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2022 DIGILAW 1263 (KAR)

Suresh v. State of Karnataka

2022-09-22

G.BASAVARAJA

body2022
JUDGMENT/ORDER 1. This criminal revision petition is filed by the petitioner / accused under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (for short ' Cr.P.C .') for setting aside the Judgment dtd. 1/9/2014 passed by the VII Addl. District and Sessions Judge, Belgaum, Chikkodi in Crl. A. No.139/2013 and Judgment passed in C.C. No.109/2012 on the file of Civil Judge and JMFC, Hukkeri dtd. 30/7/2013. 2. Heard the arguments of learned counsel for the petitioner and the learned Additional State Public prosecutor. 3. The parties will be referred to as per their ranks in the trial Court. 4. The case of the prosecution is that on 3/2/2012 at about 12.30 p.m. near the land of Dundappa Nashipudi, on the Hattaragi-Hukkeri public road, the accused being the driver of KSRTC Bus bearing Registration No.KA-23/F-404, drove the bus in a rash and negligent manner and dashed to the bullock cart coming in front of the bus and caused the accident due to which the bullock cart fell down on the left side of the road and inmates of the bullock cart CW-1 and CW-6 sustained grievous injuries and Laxmavva sustained grievous injuries and died in the hospital. Thus the accused has committed the alleged offences. 5. After the filing charge-sheet, the Trial Court has taken cognizance against the accused for the alleged commission of offences and case was registered in C.C. NO.109/2012. Plea was recorded, accused pleaded not guilty and has claimed to be tried. 6. To substantiate the case of the prosecution, in all, ten witnesses were examined as P.W.1 to P.W.10 and nineteen documents are got marked as Exs.P1 to P19. One material - sample bottle are marked as M.O.1. On closure of prosecution side evidence, the statement under Sec. 313 Cr.P.C. was recorded. Accused has denied the incriminating circumstances found against him and submitted written statement. But he has not chosen to lead any defence evidence on his behalf. On hearing the arguments, the learned Civil Judge and JMFC, Hukkeri has passed the Judgment by convicting the accused for the commission of offences punishable under Ss. Accused has denied the incriminating circumstances found against him and submitted written statement. But he has not chosen to lead any defence evidence on his behalf. On hearing the arguments, the learned Civil Judge and JMFC, Hukkeri has passed the Judgment by convicting the accused for the commission of offences punishable under Ss. 279, 337, 304A of IPC and sentenced the accused to pay a fine of Rs.1,000.00 for the offence under Sec. 279 of IPC, fine of Rs.500.00 for the offence under Sec. 337 of IPC and to undergo simple imprisonment for a period of six months and pay a fine of Rs.1,000.00 for the offence under Sec. 304A of IPC. 7. Being aggrieved by this Judgment and Order of conviction and sentence passed by the Trial Court, the accused/petitioner had preferred an appeal before the VII Addl. District and Sessions Judge, Belgaum at Chikkodi in Crl.A. No.139/2013. The appeal was partly allowed by confirming the order of conviction passed in C.C. No.109/2012 dtd. 30/7/2013 and sentence was modified by reducing the simple imprisonment from six months to three months and fine of Rs.5,000.00, in default to undergo two months' simple imprisonment for the offence punishable under Sec. 304A of IPC. As against this, the revision petitioner has preferred this Criminal Revision Petition. 8. The learned counsel appearing on behalf of the petitioner has submitted his arguments that the impugned Judgments passed by both the Courts are not maintainable in law. The learned Magistrate has mechanically believed the testimony of the complainant and witnesses. The interested testimony of PW-1, PW-3 and PW-5 have not been corroborated by any independent witnesses. The accused has explained the cause for accident in his written statement under Sec. 313 Cr.P.C. but same has not been appreciated by both the Courts. Further it is submitted that PW-1, PW-3 and PW-5 said to be the eye witnesses have admitted in their cross-examination that on seeing the Maruti car, the driver of the bullock cart all of a sudden changed the track of road without taking any precaution. But this aspect has not been considered by both the Courts. Both the Courts have failed to appreciate the evidence on record in proper perspective manner. Hence, sought for allowing this revision petition. 9. But this aspect has not been considered by both the Courts. Both the Courts have failed to appreciate the evidence on record in proper perspective manner. Hence, sought for allowing this revision petition. 9. Before appreciating the evidence on record, it is relevant to mention here as to the provisions of Sec. 401 of the Code of Criminal Procedure, 1973 which reads as under: " 401. High Court's Powers of revision: (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sec. 386, 389, 390 and 391 or on a Court of Session by sec. 