Basavaraj S/O Fakkirappa Mugaliyavar Vs the State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND ALLOW THE REVISION PETITION AND SET ASIDE THE JUDGMENT PASSED IN CRIMINAL APPEAL.NO.66 OF 2015 DATED 24.11.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI AND ALSO THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.171 OF 2011 DATED 25.07.2015 PASSED BY THE CIVIL JUDGE AND JMFC, HANGAL AND ACQUIT THE PETITIONER IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the

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judgment of conviction and order of sentence dated 25.07.2015, passed in C.C. No.171/2011 by the Civil Judge and JMFC, Hangal (for short, ‘the Trial Court’), convicting and sentencing the accused for the offences punishable under Sections 279, 337, 338 and 304A of IPC and confirmed in Crl.A.No.66/2015 dated 24.11.2016 by the I Additional District & Sessions Judge, Haveri (for short, ‘the First Appellate Court).

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Parties to this revision petition are referred to as per their rank before the Trial Court for convenience.

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The factual matrix of the case of the

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prosecution are as follows:-

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That on 29.05.2011 at 5.20 pm, the accused/ petitioner being the driver of a bus bearing registration

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No.KA-4/F-033 by driving his bus in a rash and negligent manner endangering human life on Hangal-Haveri road dashed to the Esteem car bearing registration No.GA01/S-4122 coming from the opposite direction. Because of this impact, the wife of the complainant Shashikala Mukund Jannu, daughter-in-law- Smt.Rupa and granddaughter Poorvi so also the driver of the car by name Imtiyaz Abdul Latif sustained grievous injuries and died. Two other inmates of the car and also the passenger who were travelling in the KSRTC bus sustained simple and grievous injures in the said accident. With these allegations, a complaint came to be filed before the PSI, Adur Police Station which was registered in Crime no.61/2011. The police after investigation filed charge sheet against the present petitioner–accused for the aforesaid offences.

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Before the Trial Court, the accused appeared and was enlarged on bail. The plea of the accused was recorded for which the accused pleaded not guilty.

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Before the Trial Court, to prove the guilt of the

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accused, the prosecution, in all examined 13 witnesses as PWs.1 to PWs.13 and got marked documents as per Ex.P.1 to Ex.P.28 with respective signatures. On behalf of defence, Exs.D1 and D2 were marked. On closure of the evidence of the prosecution, accused was questioned under Section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and submitted an explanation stating that, on seeing the Esteem car which was coming in high speed, he took his bus towards left side of the road and even then, the said driver of the Esteem car drove his car in a high speed in a rash and negligent manner and dashed to his bus. According to the defence of the accused, he was not at fault in committing the said accident.

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The learned trial Court on hearing the arguments and on evaluation of the evidence placed on record, found the accused guilty of committing the

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offences punishable under Sections 279, 337, 338 and 304A of IPC, and sentenced him as under:-

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“The accused is sentenced to pay fine of Rs.1,000/- for the offence punishable U/s.279 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 15 days.

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The accused is sentenced to pay fine of Rs.500/- for the offence punishable U/s.337 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 10 days.

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The accused is sentenced to pay fine of Rs.1,000/- for the offence punishable U/s.338 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 15 days.

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The accused is sentenced to undergo simple imprisonment of 2 years and also sentenced to pay fine of Rs.2,000/- for the offence punishable U/s.304A of IPC. In default of payment of fine, he shall undergo simple imprisonment for one month.”

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This judgment of conviction and order of sentence was challenged by the accused before the First

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Appellate Court by filing Criminal Appeal No.66/2015. The learned First Appellate Court vide judgment dated 24.11.2017 confirmed the judgment of conviction and order on sentence passed by the Trial Court. This is how now the accused is before this Court in this revision petition challenging the judgments of both the Courts below.

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The learned counsel for the revision petitioner submits that, rash and negligent driving of the bus is not duly proved in accordance with law. He submits that, on reading the sketch so prepared by the IO at the time of panchanama of the scene of offence, it is noticed that the

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road is having a width of 18 feet. The bus was driven by the accused on the left side of the road covering its space. At that time, the driver of the Esteem car came from opposite direction was driving his car in a high speed, in a rash and negligent manner by covering most of the half portion of the road dashed to the bus to its middle portion. Therefore, according to the learned counsel for the

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accused, no rash and negligent driving of bus can be attributed against the driver of the bus in causing the said accident. He would further submits that, in view of the evidence placed on record by the prosecution witnesses, so also discrepancies brought on record with regard to very rash and negligent driving of the bus by its driver, it can be stated that, because of the fault of the deceased driver of the said car, the said accident taken place. He submits that, as it is a heavy vehicle, the police have filed charge sheet against the driver of the KSRTC bus. The

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driver of the said car is no more and he died in the accident. He would submit, that the trial Court as well as the First Appellate Court have committed illegality and infirmity in appreciating and re-appreciating the evidence. He submits that, revision petition is to be allowed and the impugned judgments are liable to be set aside and consequentially, the accused is to be acquitted.

