Karnataka High Court
Sri Akshay vs The State Of Karnataka on 5 April, 2024
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CRL.RP No. 302 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 302 OF 2022
BETWEEN:
SRI AKSHAY
S/O RAGHUCHANDRA BALLAL
AGED ABOUT 37 YEARS
R/O "MUDODUGUTHU HOUSE"
THODAR VILLAGE, MANGALORE TALUK
DAKSHINA KANNADA DISTRICT - 574 225.
...PETITIONER
(BY SRI. AMRUTHESH C, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY PSI, MANIPAL POLICE STATION
MANIPAL, UDUPI DISTRICT - 576 104.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DR. B.R. AMBEDKAR VEEDHI
BENGALURU - 560 001.
...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 JUDGMNET DATED 20.12.2021
PASSED IN CRL.A.NO.65/2016 BY THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE, UDUPI AND SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDR OF SENTENCE DATED 23.07.2016
PASSED IN C.C.NO.2322/2012 BY THE II ADDITIONAL CIVIL
JUDGE AND JMFC, UDUPI AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 30.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 302 of 2022
ORDER
1. This revision petition is filed by the petitioner being
aggrieved by the judgment of conviction and order of sentence
dated 23.07.2016 in C.C. No.2322/2012 on the file of the II
Additional Civil Judge and JMFC, Udupi and its confirmation
order dated 20.12.2021 passed in Crl.A No.65/2016 on the file
of the Principal District and Sessions Judge, Udupi, by which
both the Courts have concurrently held that the petitioner
herein is guilty for the offences punishable under Sections 279,
337, 304-A of Indian Penal Code (for short 'IPC') and Sections
134(a) and (b) r/w Section 187 of Indian Motor Vehicle Act (for
short 'IMV Act').
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience
Brief facts of the case:
3. It is the case of the prosecution that on
14.10.2012, PW.1 was proceeding on his motorcycle to his
in-laws' house along with his wife and daughter. He was riding
the said vehicle on the left side of the road and the vehicle was
moving from Manipal towards Udupi. At about 9.30 a.m., a
tempo bearing No.KA-19-C-8740 came from behind and dashed
to the hind side of the motorcycle, consequently, PW.1 fell
down from the motorcycle and suffered injuries. His wife and
daughter, were thrown out of the motorcycle, his wife died at
the spot and his daughter died in the hospital on 19.10.2012.
Based on the information given by PW.1, the FIR came to be
registered by the jurisdictional police in Crime No.214/2012 for
the offences stated supra. The respondent police after
conducting investigation, submitted the charge sheet.
4. To prove the case of the prosecution, the
prosecution examined 6 witnesses as PW.1 to PW.6 and got
marked 24 documents as Exs.P1 to P24. After appreciating
both oral and documentary evidence on record, both the Courts
have concurrently held that the petitioner / accused is found
guilty of the offences stated supra. Hence, the petitioner is
before this Court.
5. Heard Sri.Amruthesh C., learned counsel for the
petitioner and Sri.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 of the Courts below in
convicting the accused are perverse and illegal and therefore,
the same is required to be set aside.
6(i) It is further submitted that the evidence of PWs.1
and 2 regarding the place of accident is distinct from the sketch
which is marked as Ex.P8. The accident itself is doubtful. In
spite of several contradictions and omissions in the evidence of
PWs.1 and 2, the Trial Court recorded the conviction without
appreciating their evidence properly, as a result of which, the
impugned judgments are passed. Therefore, the said
judgments are required to be set aside. Making such
submission, the learned counsel for the petitioner prays to
allow the petition.
7. Per contra, the learned High Court Government
Pleader ('HCGP' for short) for the respondent - State
vehemently justified the concurrent findings of the Courts
below in convicting the petitioner herein and submitted that the
evidence of PWs.1 and 2 who are the eyewitnesses to the
incident are consistent in respect of rash and negligent driving
of the accused and also consistent in respect of death of wife
and daughter of PW.1. When the evidence of these two
witnesses are believable and nothing has been elicited to
discredit their evidence regarding the accident and rash and
negligent driving of the accused, it can be inferred that the
Courts below have rightly recorded the conviction by
appreciating the evidence.
7(i) It is further submitted that the evidence of PWs.1
and 2 is consistent in respect of sketch and also other related
materials on record. Viewing from any angle, the findings of
the Courts below are appropriate and relevant and therefore, it
may not be appropriate or proper to interfere with the said
findings. Making such submission, the learned HCGP for the
respondent - State prays to dismiss the petition.
8. After having heard the learned counsel for the
respective parties and also perused the findings of the Courts
below, it is appropriate to have a cursory look upon the
evidence of all the witnesses to ascertain as to whether any
illegality or perversity is noticed in the findings of the Courts
below.
9. PW.1 is stated to be the rider of the motorcycle
which met with an accident. According to him, on 14.10.2012,
he was proceeding to his in-laws' house along with his wife and
daughter. When he was proceeding on the left side of the road,
a tempo came from behind of his motorcycle and dashed to the
hind side of the motorcycle. Consequently, the motorcycle fell
down and the rider of the motorcycle sustained grievous
injuries, the wife died in the spot and the daughter died in the
hospital on 19.10.2012. In his evidence, he has admitted that
he did not see who was driving the tempo, however, on
15.10.2012, he stated to have learnt that the tempo was being
driven by Akshay.
9(i) PW.2 is an eyewitness to the incident. He has
stated in his evidence that he was also going on his motorcycle.
When he was proceeding towards Manipal, he was stated to
have witnessed the accident, however, he has stated that the
driver of the tempo which caused the accident to the
motorcycle did not stop the said vehicle and fled away from the
spot along with his vehicle. According to him, he did not see
the driver of the vehicle.
9(ii) PWs.3 and 4 are the witnesses to the spot mahazar
which is marked as Ex.P2. PW.3 has supported the case of the
prosecution. However, PW.4 has turned hostile.
9(iii) PW.5 who was working as the Regional Transport
Officer, stated to have conducted inspection of the vehicles and
submitted his report as per Ex.P15.
9(iv) PWs.6 and 7 are the Investigating Officers stated to
have conducted the investigation and submitted the charge
sheet.
10. In the present case, on careful reading of the
evidence of PWs.1 and 2, it appears that both PWs.1 and 2
have not identified the driver of the vehicle. The Investigating
Officer neither examined owner of the vehicle nor explained as
to how he has learnt that the accused was driving the said
vehicle. In the absence of evidence regarding identity of the
driver of the vehicle, conviction should not have been recorded.
11. It is needless to say that in a criminal case,
prosecution has to prove the case beyond reasonable doubt
regarding not only the incident, but also the person who
committed the offence. Mere proof of accident is not sufficient
to record the conviction unless there is proof regarding the
person who committed such accident.
12. In the present case, both the Courts have
committed error in recording the conviction considering the
evidence of PWs.1 and 2 even though they did not identity of
the accused. Therefore, the findings of the Courts below in
recording the conviction are required to be set aside.
13. 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 23.07.2016 in C.C.No.2322/2012
on the file of the II Additional Civil Judge and
JMFC, Udupi and judgment and order dated
20.12.2021 passed in Crl.A No.65/2016 on the
file of the Principal District and Sessions Judge,
Udupi, are set aside.
(iii) The petitioner is acquitted for the offences under
Sections 279, 337 and 304-A of IPC and Sections
134(a) and (b) r/w Section 187 of IMV Act.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
Bss
