Shri.Palanisamy S/O Kaliappan vs The State Of Karnataka
2023 Latest Caselaw 7707 Kant

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                                                       NC: 2023:KHC-D:13337
                                                       CRL.RP No. 100002 of 2017




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 16TH DAY OF NOVEMBER, 2023

                                               BEFORE
                               THE HON'BLE MR JUSTICE S.RACHAIAH
                        CRIMINAL REVISION PETITION NO. 100002 OF 2017
                     BETWEEN:

                     SHRI. PALANISAMY S/O KALIAPPAN
                     AGE: 54 YEARS, OCC: DRIVER,
                     R/O: MASAKKALIYUR-636457,
                     TALUKA: METTUR, DIST: SALEM,
                     TAMILNADU STATE.
                                                                    ...PETITIONER
                     (BY SRI. A.R.PATIL, AMICUS CURIAE)

                     AND:

                     THE STATE OF KARNATAKA,
                     BY STATE PUBLIC PROSECUTOR,
                     HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH,
                     FOR CPI HUKKERI.
                                                                   ...RESPONDENT
                     (BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP)
        Digitally
        signed by

VN
        VN
        BADIGER           THIS CRIMINAL REVISION PETITION IS FILED UNDER
BADIGER Date:
        2023.11.22
        16:52:37
                     SECTION 397(1) R/W SECTION 401 OF CR.P.C., SEEKING TO
        +0530
                     ALLOW THE PETITION BY SETTING ASIDE THE ORDER DATED
                     02.11.2016 PASSED BY THE VII ADDITIONAL DISTRICT AND
                     SESSIONS JUDGE, BELAGAVI AT CHIKODI IN CRL.A.NO.90/2015
                     AND THE JUDGMENT DATED 24.06.2015 PASSED BY THE PRL.
                     CIVIL JUDGE AND JMFC, SANKESHWAR IN C.C.NO.849/2010
                     THEREBY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCES
                     PUNISHABLE UNDER SECTIONS 279, 337, 338 & 304-A IPC AND
                     SECTIONS 134 R/W 187 OF M.V.ACT.

                          THIS PETITION, COMING ON FOR DICTATING ORDERS,
                     THIS DAY, THE COURT MADE THE FOLLOWING:
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                                           NC: 2023:KHC-D:13337
                                           CRL.RP No. 100002 of 2017




                                  ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 24.06.2015 in C.C.No.849/2010 on the

file of the Principal Civil Judge and J.M.F.C., Sankeshwar and its

confirmation judgment and order dated 02.11.2016 in

Crl.A.No.90/2015 on the file of the VII Additional District and

Sessions Judge, Belagavi at Chikodi, 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, 338 and 304-A of Indian Penal Code

(for short 'IPC') and Section 134 r/w Section 187 of the Motor

Vehicle Act (for short 'MV Act').

2. The rank of the parties in the Trial Court henceforth

will be considered as it is, for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that on

29.04.2010, at about 02.00 a.m., the accused being a driver of

the goods truck bearing No.TN-34/D-5954, coming from

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

Nippani towards Belagavi, drove it in a rash and negligent

manner with high speed and dashed to the hind side of Cruiser

Jeep bearing No.KA-25/N-2197. Consequently, the Cruiser

Jeep toppled and two of the inmates have died in the said

accident. Upon the complaint of PW.1, a case came to be

registered by the jurisdictional police, after conducting the

investigation, submitted the charge sheet.

4. In order to prove the case of the prosecution, the

prosecution examined, in all, 20 witnesses namely PWs.1 to 20

and got marked 34 documents as Exhibits P1 to P34. The Trial

Court after appreciating the oral and documentary evidence on

record, convicted the petitioner for the offences stated supra

and on appeal, the said judgment of conviction is confirmed.

Being aggrieved by the same, the petitioner has preferred this

revision petition seeking to set aside the concurrent findings.

5. Heard Shri A.R.Patil, learned Amicus Curiae for the

petitioner and Shri Praveena Y. Devareddiyavara, learned High

Court Government Pleader for the respondent - State.

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

6. It is the submission of learned Amicus Curiae for

the petitioner that the judgment of conviction and order of

sentence of the Trial Court and its confirmation order passed by

the Appellate Court are perverse, illegal and against the

evidence on record. Therefore, the findings recorded by the

Courts below in convicting the petitioner are liable to be set

aside.

7. It is further submitted that the accident said to

have taken place at odd hours i.e., 02.00 a.m. in the midnight.

The alleged accident was caused by the truck to the hind side

of the Cruiser Jeep. The inmates of the said Cruiser Jeep

sustained injuries, both grievous and minor, and also two

inmates have died. None of the witnesses have identified the

accused as the driver of the offending vehicle as on the date of

the alleged accident. In the absence of identity of the driver,

conviction ought not to have been recorded by the Courts

below. It is further submitted that the notice in respect of the

identity of the accused has not been issued to the owner of the

vehicle. The owner of the vehicle has not been examined.

