Dismissed

State of Karnataka v. Mohammed Rafiq S/O. Ladelsab

Karnataka HC1 Dec 2020CRL.A/2813/2013

Case brief

AI extract

What is this about?

This criminal appeal challenged the acquittal of a KSRTC bus driver accused of rash and negligent driving causing death. The High Court rejected the appeal, holding that the prosecution failed to prove specific acts of rash driving and could not rely solely on oral evidence for conviction under Section 183 of the MV Act.

What did the court decide?

Appeal dismissed; acquittal of respondent confirmed.

State of Karnataka Vs Mohammed Rafiq S/O. Ladelsab — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

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CRIMINAL APPEAL No.2813 OF 2013

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BETWEEN

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STATE OF KARNATAKA RPTD. BY THE CIRCLE POLICE INSPECTOR TEKKALKOTE, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD

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...APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL SPP)

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AND

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MOHAMMED RAFIQ S/O. LADELSAB AGED ABOUT 39 YEARS, DRIVER OF KSRTC BUS, R/O 1ST DEPOT, RAICHUR .

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…RESPONDENT

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(BY SRI.Y.R. JOGI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO THE APPELLANT TO FILE THE APPEAL AGAINST THE ORDER OF ACQUITTAL OF RESPONDENT/ACCUSED AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.08.2013 PASSED BY THE JMFC COURT, SIRUGUPPA IN CC NO.370/2011 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 279, 304(A) OF IPC R/W SEC.183 OF I.M.V. ACT.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed challenging the judgment dated 01.08.2013 passed by JMFC. Court, Siruguppa in CC No.370/2011 acquitting the accused for the offence punishable under Sections 279, 304(A) of IPC r/w Section 183 of I.M.V. Act.

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Brief facts giving rise to this appeal are as under:

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Complaint was filed by one M.Chikkanna on 14.04.2011 at 5 a.m. stating that on 14.04.2011, he was herding his sheep and taking them from Bairapur to towards Halekote at about 3 a.m. near bus stand Tekkalakote, when he was ahead of

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K.C.Chandra, he heard a cry and on looking

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back, he saw that KSRTC Bus bearing No.KA36/F-791 had dashed against his uncle’s son K.C.Chandra and also five sheep, due to which K.C.Chandra and five sheep died on the spot. On enquiry, he found the name of KSRTC bus driver as Mohammed Rafiq S/o Ladelsab and sought for his prosecution. The complaint was registered by Tekkalakote Police Station, Siruguppa taluk as Crime No.31/2011. After investigation, charge sheet was filed against accused/bus driver for offences punishable under Sections 279, 304A of IPC and Section 183 of M.V. Act in CC No.370/2011 on the file of JMFC Court, Siruguppa. After appearance accused denied the charges and sought trial. In support of its case, the prosecution examined in all 19 witnesses as PW1 to PW-19 and marked Exhibits.P1 to P15. Thereafter, the incriminating material was explained to

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accused, who denied the same. He did not either offer any explanation or sought permission for defence evidence. After recording his statement under Section 313 of

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Cr.P.C., trial Court proceeded to frame

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following points for it’s consideration:

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Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable under Section 279, 304A of Indian Penal Code r/w Section 183 of IMV Act?

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2. What order?

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After answering point No.1 in the

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negative, trial Court proceeded to acquit the accused. Challenging the acquittal, State is in appeal.

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Learned Addl. Special Public

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Prosecutor Sri.V.M.Banakar submitted that

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accused/KSRTC bus driver while driving the bus on Bellary-Siruguppa route near KEB sub station, Tekkalakote, on SH-19, dashed against K.C.Chandra, a shepherd who was taking his sheep by the side of road, towards Halekote. In the accident, K.C.Chandra and five sheep died on the spot. The complaint is registered immediately after the accident at 5 a.m. It was made over to JMFC Magistrate’s Court, without any delay.

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In support of prosecution case,

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prosecution examined several eye witnesses namely PW.2-Complainant and PWs. 6 to 11. In addition, prosecution has also examined Assistant Director of Animal Husbandry as PW.12 who conducted post mortem on sheep and certified that their death is due to accident. PW.13 is Motor Vehicle Inspector

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who examined KSRTC bus on 15.04.2011 at

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3.10 p.m and noticed following damages on the

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bus:

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a)Front left hand side wind screen glass broken.

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b) Front left hand side head light, shape, indicator damaged

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c) Front left hand side Bumper damaged.

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The Inspector opined that brake

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system of bus was in order and accident was not due to any mechanical defect. The prosecution examined PW.15-Conductor who was in the bus with accused at the time of accident and also PW.16/the spare driver in the bus, who stated that accused was driving the bus at the time of accident. PW.18 is the Doctor who conducted post mortem of deceased K.C.Chandra. His report is marked

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as EX.P.13 wherein, the cause of death stated as due to shock and Hemorrhage as a result of head injury. The time since death is noted as 6 to 12 hours and post mortem was conducted between 10.30 pm to 12.30 p.m. on 14.04.2011. The history of death is noted as Road Traffic Accident. The prosecution also examined the Investigating Officer who conducted investigation as PW.19 and got marked accident spot sketch, drawn by him, as Ex.P.14. Learned ASPP submitted that from evidence of these witnesses and exhibits marked, it was established that accident was caused due to rash and negligent driving of KSRTC bus by accused and therefore, trial Court committed grave error in acquitting accused. Assailing reasons assigned, it was submitted that minor contradictions in evidence of eye witnesses ought to have been

