Partly allowed

Sri Ramesha v. State of Karnataka

Karnataka HC21 Feb 2022CRL.RP/243/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka confirmed the conviction but set aside the sentence of imprisonment in a case of rash and negligent driving. The Court held the accused guilty but found the original sentence too harsh, modifying it to a fine only.

What did the court decide?

The order of sentence of imprisonment is set aside and modified, confining the order to the fine imposed by the trial court only.

Sri Ramesha Vs State of Karnataka — Dowry and Cruelty | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE P.N.DESAI

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CRIMINAL REVISION PETITION No.243/2012

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BETWEEN :

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SRI RAMESHA BUS DRIVER SON OF VASANAPPA AGED ABOUT 34 YEARS R/O ASIYA THANDA RAYACHURU DISTRICT

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...PETITIONER (BY SRI R SRINIVAS, ADVOCATE-absent)

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AND : STATE OF KARNATAKA BY ALUR POLICE STATION HASSAN DISTRICT

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...RESPONDENT (BY SRI B S VENKATANARAYAN, ADVOCATE as AMICUS CURIAE SRI RAHUL RAI K, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 AND 401 OF CR.P.C. TO SET ASIDE THE ORDER DATED 10.09.2008 IN CC NO.284/2006 PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC, ALUR AND SET ASIDE THE ORDER DATED 15.11.2010 PASSED BY THE ADDITIONAL SESSIONS JUDGE AT HASSAN IN CRL.A.NO.138/2008.

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

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ORDER

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This Criminal Revision Petition is filed assailing the judgment of learned Additional Sessions Judge, Hassan, passed in Criminal Appeal No.138/2008, dated 15.11.2010 whereby, the learned Additional Sessions Judge confirmed the judgment of conviction and order of sentence passed by the Civil Judge (Jr.Dn.) & JMFC, Alur, in C.C.No.284/2006, dated 10.09.2008 wherein, the revision petitioner was convicted for the offences punishable under Sections 279, 337 and 338 of Indian Penal Code, 1860 (for short 'IPC').

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The Revision petitioner was the accused before the trial Court.

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The parties will be referred as per their respective ranks before Trial Court for convenience.

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The factual matrix of the prosecution case are that on 01.01.2006, in the midnight between 12.30 and 1.00 a.m., the accused who is the revision petitioner in this case being the driver of a KSRTC bus bearing Regn.No.KA-19/F-2143 drove the said vehicle in a rash and negligent manner near Eshwarahalli Koodige and dashed the said bus to a Canter Lorry bearing Regn. No.KA-42-62 from hind side. Due to the said impact, the vehicle of the accused and also the Canter lorry got damaged and six persons sustained injuries. In this regard, a complaint came to be lodged as per Ex.P.10-statement. On the basis of the said statement, a case in CC No.284/2006 came to be registered by the Alur Police Station and FIR was sent to the Court. The said complaint was registered on the basis of the memo received from the hospital as per Ex.P.9. Accordingly, the Head ConstablePW.11 visited the hospital and recorded the statement

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of the injured and registered the complaint. On the same date, he registered the place of offence and conducted spot panchanama as per Ex.P.1. He also seized the vehicle and prepared the sketch map. He also took photographs of both the vehicles as per Exs.P.13-P.19 and the negatives were also produced.

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Then, the Investigation Officer called the Motor Vehicle Inspector for inspecting the vehicles and recorded the statement. He arrested the accused on 03.01.2006 and handed over the further investigation to his higher officer i.e. CW.17, who, after completing the investigation has filed charge sheet against the accused for the offences stated above.

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The accused appeared before the learned JMFC and denied the substance of the accusations put against him. The prosecution examined eight witnesses as PWs.1 to 8 and got marked 11 documents as per Exs.P.1 to P.11. Thereafter, the

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statement of the accused as required under Section 313 (b) of Cr.P.C. was recorded. The accused denied all the circumstances appearing against him in the evidence of the prosecution witnesses. The accused has not chosen to lead any defence evidence. After hearing the arguments, the learned JMFC convicted the accused for the offences punishable under Sections 279, 337 and 338 of IPC and sentenced the accused to undergo simple imprisonment for one month with fine of Rs.1,000/- for the offence punishable under Section 279 of IPC; to undergo simple imprisonment for 15 days with fine of Rs.500/for the offence punishable under Section 337 of IPC and to undergo simple imprisonment for one month with fine of Rs.1,000/- for the offence punishable under Section 338 of IPC and directed that all the punishment shall run concurrently and in default, to undergo further simple imprisonment for 15 days.

