Karnataka High Court
Asif Jailani Daddi vs The State Of Karnataka on 14 June, 2023
Bench: Anil B Katti
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CRL.RP No. 2055 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 2055 OF 2013
BETWEEN:
ASIF JAILANI DADDI,
AGE: 26 YEARS, OCC: DRIVER,
R/O. ANSARI GALLI, PEERANAWADI,
TQ & DT: BELAGAVI.
...PETITIONER
(BY SHRI VITTAL S. TELI, ADV.)
AND:
Digitally
signed by J
J MAMATHA THE STATE OF KARNATAKA
MAMATHA Date:
2023.06.15
10:55:30 -0700
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA, DHARWAD
THROUGH C P I OF SAUNDATTI.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT DATED 29.12.2012 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI IN CRIMINAL
APPEAL NO.02/2010 CONFIRMING THE JUDGMENT DATED
10.12.2009 PASSED BY JMFC COURT, SAUNDATTI IN
C.C.NO.353/2007, BY ALLOWING THE PETITION AND THEREBY
ACQUITY THE PETITIONER.
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CRL.RP No. 2055 of 2013
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 05.04.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by the
judgment of first appellate Court on the file of II Additional
District and Sessions Judge, Belgaum, in criminal appeal
No.02/2010 dated 29.12.2012, preferred present revision
petition.
2. Parties to the revision petition are referred with
their ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
26.02.2007 at about 11.00 a.m. in Halaki village on Belgaum-
Bagalkot road, the accused being driver of tanker bearing
registration No.KA-22/4451, drove the same with high speed in
rash and negligent manner so as to endanger human life. On
account of such actionable negligence, dashed to motorcycle of
deceased Manjunath Kalal bearing registration No.KA-22/TRH-
3048, which was proceeding from Munavalli towards Murgod
CRL.RP No. 2055 of 2013
from its back side. Due to which rider of motorcycle Manjunath
Kalal succumbed to the accidental injuries on the spot itself.
The accused without giving information about accident to the
nearest police station fled away from the place. On these
allegation made in the complaint, the investigating officer after
completion of investigation filed charge sheet.
4. In response to the summons, accused has appeared
before the trial Court through counsel. The trial Court after
being prima-facie satisfied framed accusation against accused,
pleaded not guilty and claimed to be tried. Prosecution in order
to prove the accusation leveled against accused relied on the
evidence of PWs.1 to 11 and documents Exs.P.1 to 8.
5. On closure of the prosecution evidence, statement
of accused under Section 313 of Cr.P.C, came to be recorded.
Accused denied all the incriminating material evidence
appearing against him and claimed that false case is filed. Trial
Court after appreciating the evidence on record convicted the
accused for the offences punishable under Sections 279 and
304(A) of Indian Penal Code (hereinafter referred as 'IPC' for
brevity) and Section 187 of Motor Vehicles Act (hereinafter
CRL.RP No. 2055 of 2013
referred as 'M.V.Act' for brevity) and imposed sentence as per
order of sentence.
6. The said judgment of conviction and order of
sentence was challenged by accused before First Appellate
Court on the file of II Additional District and Sessions Judge,
Belgaum, in criminal appeal No.02/2010. The First Appellate
Court on re-appreciating the material evidence on record,
dismissed the appeal and confirmed the judgment of conviction
and order of sentence passed by trial Court.
7. Revision petitioner/accused challenged concurrent
finding of both the Courts below contending that evidence of
PWs.1 and 3 to 5 has not been properly appreciated and
committed serious error in holding that accused is guilty of
offences alleged against him. The evidence of PWs.1 and 3 to 5
does not speak anything about culpable rashness or negligence
in driving tanker bearing registration No.KA-22/4451. The mere
fact of accident having taken place and rider of motorcycle died
itself cannot be said as sufficient evidence to prove the
accusation made against accused. The approach and
appreciation of oral and documentary evidence by both the
Courts below and the findings recorded, are not based on legal
CRL.RP No. 2055 of 2013
evidence. Therefore, prayed for allowing the revision petition
and to set-aside the judgment of both the Courts below.
