1. The present petitioner was tried as accused by the Court of learned Junior Judge and Judicial Magistrate First Class, Arasikere, (hereinafter for brevity referred to as the 'trial Court') in C.C. No. 448/2009, for the offences punishable under Sections 279, 337, 338, 304-A of Indian Penal Code, 1860 (hereinafter for brevity referred to as the 'IPC') and Section 187 of Motor Vehicles Act, 1988, (hereinafter for brevity referred to as 'M.V. Act') and was convicted by the judgment of conviction and order on sentence dated 18.07.2011 and was sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No. 77/2011, before the learned Fast Track Court-II and Sessions Judge, Hassan, (hereinafter for brevity referred to as the 'Sessions Judge's Court'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 02.06.2012. Being aggrieved by the same, the accused has preferred the present revision petition.

2. The summary of the case of the prosecution in the trial Court was that on 07.01.2009, at about 3.45 p.m., when CW-1/PW-1 Samiulla and the deceased Syed Akram were going on TVS motorcycle bearing registration No. KA-13-U-4448, on Banavara-Javagal road, near Kachighatta Gate within the limits of respondent-Police Station, a mobile goods vehicle bearing registration No. KA-13-A-4181, being driven by the accused in a rash and negligent manner, coming from Javagal side towards Banavara, dashed to the motorcycle on which CW-1/PW-1 and Syed Akram were going on. Due the said accident, Syed Akram sustained multiple injuries on different parts of his body and while being shifted to higher medical centre for treatment, he succumbed to the injuries. CW-1 - Samiualla also sustained multiple injuries to the different parts of his body. The accused who caused the accident, did not attend for the medical treatment of the injured nor informed the nearest Police Station about the accident, rather, he ran away from the spot and thereby has committed the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 187 of M.V. Act.

3. The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all ten witnesses from PW-1 to PW-10 and got marked documents from Exs.P-1 to P-10. However, neither any witness was examined nor any documents were got marked on behalf of the accused.

4. The learned counsel for the petitioner and learned High Court Government Pleader for the respondent are physically present in the Court.

5. Heard the arguments from both side. Perused the materials placed before this Court, including the trial Court records.

6. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.

7. After hearing from both side, the only point that arise for my consideration in this revision petition is:

Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code, 1860, and Section 187 of Motor Vehicles Act, 1988, warrants any interference at the hands of this Court

8. Learned counsel for the petitioner in his argument submitted that the petitioner/accused was sentenced twice for the offence punishable under Section 338 of IPC by the trial Court. He also stated that the driver of the offending vehicle has not been identified by any of the witnesses. No witnesses have stated in their evidence that it was the accused who was driving the alleged offending vehicle. He also stated that the deceased who was the rider of the motorcycle is also a contributory to the road traffic accident. Stating that PW-8, the Head Constable has no where stated about who shown him the alleged spot of the accident, as such, the same is not believable, learned counsel prayed to allow the revision petition.

9. Learned High Court Government Pleader for the respondent in his argument submitted that several of the charge sheet witnesses examined by the prosecution have supported the case of the prosecution. No witnesses have spoken about the contribution by the deceased to the road traffic accident. He also submitted that if the accused was not driving the goods vehicle, then, it was for him to explain as to how the accident took place and who was the driver of the offending vehicle, otherwise, an adverse inference is required to be drawn against him. In this regard, learned High Court Government Pleader relied upon a judgment of Hon'ble Apex Court in Ravi Kapur -vs- State of Rajasthan, reported in [ (2012) 9 SCC 284] [LQ/SC/2012/660] . With this, he prayed for dismissal of the revision petition.

10. The petitioner has not denied or disputed the occurrence of the alleged road traffic accident involving TVS-XL motorcycle bearing registration No. KA-13-U-4448 and a goods vehicle bearing registration No. KA-13-A-4181, on the date, time and place mentioned in the charge sheet. The petitioner has also not denied or disputed the death of Syed Akram due to the injuries sustained by him in the said road traffic accident. However, the main contention of the petitioner is that the prosecution has not proved that it was the accused who was the driver of the offending vehicle and that he was rash and negligent in his driving.

