Research › Search › Judgment

Karnataka High Court · body

2024 DIGILAW 44 (KAR)

Manasing S/o Tukaram Lamani v. State of Karnataka

2024-01-12

RAMACHANDRA D.HUDDAR

body2024
ORDER : 1. The revision petitioner i.e. accused in C.C. No. 208/2011 on the file of Principal Civil Judge and JMFC, Bagalkot (for short “Trial Court”) being aggrieved by the judgment of conviction and order on sentence passed by the Trial Court vide judgment dated 11.11.2011 convicting and sentencing him for the offence punishable under Section 279, 338 and 304-A of IPC and confirmed by the II-Additional District and Sessions Judge, Bagalkot (for short “I-Appellate Court”) in Criminal Appeal No. 77/2011 vide judgment dated 01.09.2015, has filed this revision petition. 2. For the sake of convenience, the parties to this petition are referred to as per their rank before the Trial Court. 3. The facts leading to the case of the revision petitioner-accused in brief are as under: That, on 19.11.2010 at 3.45 p.m. the accused being the driver of KSRTC Bus bearing registration No. KA-29/F-848, drove his bus in rash and negligence manner towards Kaladagi from Bagalkot via Gaddanakeri, near I.B. of Kaladagi village and dashed against the motorcycle bearing registration No. KA-29/J-6929 driven by Yallappa Kulageri along with pillion rider-Mallikarjuna Devatagi. In the said accident, both Yallappa and Mallikarjuna sustained simple and grievous injuries. Due to accidental injuries suffered by the pillion rider, he succumbed to the injuries. With these allegations, complaint was filed which was registered in Crime No. 95/2010 of Kaladagi Police Station and criminal law was set in motion. 4. Before the Trial Court, to bring home the guilt of the accused, the prosecution, in all, examined ten witnesses PW-1 to PW-10 and got marked Ex.P1 to Ex.P10 with respective signatures thereon. During the course of cross-examination, certain portions of complaint as well as statements of PW-5, PW-6 and PW-7 recorded under section 161 of Cr.P.C. were marked. 5. Learned Trial Court on hearing the arguments and on assessment of the evidence, found the driver of KSRTC guilty of committing offences punishable under section 297, 338 and 304-A of IPC and sentenced him as under: “(A) For the offence punishable U/Sec.279 of Indian Penal Code, an accused shall undergo simple imprisonment for thirty days and shall liable to pay fine of Rs. 1,000/- (One Thousand Only) and in default of payment of fine, he shall undergo simple imprisonment for fifteen days. 1,000/- (One Thousand Only) and in default of payment of fine, he shall undergo simple imprisonment for fifteen days. (B) For the offence punishable U/Sec.338 of Indian Penal Code, an accused shall undergo simple imprisonment for two months and shall liable to pay fine of Rs. 1,000/- (One Thousand Only) and in default of payment of fine, he shall undergo simple imprisonment for fifteen days. (C) For the offence punishable U/Sec.304(A) of Indian Penal Code, an accused shall undergo simple imprisonment for six months and shall liable to pay fine of Rs. 3,000/- (Three Thousand Only) and in default of payment of fine, he shall undergo simple imprisonment for thirty days. All sentences of imprisonment shall run concurrently. As per the provisions of Sec.357 (A) of Cr.P.C. an accused is liable to pay the compensation amount of Rs. 20,000/- to the dependent of deceased Mallikarjun Deevatagi and Rs. 5,000/- to the injured person by name Yallappa Kulageri.” 6. This judgment of conviction and order on sentence was challenged by the accused before the Appellate Court by preferring an appeal in Crl. Appeal No. 77/2011. The I-Appellate Court on hearing the arguments and on evaluation of the evidence, confirmed the said judgment of conviction and order on sentence passed by the Trial. This is how the revision petitioner-accused is before this Court challenging both the judgments passed against him by both the Courts below. 7. It is submitted by the learned counsel for the petitioner-accused that, he being bus driver has taken all precautions to avoid the accident. When he was moving his bus by crossing the road circle, it was the rider of the motorcycle came in high speed in a rash and negligent manner in the middle of the road without anticipating any vehicles on main road and dashed to the KSRTC Bus. There was no negligence or rashness on the part of the accused in driving the bus. The pillion rider of the motorcycle died due to the rashness and negligence on the part of the rider of the motorcycle. The eyewitnesses to the incident have not supported the case of the prosecution. It is his submission that on seeing the sketch so prepared by the investigating officer at the time of conducting