Karnataka High Court
Jitendrakumar vs The State Of Karnataka on 30 May, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100198 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100198 OF 2016
BETWEEN:
JITENDRAKUMAR
S/O MAHADEVAPPA JATTI,
AGE: 48 YEARS, OCC: AUTO DRIVER,
R/O: ASANGI, TAL: JAMAKHANDI,
DIST: BAGALKOT.
...PETITIONER
(BY SHRI SANTOSH D. NARGUND, ADV)
AND:
Digitally
signed by J THE STATE OF KARNATAKA,
MAMATHA
J
MAMATHA Date: REPRESENTED BY CPI,
2023.05.28
02:34:28 BANAHATTI CIRCLE,
+0530
TAL: JAMAKHANDI,
THROUGH S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W SEC. 401 OF CR.P.C., SEEKING TO ALLOW THE
PETITION AND SET ASIDE THE IMPUGNED JUDGMENT PASSED
IN CRIMINAL APPEAL NO. 9/2015, DATED 16/07/2016 PASSED
BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT, TO SIT AT: JAMAKHANDI, AT JAMAKHANDI,
CONFIRMING THE ORDER PASSED IN C.C.NO-187/2010,
PASSED BY THE I ADDL. CIVIL JUDGE & J.M.F.C., BANAHATTI,
DATED 02/01/2015 AND CONSEQUENTLY ALLOW THE
PETITION.
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CRL.RP No. 100198 of 2016
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 24.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner/accused being aggrieved by the
judgment of I Additional District and Sessions Judge,
Bagalkot, to sit At: Jamakhandi, (hereinafter referred as
'First Appellate Court' for brevity) in Criminal Appeal
No.09/2015 dated 16.07.2015, preferred present Criminal
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
03.12.2009 in the afternoon the wife of complainant i.e.
Smt.Rukmavva and others were proceeding from
Banahatti towards Asangi in Ape PIAGO Tum tum vehicle
bearing registration No.KA-48/1733. When they reached
near Asangi high school at around 3.00 p.m. driver of the
CRL.RP No. 100198 of 2016
said vehicle drove the vehicle with high speed in rash and
negligent manner. Due to which the vehicle was capsized
on the road. The inmates of the vehicle Smt.Rukmavva
succumbed to the injuries sustained in the accident and
other passengers have suffered injuries. The prosecution
alleges that accident in question occurred due to
actionable negligence of accused. On these allegations
made in the complaint the case was registered in crime
No.183/2009 Banahatti police station. Investigating officer
after completion of investigation filed charge-sheet.
4. In response to the summons, accused appeared
before the trial court through counsel. The trial Court after
being prima-facie satisfied framed the accusation against
accused for the offences punishable under Section 279,
337, 338 and 304(A) of IPC. Accused pleaded not guilty
and claimed to be tried.
5. Prosecution in order to prove the accusation
leveled against accused relied on the evidence of PWs.1 to
12 and documents Exs.P.1 to 17.
CRL.RP No. 100198 of 2016
6. 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 accused for the aforesaid
offences and imposed sentence as per order of sentence.
7. Accused challenged said judgment of conviction
and order of sentence before First Appellate Court on the
file of I Additional District and Sessions Judge, Bagalkot to
sit At: Jamakhandi in Criminal Appeal No.09/2015. The
First Appellate Court on re-appreciating the material
evidence on record by judgment date 16.07.2016
dismissed the appeal and confirmed the judgment of
conviction and order of sentence passed by trial Court.
8. Accused being not satisfied with concurrent
findings of the both courts below preferred this revision
contending that both Courts below have not properly
appreciated the evidence on record with reference to spot
features recorded under the panchanama Ex.P.4. The
CRL.RP No. 100198 of 2016
evidence of PW.1, 4 and 5 cannot be relied to prove the
actionable negligence of accused leading to the accident in
question. PW.1, 4 and 5 except deposing about factum of
accident, their evidence is conspicuously absent on the
point of actionable negligence of accused leading to the
accident in question. The approach and appreciation of
oral and documentary evidence by both the Courts below
and the findings recorded, are not based on legal
evidence. Therefore, prayed for allowing revision petition
and to set-aside the judgment of both the Courts below.