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Aggrieved by the said judgment, the revision petitioner/accused preferred Criminal Appeal No.138/2008 and the learned Additional Sessions Judge, after hearing the arguments, dismissed the said appeal confirming the judgment passed by the learned JMFC. Aggrieved by the said judgment, this revision petition is preferred by the accused.

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The order sheet indicates that the revision petitioner after filing the revision petition did not appear before the Court. The case was listed many times and the counsel for the revision petitioner was

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absent. By order dated 17.11.2021, Sri B S Venkatanarayan, learned advocate, was appointed as amicus curiae to represent the revision petitioner.

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Heard Sri B S Venkatanarayan, learned amicus

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curiae for the revision petitioner and Sri Rahul Rai K,

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learned High Court Government Pleader for the respondent-State.

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Learned amicus curiae for the revision petitioner argued that both the Courts have failed to appreciate the proposition of law that the initial burden is on the prosecution to establish the guilt beyond all reasonable doubt. The Courts have given much importance to Section 106 of Indian Evidence Act, 1872 (‘Act’ for short). On the other hand, it is for the prosecution to prove its case. Learned amicus curiae further argued that PW.1- driver of the Canter lorry has not stated as to how the bus was driven. Because

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according to the prosecution, the accident has occurred from hind side. Even PW.2, the Cleaner of the Canter lorry has also not stated about the rash and negligent driving by the accused. The other witness PW.3 is the hearsay witness. He further referred to evidence of PWs.4 and 5, who are

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witnesses to the mahazar. They have not stated anything about the position of the lorry. Learned amicus curiae further argued that since there is no eyewitness to the incident, the possibility of the accident occurring in the midnight due to the fault of the lorry cannot be ruled out. When the prosecution has failed to prove beyond all reasonable doubt that it is the action of the accused which resulted in the accident and as other views are also possible, the Courts should have taken the view favourable to accused as per the settled principles of law and should have given the benefit of doubt and acquitted the accused. As the evidence of the prosecution creates a doubt in the mind of the Court, learned amicus curiae argued that the judgments of both the Courts below be set aside and the accused be acquitted.

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Learned amicus curiae further argued that the accused is a KSRTC bus driver and the entire family is

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depending upon him. There are no records to show that he was previously involved in any other the accident. Therefore, the punishment imposed is also not based on the evidence on record. With these main arguments, learned amicus curiae prayed to allow the revision petition.

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Against this, Sri Rahul Rai K, learned High Court Government Pleader appearing for the respondentState argued that both the Courts have considered the evidence of the prosecution meticulously and appreciated the evidence in proper perspective. Learned Government Pleader further argued that the very nature of the accident itself shows that it is due to the rash and negligent driving by the driver of the bus i.e. the revision petitioner this accident has occurred. Further, learned Government Pleader brought to the notice of the Court that the road was straight and the photographs along with the negatives

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produced before the Court shows that the damage was on the left side of the bus and damage to the Canter lorry was on the hind side. That itself shows the nature of accident. Of-course the driver of the Canter lorry not stated anything as he was sitting in the front. But the nature of accident, the sketch of the spot panchanama coupled with other circumstances clearly indicate that it is the act of the accused which has resulted in with the accident and causing injuries to inmates of the Canter. Learned Government Pleader submits that one of the injured has sustained grievous injuries. Because of the impact, the Canter lorry trembled or turtled. Learned Government Pleader further argued that the accused - revision petitioner has taken inconsistent defence in the crossexamination and has not explained anything as to how the accident has occurred. Therefore, in view of Section 106 of the Act, adverse inference will have to

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be drawn against the revision petitioner for not explaining or not giving defence evidence as to how the accident has occurred. Learned Government Pleader further argued that the learned JMFC as well as learned Additional Sessions Judge have referred to the evidence meticulously and have rightly come to the conclusion that it is only because of the rash and negligent driving of the bus by the revision petitioner, the accident has occurred which has resulted in injuries to the injured and the accused has been rightly convicted and sentenced by both the Courts. Accordingly, he prays to dismiss the revision petition.