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As against this submission, Sri.Praveen K.

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Uppar, the learned AGA submits that, the evidence of the

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inmates of the car as well as the bus, have spoken about the rash and negligent driving of the bus by its driver. He submits that, the consistently, the witnesses have spoken about the rash and negligent driving of the bus by its driver. Because of the same, the said accident has taken place. He would further submit that the trial Court as well as the First Appellate Court have rightly appreciated and re-appreciated the evidence placed on record. He submits that there is no infirmity or illegality in appreciating the evidence placed on record by the prosecution. According

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to his submission, both the Courts below are right in coming to the conclusion that, because of the rash and negligent driving of the bus by its driver, the said accident has taken place. He would submit that, no grounds have been made out in the revision petition so as to interfere into the impugned judgments. He prays to dismiss the revision petition.

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

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In view of the rival submissions of both the

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sides, the points that would arise for consideration is:

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i) Whether the prosecution is able to establish the rash and negligent driving of the bus by the accused in the manner alleged?

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ii) If so, whether the learned trial Court and the First Appellate Court are right in finding the accused guilty of commission of the offence in the manners stated?

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My answers to the above points are in favour of

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the accused-petitioner and against the prosecution for the following reasons.

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As it is a case of accident, it is the duty of the prosecution to bring home the guilt of the accused beyond all reasonable doubt. It is settled principle of law that the drivers of the vehicle can drive the vehicle as rash as they can if the road is open. If they anticipate any obstruction or vehicle from the opposite direction, it is the bounden duty to take all precaution to avoid any causality. It is a

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specific case of the prosecution that, because of the rash

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and negligent driving of the bus by its driver, the said accident has taken place. So far as death of four persons, Shashikala, Roopa, Poorvi and Imtiyaz in the said accident, it is not in dispute. To prove the said fact, the prosecution relied upon the inquest panchanamas as per Exs.P2 to P5. Likewise, the prosecution relies upon the postmortem reports of the deceased persons at Exs.P6 to P9. While marking these documents, defence has not raised any objections. It is proved that, these four persons died because of the accidental injuries in the said accident.

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It is a specific case of the prosecution that

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some of the inmates of the bus as well as the car sustained grievous and simple injuries. To prove the said fact, prosecution relies upon the Wound Certificates at Exs.P10 to P18. These documents shows that the inmates of the bus as well as the inmates of the car sustained simple and grievous injuries on their respective persons as stated in these Wound Certificates. The contents of these

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documents are also not denied by the defence. Thus, the prosecution is able to establish that in the said accident, four persons died and the inmates of the bus as well as the car sustained simple and grievous injuries as stated in the Wound Certificates respectively. Mere, because of there were four deaths in the said accident and so many inmates of the bus as well as the car sustained injuries, that does not mean that the said accident has taken place because of the rash and negligent driving of the bus by its driver.

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Sofaras the complaint is concerned, one Mukund Vithoba Jannu lodged a complaint as per Ex.P1 alleging that the said accident has taken place because of the rash and negligent driving of the bus by its driver. Based upon Ex.P1, the crime came to be registered in Crime No.61/2011 of Adur Police Station and the criminal law was set in motion. Based upon that, the investigation was commenced and the IO reached the scene of offence and prepared the spot panchanama as per Ex.P24.

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Relevant contents of the panchanama at paragraph No.2 shows that, where exactly the said accident has taken place. For better appreciation, it is just and proper to incorporate the contents of the said place of accident as under:

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““ºÁªÀtV UÁæªÀÄ ªÁå¦Û ºÁªÀtV PÁæ¸ÀzÀ ¸À«ÄÃ¥À ªÀÄÈvÀÄåAdAiÀÄ ¸Á°ªÀÄoÀ EªÀgÀ d«ÄÃ£À¢AzÀ ¥À²ÑªÀÄPÉÌ 30’ Cr CAvÀgÀzÀ°è ºÁ£ÀUÀ¯ï-ºÁªÉÃj mÁgÀ gÀ¸ÉÛAiÀÄ ªÀÄzsÀåzÀ°è WÀl£É ¸ÀA¨sÀ«¹zÀÄÝ EgÀÄvÀÛzÉ. E°è mÁgÀ gÀ¸ÉÛ 18’ zÀµÀÄÖ CUÀ®«zÀÄÝ, F gÀ¸ÉÛAiÀÄ JgÀqÀÄ PÀqÉUÉ 6’ zÀAvÉ PÀZÁÑ gÀ¸ÉÛAiÀÄ ªÀiÁfð£ÀUÀ¼ÀÄ EgÀÄvÀÛªÉ. C®èzÉÃ WÀl£ÉAiÀÄ ¸ÀÜ¼ÀzÀ°è ªÁºÀ£À vÀgÀ©zÀ §UÉÎ gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É ªÀiÁPÀðUÀ¼ÀÄ EgÀÄªÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛªÉ. E°è mÁgÀ gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É PÁAUÀ ¸ÀA§AzsÀ¥ÀnÖzÀªÀÅ”.

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On scrupulous reading of the aforesaid

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contents, it shows that there were certain marks found on the road with regard to the application of the brake. On either side of the road, there was kachha road. The said accident has taken place near the landed property of one Salimath towards eastern side. The I.O. has also examined the bus and noticed the damages caused to the said bus and the car. The said documents are marked at Exs.P25 and P26. Ex.P27 is the motor vehicle accident report

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issued by the motor vehicle inspector, wherein, it is opined by the inspector that the said accident has taken place not because of any mechanical defects in the said bus as well as the car. However, the bus had sustained three damages, whereas the car had sustained about seven damages. It was completely damaged as per the contents of this MV records. This shows the impact in between the bus as well as the car. Ex.P28 is the photograph showing accident. It shows that the said car has dashed almost at the middle portion of the bus that too on the extreme western side of the road. The other photographs show the photograph of the deceased persons.

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Learned counsel for the accused-petitioner relies upon Ex.D1, another photograph, wherein the scene of offence is being shown by the eyewitnesses there. It shows that, towards the western side of the road, the said accident has taken place. Coupled with that, the defence relies upon Ex.D2, the sketch. The sketch shows that, the bus was coming from Haveri to Hangal side, i.e., from

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northern side to southern side. The car was moving from Hangal side to Haveri. It is stated that, tar road is having

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a width of 18 feet. On either side of the tar road, there exists a 6 feet kachha road. The said accident has taken place towards the western side of the road, wherein we find that there was a sufficient space available for the car driver to move on the left side of the road so as to avoid any casualty. It shows that the said car which was coming from Hangal side towards Haveri went towards right side of the road where the bus was coming and dashed against

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it. Therefore, now as held by the trial Court as well as the First Appellate Court, it cannot be stated that, the driver of the bus was rash and negligent in driving the bus. The learned counsel for the accused is right in his submission that, driver of the bus was driving his bus on his left side.

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Sofaras oral evidence is concerned, PW.1 Mukund Vitoba Jannu being the complainant though reiterates the contents of the complaint in his evidence on oath, for the first time, he states before the trial Court that

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the bus abruptly came and dashed to the car. This evidence do not find place in the complaint. Moreso, in the cross-examination, he states that at the scene of the offence the tar road is having a width of about 18 to 20 feet. He admits that there exists a 6 feet wide kachha road

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on either side of the tar road. According to him, the eastern side of kachha road coming from Haveri to Hangal is full of ditches. He admits that the western kachha road while coming from Haveri to Hangal is equal to the surface of the tar road. If that is so, when the said road is full of

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ditches, was it possible to drive the bus in high speed is a question?. It is hard to believe the story of the complainant that, the bus was being driven by the accused

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in a rash and negligent manner in a high speed. The possibility of driving the bus in high speed on the road where it was full of ditches is ruled out. PW.1 was confronted with the photograph at Ex.D1. He denied a suggestion that, there is a gap of 12 to 13 feet from the place of mark and to the western side of the road. He was also confronted with the sketch prepared by the IO. He

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has been cross-examined at length, but his evidence do not inspire any confidence that, he is speaking truth before the Court. He admits that, the bus has to move on the eastern side of the road from north to south direction. He admits that, the vehicle has to move on the western side while going from south to north. If this evidence of PW.1 is appreciated and compared to the sketch, the bus

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was moving on the tar road on its left side towards Hangal and the driver of the said car was moving from Hangal side and went towards the right side of the bus and

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dashed to the middle of the bus as per the contents of Ex.D1. Even PW.1 admits that, there were speed governors installed to the bus but not to the car. He admits that they could run the car with any amount of speed because of non-installation of speed governors. Consistently, he is specific that the said road was full of ditches. The vehicle always moves slowly as per his evidence. Therefore, evidence of PW.1 if read meticulously, it never suggest, that the driver of the bus was rash and negligent in driving the bus. Whereas, it

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shows that car driver was driving his car in a high speed in

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a rash and negligent manner.