Consequently, to acquit the accused from accusation
leveled against him.
9. In response to the notice, learned HCGP has
appeared for respondent-State.
10. Heard the arguments of both sides.
11. On careful perusal of the oral and documentary
evidence placed on record by prosecution, it would go to
show that on 03.12.2009, the wife of complainant along
with her daughter and grand children were proceeding
CRL.RP No. 100198 of 2016
from Banahatti towards Asangi in Ape PIAGO Tum tum
vehicle bearing registration No.KA-48/1733. When they
reached near Asangi High school, the accused drove said
auto rickshaw in rash and negligent manner, due to which
it was capsized. The inmates of vehicle wife of complainant
Smt.Rukmavva succumbed to the injuries sustained in the
accident and other passengers have suffered injuries. The
prosecution alleges that the accident in question occurred
due to actionable negligence of accused. The prosecution
in order to prove said allegation mainly relies on the oral
evidence of PW.1, who is complainant and filed complaint
at Ex.P.1. P.W.4 and 5 are the inmates of the Ape PIAGO
Tum tum vehicle bearing registration No.KA-48/1733 and
have suffered injuries.
12. The defence counsel has denied the identity of
accused being driver of the Ape PIAGO Tum tum vehicle
bearing registration No.KA-48/1733. However, evidence of
P.W.1 and inmates of vehicle P.W.4 and 5 is consistent, in
identifying the accused being driver of Ape PIAGO Tum
tum vehicle bearing registration No.KA-48/1733 at the
CRL.RP No. 100198 of 2016
time of accident. It is also pertinent to note that accused
has also suffered injuries in the accident. P.W.10 who has
registered the case and deposed to the effect that the
injured accused was sent to Government hospital
Banahatti for treatment through CPC 1186 of Banahatti.
Wound certificate of accused Ex.P.13 would go to show
that the he has examined by the P.W.11 at 6.15 p.m. who
was produced by CPC 1186 of Banahatti police station. On
examination it was found Abrasion plus over the dorsal
aspect of left arm.
13. P.W.11 who has treated the accused during his
evidence vouchsafed evidence of P.W.10 that injured
accused was sent through CPC 1186 of Banahatti P.S. to
Government hospital for treatment due to injuries suffered
in the accident. Other than the mere denial of suggestions
to the above referred witnesses, no any material evidence
has been brought on record to discredit their evidence.
Therefore, both Courts below were justified in holding that
the accused was driver of Ape PIAGO Tum tum vehicle
CRL.RP No. 100198 of 2016
bearing registration No.KA-48/1733 at the time of
accident.
14. P.W.3 panch witness to the panchnama at
Ex.P.4 has spoken about the preparation of spot
panchanama in his presence at Ex.P.4 and identifies the
photographs-Ex.P.7. P.W.12 investigating officer has
deposed about visiting to the spot and preparation of
panchanama Ex.P.4. The place of accident was shown by
P.W.1, who has visited the spot on hearing about the
accident and the of evidence P.W.4 and 5 also certified the
same. There are absolutely no any valid reasons to
disbelieve the evidence of above referred witnesses
regarding the place of accident and drawing of
panchanama Ex-P4.
15. The mere proof of factum of accident and
accused was driver of Ape PIAGO Tum tum vehicle bearing
registration No.KA-48/1733 at the time of accident.
Further, the wife of complainant succumbed to the injuries
sustained in the accident and other passengers have
suffered injuries by itself cannot be said as sufficient
CRL.RP No. 100198 of 2016
evidence to prove actionable negligence of accused leading
to the accident in question. The prosecution has to
discharge its initial burden of proving that the accident
occurred due to actionable negligence of accused. In other
words, the prosecution must prove that an ordinary
common prudent men in the given set of facts and
circumstances would exercised care and caution to avoid
the accident and the accused has failed to exercise such
diligence in driving vehicle, as a result the accident in
question has occurred.