the investigation, do demonstrate the topographical features of the scene of occurrence of the accident. The eyewitnesses to the incident have not supported the case of the prosecution. It is his submission that on seeing the sketch so prepared by the investigating officer at the time of conducting the investigation, do demonstrate the topographical features of the scene of occurrence of the accident. He submits that the lacunas or discrepancies so brought on record in the cross-examination of the witnesses have not been properly appreciated by the Trial Court as well as by the I-Appellate Court. It is his further submission that, on investigation, police have filed charge sheet not only against the accused but also against the rider of the motorcycle. There was sheer negligence on the part of the rider of the motorcycle in riding the motorcycle. It is his submission that, the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. None of the ingredients of offences so attributed against the accused are duly proved in accordance with law. Hence, it is prayed by the revision petitioner-accused to allow the revision petition and set aside the judgments of the Courts below. 8. As against this submission, the learned Additional SPP, Sri. M.B. Gundawade, submits that, on seeing the topographical features as narrated in the sketch prepared by the investigating officer, it do suggest that how far accused was rash and negligent in driving the bus. He has not anticipated any vehicles coming from the other approaching road. According to his submission, both the Courts below have properly appreciated the evidence placed on record and have convicted the accused and such judgment of conviction and order of sentence cannot be interfered by this Court in this revision. He submits that both the Courts below have not at all committed any illegality or perversity in passing the judgment of conviction and order on sentence. 9. I have given my anxious consideration to the submissions made by both the sides. Meticulously perused the records. In view of rival submissions of both the sides, the points that would arise for consideration are as under: (i) Whether the Trial Court and the I-Appellate Court have committed illegality in appreciating the evidence placed on record by the prosecution and have wrongly found the accused guilty of commission of the offences attributed against him? (ii) If so, whether the impugned judgments passed by both the Courts below require interference by this Court? 10. (ii) If so, whether the impugned judgments passed by both the Courts below require interference by this Court? 10. In this case, father of the complainant by name Danappa has lodged the complaint. According to his evidence on 19.11.2010 his son deceased-Mallikarjun was moving on motorcycle as pillion rider along with Yallappa to bring fuel to tractor. One Yallappa was the rider of the motorcycle and he drove it in a rash and negligent manner. When the said motorcycle went near I.B. cross towards Gaddanakeri cross, he was turning his motorcycle towards Gaddanakeri and at that time, KSRTC bus came from opposite direction in high speed and in rash and negligent manner and there was an head on collision in between both the vehicles. The driver of the KSRTC bus as well as rider of the motorcycle lost their control over the vehicles. Immediately, the complainant rushed to the spot of the accident and noticed injuries being suffered by both rider as well as pillion rider of the motorcycle. His son, being pillion rider, had sustained grievous injuries on his chest and blood was oozing. His son had sustained injuries on his left hand, right wrist and left feet. He was unable to speak. Even the rider of the motorcycle, Yallappa, had sustained injuries on his right thigh. He also sustained some abrasions. He was unable to speak. The said accident has taken place at about 3.45 p.m. Immediately, the injured were shifted to Kaladagi government hospital. On medical examination by the doctor, it was declared that son of the complainant is dead. It is alleged that because of rash and negligent driving of the bus, the said accident has taken place. 