Karnataka High Court
Vinod Miskin S/O Jawahar vs State By (Garag Ps) on 18 December, 2023
1 CRL.RP NO.100205/2015
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100205/2015
BETWEEN:
VINOD MISKIN S/O JAWAHAR,
AGE: 33 YEARS, OCC: DRIVER,
R/O ARVIND NAGAR, HUBLI.
...PETITIONER
(BY SRI.VADIRAJ VADAVI, ADV.)
AND:
STATE,
R/BY SPP,
HIGH COURT OF KARNATAKA,
Digitally
signed by
BENCH AT DHARWAD.
VN
VN
BADIGER
BADIGER Date:
...RESPONDENT
2023.12.21
13:37:55
+0530 (BY SMT.GIRIJA S HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SECTION
397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT PASSED BY THE FIRST ADDL.CIVIL JUDGE AND JMFC,
DHARWAD IN CRIMINAL CASE NO.91/2008 DATED 20.12.2012
FOR THE OFFENCE U/SECTION 279, 304A IPC AND 30 OF K.E.ACT
AND TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT
PASSED BY THE COURT OF PRL.DIST. & SESSIONS JUDGE IN
CRL.APPEAL NO.9/2013 DATED 19.06.2015 FOR THE OFFENCES
U/SEC.279, 304A OF IPC AND 30 OF K.E.ACT AT ANNEXURE-B.
THIS APPEAL/PETITION HAVING BEEN HEARD AND
RESERVED ON 13.09.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER/JUDGMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
2 CRL.RP NO.100205/2015
ORDER
This petition filed under Section 397 r/w 401 of code of
criminal procedure is by the accused challenging his
conviction and sentence for the offence punishable under
Sections 279, 337, 304-A I.P.C and Section 32 of Karnataka,
Exercise Act, which came to be confirmed by the Sessions
Court by dismissing the appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. A charge sheet came to be filed against the
accused alleging that on 26.04.2007, at 3.00 p.m, on NH-4,
Koturu Cross, accused being the driver of car bearing
registration No.KA-02/MB-9763 (for short 'offending
vehicle'), plying from Belagavi side towards Dharwad side,
without any pass or permit was found transporting 8 cans
containing 20 Litres of spirit. Further accused drove the
offending vehicle in a rash or negligent manner and unable
to control it dashed against the rear portion of KSRTC bus
bearing registration No.KA-25/F-574 which was taking a turn
towards Koturu Cross, as a result of the accident, CWs-4 to
15, who were inmates of the bus sustained injuries. One
Raghavendra Kathare, who was travelling in the offending
vehicle and sitting in the front passenger seat also sustained
injuries and died on the spot and thereby accused committed
the offences punishable under Sections 279, 337, 304-A
I.P.C and Section 32 of Karnataka Excise Act.
4. Accused contested the case and pleaded not guilty
and claimed trial.
5. In order to prove the allegations against accused,
the prosecution has relied upon testimony of PW-1 to 20,
Ex.P1 to 33 and MO-1.
6. During the course of statement under Section 313
Cr.P.C, accused has denied the incriminating evidence.
7. He has not led any defence evidence.
8. Holding that the prosecution has established the
allegations against accused beyond all reasonable doubt, the
trial Court convicted him and sentenced as detailed in
judgment and order.
9. Aggrieved by the same, the accused approached
the Session Court in Crl.A.No.9/2013. After re-appreciation
of the entire oral and documentary evidence placed on
record, the Session Court dismissed the appeal.
10. Aggrieved by the same, the accused is before this
Court, contending that both trial Court and Sessions Court
have not appreciated the documentary evidence and as such
the impugned judgment and orders are liable to be set aside.
They have not appreciated the admissions given by the
prosecution witnesses. Out of 20 witnesses examined for the
prosecution, 13 witnesses have turned hostile and this fact is
not taken into consideration by the Courts below. They have
erroneously relied upon the evidence of PW-1, 8, 9, 13, 14
and 15 and Ex.P15 and 30. PW-1, being the driver of KSRTC
bus is equally contributed towards the cause of the accident,
which fact is elicited during the cross examination.
