Moidin vs State Of Karnataka

S Rachaiah, J

CAV ORDER

The petitioner being aggrieved by the judgment of conviction and order on sentence dated 28.08.2015 in C.C.No.1628/2011 passed by the JMFC (III Court), Mangaluru, D.K., and the judgment and order dated 16.05.2017 passed in Crl.A.No.223/2015 on the file of the Principal Sessions Judge, Dakshina Kannada, Mangaluru seeking to set aside the judgments and orders passed 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 Are As Under:

The case of the prosecution is that on 05.10.2010, at about 8.15 am, the accused being a driver of Sneha Public School bus bearing its No.KA19-19-B-757, drove the same from Chembugudde towards Thokkottu on a public road in a rash and negligent manner and dashed to the compound wall on the right side of the road, thereby, two children have sustained simple injuries and other two persons have sustained grievous injuries. In the said accident, one Lolakshi @ Aishwarya sustained severe injures and succumbed to the said injuries in the hospital. CW1 lodged a complaint before the respondent police. Based on the said complaint, the respondent police registered a case in Cr.No.279/2010 against the accused. After conducting investigation, the jurisdictional police submitted the charge sheet.

To prove the case, the prosecution has examined 12 witnesses as P.Ws.1 to 12 and got marked 23 documents as Exs.P.1 to 23(a). The Trial Court recorded the convictions for the offences punishable under Sections 279, 337, 338 and 304A of IPC. The appellate Court allowed the appeal in part.

Heard Sri.Talha Ismail Bengare and Sri. Mohammed Zameer K, learned counsel for the petitioner and Sri. K. Nageshwarappa, learned High Court Government Pleader for the 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 even though the witnesses have not stated anything about the rash and negligent driving of the driver of the vehicle.

It is further submitted that the evidence of interested witnesses viz., P.Ws.1 to 3, 5 and 6 had to be considered thoroughly with legal scrutiny. The Trial Court ignored in considering the legal infirmities and uncorroborated versions of the P.W.9 with the evidence of P.W.2 in respect of the documents viz., Exs.P.23 and P7. Consequently the impugned judgments are passed which are 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 and prays to reject the petition.

Having heard the 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 a complainant and also an injured. She deposed that due to the accident she sustained injuries and she was shifted to the hospital for treatment. The police recorded her statement in the hospital as per Ex.P.1. She supported the case of the prosecution.

P.W.2 is the witness to the spot mahazar which is marked as Ex.P.7 and also an eyewitness to the incident. He identified the accused both at the spot of accident as well as in the Court. There is nothing to discredit in his evidence.

P.W.3 is a minor and injured witness. The child supported the case in respect of the accident occurred.

P.W.4 is a witness to the Ex.P.8 and he supported the case. He is stated in his evidence that the bus was being driven by the accused in a rash and negligent manner. Consequently, the accident had occurred.

P.W.5 is an independent witness stated about the accident, he identified the accused.

P.W.6 was running a shop in the area where the accident had occurred. He did not identify the driver of the bus.

P.W.7 was working as a Head Master of Sneha Public School. She did not state about the driver of the bus.

P.W.8 is a Head Constable of the respondent police. He is stated to have visited the Nethaji Hospital and recorded the statement of injured. Thereafter, registered a FIR against the accused and handed over the case to the PSI for further investigation.

P.W.9 is a witness to the Ex.P.7. He supported the case of the prosecution.

P.W.10 was working as a Circle Inspector conducted investigation and submitted the charge sheet.

These are all the material witnesses and their evidence has to be considered for the purpose of arriving at a conclusion as to whether the Courts below have rightly appreciated their evidence and applied the proper law or not. No doubt, P.Ws.1 and 3 are the injured witnesses supported the case of the prosecution. P.W.2 though appears to be witness to Ex.P.7-mahazar, the facts remain that he is an eyewitness to the incident. He also identified the accused was driving the vehicle.

P.W.7 being a Head Mistress of the School, she did not support the case of the prosecution. However, the evidence of P.W.3 has to be considered in respect of the incident which had occurred on that day. According to P.W.3, the deceased and himself were going to the school by walking. The offending bus dashed both of them. Consequently, he was thrown into the gutter and another died at the spot. Some of the witnesses have identified the accused that, he was driving the vehicle. However, the school authority has denied that the accused was driving the said vehicle on the date of accident. Such being the fact, the Courts below have extended the benefit of doubt to the accused. In other words, if the two views are possible, one which is favorable to the accused has to be given to him as benefit.

As both the Courts have committed error in extending the benefit of doubt to the accused, interference with the said findings of the Court below is justified. Therefore, the findings of the Courts below are liable to be set aside.

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 28.08.2015 passed in C.C.No.1628/2011 by the Court of J.M.F.C. (III Court) Mangluru, D.K. and the judgment and order dated 16.05.2017 passed in Crl.A.No.223/2015 by the Court of the Prl. Sessions Judge, Dakshina Kannada, Mangaluru, are set aside.

iii) The petitioner is acquitted for the offences punishable under Sections 279, 337, 338 and 304-A of IPC.

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