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ignored, as they were rustic villagers. It was submitted that the reason assigned by trial Court that Investigating Officer failed to provide attendance register of accused to establish the fact that it was the accused who was driving the bus at the time of accident, is perverse, as accused had not at all disputed the same. No suggestions were made to any of eye witnesses. That apart, this fact was established by prosecution by examining the conductor and spare driver who were in the bus along with accused and who clearly stated that it was accused who was driving bus at the time of accident. Even the eye witnesses’s clearly establishes the said fact. Even the reasons assigned by trial Court regarding accident spot being on the left side from middle of road and assigning negligence to deceased for taking his sheep on the road are

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also perverse, in as much as, accused is a driver of the KSRTC bus carrying passengers and it is his responsibility is not only towards safety of passengers but also towards other road users. Failure of accused to offer any explanation at the time of recording his statement under Section 313 of Cr.P.C. and failure to lead any evidence also provided one more factor to be taken in the chain of events in favour of prosecution, to prove offence against accused. Even the reason that eye witnesses could not have seen the accident due to darkness is also grossly irregular as very manner of accident where deceased and five sheep died on the spot is considered in the light of failure of accused to apply brakes or make any attempt to avoid accident, established rash and negligent driving by accused in a manner dangerous to human life.

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It was also submitted that merely because of eye witnesses were related to deceased does not discredit their evidence in toto, when their evidence is consistent in substantiating the ingredients of the offences.

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Heard the learned Addl. State Public Prosecutor, perused impugned judgment and records.

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From the above, it is undisputed that on 14.11.2011, K.C.Chandra and five sheep died in an accident caused by KSRTC Bus bearing No.KA-36/F-791 near KEB station on Bellary-Siruguppa road (SH-19) at about 3 a.m. It is however, disputed that the accident

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was caused by the accused by driving the bus in rash and negligent manner. PW.10 is the father of deceased. He has stated that he was not present at accident spot on the date of

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accident. Therefore, his evidence is not helpful to prosecution. PW.2 is the complainant eye witness. He has identified his signature on Ex.P.1-complaint and also identified photograph of bus as Ex.P.2 and P3. He also admitted his signature on spot mahazar Ex.P4. During cross examination, PW.2 admits that accident occurred on left side of road and he was standing on the right side of road and it was dark at the time of accident. PW.2 further states that the driver of bus stopped the bus a little distance away from the accident spot on hearing their cries. He also admits that he had signed spot mahazar in police station. It is elicited from said witness that deceased K.C.Chandra was behind him along with his sheep. PW.3-the pancha witness for Ex.P.4 has not supported the prosecution. PW.4pancha witness for Ex.P.5-inquest

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panchanama has also not supported the prosecution. PW.5 merely states that he saw the body of accused in morque. PW.6-eye witness has also not supported the prosecution. PW.7 is one of pancha witness to Ex.P.5-inquest mahazar has identified his signature on it.

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PW.8 is the eye witness who was named by complainant as accompanying the complainant at the time of accident. He deposed about the accident taking place on Bellary-Sirugupa road near KEB station in which K.C.Chandra and five sheep died. During cross examination, he admitted that deceased was K.C.Chandra was his nephew. He states that at the time of accident, along with him and deceased K.C.Chandra, SannaIrappa and Nagaraja were also taking

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their sheep towards Halekote. It has been elicited from said witnesses that PW.2 was not present at the accident spot, but came to see him at the hospital, the next day. PW.8 also admits that he had not seen bus dashing against deceased and it was dark at that time. He admits that he was going ahead of deceased. PW.9 also stated about the accident like PW.8 admits in his cross examination that he was going ahead of K.C.Chandra by about 15mtrs. He also admits that he came to accident spot after accident. PW.10 and 11 also deposed likewise and admitted in their cross examination that they did not see the accident and that it was dark. They also admitted that they cannot say about the speed of bus at the time of accident.

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On consideration of the evidence of said witnesses, though the fact of accident can be said to have been established by prosecution, there is no specific evidence to support the charge of rash and negligent driving by accused. The accident has occurred on the left side of the road. The same is supported by accident spot sketch-Ex.P.14. None of the eye witnesses have deposed regarding any specific act on the part of accused from which it could be inferred that accused was driving the bus in a rash and negligent manner. Hence, prosecution cannot be said to have established rash and negligent driving of bus by the accused beyond reasonable doubt and the accused would be entitled for acquittal on that count.

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Sub section (3) of 183 of M.V.Act

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stipulates that a conviction under the said provisions cannot be based solely on oral evidence of witness, without being supported by any estimate obtained by use of some mechanical device. Under said circumstances, it has to be held that prosecution failed to substantiate the charge under Section 183 of MV Act.

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Though the reasons assigned by the trial Court especially failure of the

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Investigating Officer to produce the attendance register of the accused to prove that it was the accused who was driving the bus on the date of the accident would be perverse as the prosecution had duly established the said fact by examination of the conductor and spare driver who were in the bus at the time of

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accident. Further, reasons assigned by trial Court inferring negligence on the deceased for moving on the road would also be perverse as it is for the accused to take care and caution

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not only for the safety of the passengers traveling in the vehicle which he is driving but also about safety of other road users. Which obligation is cast on him under the provisions of M.V.Act and Rules. The prosecution failed to examine any independent witnesses or passengers traveling in the bus. This would also be one of the factors that would support the grant of benefit of doubt in favour of the accused.

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Some of the reasons of the trial Court are perverse. The same however, does not affect over all result of the judgment as the conclusions of trial Court are based on

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evidence on record and do not call for any

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interference by this Court.

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In the result, there is no merit in the

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appeal. Accordingly, appeal is dismissed.

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SD/JUDGE

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HMB

State of Karnataka v. Mohammed Rafiq S/O. Ladelsab

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Mohammed Rafiq S/O. Ladelsab

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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