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Cr.R.P.No.100213/2014

IN THE HIGH COURT OF KARNATAKA,

DHARWAD BENCH

DATED THIS THE 13TH DAY OF DECEMBER, 2022

BEFORE

THE HON'BLE MR. JUSTICE G. BASAVARAJA

CRL.R.P.NO.100213/2014

BETWEEN:

LALSAB S/O. HUSSAINSAB MULLA,

AGE: 62 YEARS, OCC: DRIVER,
R/O. HORTI, TQ: INDI,
DIST: BIJAPUR.
…PETITIONER

(BY SRI. PRAKASH N.HOSAMANE, ADV.)

AND:

STATE OF KARNATAKA,
THROUGH PSI,
TRAFFIC POLICE STATION, DHARWAD.
REPT. BY SPP,
HIGH COURT, DHARWAD.
…RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

THIS CRIMINAL REVISION PETITION IS FILED UNDER

SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO
Digitally signed by SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
ROHAN
HADIMANI T SENTENCE PASSED BY PRINCIPAL DISTRICT AND SESSIONS
Date: 2022.12.30
13:17:59 +0530 DHARWAD IN CRIMINAL APPEAL NO.56/2011 DATED 05.09.2014
AND THE JUDGMENT AND ORDER OF CONVICTION PASSED BY
COURT OF PRINCIPAL SENIOR CIVIL JUDGE & CJM DHARWAD IN CC
NO.446/2008 DATED 30.05.2011 FOR THE OFFENCE UNDER
SECTIONS 279, 304A OF IPC AND 134(A) AND (B) READ WITH
SECTION 187 OF M.V. ACT, AND ACQUIT THE PETITIONER FOR THE
ALLEGED OFFENCE.

THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD

AND RESERVED FOR ORDERS ON 01.12.2022 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
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Cr.R.P.No.100213/2014

ORDER

This criminal revision petition is filed under Section

397 read with Section 401 of the Cr.P.C., seeking to set

aside the judgment and order of conviction and sentence

passed by the learned Principal District and Sessions

Judge, Dharwad in Crl.A.No.56/2011 dated 05.09.2014

and the judgment and order of conviction passed by the

learned Principal Senior Civil Judge & CJM, Dharwad in

C.C.No.446/2008 dated 30.05.2011 for the offences

punishable under Sections 279 and 304A of the Indian

Penal Code, 1860 (for short, “IPC”) and under Section

134(a) and (b) read with Section 187 of the Motor Vehicles

Act, 1988 (for short, “M.V.Act”) and acquit the petitioner

for the alleged offence.

2. The parties are referred to as per their rank

before the Trial Court.

3. Heard Sri. Prakash N.Hosamane, learned

counsel appearing for the petitioner and Sri V.M.Banakar,

learned Additional State Public Prosecutor appearing for

the State.
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Cr.R.P.No.100213/2014

4. Brief facts of the case is that, on 13.09.2008 at

06:30 p.m., the complainant along with his two staff were

entrusted with the duty of checking the vehicles which are

being driven in rash and negligent manner and in over

speed and accordingly on the date of incident PW.1 and

his staff were on such duty near agricultural university,

P.B.Road, Dharwad. One constable by name Balikai was in

the said squad and later another constable Hubballi came

and informed PW.1 that it is he who has been posted to

the said place and that Balikai should go back to the police

station. At that time, the offending truck bearing

Reg.No.KA-28/A-5244 being driven by the accused in a

high speed, rash and negligent manner came from

Dharwad side towards Belgaum. PW.1 directed constable

Hubballi to stop the truck and accordingly the said

constable gave signal to the accused to stop the truck. The

accused instead of stopping the truck, dashed the said

vehicle against constable Hubballi and fled away. PW.1

and his team chased the truck and stopped the truck near

Mummigatti Village. However, the accused fled away from

the said spot. PW.3 has shifted the injured constable

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Cr.R.P.No.100213/2014

Hubballi to the hospital where he succumbed to the

injuries. Thereafter, the case has been registered and after

completion of investigation, charge sheet has been filed

against this accused for the offences punishable under

Sections 279 and 304A of the Indian Penal Code, 1860 (for

short, “IPC”) and under Section 134(a)(b) read with

Section 187 of the Motor Vehicles Act (for short,

“M.V.Act”).

5. After taking cognizance, case was registered by

the learned Trial Judge in C.C.No.446/2008. In pursuance

of summons, accused appeared before the Court and

enlarged on bail. Substance of plea was recorded under

Section 251 of the Cr.P.C., having understood the same,

the accused has pleaded not guilty and claimed to be

tried.