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PW.2 - Vijayalakshmi Vittalrao Malodkar was a inmate of the vehicle and she speaks about sustaining of the injuries by her elder sister. She has been declared as hostile witness, but nothing was elicited from her mouth. Therefore, her evidence would not help the case of the prosecution. According to her evidence, she was sitting in the middle of the bus and she could not see that at whose fault, the said accident took place. Even in the crossexamination directed to her by the defense, she consistently has spoken that the driver of the bus was driving the bus in a slow manner and car driver was driving the car in a zigzag manner.

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PW.3 - R.Drakshayini was also inmate of the

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bus and states with regard to the said accident and also sustaining of injuries. She too was declared as hostile witness and in the cross-examination nothing worth is elicited from her mouth by the prosecution. But in the

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cross-examination directed to her by the defense, she states that, driver of the bus was driving the bus on the right side and it was the car driver who drove the car in a zigzag manner and dashed to the bus. There is no further cross-examination directed by the prosecution to this witness.

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PW.4 - Raju @ Rajashekhar went to the scene of offence after hearing the sound of the accident. According to him, he has not seen how bus was going and when people gathered there, he went to the said place and were talking that because of the high speed of the bus, the said accident has taken place. As he is not an eyewitness to the said incident, much value cannot be attached to the evidence of PW.4.

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PW.5 - Premananda was inmate of the car and according to him on 29.05.2011 at 5.15 p.m or 5.30 p.m near Havanagi cross, the KSRTC bus came from the opposite direction in a high speed and dashed to their car. They were on their left side of the road. If the evidence of

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the PW.5 is compared to with the sketch, he has spoken false evidence before the Court about the exact moving of the car on the left side of the road. He speaks about the death of four persons in the said accident. According to him, he has not given the statement before the police. He admits that the tar road is having a width of 18 feet at the scene of offence. He also admits that the speed governors are installed to the said bus but not to the car. Though he was inmate of the car, but, he has not spoken any good evidence in favour the prosecution case. His evidence can

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be accepted to the extent that he was inmate of the car and he has stated about the accident, but his evidence is not helpful to the case of prosecution to prove that really the driver of the said bus was rash and negligent in driving the bus.

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PW.6 - Imamsaab, a coolie, an eyewitness of

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the said accident. According to his evidence, the bus dashed to the car on the right side of Haveri - Hangal road. Because of that, he sustained injuries. He took

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treatment in a Government Hospital, but in the crossexamination he states that, the road widening work was stopped at the time on Hangal Highway road. There were many ditches over the said road. So also, he admits that every vehicle has to move slowly because of ditches on the road. Then, if that is so, it is hard to believe that the said bus was moving in high speed. Even he had deposed ignorance that as to how much speed the bus was moving towards right side of the road and on what portion of the car it dashed. His complete ignorance shows that, he has not spoken truth before the Court.

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PW.7 - Vinoda Ganoba Putanikar was the inmate of the bus. He speaks about the accident, but never says about the rash and negligent driving of the bus by its driver. He has been declared as a hostile witness but nothing worth is elicited from his mouth. Therefore, evidence of PW.7 do not help the case of the prosecution.

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PW.8 - Mallappa Gollar is also one of the eyewitness and injured, who was travelling in the said bus.

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But, he has been declared as a hostile witness but nothing worth was elicited by his mouth. Therefore, his evidence also would not help the prosecution, so also PW.9 - Kirankumar who was inmate of the bus. PW.10 - Basanagouda, another inmate of the bus having sustained grievous injuries also having turned hostile, but he never says that there was a rash and negligent driving of the bus at the time of accident. Therefore, the evidence of PW.10 also would not help the case of the prosecution.

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P.W.11 - G.T.Shreeshailmurthy, PSI, received

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the complaint from PW.1 and registered the same in Crime No.61/2011 and set the criminal law in motion. To that extent, his evidence is to be accepted.

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PW.12 - Ibrahimsab Nannesab Ballur, is a pancha to Ex.P24. According to him, in his presence only the photographs were taken and panchanama was prepared as per Ex.P24. I have already narrated the contents of panchanama in foregoing paragraphs stating where exactly the said accident has taken place and

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situation of the road at the place of accident. Evidence of PW.12 has to be accepted to the extent that he was present when the panchanama was prepared and photographs were taken.

