Dismissed

Basappa Mahadevappa Kadlikoppa v. the State of Karnataka

Karnataka HC3 Feb 2021CRL.RP/2139/2012

Case brief

AI extract

What is this about?

This High Court of Karnataka dismissed a criminal revision petition filed by a bus driver convicted of rash and negligent driving causing death. Relying on Supreme Court precedents, the court held that the trial and appellate courts correctly found the accused guilty despite procedural gaps, as the evidence established negligence beyond doubt.

What did the court decide?

The criminal revision petition was dismissed and the judgment of conviction and sentence was confirmed.

Basappa Mahadevappa Kadlikoppa Vs the State of… — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 3^rd DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2139/2012

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BETWEEN:

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BASAPPA MAHADEVAPPA KADLIKOPPA, AGE:48 YEARS; OCC: SERVICE, R/O.PADESUR, TQ.NAVALGUND, DIST. DHARWAD.

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.. PETITIONER

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(BY SRI. B.V. SOMAPUR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC, PROSECUTOR,CIRCUIT BENCH, DHARWAD

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.. RESPONDENT

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(BY SRI. RAMESH B. CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(2) READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED JMFC, SHIGGAON IN CC NO.228/2006 DATED 25/06/2009 CONFIRMED BY LEARNED SESSIONS JUDGE, HAVERI IN CR.A. NO.45/2009 DATED 09.02.2012

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THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is filed by the sloe accused under Section 397(2) of the Code of Criminal Procedure 1973, for setting aside the judgment of conviction and sentence dated 25.6.2009 passed by the learned Civil Judge (Junior Division) and JMFC, Shiggaon in C.C.No.228/2006 (hereinafter referred to as the ‘trial Court’, for brevity) and confirmed by the learned Sessions Judge(Fast Track), Haveri in Criminal Appeal No.45/2009 dated 09.02.2012 (hereinafter referred to as the ‘first appellate Court’, for brevity) wherein the trial court has convicted the accused/petitioner for the offence punishable under Sections 279, 338, 304A of IPC and under Section 134 read with Section 184 of the Motor Vehicles Act and sentenced to pay fine of Rs.1,000/- in default to undergo simple imprisonment for a period of 1½ months for the offence under Section 279 of IPC, further to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for a period of six months for the offence under Section 338 of IPC, to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- in default to undergo further simple imprisonment for a

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period of six months for the offence under Section 304A of IPC and to pay fine of Rs.250/- in default to undergo simple imprisonment for a period of 1 month for the offence under Section 134 read with Section 187 of MV Act. All the sentences were ordered to run concurrently.

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Heard Sri Somapur, learned counsel for the petitioner and Sri Ramesh B.Chigari, learned Government Pleader for the respondent- State.

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The rank of the parties before the trial court is retained for convenience.

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The case of the prosecution is that the Shiggaon Police filed charge sheet against the accused for the offence punishable under Section 279, 338 and 304A of IPC and under Section 134 read with Section 184 of MV Act. It is alleged that on 27.09.2005, the petitioner being the driver of the KSRTC bus bearing registration No.KA-23/F-219 drove the said bus from Haveri to Shiggaon in a rash and negligent manner endangering human life and near Bankapur-Mundagod cross, dashed against a lorry bearing registration No.KA-29/3552 which was parked on the left side of

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the road due to bursting of the tyre. Due to the impact, 5 passengers died and 8 passengers sustained grievous injuries. The accused is said to have fled away from the spot. The police, after registering the case against the accused for the aforesaid offence, took up investigation and filed charge sheet. After taking cognizance, the trial Court read over the accusations made against him. The accused pleaded not guilty and claimed to be tried.

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The prosecution in order to prove its case, examined 11 witnesses as PWs.1 to 11 and got marked 29 documents. The statement of the accused under Section 313 of the Cr.P.C. was recorded. The accused has denied all the incriminating evidence against him. The case of the accused is one of total denial and got examined himself as DW-1 and no documents were marked.

