Partly allowed

Ashok S/O Gurubasappa Kamadolli v. the State of Karnataka

Karnataka HC26 Oct 2023CRL.RP/100098/2017

Case brief

AI extract

What is this about?

In a criminal revision petition regarding rash and negligent driving causing two deaths, the High Court upheld the conviction for the charges under Sections 279 and 304-A IPC but credited the High Court's sentiment for leniency due to the accused's impending retirement by modifying the sentence to a fine.

What did the court decide?

Conviction confirmed; Sentence modified from imprisonment to a fine of Rs. 50,000 payable within eight weeks, with compensation directed to victims.

Ashok S/O Gurubasappa Kamadolli Vs the State of… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:12590 CRL.RP No. 100098 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26^TH DAY OF OCTOBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100098 OF 2017 (397)

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BETWEEN:

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ASHOK S/O. GURUBASAPPA KAMADOLLI AGE: 48 YEARS, OCC: DRIVER NWKSRTC, R/O: ANNIGERI, TQ: NAVALGUND, DISTRICT: DHARWAD-582201

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…PETITIONER

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(BY SRI. K.L.PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENCH AT DHARWAD.

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…RESPONDENT

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(BY SRI. M.B.GUNDAWADE, ADDL. SPP)

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.07 10:12:45 +0530

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 AND 401 OF CR.P.C., SEEKING TO ALLOW THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED 27.02.2017 IN CRIMINAL APPEAL NO. 89 OF 2014 ON THE FILE OF V ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION DATED 5.12.2014 IN C.C.NO. 82 OF 2012 ON THE FILE OF CIVIL JUDGE AND JMFC, KUNDGOL, DHARWAD, CONVICTING THE PETITIONER FOR OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304-A OF IPC.

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

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ORDER

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The revision petitioner-accused has preferred this revision petition under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) challenging the judgment of his conviction and order of sentence passed in C.C.No.82/2012 by the Civil Judge and JMFC, Kundagol, Dharwad District (hereinafter referred to as ‘the trial Court’) as per the judgment dated 05.12.2014, affirmed by the V Additional and District Judge sitting at Hubballi (hereinafter referred to as ‘the First Appellate Court’) in Criminal Appeal No.89/2014 dated 27.02.2017.

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For the sake of convenience, the parties to this petition are referred to as per their rank before the trial Court.

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The facts in brief leading to file this revision petition are as under:

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3.1 That accused being the driver of a KSRTC bus

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bearing Reg.No.KA-23/F-475 on 07.02.2012 at 4.40 p.m.

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drove the same from Benakanhalli towards Kundagol in a rash and negligent manner endangering human life and dashed against a TVS Excel Moped bearing Reg.No.KA25/W-5781 and caused the accident. In the said accident, the rider and pillion rider of the said motorbike by name Ramanagouda S/o Ningangouda Tammangoudra and Mallappa S/o Ningappa Menasinkai @ Bhagannavar died because of the accidental injuries. Thus, it is alleged that the accused has committed the offence punishable under Sections 279 and 304-A of Indian Penal Code (hereinafter referred to as ‘IPC’).

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3.2 Before the learned trial Court, accused

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appeared. Learned Magistrate complied the provisions of Cr.P.C.

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3.3 To prove the offence against the accused person, prosecution in all examined ten witnesses as PW.1 to PW.10 and got marked Ex.P.1 to Ex.P.15 with respective signatures thereon. On behalf of the defence, Ex.D.1 is marked.

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3.4 The trial Court after hearing the arguments and on perusal of the records, found the accused guilty of committing the offence under Sections 279 and 304-A of IPC and has sentenced him to undergo simple imprisonment for one month for the offence punishable under Section 279 of IPC and also to undergo simple imprisonment for three months and fine of Rs.10,000/- for the offence punishable under Section 304-A of IPC with default sentence. It is also ordered to pay compensation of Rs.10,000/- to the families of the victims with a direction to run the sentence so imposed concurrently.

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3.5 This judgment of conviction and sentence passed by the trial Court was challenged by the revision petitioner by preferring an appeal before the First Appellate Court in Criminal Appeal No.89/2014.