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by sec. 392 . (2) No order under this Secs. hall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this Secs. hall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." Keeping in mind the above provisions, perused the prosecution papers. 10. From the perusal of the prosecution papers and evidence it can be seen that PW-1 Bhairappa Durgappa Badiger is the complainant. PW-2 Jeevappa Santu Patil and PW-4 Ravindra Ramagouda Agasar are the attestors to the spot panchanama and inquest panchanama respectively. PW-3 Ratnavva Tukaram Badiger is the injured. PW-5 Basavaraja Appasab Desai is the only eye witness. PW-6 Ramesha Balappa Guddakai is the hearsay witness. PW-2 Jeevappa Santu Patil and PW-4 Ravindra Ramagouda Agasar are the attestors to the spot panchanama and inquest panchanama respectively. PW-3 Ratnavva Tukaram Badiger is the injured. PW-5 Basavaraja Appasab Desai is the only eye witness. PW-6 Ramesha Balappa Guddakai is the hearsay witness. PW-8 N.G. Pathan is the Motor Vehicle Inspector. PW-9 S.S. Nadagaddi and PW-10 S.B. Girisha are the Investigating Officers who have deposed as to their respective investigation. 11. From a careful scrutiny of the evidence placed before the Trial Court, it is crystal clear that the accident is not disputed. It is also not disputed that due to the accident, Laxmavva Tukaram Badiger aged 80 years succumbed to the injuries which is also evident from the Ex.P8 post- mortem report of Laxmavva Tukaram Badiger. It is also not in dispute as to the injuries caused to PW-1 Bhairappa Durgappa Badiger and PW-3 Ratnavva Tukaram Badiger which is reflected in the two wound certificates as per Exs.P9 and P10. It is also not in dispute that due to this accident, two bullocks sustained injuries as shown in Exs.P11 and P12 wound certificates issued by the veterinary doctor. Now the question for consideration is whether accident occurred due to rash and negligent driving of the accused or not. 12. PW-1 Bhairappa Durgappa Badiger and PW-3 Ratnavva Tukaram Badiger are the eye witnesses who have also sustained injuries in the accident. PW-1 Bhairappa Durgappa Badiger has deposed in his evidence that on 3/2/2012, he along with his sister Laxmavva Tukaram Badiger and sister-in-law Ratnavva Tukaram Badiger were going in a bullock cart towards left side of Badakundri village road. At that time, the KSRTC Bus came from back side in a high speed and hit to the bullock cart. As a result, he has received injuries on his right knee and waist. Laxmavva Tukaram Badiger has received injuries on her forehead and legs. Ratnavva Tukaram Badiger has sustained injuries to her legs, cheeks and waist. Laxmavva Tukaram Badiger died in the hospital at Hukkeri. The two bullocks also sustained injuries. Police have recorded his statement as per Ex.P1. 13. PW-3 Ratnavva Tukaram Badiger has deposed in her evidence that she along with her mother and CW-1 were going in a bullock cart to go to Holevva temple. At that time the bus came from back side and hit to the bullock cart. The two bullocks also sustained injuries. Police have recorded his statement as per Ex.P1. 13. PW-3 Ratnavva Tukaram Badiger has deposed in her evidence that she along with her mother and CW-1 were going in a bullock cart to go to Holevva temple. At that time the bus came from back side and hit to the bullock cart. As a result, she and her mother sustained injuries and she was unconsciousness and she did not know who was the driver of the bus. She gained consciousness in the hospital. Her mother died in the hospital. This witness is treated as hostile witness by the prosecution. During her cross-examination made by the learned APP she has admitted that accused was the driver of the bus at the time of the accident. 14. P.W.5 Basavaraj Appasab Desai said to be the eye witness has deposed in his evidence that on 3/2/2012, C.W.1 Bhairappa Durgappa Badiger and his wife and others were going in a bullock cart on Hukkeri road. The KSRTC bus came from back side and hit to the bullock cart. As a result, bullock cart was damaged, bullocks and inmates of bullock cart sustained injuries. He took the injured Laxmavva Tukaram Badiger, Ratnavva Tukaram Badiger and Bhairappa Durgappa Badiger to the hospital at Hukkeri. Laxmavva Tukaram Badiger died in the hospital. Bhairappa Durgappa Badiger and Ratnavva Tukaram Badiger sustained injuries. The accident occurred due to fault of the driver of the bus. 15. According to the case of the prosecution, P.W.1 Bhairappa Durgappa Badiger is the complainant and also injured. P.W.3 Ratnavva Tukaram Badiger is the injured and P.W.5 Basavaraj Appasab Desai is the eye witness to this accident. 