Karnataka High Court
Rizwan vs The State Of Karnataka on 27 October, 2023
Bench: H.P.Sandesh
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CRL.RP No. 1249 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION No.1249 OF 2016
BETWEEN:
1. RIZWAN
S/O SHEKABBA,
AGED ABOUT 26 YEARS,
R/O H.NO.2-242/1
BANGALEGUDDE HOUSE,
GURUPURA POST,
MUOOR VILLAGE,
MANGALURU-575 001.
...PETITIONER
(BY SRI R.B.DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY BAJPE POLICE STATION,
MANGALURU-575 001
Digitally signed
by SHARANYA T REPRESENTED BY STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF BENGALURU-560 001.
KARNATAKA
...RESPONDENT
(BY SRI K.NAGESHWARAPPA, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE PRL.
SESSIONS JUDGE, D.K., MANGALORE DATED 05.07.2016 IN
CLR.A.NO.229/2015 ON THE FILE OF THE II JMFC, MANGALORE
DATED 07.09.2015 IN C.C.NO.1202/2014.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard the petitioner's counsel and also the counsel
appearing for the State.
2. The factual matrix of the case of the prosecution
before the Trial Court that on 06.12.2013 at about 3.00 p.m.
on State Highway-169 (Mangalore-Moodubidre), passing in
front of Gurupura Satyadevatha Temple, Muloor Village, the
petitioner was riding motorcycle bearing No.KA-19-ED-3386
towards Moodubidre in a rash and negligent manner and
dashed against the pedestrian i.e. victim by name Srinivas
Shenoy who received the fatal injuries and ultimately he died
on 7.12.2013.
3. The accused appeared and denied the accusation
and hence, the prosecution examined 10 witnesses as PWs.1 to
10. Out of that prosecution relies upon the evidence of PWs.1
to 3 as eyewitnesses to the incident and PW4- is M.V.
Inspector, PWs.5 and 6 are witnesses to spot mahazar (Ex.P.2),
P.W.9 is the owner of alleged offending motorcycle and PWs.7,
8 and 10 are the Investigating Officers.
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4. The Trial Court having considered both oral and
documentary evidence comes to the conclusion that this
petitioner has caused the accident, as a result the victim
succumbed to the fatal injuries accepting the evidence of PW1
as well as pW9 and also though PWs.2 and 3 partly turned
hostile, considering the evidence with regard to an accident is
concerned and they are the witnesses to the accident convicted
the petitioner for the offence under Section 279 of IPC and
sentenced him for six months and imposed fine of Rs.1,000/-.
He was also imprisoned for a period of one yar for the offence
punishable under Section 304A of IPC and fine of Rs.5,000/-
and in default 30 days in respect of the offence punishable
under Section 279 of IPC and two months in respect of the
offence punishable under Section 304 of IPC.
5. Being aggrieved by the said judgment of conviction,
an appeal is filed in Criminal Appeal No.229/2015. The
appellate Court also having considered the oral and
documentary evidence available on record particularly the
evidence of PWs.1 to 3 and P.W.9 the owner of the vehicle and
also considering the document Ex.P12, since PW9 admits the
signature available at Ex.P12, wherein the name of the rider is
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mentioned as Rizwan, though he says that the vehicle was
given to one Izaz and in terms of Ex.P12 he has mentioned the
name of the petitioner. All these materials are considered by
the First Appellate Court and confirmed the judgment of the
Trial Court. Hence, this revision petition is filed before the
Court.
6. The main contention of the counsel appearing for
the petitioner before this Court that the judgment of conviction
passed by the Trial Court and confirmation made by the First
Appellate Court is against the records. The evidence of PW1
cannot be believed since he is a interested witness. Inspite of
the same is elicited in his evidence, the same has been relied
upon and also there was a delay of one day in lodging the
complaint and no proper explanation is given for delay. The
counsel also would submit that the evidence of PWs.2 and 3
also very clear that though they contend that they were
present at the place of accident, when the accident was
occurred, but one of them in their evidence say that PW1 was
also present and he took the injured to the hospital. The
counsel also would vehemently contend that though PW1
claims that he took the injured to the hospital and no intimation
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was given to the police and also counsel would submit that the
hospital records are also not seized and placed before the Trial
Court and hence both the Trial Court as well as the First
Appellate Court committed an error in relying upon the
evidence of the prosecution. The counsel also vehemently
contend that even though PW9 evidence is concerned and he
categorically says that one Izaz has taken the vehicle, not the
Rizwan and Rizwan is the petitioner and he has not mentioned
the name of Rizwan. Hence, there is a contradictions in the
evidence of prosecution witnesses and hence, this Court has to
exercise its revisional power.
