Thotayya Vs the State of Karnataka

1 . THE STATE OF KARNATAKA THROUGH UPPINAGADY POLICE STATION, PUTTUR, D.K, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA, BANGALORE – 560 001

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…RESPONDENT

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(BY SRI VINAY MAHADEVAIAH, HCGP)

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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

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THE ORDER DATED 04.04.2016 PASSED BY THE V ADDL. DIST. AND S.J., D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN CRL.A.No.2/2014, THEREBY CONFIRMING THE ORDER DATED 17.12.2013 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, PUTTUR, D.K., IN C.C.No.1678/2013 AND CONSEQUENTLY ACQUIT THE PETITIONER OF ALL THE CHARGES LEVELED AGAINST HIM.

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THIS PETITION HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV ORDER

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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Accused who suffered an order of conviction in C.C No.1678/2013 on the file of the Additional Civil Judge and JMFC, Putturu, Dakshina Kannada, for the offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code confirmed in Criminal Appeal No.2/2014 on the file of the V Additional District and Sessions Judge, Dakshina Kannada, Mangaluru sitting at Putturu, is the revision petitioner.

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Facts of the case in brief which are utmost necessary for disposal of the present Criminal Revision Petition are as under:

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A complaint came to be lodged with Uppinangadi Police, Putturu Taluk, Dakshina Kannada, Mangaluru District, alleging that accused being the driver of KSRTC Volvo bus bearing registration No.KA-01/F-8338, on 17.05.2009 drove the same in a rash and negligent manner while proceeding from Bengaluru to Mangaluru and at about 6:00 am near Shiradi village at Udane, dashed to a lorry bearing registration No.KA-01/A-1850 which was parked on the road, loaded with wooden logs.

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Lorry purportedly was parked on the left side of the road on account of deflated left side tyre. Because of the impact of dashing of the bus to the lorry, wooden logs were ripped into the windshield of the bus and having regard to the speed of the bus, wooden logs hit the passengers who were sitting on the left side of the bus and about 15 to 20 passengers were injured. The injuries

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varied from simple to grievous hurt. Further, five passengers by name Smt.Prabhatha C. Hegde, Santhosh, Varaprasad, Satishchandra and Girish died on the spot on account of grievous hurt sustained in the accident.

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Having known about the incident, the villagers and other commuters gathered near the place of accident. With their help injured passengers were shifted to the hospital in separate vehicles.

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Among the injured who were shifted to Mahaveer Hospital, Putturu, one Ismail lodged the complaint with Uppinangadi police. Based on the said complaint, police registered a case in Crime No.117/2009 for the offences punishable under sections 279, 338, 337 and 304A of the Indian Penal Code.

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After registering the case, the Investigation Officer conducted detailed investigation, recorded the statements of injured passengers by visiting to the hospital and after

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thorough investigation filed the charge sheet for the aforesaid offences.

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Learned Trial Magistrate took cognizance of the aforesaid offences and secured the presence of the accused and after completing the procedure as contemplated under the provisions of Section 207 of the Code of Criminal Procedure, recorded the plea of the accused. Accused pleaded not guilty and therefore trial was held.

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In order to bring home the guilt of the accused, prosecution in all examined 19 witnesses as PWs.1 to 19 comprising of complainant, other injured passengers, mahazar witnesses, doctors who conducted the post mortem and issued wound certificates and the Investigation Officers.

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Prosecution placed on record 54 documentary evidences which were exhibited and marked as Exs.P.1 to 54 comprising of FIR, photographs, spot mahazar, IMV

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report, wound certificates, inquest reports, post mortem reports and spot sketch.

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Detailed cross-examination of the prosecution witnesses by suggesting that the driver of the lorry had parked the lorry in a negligent manner and the wooden logs were protruding outside the body of the lorry which ultimately resulted in the incident for which accused is no way responsible, is denied.

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In the cross-examination of PW-1, portion of the complaint averment was marked as Ex.D.1 and two photographs were marked by confronting it to the P.W.1 as Exs.D.2 and D.3. Portion of the statement of P.W.8 wherein contradiction was found was marked as Ex.D.4. Likewise, contradictory statements given by P.Ws.9 and 10 were marked as Exs. D.5 and D.6. Photographs of the parked lorry was marked at Ex.D-7.

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Thereafter, learned Trial Magistrate proceeded to record the accused statement as is contemplated under

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Section 313 of the Code of Criminal Procedure. Accused has denied all the incriminatory materials that were found in the case of the prosecution and did not chose to offer his explanation to the incriminatory materials either in the form of written statement as is contemplated under section 313(4) of the Code of Criminal Procedure nor examined himself to substantiate his defence that because of the negligent parking of the lorry, the accident has occurred.

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To question No.28 in the accused statement, accused has stated that the incident has not occurred on account of his fault and requested the Court to accept the documents to be filed by him.

