Karnataka High Court
K B Mallikarjuna Swamy vs State Of Karnataka By on 2 February, 2024
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CRL.RP No. 655 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 655 OF 2022
BETWEEN:
K B MALLIKARJUNA SWAMY
AGED ABOUT 42 YEARS
S/O K B BASAVANNA
R/AT NO. 369, 1ST BLOCK
RAMABAINAGAR
MYSORE - 570 008.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA
BY K.R. TRAFFIC POLICE STATION
MYSORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
Digitally
signed by ...RESPONDENT
SUDHA S
(BY SRI. RAHUL RAI K, HCGP)
Location:
HIGH
COURT OF THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
KARNATAKA TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 3.3.2020 MADE IN C.C.NO. 435/2012 BY THE COURT
OF III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, MYSORE AND THE JUDGMENT AND ORDER
DATED 09.03.2021 MADE IN CRL. APPL. NO. 109/2020 BY THE
III ADDITIONAL SESSIONS JUDGE, MYSORE.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 655 of 2022
ORDER
1. This Criminal Revision Petition is filed by the petitioner,
being aggrieved by the judgment of conviction and order
of sentence dated 03.03.2020 in C.C.No.435/2012 on the
file of the Court of III Additional Senior Civil Judge and
Chief Judicial Magistrate at Mysuru and its confirmation
judgment and order dated 09.03.2021 in
Crl.A.No.109/2020 on the file of the Court of III
Additional Sessions Judge, Mysuru, has filed this revision
petition 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, 304-A of Indian Penal Code (for short 'IPC')
and Section 134(a) and (b) r/w Section 187 of Indian
Motor Vehicles Act, 1988 (for short "Act").
2. The petitioner is the accused before the Trial Court and
appellant before the Appellate Court.
Brief facts of the case:
3. It is the case of the prosecution that on 03.07.2010 at
about 21.15 hours at Kuvempunagar Traffic jurisdiction in
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Srirampura Ring Road, opposite to Jayaram Cement shop,
the petitioner herein being a driver of the truck bearing
its registration No.KA.02.A.8958 driven in a rash and
negligent manner from East to West and dashed to the
motor cycle bearing its registration No.KA.09.E.7983.
Consequently, the rider of the motor cycle and pillion
rider have sustained injuries. Due to the said injuries,
both the rider and pillion rider have died. Hence, a case
came to be registered against the driver of the offending
vehicle in Crime No.142/2010 for the above said offences
and after conducting investigation, submitted the charge
sheet.
4. To prove the case of the prosecution, the prosecution
examined nine witnesses as PWs.1 to 9 and got marked
19 documents as Ex.P1 to P19. After appreciating the
oral and documentary evidence on record, the Trial Court
recorded the conviction. On appeal, the Appellate Court
confirmed the judgment of conviction.
5. Heard Sri.Nishit Kumar Shetty, learned counsel for the
petitioner and Sri.Rahul Rai.K, learned HCGP for the
respondent - State.
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6. It is the submission of learned counsel for the petitioner
that the concurrent findings recorded by the Courts below
in recording the conviction is opposed to the facts and
law. Therefore, the judgment of the Courts below are
perverse and illegal and the same may be liable to be set
aside.
7. It is further submitted that PWs.1 and 2 are said to be
material witnesses to the accident, however, they have
not seen the petitioner at the spot as the driver of the
alleged offending vehicle and even PWs.1 and 2 did not
state the registration number of the vehicle. In the
absence of identification of the driver of the offending
vehicle, conviction ought not to have been recorded,
however, the Courts below misconstrued the facts and
misread the evidence of PWs.1 and 2 and passed the
impugned judgments which are required to be set aside.
Making such submission, the learned counsel for the
petitioner prays to allow the petition.
8. Per contra, Sri.Rahul Rai, learned HCGP for the
respondent-State vehemently justified the concurrent
findings and submitted that PW.2 categorically admitted
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and stated that he has seen the driver of the offending
vehicle and identified the petitioner before the Trial Court.
The identification has not been disputed. The evidence of
PWs.1 and 2 clearly substantiated the case of the
prosecution with regard to accident which occurred and
also established the identification of the petitioner who
was driving the vehicle as on the date of accident.
9. It is further submitted that both the Courts have
concurrently held that the petitioner herein found guilty of
the offences stated supra and it is not necessary to
interfere with the concurrent findings as a matter of
routine by the Revisional Court. Making such submission,
the learned HCGP prays to dismiss the petition.
10. Having heard the learned counsel for the respective
parties and also perused the findings of the Courts below
in recording the conviction, it is relevant to have a
cursory look upon the evidence of all the witnesses to find
out as to whether any error committed by the Courts
below in recording the conviction.
11. PWs.1 and 2 said to have parked their vehicle near Ring
Road and went to have a cup of tea. By the time, they
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have noticed that a lorry dashed the motor cycle,
consequently, the rider and the pillion rider have
sustained injuries and thereafter, they have learnt that
both have died in the said accident. Further, they stated
that they have noticed an identification mark of the lorry
wherein an English alphabet which was written on the
rare side of the lorry as "MT".
12. PW.1 has not stated anything about the identification of
the driver of the lorry. However, PW.2 in his evidence
has stated that he has seen the driver who caused
accident and killed two persons. The evidence of these
two witnesses is contrary to each other in respect of
identification of the driver of the vehicle.
13. PW.3 is the complainant, said to have written a complaint
as per Ex.P1. The said complaint came to be registered
on 03.07.2010. On plain reading of the complaint, it
contains neither the registration number of the lorry nor
identification of the petitioner.
14. On further reading of the documents which is marked as
Exs.P11 and P12 disclosed that the petitioner was driving
the said vehicle as on the date of alleged incident. Mere
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mentioning that the petitioner was driving the said vehicle
as on the date of alleged incident is not sufficient to prove
the case in the absence of evidence regarding
entrustment of the said vehicle to the petitioner. There is
no evidence regarding appointment of the petitioner as a
driver of the said vehicle.
15. It is also needless to say that none of the witnesses have
identified the petitioner herein. It is also doubtful that
how and in which manner, the Investigating Officer
collected the evidence to show that the said vehicle was
involved in the accident. Unless, there is a concrete
evidence to show that the petitioner was driving the said
vehicle and caused accident, it cannot be said that the
petitioner was found guilty of the offence. This aspect
should have been considered by the Courts below while
appreciating the evidence on record.
16. Having failed to consider the same, in my opinion both
the Courts below have committed error in appreciating
the evidence on record. Therefore, the findings of both
the Courts have to be set aside.
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17. Therefore, I proceed to pass the following:
ORDER
(i) The criminal revision petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 09.03.2020 passed in
C.C.No.435/2012 by the Court of III Additional
Senior Civil Judge and Chief Judicial Magistrate
at Mysuru and the judgment and order dated
09.03.2021 passed in Crl.A. No.109/2020 by the
Court of III Additional Sessions Judge, Mysuru
are set aside.
(iii) The petitioner is acquitted for the offences under
Sections 279, 304-A of IPC and Section 134(a)
and (b) r/w Section 187 of Inidan Motor Vehicles
Act, 1988.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
UN