16. The complaint allegations Ex.P.1 and oral
evidence of P.W.1 would go to show that he is not eye
witness to the accident. In other words after hearing about
the accident from Ashok Bhimappa Bangi and Mahantesh
Gurupada Ullagadi, who is examined as P.W.6 went to the
place of accident. P.W.6 who is said to have seen the
accident and informed about the factum of accident to
P.W.1. It is alleged in the complaint Ex.P.1 that the
accused is alleged to have applied the break all of a
sudden, due to which Ape PIAGO Tum tum vehicle bearing
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CRL.RP No. 100198 of 2016
registration No.KA-48/1733 was capsized. Whereas, in the
evidence of P.W.1 it is claimed that the vehicle driven by
the accused was capsized while proceeding in downal. The
source of information of both the above referred
negligence has not been stated by P.W.1 during course of
evidence. If it is to be taken that he gained knowledge of
negligence of accused in driving the vehicle from P.W.6
who is said to have informed about the accident, the same
was neither stated in the complaint at Ex.P.1 nor P.W.6
has supported the case of the prosecution.
17. P.W.4 is the daughter of the complainant and
inmate of Ape PIAGO Tum tum vehicle bearing registration
No.KA-48/1733 suffered injuries in the accident and
claimed that the accident occurred due to sudden
application of break by accused, due to which vehicle was
capsized. P.W.5 another inmate of the vehicle has not
spoken about the actionable negligence of accident in
driving the vehicle. On the other hand, she admits in the
cross examination that the vehicle was proceeding in
normal speed. P.W.5 further admits that due to road hump
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CRL.RP No. 100198 of 2016
near the place of accident vehicle will be moving slowly
and she pleaded her ignorance as to the cause of accident.
Therefore, from above referred evidence of material
witnesses P.Ws.1, 4 and 5, it is evident that other than
speaking about the factum of accident, their evidence is
conspicuously absent with reference to actionable
negligence of accused in driving Ape PIAGO Tum tum
vehicle bearing registration No.KA-48/1733 at the time of
accident. It is true that the P.W.1 and 4 have deposed
during the course of their evidence that the vehicle was
driven with high speed, but the said evidence is not
certified by the another inmate of vehicle P.W.5.
Otherwise also, the mere speed of vehicle itself cannot be
ground to hold actionable negligence of accused in driving
the vehicle at the relevant point of time. The evidence of
other witnesses and that of investigating officer cannot be
any much assistance to the case of the prosecution to
prove culpable negligence of accused in driving the
vehicle. The trial Court as well as the first appellate Court
appears to have been swayed away by the fact of death of
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CRL.RP No. 100198 of 2016
wife of complainant Smt.Rukmavva and injury suffered by
two of the inmates of the vehicle. Further, factum of the
accident, accused was driver of the said vehicle is proved
by the prosecution has proceeded to conclude that the
accident has occurred due to actionable negligence
accused leading to the of accident in question. However,
both Courts below failed to appreciate the complaint
allegations Ex.P.1 and oral evidence of P.Ws. 4 and 5 in
addressing the issue of culpable negligence of accused
leading to the accident in question. Therefore, interference
of this Court is required. Consequently, I proceed to pass
following:
ORDER
Revision petition filed by the accused is hereby
allowed.
The judgment of the first appellate Court on the file
of I Additional District and Sessions Judge, Bagalkot, to sit
At: Jamakhandi in criminal appeal No.09/2015 dated
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CRL.RP No. 100198 of 2016
16.07.2016 confirming the judgment of trial Court in C.C.
No.187/2010 dated 02.01.2015 are hereby set-aside.
Accused is acquitted from the acquisition leveled
against him for the offences punishable under Sections
279, 337, 338, 304(A) of IPC.
Fine amount if any is already paid by the accused
and then the same is ordered to be refunded to the
accused.
(Sd/-)
JUDGE
AC/-