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The trial Court, after considering the evidence on record, found the accused guilty of the offence charged and convicted and sentenced him as stated above. Being aggrieved by the same, the accused filed an appeal before the first appellate Court, which came to be dismissed on 09.02.2012 confirming the

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judgment of conviction and sentence passed by the trial court. Assailing the same, the accused/petitioner is before this Court.

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Sri. Somapur, learned counsel for the petitioner has strenuously contended that the judgment passed by the trial Court as well as the first appellate Court is not sustainable in law as there is error on the part of the trial Court in accepting the evidence of the prosecution witnesses. The trial Court has not noticed that the accident had occurred in the night hours at 8.00 pm on the Highway where the vehicle of the complainant was parked on the road due to bursting of tyre. The road was very narrow and there were no indicators put on by the complainant to show that the vehicle is stationed/parked. Therefore, it was not possible for the accused to observe the same while driving the vehicle. PW-1 is not an eyewitness to the incident. If at all he was really repairing the vehicle, naturally, he would have sustained injuries in the accident. Though PW-1 might not be an eyewitness and might not be a person on the spot, but he is definitely made an eyewitness. Even, the other witnesses i.e., the injured persons are interested witnesses. There are no independent witnesses who have

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supported the prosecution case. PW-3 is the panch witness and he has turned hostile. He further submitted that the Investigating Officer is not examined. Hence, prayed for setting the impugned order passed by both the Courts below.

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Per contra, learned High Court Government Pleader supported the impugned judgment passed by the Courts below and contended that this Court cannot interfere with the concurrent findings passed by both the Courts below. The offence committed by the accused is an accident. He drove the vehicle in a rash and negligent manner and dashed to the stationed lorry. The half of the bus was cut off/crushed on the left side. Four persons died on the spot and one person died on the way to the hospital and 8 were injured and left leg of PW-5 were amputated. The offence is serious in nature. He further contended that things speak for itself. Inquest panhanama shows rashness and negligence in causing the accident by the accused. Absolutely, there is no ground to set aside the judgment of the trial Court which is confirmed by the first appellate Court. Hence, prayed for dismissal of the revision petition.

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Heard the arguments of the learned counsel for the petitioner and the learned Government Pleader and perused the records.

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It is well settled by the Hon’ble Apex Court in catena of decisions that the concurrent findings cannot be interfered with ordinarily except in surrounding circumstances where a great injustice would cause to the accused and there is illegality or error committed by the trial court in appreciating the evidence as against the materials on record. Admittedly, , the accused was the driver of he KSRTC bus bearing registration No.KA-23/F-219 is not in dispute. The bus was driven by the accused from Haveri to Shiggaon which met with an accident by dashing to a stationed lorry bearing registration No.KA-29/3552 is also not in dispute. Ex.P-1 is the complaint, Exs.P-2 to 6 are the inquest panchanama of the deceased persons prepared by the police, Exs.P-7 to 21 are the wound certificates of the injured persons. Exs.P-22 to 26 are the postmortem examination report of the deceased persons, Ex.P27 is the IMV report which reveals that the accident had occurred not due to any mechanical defect. These documents are not

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seriously disputed. The injuries sustained by injured is also not controverted in the cross-examination by the accused. Thereby the prosecution is able to prove that the accused was the driver of the KSTC Bus a the relevant point of time and that due to the accident

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5 passengers died and 8 passengers sustained injuries.

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The question that arises for consideration by this Court

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is:

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Whether the judgment of conviction and sentence passed by the both the Courts below requires interference?

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In this regard, the prosecution has examined PW-1, who is an eyewitness as well as the driver of the lorry. According to his evidence, he is the driver of the lorry and due to bursting of the backside tyre he had stationed the lorry on the left side of the road and he was taking out the puncture, at that time, the accused drove the bus in a rash and negligent manner and dashed to the backside of the lorry due to which some passengers died and some have sustained injuries.

