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2008 DIGILAW 292 (KAR)

Durgappa v. State of Karnataka

2008-06-16

A.S.PACHHAPURE

body2008
ORDER A.S. Pachhapure, J. The petitioner has approached this Court challenging his conviction and sentence for the offence under Sections 279, 337, 338 and 427 of IPC on a trial held by the Magistrate, Chitradurga and confirmed in Crl. A.No. 46/2006 by the Sessions Court. 2. The facts relevant for the purpose of this petition are as under :- It is alleged that on 14.05.2005 at about 4.30 p.m. while the petitioner was driving the bus bearing No. KA-17/F-427 form Chitradurga to Chikkappanahalli, near Madanayakanahalli, the petitioner drove the bus in a rash and negligent manner so as to endanger human life, the bus hit the house of PW-1 situate on the right side of the road and having caused injuries to PWs 1 and 3, the owner of the house and a passenger in the bus. After the accident, PW-1 approached PW-7, the PSI, Chitradurga Police Station and submitted the complaint Ex.P1, which came to be registered in Cr. No. 85/2005 for the offence punishable under Sections 279, 427, 337 and 338 of IPC and he sent the complaint and the FIR to the Magistrate and thereafter went to the spot and held mahazar Ex.P2 in presence of PW-4 and another. The vehicle was subjected to inspection by PW-6, the Motor Vehicles Inspector who issued the report Ex. P5, The statement of the witnesses were recorded and after securing the relevant documents i.e., Motor Vehicle Report, Injury Certificate, etc. The charge sheet came to be filed before the Magistrate. During the trial, the prosecution examined PWs.1 to 7 and in their evidence got marked the documents Exs. P1 to P6 The statement of the accused was recorded under Sec. 313 Cr. P.C. He contended that a boy abruptly came across the road while driving the bus and in an attempt to avoid the accident, the bus went and hit the house. On appreciation of the material on record, the Trial Court convicted the petitioner for the above said offences and aggrieved by the conviction, he preferred an Appeal to the Sessions Court in Crl.A. No. 46/2006, which came to be dismissed on merits vide judgment and order dated 26.10.2006 Aggrieved by the conviction and confirmation, the petitioner has approached this Court in Revision. 3. I have heard the learned Counsel for the petitioner and also the Government Pleader. 4. 3. I have heard the learned Counsel for the petitioner and also the Government Pleader. 4. The points that arise for consideration are : i) Whether the judgment and order of conviction of the petitioner for the offence under Sections 279, 427, 337 and 338 of IPC as confirmed by the Appellate Court is illegal and perverse ? ii) What order? 5. It is the contention of the learned Counsel for the petitioner that there was no rash or negligent act on the part of the petitioner and that to avoid the accident and injury to a boy who came across the road, the driver had to take the bus abruptly on the other side and in the course, the bus hit the house and the incident occurred. The Government Pleader submits that the petitioner was driving the vehicle in high speed which left the road and hit the house and therefore he submits that the material placed on record by prosecution is sufficient to convict the petitioner and the Courts below were justified in ordering conviction and the sentence. 6. As regards the manner of the accident, if we look into Ex.P2, the spot mahazar, the road at the spot runs from East to West and on the right side, at a distance of 10 feet there is the house of PW-1. It is the case of the prosecution that on the date of the accident, PW-2 was the conductor and PW-3 was the passenger in the bus and on the basis of the evidence of these two witnesses, the prosecution tries to prove the rash and negligent act. It is relevant to note that the evidence of PW-1 is of no help to the prosecution as he was inside the house when the bus hit the house. She states in her evidence that she does not know as to how the accident occurred. So the perusal of evidence of PW-1 does not reveal anything as regards the rash and negligent driving of the bus by the petitioner. So for as PW-2 is concerned, he is a Conductor and has not supported the version of the prosecution. He was treated hostile and his evidence reveals, that at the time of the accident, people were shouting about a boy crossing the road. So for as PW-2 is concerned, he is a Conductor and has not supported the version of the