1. Revision petitioner has filed this revision petition under Section 397 of Cr.P.C. seeking to set aside the judgment dated 24.06.2022 passed by the Principal District and Sessions Judge, Udupi, in Crl.A.No.29/2016 and the judgment of conviction and order of sentence dated 19.03.2016 passed by II Addl. Civil Judge and JMFC, Udupi, in C.C.No.1885/2013.

2. Parties are referred to as per their ranks before the trial court.

3. Brief facts of the case are that:

On 03.02.2013 at about 8.25 a.m. the accused being the driver of Vishal Bus bearing registration No.KA-19C5554 drove the same in a rash and negligent manner from Udupi towards Mangalore so as to endanger the human life and dashed to the ongoing two wheeler bearing registration No.KA-20-Y-3099 rode by the deceased near Padu Village, Community Hall while crossing the road divider. As a result of such accident, the rider of two wheeler Mohammed Sharief came under the bus along with his two wheeler and died at the spot. Thus, accused has committed the offence punishable under Sections 279 and 304A of IPC.

4. After filing the charge sheet the Principal Civil Judge and JMFC has taken cognizance for the alleged commission of offences punishable under Sections 279 and 304A of IPC and case was registered in S.C.No.1885/2013. In pursuance of the summons issued by the trial court accused appeared before the court and was enlarged on bail. This substance of plea is recorded under Section 251 of Cr.P.C. Having understood the same, accused has pleaded not guilty and claimed to be tried.

5. To prove the case of prosecution 7 witnesses are examined as PWs.1 to 7 and 12 documents were got marked as Exs.P-1 to P-12. On closure of prosecution side evidence statement under Section 313 of Cr.P.C. is recorded. Accused has denied the evidence of prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf. On hearing the arguments on both sides, trial court has convicted the accused for the commission of offences punishable under Section 279 and 304 of IPC. Being aggrieved by the judgment of conviction and order on sentence the accused has preferred an appeal before the Principal District and Sessions Judge in Crl.A.No.29/2016. Said appeal came to be dismissed on 24.06.2022. Feeling aggrieved and dissatisfied with this judgment, the revision petitioner has filed this revision petition.

6. Sri.Jagadeesha B.N., learned counsel for the petitioner has submitted that Investigating Officer has not examined any inmates of the bus. Though PWs.1 to 3 are not eye witnesses to this incident they have been shown as eye witnesses. During the course of cross examination of PWs.1 to 3 they have clearly admitted that only after the accident they have witnessed this incident. But both the courts have not properly appreciated the admission of PWs.1 to 3. Further he has submitted that there is no evidence to show that accident occurred due to rash and negligent act on the part of the accused. On all these grounds sought for allowing this revision petition.

7. As against this, Sri.K.Nageshwarappa, learned HCGP has submitted his arguments that both the Courts have properly appreciated the evidence on record and passed the impugned judgment and there are no grounds to interfere with the impugned judgments. On all these grounds sought for dismissal of this revision petition.

8. I have carefully re-examined the evidence, prosecution papers and also impugned judgments. On perusal of materials placed before this Court, it is crystal clear that on the basis of complaint by one Mohammad Mustafa, who is examined as P.W.1, Kapu Police has registered the case in Crime No.31/2013 and P.W.6 has submitted the FIR to the Court as per Ex.P-9 for the alleged commission of offences punishable under Sections 279 and 304A of IPC. Thereafter, P.W.7-Shiva Palekar, Circle Inspector of Police has conducted the inquest panchanama in the presence of panchas as per Ex.P-4 and also conducted spot panchanama as per Ex.P-2 and prepared a sketch on spot as per Ex.P-5 and recorded the statement of PWs.2 and 3. He has also issued a notice to RC Owner as per Ex.P-7 and obtained reply as per Ex.P-8. After obtaining PM report and IMV report and also gate pass as per Exs.P-10, P-11 and Ex.P-12 he has submitted charge sheet against the accused for the alleged commission of offences.

