Karnataka High Court
Jayanna @ Danunjaya vs State By Sub Inspector Of Police on 12 January, 2024
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CRL.RP No. 528 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 528 OF 2016
BETWEEN:
JAYANNA @ DANUNJAYA,
S/O LATE NAGAPPA,
AGED ABOUT 53 YEARS,
DRIVER/COOLIE,
R/O AGASANAHALLI VILLAGE, D.B. HALLI POST,
BHADRAVATHI TALUK - 577 303.
...PETITIONER
(BY SRI. RAMA KRIHNA, ADVOCATE FOR
SRI. M.R. HIREMATHAD, ADVOCATE)
AND:
STATE BY SUB INSPECTOR OF POLICE,
TRAFFIC POLICE STATION,
BHADRAVATHI TALUK,
Digitally signed
by SANDHYA S
REPRESENTED BY STATE PUBLIC PROSECUTOR,
Location: High
Court of HIGH COURT BUILDINGS,
Karnataka
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED
BY THE IV ADDL. DIST. AND S.J., SHIVAMOGGA, SITTING IN
BHADRAVATHI IN CR.A.137/2015 DATED 10.3.2016
CONSEQUENTLY SETTING ASIDE THE JUDGMENT AND ORDER
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CRL.RP No. 528 of 2016
OF CONVICTION DATED 29.04.2015 PASSED BY THE LEARNED
I ADDL. CIVIL JUDGE AND JMFC, BHADRAVATHI IN
C.C.NO.1568/2013 U/S 279, 337, 38, 304A OF IPC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner has preferred this revision petition
against judgment of conviction and order of sentence passed by
the I Addl. Civil Judge and JMFC, Bhadravathi in C.C
No.1568/2013 dated 29.04.2015, which is confirmed by the IV
Addl. District and Sessions Judge, Shimoga, sitting in
Bhadravathi in Crl.A No.137/2015 dated 10.03.2016.
2. Rank of the parties in this petition are referred to as
per their status before the trial Court.
3. Brief facts of the prosecution are that:
On 28.08.2012., on Holehonnur road towards Momin
Mohalla Gowdarahalli road at Bhadravathi town, in front of
Alemane of one Jananna, the petitioner being the driver of the
Goods Pick-up vehicle bearing Registration No:KA-18/A-657,
drove the said vehicle in a rash and negligent manner from
with high speed, as a result the vehicle capsized, due to which
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inmates of the vehicle CW2/PW2 and CW4/PW4 have sustained
grievous injuries, whereas one Ganesh has sustained grievous
injuries to his head and left leg and succumbed to injuries at
the spot. Thereby, the accused has committed an offence
punishable under Sections 279, 337, 338 and 304-A of IPC.
4. After filing the charge sheet, cognizance was taken
by the trial Court and case was registered in C.C.
No.1568/2013. In response to summons, accused appeared
before the trial Court and enlarged on bail. The substance of
accusation was recorded. On framing of charges by the trial
Court, same was read over and explained to the accused.
Having understood the same, accused pleaded not guilty and
claimed to be tried.
5. To prove the case of the prosecution, nine
witnesses were examined as PW1 to PW9 and got marked
thirteen documents as Exs.P1 to P13. On closure of
prosecution side evidence, statement of accused under Section
313 of Cr.P.C. was recorded. Accused has totally denied the
entire material evidence appearing against him, but he did not
chose to lead any evidence on his behalf.
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6. Having heard the arguments on both sides, the trial
Court convicted the accused and sentenced to pay a fine of
Rs.1,000/-, Rs.500/- and Rs.1,000/- for the offence punishable
under Sections 279, 337, 338 IPC respectively. Further, the
accused was convicted for the offence punishable under Section
304-A of the IPC and sentenced to pay fine of Rs.5,000/- and
undergo simple imprisonment for one year. In default of
payment of fine, they shall undergo simple imprisonment for
three months.
7. Being aggrieved by the judgment of conviction and
order of sentence passed by the trial Court, the revision
petitioner has preferred an appeal before the IV Addl. District
and Sessions Judge, Shimoga, sitting at Bhadravathi in Crl.A
No.137/2015 and said appeal came to be dismissed on
10.03.2016. Being aggrieved by the judgments passed by both
Courts, the revision petitioner has preferred this revision
petition.
8. Learned counsel for the revision petitioner submits
that the both Courts have erred in convicting the petitioner on
erroneous reasons, keeping aside the entire material on record.
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Both the Courts below are not justified in holding that the
accused has committed the offence as alleged by the
prosecution, without specifically holding that the prosecution
has proved the case beyond reasonable doubt that the driver of
the vehicle caused the accident due to rash and negligent
driving, which has resulted in the death of an inmate.
Absolutely, there is no evidence led by the prosecution in this
regard. PW1, who is the complainant, himself turned hostile,
so also, spot mahazar witness. The prosecution utterly fails to
prove the case and same is not considered by both the Courts
below holding that there is no cogent, corroborative and
convincing evidence to prove the guilt of the accused. Both
Courts have not properly appreciated the evidence on record in
accordance with law and facts. On all these grounds, sought
for allowing this revision petition.
9. As against this the learned HCGP-Sri. M.R Patil has
submitted that the trial Court has properly appreciated the
evidence on record in accordance with law and facts. The
appellate Court has also confirmed the judgment of conviction
and order of sentence passed by the trial Court that there are
no grounds to interfere with the impugned judgment of
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conviction and order of sentence passed by the trial Court,
which is confirmed by the appellate Court. On all these
grounds, sought for dismissal of this revision petition.
