M. Sharavana vs State of Karnataka

Rathnakala, J.

This revision petition is filed challenging the judgment of conviction recorded by the Additional Civil Judge (Jr. Dn.) and JMFC, Anekal in C.C. No. 327/2006 confirmed by the Presiding Officer, FTC - I, Bengaluru Rural District, Bengaluru in Criminal Appeal No. 36/2007, whereby, the revision petitioner is convicted for the offence punishable under Section 304A of IPC.

Facts succinctly stated:--

"The respondent/Investigating Officer charge sheeted the revision petitioner for the offences punishable under Sections 279, 338and 304A of IPC. The allegation was, on 07.08.2005, at 4.30 p.m., near Bangalore - Bannerghatta Road, near Kalkere Gate, the deceased Somashekara Gowda was riding his motorcycle bearing registration No. CRX-6391, along with Srinivasa who was a pillion rider, towards Weaver''s Colony on the left side of the road; the accused being the driver of the Tipper Lorry bearing registration No. AP-26-T-330, drove the said Lorry from Bangalore side, rashly in a negligent manner and dashed against the motorcycle; due to the impact, the motorcycle was damaged, the riders of the motorcycle suffered grievous injuries,. They were hospitalized, the deceased Somashekara Gowda was advised for higher treatment and while on the way to the Victoria Hospital, he expired."

The trial Court procured the accused, framed accusation, read over the same; the accused pleaded not guilty, the prosecution entered into trial; examined witnesses PWs. 1 to 7 and marked documents Exs. P.1 to P.6. The statement of the accused under Section 313 of Cr.P.C. was recorded. The accused had no rebuttal evidence. After giving audience to both, the learned Magistrate found the accused guilty for the offences punishable under Section 279 and 304A of IPC and he was acquitted of the accusation under Section 338 of IPC.

Aggrieved by the said judgment, the accused preferred appeal and the appeal was allowed in part, the sentence under Section 279 IPC was set aside but conviction under Section 304A of IPC was confirmed. The said judgment is under challenge in this revision.

Sri D.R.P. Babu, learned Counsel for the revision petitioner submits that, out of the six witnesses examined by the prosecution, PWs. 1 to 3 were the mahazaar witnesses and all the three of them turned hostile to the prosecution case. Complainant/PW.4 during the cross-examination admitted that he came to the spot after the accident and has not personally witnessed the accident. He has also admitted that he is unable to read and write Kannada and the complaint Ex. P.5 is drafted by the Bannerghatta Police. PW.6/one of the eyewitness stated that the Lorry was proceeding on the left side of the road from Bangalore to Bannerghatta and the motorcycle was proceeding from Bannerghata to Bangalore on the left side of the road. In the cross-examination he has stated, while proceeding on the motorcycle, since there was a crowd, he came to know that the accident has occurred. In the light of the said admission, it cannot be inferred that he is an eyewitness to the incident. There is contradiction in the evidence of PW.7 who is said to be the pillion rider of the motorcycle. The Investigating Officer was not examined. There is material contradiction between the oral evidence and documentary proof/spot mahazaar/Ex. P.4. The mode of accident is not established with cogent evidence by the prosecution. In all probability, the motorcycle has hit the Lorry from behind due to the negligence and fault of the deceased only. The prosecution is not able to establish the ingredients of Section 304A of IPC beyond all reasonable doubt. Hence, the revision petitioner may be acquitted of the accusation under Section 304A of IPC.

In reply, learned Government Pleader submits that the evidence of the complainant/PW.4, independent witness/PW.6 and injured witness/PW.7 are natural and sufficient to establish that it was a collusion between the motorcycle and the Tipper Lorry and the accused was the driver of the Tipper Lorry. It is because of the accused i.e., he gave consent before the trial Court to mark the prosecution documents, therefore, the prosecution gave up examining the official witnesses and the Investigating Officer. Now it does not lay in the mouth of the appellant to contend that the Investigating Officer is not examined. The death of Somashekara Gowda is due to the accident in question is an undisputed fact. Therefore, the prosecution has successfully established in bringing home the ingredients of Section 304A of IPC and there is no good reason to interfere with the judgment of the Court below in this revision jurisdiction and the petition is liable to the dismissed.

After giving audience to the rival submissions, I have gone through the evidence, oral and documentary. While it was the case of the prosecution that it was a head on collusion, PW.7 the pillion rider has voluntarily stated during his cross-examination that the Lorry hit his motorcycle from behind. As observed above, the complainant PW.4 is not the eyewitness, though he has identified his signature on the complaint Ex. P.5, on his own showing, he does not know to read and write Kannada and it is evident that he was not aware of the contents of the complaint which is in Kannda language. PW.6 is an independent witness. During his cross-examination, has stated that at the time of the accident, he was at a distance of 30 feet and was proceeding on the vehicle and came to know about the accident because of the crowd gathered.

Now coming to the documentary evidence, the post mortem report/Ex. P.2 indicates that all the six visible injuries on the body of the deceased was on his face, lips, nose and chin. As per the MVA report, the Lorry was not at all damaged while the front wheel and the front portion of the motorcycle was completely damaged among other damages. In the spot mahazaar/Ex. P.4, it is categorically mentioned that the motorcycle was sandwiched on the middle hind portion of the Lorry. That by itself speaks that the accident has not occurred as per the prosecution story. The discrepancy and the contradiction surfacing in the evidence of the prosecution are not minor to be over looked. They are material contradictions and have bearing on the merit of the case of the prosecution. Both the Courts below have not given advertence to this aspect of the matter, thereby, the findings recorded by both the Court is perverse and illegal and liable to be rejected. It is not just enough for the prosecution while establishing the offence under Section 304A of IPC to prove the death in the vehicular accident, but they are required to prove the rash and negligent driving by the driver of the offending vehicle which is glaringly lacking in this case. Hence, the revision petitioner/accused is entitled for acquittal from the accusation of the offence under Section 304A of IPC.

Accordingly, the revision petition is allowed. The petitioner accused is acquitted of the charge of accusation under Section 304A of IPC. His bail bonds if any, stands discharged.