Yamanappa S/O Yalagurdappa Habbad Vs State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY PRL. DISTRICT AND SESSIONS BAGALKOT IN CRIMINAL APPEAL NO. 16 OF 2013 DATED 07.07.2017 AND THE JUDGEMENT AND ORDER OF CONVICTION PASSED BY COURT OF JMFC BADAMI IN C.C.NO.777 OF 2007 DATED 19.01.2013 FOR THE OFFENCES PUNISHABLE UNDER SECTION 279, 337, 338 AND 304-A OF IPC AND ACQUIT THE PETITIONER FOR THE ALLEGED OFFENCE AS IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE ORDER 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 judgement of conviction and order of sentence dated 19.01.2013 passed in CC No.777/2007 on the file of the Judicial Magistrate First Class, Badami (for short ‘trial Court’) confirmed in Crl.A. No.16/2013 vide judgment dated 07.07.2017 by the Principal District and Sessions Judge, Bagalkot (for short ‘First Appellate Court’).

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The present revision petitioner along with

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accused No.2 Muttappa S/o. Fakirappa Alaboji was chargesheeted by CPI of Badami Police Station for the offences punishable under Sections 279, 337, 338 and 304A of IPC and Section 187 and Section 3 r/w Section 181 of Indian Motor Vehicles Act (for short ‘IMV Act’).

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It is a case of the prosecution before the trial Court, that on 06.05.2007 at about 7:45 pm on Bagalkot-Badami road near the land of Ramanna

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Chittaragi of Katageri village, the accused No.2 being the driver of the tractor bearing No.KA-29/T-5001 with trailer No.KA-29/T-5002, while driving his tractor trailer in a rash and negligent manner, so also at that time, the accused No.1 i.e., the present petitioner being the driver of a KSRTC Bus bearing registration No.KA-29/F-639 was driving his Bus in a rash and negligent manner in a high speed on the same Badami-Bagalkot road endangering the human life, dashed to the said tractor. There was a headon collision in between both the vehicles. Because of this

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accident, the inmates of the tractor by name Malavva, Shantavva and Sharanavva died and the other inmates of the tractor sustained injuries as well as the Bus was damaged. With these allegations, a complaint came to be filed before the Badami Police Station and the same was registered and the Criminal Law was set in motion. The Investigation Officer after completion of the investigation filed the chargesheet against the said accused for the aforesaid offences.

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The accused were enlarged on bail. On

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filing the chargesheet, the Jurisdictional Magistrate took the cognizance of the offences, supplied the copies of the papers to the accused persons as contemplated under Section 207 of Cr.P.C., recorded their plea for the aforesaid offences for which they pleaded not guilty.

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To prove the guilt of the accused, prosecution in all examined 17 witnesses from PW.1 to PW.17 and got marked Ex.P.1 to Ex.P.34 with respective signatures so also got marked MO Nos.1 to 5 and closed the prosecution evidence.

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After closure of the evidence of the

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prosecution, accused were questioned under Section 313 of Cr.P.C so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence on their behalf.

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The learned trial Court, on hearing the arguments and on evaluation of the evidence placed on

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record by the prosecution found both the accused guilty of committing the offences under Sections 279, 337, 338 and 304-A of IPC and accused No.2 further found guilty for the offence punishable under Section 181 of the IMV Act. They are sentenced as under:

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“Acting under section 255(2) of Cr.P.C accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of six months and fine of Rs.1,000/- for the offences under section 279 of Indian Penal code. In default of payment of fine accused No.1 and 2 shall undergo simple imprisonment for one month.

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Acting under section 255(2) of Cr.P.C accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of 3 months and fine of Rs.500/- for the offences under section 337 of Indian Penal code. In default of payment of fine accused No.1 and 2 shall undergo simple imprisonment for one month.

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Acting under section 255(2) of Cr.P.C accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of six month and fine of Rs.1,000/- for the offences under section 338 of Indian Penal Code. In default of payment of fine accused No.1 and 2 shall undergo simple imprisonment for one month.

