Allowed

Rajagopal S/O Ramanna, v. State of Karnataka

Karnataka HC13 Oct 2023CRL.RP/100050/2017

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged the conviction of a truck driver for rash and negligent driving causing death under Section 304-A IPC. The High Court held that the prosecution failed to establish rashness or negligence beyond reasonable doubt, as the accident appeared accidental. Consequently, the conviction and sentence were set aside.

What did the court decide?

The judgment of conviction and order of sentence dated 17th June, 2011 under Sections 279 and 304-A IPC are set aside.

Rajagopal S/O Ramanna, Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL REVISION PETITION NO. 100050 OF 2017

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BETWEEN:

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RAJAGOPAL S/O. RAMANNA, AGED: 44 YEARS, OCC: DRIVER, R/O: RAMESHWAR PADUTUR, TQ: KADAPA, STATE: ANDHRA PRADESH.

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…PETITIONER

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(BY SRI VISHWANATH HEGDE, ADVOCATE)

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AND:

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.18 12:15:13 +0530

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STATE OF KARNATAKA, THROUGH BILAGI POLICE STATION, DIST: BAGALKOT, REPRESENTED BY HCGP HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT

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(BY SRI PRAVEEN UPPAR, AGA)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C., SEEKING TO THE REVISION PETITION BE ALLOWED AND JUDGMENT DATED: 01.08.2015 PASSED BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT IN CRIMINAL APPEAL NO. 47 OF 2011 AND JUDGMENT DATED: 17.06.2011 PASSED BY JMFC BILAGI IN C.C.NO. 466 OF 2010 FOR THE OFFENCE PUNISHABLE

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UNDER SECTION 279 AND SECTION 304-A OF INDIAN PENAL CODE KINDLY BE SET ASIDE AND CONSEQUENTLY THE ACCUSED/APPELLANT BE ACQUITTED.

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IN THIS PETITION, ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Revision Petition is against the Judgment of conviction and order of sentence dated 17^th June, 2011 passed in Criminal Case No.466 of 2010 by the JMFC, Bilagi (for short, hereinafter referred to as the “trial Court”) which is confirmed by Judgment of conviction and order of sentence dated 01^st August, 2015 passed in Criminal Appeal No.47 of 2011 by II Additional District and Sessions Judge, Bagalkot (for short, hereinafter referred to as the “Appellate Court”).

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For the sake of convenience, the parties in this Revision Petition are referred to with their rank and status before the trial Court.

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The brief facts of the prosecution's case are as follows:

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On July 15, 2010, at approximately 7:00 pm, the accused, who was the driver of a truck bearing registration No. AP-04/U-

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6867, was traveling from Sunag to Janamatti on a public road. The accused drove the truck in a rash and negligent manner, endangering human life. When the truck reached near the house of the complainant at Kundaragi LT-1, it collided with a child. Due to this accident, the child sustained grievous injuries to the head and, tragically, died at the scene. Consequently, the accused has committed an offence punishable under Section 279 and 304A of the Indian Penal Code. After filing the charge sheet, a case was registered in CC No. 466 of 2010.

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In compliance with the summons, the accused appeared before the trial court, and the Magistrate recorded the substance of the plea. The accused pleaded not guilty and requested to be tried. To support the prosecution's case, a total of eight witnesses were examined as PW1 to PW8, and 15 documents were marked as Exhibits P1 to P15. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused has entirely denied the prosecution's evidence but chose not to present any evidence on his behalf.

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After considering both sides, the trial court issued the Judgment of Conviction and Order of Sentence on June 17, 2011. This judgment was confirmed by the Appellate Court in Criminal Appeal No. 47 of 2011, through a Judgment of Conviction and Order of Sentence on August 1, 2015, with a modification to reduce the accused's sentence to one year of simple imprisonment instead of one and a half years. In response to these judgments of conviction and sentences, the Revision Petitioner has filed this petition before this court, expressing his grievance.