11. Among the ten witnesses examined by the prosecution, PW-1, PW-3, PW-4 and PW-5 are examined as eye witnesses to the alleged incident. All these witnesses have supported the case of the prosecution.

PW-1 - Samiulla has stated that on 07.01.2009, he was also going with the deceased as a pillion rider in the motorcycle bearing registration No. KA-13-U-4448 towards Javagal. At about 3.30 p.m. to 4.00 p.m. near Kachighatta village, a Mahindra Maxi Cab vehicle being driven by its driver in a rash and negligent manner coming from Javagal side, dashed to the motorcycle on which these riders were going. In the said accident, his right leg got cut and he sustained injuries to his right hand and other parts of the body. He also stated that, in the said accident, his friend deceased Akram sustained injuries to his head, face and limbs. Somebody shifted them to hospital at Banavara and thereafter for higher treatment to a hospital at Arasikere. The witness also stated that the driver of the offending vehicle ran away from the spot and he could not see who the driver was stating that he has given his complaint to the police in the hospital, the witness has identified the same at Ex.P-1.

In his cross-examination, suggestions were made to show that road was curvy at the spot of the accident, which, this witness has admitted as true. A suggestion made to him that accident had occurred due to the fault of rider of the motorcycle was not admitted as true by this witness. He denied a suggestion that accident in question has occurred at the fault of the rider of the motorcycle.

12. PW-3 - Asif and PW-4 -Anu @ Anwar, have stated that they too were going on a motorcycle on the date of the accident to attend a vehicle repair at Javagal. While they were going on motorcycle, the deceased Syed Akram and PW-1 were going ahead of them in a motorcycle. At that time, they saw the Mahindra vehicle going from Javagal side in high speed and dashing to the motorcycle in which the deceased was riding. The driver of the offending motor vehicle stopped the vehicle near the spot of the accident and ran away from there. It is them (these witnesses) who shifted the injured to the hospital at Banavara. They stated that deceased Akram had sustained injuries to his head, face and limbs and PW-1 had sustained injuries to his legs. The witnesses have further stated that they also admitted the injured from Banavara hospital to hospital at Arasikere, however, while the deceased was being taken to a higher medical centre, he died on the way. Both of them have stated that the accident had occurred at the fault of the offending goods vehicle.

Both these witnesses were subjected to a detailed cross-examination from the accused side, however, they adhered to their original version. They denied a suggestion that the accident had occurred at the fault of rider of the motorcycle.

13. PW-5 - Syed Akram has stated that he knows deceased Syed Akram. On 07.01.2009, while he was coming from his work from Kachighatta Gate towards the road, he saw the occurrence of the accident. He has stated that, at about 3.30 p.m. to 4.00 p.m., the motor vehicle bearing registration No. KA-13-6181, being driven by its driver in a high speed and in a rash and negligent manner, dashed to the motor cycle on which the deceased Akram was riding, due to which, Akram fell down. Since he was a known person, he shifted him to Banavara hospital. The witness has stated that after the accident, the accused ran away from the spot, whom he can identify. The witness also stated that he shifted the injured from Banavara hospital to Arasikere hospital and from there to Hassan, however, he came to know that injured Akram succumbed to the injuries.

In his cross-examination, the witness has admitted a suggestion as true that the road is curvy in the spot of the accident. He also stated that he has seen the accused in the place of the accident.

14. PW-2 - Syed Muktiyar, is admittedly a hearsay witness. He is the brother of deceased Syed Akram, who has stated that, on the evening of the date of the accident, he came to know about the accident through phone. Thereafter, he went to Banavara hospital and he got his brother admitted to the hospital. However, while the injured was being shifted to Bengaluru for higher treatment, he died near Tiptur. As such, the body was brought to hospital at Arasikere and post mortem examination was got done there. He stated that he has given a complaint to the police in that regard as per Ex.P-2. He also stated that in the said accident, PW-1 sustained injuries to his leg, hands and other parts of the body.

15. PW-6 - Arif and PW-7 - Syed Pheer, have stated that the scene of offence panchanama as per Ex.P-3 was drawn in their presence by the police.

