Karnataka High Court
Sri. Ansar Pasha vs State Of Karnataka on 27 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:8100
CRL.RP No. 1165 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1165 OF 2017
BETWEEN:
1. SRI ANSAR PASHA
S/O. SAB JEE SAB,
AGED ABOUT 44 YEARS,
R/AT SHAMEER MOHALLA,
MULBAGAL TOWN.
...PETITIONER
(BY SMT. POOJA KATTIMANI, AMICUS CURIAE)
AND:
1. STATE OF KARNATAKA
BY MULBAGAL POLICE STATION,
MULBAGAL TOWN, KOLAR DISTRICT,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
Digitally signed
by SHARANYA T BANGALORE-560 001.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. RAHUL PAI K., HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.06.2014
IN C.C.NO.211/2013 PASSED BY THE PRINCIPAL CIVIL JUDGE
& JMFC, MULBAGAL AT ANNEXURE-A AND TO SET ASIDE THE
ORDER DATED 03.11.2016 IN CRIMINAL APPEAL NO.44/2014
PASSED BY THE FIRST ADDITIONAL SESSIONS JUDGE, KOLAR
AT ANNEXURE-B.
THIS PETITION, COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2024:KHC:8100
CRL.RP No. 1165 of 2017
ORDER
Heard the learned counsel for the revision petitioner and
learned counsel for the respondent.
2. The case of the prosecution is that on 01.12.2012
at about 7.45 p.m., the revision petitioner has caused the
accident, who was the driver of the lorry bearing registration
No.AP-04-X-2754 and the deceased R.Gangadhar was
proceeding in motor cycle and P.Ws.1 and 2 were also
proceeding in the very same vehicle behind the lorry and
deceased was driving on the left side of road. On account of
accident, he had sustained grievous injuries to his right
forehead, both shoulders, right leg, right forehand and ankle
and died at the spot. However, the injured was taken to the
Mulbagal Hospital and it is alleged that accident has occurred
on account of negligence on the part of the accused and hence,
complaint was lodged on the very same day and the police
have investigated the matter and filed the charge-sheet against
the revision petitioner for the offence punishable under
Sections 279 and 304(A) of IPC and Section 187 of IMV Act.
NC: 2024:KHC:8100
3. The prosecution examined the witnesses as P.Ws.1
to 11 before the Trial Court and got marked the documents as
Exs.P1 to P11(a). The Trial Court having considering both oral
and documentary evidence available on record, particularly the
evidence of P.Ws.1 and 2, accepted the case of the prosecution
and convicted the accused for the offence punishable under
Sections 279 and 304(A) of IPC and Section 187 of IMV Act.
The accused was sentenced to undergo simple imprisonment
for a period of three months with fine of Rs.1,000/- for the
offence punishable under Section 279 of IPC. In default to pay
fine, the accused to undergo simple imprisonment for a period
of one month. The accused was also sentenced to undergo
simple imprisonment for a period of six months with fine of
Rs.10,000/- for the offence punishable under Section 304(A) of
IPC. In default to pay fine, the accused to undergo simple
imprisonment for a period of two months. The accused was
further sentenced to pay fine of Rs.500/- for the offence
punishable under Section 187 of IMV Act. In default to pay
fine, the accused to undergo simple imprisonment for a period
of five days. Being aggrieved by the said judgment and
sentence, an appeal was filed in Crl.A.No.44/2014 and the First
NC: 2024:KHC:8100
Appellate Court having reconsidered the evidence on record,
accepted the evidence of P.Ws.1 and 2 and dismissed the
appeal.
4. Learned counsel appearing for the revision
petitioner would vehemently contend that both the Courts
committed an error in accepting the evidence of P.Ws.1 and 2
and though the said witnesses claim that they have witnessed
the accident, they have not identified the accused persons. The
counsel also would submit that there is an inordinate delay in
sending the FIR to the Trial Court which clearly reveals that
case has been registered after two days. Learned counsel also
brought to notice of this Court the FIR, wherein there is an
endorsement that FIR was received by the Magistrate on
03.12.2012 at 11.45 a.m. and though it is contended that
complaint was given on the very same day within two hours, no
explanation with regard to the delay is concerned. Learned
counsel also brought to notice of this Court the evidence of
P.W.9 and though he claims that he received the complaint,
registered the case and sent the FIR to the Court, but has not
given any explanation with regard to the delay is concerned
and with regard to the delay, none of the witnesses have
NC: 2024:KHC:8100
spoken as to why the FIR was sent after two days. The counsel
also brought to notice of this Court the evidence of P.W.9, who
received the complaint and he categorically admits that he did
not visit the spot immediately after receipt of complaint and
also admits in the cross-examination that when he received the
complaint, he was not having information as to at whose fault,
the accident has occurred. This aspect has not been considered
by the Trial Court as well as the First Appellate Court. Hence, it
requires interference of this Court to exercise the revisional
powers.