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3.6 The First Appellate Court on hearing both side, confirmed the said judgment of conviction and sentence passed by the trial Court vide judgment dated 27.02.2017.

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This is how the revision petitioner is before this Court challenging both the judgments.

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It is argued by the learned counsel for the petitioner-accused that, there is no legal evidence placed on record by the prosecution to prove that the accused was driving the KSRTC bus in a rash and negligent manner endangering human life. No witness has spoken about the rash and negligent driving of the bus by the driver i.e. accused. It is submitted that PW.1 and PW.4 are the interested witnesses. Their evidence is inter se contradictory. It is submitted that, PW.5 who was the passenger of the said bus has not spoken about the rash and negligent driving of the bus. The panchas to the panchanama have not supported the case of the prosecution. The ingredients of Sections 279 and 304-A of IPC are not proved by the prosecution.

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Further, it is submitted that, the First Appellate

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Court has also not considered all these aspects while affirming the judgment of the trial Court. According to

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him, there is no proper appreciation of the evidence by both the Courts. He further submits that as the accused is

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a KSRTC bus driver, in case the conviction is confirmed, he would loose the job and his family would be on the street and his employment is the only source of income to feed his family and himself. Thus, it is submitted by the counsel for the accused that, even in case if the Court comes to the conclusion that the accused is liable for conviction, the sentence of imprisonment may be modified and the accused may be directed to pay the fine amount.

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In support of his submission, he relied upon the judgment of the Co-ordinate Bench of this Court in Criminal Revision Petition No.2272/2013 in the case of

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Somaning @ Somappa vs. State of Karnataka and Revision Petition No.2074/2013 in the case of Basavarj vs. State of Karnataka and also the judgment of Hon’ble

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Apex Court in the case of Paul George vs. State of NCT

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of Delhi reported in (2008) 4 SCC 185 .

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As against this submission, learned Additional

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Special Public Prosecutor Sri. M.B. Gundawade appearing for the respondent-State, submits that, the evidence so placed on record by the prosecution duly establish the guilt of the accused beyond all reasonable doubt. He submits that, the very evidence placed on record both oral and documentary and the sketch so prepared by the Investigation Officer at the time of investigation establish that, how far the accused was rash and negligent in driving the bus, that too on a curve road. He submits that, there are two deaths in the said accident. The victims’ families are the sufferers. PW.1 eyewitness/complainant and other witnesses have supported the case of the prosecution. He submits that, the trial Court as well as the First Appellate Court have properly appreciated the evidence placed on record by the prosecution and have rightly convicted the accused and sentenced him. He submits that, both the judgments require no interference by this Court. Hence, he prays to dismiss the revision petition.

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8. Both the counsels in support of their submission

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took me to the oral and documentary evidence adduced by the prosecution.

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I have given my anxious consideration to the arguments of both sides.

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In view of the rival contentions raised by both sides, the following points would arise for my

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consideration:

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i. Whether the trial Court and the First Appellate Court have committed any illegality in finding the accused guilty for the offence punishable under Sections 279 and 304-A of IPC and sentencing him?

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ii. Whether the judgment of conviction and sentence passed by the trial Court and affirmed by the First Appellate Court require interference by this Court?

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iii. What order?

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Before adverting to other aspects of the case,

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let me analyse the admitted facts in this case. The

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admitted facts are that, the accused was the driver of the offending KSRTC bus bearing Reg.No.KA-23/F-475. On 07.02.2012 at 4.40 p.m., there was an accident in between the said offending bus and TVS Excel Moped bearing Reg.No.KA-25/W-5781. In the said accident, the rider and pillion rider by name Ramanagouda and Mallappa died. It is also not in dispute that they died because of the accidental injuries.

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To substantiate the said fact, prosecution relies upon the complaint at Ex.P.1 marked through PW.1. Ex.P.2 and Ex.P.5 are the accident spot photo and scene of occurrence panchanama. These two documents prove about the accident so occurred. Ex.P.3 and Ex.P.4 are the inquest panchanama of deceased Ramanagouda and Mallappa. Ex.P.11 and P.12 are the postmortem reports of deceased persons.

