Karnataka High Court

M Surendra vs State Of Karnataka on 11 January, 2024

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                                                      CRL.RP No. 608 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 11TH DAY OF JANUARY, 2024
                                            BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                       CRIMINAL REVISION PETITION NO. 608 OF 2017


                   BETWEEN:


                   M SURENDRA
                   S/O K MANJUNATHA
                   AGED ABOUT 38 YEARS
                   HOTEL PARIMALA
                   BHAGEERATHA CIRCLE,
                   HOLEHONNUR - 577227
                   BHADRAVATHI TALUK.
                                                               ...PETITIONER
                   (BY SRI. PRASAD B S., ADVOCATE)
                   AND:


                   STATE OF KARNATAKA
                   BY HOLEHONNUR POLICE STATION
                   BHADRAVATHI TALUK,
Digitally signed   REP. BY SPP. HIGH COURT OF KARNATAKA
by SANDHYA S
Location: High     BENGALURU - 560001
Court of                                                      ...RESPONDENT
Karnataka
                   (BY SRI. M.R.PATIL, HCGP.)
                        THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                   TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.04.2016
                   PASSED BY THE I ADDL. CIVIL JUDGE AND J.M.F.C.,
                   BHADRAVATHI IN C.C.NO.2998/2012 AND THE JUDGMENT AND
                   ORDER DATED 31.03.2017 PASSED BY THE IV ADDL. DIST.
                   AND S.J., SHIVAMOGGA SITTING AT BHADRAVATHI IN
                   CRL.A.NO.5010/2016 AND ACQUIT THE PETITIONER FROM ALL
                   THE CHARGES LEVELED AGAINST HIM.
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                                            CRL.RP No. 608 of 2017




     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                                 ORDER

The revision petitioner/accused has preferred this

revision petitioner against the judgment of conviction and

order of sentence dated 12.04.2016 passed in

C.C.No.2998/2012 by the Court of the I Additional Civil

Judge and JMFC, Bhadravathi (hereinafter referred to as

'Trial Court' for short) which is confirmed by the judgment

dated 31.03.2017 passed in Crl.Appeal No.5010/2016 by

the Court of the IV Addl. District and Sessions Judge,

Shimoga, Sitting at Bhadravathi (hereinafter referred to as

the 'Appellate Court' for short).

2. For the sake of convenience, the parties in this

revision petition are referred to as per their status and

rank before the Trial Court.

3. The brief facts of the case of prosecution is that

on 27.12.2011 at about 8.15 p.m. on N.H.Road at

Moodalavittalapura village, accused being the driver of the

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Maruthi Omni Car bearing Reg.No.KA-03-P-5102 was

carrying CWs.1,9 and 10 as well as deceased Kariyamma,

who was suffering heart problem and so driving on Koppa

village near Pillamma temple, dashed against the parked

tractor bearing Reg.No.KA-14-T-8481, KA-14-T-0376 which

was loaded with arecanuts. Due to which, CWs.1,9 and 10

sustained simple and grievous injuries and Kariyamma

who was suffering from heart problem was taken to

Mc.Gann Hospital, Shimoga, wherein, she succumbed to

injuries. Thus, the accused has committed offence

punishable under Section 279, 337, 338 and 304(A) of

Indian Penal Code.

4. After filing of charge sheet, the Trial Court took

cognizance and the case came to be registered in

C.C.No.2998/2012 In pursuance of the summons, the

accused have appeared before the Court and enlarged on

bail. Charge framed and read over and explained to the

Accused. Having understood the same accused pleaded

not guilty and claimed to be tried.

