Partly allowed

Yallappa S/O. Hanumanthappa Bhavi v. State of Karnataka

Karnataka HC14 Dec 2020CRL.RP/2061/2012

Case brief

AI extract

What is this about?

In this criminal revision under Sections 397 and 401 CrPC, the High Court of Karnataka upheld the conviction of a bus driver for offences under Sections 279 and 304A IPC. While dismissing the appeal regarding the conviction, the court modified the sentence to a fine of Rs. 25,000 or three months imprisonment, considering the accused's financial dependence.

What did the court decide?

Conviction upheld; sentence for Section 304A IPC modified to fine of Rs. 25,000 or three months simple imprisonment.

Yallappa S/O. Hanumanthappa Bhavi Vs State of Karnataka — Property and Title | Karnataka HC (2020)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 14^{T H} DAY OF DECEMBER, 2020

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

¶6

CRIMINAL REVISION PETITION NO.2061/2012

¶7

BETWEEN:

¶8

YALLAPPA S/O.HANUMANTHAPPA BHAVI AGE: 28 YEARS, OCC: DRIVER, R/O. KOPPARSHIKOPPA, HANGAL, HAVERI.

¶9

….PETITIONER.

¶10

(BY SHRI R.M.JAVED, ADVOCATE.)

¶11

AND: STATE OF KARNATAKA REP. BY SPP HIGH COURT CIRCUIT BENCH DHARWAD.

¶12

….RESPONDENT.

¶13

(BY SHRI RAMESH CHIGARI, HIGH COURT GOVERNMENT PLEADER.)

¶14

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 25.1.2012, PASSED BY PRL. SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.46/2011 AND THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 30.4.2011, PASSED BY PRL. SENIOR CIVIL JUDGE AND CJM, DHARWAD, IN C.C.NO.56/2008 AND TO ACQUIT THE PETITIONER, ETC.,.

¶15

¶16

THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶17

ORDER

¶18

This revision petition is preferred by accused being aggrieved by judgment of conviction dated 30.4.2011, passed by Prl. Senior Civil Judge and CJM, Dharwad, in C.C.No.56/2008, convicting accused for the offence punishable under section 279 and 304A of IPC and sentencing him to pay fine of Rs.800/- for the offence punishable under section 279 of IPC and to undergo simple imprisonment for a period of six months for the offence punishable under section 304A of IPC and to pay fine of Rs.1,000/- and in default to pay fine, to undergo simple imprisonment for a period of two months, which is confirmed by the Prl. Sessions Judge, Dharwad, in

¶19

Crl.A.No.46/2011, by judgment dated 25.1.2012.

¶20

For the sake of convenience, parties shall be referred to as per their status before trial Court.

¶21

¶22

Brief facts leading to filing of this case are as under:

¶23

On 18.12.2007 at about 2.00 p.m. within the limits of Dharwad Traffic Police Station, on P.B.Road, near JSS College bus-stop, accused was driving ‘Bendre Bus’ bearing registration No.KA-25/B-6453 from Hubballi towards Dharwad and stopped the bus at bus-stop to alight passengers and while passengers were boarding the bus, accused suddenly moved the bus in a rash and negligent manner and in a high speed. Due to this impact, one Naveenkumar Rudragouda Halaganagoudra who was boarding the bus, fell down and died on the spot.

¶24

Accused is alleged to have committed offence under section 279 and 304A of IPC. After investigation charge sheet came to be filed for the aforesaid offence. Presence of accused was secured and he was enlarged on bail. Plea of accused was recorded wherein he pleaded not

¶25

¶26

guilty and claimed to be tried. Accordingly he was tried.

¶27

In order to prove the guilt of accused, prosecution examined PW.1 to PW.10 and got marked Exs.P.1 to P.9 and closed its side. Thereafter statement of accused was recorded as required under section 313 of Cr.P.C., wherein accused denied all incriminating evidence against him. However he did not adduce defence evidence and neither did he produce any documents in support of his case.

¶28

After going through the entire material evidence, both ocular and documentary, and analyzing the evidence of witnesses, trial Court came to the conclusion that evidence adduced by prosecution was consistent, cogent and satisfactory and there was nothing to disbelieve the evidence adduced by prosecution witnesses who have established guilt of accused beyond all reasonable doubt. Therefore trial Court found the accused guilty for the aforesaid offences and

¶29

¶30

accordingly convicted and sentenced him for the aforestated offences.

¶31

Aggrieved by the said judgment of conviction, accused preferred an appeal before Prl. Sessions Judge, Dharwad, in

¶32

Crl.A.No.46/2011.

