Sri. Raghu vs State By Holenarasipura Town ...
2023 Latest Caselaw 6582 Kant

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                                    CRL.RP No. 1186 of 2019


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1186 OF 2019
BETWEEN:
SRI RAGHU
S/O DEVEGOWDA
AGED ABOUT 29 YEARS
MOODALAHIPPE VILLAGE KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DIST - 573 211.

                                               ...PETITIONER
(BY SRI. C R GOPALASWAMY, SR. COUNSEL A/W
    SRI. B H SHAMANNA, ADVOCATE)

AND:
STATE BY HOLENARASIPURA TOWN POLICE
HOLENARASIPURA, HASSAN DIST
REPT BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING, BANGALORE

                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE IMPUNGED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 10/08/2017
PASSED IN C.C.NO.174/2011 BY THE CIVIL JUDGE AND JMFC,
HOLENARASIPURA, AND JUDGMENT DATED 16/07/2019
PASSED IN CRL.A.NO.153/2017 BY THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AT HASSAN AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 10.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                              CRL.RP No. 1186 of 2019


                                 ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 10.08.2017 in C.C.No.174/2011 on the

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

confirmation judgment and order dated 16.07.2019 in

Crl.A.No.153/2017 on the file of the Principal District and

Sessions Judge at Hassan, 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

under Sections 66 r/w 192-A, 134(a) and (b) r/w 187 of Indian

Motor Vehicle Act (for short 'IMV Act').

Brief facts of the case are as under:

2. It is the case of the prosecution that, on

14.05.2010 at about 9.45 a.m., on Holenarasipura-

Hariharapura Road near High School of Bagevalu Village, it is

stated that, the petitioner drove the Appe Passenger Auto

Rickshaw bearing its registration No.KA-18-A-1058 in a rash

and negligent manner, resultantly, the said Auto got flipped

and the passengers sustained injuries. One of the inmates

namely, Karigowda died in the said accident. A complaint came

CRL.RP No. 1186 of 2019

to be registered against the driver of the said Auto. The

respondent police have registered a case in Crime No.111/2010

for the offences punishable under Sections 279, 337, and 304-A

of IPC and Sections 66 r/w 192-A, 134(a) and (b) r/w 187 of

the Indian Motor Vehicle Act. The respondent/police after

conducting the investigation, submitted the charge sheet.

3. To prove the case of the prosecution, the

prosecution examined, in all, 17 witnesses as PWs.1 to 17 and

got marked 29 documents as Exhibits P1 to P29. On the other

hand, the accused has not led any evidence nor marked any

documents on his behalf. The Trial Court after appreciating the

oral and documentary evidence on record, convicted the

petitioner for the offences stated supra. Being aggrieved by

the same, the petitioner preferred an appeal before the

Appellate Court, and the Appellate Court confirmed the

judgment of conviction rendered by the Trial Court. Being

aggrieved by the same, the petitioner has preferred this

revision petition seeking to set aside the concurrent findings.

4. Heard Shri C.R. Gopalaswamy, learned Senior

Counsel appearing on behalf of Shri B.H.Shamanna, learned

counsel for the petitioner, and Shri Rahul Rai K, learned High

Court Government Pleader for the respondent - State.

CRL.RP No. 1186 of 2019

5. It is the submission of learned Senior Counsel for

the petitioner that, the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court require to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

6. It is further submitted that, although the witnesses

namely PWs.1 to 4, 6, 7, 9, and 16 stated to have traveled in

the said Auto Rickshaw as inmates, no documents have been

produced by the witnesses nor any independent witnesses are

examined to show that, they are the passengers of the said

Auto. Even assuming that they are the passengers of the said

Auto are true, their evidence did not indicate that the petitioner

was driving the said Auto in a rash and negligent manner and

the Auto got flipped because of its high speed and rash and

negligent driving of the driver.

7. It is further submitted that even assuming that the

vehicle was moving at high speed, in the absence of rashness

and negligence, the driver of the said Auto cannot be convicted

for the offence under Section 279 of IPC. To substantiate the

said contention, the learned Senior Counsel relied on the

CRL.RP No. 1186 of 2019

judgment of the Hon'ble Supreme Court in the case of STATE

OF KARNATAKA v. SATISH1

8. It is further submitted that the inconsistency in the

evidence of PWs 1 and 2 for the identity of the Auto has not

been considered by the Trial Court and the Appellate Court.

PW.1 says in his evidence that the Auto which he was traveling

was a passenger Auto, whereas PW.2 stated that, it is a

luggage Auto. The rest of the witnesses cleverly stated that

they were traveling in the Auto. Even assuming that the

capacity of the Auto to carry the passengers is five, 13

passengers traveling in the said Auto appears to be

unbelievable and cannot be acceptable. The Courts below

failed to consider the evidence both oral and documentary

properly and recorded the conviction appears to be erroneous

and illegal. Therefore, the same is liable to be set aside.

Making such a submission, the learned Senior Counsel prays to

allow the revision petition.

