Karnataka High Court
Yallappa Nagu Naik vs The State Of Karnataka on 6 March, 2024
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CRL.RP No. 100214 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100214 OF 2016 (397)
BETWEEN:
YALLAPPA NAGU NAIK,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: DESUR, TQ: DIST: BELAGAVI.
- PETITIONER
(BY SRI. HARISH S MAIGUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY CPI,
KHANAPUR, TAL: KHANAPUR,
THROUGH S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C SEEKING TO ALLOW THE PETITION AND SET ASIDE
THE IMPUGNED JUDGMENT PASSED IN CRIMINAL APPEAL NO.
Digitally signed by
SAROJA
SAROJA HANGARAKI
Location: HIGH COURT
OF
202/2013 DATED 06.11.2015 PASSED BY THE LEARNED VIII ADDL.
HANGARAKI KARNATAKA,DHARWAD
BENCH
Date: 2024.03.07
DISTRICT AND SESSIONS JUDGE, BELAGAVI, CONFIRMING THE
10:37:14 +0530
ORDER PASSED IN C.C. NO. 593/2010, PASSED BY THE PRL. CIVIL
JUDGE & JMFC., KHANAPUR, DATED 19.11.2013 AND
COUNSEQUENTLY ALLOW THE PETITION FILED BY THE PETITIONER
& ETC.
THIS CRIMINAL REVISION PETITION, HAVING HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS ON 29.02.2024
COMING ON 'FOR PRONOUNCEMENT OF ORDER', THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 100214 of 2016
ORDER
Revision petitioner/ accused feeling aggrieved by
judgment of the first appellate Court on the file of The VII Addl.
District and Sessions Judge, Belagavi in Criminal Appeal No.
202/2013 dated 06.11.2015 in confirming the judgment of
conviction and order of sentence passed by the trial Court on
the file of Prl. Civil Judge & JMFC, Khanapur in C.C. No.
593/2010 dated 19.11.2013, preferred this revision petition.
2. Parties to the revision petition are referred with their
ranks as assigned in the trial Court, for the sake of
convenience.
3. Heard arguments of both sides.
4. After hearing arguments of both sides and on perusal of
trial court records, so also the impugned judgment under
revision, the following points arise for consideration.
i) Whether the impugned judgment under revision
passed by the first appellate Court in confirming the
judgment of conviction and order of sentence
passed by the trial Court for the offences
punishable U/s 279, 338, 304A of IPC r/w Section
184, 66 and 192 of M.V. Act is perverse, capracious
and legally not sustainable?
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ii) Whether interference of this Court is required?
5. The factual matrix leading to the case of prosecution can
be stated in nutshell to the effect that the complainant-
Manohar Maruti Bharankar and others on 18.05.2010 at 1.00
A.M. after attending Attarwadi fair, were returning to their
village in jeep No. KA-22-M-2378 driven by Manohar Irappa
Sulebhavikar. When they reached near Katgali factory by
keeping left side of the road, at that time, the rider of the
motorcycle No.KA-22-ED-1464 came with high speed in rash
and negligent manner so as to endanger human life and on
coming to the wrong side, dashed against the jeep from its
right side due to which, right side of the wheel of the jeep was
broken and detached from the jeep. The rider of motorcycle
and two pillion riders also fell on the road and sustained
injuries. One of the pillion rider, Satish, succumbed to the
injuries on 21.05.2010 while he was under treatment in K.L.E.
Hospital, Belagavi. Accused was the rider of motorcycle and
another pillion rider, Prasad sustained injuries in the said
accident.
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6. The prosecution further alleges that accident in question
has occurred due to rash and negligent riding of the rider of
motorcycle resulting into the death of one of the pillion rider,
Satish and causing injuries to accused being the rider of the
motorcycle and another pillion rider Prasad. The prosecution
further alleges that accused was riding the motorcycle by
violating the permit conditions and without displaying register
number of the vehicle.
7. The prosecution to prove the allegations made against
the accused relied on the oral testimony of PWs.1 to 8 and the
documents Exs.P.1 to P.9. The trial Court after hearing the
arguments of both sides and on appreciation of the oral and
documentary evidence placed before it, has convicted the
accused for the offences alleged against him and imposed
sentence as per order of sentence.
8. Accused challenged the said judgment of conviction and
order of sentence before the first appellate Court in Criminal
Appeal No. 202/2013. The first appellate Court after hearing
arguments of both sides and on re-appreciation of the material
evidence placed on record, dismissed the appeal and confirmed
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the judgment of conviction and order of sentence passed by the
trial Court.
