Allowed

Sri Thippanna v. the State by K R Puram

Karnataka HC17 Jul 2023CRL.RP/207/2016

Case brief

AI extract

What is this about?

High Court of Karnataka acquitted an accused BMW bus driver of offences u/s 279/304(A) IPC in a criminal revision. The court set aside convictions upheld by lower courts, finding the prosecution failed to prove rashness or negligence beyond doubt due to inconsistencies and lack of corroboration in witness testimony.

What did the court decide?

Petitioner acquitted of charges under Sections 279 and 304(A) IPC; conviction and sentence set aside; bail cancelled and liberty granted.

Sri Thippanna Vs the State by K R Puram — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:24916 CRL.RP No. 207 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 207 OF 2016

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BETWEEN:

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SRI. THIPPANNA, S/O MALLAPPA, AGED ABOUT 29 YEARS, R/AT THALAVAGERE VILLAGE AND POST, KUSTAGI TALUK, KOPPAL DISTRICT, WORKING IN BMTC AS DRIVER T.NO. 19076, 29TH DEPOT, K.R.PURAM, BENGALURU - 561 002. …PETITIONER

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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(BY SRI. ANANDEESWARA D.R., ADVOCATE) AND: THE STATE BY K.R. PURAM POLICE, BANGALORE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA BENGALURU - 560 001. …RESPONDENT

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(BY SRI. K.S. ABHIJITH, HCGP FOR STATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION ORDER PASSED BY THE COURT OF THE P.O., M.M.T.C.-VI, BANGALORE DATED 16.06.2015 IN C.C.NO.1595/2013 AND SET ASIDE THE JUDGMENT CONFIRMED BY THE LXIX ADDL. CITY CIVIL AND S.J., BANGALORE IN CRL.A.NO.911/2015 DATED 25.01.2016 AND

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ACQUIT THE PETITIONER FOR THE ALLEGED OFFENCES PUNISHABLE U/S 279 AND 304(A) OF THE IPC BY ALLOWING THIS CRL.RP.

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

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ORDER

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Being aggrieved and dissatisfied with the conviction and sentence passed by the Trial Court MMTC VI in C.C.No.1595/2013 vide judgment dated 16.06.2015 which

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was confirmed by LXIX Additional City Civil and Sessions Judge, Bengaluru City, (CCH-70) vide judgment dated 25.01.2016 accused/petitioner has preferred this revision.

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Parties to this petition shall be referred to as per their ranking before the Trial Court for the purpose of convenience.

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FACTS OF THE CASE

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That accused/petitioner was charge sheeted by the Police Inspector, K.R.Puram Traffic Police Station for the offences punishable under Sections 279 and 304(A) of IPC. P.W.1 Smt. M.M.Latha W/o Sudhakar submitted complaint before the Police Inspector, K.R.Puram Traffic

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Police Station on 08.10.2013 at 11.30 p.m. by appearing before the Police Station stating that, her father-in-law Sri.J.A.Babu, aged about 74 years and herself, for the purpose of offering prayer at T.C.Palya Church, boarded the BMTC Bus from Ananthapura bearing registration No.KA-01-FA-739. The driver of the said bus stopped the bus near T.C.Palya at about 10.15 a.m. on that day. The complainant got down from the said bus from the front door. Her father-in-law Sri.J.A.Babu got down from the said bus from the back door. The driver of the said bus without noticing getting down of the passengers from the said bus, suddenly moved the said bus ahead. Because of that, her father-in-law fell down and left side rear wheel of

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the said bus rolled over on the left leg of her father-in-law. When she and other passengers of the said bus bombarded, the driver of the said bus stopped the bus and got down. Because of this accident, her father-in-law sustained grievous injuries on his left leg. Initially, he was shifted to HOSMAT Hospital in ambulance for treatment. There, the Doctor informed that the medical expenses