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Acting under section 255(2) of Cr.P.C accused No.1 and 2 are sentenced to undergo simple imprisonment for two years for the offence punishable under section 304(A) of IPC and accused No.1 and 2 shall also sentenced to pay fine of Rs.5,000/- each. In default of payment of fine accused shall undergo simple imprisonment for two months.

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Acting U/sec 255(2) of Cr.P.C accused No.2 is sentenced to pay fine of Rs.500/- for the offence punishable U/se 181 of IMV Act.”

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This judgment of conviction and order of sentence passed by the trial Court was challenged by both the accused by preferring two independent criminal appeals in Crl.A. Nos.16/2013 and 18/2013 before the Prl. District and Sessions Judge, Bagalkot. The learned First Appellate Court on hearing the arguments and on reassessment of the evidence dismissed the said appeals vide judgment dated 07.07.2017. Being aggrieved by the same, the driver of the KSRTC Bus-the accused No.1 has preferred this Revision Petition challenging the judgments of the Courts below.

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The learned counsel for the petitioner as well as the learned Additional Government Advocate Sri.T.Hanumareddy submits that, there is no separate appeal filed by accused No.2-the driver of the tractor challenging the said common judgment passed by the First Appellate Court, thereby, the judgement passed by the First Appellate Court sofar as accused No.2 is concerned has attained finality.

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The learned counsel for the petitioneraccused No.1, Sri.Prakash Hosamani would submit that, it is alleged by the prosecution that, the revision petitioneraccused No.1 was at fault by driving his Bus in a rash and negligent manner and dashed against the said tractor, he submits that the tractor driver accused No.2 was driving the tractor with trailer. He was carrying the passengers in the said trailer. According to him, about 20 passengers were travelling in the said trailer. It was a sheer negligence on the part of the driver of the tractor in causing the accident. He would submit that it was a narrow road and because of darkness, as the said road

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was full of ditches, the driver of the Bus could not drive the vehicle in a high speed. He submits that even then the chargesheet has been filed by the Police against the present accused No.1. He would submit that without any fault of the driver of the KSRTC Bus, the said accident has taken place but, wrongly this accused No.1 is chargesheeted by the Police. He would submit that both trial Court as well as the First Appellate Court have committed illegality in appreciating the evidence placed on record by the prosecution. There is no proper appreciation

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of the evidence and most of the witnesses do speak with regard to the said accident but, their evidence cannot be accepted. The inmates of the Bus have not stated about the rash and negligent driving of the Bus. Thus, according to him, without any fault of accused No.1 being the driver of the Bus, the said accident has taken place. Based upon the cross-examination of the witnesses, he submits that the Revision Petition be allowed and the accused be acquitted by setting aside the impugned judgments of the Courts below.

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Per contra , the learned Additional

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Government Advocate, Sri.T.Hanumareddy supports the reasons assigned by the trial Court as well as the First Appellate Court in appreciating the evidence. He would submit that, the said accident has taken place because of the rash and negligent driving of the Bus as well as the tractor by their respective drivers. As per the contents of the sketch, the said accident has taken place in the middle of the road. Though, the tractor driver as well as the Bus driver had sufficient space towards their respective left

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sides of the road, but, both of them drove the said vehicles in the middle of the road and there was head-on collision in between both the vehicles. According to him, both the drivers are at fault. Rightly, the learned trial Court has convicted and sentenced them and the First Appellate Court has confirmed the said judgment. He would submit that, the provisions of Section 397 of Cr.P.C being the revisional powers given to this Court are limited. When there is concurrent findings with regard to the rash and negligent driving of the vehicles by both the drivers,

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this Court cannot lightly interfere into the judgments of the lower Courts. Hence, he justifies the judgments passed by the Courts below and prays to dismiss the revision. He further submits that, the accused No.2 being the driver of the tractor though, challenged the conviction passed by the trial Court by preferring an appeal but, being aggrieved by the common judgment so passed in the Crl.A Nos.16/2013 and 18/2013, he has not challenged the same before this Court by filing any Revision Petition. He would submit that, thereby the judgment of the Courts below with regard to finding accused No.2 guilty for the aforesaid offences by both the Courts below has attained finality. He prays to dismiss this Revision Petition.