9. Per contra, learned High Court Government Pleader

(for short 'HCGP') justified the concurrent findings and

submitted that the evidence of injured witnesses who are the

(1998) 8 SCC 493

CRL.RP No. 1186 of 2019

inmates of the said Auto have been examined as PWs.1, 2, 3,

4, 6, 7, 9 and 16 and they are consistent in their evidence

regarding high speed, rash and negligent manner in which the

petitioner was driving the said offending vehicle.

10. It is further submitted that all the witnesses are

consistent in identifying the petitioner as the driver of the said

Auto and they have stated that, due to the high speed of the

driver of the said Auto, the Auto got flipped and one of the

inmates died and several others have sustained injuries. The

Trial Court and the Appellate Court consistently held that the

petitioner is found guilty of the offences under Sections 279,

337, and 304-A of IPC and Sections 66 r/w 192-A, 134(a) and

(b) r/w 187 of Indian Motor Vehicle Act. Therefore,

interference with the well-reasoned order passed by the Courts

below may not be warranted. Making such a submission, the

learned HCGP prays to dismiss the petition.

11. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

CRL.RP No. 1186 of 2019

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offences under Sections 279, 337 and 304-

A of IPC and under Sections 66 r/w 192-A, 134(a)

and (b) r/w 187 of IMV Act are sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

12. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

13. On careful reading of the facts of the case, it

appears that the petitioner being the driver of the Auto stated

to have driven the said Auto in a rash and negligent manner to

endanger the human life and got the Auto flipped. In the said

accident, some of the inmates sustained injuries and one of the

inmates died.

CRL.RP No. 1186 of 2019

14. PW.1 deposes that, he was traveling in the said

Auto on the date of the accident, and the petitioner was driving

the said Auto. According to him, it was a passenger Auto.

PW.2 deposes that, he was also a passenger of the said Auto,

he states that the petitioner was driving the said Auto at high

speed, and resultantly, it got flipped and several passengers

sustained injuries. According to him, the said Auto is a luggage

Auto. PW.3 admitted in his cross-examination that, there were

8 to 10 members in the said Auto, however, none of the

independent witnesses have been examined to prove that, 13

passengers were traveling in the Auto.

15. Similarly, PW.6 stated to be the inmate of the said

Auto stated that she did not know what happened on that day

and who was driving the said vehicle. The prosecution treated

PW.6 as hostile and cross-examined PW.6, nothing has been

elicited to support the case of the prosecution. PW.7 stated to

be the passenger, not state about the rashness and negligent

driving of the vehicle. PW.9 also stated to be the inmate of the

said vehicle, has stated that, the vehicle was moving at high

speed, resultantly, it got turtled and she also sustained injuries

in the said accident. PW.10 being the owner of the said Auto,

has stated that the petitioner was the driver of the said Auto.

CRL.RP No. 1186 of 2019

However, nothing has been produced by him to show that, the

petitioner was the driver of his Auto.

16. Be that as it may, on careful reading of the

evidence of all the witnesses, it appears that, none of the

witnesses have stated about rashness and negligent driving of

the vehicle.

17. On careful reading of the evidence of all the

witnesses, it appears that the driver of the Auto was driving the

said Auto at a high speed, however, none of the witnesses have

stated about the rashness and negligent driving. There are

some contradictions in the evidence of witnesses. PW.1 says

the auto in which he was traveling, was a passenger Auto,

whereas PW.2 says, it is a luggage Auto. On thorough reading

of the evidence of all the witnesses, creates doubt as to

whether the witnesses are the passengers in the said Auto or

not. Even assuming that they were traveling in the Auto It was

beyond its capacity.

18. Now, it is relevant to refer to the judgment of the

Hon'ble Supreme Court in the case of STATE OF KARNATAKA v.

SATISH, paragraph No.4 reads as under:

"Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or

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CRL.RP No. 1186 of 2019

"rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

On careful reading of the above dictum of the Hon'ble Supreme

Court, it makes it clear that merely the auto driven at high

speed cannot be construed that it was driven in a rash and

negligent manner. when the witnesses have not supported the

case of the prosecution about the rashness and negligence

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CRL.RP No. 1186 of 2019

driving of the vehicle, a conviction for the offence under Section

279 of IPC cannot be recorded. In a case, a conviction is

recorded, it would not be sustained.

19. Similarly, the death of Karigowda in the alleged

accident is also doubtful. Therefore, it can be inferred from the

evidence of all the witnesses and documents available on

record that the prosecution has failed to prove the case beyond

all reasonable doubt. However, the Courts below failed to

appreciate the evidence properly and recorded the conviction.

Therefore, the order of conviction is required to be set aside.

20. In the light of the observations made above, the

points that arose for my consideration are answered as under:-

      Point No.(i)        - "Negative"

      Point No.(ii)       - "Affirmative"

21. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

      (ii)      The   judgment     of    conviction   and   order   of

                sentence     dated       10.08.2017     passed      in

C.C.No.174/2011 by the Court of Civil Judge and

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CRL.RP No. 1186 of 2019

J.M.F.C., Holenarasipura and the judgment and

order dated 16.07.2019 passed in

Crl.A.No.153/2017 by the Court of Principal

District and Sessions Judge at Hassan, are set

aside.

(iii) The petitioner is acquitted for the offences under

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

Sections 66 r/w 192-A, 134(a) and (b) r/w 187

of IMV Act.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

UN