11. To prove the said fact of death of deceased-Mallikarjuna Danappa Devatagi, prosecution relies upon Ex.P2-inquest panchanama. So also, it relies upon the postmortem report marked at Ex.P6. These documents do demonstrate that, deceased-Mallikarjun died because of accidental injuries. While marking these documents, defence has not raised any objection. Thus, in this case, death of Mallikarjuna in the said accident is not disputed and it is proved. This fact has been spoken to by the witnesses so examined in this case. 12. These documents do demonstrate that, deceased-Mallikarjun died because of accidental injuries. While marking these documents, defence has not raised any objection. Thus, in this case, death of Mallikarjuna in the said accident is not disputed and it is proved. This fact has been spoken to by the witnesses so examined in this case. 12. Merely because the prosecution was able to prove the death of Mallikarjuna in the said accident and injuries to the rider of the motorcycle by name Yallappa, that does not mean that, it was accused, who drove the bus in a rash and negligent manner endangering human life. 13. The documents relied by the prosecution are very much important to decide about the alleged rash and negligent driving of bus by the accused in the manner alleged by the prosecution. Ex.P3 is the seizure panchanama under which of both the vehicles were seized. Ex.P4 is the scene of offence panchanama wherein it is recited regarding where exactly the said accident has taken place. As per Ex.P4, the said road is having about 50 ft width. It is called a State Highway No. 20. Towards Kaladagi, a road curve is existing. Towards the eastern side of the road, at a distance of 5 ft and from the western edge of the said road, at a distance of 40 ft, the said accident has taken place. There is a circle and after crossing the said circle, towards the right of the said circle, the said Kaladagi road is situated. From the scene of offence panchanama, it is also noticed that, there is approaching road to the extent of 30 ft. The investigating officer has also noticed blood stains at the scene of offence. Ex.P5 is the photograph of the scene of offence, which was snaped by the investigating officer in the presence of panchas. 14. Relying upon this evidence, the learned Additional SPP submits that, in view of documentary evidence, it do establishes the rash and negligent act on the part of the driver of the bus. 15. Ex.P7 is an FIR. It is not in dispute. The very important document in this case is Ex.P8-Sketch of spot of occurrence of the accident prepared by the investigating officer at the time of conducting investigation and panchanama. On scrupulous scrutiny of this sketch, it shows that, the said highway leads from Bagalkot to Belagavi. 15. Ex.P7 is an FIR. It is not in dispute. The very important document in this case is Ex.P8-Sketch of spot of occurrence of the accident prepared by the investigating officer at the time of conducting investigation and panchanama. On scrupulous scrutiny of this sketch, it shows that, the said highway leads from Bagalkot to Belagavi. The said bus was moving from Bagalkot towards Kaladagi. The width of the said highway is about 30 ft as per the sketch. So also the width of Kaladagi road is about 40 ft. The said bus was coming from Bagalkot and was turning towards Kaladagi road. As per the case of the prosecution itself, this Bagalkot-Belagavi State Highway is a main road. When the said bus was turning towards the right side of Kaladagi road, the rider of the motorcycle was coming from Kaladagi towards Bagalkot near Inspection Bungalow of Kaladagi city. The said accident has taken place at a distance of 12 ft from the edge of the road, so also 5 ft from the eastern side. The circle mark is shown as scene of offence. 16. It is argued by the learned Additional SPP that, this sketch depicts about riding of motorcycle as well as KSRTC bus in the middle of the road. He submits that when KSRTC bus was turning right side towards Kaladagi, the driver of the bus would have anticipated the vehicles coming from the approaching road. But Traffic rules envisages that when the vehicles are being driven on the approaching road by the drivers, when they are approaching the main road, it is the duty of the drivers who want to take their vehicles on the main road, to stop their vehicle and see on either side of the road, to know that, whether any vehicle is moving on the main road and then take his vehicle on the main road. But in this case as rightly submitted by the counsel for the accused, there is no evidence placed on record by the prosecution that, the rider of the motorcycle had stopped his vehicle and noticed on either side of the road to know, whether any vehicles are moving on the main road. The rider of the motorcycle was also riding the motorcycle in high speed as per the contents of the complaint allegations. Said assertion made in the complaint has been marked in evidence as Ex.D1. The rider of the motorcycle was also riding the motorcycle in high speed as per the contents of the complaint allegations. Said assertion made in the complaint has been marked in evidence as Ex.D1. It is stated that “Yallappa Kulageri was riding the motorcycle in high speed near Gaddanakeri