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I have given my anxious consideration to the arguments of both the side. In view of the rival submissions of both the side, the points that would arise for my consideration are:

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Whether the learned trial Court as well as the First Appellate Court have committed any illegality or infirmity in finding the accused

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guilty for the aforesaid offences and sentencing them?

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If so, whether the judgments of the Courts below require any interference by this Court?

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Point Nos.1 and 2: Both these points are

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taken together for common discussion.

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It is the specific case of the prosecution that because of the rash and negligent driving of the Bus by the present revision petitioner-accused and the driver of the tractor, there was a head-on collision in between both the bus and tractor. According to the case of the prosecution, both the drivers were at fault in causing the said accident. Therefore, on thorough investigation, Police

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have filed chargesheet against both the accused. Now, we have to ascertain as to whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt.

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To prove the case of the prosecution as stated supra Sri.Ramanna Hatagar was examined as PW.1 being the Pancha to Ex.P.1 and P.2. According to his evidence, he was present when the scene of offence Panchanama was conducted by the Police and under the said Panchanama, MOs.1 to 3 were seized by the Police. He has been partly declared hostile witness but, he states that, in his presence only the Panchanama of the scene of the offence was conducted. He has stated that, he was the Pancha to Ex.P.3-the Inquest Panchanama. Though intensive cross-examination is directed to him, but, his presence at the time of conducting the Spot Panchanama Ex.P1, Property Seizure Panchanama Ex.P.2 and Inquest Panchanama-Ex.P.3 is not denied. Though, it is suggested that, he is speaking falsehood before the Court but, he has denied the said suggestion. Coupled with that, the prosecution also relies upon the evidence of PW.3Tulasigereppa Mokashi who is also another Pancha. He too speaks in material particulars with that of the evidence of PW.1 with regard to his presence at the time of conducting

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the Spot Panchanama and Inquest Panchanama. He too has withstood the test of cross-examination. Thus, from the evidence of PW.1 and 3 and the evidence of the Investigating Officer who speaks about conducting of the Panchanama in the presence of these Panchas, the said Panchanamas are drawn in accordance with law. Therefore, the evidence of PW.1 and PW.3 and the evidence of the Investigating Officer can be accepted to the extent that it was the Investigating Officer who has conducted the Panchanama in the presence of this PW.1 and 3 as stated by the prosecution.

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PW.2-Parvati Ganigeri was the inmate of

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the tractor at the relevant time. She speaks that accused No.2 was driving the said tractor at the relevant time and he was driving the same in a high speed. At that time, a KSRTC Bus came from the opposite direction and dashed to the tractor. There was a head-on collision in between the vehicles. According to her, she sustained internal injuries on her person. In the said accident, 3 persons by name Malavva, Shantavva and Sharanavva died and the

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other inmates have taken treatment at Government Hospital, Bagalkot. To that effect, she has lodged the complaint and Police came to the scene of offence and conducted the Panchanama. She has been cross-examined by defence at length. She state in her evidence that, with

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regard to the complaint as per Ex.P.4, she herself gave instructions to write the complaint. She admits that when the said accident has taken place, she was talking with the other inmates of the said tractor. She denies the suggestion that, at the scene of the offence where the accident has taken place, the road is very small. She states that if suddenly the said vehicle if was taken to the left side of the road, the accident could not have happened. The deceased Mallavva was her daughter. She admits that after her demise in the said accident, she has filed a petition claiming compensation. She denied a suggestion that both the vehicles were moving slowly at the time of accident. Though, she was directed with severe cross-examination, but nothing worth is elicited except

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regarding her presence as an inmate of the said tractor at the time of the said incident.

