Karnataka High Court

Sri.Shafeer P.N.S vs State Of Karnataka on 26 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                              CRL.RP No. 63 of 2021




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 26TH DAY OF JUNE, 2024

                                   BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION NO. 63 OF 2021
            BETWEEN:

            SRI. SHAFEER P.N.S,
            AGED ABOUT 35 YEARS,
            S/O C.P. MOHIDDIN,
            RESIDING AT DOOR NO. 453,
            KHADEEJA MANJIL, EDACHERI POST,
            PALLIKUNNU TALUK, KANNURU DISTRICT,
            KERALA STATE - 670 001.
                                                       ...PETITIONER
            (BY SRI. USMAN P, ADVOCATE)

            AND:

            STATE OF KARNATAKA
Digitally   BY DEVARAJA TRAFFIC POLICE,
signed by   MYSURU - 570 001.
MALATESH    REPRESENTED BY STATE PUBLIC PROSECUTOR,
KC
            HIGH COURT OF KARNATAKA,
Location:
HIGH        ANNEX BUILDING,
COURT OF    BANGALORE - 560 001.
KARNATAKA
                                                      ...RESPONDENT
            (BY SRI. CHANNAPPA RAPPA, HCGP)

                  THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
            PRAYING TO SET ASIDE THE ORDER DATED 15.07.2019
            PASSED IN C.C.NO.8084/2016 ON THE FILE OF THE LEARNED
            III ADDITIONAL SENIOR CIVIL JUDGE AND CJM AT MYSORE
            AND CONFIRMED BY THE JUDGMENT DATED 24.02.2020
            PASSED IN CRL.A.NO.232/2019 ON THE FILE OF THE LEARNED
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                                       CRL.RP No. 63 of 2021




III ADDITIONAL DISTRICT AND SESSION JUDGE MYSORE AND
PASS A JUDGMENT ACQUITTING THE PETITIONER OF THE
CHARGES P/U/S 279 AND 304A OF IPC.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
                           ORDER

Heard Sri.Usman P., learned counsel for the revision

petitioner and learned High Court Government Pleader for

the State.

2. The present revision petition is filed by the

revision petitioner challenging the order of conviction and

sentence passed in C.C. No.8084/2016 dated 15.07.2019

on the file of III Addl. Senior Civil Judge and Chief Judicial

Magistrate, Mysuru for the offence punishable under

Sections 279 and 304A of IPC which was confirmed in

Criminal Appeal No.232/2019 dated 24.02.2020 on the file

of III Addl. District and Sessions Judge, Mysuru whereby,

accused was ordered to undergo simple imprisonment for

a period of six months and to pay fine in a sum of

Rs.1,000/- for the offence punishable under Section 304A

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of IPC and ordered to pay fine in a sum of Rs.1,000/- for

the offence punishable under Section 279 of IPC.

3. Brief facts of the case which are utmost

necessary for disposal of the revision petition are as

under:

3.1. On 15.11.2016 at about 9.15 a.m. within the

limits of Devaraja Police Station on B.N.Road opposite to

Konika Colour Lab, a pedestrian by name Palani was

moving on the left side of the road. At that juncture, an

Innova Car bearing No.KL-13-R-5903 driven by the

accused came from B.N.Arch gate in a rash and negligent

manner and dashed against Palani. Due to the impact of

the accident, Palani sustained injuries and he was shifted

to K.R.Hospital. Despite best treatments, Palani did not

survive and he was succumbed to injuries. Police

registered a case against the accused for the offence

punishable under Sections 279 and 304A of IPC and after

detailed investigation, charge sheet was filed.

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4. The learned Trial Magistrate took cognizance of

the offence and secured the presence of the accused,

charges were framed. Accused pleaded not guilty.

Therefore, the trial was held.

5. In order to prove the case of the prosecution, in

all eight witnesses were examined by the prosecution

among them Dhananjaya as P.W.1, Srinivasa as P.W.2,

Javaraiah as P.W.3, Marigowda as P.W.4,

S.N.Sandeshkumar as P.W.5, Dr.Chandrashekar as P.W.6,

Dr.Anand P. Rayamane as P.W.7 and Kumaresh as P.W.8.

Prosecution placed reliance on ten documents on record,

which were exhibited and marked as Exs.P.1 to Ex.P.10

comprising of complaint as Ex.P.1, signatures as Exs.P.1(a

and b), spot mahazar as Ex.P.2, signatures as Ex.P.2(a) to

(c), sketch as Ex.P.3, signatures as Ex.P.3(a) to (c), IMV

report as Ex.P.4, FIR as Ex.P.5, signature as Ex.P.5(a),

inquest as Ex.P.6, notice as Ex.P.7, reply to the notice as

Ex.P.8, P.M.Report as Ex.P.9, signatures as Ex.P.9(a) and

(b), MLC Extract as Ex.P.10 and signature as Ex.P.10(a).