9. The accused has challenged the correctness and legality
of the concurrent findings of both the Courts below in holding
that accused is guilty for the offences alleged against him. It is
contended that both the Courts below have not properly
appreciated the evidence of PW1-Manohar Maruti Bharunkar,
PW4-Manohar Irappa Sulebhavikar and PW5-Prakash Laxman
Kadam with reference to their admission in the cross
examination and as a result recorded improper findings which is
against the evidence on record and same cannot be legally
sustained. The evidence of PW7-Prasad Ashok Lohar who was
another pillion rider of the motorcycle driven by the accused
has been conveniently ignored by both the Courts below. The
spot features at the place of accident recited under the spot
panchanama-Ex.P.2 and the defence of accused has not been
properly appreciated by both the Courts below. The findings
recorded by both the Courts below that the accident in question
has occurred due to culpable rashness or negligence of the
accused in riding the motorcycle No. KA-22-ED-1464 cannot be
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legally sustained and therefore interference of this Court is
required.
10. Per contra, learned HCGP has argued that the Courts
below have rightly appreciated the evidence on record and
recorded proper findings on appreciation of evidence placed on
record by the prosecution. There are absolutely no valid
reasons to disbelieve the evidence of eyewitnesses, PW1-
Manohar Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar
and PW5-Prakash Laxman Kadam and their evidence is
consistent enough regarding the manner in which the accident
took place leading to the death of pillion rider-Satish and injury
to PW7-Prasad Ashok Lohar.
11. The factum of accident and the place of accident, so also
both the vehicles moving in opposite direction prior to the
accident, has not been disputed by the accused. The alleged
negligence of driver of Jeep No. KA-22-M-2378, PW4-Manohar
Irappa Sulebhavikar, leading to the accident in question has not
been established by the accused out of the evidence placed on
record. Therefore, the findings recorded by both the Courts
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below being based on material evidence on record, does not
call for any interference by this Court.
12. PW1-Manohar Maruti Bharunkar has deposed to the effect
that Jeep No. KA-22-M-2378 was driven by PW4-Manohar
Irappa Sulebhavikar wherein himself, CWs.8, 9 and 11 were
returning to Katgali village after attending Attarwadi fair on
18.05.2010 at 1.00 AM. While they were so proceeding,
accused came driving his motorcycle No. KA-22-ED-1464 with
two pillion riders in rash and negligent manner and dashed to
the front wheel on the driver side of the jeep due to which they
fell to the ground and all of them sustained injuries. One of the
pillion rider-Satish succumbed to the injuries sustained in the
accident.
13. PW4-Manohar Irappa Sulebhavikar was the owner and
driver of Jeep No.KA-22-M-2378 has deposed to the effect that
on 18.05.2010 at about 1.00 AM they were returning to Katgali
village after attending Attarwadi fair. At that time, the rider of
motorcycle No. KA-22-ED-1464 came from the opposite side
with two pillion riders in rash and negligent manner and dashed
to the right side of the jeep due to which the right side wheel of
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the jeep was broken and jeep was stopped after traveling to
some distance. The accused was rider of the motorcycle and
another pillion rider Prasad sustained injuries and one of the
pillion rider-Satish succumbed to the injuries sustained in the
accident.
14. PW5-Prakash Laxman Kadam who was inmate of the jeep
No. KA-22-M-2378 driven by the accused has deposed to the
effect that on 18.05.2010 at 1.00 AM they were turning to
Katgali village after attending Attarwadi fair. PW4-Manohar
Irappa Sulebhavikar was driving the jeep slowly and at that
time accused being the rider of the motorcycle No. KA-22-ED-
1464 with two pillion riders came from opposite side in high
speed rash and negligent manner and dashed against the right
side of the tyre of the jeep, due to which it was dislocated and
the jeep was stopped. On getting down from the jeep found
that accused who was riding the motorcycle and one pillion
rider-Prasad sustained injuries and another pillion rider-Satish
who sustained fatal injuries, later succumbed to the injuries
sustained in the accident.
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15. The evidence of above referred three witnesses who were
the inmates of the jeep No. KA-22-M-2378 driven by PW4-
Manohar Laxman Kadam, would go to show that they have
spoken about the accident having occurred due to culpable
rashness or negligence on the part of accused who was the
rider of the motorcycle No.KA-22-ED-1464. The pillion rider of
the motorcycle No. KA-22-ED-1464 driven by the accused who
suffered injuries has been examined as PW7-Prasad Ashok
Lohar who has deposed to the effect that himself and Satish
being the pillion riders, were returning on the motorcycle
No.KA-22-ED-1464 driven by the accused on Katgali road near
Haddi factory after attending the marriage of their relative. At
that time, the driver of the jeep No. KA-22-M-2378 came from
opposite side and dashed against the motorcycle ridden by the
accused, due to which himself and accused suffered injuries,
another pillion rider Satish succumbed to the injuries sustained
in the accident. This witness has been declared as hostile
witness by the prosecution and though he has been subjected
to cross examination, nothing worth material has been brought
on record so as to discredit his evidence.