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PW.4-Shivappa Maradappanavar is a

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Pancha to Ex.P.5 but, has been turned hostile so also PW.5-Sangayya Shivappayyanamath. When PW.4 and 5 turned hostile, their evidence become inconsequential to the case of the prosecution. Therefore, their evidence cannot be accepted about preparation of the said Panchanama in their presence in the manner alleged by the prosecution.

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PW.6-Basavva Kajoor is an Inquest Pancha to Ex.P.5 and in her presence the Panchanama was conducted and she states that in her presence only the Inquest Panchanama of Malavva was conducted and the death of Malavva is not disputed. Therefore, from the evidence of PW.6, it is proved that in her presence Inquest Panchanama Ex.P.5 was prepared.

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PW.7-Ashok Ganiger is the father of deceased Malavva and according to him, he came to know about the said accident and went to the said place. As he

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is not an eye-witness to the said accident, to the extent of getting information about death of his daughters Malavva, Sharanavva and Shantavva, his evidence is to be accepted. To that extent his evidence is to be believed.

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PW.8-Parashuram Basme is the Conductor

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of the offending bus at the relevant time. According to him, about 4 years back he was a conductor in the KSRTC bus which was heading towards Bagalkot. Accused No.1 was the driver of the said bus. According to him, when the said Bus was near Honkanakoppa village, a tractor came from opposite direction and dashed to the bus. Upon hearing the sound, he came to know about the said accident. That means he has not seen the actual accident in the manner stated by the prosecution. He states that the tractor driver was very rash and negligent in driving the tractor. He has been declared as hostile witness by the prosecution, but nothing worth is elicited. Therefore, the evidence of PW.8 would not help the case of the prosecution in any manner.

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PW.9-Yankappa Guddad was an inmate of

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the said tractor and according to him, himself and others

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were travelling in a tractor driven by accused No.2. When the said tractor came on Betageri road, near the landed property of one Ramana Kolli, at that time, one bus came from the opposite direction and dashed to the tractor. The said tractor turned turtle. He further states that, he has sustained grievous injuries on his vital parts of the body, so also to his waist. He was shifted to Government Hospital where he took treatment as an inpatient. The presence of PW.9 as an inmate of the said tractor is not specifically denied by the accused. He admits that when the said accident has taken place, it was dark. When it is darkness as suggested, the driver of the tractor or the bus must have been more diligent and vigilant. No such steps were taken by either of the drivers. He denied all other suggestions. He denied the suggestion that the bus was moving slowly at that time. Therefore, the evidence of PW.9 is to be accepted that he was an inmate of the said tractor and because of the rash and negligent driving of

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drivers of the tractor and the bus, the said accident has taken place.

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PW.10-Shivappa Patted is another person

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who was passenger travelling in tractor and he also states about the identification of accused No.2 as the driver of the said tractor and according to him, in the said accident, he has sustained some injuries and three persons died. From the evidence of this PW.10, it can be stated that he was very much present and was travelling in the said tractor when the said accident took place.

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PW.11-Parawwa Manneri was an inmate of the tractor and according to her, accused No.2 was driving the said tractor in high speed so also the bus driver came in a high speed and dashed to the tractor. Thus she specifically states that, both the drivers were at fault and because of their negligence, the said accident has taken place. He has also been cross-examined by the defence. But, nothing worth is elicited.

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PW.12-Neelamma Appannavar is another inmate of the tractor and speaks about the accident and

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she also speaks about noticing of the said accident due to fault of both the drivers. She also has been crossexamined at length but, she denied the suggestion that, both the drivers were driving their respective vehicles in a slow speed.

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PW.14-Hullappa Baraker was an ASI at the relevant point of time at Kerur Police Station, wherein he went to the Hospital and conducted the Inquest Panchanama on the dead body of deceased Sharanavva in between 6:35 AM and 8:30 AM. He identifies the said Panchanama at Ex.P.7 and there is no cross-examination. Thus, from the evidence of PW.14 it can be said that preparation of the Inquest Panchanama on the dead body of the deceased as per Ex.P.7 is proved by the prosecution.