¶33

On a careful re-appreciation and re-evaluation of entire material evidence on record, appellate Court came to the conclusion that driver of bus, accused herein, drove the bus in a rash and negligent manner due to which deceased Naveenkumar who was boarding the bus fell on road and rear wheel of bus ran over him and he sustained fatal injuries and succumbed to the same. Further trial Court held that judgment of trial Court is based on sound reasoning and evidence of prosecution witnesses and it also held that PWs.5, 9 and 10 were not cross examined by the counsel for accused and no cogent, worthwhile evidence has been elicited from prosecution witnesses. Accordingly it held that there was no

¶34

¶35

ground for interference with conviction judgment passed by trial Court. Accordingly appellate Court dismissed the appeal and affirmed the judgment of conviction passed by trial Court.

¶36

Heard Shri R.M.Javed, learned counsel for petitioner and learned High Court Government Pleader for respondent State.

¶37

It is contended by learned counsel for petitioner that judgment of conviction and order of sentence passed by trial Court and affirmed by trial Court is contrary to material facts and evidence on record. Hence on these grounds impugned order is liable to be set aside and reversed. Learned counsel further contends that trial Court has failed to consider that PW.1 who is complainant has not stated anything with regard to rash and negligent driving by accused and he has not supported the case of prosecution. So also PW.2 has not supported the case of prosecution. In fact he has deposed that he has not seen or witnessed the accident. He does not know what is

¶38

¶39

written in Ex.P.3 complaint and he denied that accused was driver of bus. Even PW.7 has also not supported the case of prosecution. When these witnesses have not supported the case of prosecution, trial Court ought to have acquitted accused for the aforesaid offence.

¶40

Learned counsel further contends that trial Court has ignored the aspect that prosecution has not examined any of the witnesses who were travelling in the said bus at the time of accident. He further contends that prosecution has failed to establish that injury and death of deceased Naveenkumar was a result of rash and negligent act of accused. Learned counsel further contends that there are no cogent, independent and corroborative evidence to link accused directly for the cause of death of deceased. Therefore prosecution has failed to prove guilt of accused beyond all reasonable doubt.

¶41

Learned counsel further contends that in order to prove the offence of 279 and 304A

¶42

¶43

of IPC there has to be direct nexus to the cause of death which should be proximate and efficient to prove that death has resulted due to negligence of accused. It is further contended by learned counsel for petitioner/accused that even PW.10, conductor of bus has not stated anything directly attributing to cause of death being the result of rash and negligent act of accused. Therefore there are several inconsistencies, omissions and improvements in the evidence of prosecution which has been overlooked and ignored by trial Court and also appellate Court while passing impugned judgment of conviction.

¶44

Learned counsel for petitioner/accused submits that there is no direct attribution of negligence against accused and prosecution has not been able to prove guilt of accused beyond all reasonable doubt. On these submissions he seeks to allow the petition and to set aside judgment of conviction passed by both the Courts.

¶45

¶46

Per contra, learned High Court

¶47

Government Pleader contends that prosecution has established the guilt of accused beyond all reasonable doubt and the evidence of PWs.3, 4, 5, 7, 8, 9 and 10 have all supported the case of prosecution. Learned High Court Government Pleader contends that death of deceased Naveenkumar is not disputed. It is also not in dispute that accused was driver of bus namely ‘Bendre Bus’ who was driving the bus from Hubballi to Dharwad on 18.12.2007. Learned High Court Government Pleader contends that PWs.1, 4, 5, 7, and 8 are eye witnesses to the accident. Though PW.1 and 7 have turned hostile, others have supported the case of prosecution.

¶48

He further contends that while deceased Naveenkumar was boarding the bus at bus-stop, bus driver suddenly moved the bus due to which he slipped and fell down and came under rear wheel of the bus and thereafter died. He contends that it is the duty and responsibility of driver of

¶49

¶50

bus to be cautious and drive the bus in a careful manner without any recklessness and carelessness. But in the present case bus driver has moved the bus while deceased Naveenkumar was boarding the bus. Therefore there is a clear act of rashness and negligence on the part of bus driver/accused.

¶51

Learned High Court Government Pleader further contends that conductor of bus was examined as PW.10 and he has supported the case of prosecution. If there was no negligent act or recklessness on the part of accused, then he could have said so in his statement recorded under section 313 of Cr.P.C. and neither has accused stepped into witness box to narrate as to what happened and how deceased fell down and succumbed to the same. Non explanation of these aspects and corroborative evidence of prosecution witnesses clearly establishes guilt of accused and rightfully trial Court as well as appellate Court have convicted accused for the offence punishable

¶52

¶53

under section 279 and 304A of IPC. He contends that the said judgment is a well reasoned one and the same does not require any interference from this Court.