10.1 The trial Court has erroneously relied upon the
evidence of PW-8, 9, 14 who have turned hostile. They have
also erred in relying upon the evidence of PW-13 and 15. So
far as the allegations with regard to offence punishable under
Section 32 of the Karnataka Exercise Act is concerned, the
Courts below have erred in relying upon the evidence of PW-
2, who has turned hostile and PW-3 who has given
admissions in the cross examination. The trial Court has also
erred in applying presumption under Section 40 of Karnataka
Excise Act. Viewed from any angle the impugned judgments
and orders are not sustainable and prays to allow the petition
and set aside the same and acquit the accused.
11. On the other hand, the High Court Government
Pleader supported the impugned judgments and orders and
submitted that out of 20 witnesses examined for the
prosecution, though PW-4, 5, 7, 9, 10, 14 and 19 have partly
turned hostile and failed to identify the accused, as the driver
of the offending vehicle, they being the inmates of the
KSRTC bus and injured have clearly deposed regarding the
fact that accident was caused due to the rash or negligent
driving of the offending vehicle. PW-1, 6, 8, 13 and 15 have
clearly identified the accused as the driver of the vehicle, in
addition to speaking about the accident and his complicity in
the crime. Though PW-3 is a witness to the spot-cum-seizure
mahazar, he has spoken to about the driver of the offending
vehicle being injured and that he was sent to the hospital.
FSL report prove the fact that the liquid seized from the can
which were being carried in the offending vehicle is spirit. He
would submit that appreciating the oral and documentary
evidence placed on record, both Courts have rightly held
accused guilty of the offences and convicted and sentenced
him and prays to dismiss the petition.
12. Heard arguments and perused the record.
13. PW-1 Basavaraj is the driver and PW-6 Suresh is
the conductor of KSRTC bus. PW-8 Babu Saab, PW-13
Hussain Saab and PW-15 Zulekha are the inmates of the bus.
PW-4, 5, 7, 9, 10, 14 and 19 are also inmates of the bus
when the accident took place. The evidence of these
witnesses prove the fact that while the bus which was plying
from Dharwad and going towards Koturu cross was taking
right turn, the offending vehicle which was plying from
Belagavi side towards Dharwad side, came in a high speed,
in a rash or negligent manner and dashed against the rear
portion of the bus. The impact was so severe that, after
dashing against the rear portion of the bus, the car turned
towards Belagavi side and stopped. The fact that the
offending vehicle hitting against the rear portion of the bus
indicate that the bus had already covered sufficient portion of
the road and at this juncture, the car came in a high speed
and hit the bus.
14. Even though PW-4, 5, 7, 9, 10, 14 and 19 have
failed to identify the accused as the driver of the offending
vehicle, the evidence of PW-1, 6, 8, 13 and 15 clearly
establish the fact that it was the accused who was driving the
offending vehicle. In fact, the accident was so severe that
the front portion of the car was totally damaged.
Raghavendra Kathare who was sitting in the front passenger
seat died on the spot. The evidence placed on record also
establish that accused was also injured and he was sent to
the hospital. PW-4 and 15 have clearly deposed that they
saw accused in the hospital taking treatment. Therefore, the
suggestion made to the witnesses that the driver of the
offending vehicle ran away from the spot is incorrect and
false.
15. PW-12 during the course of his examination-in-
chief has identified accused as the driver of offending vehicle.
During his cross-examination by the defence he has admitted
the suggestion that he could not make out who was the
driver of offending vehicle. In this regard he has been re-
examined by the learned prosecutor, where he has deposed
that he saw the accused inside the offending vehicle, but he
could not observe whether he was driving the car i.e.,
offending vehicle. It is pertinent to note that at the time of
accident, there were only two persons inside the offending
vehicle. One of them i.e., Raghavendra Kathare, who was
sitting in the front passenger seat, died on the spot and the
other person is the accused. The accused has also not placed
any evidence on record as to who was the driver of the
offending vehicle, if he was not driving it. PW-15 Zulekha, an
inmate of the bus has clearly and in unequivocal terms
deposed that accused was the driver of the offending vehicle.
During her cross-examination, she has stated that there
were two persons in the offending vehicle. One of them died
and the other person was accused. She has also deposed
that accused was admitted to hospital and in the hospital he
was saying that he was the driver of the offending vehicle.