5. Per contra, learned counsel for the respondent
would vehemently contend that both the Courts have rightly
considered the evidence of P.Ws.1 and 2, who are eye
witnesses to the incident and though they have not identified
the accused, it is their evidence that immediately after the
accident, the vehicle driver slowed down the vehicle and the
accused ran away from the spot by taking the vehicle and IMV
report also discloses that there is a dent on the front portion of
the lorry and the IMV Inspector is also examined as P.W.10
before the Court and all these aspects have been taken note by
the Trial Court and the First Appellate Court.
NC: 2024:KHC:8100
6. Having heard the learned counsel for the revision
petitioner and learned counsel for the respondent, this Court
keeping in view the contentions urged by the learned counsel
for both the parties has to examine whether this Court can
exercise the revisional jurisdiction. Having considered the said
fact into consideration, the point that would arise for
consideration of this Court are:
(1) Whether this Court can exercise the revisional
jurisdiction to reverse the findings of the Trial
Court as well as the First Appellate Court?
Point No.(1)
7. Having heard the respective counsel and also on
perusal of the material available on record, no doubt, it is the
case of the prosecution that accident has occurred on account
of negligence on the part of the revision petitioner, the accident
has occurred on 01.12.2012 at 7.45 p.m. The Prosecution relies
upon the evidence of P.Ws.1 to 11, particularly the evidence of
P.W.s.1 and 2, who are the eye witnesses to the incident. No
doubt, both of them have given the evidence that they have
witnessed the accident, it is important to note that in the cross-
examination of P.W.1, though he claims that he noted down the
NC: 2024:KHC:8100
vehicle number, his evidence is that immediately after the
accident, the vehicle was slowed down and thereafter, he did
not stop the vehicle and in the cross-examination, he says that
he had witnessed the accident at the distance of 10 to 20
meters, but he categorically admits that by that time, already
there was darkness and also claims that he noted down the
vehicle number and when suggestion was made that he did not
mention the same while giving the statement before the police,
he claims that he has stated the same.
8. It is also important to note that the evidence of
P.W.2 is also clear that the revision petitioner had caused the
accident and his evidence is also in the same line with the
evidence of P.W.1. In the cross-examination also, he says that
he did not see the vehicle number prior to the accident, but he
had seen the vehicle number after the accident and this witness
also admits that there was darkness at the time of the accident.
It is suggested that when there was darkness, he did not see
the vehicle number and the same was denied. No doubt, his
evidence is clear with regard to witnessing the accident and
there was darkness at the time of the accident, it is important
to note that Ex.P1 is clear that complaint was given within a
NC: 2024:KHC:8100
span of 2½ hours and there was endorsement by the P.W.9
that he had received the complaint at 21.45 hours on
01.12.2012 and he registered the FIR. On perusal of FIR which
is marked as Ex.P7, it is specifically mentioned that accident
has occurred at 19.45 hours i.e., 7.45 p.m. and reference is
also made in the dairy that complaint was received at 21.45
hours. On perusal of the endorsement made by the Magistrate,
it is seen that he has made an endorsement on 03.12.2012
that he received the same at 11.15 a.m.
9. It is important to note that the main witness is
P.W.9, who received the complaint and registered the case. In
his evidence, though he claims that he received the complaint
and registered the case and sent the FIR immediately, his
evidence in the cross-examination is clear that when he
received the information of about accident and the written
complaint from P.W.1, he has sent the FIR after registering the
case in Crime No.429/2012 and thereafter, he entrusted the
papers to C.W.17 in terms of Ex.P10 which is marked and his
signature is also marked as Ex.P10(a). But, in the cross-
examination, he categorically admits that after receipt of the
complaint, he had not visited the spot and he was not having
NC: 2024:KHC:8100
any information as to at whose fault, the accident has occurred.