¶54

Learned High Court Government Pleader also contends that appellate Court has re-examined and re-evaluated entire materials on record and has rightfully affirmed judgment of conviction passed by trial Court. For these reasons he seeks dismissal of this petition and to affirm judgment of conviction passed by both Courts.

¶55

Having heard learned counsel for petitioner and learned High Court Government Pleader, point that arises for consideration before this Court is:

¶56

“Whether there is any illegality or perversity in the impugned judgments passed by both Courts?”

¶57

In order to answer the above question,

¶58

let us have a cursory look at the facts of case. It is not in dispute that on 18.11.2007 at 2.00 p.m.

¶59

¶60

accused was driving ‘Bendre Bus’ bearing registration No.KA-25/B-6453 from Hubballi to Dharwad and when bus reached JSS college bus-stop, accused had stopped the bus for passengers to alight and to board the bus. During this time while deceased Naveenkumar was boarding the bus, suddenly accused started the bus and moved it, due to which deceased slipped and fell down and came under rear wheel and died on the spot. This fact of the matter has been spoken to by PWs.4, 5, 7, 8 and 10. All these witnesses statements are corroborated by stating that while deceased Naveenkumar was boarding the bus, suddenly bus moved and caused death of deceased Naveenkumar which is direct result of rash and negligent driving by driver/accused.

¶61

Now it has to be seen whether

¶62

prosecution is able to establish guilt of accused beyond all reasonable doubt pointing out the cause of death due to direct rash and negligent act of accused. Evidence of prosecution witnesses

¶63

¶64

has not been controverted by accused. All prosecution witnesses including conductor of bus have stated that death has occurred due to moving of bus by accused suddenly from bus stop. None of the witnesses have been cross examined by accused to prove to the contrary. In fact there is no cross-examination against the evidence of PWs.5, 8, 9 and 10. Therefore prosecution witnesses evidence has not been shaken in the cross-examination with any cogent, satisfactory evidence by accused and all these above witnesses are independent witnesses and it is not the case of accused that any one of them had any enmity or vendetta against accused. PW.6 who is motor vehicle inspector has clearly stated that cause of accident is not due to any mechanical defect of vehicle. In fact, there is nothing cogent material to disbelieve evidence of prosecution witnesses.

¶65

It is the case of accused that there is no negligence or rashness on behalf of accused and

¶66

¶67

that bus driver is not required to see what is happening in the bus or on the side of the bus as he has to only look ahead and drive the bus. But while driver drives a bus in a public place, it is the duty of driver of bus to carefully drive the bus by looking in the front side as well as on both sides left and right and also to have a look on both sides through rear view mirror affixed on both sides in the front of the bus. This is generally required by any prudent person while driving a vehicle on a public way. It is the duty of every driver driving a public vehicle to be careful as omission to do something is unreasonable as a prudent person is guided by considerations which normally and ordinarily regulate human affairs which could be attributed as careful driving. Anything contrary to normal care while driving would come within the definition of negligence.

¶68

In the present case on hand the driver of

¶69

the bus – accused herein, ought to have seen through the rear view mirror as to whether any

¶70

¶71

passenger is alighting or boarding the bus and if so, the accused should be careful in not moving the bus or starting the bus. It is required of any prudent man driving the vehicle on public place and if such things are followed, then there will not be any hurt or injury or endangering of human life while driving on public place. In fact, in the present case on hand, the prosecution witnesses have stated that while deceased Naveen Kumar was boarding the bus, the driver of the bus, accused herein, suddenly moved the bus. PW10, conductor of the bus, has corroborated the evidence adduced by others and stated that the accused started the bus while deceased was boarding the bus. Though neither the conductor nor the driver have seen the deceased boarding the bus, it can be safely concluded that it is the primary duty of the driver of bus to be careful and show caution while driving the bus either on the main road or starting point of the bus near the bus stand.

¶72

¶73

In the present case, though accused has stated that there is no act of negligence on his behalf, he has not come up with any cogent worthwhile evidence while examining the prosecution witness. It is also not the case of the accused that he started the bus after the signal was given by the Conductor to move the bus. Then there being no such evidence to the contrary by the accused, it cannot be said that accused exercised due diligence, care and caution while starting the bus from the stop.

