Karnataka High Court
Rajashekar vs State By R T Nagar Traffic P.S on 18 January, 2024
1 CRL.RP NO.1241 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1241 OF 2019
BETWEEN:
RAJASHEKAR
S/O MILARAM
AGED ABOUT 40 YEARS
(SIPAI- 148162257M ASC CENTRE)
LAHLA VILLAGE, HYANGLOW POST
PALAMPUR TALUK, KANGRA-DISTRICT
HIMACHAL PRADESH STATE - 176 059
...PETITIONER
(BY SRI. GURUSWAMY B S, ADVOCATE)
AND:
STATE BY R T NAGAR TRAFFIC P.S.
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560 001
.....RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, ADVOCATE)
THIS CRL.RP FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION IN C.C.NO.837/2015 DATED 08.01.2018 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 279 & 304(A)
OF I.P.C., ON THE FILE OF METROPOLITAN MAGISTRATE
TRAFFIC COURT-VI, BENGALURU CITY AND ALSO THE
JUDGMENT OF CONVICTION CONFIRMED BY THE HON'BLE
LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU (CCH-70), IN CRIMINAL APPEAL NO.190/2018
DATED 06.09.2019 AND THE PETITIONER MAY BE
ACQUITTED, IN THE INTEREST OF JUSTICE.
2 CRL.RP NO.1241 OF 2019
THIS CRL.RP HAVING BEEN HEARD AND RESERVED ON
07.11.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Being aggrieved by his conviction and sentence for
the offences punishable under Sections 279, 304-A I.P.C
and Section 3 (1) r/w Section 181 of Motor Vehicles Act,
which came to be confirmed by the Session Court, by
dismissing his appeal, petitioner who is accused No.1 is
before this Court in a petition filed under Section 397 r/w
401 of Cr.P.C.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. A complaint came to be filed by one Smt
Sagayi Rosary, alleging that on 11.08.2014 night, she
and her husband i.e deceased Jayasheelan travelled in
train from Madurai to Bengaluru. They reached Bengaluru
railway station at 6 a.m of 12.08.2014. In order to go to
her daughter's house, they were travelling in auto
rickshaw bearing registration No.KA-50-7186. They were
proceeding from Jayamahal side towards Mathadahalli of
RT Nagar. At around 6.40 a.m, they were near
Doordarshan Road. A military truck bearing registration
No.03D15 1294K ('military truck' for short) came from
RT Nagar side in a rash or negligent manner. In order to
go towards the office, the driver of the military truck
suddenly took a right turn and dashed against the
autorickshaw. As a result of the impact, the auto turned
turtle, complainant and her husband fell out of the
autorickshaw on the road. The right front tyre of the
military truck ran over the head of Jayasheelan and he
died on the spot. Complainant also sustained severe
injuries. She came to know the name of driver of the
military truck as Rajasekhar.
4. Based on the complaint, the concerned police
registered the case and took up investigation and charge
sheet came to be filed against the driver of the military
truck as accused No.1, driver of autorickshaw as accused
No.2 and also owner of the autorickshaw as accused
No.3. While the allegations against accused Nos.1 and 2
are that they were rash or negligent in driving the
respective vehicles resulting in the accident, the
allegations against accused No.3 is that the vehicle was
not covered by a valid policy of insurance, fitness
certificate, as well as he allowed a person having no
driving license to drive the autorickshaw.
5. Accused No.3 pleaded guilty to the charges
levelled against him and paid the fine.
6. Accused Nos.1 and 2 pleaded not guilty and
claimed trial.
7. In order to prove the allegations against
accused Nos.1 and 2, prosecution examined in all 13
witnesses as PW-1 to 13 and relied upon Ex.P1 to 15.
8. During the course of their statement, accused
Nos.1 and 2 have denied the incriminating evidence.
9. However, they have not led any defence
evidence either by stepping into the witness box or
examining any witnesses.
10. Vide the impugned judgment and order, the
trial Court acquitted accused No.2 and convicted accused
No.1 and sentenced him as under.
"To undergo S.I for a period of one month
with fine of Rs.500/-. In default of payment of
fine to undergo S.I for a period of one month for
the offence p/u/s 279 IPC.
To undergo S.I for a period of one year with
fine of Rs.10,000/-. In default of payment of fine
to undergo S.I for a period of six months for the
offence p/u/s 304-A IPC."
11. Accused No.1 challenged his conviction and
sentence before the Sessions Court in
Crl.A.No.190/2018. However, it came to be dismissed by
upholding the judgment and order of the trial Court.