Consequently, to acquit accused from the accusation leveled
against him.
8. In response to the notice, learned HCGP has
appeared for respondent-State.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary
evidence placed on record, it would go to show that accused
was driver of tanker bearing registration No.KA-22/4451 and
accident in question occurred on 26.02.2007 at about 11.00
a.m. in Halaki village on Blgaum-Bagalkot road, the rider of
motorcycle Manjunath Kalal succumbed to injuries sustained in
the accident are the facts not in dispute, so also same can be
borne out from the evidence on record and finding recorded by
the trial Court.
11. It appears that accused for the first time before first
appellate Court taken contention that he was not driver of
tanker bearing registration No.KA-22/4451 at the time of
accident. The fist appellate Court has addressed the said issue
CRL.RP No. 2055 of 2013
and for the reasons recorded in para 17 to 19 has recorded
finding that accused was driver of tanker bearing registration
No.KA-22/4451 involved in the accident and the same is also
evidenced from the material evidence placed on record by
prosecution. Therefore, I find no any valid reasons to interfere
with said finding recorded by the first appellate Court.
12. P.Ws.1 and 3 to 5 are eye witnesses to the accident
in question. They have deposed to the effect that on
26.02.2007 they were all sitting on the platform near Halaki
bus stand talking with each other. At that time, Manjunath
Kalal rider of motorcycle was proceeding towards Murgod, the
driver of tanker bearing registration No.KA-22/4451, came with
high speed in rash and negligent manner, thereby dashed
against motorcycle from its back side near speed breaker. All of
them rush to spot and found Manjunath Kalal succumbed to
injuries on the spot itself. Accused was driving the tanker
bearing registration No.KA-22/4451, they have further deposed
to the effect that tanker bearing registration No.KA-22/4451,
driven by accused was stopped at some distance and accused
fled away from the place. Looking to the cross examination of
all these material witnesses, it would go to show that their
CRL.RP No. 2055 of 2013
presence at place of accused and they having witnessed the
accident remained unimpeachable. P.Ws.1 and 3 to 5 are not
related to rider of motorcycle deceased Manjunath Kalal and
they have no enmity against accused to falsely implicate
accused being driver of tanker bearing registration No.KA-
22/4451, involved in the accident. They withstood the test of
cross examination and nothing worth material has been
brought on record so as to discredit their evidence. P.Ws.1 and
3 to 5 have consistently deposed to the fact that rider of
motorcycle was proceeding slowly on the speed breaker and
the driver of tanker bearing registration No.KA-22/4451, drove
the same with high speed in rash and negligent manner, further
dashed against motorcycle from backside.
13. The evidence of P.W.2 would go to show that the
spot panchanama prepared in his presence on 26.02.2007 in
between 1.35 to 2.30 as per Ex.P.5 and place of accident was
shown by P.W.1. The tanker bearing registration No.KA-
22/4451 and the motorcycle bearing KA-22/TRH-3048 involved
in the accident were lying at the spot of accident and the same
were seized under the panchanama and Halaki bus stand is at a
distance of 75 feet from place of accident. The spot features
CRL.RP No. 2055 of 2013
recorded under the spot panchanama Ex.P.5 would go to show
that place of accident is on speed breaker and the road at the
place of accident spot runs from east to west and the width of
the road is 30 feet having kachcha road of 6 feet on either side
of the road. The accident took place from eastern side towards
western side. After two speed breaker out of 5 speed breaker
laid from south to north. The photograph Ex.P.8 also evidences
the fact that the dead body of deceased Manjunath Kalal was
lying after two speed breaker. The defence counsel though has
subjected P.W.2, material witnesses. PWs.1 and 3 to 5 to
lengthy cross examination, no worth material has been brought
on record, so as to discredit the said evidence that accident
took place while rider Manjunath Kalal was proceeding on speed
breaker has crossed two speed breaker out of 5 laid from south
to north. Further accused without exercising due diligence
dashed against the motorcycle bearing registration No. KA-
22/TRH-3048. Due to which rider of motorcycle Manjunath
Kalal succumbed to the injuries sustained in the accident. The
road at place of accident is straight road running from east to
west and 5 speed breaker was laid from south to north. The
accused was having every opportunity to look forward and
CRL.RP No. 2055 of 2013
moving vehicles was expected to keep sufficient distance in
between two vehicles. Accused was expected to slow down his
vehicle while crossing the speed breaker which can be easily
noticeable, since there were white strip paint marks to give
indication about existence of speed breaker. However, accused
in spite of noticing the said factual position of road condition at
the place of accident failed to exercise due diligence in driving
tanker bearing registration No.KA-22/4451, and dashed against
the motorcycle bearing registration No.KA-22/TRH-3048 from
its back side. Due to which rider of motorcycle manjunath Kalal
succumbed to the injuries in the accident.