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Thus, on reading the aforesaid documents, it is proved by the prosecution that, there were two deaths in the said accident and the said deceased persons died

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because of the accidental injuries as per the postmortem

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report. This fact is not disputed by both side.

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It is the case of the prosecution that, the said accident has taken place not because of any mechanical defects. To substantiate the said fact, the prosecution relies upon Ex.P.7 the motor vehicle report. The said motor vehicle report do establish about the nature of damages caused to both vehicles. It is the opinion of the motor vehicle inspector that, the said accident has taken place not because of any mechanical defects in both vehicles. Thus, the said accident has taken place not because of any mechanical defects. These are all the facts admitted by both sides.

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Merely because the aforesaid facts are admitted, that does not mean that prosecution has proved its case beyond all reasonable doubt. Criminal jurisprudence prescribes that, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. The law says that even if a slightest

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doubt arises in the case of the prosecution, that benefit has to be extended to the accused.

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Now the revision petitioner-accused is before this Court challenging his conviction and order of sentence passed by the trial Court affirmed by the First Appellate Court. He has preferred this revision under Section 397 of Cr.P.C. The law is very much clear that the scope and ambit of this Court in exercising the revision jurisdiction is limited.

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Before considering this case, it is just and proper to refer the judgments of the Hon’ble Apex Court. It is held by the Apex Court in the case of State of Maharashtra s. Jagmohan Singh Kuldip Singh Anand reported in 2004 7 SCC 659 and in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta reported in 2019 SCC Online SC 132 that, the Revisional Court cannot sit as a second appellate Court to re-appreciate the evidence unless the judgments of the Courts below suffer from perversity. The Hon’ble Apex Court has reiterated

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that under Section 397 of Cr.P.C. the High Court cannot lightly interfere and re-appreciate the evidence unless the judgments of the Courts below suffer from illegality or perversity.

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In the light of the aforesaid principles, let me analyse the evidence placed on record by the prosecution to ascertain as to whether the prosecution is able to establish the guilt of the accused.

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Ex.P.1 is the complaint filed by Shankaragouda Doddamani wherein he states that, he is an eyewitness to the said accident. According to the complaint allegations, on 07.02.2012 at about 4.20 p.m. he was moving on his motorcycle so also in front of him the rider and pillion rider on the aforesaid TVS Excel Moped were moving. When they came near the landed property of Saliyavar about 2 k.m. away from Kundagol, near a milestone, at that time a KSRTC bus came towards Kundagol side in a high speed and rash and negligent manner and dashed against the said TVS Moped. Because of the said accident, both the

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rider and pillion rider of TVS Moped fell down and sustained injures and died on the spot itself. To that effect, he lodged a complaint on 07.02.2012. He identified the accused as the driver of the said KSRTC bus.

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Ex.P.2 is the photograph of the scene of occurrence wherein it is noticed about stationing of KSRTC bus and falling of dead body in front of KSRTC bus.

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Ex.P.3 and Ex.P.4 are the inquest panchanama.

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Ex.P.5 is the scene of occurrence panchanama wherein it is noticed that scene of occurrence is situated about 2 k.m. away from Kundagol near Saliyavar landed property in a curve area. The road is in ‘L’ shape and having width of 18 feet from western edge. The said accident has taken place at a distance about 6 feet from eastern edge. This document so produced by the prosecution is corroborated by the sketch prepared by the Investigation Officer at the time of preparing scene of occurrence panchanama marked at Ex.P.14.

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On reading this Ex.P.14 sketch, it do establish

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that, though the driver of the bus had sufficient space towards left side of the road in curve area, to the extent of 28 feet, he went towards right side of the road in a curve area which is on wrong side and dashed against motorbike coming from opposite direction. At the time of marking this Ex.P.14, no objection was being raised by the defence. That means, place of accident is admitted by the defence. Therefore, on reading the entire text of Ex.P.14 and panchanama, they do demonstrate that the driver of the KSRTC bus i.e. the accused though had sufficient space towards left side of the road, drove the bus towards right side which is a wrong side and dashed against TVS Moped on which the deceased were moving towards Yaraguppi side.