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Sri Vishwanath Hegde, the learned counsel representing the Revision Petitioner, argued that both the lower courts have made errors in noting the admissions, discrepancies, omissions, and contradictions in the statements of witnesses. He pointed out that PW1, during cross-examination, stated that he witnessed the accident from a distance of 100 feet, which raises suspicion about the accused's alleged rash and negligent driving. Additionally, PW1, who is claimed to be the eye-witness, did not see the incident as per Exhibit P1. He only became aware of the

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incident after hearing the commotion from his brother's wife. Therefore, he cannot be considered a reliable witness, and his testimony lacks corroboration from any other independent eyewitness.

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The Learned counsel further argued that the legal doctrine of "res ipsa loquitur" i.e. "the thing speaks for itself." It is a legal principle used in both civil and, to a limited extent, criminal law to establish a presumption of negligence or liability in criminal jurisprudence, in specific, it has a limited role. The negligence on the part of the accused cannot be presumed solely because the accused was driving the vehicle on the date of the accident, especially when the child did not take care of itself. The prosecution failed to prove Exhibit P6, the Spot Mahazar, as PW2, a witness to the Mahazar, did not support it. Therefore, the lower courts should not have convicted the accused merely because he failed to provide an explanation regarding the accident.

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The counsel further emphasized that the child was only three years old, and the parents had not accompanied the child,

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who was on the road and unaware of the potential consequences. This crucial aspect was not adequately considered by the lower courts. Overall, the lower courts failed to properly assess the evidence on record, and there is no evidence of rash and negligent behavior on the part of the accused. Therefore, the counsel requested that the revision petition be granted.

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On the other hand, Sri Praveen Uppar, learned Additional Government Advocate, supported the impugned Judgments of conviction and order of sentence and submitted that the both the courts below have properly appreciated the material placed before the Courts and have come to a correct conclusion and there is no ground for interference with the same by this Court.

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Having heard the arguments on both sides and on perusal of material on record, the following points would arise for my consideration in this petition:

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Whether the impugned judgment of conviction and order of sentence, passed by the trial Court which

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is confirmed by the Appellate Court calls for interference in this petition?

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What order?

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My answer to the above points is as under:

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Point No.1: in the affirmative;

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Point No.2: as per final order

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I have carefully examined the material on record.

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Based on the complaint Exhibit P1 filed by PW1, Lakshman Shivappa Lamani, the Bilagi Police registered a case in Crime No.157 of 2010 against the lorry with registration No.AP-04/U6867 for offences punishable under Sections 279 and 304A of the Indian Penal Code. They submitted the FIR to the Court on July 16, 2010, as per Exhibit P14. Following this, the police visited the scene and conducted a spot inspection in the presence of PW2-Suresh Revanappa Lamani, and other panchas, as documented in Exhibit P6. The Investigating Officer conducted an inquest panchanama in the presence of the panchas, as per Exhibit P7, obtained the post-mortem report, prepared a rough sketch as per Exhibit P15, recorded statements

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of witnesses, and conducted a thorough investigation before submitting the charge sheet.

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The trial Court, based on the evidence on record has opined that the prosecution clearly established the rash and negligent driving on the part of the accused in causing the accident. On re-appreciation of evidence on record, the Appellate Court, while answering point No.2, in paragraph 13 of its judgment, has observed as under:

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“ Point No.2: Although the order of the trial court needs no interference by this Court for the reasons aforesaid. Still, when it comes to the question of sentence it requires to be interfered to a extent insofar as there appears to be some negligence on the part of the parents of the deceased child. As prudent parents of a child, the parents of the child ought to have taken care of the child but for which the alleged accident would not have occurred. However, the negligence of the parents alone cannot be said to be a sole ground for the accident. The accused driver particularly when he was driving the vehicle in the village limits and that too when it was not a highway should have taken much care while driving the vehicle because in village limits there is every likelihood of one or the other person or animal coming here and there and crossing roads very often. Therefore, although