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From the above materials, the point that arises for my consideration is,

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" Whether the judgments of conviction and order of sentence passed by both the Courts are correct and legal or needs any interference by this Court?"

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I have perused the evidence on record and the judgments of learned JMFC as well as learned Additional Sessions Judge.

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Learned Additional Sessions Judge in his judgment has raised three points for its consideration and has also mentioned the principles regarding interference by the Appellate Court. Accordingly, learned Additional Sessions Judge has re-appreciated the evidence. It is also evident that the accident has occurred on a National Highway i.e. the road between Sakaleshpura and Hassan near Eshwarahalli Koodige. It is a public road and the witnesses have clearly identified the driver of the vehicle. Therefore, the accident has occurred on a public road is not disputed and the evidence of these witnesses as referred to by the learned Additional Sessions Judge that the accused was driving the said bus is also not disputed. Learned Additional Sessions Judge has referred to the

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report of the Motor Vehicle Inspector-PW.8, Manjunatha, who has examined the vehicle and gave the report as per Ex.P.11, which shows that both the vehicles are damaged. The photographs of both the vehicles were also produced along with the negatives and marked as Exs.P.13 to P.19. The said report of PW.8 clearly indicates that the accident is not due to any mechanical defect in the vehicle. On the other hand, the photographs and the spot panchanama shows that the left side of the bus was damaged and the hind portion of the Canter lorry was also damaged. Learned Additional Sessions Judge has referred to the evidence of PW.1-Ahamed Jaan, driver of the Canter lorry who has stated that while he was driving, at about 12.30 a.m. in the midnight on 01.01.2006, a KSRTC bus dashed to his vehicle and his Canter vehicle turtled, PW.1 and others sustained injuries. Then, he came out from the front portion of

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the vehicle and identified the accused as the driver of the Bus. The cross-examination of PW.1 shows that the accused even went to the extent of denying that PW.1 is not the driver of the said vehicle i.e. Bus. PW.2-Imran who is the Cleaner of the said lorry has also stated that the offending vehicle came from behind and dashed against the lorry and it turtled. He also sustained injuries. PW.3-Abdul Salam, the owner of the Canter lorry has stated that both the driver and the Cleaner of the said vehicle informed him about the accident. PW.4-Mohammed Ilyas and PW.5-Khallel Ulla Khan are the witnesses for the recovery mahazar. They have stated about the mahazar. Ex.P.12-sketch map and Ex.P.10-complaint clearly show that the road was straight and there was no curve, Canter lorry was moving on the left side of the road. Ex.P.1-Mahazar also clearly stated that the width of the road was about 22 feet and it was a straight road. Learned

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Additional Sessions Judge considering the evidence of witnesses, photographs and spot panchanama, the sketch and the report of the Motor Vehicle Inspector found that the accident occurred on the extreme left side of the road. The accused has not explained as to how the accident occurred. Even in the crossexamination, no suggestions were made in this regard. In the absence of any such suggestion or defence evidence by the accused, learned Additional Sessions Judge came to conclusion that the finding of learned JMFC that the accident occurred due to rash and negligent driving by the driver of the said vehicle cannot be illegal and capricious.

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I have perused both the judgments and the evidence on record. The defence of the accused that the road was curve is not true. On the other hand, the sketch and the spot panchanama clearly indicate that the road was straight. The photographs clearly

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indicates that the accident occurred due to the bus hitting the Canter lorry from behind and it got turtled. Of course, it is midnight at 12.30 a.m., but the width of the road was 22 feet and the accident occurred on the extreme left side of the road where Canter lorry was moving. So the driver of the bus ought to have taken care and he should have acted as a reasonable and prudent man in a similar situation while driving the vehicle on such road and such time. But, here, the nature of accident and the damage to the vehicles clearly indicates that the driver of the bus was driving the vehicle in a negligent and reckless manner and he was driving on a public road in a rash and negligent manner so as to endanger human life or which is likely to cause injuries to the persons inside the Canter lorry. The driver of the bus ought to have taken reasonable care in such a situation during night time. Here, the very impact of the accident itself shows that

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the bus hit the Canter lorry in a very high speed in a negligent and reckless manner even Canter vehicle’s front glass was also broken. Thus, the Court can infer the nature of driving by the bus driver.