14. Learned counsel for the revision petitioner relied on
the following decisions of Hon'ble Apex Court to substantiate
his contention that it is duty of prosecution to prove beyond
reasonable doubt the culpable rashness or negligence leading
to the accident in question.
1. Ravi Kapur V/s State of Rajasthan reported in
(2012) 9 SCC 284.
2. Syad Akbar V/s State of Karnataka reported
in AIR 1979 SCC 1848.
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CRL.RP No. 2055 of 2013
3. State of Karnataka V/s Satish reported in
(1998) 8 SCC 493.
4. Mohammed aynuddin alias Miyam V/s
State of A.P reported in (2000) 7 SCC 72.
15. I have carefully gone through the principles
enunciated in the aforesaid decisions, there cannot be any
dispute with regard to the proposition of law laid down in the
said decisions. The actionable negligence of accused leading to
the accident in question has to be appreciated in the light of
facts and circumstances of each case with reference to nature
of evidence placed on record and spot features of the accident,
further no inferences can be drawn without prosecution
discharging it's initial burden of proving actionable negligence
of accused leading to the accident in question.
16. In the present case the evidence of P.W.1 and 3 to
5, who are eye witnesses to the accident is consistent enough
to prove the factum of accident occurred due to actionable
negligence in driving tanker bearing registration No.KA-
22/4451, as a result of such actionable negligence dashed
against rider of motorcycle bearing registration No.KA-22/TRH-
3048 from its back side, rider of the vehicle succumbed to the
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CRL.RP No. 2055 of 2013
injuries sustained in the accident. The Courts below have
rightly appreciated the evidence on record and arrived to a just
and proper conclusion in holding that due to actionable
negligence of accused, the accident in question has occurred
leading to death of rider of motorcycle bearing registration
No.KA-22/TRH-3048.
17. Now question of imposition of sentence, the trial
Court for the reasons recorded in the para 21 of its judgment
has imposed sentence for the offences punishable under
Section 304A, since for the offence punishable under Section
279 merges with major offence. In support of such findings
reliance is also placed on the judgment of this Court reported in
V.NAGARAJU AND ANOTHER V/S STATE BY WHITEFIELD
POLICE, BANGALORE reported in 2016(6) KAR.L.J.63,
accordingly, imposed sentence by exercising sound judicial
discretion which is affirmed by the first appellate Court.
Therefore, even on the quantum of sentence also, no any
interference is required. Consequently, proceeded to pass the
following:
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CRL.RP No. 2055 of 2013
ORDER
Revision petition filed by the accused is hereby dismissed.
The judgment of the first appellate Court on the file of II
Additional District and Sessions Judge Belgaum, in criminal
appeal No.02/2010 dated 29.12.2012, which has confirmed the
judgment of trial Court on the file of Judicial Magistrate, F.C.
Saundatti, in C.C.No.353/2007 dated 10.12.2009 is confirmed.
Registry to send back records with judgment to Courts
below.
(Sd/-)
JUDGE
AC/-