9. According to the case of prosecution Mohammad Mustafa - P.W.1, Nazeera - P.W.2 and Hasnab-P.W.3, are the eye witnesses to this incident. P.W.1 - Mohammad Mustafa has deposed in his evidence that Mohammad Sharief is his elder brother and he is witness to this accident that has occurred on 03.02.2013 at 8.35 a.m. He has further deposed that while the deceased was proceeding to sunni centre, by that time the driver of Vishal bus bearing registration No.KA-19C-5554 drove the same in a rash and negligent manner from Udupi to Mangalore and all of a sudden the driver of the bus took the bus towards left side i.e., divider side and hit to the Activa Scooter, who was coming from Moolur side and as a result his elder brother, who was a rider of scooter died on spot. But during the course of cross examination he has clearly stated that he was at the distance of half furlong from back side of the bus and when he rushed to the spot the inmates of the bus were alighting from the bus. When he rushed to the spot accused was standing near the spot. This admission made by P.W.1 clearly go to show that only after the accident P.W.1 rushed to the spot and found the dead body of his elder brother.

10. In Ex.P-1 it is stated that the complainant and other eye witnesses rushed to the spot of accident but the name of persons who have witnessed this incident is not disclosed in Ex.P-1. Even the name of PWs.2 and 3 is also not disclosed in the inquest panchanama. PWs.2 and 3 - Nazeera and Hasnab have deposed in their evidence that accident occurred due to rash and negligent act on the part of accused. But during the course of cross examination of P.W.2, he has clearly admitted that when he rushed to the spot, 4 people were standing near the spot and further he has admitted that he has not witnessed the driver of the bus.

11. Further he has clearly admitted in the cross examination made by Assistant Public Prosecutor after treating same as hostile witness he has stated on 03.02.2013 the Kapu Police have summoned him to the police station. Accordingly, he went to the police station and in the police station he has identified the accused and also noticed the name of the accused as Narendra and during the course of cross examination of P.W.3 he has clearly admitted that he has witnessed the accused for the first time in Kapu Police Station. This admission made by PWs.2 and 3 reveals that only after the accident they have visited to the spot. These witnesses cannot be treated as eye witnesses. Apart from this, during the course of cross examination of P.W.3 he has clearly admitted that his house is situated at the distance of 1 km from the place of accident. On the date of accident, road repair work was in progress, the vehicles were moving only one side. P.W.2 has also clearly admitted that only after the accident the driver of the bus stopped the bus on the spot. If really, P.W.2 and P.W.3 have witnessed this accident, P.W.1 would have mentioned their names in the complaint but he has not done so. If really the accused being the driver of the bus drove the same in rash and negligent manner in a high speed it was not possible for him to stop the vehicle on spot. 12. The evidence of P.W.3 clearly go to show that at the relevant point of time there was no possibilities to drive the vehicle in a high speed in a narrow road as the road repair work was in progress. This admission made by the material witnesses PWs.1 to 3 have not been considered by the trial court as well as appellate court. The evidence of PWs.1 to 3 itself create reasonable doubt as to the alleged rash and negligent act on the part of the accused. Hence, in view of the principle of criminal jurisprudence, benefit of doubt would go to the accused.

13. Considering the facts and circumstances of the case, I am of the considered view that both the Courts have not properly appreciated the evidence on record in proper and perspective manner. Considering the admissions made by the material witnesses of accused Nos.1 to 3 and also keeping in mind the decision of Hon’ble Apex Court rendered in the case of NANJUNDAPPA & ANR. vs. THE STATE OF KARNATAKA reported in 2022 LiveLaw SC 489, this Court is of the view that the prosecution has failed to prove the guilt of accused beyond reasonable doubt.

14. For the reasons aforestated, I proceed to pass the following:

ORDER

(1) Criminal revision petition is allowed.

(2) The judgment dated 24.06.2022 passed by the Principal District and Sessions Judge, Udupi, in Crl.A.No.29/2016 and the judgment of conviction and order of sentence dated 19.03.2016 passed by II Addl. Civil Judge and JMFC, Udupi, in C.C.No.1885/2013, are set aside.

(3) Accused is acquitted from the offences punishable under Sections 279 and 304A of IPC.

(4) Fine amount, if any, deposited by the accused shall be refunded.

(5) Registry is directed to transmit the records to the trial court along with the copy of this order.

In view of revision petition having been allowed, I.A.No.1/2022 for suspension of sentence does not survive for consideration and same stands disposed of.