Karnataka High Court
Husein Shawali vs State Of Karnataka on 19 June, 2023
Bench: S Rachaiah
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CRL.RP No. 447 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 447 OF 2016
BETWEEN:
HUSEIN SHAWALI
AGED ABOUT 47 YEARS
Digitally S/O KHADER AHMED
signed by N BUS DRIVER
UMA
R/AT P.H.COLONY
Location:
HIGH COURT TUMKUR TOWN
OF TUMKUR - 572 101.
KARNATAKA
...PETITIONER
(BY SRI. PULAKESHI A P, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KORA POLICE STATION,
TUMKUR - 572 101.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET-ASIDE THE JUDGMENT/ORDER DATED 14.03.2013 AND
AN ORDER OF CONVICTION SENTENCE PASSED BY THE II
ADDL. CIVIL JUDGE AND JMFC III AT TUMKUR PASSED IN
C.C.NO.1796/2012 AND ALSO SET-ASIDE THE JUDGMENT
WHICH IS CONFIRMED BY THE VI ADDL. DISTRICT AND S.J. AT
TUMKUR PASSED IN CRL.A.NO.60/2013 DATED 27.10.2015 BY
ALLOWING THE PRESENT CRIMINAL REVISION PETITION AND
ETC.,
THIS CRIMINAL REVISION PETITION, COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 447 of 2016
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 14.03.2013 in C.C.No.1796/2012 on
the file of the Court of II Additional Civil Judge and J.M.F.C.-III
at Tumkur and its confirmation judgment and order dated
27.10.2015 in Crl.A.No.60/2013 on the file of the Court of VI
Additional District and Sessions Judge at Tumkur, has filed this
revision petition 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') and
Section 134(a) and (b) read with Section 187 of Motor Vehicles
Act, 1988 (for short "Act").
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. It is the case of the prosecution that, on
06.04.2011 at about 1.30 p.m., it is stated that, the accused
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CRL.RP No. 447 of 2016
was driving the bus bearing registration No.KA-42-5346 and
while overtaking some vehicle on the extreme right side of the
road in high speed and rash and negligent manner, dashed
against the auto-rickshaw bearing registration No.KA.06.B.5803
which was coming from the opposite direction, as a result of
which, the auto-rickshaw got damaged and one of the inmates
of the auto-rickshaw namely Raju sustained grievous injuries
and died at the hospital and other two inmates have sustained
simple injuries. Based on the complaint lodged by the
complainant, a case has been registered against the accused,
and on investigation, a charge sheet was laid by the
jurisdictional police for the offences stated supra.
4. To prove the case of the prosecution, the
prosecution examined, in all, 10 witnesses namely PWs.1 to 10
and got marked Exhibits P1 to P12. The Trial Court after
appreciating the oral and documentary evidence on record, held
the petitioner as guilty and 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 and confirmed the
judgment of conviction passed by the Trial Court. Being
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aggrieved by the same, the petitioner has preferred this
revision petition seeking to set aside the concurrent findings.
5. Heard Shri Pulakesh A.P., 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 the learned counsel for the
petitioner that, the concurrent findings recorded by the Courts
below are perverse, erroneous and opposed to the principles of
law and evidence on record and hence, the same is liable to be
set aside.
7. It is further submitted that, the Courts below failed
to appreciate the evidence of PWs.1 and 2, who are
eyewitnesses to the incident, who have categorically stated
that, they did not identify who was the driver on the date of the
alleged incident. In the absence of identification of the driver,
the Courts below ought not to have recorded conviction of the
petitioner. Having failed to consider the said aspect led to the
impugned judgments being passed by the Courts below, which
require to be set-aside. Making such submission, learned
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counsel for the petitioner seeks to set aside the concurrent
findings recorded by both the Courts below.
8. Per contra, learned High Court Government Pleader
(for short 'HCGP') justifying the concurrent findings, submitted
that, the Courts below consistently held that the petitioner is
guilty of the offences stated supra and the eyewitnesses have
supported the case of the prosecution, not only in respect of
the incident, but also identity of the accused. It is further
submitted that, the Motor Vehicle Report, which is marked as
Ex.P7, clearly indicates that, due to the said accident, two
vehicles got damaged. It is further submitted that, in the
findings recorded by the Courts below, no error was committed
by the courts below, hence, it is not proper to interfere with the
well reasoned order passed by the Courts below. Having
submitted thus, learned HCGP prays to dismiss the petition.
9. Having heard the rival contentions urged by the
learned counsels for the respective parties and after perusing
the concurrent findings recorded by the Courts below in
convicting the accused, the points which are raised by the
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learned counsel for the petitioner are required to be answered
after looking into the documents and relevant evidence of the
witnesses.
10. As per the case of the prosecution, PWs.1 and 2 are
eyewitnesses to the incident. The prosecution has not chosen
to examine the inmates of the bus as witnesses to the incident.
Be that as it may, the evidence of PWs.1 and 2 clearly indicates
that, they have not seen the petitioner as on the alleged date
of accident. They have clearly stated that the petitioner was
shown to them in the police station as the driver of the bus.
PW.8 who is a GPA holder of the owner of the offending bus,
was examined by the prosecution to strengthen the case,
however he did not say that, the petitioner was the driver of
the said vehicle. The prosecution even though treated the
witness as hostile and cross-examined, nothing has been
elicited to prove that the petitioner / accused was the driver of
the bus on the date of the accident.
11. In the absence of the specific evidence that the
petitioner was driving the said offending bus on the alleged
date of accident, it is not proper to convict the petitioner for the
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offences stated supra. However, the Trial Court and the
Appellate Court have lost sight of it and passed the impugned
judgments, which require to be set-aside.
12. In the light of the observations made above, I
proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 14.03.2013 passed in
C.C.No.1796/2012 on the file of the Court of II
Additional Civil Judge and J.M.F.C.-III at Tumkur
and its confirmation judgment and order dated
27.10.2015 in Crl.A.No.60/2013 on the file of
the Court of VI Additional District and Sessions
Judge at Tumkur, are set aside.
(iii) The petitioner is acquitted for the offences under
Sections punishable under Sections 279, 337
and 304-A of Indian Penal Codeand Section
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134(a) and (b) read with Section 187 of Motor
Vehicles Act, 1988.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
BSS