Therefore, the conviction recorded by the Courts below appears

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

to be erroneous, perverse and illegal, the same is liable to be

set aside. Making such submissions learned Amicus Curiae for

the petitioner prays to allow the petition.

8. Per contra, learned High Court Government Pleader

(for short 'HCGP') vehemently justified the judgment of

conviction and its confirmation by the Appellate Court and

submitted that the inmates of the vehicle i.e., Cruiser Jeep

have identified the driver of the offending vehicle in the Court.

The said identification was held to be valid by the Courts below.

The impact of negligence indicates the manner in which the

incident occurred. The Trial Court and the Appellate Court

considering the evidence of eyewitnesses and also the injured

witnesses, recorded the conviction which is appropriate and

proper. There is no occasion for this Court to interfere with the

findings of the Courts below.

9. Having heard the learned counsel for the respective

parties, and also perused the findings of the Court below in

recording the conviction, the points which arise for

consideration in the instant case are:-

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

(i) Whether the concurrent findings recorded by

the Courts below in convicting the petitioner-accused

are justifiable?

(ii) Whether the petitioner has made out grounds

to interfere with the concurrent findings?

10. Before adverting to the facts of the case, it is

relevant to refer to the scope and ambit of the revisional

jurisdiction. In the case of Sheetala Prasad and Others Vs.

Sri Kant and Another1 held that revisional jurisdiction can be

exercised by the High Court at the instance of a private

complaint as follows:-

1) where the trial court has wrongly shut out evidence which the prosecution wished to produce,

2) where the admissible evidence is wrongly brushed aside as inadmissible.

3) where the trial court has no jurisdiction to try the case has still acquitted the accused.

(2010) 2 SCC 190

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and

5) Where the acquittal is based on the compounding of the offence which is invalid under the law.

On reading of the dictum of the Hon'ble Supreme Court, now it

is relevant to refer to the evidence of the witnesses. In order

to avoid the repetition of the facts, it maybe stated that the

alleged accident said to have taken place at NH4 at

Sankeshwar town on 29.04.2010 at 2.00 a.m. PW1 is the

complainant-injured and also eyewitness. PWs.4 to 12, 14 and

16 who are the injured eyewitnesses to the incident were the

inmates of the tempo trax. PWs.11 to 20 have been examined.

However, the evidence of these witnesses are relevant for

consideration only in respect of the accident. As per the

findings recorded by the Courts below PWs.1, 4 to 12, 14 and

16 are the eyewitnesses - cum - injured witnesses. None of

the witnesses have identified or stated about the driver who

was driving the said offending vehicle. On perusal of the

documents produced by the Investigating Officer and also the

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

evidence of the witnesses, the Investigating Officer has not

produced notice issued under Section 133 of the Motor Vehicles

Act and also not examined the owner of the offending vehicle to

substantiate that the accused herein was the driver of the

vehicle as on the date of the accident.

11. Even assuming that the inmates of the trax have

seen the accused as the driver of the offending vehicle as on

the date of the alleged accident, the Investigating Officer has

not arranged for the identification parade to substantiate the

identity of the accused. It is needless to say that in the

absence of the identification parade, it cannot be said that the

accused was driving the vehicle which caused accident. The

findings of the Court below in recording the conviction in the

absence of evidence in respect of identity of accused appear to

be perverse and illegal. Therefore, the finding of the Court

below in recording the conviction is unsustainable and the same

is liable to be set aside.

12. In the light of the observation made above, the

points which arose for consideration are answered as follows:-

NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

Point No.(i) - In the 'negative'

Point No.(ii) - In the 'affirmative'

13. Hence, I proceed to pass the following:

ORDER

i) The Criminal Revision Petition is hereby allowed.

ii) The judgment of conviction and order of

sentence dated 24.06.2015 in C.C.No.849/2010 on the

file of the Principal Civil Judge and J.M.F.C., Sankeshwar

and its confirmation judgment and order dated

02.11.2016 in Crl.A.No.90/2015 on the file of the VII

Additional District and Sessions Judge, Belagavi at

Chikodi, are set aside

iii) The petitioner / accused is acquitted for the

offences under Sections 279, 337, 338 and 304-A of IPC

and Sections 134 r/w 187 of Motor Vehicle Act.

iv) The bail bond executed, if any, stands

cancelled.

v) The assistance rendered by the learned Amicus

Curiae is appreciated. The same is placed on record. The

Legal Services Authority is directed to pay remuneration

of Rs.3,000/- (Rupees Three Thousand only) to the

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NC: 2023:KHC-D:13337 CRL.RP No. 100002 of 2017

learned Amicus Curiae on production of copy of this

judgment.

Sd/-

JUDGE

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