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6. Detailed cross-examination of prosecution

witnesses did not yield positive material so as to disclose

the case of prosecution; except eliciting minor

contradictions in deposition of P.W.1 and P.W.2.

7. As against the evidence placed on record by the

prosecution, request letter for opinion of Doctor is marked

as Ex.D.1 and there was no oral evidence placed on record

on behalf of the accused.

8. Thereafter, the learned Trial Magistrate

recorded the accused statement as is contemplated under

Section 313 of Cr.P.C. and after hearing the parties,

learned Trial Judge found that the prosecution case is

acceptable and there is no explanation offered by the

accused to the incriminatory materials found against him

in the case of prosecution and convicted the accused for

the offence punishable under Sections 279 and 304A of

IPC and sentenced as referred to supra.

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9. Being aggrieved by the judgment of the Trial

Court, the accused preferred an appeal before the First

Appellate Court in Criminal Appeal No.232/2019.

10. The learned Judge in the First Appellate Court

after securing the records and hearing the arguments, vide

judgment dated 24.02.2020, dismissed the appeal and

confirmed the order of conviction and sentence.

11. Being further aggrieved by the same, the

accused is before this Court.

12. Reiterating the grounds urged in the revision

petition, Sri.Usman P., learned counsel for the revision

petitioner vehemently contended that the contradictions

elicited in the case of the prosecution witnesses especially,

P.W.1 and P.W.2 is totally ignored by the learned Trial

Magistrate.

13. He drew the attention of this Court in paragraph

No.27 of the judgment of the Trial Court wherein it is held

as under:

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"Even though the prosecution has to prove its case beyond all reasonable doubt, but when the prosecution has proved its case, then the burden will shift on the accused who is the best person to explain as to how the accident occurred, when an opportunity was given to him under Sec.313 of Cr.P.C. In this case PW.1 and 2 who are the eye- witness to the accident have deposed regarding rash and negligent driving of the Innova car by the accused and also accident caused to pedestrian Palani. Further PW.1 and PW.2 also deposed that due to accident the Palani sustained grievous injuries and succumbed to the injuries in the hospital. Further PW.1 and 2 also identified the accused, who was driving the Innova car on the date of accident. Hence, on the basis of the oral and documentary evidence, the prosecution has proved the offence alleged against the accused under Sec.279 and 304(A) of IPC. Therefore, point No.1 and 2 are answered in the Affirmative."

14. Further, he pointed out that entire burden is

always on the prosecution to establish its case and in the

case on hand, learned Trial Magistrate wrongly came to

the conclusion that in the absence of any explanation

offered by the accused, the conviction order has been

passed which is unsustainable in law and sought for

allowing the revision petition.

15. Per Contra, learned High Court Government

Pleader reappreciated the impugned judgments.

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16. He also pointed out that the alleged

contradictions in the cross-examination of P.W.1 and

P.W.2 are minor in nature and did not cause serious dent

in the case of the prosecution and sought for dismissing

the revision petition.

17. Having heard the parties in detail, this Court

perused the material on record meticulously.

18. On such perusal of the material on record,

accident is established by placing cogent and convincing

evidence on record by the prosecution. Palani was initially

shifted to K.R.Hospital from the place of accident. MLC

report shows about the road traffic accident. He was

treated in the K.R.Hospital and despite best treatment,

Palani did not survive. Thereafter, 304A of the IPC has

been invoked by the police apart from 279 IPC.

19. Accused being the driver of the Innova Car is

not in dispute. Admittedly, there is an eye witness to the

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incident, who did not nurture any enmity or animosity as

against the accused to falsely implicate in this case.

20. In the matter in this nature, speed is not the

only criteria to adjudge the rashness. Negligence on the

part of the accused has been spoken to by the prosecution

witnesses and it is for the accused to say under what

circumstances he could not avoid the accident and what

prevented him to take such necessary precautions which a

normal prudent driver would take when hanging a vehicle

in loco motion.

21. In this regard, gainfully this Court places the

reliance on the judgment of the Hon'ble Apex Court in the

case of Ravi Kapur V/s State of Rajasthan, paragraph

39 of the said judgment reads as under:

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the

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accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

22. Except mentioning the judgment of the Hon'ble

Apex Court, learned Trial Magistrate has rightly

appreciated the principles of law enunciated in the said

judgment in paragraph No.27 of the impugned order as

referred to supra.

23. Therefore, argument put forth on behalf of the

revision petitioner that the learned Trial Magistrate has

directed themselves in shifting the burden to the accused

in proving the case of the prosecution, cannot be

countenanced in law.

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