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16. On going through the aforementioned evidence placed on
record by the prosecution, it would go to show that there are
two versions regarding the manner in which the accident took
place. The first version is that the accident in question has
occurred due to rash and negligent riding of motorcycle No.KA-
22-ED-1464 by the accused which dashed against the right side
wheel of the jeep No. KA-22-M-2378 driven by PW4-Manohar
Irappa Sulebhavikar and PW5-Prakash Laxman Kadam, who
were all the inmates of the jeep No. KA-22-M-2378 driven by
PW4-Manohar Irappa Sulebhavikar. The another version is in
the form of evidence of PW7-Prasad Ashok Lohar who was
pillion rider of the motorcycle driven by the accused that driver
of jeep No. KA-22-M-2378 came with high speed in rash and
negligent manner and dashed against the motorcycle due to
which the accident had occurred. The defence of the accused is
that the driver of the jeep No. KA-22-M-2378 taking undue
advantage of there being none to file the complaint on behalf of
the injured rider of motorcycle and the pillion riders, filed false
complaint alleging negligence of rider of motorcycle leading to
the accident in question. The aforementioned two versions
leading to the accident in question and the defence of accused
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is to be appreciated with reference to the spot features at the
place of accident recited under spot panchanama Ex.P.2 and
the cross examination of the material witnesses PW1-Manohar
Maruti Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5-
Prakash Laxman Kadam, who were all the inmates of the jeep
No. KA-22-M-2378 driven by PW4-Manohar Irappa
Sulebhavikar.
17. The independent panch witness to the spot panchanama-
Ex.P.2, Deepak Krishna Rangapurkar-PW2 and Bhujang
Yashwant Kadrolkar-PW3, have not supported the case of the
prosecution. The evidence of investigating officer, PW8-Arun
Ramchandra Naik, would go to show that he took up further
investigation from CW18 and spoken about the investigation
carried by him. The evidence of PW6-Divakar Maruti Payak
would go to show that he has only filed requisition to
incorporate the offence U/s 304(A) of IPC on receiving the
death intimation of Satish from K.L.E. Hospital, Belagavi. On
perusal of the spot panchanama-Ex.P.2, it would go to show
that the same was drawn by CHC No. 1508 of Khanapur Police
Station and he is cited as CW17 in the charge sheet but the
prosecution has not chosen to examine the said witness to
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prove the correctness of the spot panchanama drawn Ex.P.2.
Therefore, the prosecution out of the above referred evidence
has failed to prove correctness and the recitals of spot
panchanama-Ex.P.2.
18. Now it is only the oral testimony of PW1-Manohar Maruti
Bharunkar, PW4-Manohar Irappa Sulebhavikar and PW5-
Prakash Laxman Kadam, that remains on record to prove the
culpable rashness or negligence of accused, who was rider of
the motorcycle No.KA-22-ED-1464 leading to the accident in
question. The accident in question took place on 18.05.2010 at
1.00 AM. PW1-Manohar Maruti Bharunkar admits in cross
examination that the accident took place during the night hours
and it was dark, he was sitting by the left side of the driver of
the jeep. The jeep driven by PW4-Manohar Irappa
Sulebhavikar was stopped after traveling 5 feet from the place
of accident due to dislocation of the right side wheel and there
were crush mark on the road at distance of 5 to 6 feet while
proceeding on the road East to West. He further admits if the
wheels of the vehicle was dislocated then the vehicle will not be
under the control of the driver of the vehicle.
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19. PW4-Manohar Irappa Sulebhavikar claimed in his
evidence that while he was driving the vehicle took the vehicle
to the side of the road, the rider of motorcycle dashed against
front right side tyre of the jeep due to which the right side
wheel of the jeep was dislocated. PW4-Manohar Irappa
Sulebhavikar admits in his cross examination that after the
accident the vehicle traveled about 4 to 5 feet and stopped on
the middle of the road. He further admits that if the wheel of
the vehicle was dislocated, then the same will not be in control
of the driver of the vehicle. He further admits that if the right
side wheel was dislocated then the vehicle will be dragged to
the right side and if the left side wheel of the wheel was
dislocated, then the vehicle will be dragged to the left side.
20. PW5-Prakash Laxman Kadam admits in his cross
examination that the accident occurred on the middle of the
road and the jeep in which they were traveling, right side wheel
was dislocated and it was dragged for about 5 feet and then
stopped.