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PW.15-Hanamavva is another inmate of the tractor and she states that, the tractor was moving slowly, at that time, the driver of the bus came in a high speed and in a rash and negligent manner and dashed to the tractor. A different evidence has been spoken to by this

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inmate with that of the evidence of the other inmates of the tractor. She has been further examined and states that, when the accident took place, it was 8:00 PM and accused No.2 was the driver of this said tractor. She has been declared as hostile witness to some extent but, nothing worth is elicited from her mouth.

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PW.16-Chidambar Irappa is, the then CPI of Kerur Police Station who registered the crime in Crime No.30/1017 on 06.05.2017 and set the Criminal Law in motion. He conducted the Inquest Panchanama on the dead body of Shantavva and recorded the statements of CWs.2, 3 and 7. He identifies the complaint as per Ex.P.4. Thus, to the extent of registering the crime and setting the Criminal Law in motion, his evidences is to be accepted.

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PW.17-D.Ashok is the Police Inspector who

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has conducted the investigation and filed the chargesheet against the accused. Throughout his evidence, he has maintained that, because of the rash and negligent driving of the tractor and the bus by accused, the said accident had taken place.

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In a case of present nature, rather than the oral evidence, the documentary evidence, the sketch and the Panchanama of the scene of offence play an important role. The other documents are produced by the prosecution are, Inquest Panchnama and Postmortem Reports etc. The death of three persons in the said accident is not denied. It is also not in dispute that the inmates of the bus as well as the inmates of the tractor sustained injuries. To that effect would certificates are produced from Ex.P.13 to P.22 which were not disputed and marked in evidence without any objections from the defence. Thus, these documents do demonstrate about death of three persons and sustaining of injuries by the other inmates of the bus as well as inmates of the tractor. Ex.P.24 is the Motor Vehicle Inspector report wherein it shows, there were no mechanical defects in both these vehicles so as to cause accident. This fact is also admitted by the defence.

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The most important document is the sketch Ex.P.27 prepared at the time of preparation of the scene

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of offence Panchanama. On scrupulous reading of Ex.P.27, it shows that, at the scene of offence, the road is having a width of 10 feet and 20 feet in all. The said accident has actually taken place at the place so shown by the Investigating Officer, that is, in the middle of the road. That means exactly 10 feet on the left side of each of the vehicles. There is no explanation offered either by accused No.1 or by accused No.2 before the trial Court while recording their respective statement under Section 313 of Cr.P.C as to what made the drivers of the respective vehicles to take the vehicle at the middle of the road. There is no evidence placed on record by the present revision petitioner that, he was compelled to take the bus towards the right side of the road to avoid any major casualty. No suggestions are coming from the mouth of accused No.1 or any of these witnesses. Evidently the accused No.2 has not to challenged the judgment of conviction and order of sentence confirmed by the First Appellate Court before any of the forum. Perhaps admitting the findings, he must not have challenged the

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judgment confirmed by the First Appellate Court. The Sketch in the scene of offence Panchanama do establish that, because of the rash and negligent driving of both the drivers, the said accident has taken place. When the vehicles are being driven on a public road, it is the bounden duty of the drivers of the vehicles to take all available precautions. In this case, none of the drivers i.e., accused No.1 or accused No.2 have taken care to avoid any casualty. In a case of present nature, when Section 304(A) of IPC is attributed against the accused persons, it is the bounded duty of the prosecution to prove that, the accused was rash and negligent in driving the vehicles, his speed is not the criteria, but taking all precautions with regard to the avoiding of casualties is the most important aspect. If the rash and negligent driving is proved, then there is no option that, such a person is liable for conviction. As it is a fatal accident being caused by the accused persons and the allegation so made by the prosecution that, both accused were rash and negligent, because of the same, the prosecution is able to establish

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that the death of three persons stated in the said accident. So also it is able to prove that, there was a rash and negligent driving of the vehicles by the accused persons. Therefore, the ingredients of the offence under Sections 279 and 304-A IPC are fulfilled by the prosecution. There is no explanation offered either by accused No.1 or accused No.2 to prove that, what made them to drive the vehicles in such manner. Evidently the presence of these accused persons as drivers of the vehicles is not denied by the defence.