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PW-2 is the panch witness to the spot mahazar. Though he has turned hostile, no purpose is served to the case of

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the accused. PW-3 is the panch witness. He has supported the case of the prosecution. PW-4-Rajashekhar is the injured eyewitness. PW-5-Mahalakshmi is the wife of the PW-4, who is also injured in the accident. PW-6 to 8 are the injured eyewitnesses in the accident. All of them have categorically stated that they were traveling in the bus and the accused drove the bus in a rash and negligent manner and dashed to the stationed lorry. During their cross-examination, nothing has been elicited by the counsel for the accused to disbelieve their evidence. PW.1, the driver of the lorry and PWs.4 and 5 have categorically stated that when the accident occurred, lorry was parked on the left side of the road and parking indicators were on and stones were also kept on the road. And all precautionary measures were taken by PW-1 at the time of parking the vehicle by the side of the road. The accused denied all the questions posed to him during recording of the statement under Section 313 of Cr.P.C. He has entered the witness box as a witness and has deposed that he had taken all the precautionary measures while driving the bus. He has further deposed that the road was narrow and there were no indicators so as to put on view that a vehicle was being parked and even the indicators of the lorry were

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not ‘ON’, no safety measures were taken by PW-1. He further deposed that from the opposite side a Tata Sumo vehicle in order to overtake the lorry focused the lights of his vehicle which reflected on his eyes and as his eyes became blurred, he dashed the vehicle. This admission made by the accused clearly goes to show that when he was driving the vehicle, he has not taken proper care and precautionary measures in safeguarding the interest of the passengers traveling in the bus. The contention of the petitioner/accused that the lorry was parked on the road without indicators ‘ON’, cannot be acceptable in view of the evidence of PWs.1 and PWs.4 to 8 who are passengers in the bus and also the police officials witnesses. In this regard, learned Government Pleader relied upon the judgment of the Hon’ble Supreme Court in case of Ravi Kapur v. State of Rajasthan reported in (2012) 9 Supreme Court Cases 284 wherein the Hon’ble Supreme Court at paragraphs 11 to 14 has held as under:

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“ 11. In order to examine the merit of otherwise of Contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances.

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(A) Rash and negligent driving

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12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act a well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to “rash and negligent driving” within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words “manner so rash or negligent as to endanger human life”. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

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13. “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative

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term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.

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14. The court has to adopt another parameter i.e. “reasonable care” in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others”.

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Further at paragraph 31 of its judgment, it is held as under:

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“31. It is a settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the courts. (Ref. State v Saravanan and sunil Kumar Sambhudayal Gupta v. State of Maharashtra). It is

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also a settled principle that statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. The contradictions have to be material and substantial so as to adversely affect the case of the prosecution. Reference in this regard can be made to Atmaram v. State of M.P.”.

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In the case on hand, the impact of the accident was so severe that the front left side portion of bus was cut off up to the foot board on the front side of the bus and 4 persons died on the spot and one person died on the way to the hospital and 8 of them sustained grievous injuries. The accident had occurred due to the negligence on the part of the accused. He has not taken proper care while driving the bus on the Highway, which is narrow and a single road where opposite vehicles will be moving. In spite of the indicators were ‘ON’ by the stationed lorry, the accused was rash and was very speed in driving the bus, due to which 5 passengers lost their lives and 8 passengers lost their limbs. Such being the case, I do not find any error or contradictions in the evidence of PWs.1 and 4 to 8 and he police witnesses. Merely because the Investigating Officer is not examined, that itself is not fatal to the

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case of the prosecution, in view of the admitted facts regarding the accident, deaths and the injuries sustained by the passengers who traveled in the bus.

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By looking to the entire evidence on record, I do not find any error or illegality committed by the trial Court or the first appellate Court in appreciating the evidence and in finding the guilt of the accused in order to interfere in the judgments of both the Courts below. The revision petition is liable to be dismissed.

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15. Accordingly, I pass the following order:

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The Criminal Revision Petition is dismissed. The judgment of conviction and sentence dated 25.6.2009 passed by the learned Civil Judge (Junior Division) and JMFC, Shiggaon in C.C.No.228/2006 confirmed by the learned Sessions Judge(Fast Track), Haveri in Criminal Appeal No.45/2009 dated 09.02.2012, is hereby confirmed.

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Sd/JUDGE

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kmv

Basappa Mahadevappa Kadlikoppa v. the State of Karnataka

Case brief

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Basappa Mahadevappa Kadlikoppa v. the State of Karnataka

Case brief

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