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5. To prove the guilt of the accused, 10 witnesses

were examined as PWs.1 to 10 and 16 documents were

got marked as Exs.P1 to P16. On closure of prosecution

side evidence, statement under Section 313 of Cr.P.C. was

recorded against the accused and the accused totally

denied the evidence of prosecution witnesses and do not

choose to adduce any evidence on his behalf. On hearing

both sides, the Trial Court has convicted the accused for

the commission of offence under Section 279, 337, 338

and 304(A) of Indian Penal Code and has sentenced to

undergo simple imprisonment for a period of six months or

to pay a fine of Rs.1,000/- for the offence punishable

under Section 279 of Indian Penal Code. Further, the

accused has sentenced to undergo simple imprisonment

for a period of one month or to pay a fine of Rs.500/- and

to undergo further imprisonment for a period of two years

with a fine of Rs.5,000/- for the offence punishable under

Section 304(A) of Indian Penal Code. In default of

payment of aforesaid fine amount, further to undergo

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simple imprisonment for a period of three months. Being

aggrieved by this judgment of conviction and order of

sentence, the accused has preferred an appeal before the

IV Addl. District and Sessions Judge, Shimoga, Sitting at

Bhadravathi in Crl.Appeal No.5010/2016 and the same

came to be dismissed on 31.03.2017. Being aggrieved by

the same, the accused has preferred the present revision

petition.

6. Learned counsel for the revision petitioner

submits that the order passed by the Courts below are

illegal, invalid and contrary to law and evidence on record.

The impugned judgment of the Courts below are illegal,

arbitrary, capricious and opposed to law and facts. Both

the Courts have committed serious error in convicting the

revision petitioner. Both the Courts have not considered

the facts and circumstances of the case in proper

perspective but have simple mislead themselves by

stressing unnecessarily on the alleged negligent act on the

part of the petitioner. The accident took place at about

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7.30 p.m., the tractor was parked in the middle of the road

without any signal, hence the respondent ought to have

filed a charge sheet as against the driver of the tractor

who parked the vehicle on the left hand side of the road

without giving any signal and it is the actionable

negligence of the driver of the tractor and not on the part

of the accused. The Courts below have failed to

appreciate the fact that the accident took place on

27.12.2011 at about 8.15 p.m., while taking the deceased

to hospital for treatment, it is admitted fact that she is

heart patient and she died on 28.12.2011 that after lapse

of 2 days, she died due to cardiac arrest and it is no way

connected with the accident. Both the Courts have failed

to appreciate the fact that there is no negligent act on the

part of the revision petitioner. The driver of the tractor

parked the tractor-trailer without giving any signal that too

in the night hours and it is very difficult to assess or gaze.

Hence, the question of negligence does not arise and there

are lot of material omissions, contradictions and

improvements in the evidence of prosecution witnesses

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and that there are no ingredients to attract the alleged

commission of offence punishable under Section 279, 337

and 304(A) of Indian Penal Code. On all these grounds,

he sought to allow the revision petition.

7. As against this, the learned High Court

Government Pleader submits that both the Courts have

properly appreciated the evidence on record in accordance

with law and facts. Absolutely, there are no grounds to

interfere with the judgment of conviction and order of

sentence passed by the Trial Court which is confirmed by

the Appellate Court. Accordingly, he sought to dismiss the

appeal.

8. Having heard the arguments on both sides and

on perusal of record, the following points would arise for

my consideration:

i. Whether the revision petitioner has made out the grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court which is confirmed by the

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Appellate Court which is illegal, perverse and contrary to law and facts?

ii. What order?

9. My answer to the above points are as under:

Point No.1: in the affirmative

Point No.2: as per final order

Regarding point No.1:

10. I have carefully examined the material placed

before the Court.

It is the case of prosecution that on 27.12.2011 at

about 8.15 p.m. on N.H.Road at Moodalavittalapura

village, accused being the driver of the Maruthi Omni Car

bearing Reg.No.KA-03-P-5102 was carrying CWs.1, 9 and

10 as well as deceased Kariyamma, who was suffering

heart problem and so driving on Koppa village near

Pillamma temple, dashed against the parked tractor

bearing Reg.No.KA-14-T-8481, KA-14-T-0376 which was

loaded with arecanuts. Due to which, CWs.1,9 and 10

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sustained simple and grievous injuries and Kariyamma

who was suffering from heart problem was taken to

Mc.Gann Hospital, Shimoga, wherein, she succumbed to

injuries. Accordingly, the accused has committed the

alleged commission of offences.