10. Having heard the arguments on both sides, the
following points would arise for consideration:
i. Whether the revision petitioner has made
out grounds that the judgment of conviction
and order of sentence passed by the trial
Court, which is confirmed by the appellate
Court, are illegal, erroneous, perverse and
not sustainable under law?
ii. What order?
11. My answer to the above points are as under:
Point No.(i) : In the affirmative,
Point No.(ii) : As per final order.
REGARDING POINT NO.1:
12. I have carefully examined the materials placed
before this Court. It is the case of the prosecution that on
28.08.2012., on Holehonnur road towards Momin Mohalla
Gowdarahalli road at Bhadravathi town, in front of Alemane of
one Jananna, accused drove the goods vehicle in a rash and
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negligent manner with high speed, as a result the vehicle
capsized and the some of the inmates sustained grievous
injuries, whereas, one Ganesh who sustained grievous injuries
to his head and left leg, succumbed to injuries at the spot.
Thus, the accused has committed an offence punishable under
Sections 304-A of IPC.
13. To substantiate the case of the prosecution, nine
witnesses were examined as PW1 to PW9 and got marked
thirteen documents as Exs.P1 to P13. PW1 was the inmate of
the vehicle and also the injured, but he has not deposed
anything against the accused, as to his rash and negligent act.
Therefore, this witness has treated as hostile witness by the
prosecution and cross-examined by the Assistant Public
Prosecutor. Even in his cross-examination also, the prosecution
has not elucidated any favourable answers from him to prove
the guilt of the accused for the alleged commission of offences.
PW2-Sri. Bhanu Prakash, has deposed in his evidence that in
the month of August 2012 at 10:00 a.m., while they were
coming from Holehonnur road to Bhadravathi, near Anwar
colony, the driver of the vehicle drove the same in a high speed
and when the vehicle was going in a curve, the accused has
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lost his control over the vehicle and all of a sudden he applied
brake, as a result the vehicle capsized due to which inmates
have sustained grievous injuries, and one of the inmate viz.
Ganesh died on the spot. Thereafter, they have shifted the
body to the hospital in the ambulance. Police have visited the
spot, conducted spot Panchanama as per Ex.P8. PW3-
Sri.Jagadeesha and PW4-Sri.Lokesha inmates of the vehicle
and also injured have not deposed anything as to the rash and
negligence act on part of the accused. Both witnesses were
treated as hostile and were cross-examined by the Assistance
Public Prosecutor. During their cross-examination also they
have categorically denied the statement under Section 161 of
Cr.P.C said to have been recorded by the Investigating Officer.
PW5-Sri.Maheshgiri has deposed regarding mahazar conducted
by the Police as per Ex.P8. PW6-Sri.Mohamad Kaleel said to be
the attestor to the mahazar, has not supported the prosecution
case. PW7-Ravikumar owner of the vehicle has deposed
regarding the execution of indemnity bond-Ex.P11 at the time
of releasing the vehicle. PW8-Sri.Ragunatha-PSI and PW9-
Sri.Thirumalesha-Circle Inspector have deposed as to their
respective investigation.
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14. A perusal of entire evidence placed before this
Court reveals that except PW2 none of the witnesses have
supported to the case of the prosecution. During the course of
the cross-examination made by the accused, PW1 has clearly
admitted that he cannot say the exact speed of the vehicle.
Even the approximate speed of the vehicle is also not disclosed
by him. The statement of PW1 does not reveal that the
accident occurred when the vehicle was moving in a curve.
Therefore, the evidence of PW2 does not consist the contents of
complaint-Ex.P1 and also the evidence of PW1. Therefore, the
testimony of PW2 which is not consistent to the case of the
prosecution, cannot be believed.
15. Since, there is no cogent, consistent, corroborative,
convincing, clinching and trustworthy evidence before the
Court, accused cannot be convicted for the commission of
offence punishable under Sections 279, 337, 338 and 304-A of
IPC.
16. At this juncture, it is useful to refer to the judgment
of the Hon'ble Supreme Court in the case of NANJUNDAPPA
AND ANOTHER v. STATE OF KARNATAKA reported in 2022 SCC
ONLINE SC 628 wherein it is observed that doctrine of res ipsa
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loquitur stricto sensu would not apply to a criminal case. In the
said, judgment it is observed as under:
"Indian Penal Code. 1860; Section 304A -
Doctrine of res ipsa loquitur stricto sensu would not
apply to a criminal case - For bringing home the guilt of
the accused, prosecution has to firstly prove negligence
and then establish direct nexus between negligence of
the accused and the death of the victim.
17. Considering the facts and circumstances of the
case, both the Courts have not properly appreciated the
evidence on record in accordance with law and facts. Keeping
in mind the decision of the Hon'ble Apex Court, since the
prosecution has failed to prove the guilt of the accused beyond
all these doubts by giving benefit of doubt to the accused, the
accused is entitled for acquittal. Accordingly, I answered point
No.1 in affirmative.
REGARDING POINT NO.2:
18. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. The revision petition is allowed.
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ii. The judgment of conviction and order of
sentence passed by the I Addl. Civil Judge
and JMFC, Bhadravathi in C.C
No.1568/2013 dated 29.04.2015, which is
confirmed by the IV Addl. District and
Sessions Judge, Shivamogga, sitting at
Bhadravathi in Crl.A No.137/2015 dated
10.03.2016, are set aside.
iii. The accused/revision petitioner is acquitted
for the commission of offences punishable
under Section 279, 337, 338 and 304-A of
IPC.
iv. Fine amount, if any, deposited by the
accused shall be returned to the accused in
accordance with law.
v. Send the copy of this order along with TCR
to the concerned Court.
Sd/-
JUDGE
AT
CT: BHK