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would be more. Therefore, he was taken to Bowring Hospital for treatment. There, the Doctor advised to take him to Victoria Hospital. Thereafter, the complainant took her father-in-law to the Victoria Hospital. There, the Doctor told that it is not possible to treat him. Later, her father-in-law was shifted to Koshis Hospital at 5.30 p.m. on that day. He was admitted to the said hospital as an inpatient. But, on the said day itself at 10.20 p.m. her father-in-law died. It was informed to her by the Doctors of the said Koshis hospital that he was unable to speak. It

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is stated that as the complainant was busy in admitting her father-in-law to the hospital, therefore, immediately complaint was not lodged. It is alleged by the complainant that, because of rash and negligent driving of the said BMTC Bus, the said accident has taken place.

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With these allegations, a complaint came to be filed which was registered in Crime No.211/13 for the offences punishable under Section 279 and 304(A) of IPC, and criminal law was set into motion.

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During the course of investigation, the

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Investigating Officer recorded the statement of witnesses, went to the scene of occurrence, and conducted the punchanama at the scene of occurrence, collected the necessary documents, subjected the offending bus for a motor vehicle Inspection, obtained the report from MVI and subjected the dead body of the deceased Sri.J.A.Babu for postmortem.

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During the course of investigation, the accused was enlarged on bail. After completion of the investigation, Investigating Officer filed the charge sheet against the accused. Thereafter, the jurisdictional Magistrate took cognizance of the offences punishable under Sections 279 and 304(A) of IPC.

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The presence of the accused was secured. Copies of the police papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. The learned Magistrate recorded the plea of the accused as contemplated under Section 252 of Cr.P.C. for the offences

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punishable under Section 279, 304(A) of IPC, read over and explained to the accused in the language know to him. He pleaded not guilty and claims to be tried.

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Prosecution in order to prove its case examined

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in all 7 witnesses as P.Ws.1 to 7 and got marked 12 documents as Exs.P1 to 12 and closed its side. Thereafter, the statement of the accused was recorded as contemplated under Section 313(1)(b) of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The accused denied his complicity in the crime and did not choose to lead any oral or documentary evidence on his behalf.

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Learned Trial Court, after hearing the

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arguments on both sides, found the accused guilty for the offences punishable under Sections 279 and 304(A) of IPC and sentenced him as under:

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" The accused is sentenced for the offence punishable under Section 279 of IPC, to pay fine of Rs.1,000/- in default,

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to undergo simple imprisonment for one month.

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The accused is also sentenced for the offence punishable under section 304-A of IPC, to undergo S.I. for a period of one year and pay fine of Rs.1,000/- and in default to pay the fine, to undergo simple imprisonment for further period of one month."

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This judgment of conviction and sentence was

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challenged by the accused/appellant before the LXIX Additional City Civil and Sessions Judge, Bengaluru City, (CCH-70) by preferring an appeal in Crl.A.No.911/2015.

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The said Sessions Court, after securing the records of the Trial Court and after hearing the arguments, dismissed the appeal of the appellant/accused by confirming the judgment of the Trial Court.

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These judgments passed by both Courts below have been challenged by the revision petitioner/accused by preferring this revision petition.

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NC: 2023:KHC:24916 CRL.RP No. 207 of 2016

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Submission of Counsel for Petitioner/Accused:

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Learned counsel for the petitioner/accused submits that, there is a delay in lodging the complaint and is not properly explained. He further submits that the accused was the driver of the said BMTC Bus. The evidence so placed on record by the prosecution witnesses would not inspire any confidence in the mind of the Court. Most of the witnesses, as well as the complainant, have not supported the case of the prosecution. He submits before the Court that, there was no rashness and negligence on the part of the accused in driving the said bus. It is the negligence on the part of the deceased who tried to get down from the bus which was moving. The bus stop was ahead about 100 feet away from the scene of the accident. It is submitted that in view of the evidence placed on record by the prosecution, though the Trial Court and the First Appellate Court have convicted, but there is no proper appreciation of the evidence placed

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on record. Accordingly, both Courts have committed an

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error in appreciating the evidence placed on record.

