279, 337, 304-A of

IPC are sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

CRL.RP No. 696 of 2022

14. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

15. The evidence of PW.1 indicates that, he was working

as Process Server at Udupi District Court and the deceased

Jyothi was working at Government PU College, Brahmavara.

He has stated that, on 23.02.2015 after completion of his work,

he had been to Brahmavara on his motorcycle to bring his wife

back to house. He has stated that, while he was proceeding to

his home near Brahmavara Bharani Petrol Bunk, the lorry from

Udupi side came in high speed and in rash and negligent

manner and dashed his motorcycle from hind side.

Consequently, his wife died, he has sustained simple injuries.

However, he has not stated that, he had seen the driver.

16. PW.2 who was resident of Uppuru and was working

as mechanic near Bharani petrol bunk and supported the case

of the prosecution in respect of accident and the death of the

deceased. However, he did not state about the petitioner.

Moreover, the credibility of this witness is doubtful on conjoint

CRL.RP No. 696 of 2022

reading of evidence of PW.2 and Ex.P10. Even assuming that,

PW.2 is an eye-witness to the accident, if lorry dashed to the

motorcycle from rear side, damage to the motor cycle was to

be occurred. However, on perusal of Ex.P10, no such damage

occurred to the motorcycle at rear side. Hence, credibility of

PW.2 as eye-witness got impeached and PW.2 cannot be

construed as eye-witness to this accident. Mere saying that, he

had seen the driver at the time of accident, may not be

sufficient to disclose the identity of the driver.

17. Now, it is relevant to refer to the motor vehicle

accident report, which is marked as Ex.P10. It is the report

submitted by the Motor Vehicle Inspector. As per the said

report, no damages caused to the lorry, however, front right

side of the indicator, number plate and handle of the

motorcycle got damaged. It appears that, the rider of the

motorcycle due to imbalance of the motorcycle, might have

fallen from the motorcycle and the tyre of the lorry ran over the

head of the deceased. The theory of doctrine of res-ipsa-

loquitor should have been applied on appreciating Ex.P10.

18. On careful reading of evidence of PWs.1 and 2 and

Ex.P10, it clearly indicates that, the prosecution not only failed

to prove the rash and negligent driving of the lorry but also

CRL.RP No. 696 of 2022

failed to prove the identity of the driver of the said lorry.

Hence, interference with the concurrent findings is warranted

and the said interference is justified.

19. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

      Point No.(i)       - "Negative"

      Point No.(ii)      - "Affirmative"

20. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of

sentence dated 21.11.2017 in C.C.No.1096/2015

on the file of the Court of the Additional Civil

Judge and J.M.F.C., at Udupi and the judgment

and order dated 25.03.2022 in

Crl.A.No.60/2017 on the file of the Court of the

Principal District and Sessions Judge, Udupi are

set aside.

- 10 -

CRL.RP No. 696 of 2022

(iii) The petitioner is acquitted for the offences under

Sections 279, 337 and 304-A of IPC.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

UN