6. To prove the case of the prosecution in all 6

witnesses are examined as PWs.1 to 6, 7 documents got

marked as Exs.P.1 to 7 and the truck has been marked as

MO.1.
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Cr.R.P.No.100213/2014

7. On closure of prosecution side evidence,

statement under Section 313 of the Cr.P.C., as to the

incriminating evidence put to the accused, accused has

totally denied the evidence of prosecution witnesses and

he has not chosen to lead defense evidence on his behalf.

8. On hearing the arguments on both the sides,

the learned Principal Senior Civil Judge & CJM, Dharwad

has passed the judgment of conviction against the accused

for the commission of offences punishable under

Sections279 and 304-A of IPC and under Section

134(a)(b) read with Section 187 of the M.V.Act. Being

aggrieved by this judgment of conviction and sentence

passed by the Trial Court, the accused has preferred an

appeal before the learned Principal District and Sessions

Judge, Dharwad in Crl.Appeal No.56/2011. This said

appeal is partly allowed. Being aggrieved by this judgment

of appeal, the accused has filed this revision petition.

9. Sri. Prakash N.Hosamane, learned counsel

appearing on behalf of the petitioner submits his

arguments that;
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9.1 The accused was not the driver of this vehicle. The

owner of the vehicle is shown as CW.19 in the

charge sheet but he has not been examined

before the Court to prove that the accused was

the driver of this vehicle at the relevant point of

time.

9.2 According to the case of the prosecution, the

accused was arrested on 18.09.2008. Even after

arrest of the accused, the IO has not collected any

materials to prove that he was the driver of the

vehicle. IO has not issued notice to the owner of

the vehicle under Section 133 of M.V. Act to

ascertain who was the driver of the offending

vehicle at the relevant point of time.

9.3 The evidence of the prosecution witnesses has not

supported any independent witness. Further he

has submitted that the deceased is a police

constable and only in order to support to the LR’s

of the deceased, all the police officials have

deposed against the accused which cannot be

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Cr.R.P.No.100213/2014

accepted without production of the believable and

trustworthy evidence before the Court.

9.4 Further he has submitted that none of the

witnesses have deposed as to the rash and

negligent act on the part of the accused. On the

contrary, PW.4 has deposed in his evidence that

the vehicle was only 40 kmph speed at the

relevant point of time. FIR is registered against

the unknown person. The prosecution has failed to

place the cogent, clinching and trustworthy

evidence before the Court to connect the accused

to the alleged crime. The Courts below have failed

to appreciate the evidence on record in proper

perspective manner. On all these grounds he

sought to allow the revision petition.

10. Sri. V.M.Banakar, learned Additional SPP has

submitted his arguments that during the course of cross

examination of prosecution witnesses, accused has not

denied that he was not the driver of the vehicle at the

relevant point of time. The accused has not offered any

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Cr.R.P.No.100213/2014

explanation under Section 313 of the Cr.P.C., as to the

implication of him in the charge sheet. PW.4 has identified

the accused before the Court. The Courts below have

properly appreciated the evidence on record in accordance

with law and he submits that there are no grounds to

interfere with the impugned judgments by this Court. On

these grounds, sought for dismissal of the revision

petition.

11. Having regard to the facts and circumstances of

the case, the following points arise for consideration;

Point No.1:- Whether prosecution proves beyond all

reasonable doubt that the accused was the driver of lorry

bearing Reg.No.KA-28/A-5244 at the relevant point of

time?

Point No.2:- Whether the impugned judgments suffer

from any legal infirmities?

Point No.3:- What order?

12. My answers to the above points are as under;

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Point No.1:- Negative.

Point No.2:- Affirmative.

Point No.3:- As per final order.

13. Reasons to Point No.1:-

13.1 Before appreciating of evidence on record, it

is necessary to mention here as to the

judgment of Hon’ble Apex Court in the case

of NANJUDAPPA AND ANOTHER V. THE

STATE OF KARNATAKA reported in 2022

LIVE LAW (5) 489, the Hon’ble Apex Court

clearly held that the doctrine of Res Ipsa

Loquitur Stricto Sensu would not apply to a

criminal cases. The entire burden is on the

prosecution to prove the guilt of the accused.

13.2 On the basis of the complaint filed by one

Yallappagouda Basanagouda Aregoudar,

Assistant sub-Inspector, Trafic Police Station,

Dharwad has registered the case in Crime

No.232/2008 against the unknown driver of

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the offending vehicle for the commission of

offences punishable under Sections 279 and

304-A of IPC and under Section 134(a)(b)

read with Section 187 of the M.V.Act.