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Argument of Counsel for State:

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As against this said submission, the learned

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HCGP submits that the Trial Court as well as the first Appellate Court has properly assessed the evidence that was placed on record by the prosecution. There is no lacuna. The delay has been properly explained by the complainant while filing the complaint. As a prudent woman being a daughter-in-law of the deceased, after the accident, she tried to admit her father-in-law to the hospital for treatment. Initially, she took him to Hosmat Hospital. Thereafter, shifted to Bowring Hospital. As per the advice of the Doctor of Bowring Hospital, she took him to Victoria Hospital. As the Doctors expressed their inability to treat him, thereafter, she shifted him to Koshis Hospital. Therefore, in this process, the delay has been caused which has been explained in the complaint. Therefore, according to him, the delay which has been

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properly explained cannot be a ground for disbelieving the case of the prosecution.

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He further submitted that witnesses have supported the case of the prosecution. There was rashness and negligence on the part of the accused in committing the offence. Without waiting for the signal from the conductor, the passenger got down from the bus and he moved the bus, as a result, the deceased fell down from the bus. It is a clear mistake on the part of the driver of the bus. He submits that, there shall not be interference into the impugned judgments.

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I have given my anxious consideration to the

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arguments of both sides. In view of the submission of both sides, the points would arise for consideration. They are as under:

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"1. Whether the judgments of the Trial Court and first appellate Court suffer from perversity and illegality requires interference by this Court?

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2. What order?"

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My answer to the point No.1 is as under for the

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following:

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REASONS

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It is a case of pure accident. In the accident case, it

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is the duty of the prosecution to prove the guilt i.e., rash and negligent driving of the bus by the accused. It is the duty to the prosecution to prove that the driving of the bus or public vehicle and of such driving or riding must be as rash or negligent as to endanger human life or likely to cause hurt or injury to any person

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In order to establish the criminal liability that negligence of the driver was so much that it had disregard for the life and safety of others which amounts to a crime. A simple lack of care will constitute civil liability is not enough. For liability under criminal law, a very high degree of negligence is required to be proved. Therefore, the burden is on the prosecution to prove that it is the accused

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and the accused alone who is responsible for the commission of the crime.

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Keeping the aforesaid principles in mind, let us examine the evidence being placed on record by the prosecution. Ex.P1 is the complaint being lodged by the complainant by name Smt.M.M.Latha W/o Sudhakar happens to be the daughter-in-law of the deceased. She lodged the complaint at about 11.30 p.m. on 08.10.2015. The reasons assigned by the complainant are that, though the said accident had taken place at 10.15 a.m. on that day, initially the deceased was taken to Hosmat Hospital. There the Doctors told that expenses for treatment would be more, therefore, he was taken to Bowring Hospital. There the doctors advised to take him to Victoria Hospital. Even the Doctors at Victoria Hospital expressed their inability to treat the deceased. Therefore, he was taken to Koshis Hospital at Ramamurthy Nagar at 5.30 p.m. There

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the Doctors started the treatment, but at 10.20. p.m., the injured died. According to her, because of in this process,

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there was a delay in filing the complaint. When the deceased was taken to Hosmat Hospital, necessarily the said deceased would have been admitted to the Hospital as an inpatient as a medico legal case. He was shifted to Bowring hospital; thereafter to Victoria Hospital. Even after getting admitted to Koshis Hospital at Ramamurthy Nagar at 5.30 p.m. no attempt was made, as per the submission of learned counsel for the petitioner. So according to the learned counsel for the petitioner, there is a delay in filing the complaint. But this delay has been

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properly explained by the complainant in the complaint. Contents of the complaint are nor denied by the accused with regard to delay. Therefore, the arguments of the learned counsel for the accused cannot be accepted.

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P.W.1 being the complainant though stated

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about the incident in her complaint, but during the course of the evidence, she states that, she got down from the

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said bus near the T.C.Palya Church when the bus was stopped. When her father-in-law deceased was still

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getting down, the driver moved the bus and because of the same, her father-in-law fell down from the bus. Further, she states that, the left side rear wheel of the said bus ran over on the left leg on the deceased. According to her, the bus driver without stopping the bus went away from the said place. Thereafter, her father-inlaw was shifted to the Koshis Hospital, at about 10.30 p.m. where her father-in-law died.