7. Per contra, the counsel appearing for the State
would submit that the prosecution mainly relies upon the
eyewitnesses i.e. PWs.1 to 3 and though PWs.2 and 3 not fully
supported, but they are supported the case of the prosecution
with regard to causing of accident. Though PW2 says that he
has not seen the accused, but he spoke with regard to causing
of the accident. PW3 also in his evidence says that he had
witnessed the accident and as a result of causing accident the
injured was thrown out and he lost conscious and immediately
he was shifted to the hospital and the answer elicited from the
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mouth of PWs.2 and 3 also minor discrepancies and not goes to
the very route of the case of the prosecution. The counsel also
would submit that PW9 is the owner of the vehicle and he did
not dispute the accident and also handing over the vehicle, he
says that he has given the vehicle to one Izaz, but in terms of
document Ex.P12 which has been given by him categorically
mentioned the name of the petitioner herein and also with
regard to the delay is concerned, explanation is given by PW1
in his evidence and also the document Ex.P1-complaint also
very clear that injured was taken to the hospital and he was
taking care of the injured in the hospital and hence, there was
a delay in lodging the complaint and these materials are taken
note of by the Trial Court and IMV report is also marked as
Ex.P8. The same is in respect of the vehicle involved in the
accident and there are scratches are observed on head light
doom, knee guard and handle bar and these materials also
supports the case of the prosecution and hence, not a case for
exercise the revisional powers and revisional power is very
limited and only if material has not considered and if it suffers
from any legality and its correctness, then only the Court can
invoke the jurisdiction of revision.
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8. The counsel also vehemently contend that Ex.P10 is
very clear wherein place of accident is also shown i.e. on the
left side of the road and the same is also not disputed and
hence now this Court cannot exercise the revisional power and
Ex.P12 is also very clear that name of Rizwan is mentioned in
the document dated 10.12.2013 given by PW9 himself though
he denied that he has not given the letter Ex.P12, but in the
cross examination he admits his signature available in Ex.P12.
These are the materials were taken note of by the Trial Court
as well as the appellate Court and hence no grounds are made
out to exercise the revisional power.
9. Having heard the revision petitioner's counsel and
also the counsel appearing for the State and also considering
the material on record the points that would arise for
consideration of this Court are:
(i) whether both the Trial Court as well as the First
Appellate Court committed an error in
appreciating the evidence and whether the
orders suffers from legality and its correctness?
(ii) Whether it requires interference by invoking
revisional jurisdiction?
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Point Nos.1 & 2:
10. Having heard the petitioner's counsel and also the
counsel appearing for the State and also considering both oral
and documentary evidence available on record the prosecution
mainly relies upon the evidence of PWs.1 to 3. PW1 in his
evidence gives the evidence in terms of accusation made in the
charge sheet and says that the motorcyclist came in a rash and
negligent manner and dashed against the deceased who was
proceeding by walk in the same direction on the left side of the
road. It is also his evidence that rider of the motorcycle also
came and assisted to shift the injured to the hospital and he
has suffered minor injuries, but the deceased was unconscious
and he was shifted to KMC hospital in a car and he succumbed
to the injuries on 7.12.2013 on the very next day and he was
taking care of him.
11. Having perused the complaint Ex.P1 also, a very
same averment made by the complainant i.e. PW1 and he also
given an explanation in Ex.P1 that immediately injured was
taken to the hospital and he was taking care of the injured in
the hospital and hence there was a delay and the same is also
taken note of by the Trial Court while appreciating the evidence
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of PW1 in paragraph No.17. No doubt in the cross examination
it is elicited that both of them were residing in the same house
and also he is a relative and merely because he is a relative
and his evidence cannot be discarded in toto. But the fact that
he has categorically stated that immediately he took the injured
to the hospital and no doubt there is a force in the contention
of the petitioner's counsel that no hospital records are produced
before the Court and having perused the records available on
record, the hospital authority has given intimation, but the
same is not marked before the Trial Court and also police made
an endorsement on that document that injured was not in a
position to make any statement and only case has been
registered based on the complaint of Ex.P1. But during the
cross examination of PWs.2 and 3 who claims that they are also
eyewitnesses to the incident, PW2 though speaks about that he
witnessed the accident, but in the chief evidence he says that
he cannot tell on whose negligence an accident has occurred.
But he claims that he was there at the shop when an accident
was occurred. But immediately he rushed to the spot and he
found the injured was at the spot and he was getting blood
from his nose and he has also sustained injury to the head,
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hand and also on the leg and was not in a position to speak.