16. PW-8 - Chandrashekar, then Head Constable of the respondent-Police Station has stated that on 07.01.2009, while he was in-charge of the Station, at about 4.45 p.m., based upon a telephonic information, he went to the Government Hospital and recorded the statement of the injured Samiulla. After returning to the Station, he registered a crime in their Station and submitted FIR to the Court and has identified the FIR at Ex.P-7. He also stated that on the same evening between 6.10 p.m. to 7.00 p.m., he drew a mahazar and seized the vehicles involved in the accident and also prepared a rough sketch of the spot as per Ex.P-8. He identified the mahazar at Ex.P-3.

17. PW-9 - T.D. Raju has stated that, while he was working as the Circle Police Inspector of Arasikere Rural, he continued the investigation in this matter, wherein he recorded the statements of CW-3 and CW-4 and collected the injury certificate of injured Samiulla and post mortem examination report of deceased Syed Akram. After collecting the Motor Vehicle Inspection Report, he filed the charge sheet against the accused in the Court. He has identified the Post Mortem Examination Report at Ex.P-5, Wound Certificate at Ex.P-9 and Motor Vehicle Inspection Report at Ex.P-4.

18. PW-10 - Nanjudegowda has stated that while he was working as Police Sub-Inspector of respondent-Police Station on 08.01.2009, he took up the case file after FIR was filed in it. On the same day, he received the additional complaint filed by Syed Myktiyar reporting the death of Syed Akram. As such, incorporating Section 304-A of IPC in the crime, he submitted second FIR to the Court. He has identified the additional complaint at Ex.P-2.

19. The evidence of PW-1, PW-3, PW-4 and PW-5 speaks about the occurrence of road traffic accident on 07.01.2009, at about 3.45 p.m., near Kachighatta village involving a TVS-XL Moped bearing registration No. KA-13-U-4448 and a goods vehicle. Their evidence also reveals that in the said accident, PW-1 sustained injuries, which PW-1 himself has described as cutting of his right leg and other injuries, which means, PW-1 sustained both simple and grievous injuries. The Wound Certificate at Ex.P-9, which has not been disputed from the accused side, shows that injured Samiulla had sustained fracture in the right thigh, fracture in the right wrist, both of them were grievous in nature and two abrasions, two contusions and lacerated injuries on the other parts of the body, which were considered as simple in nature.

20. The inquest panchanama at Ex.P-6 shows that as per the opinion of panchas, deceased Syed Akram sustained injuries and succumbed to it. The post mortem examination report at Ex.P-5, which document is not disputed from the accused side, apart from mentioning the injuries sustained by the deceased, including linear fracture of fronto-parieto occipital bone on left side measuring 7 inches in length, also mentioned few more wounds on the other parts of the body and the doctor has opined that the death of Syed Akram was due to head injury.

Thus, the undenied evidence of PWs. 1 to 5 that deceased Syed Akram sustained injuries in the accident and succumbed to the same establishes that Syed Akram, who sustained injuired in the accident, succumbed to it.

21. The next question would be whether the petitioner herein was the driver of the alleged offending vehicle bearing registration No. KA-13-U-4448 and whether he was driving the said vehicle in a rash and negligent manner.

In this regard, as analysed above, PW-1, PW-3, PW-4 and PW-5 have claimed themselves to be the eye witnesses to the incident. None of these witnesses have stated that it was the accused who was driving the alleged offending vehicle. PW-1 who is one among the injured in the accident has stated that driver of the offending vehicle ran away from the place and that he has not seen as to who was driving the offending vehicle. Therefore, being an eye witness to the incident, he could not see as to who was driving the offending vehicle.

PW-2 admittedly is only a hearsay witness, as such, he cannot say as to who was driving the offending vehicle. Though PW-3 and PW-4 also have claimed to be the eye witnesses to the incident, but, neither of them have stated that they have seen as to who was driving the offending goods vehicle. Both of them have stated that the driver of the offending vehicle after stopping the vehicle near the spot, ran away from the place. However, neither of them could say as to who was that driver who is said to have ran away from the place. Interestingly, though it is the case of the prosecution that the registration number of offending vehicle was KA-13-A-4181, PW-4 has stated its registration number as KA-13-4118. Thus, even in mentioning the registration number of the alleged offending vehicle also, PW-4 has committed a mistake. Thus, the evidence of PW-3 and PW-4 also could not be able to establish that it was the accused and accused only who was driving the vehicle.