21. If the cross examination of the aforementioned three
witnesses, PW1-Manohar Maruti Bharunkar, PW4-Manohar
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Irappa Sulebhavikar, who was the driver of the jeep and
another inmate of the jeep, PW5-Prakash Laxman Kadam, are
perused, then it would go to show that the right side wheel of
the jeep was dislocated and the vehicle was dragged to some
distance for about 5 to 6 feet and then stopped on the middle
of the road. However, they claimed that it is on account of
impact of accident due to culpable negligence in driving the
motorcycle by accused, the wheel of the jeep was dislocated.
The jeep No. KA-22-M-2378 driven by PW4-Manohar Irappa
Sulebhavikar is a heavy vehicle than compared to the
motorcycle. According to their evidence, the vehicle was in
order and the M.V. Report-Ex.P.9 would go to show that
accident was not due to mechanical defect of any of the
vehicle.
22. Therefore, in view of the said evidence placed on record,
possibility of light motor vehicle, i.e., the motorcycle No. KA-
22-ED-1464 dashing against the right side of the bumper of the
jeep can cause dislocation of the wheel of jeep which is heavy
vehicle on the face of it appears to be too remote. The claim of
PW4-Manohar Irappa Sulebhavikar that he took the vehicle to
the side of the road, is not supported by the evidence on record
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since all the above referred witnesses have spoken about the
accident having taken place on the middle of the road. If the
placement of both the vehicles immediately after the accident
in view of the evidence of the aforementioned witnesses would
go to show that the motorcycle fell on the Northern side of the
road which was to the left side to the rider of the motorcycle
while proceeding from West to East.
23. The spot features of the place of accident as could be
made out from the evidence of aforementioned witnesses and
the placement of the vehicle immediately after the accident
would rule out the possibility of alleged culpable rashness in
riding the motorcycle by the accused leading to the accident in
question.
24. Indisputably, there was none to file the complaint
immediately after the accident by accused, since accused being
the rider of motorcycle and pillion rider-PW7 Prasad Ashok
Lohar sustained injuries and another pillion rider Satish
succumbed to the injuries sustained in the accident while he
was under treatment in K.L.E. Hospital. Therefore, under these
circumstances it is unsafe to rely only on the evidence of
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inmates of the Jeep No. KA-22-M-2378 driven by PW4-Manohar
Irappa Sulebhavikar. The evidence of PW7-Prasad Ashok
Lohar, one of the pillion rider also suffered injury in the said
accident cannot be totally brushed aside. Therefore, under
these circumstances the evidence placed on record by the
prosecution is insufficient to prove the alleged culpable
rashness or negligence on the part of accused in riding the
motorcycle No. KA-22-ED-1464 leading to the accident in
question. The benefit of doubt shall have to be extended to the
accused.
25. The prosecution alleges that accused has violated permit
conditions while riding the motorcycle No.KA-22-ED-1464. The
evidence on record would go to show that accused was riding
the motorcycle with two pillion riders. Whereas the seating
capacity of the motorcycle is 1+1, i.e., rider and one pillion
rider. The Courts below have held that the same amounts to
violation of permit conditions and attract penal action in terms
of Section 177 of M.V. Act. The accused was also charged with
the offence U/s 184 of M.V. Act for having riding the motorcycle
dangerously. What amounts to dangerous driving has been
given in explanation (a) to (f) of M.V. Act. The evidence placed
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on record does not meet any of the said legal requirement.
Therefore, the punishment of accused for the offence U/s 184
of M.V. Act cannot be legally sustained.
26. The courts below have proceeded on the presumption of
alleged culpable rashness or negligence of accused in riding the
motorcycle No. KA-22-ED-1464 on the death of one of the
pillion rider of motorcycle Satish and the injury to PW7-Prasad
Ashok Lohar and mere fact of not denying the accident in
question, has held that the prosecution has proved the offences
alleged against the accused only relying on the evidence of
inmates of the jeep which is one sided. The findings recorded
by both the Courts below cannot be legally sustained since the
said findings are against the evidence on record. However the
fine amount imposed for the offence U/s 66 of M.V. Act is
ordered to be maintained. Insofar as the other offences are
concerned, interference of this Court is required.
Consequently, proceed to pass the following order.
ORDER
Revision petition filed by the revision petitioner is hereby
partly allowed.
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The judgment of first appellate Court on the file of VIII
Addl. Dist. & Sessions Judge, Belagavi in Criminal Appeal No.
202/2013 dated 06.11.2015 in confirming the judgment of the
trial Court on the file of Prl. Civil Judge & JMFC, Khanapur in
C.C. No. 593/2010 dated 19.11.2013, are hereby modified as
under.
The conviction of accused for the offence U/s 66 of M.V.
Act and imposition of sentence is ordered to be maintained.
The accused is acquitted of the offences punishable U/s
279, 338 and 304(A) of IPC and Sec. 184 of M.V. Act.
Registry is directed to transmit the records to the trial
court with a copy of this order.
Sd/-
JUDGE
BVV
CT:GSM