She has denied that the driver of the offending vehicle ran
away. To some of the witnesses the defence has made
suggestions that the driver of the offending vehicle ran away
from the spot and to others that since accused was taking
treatment at the hospital, they are saying that he was the
driver of the offending vehicle. Though accused is entitled to
take contradictory defence, it should be plausible and stand
to reason.
16. Even though PW-3 is a spot-cum-seizure mahazar
witness, he has clearly deposed the presence of dead body
inside the offending vehicle and has stated that the driver
was sent to the hospital. Thus, the evidence placed on record
prove that it was the accused who was driving the offending
vehicle and as he was also injured in the incident, he was
sent to the hospital. Therefore, there is no substance in the
defence taken by the accused that immediately after the
accident, the driver of the offending vehicle run away and as
such the witnesses were not able to see who was driving the
offending vehicle.
17. So far as the contention of the accused that the
testimony of hostile witnesses cannot be relied upon. It is
contrary to the decision of the Hon'ble Supreme Court in
Vinod Kumar Vs. State of Punjab (Vinod Kumar)1, wherein
(2015) 3 SCC 220
the Hon'ble Supreme Court held that the evidence of hostile
witnesses is not completely effaced. Such evidence remains
admissible in trial and there is no legal bar to base a
conviction upon such testimony, if corroborated by other
reliable evidence. In the present case apart from the
evidence of hostile witnesses, there is testimony of PWs-1,
6, 8, 13 and 15 regarding the complicity of accused in the
crime.
18. Even though PW-2, who is witness to the spot-
cum-seizure mahazar has turned hostile, PW-3 has clearly
supported the case of the prosecution. His evidence prove
that the front portion of the offending vehicle was completely
damaged. He found a dead body in the offending vehicle and
can containing liquid which smelt of alcohol. He lifted the can
from the offending vehicle and kept outside. He could feel
burning sensation when he touched the can. The driver of
the offending vehicle was sent to the hospital. He is also
witness to the inquest conducted on the dead body of
Raghavendra Kathare and clearly stated that the body was
struck inside the offending vehicle. He with the help of four
others removed the dead body with great difficulty.
19. The FSL report at Ex.P29 state that the contents
of the cans is a spirit. Under Section 293 of Cr.P.C, the
reports of certain Government Scientific expert is admissible
in evidence, without proper formal proof of the same, unless
the Court summon such witness at the instance of
prosecution or the accused. In the present case, the accused
has not sought for attendance of the expert who has issued
the FSL report and therefore it is not open to the accused to
dispute the same. Admittedly, the accused was not
possessing any pass or permit to transport the spirit, and
therefore, rightly the trial Court as well as the Session Court
have raised presumption under Section 40 of the Excise Act
and the accused has failed to rebut the presumption.
20. Of course the evidence of PW-20 and 18 prove the
investigation and their investigation is corroborated by the
testimony of the other witnesses. In fact PW-18 who has
visited the spot after coming to know about the incident has
clearly deposited that the deceased was found in the front
passenger seat of the offending vehicle and from the people
who had gathered at the spot he came to know that the
driver of the offending vehicle was taken to the hospital for
treatment as he was also injured.
21. Despite lengthy cross-examination, the defence
has failed to demolish the testimony of PW-1, 6, 8, 13 and
15, though it has managed to win over some of the
witnesses. After examining the oral and documentary
evidence placed on record, the trial Court has come to a
correct conclusion. After re-appreciation of the entire
evidence placed on record, the Sessions Court has also
confirmed the findings of the trial Court. This court finds no
justifiable grounds to interfere with the well reasoned
judgment of the trial Court as well as the Session Court
under the revisional jurisdiction. Having regard to the
severity of the allegations proved, there is also no scope for
interfering with the quantum of punishment. In the result,
the petition fails and accordingly the following:
ORDER
(i) Petition filed by the accused under Section
397 r/w 401 Cr.P.C is hereby rejected.
(ii) The judgment and order dated 20.12.2012
in C.C.No.91/2008 on the file of I Addl.Civil
Judge & JMFC, Dharwad and that of the
Sessions Court Judgment and order dated
19.06.2015 in Crl.A.No.9/2013 on the file
of Prl.District and Sessions Judge, Dharwad
are hereby confirmed.
(iii) The trial Court shall secure the presence of
accused to undergo punishment.
(iv) The Registry is directed to send back the
trial Court records as well as Sessions
Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
