Veerabhadrappa vs State of Karnataka

A.K. Laxmeshwar, J.—The above revision petition is directed against the judgment and order dated 26.8.1988 passed by the Sessions Judge, Raichur, in Criminal Appeal No. 36 of 1985 confirming the order dated 31.10.1985 passed by the J.M.F.C., Lingasugur in C.C. No. 297 of 1985.

The facts of the case in brief are:

That on 16.2.1985 at about 7.45 a.m. the accused drove the lorry bearing No. MYR 6060 on Kavital-Anwari Road near Anwari village rashly and negligently and dashed the said vehicle against mallappa who was riding a bicycle coming from the opposite direction. Further it was alleged that he failed to inform the accident to the nearest police station. Therefore, there was a charge-sheet for the offence punishable under Sections 279 and 338 of the Indian penal Code read with Section 89B of Motor Vehicles Act. The learned Magistrate alter recording the evidence of the prosecution witnesses, appreciated the evidence of both the sides and heard the arguments lastly, he passed an order convicting the accused for an offence punishable under Sections 279 and 338, of the Indian Penal Code and Section 89B of the Motor Vehicles Act, and sentenced him to undergo R.I. for a period of six months and pay a fine of Rs. 250/- for the offence u/s 297 of the Indian Penal Code, and sentenced to suffer R.I. for a period of six months and to pay a fine of Rs. 300/- for the offence u/s 338 of the Indian Penal Code and in default to undergo R.I. for one month. Further the petitioner was sentenced to pay a fine of Rs. 50/- for the offence punishable u/s 89B of the Motor Vehicles Act.

Being aggrieved, by the judgment and order of conviction and sentence. The accused filed Criminal Appeal No. 36 of 1985 in the Court of the Sessions Judge, Raichur. The learned Sessions Judge, after hearing both the sides, dismissed the appeal confirming the order of conviction and sentence. Being aggrieved by both the orders the petitioner filed the above criminal revision petition.

Mr. Viswanatha, learned Counsel for the petitioner, vehemently urged that both the courts below have failed to appreciate the evidence in the case. It is a fit case wherein this court has to reappreciate the evidence in view of the fact that P.W. 2 and P.W. 3 who arc eyewitnesses in the case are treated hostile and P.Ws. 4 and 5 are witnesses travelling in a bus, who had seen the injured lying down and not the impact between the lorry and the injured. None of the witnesses stated that the driver of the lorry was driving the vehicle rashly or negligently. Apart from this fact, both the courts erred in law in convicting the accused when the prosecution failed to establish that the driver was driving the vehicle rashly or negligently. Thirdly, the learned Counsel for the petitioner submitted that the vehicle was examined, according to the prosecution, by the Motor Vehicles Inspector, but the Motor Vehicles Inspector is not examined in the court. Therefore non-examination of the Motor Vehicles Inspector is fatal to the case.

The learned State Public Prosecutor supported both the judgments and argued that both the judgments and orders are sustainable in law as both the courts have taken into consideration all the material placed before them.

P.Ws. 2 and 3 are the only eyewitnesses, according to the prosecution, who have seen the incident P.Ws. 4 and 5 are the witnesses who have gone to the spot, subsequent to the incident P.W. 4 in unequivocal terms has stated that he had seen that the P.W. 1 who was lying on the middle of the road and directed the driver, of the bus to stop the vehicle. Then he, the driver, and the conductor of the bus and others got down from the bus and went near P.W. 1. Therefore, he is a witness, who has come to the spot after the incident, i.e. the accident. His evidence is of no assistance of the prosecution to establish the actual happening P.W. 5 has also stated similarly. Therefore, there is absolutely no material worth the name to establish the guilt of the accused.

The next contention of the learned Counsel for the petitioner is that the non-examination of the Motor Vehicles Inspector is fatal to the prosecution. For that the learned Counsel for the petitioner relied upon an unreported decision of this court in Criminal Revision Petition No. 82 of 1987; Decide on 26.8.88. In the said decision his Lordship was pleased to observe that non-examination of the Motor Vehicles Inspector is fatal to the case. Therefore, the findings of the courts below are held to be vitiated and the accused petitioners is entitled to be acquitted.

I am bound by the decision of this court. Therefore, for the reasons stated above and for the observation made in the citation. I am inclined to hold that both the judgments and orders of conviction and sentence passed by the courts below are not sustainable in law. In the result, the criminal revision petition is allowed. The judgments and orders of conviction and sentence passed by both the courts below are set aside.

The petitioner is acquitted. If any fine is paid by the petitioner, it shall be refunded to him. The bail bond stands cancelled and the petitioner is set at liberty.