11. To substantiate the case of prosecution, 10

witnesses were examined as PWs.1 to 10 and 16

documents were got marked as Exs.P1 to P16. Ex.P1-

complaint reveals that the accident took place at 8.15 p.m.

Further, it reveals that the mother of the complainant -

Kariyamma, aged about 60 years was suffering from

illness and hence, she was shifted to Mc.Gann hospital,

Shivamogga for treatment and as per the advice of

Mc.Gann hospital authorities, she was shifted to Bangalore

Hospital in Maruthi Omni car bearing Reg.No.KA-03-P-

5102 and while they were proceeding from Shivamogga to

Bangalore, near Pillamma Temple at Shivamogga-

Channagiri Road at about 8.15 p.m., one tractor loaded

with arecanuts was parked and driver of the offending car

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came in high speed and in a rash and negligent manner

dashed to the backside of the tractor. As a result, the

inmates of the offending car sustained simple injuries and

the mother of the complainant also received injuries on

her chest and waist. Then, they shifted her to Mc.Gann

Hospital, Shivamogga in another vehicle. On the basis of

the complaint at Ex.P1, Holehonnur Police have registered

the case against the accused i.e. the driver of the

offending car for the commission of alleged offences and

submitted the First Information Report to the Court on

29.12.2011 at 10.30 a.m. Thereafter, the police visited

the spot and conducted spot panchanama as per Ex.P3 on

29.12.2011. Smt. Kariyamma, one of the inmate of the

offending car died in the hospital and thereafter, the police

have conducted inquest panchanama on 29.12.2011 and

obtained wound certificate at Exs.P7 to 9 and post-mortem

report, IMV report, submitted charge sheet against the

accused for the offence punishable under Sections 279,

338 and 304(A) of Indian Penal Code.

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12. The post-mortem report at Ex.P10 reveals that

the death of Kariyamma was due to cardiac failure and not

due to the accidental injuries. In this regard, a perusal of

Ex.P1 -complaint and also the evidence of prosecution

witnesses, it is crystal clear that Kariyamma was suffering

from heart disease. Therefore, as per the direction of the

Mc.Gann hospital authorities, Kariyamma was shifted to

Bangalore hospital. Hence, it is clear that Kariyamma was

suffering from heart disease at the time of accident. The

post-mortem report at Ex.P10 reveals the final opinion of

the doctor which reads as under:

"Final opinion: After perusal of Post mortem Report, Histopathological examination report, copies of case sheets and case details, I am of the opinion that the death was due to "Cardiac failure" as a result of "Fibrinous pericarditis"

consequent upon "inferior wall Myocardial infarction".

13. Ex.P15 is the clarification opinion given by the

Assistant Professor, Dept. of Forensic Medicine and

Toxicology, Dist. Govt.Mc.Gann Hospital, Shimoga Institue

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of Medical Sciences, Shimoga wherein it is clarified as

under:

"Clarification opinion: -After perusal of your letter and the final opinion, I am furnishing clarifications as follows:

• Opinion on cause of death remains the same i.e., Death was due to 'Cardiac Failure' as a result of Fibrinous pericarditis consequent upon 'Inferior wall Myocardial infarction'. However, in the absence any demonstrable external injuries on the body of the deceased; possibility of a trivial trauma significant not enough to produce an external injury but sufficient enough to trigger sequence of events which can make an already compromised heart (Disease heart) to cease functioning cannot be completely ruled out.

• In this particular case, presence of trivial trauma has to be established by investigation and if it is present, trauma might have precipitated or exaggerated sequence of events leading to cardiac failure.