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In the complaint, it is stated that, immediately

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after the accident, the driver of the bus stopped the bus and came to the place of the accident, but in the evidence it is stated that, the bus driver did not stop the bus. She has been declared as hostile. It is suggested by the learned HCGP that, after the accident, the bus driver stopped the bus and came to the spot. Thereafter, he went away. She has also been cross-examined by the learned counsel for the accused. It is elicited that she has

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not purchased any ticket at the time of the traveling in the said bus. The distance between her boarding bus and

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getting down to the bus root is very near i.e., 2 kms. She got down from the front door of the bus and her father-inlaw got down from the back door. Nobody got down in front of her father-in-law. But after she getting down, 4 passengers got down from the bus. According to her, she

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has signed the panchanama in the Police Station.

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In this case, P.W.1 is the only witness to the said incident. We find some inconsistence in the evidence spoken by the P.W.1 in her evidence. If such evidence is placed on record by the prosecution, it really requires consideration.

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P.W.2 Anilkumar, is the spot mahazar witness.

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He identifies the signature on the spot mahazar, but states that, the said spot mahazar was drawn at the Police Station. He has been turned hostile and was crossexamined. But nothing worth has been elicited from the mouth of the witness so as to disbelieve his Version given in the examination Chief. Therefore, to prove the contents

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of the panchanama, evidence of P.W.2 would not come to

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the rescue of the prosecution.

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eyewitness to the accident. As per his evidence on 08.09.2013 at 10.30 p.m. he was going towards Saint Anthony Church T.C.Palya Main Road. At that time, the BMTC Bus bearing registration No.KA-01-FA-739 was stopped and the passengers were getting down from the bus. He further states that, the driver of the bus moved the bus without observing passengers who were still getting down from the bus, as a result of which one person fell down from the middle door of the bus and the left hand wheel of the said bus ran over on his left leg. No signals were given by the conductor of said bus. Thereafter, he moved the bus. Later, he came to know that said person has died.

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In the cross-examination he has stated that, his

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house is situated 5-6 km away from the church and by walk he used to attend the prayer. On that day, from his

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house, he came to the Church by walk. He says, he left his house at 9.00 p.m. He denied the suggestion that, at least 2 hours are required to reach the Church. As per the submission of defense, if any person going by walk, he cannot cover 5-6 km within an hour. According to the evidence of P.W.3, he left his house at about 9.00 p.m. The said accident has taken place at 10.15 p.m. So the presence of P.W.3 itself is doubtful as per the submission made by the learned counsel for the petitioner/accused. According to his evidence, he went inside the Church at 10.15 p.m. If that is so, the very witnessing of the said accident, in the manner stated by P.W.3, cannot be accepted as truthful evidence. Therefore, the evidence of P.W.3 does not inspire any confidence that he witnessed

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the said accident in the manner he stated in his examination-in-chief. Therefore, it is hard to believe the evidence of P.W.3.

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P.W.4 Basaiah was the is a conductor of the

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said bus. As per his evidence, on 08.10.2013, accused

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was driving the said bus. This fact is admitted by both sides. He states that, when the said bus was moving towards K.R.Puram to Shivajinagar at 10.15 a.m., he was issuing tickets to the passengers while the bus was moving. The bus stop was about 100 feet away from the accident spot that time, suddenly he heard the screaming sound of the passengers. The door of the bus was not closed. He came to know that one of the passengers fell down from the door and found under the left hand wheel. He was declared as hostile witness by the prosecution. Though he has been cross-examined by the prosecutor, nothing worth is elicited. He denied the suggestion that he has given the statement before the Police as per Ex.P3.