Though he says that he cannot tell on whose negligence an
accident is occurred, but in the cross examination he says that
he was having acquaintance with accused prior to the accident
and also when the suggestion was made that he has not
witnessed the accident and the same was denied, however, in
the cross examination he admits that he was in the shop and
he was busy in the shop since customers were there. The total
discarding of the evidence of PW2 cannot be accepted as
contended by the counsel for the petitioner that he was not the
eyewitness to the incident.
12. The other witness is PW3. In his evidence he says
that he was waiting near Gurupura Satyadevatha Temple for
his friend and at that time an accident was occurred. But on the
chief evidence he says that he cannot tell who was the rider,
but categorically says that the motorcycle No.KA.19 ED.3386
and name of rider of the motorcycle is Rizwan and he came to
know about the same. No doubt in the cross examination when
he was turned hostile partly, when he was cross examined by
the learned Public Prosecutor and when suggestion was made
that he identified the accused and also found the accused in the
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police station and the same was denied. He also admits that
near the place of accident there are Temple, Masjid and the
same is a busy place and he did not observe whether rider
suffers injuries or not. But PW1 says that rider has sustained
minor injuries, but PW3 says that he did not notice whether the
rider had sustained injuries or not. And these are the
discrepancies and only minor discrepancies and not goes to the
very route of the case and all the witnesses PWs.1 to 3 speaks
about the accident and PW3 also speaks about this petitioner
was the rider and though PW9 who is the owner of the vehicle
deposed that he has given the vehicle to Izaz, but in the letter
which he had given he specifically mentioned the name of this
petitioner as the rider and no doubt at the first instance he
denies the very document of Ex.P12, but when the document
Ex.P12 was confronted to PW9 he admits the same. And all
these aspects were taken note of by the Trial Court as well as
the appellate Court and Ex.P8 is with regard to the IMV report
and the same also substantiate that there was damages to the
vehicle involved in the accident. When such material available
on record, I do not find any force in the contention of the
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petitioner's counsel that prosecution has not proved the case
against the petitioner herein.
13. PW1 also given explanation with regard to the delay
in lodging the complaint since the injured was immediately
shifted to the KMC hospital, Mangalore and he was along with
him. The main contention of the petitioner's counsel that PWs.2
and 3 were not spoken about the presence of PW1 and non
mentioning the name of PW1 who was present at the spot
cannot be a ground to disbelieve the case of the prosecution
and having considered the material available on record, I do
not find any error committed by the Trial Court as well as the
First Appellate Court in appreciating both oral and documentary
evidence to invoke revisional jurisdiction.
14. No doubt, the hospital records are not secured by
the Investigating Officer and the same is not marked, but the
fact that accident was occurred and the injured was taken to
the hospital and the vehicle involved in the accident is also
seized and subjected for IMV examination and other material
also discloses that this petitioner was the rider at the time of
accident, even in terms of the evidence of PW9 owner of vehicle
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says he has given vehicle to Izaz, but Ex.P12 is clear that the
petitioner was the rider. Hence, I do not find any ground to
interfere with the finding of the Trial Court as well as the First
Appellate Court.
15. However, having considered the material on record,
the injured was proceeding on the left side of the road and the
accident was also occurred on the left side of the road and spot
sketch which is produced before this Court also discloses that
an accident was occurred on the left side of the tar road and
there was a space on the left side of the road to victim to
proceed. When such being the case, imposing of sentence of
one year for the offence punishable under Section 304A of IPC
appears to be on the higher side and the Appellate Court also
not taken note of the said fact into consideration and it is an
accident not an intentional act and the same was occurred
while proceeding on the road. When such being the case, it is
appropriate to reduce the sentence from one year to six
months and the fine imposed by the Trial Court is unaltered.
16. However, both the Trial Court as well as the
revisional Court also fails to take note of the fact that when the
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offence 279 was invoked and serious offence 304A is invoked,
both the Courts lost sight of the fact that the ingredients of
offence under Section 279 merges with major offence of 304A
of IPC and there was no need to convict and sentence for the
offence punishable under Section 279 of IPC separately. Hence,
the sentence in respect of 279 and conviction is requires to be
set aside and answered the points accordingly.
17. In view of the discussions made above, I pass the
following:
ORDER
Revision petition is allowed in part.
The judgment of conviction and sentence for the offence
punishable under Section 279 of IPC is set aside. However,
conviction for the offence punishable under Section 304A of IPC
is confirmed and sentence is reduced from one year to six
months and fine is unaltered.
Sd/-
JUDGE
AP
