Syed Ejaz Pasha vs State Of Karnataka

S Rachaiah, J

CAV ORDER

The petitioner is before this Court being aggrieved by the judgment of conviction and order on sentence dated 20.09.2012 in C.C.No.4076/2009 (Old C.C No.2300/2007) passed by the Metropolitan Magistrate, Traffic Court – III at Bengaluru and the judgment and order dated 07.09.2017 passed in Crl.A.No.641/2012 on the file of LXI Additional City Civil and Sessions Judge, Bengaluru City (CCH – 62) seeking to set aside the concurrent findings recorded by the Courts below.

The ranks of the parties henceforth will be considered as per their rankings before the Trial Court for convenience.

The Factual Matrix Of The Case Is As Under:

The case of the prosecution is that on 14.04.2008 at about 9.00 a.m., the accused being a rider of the motorcycle bearing Registration No.KA-05-EY-9248 drove the same in a rash and negligent manner and dashed to the pedestrian U.Ganesh who was crossing the road from east to west. Due to the impact, the pillion rider of the motorcycle, viz., Kumari Ayesha Banu sustained grievous injuries and the pedestrian also had sustained grievous injuries and succumbed to the said injuries. Based on the complaint, the respondent - police have registered a case and conducted the investigation and submitted the charge sheet.

To prove the case of the prosecution, the prosecution examined, in all, 10 witnesses as P.Ws.1 to 10 and got marked 12 documents as Exs.P.1 to P12. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offences punishable under Sections 279, 338 and 304-A of the Indian Penal Code (for short ‘IPC’). On appeal being filed, the same was confirmed by the Appellate Court. Hence, this revision petition.

Heard Sri.K.M.Somashekar, learned counsel for the petitioner and Sri.K.Nageshwarappa, learned High Court Government Pleader for respondent –State.

It is the contention of the learned counsel for the petitioner that both the Courts have committed error in recording the conviction for the offences stated supra even though the witnesses have not stated anything about the rash and negligent driving of the vehicle by the petitioner.

It is further submitted that the pedestrian committed negligence while crossing the road. The topography itself establishes that the accused has not committed any offence. The accused was not a rider of the motorcycle and the same has not been considered by the Trial Court. The Trial Court recorded the evidence perversely without proper appreciation, consequently, the impugned judgment was passed and the same is required to be set aside. Making such submissions, the learned counsel for the petitioner prays to allow the petition.

Per contra, the learned High Court Government Pleader justified the concurrent findings passed by the Courts below and prays to reject the petition.

Having heard learned counsel for the respective parties and also perused the findings of the Courts below, it is necessary to have a cursory look upon the evidence of all the witnesses.

P.W.1 is the relative of the deceased and he has not witnessed the accident. However, in the cross-examination, he had stated that the accused was driving the vehicle on the date of the accident.

P.W.2 has stated in his evidence that the motorcycle was being driven by the accused viz., Sayed Ejaz Pasha and he further stated that the accused was riding the motorcycle with high speed.

P.W.3 is the relative of the deceased. Though he is stated to be the eyewitness to the incident, he admitted in the cross-examination that he was in his shop at the time of the accident.

P.W.4 is stated to be an independent witness. He deposed in his evidence that the accused was driving the said vehicle with high speed.

P.W.5 was working as a Doctor at North Side Hospital, Sahakara Nagar, Bengaluru, stated to have treated the pillion rider viz., Ayesha.

These are all the relevant witnesses and also considered as material witnesses to the accident. Admittedly, P.W.1 and 3 are the relatives of the deceased. Both have admitted that the deceased after having crossed the grill, he was crossing the road. It is also admitted that it was not proper to cross the road and there was no zebra crossing.

P.W.2 being an independent witness, even though he has stated that he witnessed the accident, his evidence has not given effect for the reason that his evidence is not reliable.

P.W.4 also stated to be the independent witness. He stated that the accused was driving the vehicle with high speed and also admitted that the deceased was crossing the road where it was not meant for crossing.

Having read the evidence of all these witnesses, it is needless to say that the deceased was crossing the road negligently without following the procedure. Such being the fact, mere driving the vehicle by the rider of the motorcycle with high speed cannot be construed as rash and negligent driving. Therefore, both the Courts have committed error in applying the principle of law enunciated by the Hon'ble Supreme Court.

The Hon'ble Supreme Court in the case of State Of Karnataka Vs. Satish (1998) 8 SCC 493 held that merely riding the motorcycle with high speed cannot be construed as rash and negligent driving. In the present case, none of the witnesses have spoken about the rash and negligent riding of the motorcycle by the accused. In the absence of evidence in respect of the rash and negligent act of the rider of the motorcycle, it cannot be held that the accused is found guilty of the offence for the rash and negligent act. Therefore, the conviction rendered by the Courts below is liable to be set aside.

It is needless to say that though the Revisional Court has not confirmed the appreciation of the facts of the case. however, in a case where the Courts have approached erroneously, not only in appreciation of the evidence but also applying the proper law, under such circumstances, it is always desirable to interfere with the said concurrent findings in order to secure the ends of justice.

In the light of the observations made above, I proceed to pass the following:

ORDER

i) The Criminal Revision Petition is allowed.

ii) The judgment of conviction and order on sentence dated 20.09.2012 passed in C.C.No.4076/2009 (Old C.C No.2300/2007) passed by the Metropolitan Magistrate, Traffic Court – III at Bengaluru and the judgment and order dated 07.09.2017 passed in Crl.A.No.641/2012 by LXI Additional City Civil and Sessions Judge, Bengaluru City (CCH – 62), are set aside.

iii) The petitioner is acquitted for the offences under Sections 279, 338 and 304A of IPC.

iv) Bail bonds executed, if any, stand cancelled.