cross, which is also called as I.B. cross and when he was turning his motorcycle, the said accident has taken place.” This recital in the complaint has been corroborated by the statement of witnesses like Arif, examined as PW-5, Abdulsab, examined as PW-6 and Laxmibai examined as PW-7, in their evidence. On reading the contents of Ex.D1 to Ex.D5, it shows that the son of the complainant, Mallikarjuna, was a pillion rider and at that time the rider of the motorcycle was riding the motorcycle in high speed. The deceased Mallikarjuna was holding Oil Can with him and the said rider of the motorcycle without giving any signal turned his vehicle towards Gaddanakeri cross, at that time, the said accident has taken place. PW-6 has stated that, at 3.45 p.m. on the date of the accident, when he was crossing the road near I.B. cross towards his land, the said accident has taken place. Even Laxmibai has also spoken in similar lines as that of other witnesses. According to the evidence of Laxmibai, both rider of the motorcycle as well as the driver of the bus have lost control over their vehicles and hence the said accident has taken place. 17. Further, it is an admitted fact between both the sides that, the accident has taken place not because of any mechanical defects in the vehicles. Ex.P9 is the M.V. report in which the damages sustained by both the vehicles are mentioned. This document is not disputed by the defence. Ex.P10 is the wound certificate of Yallappa showing injuries so sustained by him in the said accident. 18. On cumulative reading of all these documents, they do suggest that the said accident has taken place as noted in Ex.P8-Sketch. 19. So far as oral evidence is concerned, PW-1/complainant has reiterated the contents of the complaint in his evidence on oath. He has been cross-examined at length. According to his evidence, there was harvesting of onion in his landed property along with coolies. 19. So far as oral evidence is concerned, PW-1/complainant has reiterated the contents of the complaint in his evidence on oath. He has been cross-examined at length. According to his evidence, there was harvesting of onion in his landed property along with coolies. At that time, his son wanted to bring diesel to his tractor and therefore, he went along with Yallappa on motorcycle with a Can. He alleges that, because of rash and negligent driving of KSRTC bus, the said accident has taken place. He identifies the accused as the driver of KSRTC bus. But he states that, he has not given any statement as recited in Ex.D1. At one breath, he states that, the rider of the motorcycle was rash and negligent and lost control over the motorcycle and dashed against the KSRTC bus and at another breath, he denies that because of rash and negligent riding of motor cycle by the rider of the motorcycle as well as the driver of the KSRTC bus the said accident has taken place. 20. PW-2 Razaksab and PW-3-Rajasab are panchas to Ex.P3 i.e. scene of occurrence panchanama. But both the witnesses have been turned hostile and nothing worth is elicited from their mouth so as to disbelieve their version spoken to in their examination-in-chief. Their evidence would not help the case of the prosecution. 21. PW-4 Maliyappa is the pancha to Ex.P4-scene of occurrence panchanama. He identified Ex.P5-photograph. He also identifies the scene of offence panchanama as well as inquest panchanama. There is no effective cross-examination except eliciting that, on either side of the road towards Kaladagi, there exist trees but the said suggestion so directed to him was denied by this witness. 22. PW-5 Arif is an eyewitness to the said accident. According to his evidence, in the landed property of the complainant there was harvesting of onion. At that time, deceased-Mallikarjuna went on motorcycle of Yallappa and at that time, one KSRTC bus came from Bagalkot and dashed to the motorcycle. This evidence is quite contrary to the statement of PW-1 marked at Ex.D1. In the cross-examination, he admits that when the said accident has taken place, they were engaged in harvesting onion crop in the landed property of the complainant. This evidence is quite contrary to the statement of PW-1 marked at Ex.D1. In the cross-examination, he admits that when the said accident has taken place, they were engaged in harvesting onion crop in the landed property of the complainant. When they were harvesting onion crop in the landed property of the complainant, was there any occasion for them to observe the accident, is not properly explained by any of the witnesses in this case. That means, the evidence of all the witnesses show that only after the accident they came to know that the accident has taken place. 