prosecution. He was treated hostile and his evidence reveals, that at the time of the accident, people were shouting about a boy crossing the road. It is suggested to PW-2 in the cross-examination that a boy was crossing the road at the time of the accident and the driver to avoid the accident, while taking the vehicle to the other side, the vehicle hit the house. Though he is the conductor in the bus, has not witnessed the rash negligent driving. There is nothing in his evidence to prove the rash and negligent act. PW-3 is the passenger who was inside the vehicle and she sustained injuries in the accident. Ex.P4 is the Injury Certificate of P.W.3 whereas EX. P3 is the Injury Certificate of PW-1. There is no dispute as regards PW-3 being the passenger in the bus. If the evidence of PW-3 is looked into, though he states that the accident was due to the fault of he petitioner, she has not said anything as to the manner and as to how the accident occurred. In her cross - Examination, a suggestion has been made about a boy going coming across the road abruptly and to avoid the hit to the boy, the petitioner took the bus towards the wrong side hit the house. She states that she does not know as to whether a boy came across the road or not. The perusal of her evidence reveals that she sustained injuries and was unconscious immediately. So the careful scrutiny of the evidence of PWs 1 and 3 does not reveal anything as regards the rash and negligent driving by the petitioner, PW-4 is the attesting witness to the spot mahazar and PW-5 is the doctor who examined PWs 1 & 3 for the treatment of the injuries and issued Exs. P3 & P4 the injury certificates. PW-6 is the motor vehicle inspector who states in his evidence that the accident is not due to any mechanical defect. Ex. P7 is the Investigating Officer who recorded the statement of the witnesses and collected the materials. 7. P3 & P4 the injury certificates. PW-6 is the motor vehicle inspector who states in his evidence that the accident is not due to any mechanical defect. Ex. P7 is the Investigating Officer who recorded the statement of the witnesses and collected the materials. 7. The overall appreciation of the material on record reveal that the petitioner was driving the bus and the bus took deviation at the spot of the accident and went to the wrong side and hit the house. No doubt, the principle of res ipsa loquitur if applied, the negligence is presumed as the vehicle had left the road and hit the house. But it is well established principle of law that the presumption itself is not sufficient to prove the guilt beyond all reasonable doubt. The presumption can be sufficient to prove the civil liability but not to award conviction and sentence. This aspect of the matter is not considered by the Trial Court and the first Appellate Court and merely because the vehicle left the road and hit the house, the Trial Court presumed negligence on the part of the petitioner and without considering the fact that there is no material regarding rash and negligent driving in the evidence of PWs 1 to 3 convicted the petitioner and the conviction was also confirmed. As regards the criminal liability, there must be sufficient proof and it must be beyond reasonable doubt. 8. It may be that a boy could have come across the road abruptly and to avoid the accident and death of the child, the driver could have taken the vehicle to the wrong side and could have hit the house. This possibility cannot be over ruled. When there is specific defence by the petitioner, there must be some evidence on the part of the prosecution to explain and over come the defence. So looking to the evidence led, I am of the opinion that the prosecution has failed to prove the guilt of the petitioner beyond reasonable doubt. Both the Courts have committed illegality in convicting the petitioner for the offence under Sections 279, 337, 338 and 427 of IPC. In that view of the matter, I answer point No. 1 in affirmative and proceed to pass the following:- ORDER The petition is allowed. Both the Courts have committed illegality in convicting the petitioner for the offence under Sections 279, 337, 338 and 427 of IPC. In that view of the matter, I answer point No. 1 in affirmative and proceed to pass the following:- ORDER The petition is allowed. The conviction of the petitioner for the offence under Sections 279, 337, 338 and 427 of IPC is set aside. He is acquitted of the said charges. His bail bonds are cancelled. The fine if any in deposit is ordered to be refunded.