¶74

Learned counsel for petitioner has relied on the decision of the Hon’ble Apex Court in the case of MOHAMMED AYNUDDIN ALIAS MIYAM vs STATE OF ANDHRA PRADESH reported in 2000 CRI.L.J. 3508, wherein at Para-11 it has been held as follows:

¶75

“In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle

¶76

¶77

forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.”

¶78

Though the aforesaid judgment relied

¶79

on by the learned counsel for accused is some

¶80

¶81

what similar to the facts of the case on hand, but the prosecution witnesses have corroborating the statement with each other in stating that while deceased Naveen Kumar was boarding the bus suddenly the bus driver, accused herein, moved the bus, which caused the death of deceased Naveen Kumar. The bus Conductor – PW10 has also supported the case of the prosecution and the fact that there is no contra evidence lead by accused by way of cross examination, to prove the fact that he started the bus after signal was given by the accused and neither the accused has stepped into the witness box as to narrate as to how the accident was occurred and victim fell down from the bus. Same is adverse to the interest of the accused.

¶82

Appellate Court has considered all the material evidence and has re-evaluated the same and came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.

¶83

¶84

In light of the above, it has to be seen whether negligence in the case for cause of an accident can be gathered from the attendant circumstances. Doctrine of res ipsa loquitur is equally applicable to the cases of accident provided that attendant circumstances and basic facts are proved. It may also be noticed that the accident must be proved by proper and cogent evidence by the prosecution. In the present case factum of accident is not disputed. It is only to be seen whether the accused has directly responsible for cause of accident. The mere fact of occurrence of an accident does not necessarily imply, it has owed negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than

¶85

¶86

providing an outright demonstration thereof.

¶87

Elements of this doctrine may be stated as :

¶88

(i) The event would not have occurred but for someone’s negligence.

¶89

(ii) The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.

¶90

(iii) Accused was negligent and owed a duty of care towards the victim.

¶91

The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.

¶92

Therefore, considering the above aspects and relating to the attending circumstances in the present case, it is seen that

¶93

¶94

circumstantial evidence and the statement of prosecution eye witnesses, it could be safely concluded that if the bus driver – accused herein, had shown any care and caution, then the incident of deceased Naveen Kumar slipping and falling down would not have occurred. Therefore, all the circumstance point towards guilt of accused and there is no cogent worth while evidence elicited by the accused to prove the contrary. Hence, under the above circumstance the judgment relied on by the learned counsel for petitioner – accused may not be helpful in the present facts of the matter.

¶95

In view of the above, I do not fine any

¶96

reason to interfere with the judgments of both the Court and petitioner – accused has not made out any ground to show that there is any illegality and perversity committed by both the Court in passing the impugned order. Hence, I answer the point in the negative.

¶97

¶98

Though I find no reason to interfere

¶99

with the judgment of conviction, but under the facts and circumstance of the case considering the mitigating circumstance that the accused being the young driver, who is solely dependent on his driving to make his livelihood and his family is depending upon his only income, the sentence imposed by the Courts below deserves to be modified.

¶100

Accordingly, I pass the following order:

¶101

ORDER

¶102

(1) Petition is partly allowed;

¶103

(2) Judgment of conviction dated 30.4.2011 passed by the Prl. Senior Civil Judge and CJM, Dharwad in C.C.No.56/2008 and confirmed by the Prl. Sessions Judge, Dharwad, in Crl.A.No.46/2011, by judgment dated 25.1.2012 for the offences punishable under Sections 279 and 304A of IPC is upheld;

¶104

¶105

(3) However, the sentence passed against the accused for the offence punishable under Section 304-A of IPC is modified and the accused is sentenced to pay a fine of Rs.25,000/- in default to pay fine to undergo simple imprisonment for a period of three months;

¶106

(4) The sentence passed by the trial Court for the offence punishable under Section 279 IPC sentencing the accused to pay a fine of Rs.800/- is not disturbed.

¶107

Sd/JUDGE

¶108

MRK/VK

Yallappa S/O. Hanumanthappa Bhavi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Yallappa S/O. Hanumanthappa Bhavi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

B T Raghavendra S/O. Basavaraj Vs the State of Karnataka

M/S Shriram Transport Finance Co. Ltd., Vs Smt. H. R. Bhagyavathi W/O H. N. Renukappa

Manjunath S/O. Chandrashekhar Naik, Vs the State of Karnataka by Its

Rabdin Salim S/O Nagoor Pichai Vs the State of Karnataka

Suresh v. Pujari Vs Sidduraju K. J.

A.K. Lokesh S/O Samadeepa Vs C. Vishwanath S/O Late C. Chandrashekar