23. Likewise, PW-6 Abdulsab has stated in line with the evidence of the complainant. According to his evidence, bus came at a speed of 40 km per hour. At that time, the rider of the motorcycle jumped from the motorcycle. His bike went towards hind portion of the bus and deceased Mallikarjuna sustained injuries on his chest. This evidence spoken to by this PW-6 has not been stated either by PW-1 or PW-5. If really PW-1 and PW-5 were the eye-witnesses to the accident, they would also have stated as spoken to by PW-6. But their version is entirely different. 24. According to PW-6, because of mistake of the driver of the bus the said accident has taken place. But in the cross-examination, it is elicited that to go to his landed property at Kaladagi, one has to cross the police station. His landed property is situated by the side of police station. The said road where the accident has taken palce is running from south to north. From the police station, the scene of offence is ½ km away. He has not given statement before the police. Even he has not given any statement as marked at Ex.D3. So, when such evidence is spoken to by this witness, it requires corroboration. 25. PW-7 Laxmibai is branded as an eyewitness to the alleged incident. She too says that because of mistake on the part of the driver of the bus, the said accident has taken place. She was also cross-examined. She has given her statement before the police. According to her, the said scene of offence is about ½ km away from the place where they have seen the accident. She too says that because of mistake on the part of the driver of the bus, the said accident has taken place. She was also cross-examined. She has given her statement before the police. According to her, the said scene of offence is about ½ km away from the place where they have seen the accident. It is hard to accept the evidence of PW-7 as to how she saw the accident from a distance of ½ km. 26. PW-8 Dr. Ishwarappa Gadad has conducted the postmortem on the dead body of the deceased-Mallikarjuna and issued Postmortem report as per Ex.P6. The death of Mallikarjuna in the accident is not disputed by the defence. 27. PW-9 Pradeep Yamappa Talikeri was PSI at the relevant time. On receipt of complaint, he set the criminal law into motion by registering the crime and conducted part of investigation. 28. PW-10 Sadashiva Revappa Kattimani was CPI and the investigating officer at the relevant time. He has filed charge sheet against the accused. According to his evidence, the statements so stated in Ex.D1 to Ex.D5 have been stated by the witnesses. We find contradictions in the evidence spoken to by the witnesses. 29. To prove the rash and negligent act of the accused, as stated supra, the sketch of scene of offence plays an important role. As rightly submitted by the learned counsel for the accused, as per the traffic rules and regulations, when the users of the approaching road want to approach the main road, it is their duty to stop their vehicle and see on either side of the road then turn their vehicle and proceed as per their destination. 30. In this case, on seeing Ex.P8-Sketch, it shows that the KSRTC bus is a big vehicle and it has to take turn towards right i.e. towards Gaddanakeri cross. When a big vehicle is turning towards right road, automatically it would cover long space. Many vehicles ply on Belagavi to Kaladagi road, which has an approaching road to Bagalkote-Belagavi state highway. It was the duty of the driver of the bus who wants to use the main road to anticipate any vehicles from the opposite direction and then take a turn towards right side. Many vehicles ply on Belagavi to Kaladagi road, which has an approaching road to Bagalkote-Belagavi state highway. It was the duty of the driver of the bus who wants to use the main road to anticipate any vehicles from the opposite direction and then take a turn towards right side. As rightly submitted by the learned counsel for the accused, the driver of the bus turned his bus to approach the road and took his vehicle in the middle of the road. The motorcycle is a small vehicle and the rider of the motorcycle had sufficient place towards his left side to stop his vehicle, but he has not stopped his motorcycle, due to which the accident took place. Further, as the evidence of PW-1 as well as the complaint assertions, the rider of the motorcycle was also riding the motorcycle in a rash and negligent manner. Therefore, merely because the driver of the KSRTC bus moved the bus towards Kaladagi road in the middle of the road, that does not mean he was rash and negligent. Here, it would be appropriate to refer Regulation 9 of the Motor Vehicles (Driving) Regulations, 2017, which reads as under: 9. Precautions to be