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Coupled with that, PW.1 being the complainant

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has corroborated the contents of the complaint in material particulars. Though lengthy cross-examination is directed to PW.1, nothing worth is elicited. The only defence of the

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accused is that, the said road was curve area and there were ditches on the road. Therefore, no driver of the bus or the vehicle can drive the vehicle in high speed in such area. PW.1 has denied all these suggestions. No doubt in the subsequent cross-examination dated 24.08.2012 he admits that the said road is in curve area and vehicles move slowly. Initially he was cross-examined by the defence on 24.08.2012 itself, thereafter he was recalled on 18.07.2014 and some answers were elicited but in the previous cross-examination he has denied all the suggestions.

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PW.2-Kallappa Bharamappa Harakuni is the panch to the scene of occurrence. He has not supported the case of the prosecution.

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PW.3 is also a panch to Ex.P.3 to Ex.P.5. But, he speaks that he is not having knowledge about the contents of the said documents.

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PW.4-Basavara Jogannanavar is an eyewitness

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to the said accident and according to his evidence, a bus towards Kundagol from Gadag came in a high speed and dashed against TVS vehicle wherein Ramanagouda and Mallappa died on the spot itself. He has also been crossexamined at length. He admits that on the said road, there are some ditches, etc. When it is within the knowledge of the accused that the said road is a curve area and having ditches, it was his duty to drive the bus with more caution so as to avoid any causalities. Since the bus was carrying passengers at that time, accused ought to have taken care of the passengers of the bus also.

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PW.5-Devendrappa is a passenger of the bus. According to his evidence, said bus came near Kundagol and it dashed against the motorbike. He got down and noticed death of Ramanagouda and Mallappa who were known to him. He identified the accused as the driver of the said bus. He was partly treated as hostile witness, but nothing worth is elicited from his mouth.

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PW.6-Ashok Sabalad is senior vehicle inspector.

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He has given a report as per Ex.P.7 stating that the said accident has taken place not because of any mechanical defects in both the vehicles. This fact is not disputed by the defence.

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PW.7-Pandurang was the conductor. Obviously,

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he being the conductor has not supported the case of the prosecution. He justifies driving of the said bus in a slow manner by the accused. He is treated as a hostile witness.

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PW.8-Govindappa is the Assistant Traffic Inspector wherein he took possession of the bus through the process of Court. PW.9 is the doctor who conducted the postmortem as per Ex.P.11 and Ex.P.12. The fact of conduct of postmortem is not denied.

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PW.10-Gurulingappa is the Investigation Officer in this case. He has spoken about the nature of investigation done. He has also spoken about filing of charge sheet. He admits that at the scene of occurrence

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the road is a curve area. He admits that on the said road the vehicles move slowly. He admits that at the scene of occurrence, the width of the road is about 18 feet. On either side of the said road, there is a 4 feet kachha road. That means, sufficient width of the road was very much available to the accused to drive the bus on the left side of the road. He has denied all the suggestions which were directed to him.

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On perusal of the entire evidence on record placed by the prosecution both oral and documentary, from the evidence of eyewitness discussed supra, so also documentary evidence, it is proved that the accused being the driver of the said bus was driving the bus in a high speed, in a rash and negligent manner. Though he anticipated curve area, he has not taken care to avoid the causalities and drove the vehicle to the extreme right side of the road which is a wrong side and dashed to the opposite vehicle driven by the deceased persons.