13.3 PW.1 has deposed in his evidence as to the

contents of the complaint. He has not

deposed anything against this accused and

has not identified the accused and he has not

deposed in his evidence that at the relevant

point of time the accused was the driver of

this truck bearing Reg.No.KA-28/A-5244.

Therefore, this evidence of PW.1 will not help

to the case of the prosecution.

13.4 PW.3-Shivanand Basalingappa Kamati has

clearly deposed that he has not seen accused

and he has not given any description of the

driver of the vehicle to the Police. This

witness is treated as hostile witness. During

the Course of cross-examination by Assistant

Public Prosecutor after treating him as hostile

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witness, he has stated that he has given

statement to the Police as to the

identification of the driver of the vehicle but

he has not identified the accused. This

witness has not deposed as to the

supplimentary statement said to have been

recorded by the IO on 18.08.2008.

13.5 PW.4 Raghavendra Tippanna Ramdurg,

Police Constable, Traffic Police Station has

deposed in his evidence that on the date of

the accident at about 06:30 p.m., he was

discharging his duty at Old P.B.Road, near

Agricultural University, at that time, a lorry

was coming in a high speed from Dharwad

heading towards Belagavi, he was operating

the camera at that time and after seeing the

lorry which was coming in high speed, he

gave signal to stop the lorry and the

deceased police constable has also

attempted to stop the lorry, but the lorry

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driver did not stopped the lorry and dashed

the deceased police constable as a result he

has sustained injuries on his head and died

in the hospital.

13.6 PW.5-Dr. Manjunath Shivangouda Patil has

deposed in his evidence as to the post

mortem examination of the deceased and

issuance of PM Report as per Ex.P.5.

13.7 PW.6-Channabasappa Shiddabasappa

Kusugal has not supported the case of the

prosecution.

14. It is the case of the prosecution that after the

accident, the driver of the lorry fled away from the place.

In such circumstances, the IO ought to have issued the

notice to the owner of the motor vehicle to give all

information regarding the name and address, license held

by the driver which is in his possession.

15. The provision of Section 133 reads as under;

“Objects and Reasons.-Clause 133 provides that the

owner of a motor vehicle shall, on demand by a Police
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Officer, furnish the name and address of the driver or the

conductor of the vehicle who are accused of any offence
under this Act alongwith the licence number, etc.”

16. In the case in hand, the IO has not issued the

notice to the owner of the vehicle under Section 133 of the

M.V.Act. The owner of the vehicle is shown as CW.19-

Thimmaraya Shivalingappa Kainur but the said material

witness has not examined by the prosecution. The copy of

the driving license of the driver of the vehicle also not

produced by the prosecution. The prosecution has not

explained about non-compliance of Section 133 of the M.V.

Act to ascertain who was the driver of the lorry at the

relevant point of time.

17. The prosecution papers reveal that on

18.09.2008 the Police Inspector, Traffic Police Station,

Dharwad has arrested this accused. On the same day the

accused was produced before the Court and he was

remanded to the judicial custody but on 22.09.2008 the

accused was released on bail. Even after arrest of the

accused on 18.09.2008, the IO has not enquired as to the

driving license possessed by him.

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18. In the absence of the above material piece of

evidence, it is not just and proper to hold that the accused

was the driver of the vehicle in question at the relevant

point of time. Accordingly, the prosecution has failed to

prove beyond all reasonable doubt that the accused was

the driver of the vehicle in question at the time of the

incident. When the prosecution has failed to prove that the

accused was the driver of the vehicle in question at the

relevant point of time, the question of driving the vehicle

in a rash and negligent manner and causes of the alleged

accident does not arise.

19. Both the Courts have not properly appreciated

the evidence on record in proper perspective manner. Both

the Courts have not taken into consideration as to the

compliance of Section 133 of the M.V. Act. Accordingly, I

proceed to pass the following;

ORDER

i. The criminal revision petition is allowed.

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ii. The judgments passed by the learned Principal

Senior Civil Judge & CJM, Dharwad in

C.C.No.446/2008 dated 30.05.2011 and by the

Principal District & Sessions Judge, Dharwad in

Crl.Appeal No.56/2011 dated 05.09.2014 are set

aside.

iii. The petitioner/accused is acquitted for the

offences punishable under Sections 279 and 304A

of the IPC and under Section 134(a) and (b) read

with Section 187 of the M.V. Act.

iv. The fine amount deposited by the accused, if any,

shall be refunded to him with proper

identification.

v. Registry is directed to transmit the Trial Court

Records along with a copy of this order to the

Trial Court.

Sd/-
JUDGE
RH