But, when in the complaint was given on the very same day at
21.45 p.m. and the same was received by P.W.9, who
registered the case, he ought to have noted in the FIR as to at
whose fault, the accident has occurred. First of all, he did not
visit the spot after receipt of the complaint. Hence, it is clear
that they were not having any information about the accident,
since FIR was also sent after two days. Further, both P.Ws.1
and 2 say that at the time of the accident, there was darkness
and though P.W.1 says that he noted down the vehicle number
immediately, no explanation on the part of P.W.9 with regard to
the delay in sending the FIR to the Court and only on
03.12.2012 at 11.45 p.m., the FIR was sent to the concerned
Magistrate and these are the aspects which have not been
considered by the Trial Court and when law was set into
motion, it is the duty of the Investigating Officer to register the
case and send the FIR to the Court immediately and the same
has not been done. Hence, the very case of the prosecution is
doubtful with regard to the involvement of the vehicle in the
accident and evidence of P.W.9 not inspires the confidence of
the Court and the Court also cannot accept the evidence of
- 10 -
NC: 2024:KHC:8100
prosecution witnesses which is not credible to implicate the
accused in a criminal prosecution.
10. While implicating the convicting the accused, there
must be a credible evidence and when there was a delay of 2
days in sending the FIR, no doubt in Column No.10 in the FIR
new number is mentioned and it is also mentioned that the
driver of the vehicle is the accused, the FIR has not reached the
Court immediately and these factors have to be taken into
consideration. Apart from that though P.Ws.1 and 2 claim that
they are eye witnesses to the incident, to prove the fact that
the petitioner was driving the vehicle, no material is placed on
record and merely because the petitioner is the driver of the
vehicle, he cannot be convicted for the offence punishable
under Sections 279 and 304(A) of IPC and Section 187 of IMV
Act and the evidence of other witnesses also not inspires the
confidence of the Court and both the Courts have believed the
evidence of P.Ws.1 and 2 and not looked into the documentary
evidence, particularly the fact that FIR was sent after two days
of the accident. In the absence of documentary evidence to
prove that the petitioner was driving the vehicle at the time of
the accident, both the Trial Court and the First Appellate Court
- 11 -
NC: 2024:KHC:8100
committed an error in convicting the accused for the offence
punishable under Sections 279 and 304(A) of IPC and Section
187 IMV Act. Hence, it requires interference of this Court to
exercise the revisional jurisdiction and both the Courts failed to
consider both oral and documentary evidence available on
record.
11. No doubt, the First Appellate Court also while
confirming the judgment in Para No.21 of the judgment
observed that, on re-appreciation of the evidence on record,
both the oral and documentary, for the purpose of finding the
guilt on part of the accused, it reveals that P.Ws.1 and 2, being
eye witnesses to the incident have specifically deposed that the
accident occurred due to rash and negligent driving of the lorry
by the accused and after the accident, they note down the
registration number of the lorry, failed to take note of the fact
that they have not identified the accused and apart from that,
an observation is also made that P.W.1 has lodged the
complaint as per Ex.P1. No doubt, it is mentioned that accident
has occurred at 7.45 p.m., the complaint was registered at
9.15 p.m. and also made an observation that there is no
inordinate delay in lodging the complaint and the complaint
- 12 -
NC: 2024:KHC:8100
would further reveal the registration number of the lorry, but
failed to take note of the fact that FIR has reached the Court
after two days and also failed to discuss the evidence of P.W.9,
who in the cross-examination categorically admits that he did
not visit the spot after receipt of complaint and he had no
information as to at whose fault, the accident had occurred,
though registered the case. Hence, it is clear that though
complaint is dated 01.12.2012, FIR has been sent after two
days and the said fact has not been considered by the First
Appellate Court while confirming the judgment of the Trial
Court and the First Appellate Court committed an error in
dismissing the appeal.
12. In view of the discussion made above, I pass the
following:
ORDER
(i) The revision petition is allowed.
(ii) The impugned judgment of the Trial Court and the
First Appellate Court are set aside and
consequently, the revision petitioner is acquitted for
the offence punishable under Sections 279 and
304(A) of IPC and 187 of IMV Act.
- 13 -
NC: 2024:KHC:8100
(iii) The Trail Court is directed to refund the fine
amount, which is in deposit to the revision
petitioner on proper identification.
(iv) The bail bond executed by the revision petitioner is
cancelled.
(v) The Registry is directed to pay the fee of Rs.5,000/-
to the Amicus Curie appointed by this Court on
behalf of the petitioner.
Sd/-
JUDGE
ST