12. Being aggrieved by the same, accused No.1 is
before this Court, contenting that the trial Court as well
as the Sessions Court have erred in holding that the
allegations against him are proved beyond reasonable
doubt. They have failed to appreciate the evidence of
PWs-1 and 2 that accused No.1 gave hand signal before
taking U-turn and it was accused No.2 who lost control
over the autorickshaw and dashed against the military
truck. PW-3, who is an independent witness has stated
that he could not say at whose fault the accident took
place. Both Courts have erred in relying upon the
testimony of PW-4, who is the wife of deceased and
highly interested witness. She has identified accused
No.1 before the Court whereas in statement and
complaint, there is no reference of her having identified
the driver of the military truck.
12.1 The trial Court has not provided opportunity to
accused No.1 to cross-examine PW-4. Due to the
inadvertence of the learned counsel for accused No.1, no
application was filed for recalling PW-4. The Court below
have erred in relying upon the evidence of PW-5, who is
an auto driver by profession, who has been pressurized
by their association to speak against accused No.1. The
Investigating Officer has not collected scraps of dried
blood from the spot. Since accused No.2 was not
possessing valid driving license, the Courts below have
not examined whether he was knowing driving and was
responsible for causing the accident. The Sessions Court
has not considered citations relied upon by accused No.1.
Viewed from any angle, the impugned judgment and
order of the trial Court and Sessions Court are not
sustainable and pray to allow the petition, acquit accused
No.1.
13. In support of his arguments, learned counsel
for appellant has relied upon the following decisions:
(i) Chandrasegar Vs. State of
Madras(Chandrasegar)1
(ii) Ladu Kishore Choudhury Vs. State of Orissa
(Ladu Kishore Choudhury)2
(iii) K.Srinivas Vs. State of Karnataka
(K.Srinivas)3
(iv) Suruvu Parshaiah Vs. State of A.P
(Suruvu Parshaiah)4
(v) State of Rajasthan Vs. Bhagwan (Bhagwan)5
(vi) Satish Kumar Vs. State of Haryana
(Satish Kumar)6
I (1995) CCR 146
2000 Crl.L.J.3617
2002 Crl.L.J.3865
2006 Crl.L.J.824
2008 Crl.L.J(NOC).897 (RAJ)
2008 Crl.L.J(NOC).598 (P & H)
14. On the other hand, the learned High Court
Government Pleader supported the judgment and order
of both trial Court as well as the Sessions Court and
sought for dismissal of the petition.
15. Heard elaborate arguments of both sides and
perused the record.
16. Though initially charge sheet was filed against
accused Nos.1 and 2, alleging that both were responsible
for causing the accident, based on the evidence placed
on the record, the trial Court has come to the conclusion
that it is accused No.1 alone who was responsible for the
accident and acquitted accused No.2. The State has not
challenged his acquittal and consequently it has become
final. Therefore, what is required to be examine is
whether there is sufficient material to connect accused
No.1 with the crime in question.
17. It is not in dispute that the military truck
bearing registration No.03-D-151294 and autorikshaw
bearing registration No.KA-50-7186 are involved in the
accident. The evidence placed on record prove the fact
that complainant who is examined as PW-4 and her
husband i.e., deceased Jayasheelan were travelling in
autorikshaw bearing registration No.KA-50-7186.
Accused No.2 was the driver of autorickshaw. It is
pertinent to note that accused No.1 is an employee of
military and at the time of accident he was driving the
military truck. For obvious reasons, though PW-1 and 2,
who are employees of military have failed to depose that
accident was caused due to the rash or negligent driving
of the military truck, their evidence prove that accused
No.1 was driving the military truck when the accident
took place.
18. PW-3 M Narayana is an eye witness to the
incident. He is an independent witness not connected
either to accused Nos.1 and 2 or to the complainant. He
is a Theatre Director. At the time of accident, he was
travelling in an autorikshaw. He has deposed that
accident occurred due to the rash or negligent driving of
military truck. Though he has failed to identify accused
No.1 as the driver of the military truck, his evidence
proved the fact that accident occurred due to the rash or
negligent driving of military truck.
19. PW-4, Sagai Rosary is the injured and witness
to the incident. She is the wife of deceased Jayasheelan,
who was also travelling along with her in the
autorickshaw. She has clearly deposed that the driver of
the military truck drove it in a rash or negligent manner
and dashed against the autorickshaw, in which she and
her husband were traveling and her husband died at the
spot and she sustained grievous injuries. She has
specifically stated that the driver of the autorickshaw was
driving it in a moderate speed. Though in the complaint,
there is no reference to her having seen the driver of the
military truck at the spot, but she has stated that she
came to know the name of the driver of the military truck
as Rajashekhar. Before the Court she has identified
accused No.1 as the driver of the military truck. Though
this part of her evidence is not taken into consideration,
her evidence prove the fact that accident occurred due to
the rash or negligence driving of military truck.