16. From a careful scrutiny of this material witnesses along with document Ex.P1 complaint, it is crystal clear that the name of the alleged eye witness P.W.5 Basavaraj Appasab Desai is not shown in the complaint. P.W.5 has taken the injured to the hospital. But in the wound certificate of Bhairappa Durgappa Badiger Ex.P9 and wound certificate of Ratnavva Tukaram Badiger Ex.P10, the name of P.W.5 Basavaraj Appasab Desai is not disclosed. If really P.W.1 Bhairappa Durgappa Badiger and P.W.3 Ratnavva Tukaram Badiger were taken to the hospital by this P.W.5, the medical officer would have mentioned the name of P.W.5 in the wound certificate that injured was brought by PW5 with history of RTO. If really P.W.1 Bhairappa Durgappa Badiger and P.W.3 Ratnavva Tukaram Badiger were taken to the hospital by this P.W.5, the medical officer would have mentioned the name of P.W.5 in the wound certificate that injured was brought by PW5 with history of RTO. Prosecution papers and also the evidence of I.O. reveal that P.W.10 S.B. Girish the I.O. has recorded the statement of P.W.5 under Sec. 161 of Cr.P.C. on 3/2/2012 but he has not submitted the same to the Court on the same day. If really the I.O. P.W.10 had recorded the statement of this witness P.W.5 on 3/2/2012, he would have submitted the same before the Court on the same day. But he has not done so. Only at the time of filing charge-sheet, he has submitted this statement of P.W.5 Basavaraj Appasab Desai. 17. The I.O. has not offered any explanation as to the non submission of the statement of P.W.5 on 3/2/2012 or at least on the next day. The I.O. has also not explained anything as to why the name of the alleged eye witness P.W.5 Basavaraj Appasab Desai has not been shown in the complaint Ex.P1 and also in the wound certificates Exs.P9 and P10. Apart from this, during the course of cross-examination of P.W.5 he has unequivocally admitted that he came to the spot only after the accident and found the bullock cart and bus on the spot. This admission of P.W.5 itself clearly goes to show that he has not witnessed the alleged incident. Though this witness has not witnessed this incident, the I.O. has figured this witness as an eye witness. Apart from this, P.W.5 Basavaraj Appasab Desai has not whispered anything as to the rash and negligent act on the part of the accused. Therefore, viewed from any angle, the evidence of P.W.5 is not helpful to the case of the prosecution. 18. P.W.3 Ratnavva Tukaram Badiger said to be the eye witness and also injured has not whispered anything as to the rash and negligent act of the accused. Therefore this evidence of P.W.3 will not be helpful to the case of the prosecution to prove the guilt of the accused. 19. Now I have to analyse the evidence of P.W.1 Bhairappa Durgappa Badiger who was riding the bullock cart at the relevant point of time. Therefore this evidence of P.W.3 will not be helpful to the case of the prosecution to prove the guilt of the accused. 19. Now I have to analyse the evidence of P.W.1 Bhairappa Durgappa Badiger who was riding the bullock cart at the relevant point of time. Before appreciating the evidence of P.W.1, it is necessary to mention here as to the defence taken by the accused which is also reflected in the written statement of the accused filed under Sec. 313 of Cr.P.C. wherein he has stated that at the relevant point of time one Maruti car came from the opposite side. Then the rider of the bullock cart took the cart by the side of the road without observing the vehicles coming from back side. At that time, the middle of chassis ( ÀÄzsÀåzÀ F ÀÄ) nudged the bus in force as a result, the accident occurred. 20. Learned counsel for the petitioner has submitted his arguments that the material witness P.W.1 has not deposed as to the rash and negligent act on the part of the accused. On the date of accident, there was Badakundri Yallawwa fair. Hence a number of vehicles and bullock carts were moving on the road. During the course of cross-examination of P.W.1, P.W.3 and P.W.10 the I.O. have admitted the same in their cross-examination. The material witness who was the rider of this bullock cart has clearly admitted in his cross-examination that at the relevant point of time, one Maruti car came from his opposite side. Further he has admitted that since the car came from opposite side he tried to take his bullock cart by the side of the road. This admission of P.W.1 and other prosecution witnesses reveals that since the rider of the bullock cart all of a sudden had taken the bullock cart by the side of the road, the alleged accident occurred. But this admission and the written explanation given by the accused has not been considered by the Courts below. 21. If really the accused drove the bus with high speed and rash and negligent manner as alleged by the prosecution, the bullock cart would have broken into pieces and there could have been a major accident causing grievous injuries to the inmates of the bullock cart and also the bullocks. 