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On the other hand, the cross-examination by accused is totally inconsistent and it goes on changing from witness to witness. Apart from that, in the statement recorded under Section 313 of Cr.P.C., the accused has not explained anything as to how the accident occurred. Because it is within the knowledge of the revision petitioner/accused to show before the Court as to how the accident occurred. The accident is admitted, place of the accident is admitted and time is also admitted. If the driver of Bus denies it, then he has to explain how the accident occurred. As argued by learned amicus curiae, the initial burden is on the prosecution to prove beyond all reasonable doubt the allegations as alleged. When once the prosecution

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proves its case, then, Section 106 of the Act in these type of cases and circumstances comes into picture. Section 106 of the Act clearly states that when any fact is within the knowledge of any person, the burden of proving that fact is upon him. If the driver of the bus has not caused the accident because of rash and negligent manner of driving, then he should have explained as to how the accident has occurred and the damage caused to the Canter lorry. The defence that on its own the Canter lorry turtled and trembled is false in view of the damage to the bus also. Unless the bus hits the Canter lorry, this accident would not have occurred. Therefore, in view of the evidence on record, both learned JMFC as well as learned Additional Sessions Judge on re-appreciating the evidence found that the accused is guilty of the offence and have rightly convicted the accused. I find no illegality in the finding of conviction by both the

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Courts. On the other hand, both the Courts have appreciated the evidence on record in a proper perspective based on settled principles regarding appreciation of evidence in these types of accident cases.

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As far as the order of sentence is concerned, learned amicus curiae , argued that the accident is of the year 2006. The revision petitioner is working as a bus driver in KSRTC, Puttur Depot and there are no records of he committing any accident subsequent to this accident. Of course, no material is placed in this regard to show that he was involved in such cases subsequent to this accident. Sections 279, 337 and 338 of IPC state that the offender can be punished either with imprisonment or with fine or with both. The nature of the injuries, except to one witness, all other injuries are simple in nature. The accident occurred on a New Year day of 2006, at 12.30

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midnight. Looking to the year of accident, period of pendency of case, the nature of accident, circumstance under which the accident has occurred and keeping in mind the settled principles regarding imposing sentences, in my considered view, the sentence of imprisonment works out to be too harsh to the revision petitioner/accused. The imposition of sentence depends upon many factors. The Court has to take into consideration the nature of offence, gravity of offence, its impact on the society, the circumstances under which the accident has occurred, the background of the accident, the subsequent conduct of the accused during the pendency of the case and other relevant circumstances. Looking to the nature of injuries and the nature of accident, in my considered view, the ends of justice would be met by setting aside the order of sentence of imprisonment and modifying the said sentence and confining the

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sentence to only one of fine as imposed by learned JMFC. Accordingly, I pass the following order;

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Order

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i) The Criminal Revision Petition is partly

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allowed.

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ii) The judgment of conviction passed by the Civil Judge (Jr.Dn.) & JMFC, Alur, in C.C.No.284/2006, dated 10.09.2008 for the offences punishable under Sections 279, 337 and 338 of IPC which was confirmed by learned Additional Sessions Judge, Hassan, in Criminal Appeal No.138/2008, dated 15.11.2010 is hereby confirmed.

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iii) Further, the sentence of fine imposed by learned JMFC and confirmed by learned Additional Sessions Judge is also confirmed.

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iv) The order of sentence of imprisonment imposed for the offences punishable under Sections 279, 337 and 338 of IPC is set aside.

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v) The revision petitioner/accused, if not deposited the fine amount, the Trial Court shall take steps to recover the fine amount, in accordance with law.

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This Court places on record the appreciation for the assistance rendered by Sri B S Venkatanarayan, learned amicus curiae.

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Office is directed to pay an honorarium of Rs.5,000/-to the learned amicus curiae .

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Sd/JUDGE

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Sri Ramesha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Ramesha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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