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PW.13 - T.H. Rajappa, the Circle Inspector of Hangal at the relevant time conducted the investigation and filed a charge sheet against the accused. He has been cross-examined at length. According to him, the maps so prepared by him is not as per scale. He did not find it necessary. He has not measured the said distance and mentioned in the panchanama. He further admits that, Ex.D1 was taken from the middle of the road. So also, he speaks with regard to the sketch, Ex.D2. If the evidence of IO is compared to the sketch Ex.D2, it truly shows that he has shown where exactly the said accident has taken place. But this fact has not been properly appreciated either by the trial Court or by the First Appellate Court. In a case of present nature, when offence under the provisions of Sections 279, 337, 338, 304 of IPC are

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attributed against the accused, it is the bounden duty of the prosecution to prove that the act complained of need not be rash and negligent one, but it need to be either rash or negligent. Black's law dictionary describes "negligence" as “a failure to exercise the standard of the care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others". If this definition of negligence is attributed, here as per Ex.D2, the driver of the bus was moving from Haveri to Hangal on the left side of the road, whereas the driver of car was moving from Hangal towards Haveri. As per the photograph produced by the prosecution, the car dashed to the bus on its middle portion. So this shows that, the said driver of the Car was rash and negligent in driving the car and not the driver of the bus.

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Sofaras, offence of rash and negligent driving is concerned, these allegations must be examined in light of

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the facts and circumstances of the given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of attendant circumstances. A person who drives a vehicle on the road is liable to held responsible for the acts as well as the result. It may not be always possible to determine with reference to the speed of a vehicle, whether a person was driving the vehicle in a rash and negligent manner. Both these acts presuppose

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abnormal conduct. Even when one is driving a vehicle at a slow speed, but recklessly and negligently, it would amount to rash and negligent driving within the meaning of Section 279 of IPC. That means, the primary conditions are to be fulfilled by the prosecution i.e., 1) it is the manner in which, the vehicle is driven, 2) it be driven either rashly or negligently and 3) such rash or negligent driving should be such as to endanger the human life. That means, the criminality lies in running of a risk of doing such an act with recklessness and indifference to the

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consequence. If these principles are applied as per the evidence brought on record, the said road where the accident was taken place is full of ditches. The said bus was installed with speed breakers. Therefore, there was no possibility of driving the bus in a high speed. The driver of the bus was on the left side of the road. The driver of the car had sufficient space towards his left side, but instead of that, he had driven the car in a high speed and dashed to the middle of the bus as per the photographs so produced. If that is so, though the learned trial Court and

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the learned First Appellate Court have come to the conclusion that the rash and negligent driving can be attributed against the driver of the bus, but, in my considered opinion such a finding is incorrect. Under the given circumstances of the case, the manner in which the driver of the car though had sufficient space on his left side, dashed to the middle of the bus shows that, he was driving the car in a rash and negligent manner and it is the who has caused the said accident.

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I find factual error committed by the trial Court

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and as well as the First Appellate Court in coming to the conclusion that, the driver of the bus was rash and negligent in driving the bus. Whereas, from the given facts and circumstances of the case, it can be stated that rash and negligent driving of the car can be attributed to the driver of the car who was died in the said accident. Perhaps, that must have made the Investigation Officer to file a charge sheet against the driver of the bus. This possibility cannot be ruled out. In view of the facts and circumstances coupled with the inconsistent evidence of the witnesses, so also the ingredients stated above are not fulfilled by the prosecution. In case of present nature, where we find illegality and perversity in the findings of the Courts below, this Court can very well exercise its jurisdiction u/s 397 of Cr.p.C and interfere in such judgment. In view of the same, the judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court are liable to be set aside and consequently, the accused is entitled to be

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acquitted of the charges levelled against him. Resultantly, I pass the following:

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ORDER

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[A] The Revision Petition is allowed .

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[B] The impugned judgment of conviction and order of sentence dated 25.07.2015 in CC No.171/2011 passed by the Civil Judge and JMFC, Hangal, confirmed in Crl.A. No.66/2015 dated 24.11.2017 passed by the I Additional District and Sessions Judge, Haveri, are here by set aside.

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[C] Consequently, the appellant is acquitted of the charges levelled against him under Sections 279, 337, 338 and 304A of IPC.

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[D] The bail bonds of appellant stands cancelled and he is set at liberty.

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