21. If really the accused drove the bus with high speed and rash and negligent manner as alleged by the prosecution, the bullock cart would have broken into pieces and there could have been a major accident causing grievous injuries to the inmates of the bullock cart and also the bullocks. The bullocks and inmates of bullock cart i.e. P.W.1 and P.W.3 have sustained only simple injuries as per the wound certificates at Exs.P9 to P12. Laxmavva Tukarm Badiger who was aged 80 years old died in the hospital. Ex.P.8-Postmortem report reveals the external appearance of this lady as "Old lady poorly built". Further, the Doctor has opined that death is due to head injury. The accused being driver of KSRTC Bus has taken all precautionary measures to avoid the accident. But, due to unavoidable circumstances, the middle of the chassis of the bullock cart hit the bus and thus accident had occurred. Further, he has submitted that the evidence placed by the prosecution itself reveals that accident has occurred not due to rash and negligent act of the accused. On these grounds, learned counsel prays for allowing the petition. 22. A perusal of the written statement filed by the accused under Sec. 313 Cr.P.C. and the admissions of P.W.1, P.W.3 and the I.O. P.W.10 reveal that on the date of accident there was Badakundri Yallawwa fair and a number of vehicles and bullock carts were moving on the road to go to the fair. It is also admitted by P.W.1 and P.W.3 that before the accident, one Maruti car came from opposite side, then, all of a sudden P.W.1 the rider of the bullock cart took his bullock cart by the side of the road and as such this accident occurred. 23. If really the driver of the bus drove the vehicle in a high speed, the bullock cart would have broken into pieces and the inmates of the bullock cart and bullocks would have sustained grievous injuries. But fortunately, only the yoke of the bullock cart was broken no damages incurred to the bullock cart and the bullocks and inmates P.W.1 and P.W.3 have sustained only simple injuries. Ex.P8- Postmortem report reveals as to the external appearance of the deceased Laxmavva that her age is 80 years and lady poorly built. Further, the doctor has opined that death is due to head injury. 24. Ex.P8- Postmortem report reveals as to the external appearance of the deceased Laxmavva that her age is 80 years and lady poorly built. Further, the doctor has opined that death is due to head injury. 24. In the decision of the Hon'ble Apex Court in the case of STATE OF KARNATAKA VS. SATISH reported in (1998) 8 SCC 493 , their Lordships have observed that merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. 25. In another recent unreported decision of the Hon'ble Apex Court in the case of NANJUNDAPPA & ANOTHER VS. THE STATE OF KARNATAKA IN CRIMINAL APPEAL NO. 900/2017 dtd. 17/5/2022, observed that the doctrine of res ipsa loquitor stricto sensu would not apply to a criminal case. Further it observed that as far as the onus of proving the ingredients of an offence is concerned, it is always upon the prosecution and at no stage does it shift to the accused. Further observed that for bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and death of the victim. 26. Further observed that for bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and death of the victim. 26. In the instant case, as already observed, P.W.5 Basavaraj Appasab Desai is not an eye witness to the alleged accident. P.W.3 Ratnavva Tukaram Badiger has not whispered anything as to the rash and negligent act on the part of the accused. P.W.1 Bhairappa Durgappa Badiger the rider of bullock cart has also not deposed as to the rash and negligent act on the part of the accused. Only he has deposed that the KSRTC bus came in a high speed and hit to back side of bullock cart. Except this evidence, absolutely there is no evidence on record to show that the accused drove his vehicle in a rash and negligent manner as alleged by the prosecution. The explanation given by the accused in his written statement under Sec. 313 Cr.P.C. is substantiated by the admission of P.W.1 and P.W.3. Both the Courts have not properly considered the admissions made by P.W.1, P.W.3 and P.W.5. The contents of mahazar-Ex.P4, photo-Ex.P5, rough sketch-Ex.P6,IMV report-Ex.P7 and also the written explanation submitted by the accused and have passed the impugned Judgments. 27. For the aforesaid reasons and discussions and also keeping in mind the aforesaid Judgments of the Hon'ble Apex Court, the impugned Judgments are required to be set aside. Accordingly I proceed to pass the following: ORDER The Criminal Revision Petition is allowed. The Judgment of conviction and Order on sentence passed by the Trial Court under Sec. 255(2) of Cr.P.C. in C.C. No.109/2012 dtd. 30/7/2013 which is upheld by the Appellate Court vide Judgment in Crl.A.No.139/2013 dtd. 1/9/2014 are hereby set aside. The Revision Petitioner is acquitted from the offences under Ss. 279 , 337 and 304-A of IPC. His bail and surety bonds shall stand cancelled. The fine amount if any deposited by the petitioner is ordered to be refunded to him after due identification. Send a copy of this Order along with the Trial Court records to the Court of learned Civil Judge and JMFC, Hukkeri.