Jojo Mathew vs State of Karnataka

A.V. Chandrashekara, J.—Present revision petition is filed challenging the judgment of conviction dated 15.12.2007 passed by the learned Magistrate, MM Traffic Court-II, Bangalore in C.C. 1344/ 2006 and affirmation of the same by the court of City Fast Track (Sessions) Judge, Bangalore City, FTC-II in Cr.A. 38/2008 on 27.8.2009.

The petitioner was the sole accused in C.C. 1344/2006. He had faced the trial for the offences punishable under Sections 279,337, 304A of IPC. He has been convicted and sentenced to pay fine of Rs. 1,000/- for the offence punishable under section 279 of IPC in default to undergo simple imprisonment for a period of one month and to pay fine of Rs.500/-for the offences punishable under Section 337 of IPC in default to undergo simple imprisonment for a period of 15 days and further to undergo simple imprisonment for a period of 6 months and pay fine of Rs.500/- for the offences punishable under Section 304A of IPC in default to undergo simple imprisonment for a period of 2 months. Appeal filed under Section 374 of Cr.RC. is also dismissed after contest by confirming the judgment of conviction and sentence.

The facts leading to filing of the present revision petition is as follows:

On 8.5.2006 at about 10.20 a.m. the accused, being the driver of the Tata Sumo bearing registration No. KL-5-Q-1040 drove the same on Chamarajpet, 3rd Cross Road from north to south direction in a rash and negligent manner so as to endanger human life and dashed against the motorcycle bearing KA-02-EA-9187 which was driven by PW-1-Jagadish. Due to the said impact, the rider fell down and sustained simple injuries and the pillion rider fell down and sustained grievous head injury and on the way to hospital, pillion rider succumbed to the injuries. After filing charge-sheet, accused had appeared before the Court and had pleaded her guilty and claimed to be tried.

In order to bring home the guilt of the accused, prosecution has chosen to examine in all 9 witnesses and 10 exhibits. Accused have been examined under Section 313, Cr.P.C. and 3 witnesses have been examined inclusive of accused/petitioner. Ultimately, the learned Judge of the Trial Court has come to the conclusion that the prosecution is able to prove the case beyond reasonable doubt and further it has come to the conclusion that accused is not able to probablise the defence taken on behalf of him.

Entire case papers have been destroyed and therefore, the certified copies of the depositions of the witnesses are made available and they are part of the record. A copy of the same is given to the learned HCGP. In the light of the same, Sri. B.V. Pinto, learned counsel for the petitioner and Sri. S. Rachaiah, learned HCGP have submitted their arguments.

After going through the records and arguments of the learned counsel for the parties, following points arise for my consideration:

" 1. Whether the trial Court and First Appellate Court are justified in convicting the accused on the ground that the accused has not probablised his defence?

Whether any interference is called for and if so, to what extent?"

Reasons

The prosecution has examined in all three important witnesses. They are PW-1, Jagadish, PW-5, Krishna and PW-6, Murthy who are witnesses to the incident in question. PW-1 has deposed that he witnessed the accident at about 8.20 p.m. on 8.5.2006 when he was proceeding from Agrahara towards market in his motorcycle with his friend. It was Jagadish-PW-1 who was riding the motorcycle and when their vehicle reached 4th Main, 3rd Cross, one Tata Sumo which was proceeding from north to south dashed against his motorcycle and that the said Tata Sumo vehicle was driven in speed. As a result of the impact, himself and the pillion rider-Dhanpal fell down and Dhanpal sustained injuries. He has identified the accused as the driver of the said Tata Sumo vehicle.

PW-5, Krishna has deposed that he was proceeding on a two wheeler behind the vehicle driven by PW-1 and a Tata Sumo from Majestic which was being driven in high speed, dashed to the said motorcycle bearing No. KA-02-EA-9187. As a result of the impact, Dhanpal fell down on the footpath and Jagadish fell ahead of the motorcycle and Dhanpal sustained injuries on his head. He has identified Jagadish (PW-1) as the rider of the said vehicle. In cross-examination, PW-5 has specifically admitted a suggestion put to him that he went to the spot after seeing the public who had gathered there and by the time he went to the spot, public has already gathered. Therefore, a reasonable inference that is to be drawn is that he was not present when the accident in question took place. Therefore, much importance could not have been attached to the evidence of PW-5.

PW-6, Murthy is also an eyewitness to the incident in question according to the prosecution. He has deposed that one motorcycle was proceeding from west to east and a Tata Sumo which was proceeding with speed from north to south, dashed against the motorcycle, and that due to the impact, both the pillion and the rider fell down and the pillion fell on the right side footpath and both of them sustained injuries.

As already stated, none of these important witnesses have spoken anything about the rash and negligent driving except stating that the Tata Sumo vehicle was being driven with speed. Mere driving of the vehicle at high speed does not lead to an inference of negligent or rashness in driving the vehicle and causing the accident.

In the case of State of Karnataka v. Satish, (1998) 8 SCC 493, Hon''ble Supreme Court has dealt with term "high speed" and it is held that mere driving of the truck at a "high speed" does not lead to the inference that such negligent or rash driving has caused the accident resulting in death and injuries to the persons. Merely because Tata Sumo was driven with ''speed'' does not bespeak of either "negligence" or "rashness". None of the witnesses examined by the prosecution have given any indication, even remotely as to what they meant by ''speed''. The word "speed" or "High speed" are relative terms. As held by the Hon''ble Supreme Court criminality is not to be presumed, subject of course to some statutory exceptions.

Prosecution is expected to prove the guilt of the accused beyond reasonable doubt. The same degree of proof is not applicable whenever accused wants to probablise the defence. Just because, the counsel for the accused did not put the suggestion to the material witnesses that the motor cycle was driven in zig-zag and dashed against the tata sumo vehicle, during the course of cross-examination, the defence sought to be probablised on behalf of the accused could not have been easily brushed aside. In fact the prosecution has not discharged the initial burden in regard to the proof of foundational facts.

In the light of the same, this Court is of the opinion that the trial Court has not analysed the evidence of the material witnesses in right perspective and the First Appellate Court, being the final Court has not reassessed the same in its right perspective. Glaring illegality is writ large about the very assessment of the evidence of material witnesses. Even otherwise the witnesses have not testified as to whether the accident look place in the middle of the road or on the side of the road. In fact no acceptable evidence is placed on record to infer the culpable negligence or rashness. In this view of the matter, point No. 1 is answered in the affirmative.

Point No. 2: In view of the finding of point No. (1) in the affirmative, absolute interference is called for and the judgment of conviction and sentence passed by the trial Court and affirmed by the First Appellate Court are to be set aside. Hence, following order is passed:

ORDER

Revision petition is allowed. The judgment of conviction passed by the trial court in C.C.No. 1344/2006 and affirmed in Crl.A. No. 38/2008 is set aside. The accused is acquitted of all the offences alleged against him. Bail Bonds any executed by the accused and the surety stand cancelled.

Fine amount, if deposited, by the petitioner, be returned to him alter the appeal period is over.