22. The last eye witness who is PW-5 though has stated that the accused ran away from the spot after the accident and that he can identify him, but, nowhere he has stated that accused was driving the offending vehicle. Therefore, merely because accused is said to have ran away from the spot, by that itself, it cannot be inferred that accused was the driver of the offending vehicle at the time of the accident.

Added to the above, none of the above witnesses i.e., PWs.1, 3, 4 and 5 have identified the accused in the Court. The prosecution did not got the accused identified by any of these witnesses. Therefore, the evidence of these alleged eye witnesses would not help in prosecution's attempt to establish that it was the accused and accused alone who was driving the offending vehicle.

23. Added to the above, though PWs.3, 4 and 5 claim themselves to be the eye witnesses to the accident and that they shifted the injured to different hospitals, but, there are variations in their statements in that regard. According to PW-3, deceased succumbed to the injuries while he was being shifted to a higher medical centre at Hassan. According to PW-4, deceased succumbed to the injuries while he was being shifted to a higher medical centre at Bengaluru. According to PW-5, the injured died in a hospital at Hassan, whereas, according to PW-2, the brother of the deceased, the injured died near Tiptur while he was being shifted to Bengaluru.

24. Thus, all these four witnesses, who claim that they did accompany the injured Syed Akram while he was being shifted to a higher medical centre, have given different versions as to the place where the injured Syed Akram is said to have been died due to injuries. Therefore, the evidence of PWs.3, 4 and 5, who could not give either the description of the accused nor the place of death of the deceased nor even the correct registration number of the alleged offending vehicle, is not safe to believe.

Thus, even though by the evidence of PWs.6, 7 and 8 it is established that the accident in question was between TVS-XL Moped bearing registration No. KA-13-U-4448 and goods vehicle bearing registration No. KA-13-A-4181, but, from the evidence of these witnesses, including PW-9 and PW-10, it could not be established that it was the accused and accused alone who was driving the offending vehicle bearing registration No. KA-13-A-4181.

25. Thus, the prosecution though could able to establish the occurrence of the accident and death of Syed Akram due to the injuries sustained by him in the accident and also PW-1 sustaining simple and grievous injuries in the accident and further though it could establish that after the accident, the driver of the offending vehicle ran away from the place without getting medical treatment to the injured or without informing about the accident to the nearest Police Station, but, the prosecution could not able to establish that it was the accused and accused alone who caused the accident in question. However, both the trial Court and Sessions Judge's Court without noticing these discrepancies in the case of the prosecution, have embraced the evidence of PWs.1 to 5 and merely because some of them have stated that accused ran away from the place, they hastily jumped to a conclusion that it was the accused and accused alone who was driving the offending vehicle and proceeded to convict him for the alleged offences.

26. Since the said finding now proved to be perverse and erroneous, the same warrants interference at the hands of this Court. Further, the trial Court has even committed an error by ordering sentence upon the accused twice for the offence punishable under Section 338 of IPC. For these reasons, I proceed to pass the following order:

ORDER

[i] The Criminal Revision Petition stands allowed.

[ii] The impugned judgment of conviction and order on sentence dated 18.07.2011, passed by the learned Junior Judge and Judicial Magistrate First Class, Arasikere, in C.C. No. 448/2009, which was further confirmed by the judgment and order dated 02.06.2012, passed by the learned Fast Track Court-II and Sessions Judge, Hassan, in Criminal Appeal No. 77/2011, are hereby set aside;

[iii] The revision petitioner (accused) - Harish, S/o. Huligowda, aged about 31 years, residing at Goni Somanahalli Village, Halebeedu Hobli, Belur Taluk, Hassan District, stands acquitted of the offences punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code, 1860, read with Section 187 of the Motor Vehicles Act, 1988.

The bail bonds executed by the accused and sureties, if any, stands cancelled.

Registry to transmit a copy of this order to both the trial Court, along with the record, and also to the Sessions Judge's Court immediately.