14. PW.10 -Dr. Chidananda B.S., Assistant

Professor has also deposed as to the opinion expressed in

post-mortem report at Ex.P10. Further, he has clearly

admitted in his cross-examination that the deceased

Kariyamma was suffering from heart disease prior to this

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incident and she was shifted to Bangalore hospital for

higher treatment and not sustained any injuries in the

accident. Therefore, the medical evidence placed before

the prosecution itself reveals that Kariyamma died due to

Cardiac failure and not due to accidental injuries.

Accordingly, the prosecution has failed to prove the guilt of

the accused for the offence punishable under Section

304(A) of Indian Penal Code. Both the Courts have not

properly appreciated the evidence on record in accordance

with law and facts and convicted the accused for the

offence punishable under Section 304(A) of Indian Penal

Code which is not sustainable under law.

15. With regard to offence punishable under Section

279 and 337 of Indian Penal Code are concerned, it is the

case of prosecution that the driver of the offending car

drove the same in high speed and in a rash and negligent

manner and dashed against the tractor which was parked

in the middle of the road. If really the accused has drove

the car in high speed and in a rash and negligent manner,

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the front portion of the car would have completely

damaged, but whereas the IMV report at Ex.P11 reveals

that the car bearing reg.No.KA03-P-5102 sustained with

following damages:

i. Left hand side rear door and quarter panel body is damage.

ii. Roof top is pressed, door glass & quarter panel glass damage.

iii. dicky rear left hand side pressed.

16. PW.5- M.P. Rajesh, Motor Vehicle Inspector has

also deposed as to the damages caused to the omni car as

shown in Ex.P11. Therefore, it will create reasonable

doubt as to the alleged incident.

17. Ex.P3- spot mahazar reveals that the width of

the road is 20 feet and there is about 5 feet kaccha road

on both sides and the tractor was parked on the middle of

the road. It is the case of prosecution that the accident

occurred at 8.15 p.m. and the prosecution has not

explained anything as to why the driver of the tractor-

trailer has parked the vehicle in the middle of the road.

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The investigating officer has not collected any material to

show that whether the driver of the tractor-trailer has

complied the mandatory provisions of Section 127 of Motor

Vehicles Act, 1988 and also the provisions of Karnataka

Traffic Control Act, 1960 and the Karnataka Traffic Control

Rules, 1979.

18. Ex.P11 - IMV report and evidence of PW.5

reveals that the accident is not due to any mechanical

defect. Such being the case, the investigating officer

ought to have explained the reasons for occurrence of

accident as the driver of the tractor-trailer parked the

vehicle without giving any signal and without following the

provisions of aforesaid Act and Rules.

19. A perusal of the entire material placed before

this Court, it is crystal clear that if the driver of the

tractor-trailer has parked the vehicle as per the

provisions of Section 127 of the Motor Vehicles Act,

1988, and also as per the provisions of The

Karnataka Traffic Control Act, 1960 and The

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Karnataka Traffic Control Rules, 1979, the accident

would not have occurred. Apart from these,

absolutely there is no legal evidence to arrive at

conclusion that the accused being the driver of the

car drove the same in a rash and negligent manner.

Accordingly, the prosecution has failed to prove the

guilt of the accused beyond all reasonable doubts.

Both the Courts have not properly appreciated the

evidence on record in accordance with law and facts.

Hence, the impugned judgment of conviction and

order of sentence passed by the Trial Court which is

confirmed by the Appellate Court is not sustainable

under law. Accordingly, I answer point No.1 in

affirmative.

Regarding point No.2:

20. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

i. Criminal revision petition is allowed.

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ii. Judgment of conviction and order of sentence dated 12.04.2016 passed in C.C.No.2998/2012 by the Court of the 1st Additional Civil Judge and JMFC, Bhadravathi, which is confirmed by the judgment dated 31.03.2017 passed in Crl.Appeal No.5010/2016 by the Court of IV Addl. District and Sessions Judge, Shimoga, Sitting at Bhadravathi are set aside. iii. Revision petitioner/accused is acquitted for the offence punishable under Section 279, 338 and 304(A) of Indian Penal Code.