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On the date of accident, the present accused No.1 was driving the bus belonging to KSRTC and accused No.2 was driving the tractor. So, when most of the facts with regard to the said accident are admitted, the evidences coupled with the documents to demonstrate about rash and negligent driving on the part of the accused in driving the vehicles. Therefore, in view of all factual features coupled with the oral evidence spoken to by the witnesses, as rightly held by the learned trial Court affirmed by the First Appellate Court, that the accident has

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taken place because of the rash and negligent driving of the Bus by the accused No.1, so also accused No.2 as the findings of the First Appellate Court have attained finality. Therefore, I do not find any factual or legal error committed by both the Courts in coming to such a conclusion. Therefore, the judgement of conviction passed against the accused No.1 has to be affirmed.

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Sofar as sentence is concerned, though the trial Court has imposed sentence for the offence punishable under Section 304-A IPC, the First Appellate Court has reduced the sentence so imposed. The learned counsel for the revision petitioner/ accused submits that this accused is a driver of KSRTC and because of this accident, he has been suspended from the job and right from date of accident and after the accident on 06.05.2007, he is idle as he has been suspended, his family is suffering lot. He submits that because of these cases before the trial Court and the First Appellate Court and before this Court, the accused is suffering mentally physically as well as financially. Therefore, he submits that

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the sentence so imposed by the First Appellate Court be modified and reasonable sentence be imposed on him. He would further submit that, some leniency may be shown in imposing the sentence. As against this submission, the learned Additional Government Advocate submits that, as it is a heinous offence committed and there are three deaths in the said accident. Because of the rash and negligent driving of the bus, the accident has taken place. So also, the rash and negligent driving of the tractor, already the accused No.1 had undergone the sentence and therefore, there cannot be any modifications of the sentence.

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In view of the rival submissions of both the

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sides, the only mitigating circumstance that has been brought on record by the present petitioner is that, the said accident has taken place in the year 2007 and now, we are in the year 2025. That means almost 18 years have been lapsed. Further, the accused was aged 26 years at the time of accident and now he must have been aged 44 years and he is the only bread earner in the family

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according to the learned counsel for the petitioner. So in view of the mitigating circumstances and also the age of the litigation, the petitioner must have suffered physically mentally as well as financially. Therefore, if the sentence is modified to some extent, it would meet the ends of justice. Hence, in view of the facts brought on record by the prosecution, as well as the submissions of the learned counsel for the petitioner, instead of imposing sentence of one year, if the sentence is reduced to six [6] months which is the minimum sentence, it is just and proper. However, sentence with regard to the other offence is concerned, it is to be maintained. Accordingly, the aforesaid points are answered in the negative .

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Resultantly, I pass the following:

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ORDER

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i) The revision petition is allowed in

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part .

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ii) The judgement of conviction passed in CC No.777/2007 dated 19.01.2013 by the Judicial Magistrate First Class, Badami, is affirmed in Crl.A No.16/2013 dated 07.07.2017 by the Principal District and Sessions Judge, Bagalkot, is confirmed.

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iii) However, there shall be modification of the sentence. The

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accused shall undergo sentence of simple imprisonment for a period of six [6] months for the offence punishable under Section 304-A of IPC.

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iv) Sofar as sentence regarding other offences are concerned, is maintained.

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v) His bail bonds stand cancelled. He shall surrender before the trial Court within a period of one month from today.

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vi) Registry to send back the trial Court records along with a copy of this judgment forthwith.

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vii) Further, Registry is directed to send the operative portion of this judgment to the trial Court and the First Appellate Court for compliance through mail.

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SD/(RAMACHANDRA D. HUDDAR) JUDGE

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PJ/CT-VG List No.: 1 Sl No.: 9

Yamanappa S/O Yalagurdappa Habbad v. State of Karnataka

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Yamanappa S/O Yalagurdappa Habbad v. State of Karnataka

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