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It is the consistent evidence of P.W.4 that, the bus stop was about 100 feet away from the spot, where the said accident has taken place. This evidence of P.W.4 shows that, the said accident has taken place when the bus was moving. At that time, the passenger i.e., the deceased tried to get down from the bus, but the accident

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took place. That means as per the submission of counsel for accused there was no negligence on the part of the driver of the bus, but it was the negligence of the deceased in getting down from the moving bus. There is no effective cross-examination directed by the prosecution to this witness to disbelieve this version. Thus, the possibility that said deceased was trying to get down from the moving bus as that time said accident has taken place. This possibility cannot be ruled out.

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P.W.5 Jhon Kenedy is the milk vendor. He is stated to be an eyewitness to the incident. But has not stated any incriminating evidence against the driver of the bus. His evidence is to be believed to the extent that, deceased was taken to the Koshis Hospital.

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P.W.6 Ajay RM, Police Inspector of K.R.Puram Traffic Police Station conducted the investigation and filed the charge sheet. Even from the mouth of this witness, nothing was elicited. To the extent of conducting the

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investigation and filing the charge sheet, his evidence is to be accepted.

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In all criminal cases, Panchas are authors of the panchanama, and Investigating Officer is the supervisors of the investigation. In the absence of corroborative evidence from the independent witnesses, the evidence of Investigating Officer become formal in nature. In this case, panchas have not supported the case of the prosecution.

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P.W.7 G.B.Sudeer is the Motor Vehicle

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Inspector who conducted the inspection of the offending bus and issued the certificate as well as the IMV report. It is not in dispute that the said accident has taken place not

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because of a mechanical defects in the bus. In the absence of such evidence, the evidence of P.W.7 can be accepted to the extent of conducting the inspection of the offending bus.

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As discussed supra, in this case, except the

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self-serving testimony of P.W.1, we are not having any evidence placed on record by the prosecution.

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The learned Trial Court has not properly appreciated the evidence placed on record by the prosecution. The first Appellate Court also without going through the merits of the evidence of this P.W.1, has conformed the judgment of Trial Court.

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Evidence of the conductor of the bus is not disputed. In view of all factual matrix, in the case of accident of this nature, as stated supra, it is the duty of the prosecution to prove its case beyond all doubt. But, in

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this case, it is not so. There must have been some negligence on the part of the deceased in getting down from the bus and in the process of getting down, he might have slipped and fell down under the left-hand wheel of the said bus. Therefore, in my considered opinion, the prosecution case suffers from material prosecution. There are contradiction and omissions in the evidence of the

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prosecution. They have not been properly explained by the prosecution. In view of the same, as stated supra, benefit of doubt has to be extended to the accused and accordingly extended.

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Consequentially, the judgment of conviction of sentence passed by the Trial Court and first Appellate Court confirming the judgment of the Trial Court are required to be set aside and consequentially, the accused is to be acquitted of the charges punishable under Section 279, 304(A) of IPC. Accordingly, the point for consideration is answered in favour of the petitioner.

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As a result, I pass the following:

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ORDER

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petitioner under Sections 397, 401 of Cr.P.C. is

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allowed .

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(ii) The judgment of conviction of

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sentence passed in C.C.No.1595/2013 by the

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Metropolitan Magistrate Traffic Court-VI, Bengaluru City dated 16.06.2015 confirmed by the LXIX Additional City Civil and Sessions Judge, Bengaluru City, (CCH-70) in Crl.A.911/2015 dated 25.01.2016 are hereby set aside. Consequentially, the accused is acquitted of the charges for the offences punishable under Section 279, 304(A) of IPC. His bail bond stands cancelled and is set at liberty.

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(iii) The Trial Court is directed to refund

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the fine amount if deposited to the accused digitally after furnishing necessary documents.

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(iv) Send back the Trial Court records and

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first Appellate Court along with copy of the judgment forthwith.

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Sd/JUDGE

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SMC CT:SNN

Sri Thippanna v. the State by K R Puram

Case brief

What is this about?

What did the court decide?

Sri Thippanna v. the State by K R Puram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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