20. It is pertinent to note that PW-4 Sagai Rosary
is a resident of Madurai. She was examined in chief on
17.05.2016. On that day the learned counsel for accused
sought adjournment. Taking into consideration the fact
that the complainant is a resident of Madurai and it will
be difficult for her to come to give evidence again, the
trial Court refused to grant adjournment. Having regard
to the fact that the offence are concerning the traffic
violation and the learned counsel for accused was aware
of the fact that witness is coming from Madurai, he ought
to have cross-examined the witness on the same day.
21. Anyhow, though, at the first instance, the trial
Court refused to grant adjournment to the learned
counsel for accused for cross-examination of PW-4, later
on the application filed by learned counsel for accused
No.1, on 06.02.2017, the trial Court has recalled PW-4
for cross-examination by accused No.1. On this day also,
the learned counsel for accused has sought adjournment.
Once again on the ground that the witness is coming
from Madurai and there are no justifiable grounds for
seeking adjournment, the trial Court refused to grant
adjournment and taken the cross-examination of PW-4
as Nil. From the conduct of learned counsel for accused
No.1, it is evident that despite being aware of all these
facts, he has intentionally not chosen to cross-examine
PW-4 and therefore it is not open to the accused No.1 to
say that he was not provided with opportunity to cross-
examine PW-4.
22. PW-5, Suresh is also an eye witness to the
incident. He is also an auto driver by profession. His
evidence also prove the fact that at the time of accident,
he was proceeding behind the autorickshaw in which
complainant and the deceased were travelling. He has
deposed in unequivocal terms that accident occurred due
to the rash or negligent driving of the military truck and
that the driver of the military truck suddenly took a right
turn without giving any indication, as a result of which
the front bumper of the military truck dashed against the
autorickshaw and both inmates fell out of the
autorickshaw and the front right tire of the military truck
passed over the deceased killing him instantly. He has
identified accused Nos.1 and 2 as the drivers of military
truck and autorickshaw respectively.
23. The evidence of PW-5 prove that the accident
occurred due to the rash or negligent driving of military
truck by accused No.1. Even where the evidence of PW-4
is not in taken into consideration, then also based on the
testimony of PW-3 and 5, the prosecution has proved
that accident occurred due to rash or negligent driving of
military truck by accused No.1. Of course the evidence of
PW-4 is admissible and she being the inmate of the
autorickshaw and injured was very much present at the
spot and she has deposed in unequivocal terms that
accident occurred due to the rash or negligent driving of
military truck by accused No.1.
24. Despite cross-examining the prosecution
witnesses, the accused No.1 has failed to prove that
accident occurred due to the rash or negligent driving of
autorickshaw by accused No.2. One more important
aspect that is noteworthy is that accused No.1 has not
chosen to enter the witness box and depose as to how
exactly the accident took place. This fact was within his
special knowledge and having disputing the prosecution
case, he would have been a better person to speak as to
the manner in which the accident occurred. However,
accused No.1 has also not taken the pain to give
evidence and thereby lost an opportunity to prove his
defence.
25. Having regard to the facts and circumstances
of the present case, the decisions relied upon by accused
No.1 are not applicable.
26. After examining the oral and documentary
evidence placed on record, the trial Court has come to a
correct conclusion that accident occurred due to the rash
or negligent driving of the military truck by accused
No.1. The Session Court also after re-appreciation of the
oral and documentary evidence has rightly dismissed the
appeal filed by accused No.1. This Court finds no
justifiable grounds to interfere with the well reasoned
Judgment and order of the trial Court as well as the
Session Court. In the result, the petition fails and
accordingly the following:
ORDER
(i) Petition filed by the accused under Section
397 r/w 401 Cr.P.C is dismissed.
(ii) Consequently, the judgment and order
dated 08.01.2018 in C.C.No.837/2015 on
the file of MMTC-VI, Bengaluru and
judgment and order dated 06.09.2019 in
Crl.A.No.190/2018 on the file of LXIX
Addl.City Civil and Sessions Judge are
confirmed.
(iii) The Registry is directed to send back the
trial Court and Sessions Court records
along with copy of this order forthwith.
Sd/-
JUDGE
RR