taken at intersections: (1) The vehicle shall invariably slow down when approaching a road intersection, a road junction, a pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing if it is likely to endanger the safety of other road users moving onto, or already on, such intersection, road junction, pedestrian crossing or road corner. (2) At intersections and junctions, vehicles approaching from the right side shall have the right of way: Provided that this sub-regulation shall not apply: (a) when the junction or intersection is being regulated by manual signals by an authorised person, traffic lights or mandatory traffic signs. (b) when the vehicle is exiting a minor road and entering a major road. (3) A motor vehicle shall not enter an intersection if the traffic on the intersection has come to a standstill even if it is on the main road or has a signal to proceed. 31. Evidently, there is no evidence placed on record that the said road circle was manned by any traffic control officials. The accident is admitted and the death of deceased-Mallikarjuna in the said accident is also admitted. 31. Evidently, there is no evidence placed on record that the said road circle was manned by any traffic control officials. The accident is admitted and the death of deceased-Mallikarjuna in the said accident is also admitted. But the traffic rules are not followed by the rider of the motorcycle. The rider of the motorcycle without following the traffic rules and without observing the anticipating vehicles on the main road has ridden his motorcycle in rash and negligent manner due to which the accident has taken place. 32. Uncontrolled intersections have no signs or traffic lights. They are usually found in areas where there is not much traffic. But they can be dangerous places because drivers might not be expecting cross traffic or pedestrians. While approaching a road, one must slow down and look out for other road users and scan the intersection from left to right. If another vehicle has arrived at the intersection before him, he must slow down and yield. If two vehicles arrive at the same time, the vehicle on the left must yield to the vehicle on the right. One must be careful when he wants to turn left where other traffic is approaching from the opposite direction. If anybody intend to go straight through and a vehicle is already in the intersection turning left, he must yield. 33. The complainant in his complaint has stated that the rider of the motorcycle was also rash and negligent. If it is so, the Trial Court as well as the I-Appellate Court have not properly appreciated the sketch to ascertain about the following of traffic rules and regulations. The evidence of eyewitnesses is also contradictory with each other. When the coolies were engaged in harvesting Onion crop in the landed property of the complainant, there was no occasion for them to notice rashness and negligence of the accused in the manner stated by the prosecution. Therefore, a doubt arises in the case of the prosecution and the benefit of doubt has to be extended to the accused. 34. It is true that the revisional court cannot lightly interfere into the judgments of the Court below. But when there is perversity and capriciousness in appreciating the evidence by the Courts below, this Court can very well exercise its powers. Hence, the criminal revision petition filed by the accused deserves to be allowed. 34. It is true that the revisional court cannot lightly interfere into the judgments of the Court below. But when there is perversity and capriciousness in appreciating the evidence by the Courts below, this Court can very well exercise its powers. Hence, the criminal revision petition filed by the accused deserves to be allowed. In view of discussions made above, the above points are answered in favour of the revision petitioner-accused. Consequentially petition filed by the revision petitioner-accused succeeds. Resultantly, I pass the following: ORDER: (i) The criminal revision petition filed by the accused is hereby allowed. (ii) The judgment of conviction and order on sentence passed by the Principal Civil Judge and JMFC, Bagalkot in C.C. No. 208/2011 dated 11.11.2011 and confirmed by the Additional District and Sessions Judge, Bagalkot in Crl. Appeal No. 77/2011 dated 01.09.2015 against the accused for the offence punishable under sections 279, 338 and 304-A of IPC are hereby set aside. (iii) The revision petitioner-accused is acquitted of the offence punishable under sections 279, 338 and 304-A of IPC. His bail bonds shall stand cancelled. (iv) Fine amount, if any, deposited by the accused shall be refunded to him digitally. (v) Send a copy of this order to the Trial Court along with TCRs.