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the accused driver cannot be said to be alone responsible for the accident cent percent, yet for the reasons aforesaid it can be safely concluded that 80% of the accident has occurred only due to the rash and negligent of his act. Therefore, the order of trial Court sentencing the accused to undergo simple imprisonment for one and a half year under Section 304A of the IPC needs to be interfered insofar as it appears to be on a little higher side and instead of it, if the accused is ordered to undergo imprisonment for one year instead of one and a half year, I think that justice will be made to both the accused and the victim of the crime and also it will act as a deterrent to another negligent drivers of the vehicle. Hence, I answer this point partly in the affirmative. ”

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At this juncture, it is relevant to mention here as to the decision of the Hon'ble Supreme Court in the case of NAJUNDAPPA v. STATE OF KARNTAKA reported in 2022 LIVELAW (SC) 489 wherein it is held as follows:

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“ Indian Penal Code. 1860; Section 304A – Doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case – For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim.

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Keeping in mind the above decisions and facts and circumstances of this case, I have re-examined the evidence of prosecution of prosecution witnesses.

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Upon careful scrutiny of the trial court's judgment, it is observed that the accused failed to provide any explanation for his need to move the truck to the right side of the road in his statement under Section 313 of the Code of Criminal Procedure. The trial court also recognized the importance of the explanation that the accused should have provided in this statement, relying on the decision of this Court in the case of ISHWARA SADEPPA

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NANDENNAVAR v. STATE OF KARNATAKA as reported in ILR 2004 KAR 1459. Additionally, the trial court referred to the decision of the Hon'ble Supreme Court in the case of RATHNASELVAN v. STATE OF KARNATAKA reported in 2007(2) CRIMES 51 (SC). However, the observation made by the trial court is not in line with the aforementioned judgment of the Hon'ble Supreme Court. The Appellate Court, in paragraph 13 of its judgment, discussed the negligence on the part of the driver, concluding that it amounted to only 80%. This implies

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that the prosecution failed to establish the guilt of the deceased beyond all reasonable doubt. However, the Appellate Court did not acquit the accused based on this doubt; instead, it reduced the sentence from one and a half years to one year.

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After a careful re-examination of the evidence on record, I am of the considered view that the accident occurred when the lorry was traveling from Sunag to Janamatti near the house of the complainant at Kundaragi LT-1. The three-year-old child suddenly appeared on the road, leading to the accident. The contents of Exhibit P1 itself reveal that when the complainant rushed to the scene, the driver of the lorry stopped the vehicle, but the front wheel ran over the child's head. It is clear that the alleged accident is purely accidental and did not result from any rash or negligent act on the part of the lorry driver, as alleged by the prosecution. The Appellate Court also observed that the accused driver cannot be solely held responsible for the accident. The State has not challenged the judgment passed by the Appellate Court, particularly the

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observation made by the Appellate Court regarding the contributory negligence of the lorry driver.

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Therefore, considering the facts and circumstances of the case and keeping in mind the aforementioned decision, I am of the opinion that both courts failed to properly appreciate the evidence on record in accordance with the law and the principles laid down by the Hon'ble Supreme Court. Consequently, I answer point No.1 in the affirmative.

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For the aforesaid reasons and discussions, I proceed to pass the following:

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O R D E R

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Criminal Revision Petition is allowed;

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The Judgment of conviction and order of sentence passed dated 17^th June, 2011 passed in Criminal Case No.466 of 2010 by the JMFC, Bilagi (for short, hereinafter referred to as the “trial Court”) which is confirmed by Appellate Court as to the conviction of the accused for the offence punishable under

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Sections 279 and 304A of the Indian Penal Code, are set aside;

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Registry to send the copy of this judgment to the concerned courts, along with trial court records.

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Sd/JUDGE

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lnn

Rajagopal S/O Ramanna, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Rajagopal S/O Ramanna, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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