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The provision of Section 279 of IPC specifically

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says that, under what circumstances rash and negligent act can be attributed. It is true that mere driving the vehicle in a high speed is not an offence. If the road is open, the driver of the vehicle can drive the vehicle as rush as he can. When he anticipates curve in the road, it requires that, driver to take all available precautions. He has to anticipate as to if any other vehicle is coming from opposite direction in the curve area. In this case, there is no evidence placed by the defence that, the driver of the KSRTC bus has taken all available precautions. What was necessary for the driver of the bus to take the bus to the extreme right side leaving just 6 feet area is not explained. In accident cases, the driver is the best person to say as to what made him to drive the vehicle in such a manner. In the 313 statement, no such explanation is forthcoming so also he has led any evidence to prove that what made him to drive to the extreme side of the road that too in a curve area. There is no proper explanation as

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required under Section 106 of the Indian Evidence Act. As

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such, the story of the prosecution has to be accepted.

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Section 279 of IPC requires two essentials i.e.

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driving of a vehicle and such driving must be so rash or negligent as to endanger human life or likely to cause hurt or injury to any other person. A rash act is primarily a hasty act and thus opposed to deliberated act but also include an act which may be said to be without due deliberation and caution. That means, it is the duty of the driver of the bus to take all available precautions. The criminal rashness is hazarding dangerous or with a knowledge that it is so and that it may cause injury. The driver ought to have kept all these aspects in mind while driving the bus.

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So far as scope of Section 304-A is concerned, it relates to causing of death of any person by any rash act of the accused. When the death is caused due to negligent act but in both the case, it will not amount to culpable homicide.

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In this case, the prosecution is able to establish

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that there was rash and negligent driving of the bus by the accused and because of that two persons died. The trial Court and the First Appellate Court have properly appreciated the evidence placed on record and have come to the conclusion that the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. Therefore, I do not find any factual or legal error in finding the accused guilty by both the Courts.

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So far as sentence is concerned, it is argued by the learned counsel for the accused that, the accused is a KSRTC bus driver and was aged 46 years at the time of accident. The said accident has taken place on 07.02.2012. Now he is aged about 57 years and about to retire. Therefore, according to his submission, a lenient view may be taken since his family is fully dependent upon him He submits that, instead of imposing imprisonment, the sentence passed by the trial Court and affirmed by the

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First Appellate court may be modified and accused may be directed to pay fine only.

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As against this submission, Sri.M.B.Gundawade submits that both the Courts have found the accused guilty and as such no leniency can be shown to the accused.

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The Co-ordinate Bench of this Court in Criminal Revision Petition No.2272/2012 decided on 13.07.2022 and Criminal Revision Petition No.2074/2013 decided on 30.09.2022, supra has observed that, as the accident occurred long back, instead of sentencing the accused for imprisonment, it was ordered to modify the sentence in both the cases cited above and the Co-ordinate Bench has imposed fine instead of imprisonment as required under Section 357 of Cr.P.C.

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The Hon’ble Apex Court also in the judgment in Paul George referred to supra has extended the benefit of probation to the accused for committing offence under

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Section 279, 337 of IPC. In view of these factual features and also the submissions made by the counsel for the accused that the accused is about to retire having just three years of service left and since he is having family, instead of sentencing him to undergo imprisonment for three months, it is just and proper to modify the said sentence by imposing fine only.

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If accused is imposed with substantial fine, it would meet the ends of justice. Hence, the revision petition filed by the petitioner-accused deserves to be allowed in part with modification in the sentence. The judgments of conviction passed by both the Courts below need no interference by this Court. However, the order of sentence passed by the Trial Court and upheld by the First Appellate Court is required to be modified. Resultantly, I pass the following:

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ORDER

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i) The revision petition filed by the petitioneraccused is hereby allowed in part.

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ii) The order of sentence passed by the Trial Court and confirmed by the First Appellate Court is modified by imposing only fine of Rs.50,000/- payable by the accused.

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iii) In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of three months.

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iv) The petitioner-accused shall deposit the above said fine amount within a period of eight weeks from the date of receipt of certified copy of this order. On such deposit of fine amount, Rs.25,000/- each to be paid to the victims as compensation as contemplated under Section 357 of Cr.P.C.

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v) Send back the Trial Court and First Appellate Court records along with copy of this order forthwith.

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Sd/JUDGE

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Sh/yan List No.: 1 Sl No.: 21

Ashok S/O Gurubasappa Kamadolli v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Ashok S/O Gurubasappa Kamadolli v. the 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

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