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Thereafter, learned Trial Magistrate heard the parties in detail and on considering the oral and documentary evidence placed on record in a cumulative manner recorded an order of conviction and sentenced the accused to undergo imprisonment for a period of one year for the offence punishable under Section 304A of the Indian Penal

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Code and three months imprisonment for the offence punishable under Section 338 of the Indian Penal Code and directed to pay compensation of Rs.1,000/- to each of the injured passengers and to pay Rs.2,000/- to each of the dependents of the passengers who died in the accident.

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Being aggrieved by the same, accused preferred an appeal before the District Court in Criminal Appeal No.2/2014.

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Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and by the judgment dated 04^th April 2016 dismissed the appeal filed by the accused, inter alia , holding in paragraph 17 to 32 as under:

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“17. Out of 19 witnesses examined by the prosecution PW1 is complainant cum injured while he was travelling in the offending bus at the time of accident. PW2 to 7 are injured cum passengers of the said bus. PW8 and 9 are eyewitness cum driver and cleaner of lorry bearing No. KA 01-A-1850 which was parked by the side of road on the date of

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accident. PW10 is eyewitness to the accident as he was having shop by the side of Mangalore-Bangalore NH 48, at Udane. PW11 and 12 are panch witnesses to Ex.P18 spot panchanama. PW13 is Motor Vehicle Inspector who tested KSRTC bus and above said lorry. PW14 is conductor of offending bus. PW15 is owner of above said lorry. PW16 is W.H.C. who carried FIR from Uppinangady PS to the Court. PW 17 is police constable of Uppinangady PS who visited Mahaveera Hospital Puttur, as per the direction of PSI, on 18-05-2009 at about 8-00a.m. and recorded statement of PW1 between 9-30a.m. to 10-00 a.m. as per Ex.P1 and produced the same before PSI. PW18 is PSI who firstly visited the scene of occurrence on 18-05-2009 after receipt of information about the accident and sent dead bodies to Uppinangady and Puttur Government hospital and directed PW17 to go and record statement of complainant and after receipt of Ex.P1 registered case in Cr.No.117/2009 and sent FIR to the Court through PW16. PW19 is the then CPI of Puttur Rural Circle who completed investigation and filed charge sheet.

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18. In this case admittedly the KSRTC Volvo bus bearing Reg.No. KA-01-F-8338 departured Bangalore at about 11-00p.m. on 17-05-2009, in which PW1 to 7 were travelling as passengers. So also the other injured and deceased persons were

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travelling as passengers. Admittedly bus reached a place called Udane on NH 48 of BangaloreMangalore.

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19. It has come in the evidence of PW1 that he was sitting at seat no.28 in the said bus and when it reached at Udane of Shirady bus was with high speed and without noticing the lorry which was parked by the side of road, driver of bus dashed to the said lorry, in which wooden logs were loaded and that the log ripped the glass and went inside the bus, then bus gone at the distance of 100 meters from the place of incident and due to the hit by the wooden logs which ripped into bus had claimed some lives. Himself and other people have sustained injuries. On which part of his body injuries are caused are also deposed. According to PW1 there was sufficient space in the place of accident, to move the vehicle, despite of that driver of the bus had committed such mistake, which resulted in the accident. It has come in the evidence of PW1 that accident occurred due to high speed driving by the accused. The evidence of PW1 has been referred by the lower court in para no 10 to 14 of the judgment. So also referred the evidence of PW2 to 7 in para no.15 to 20 of the judgment. On perusal of evidence of PW1 to 10 it is found that they unequivocally deposed that accident took place due to fault of

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driver of the bus as it was driving with high speed and negligently and dashed to the parked lorry.

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20. Learned counsel for accused elicited in the cross-examination of PW1 that usually in National High way vehicles would go with speed. He admitted the suggestion that usually to facilitate to give side to vehicles coming from opposite side, the vehicles would take to left side. It is elicited in page no.4 of his cross- examination that bus was going at a speed of 120/km/hour. Further elicited that the width of road is 25 to 30 feet and on the right side of road there is no rough road, but on left side of road there is rough road like same width of tar road. It is the defence of accused that the accused took his bus to the left side since from his opposite side another vehicle was coming by overtaking some other vehicle and in order to avoid the accident, he took the bus to the left side and after taking the bus to the left side, then while taking bus to tar road, by that time wooden log loaded to the lorry which extended to rear side dashed to the bus.

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21. Of course PW1 has denied the above suggestions, but the above defence shows that if accused took the bus to the left side by giving way to the opposite vehicle, to avoid accident, he should have gone in the same direction in the mud/rough road, ahead. It appears that because of parking of lorry on left side of mud road, he took the vehicle to

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the tar road i.e. towards right side, from mud road. It is not the defence of accused that after taking bus from tar road to left side he stopped for a while in order to avoid accident. Had the accused controlled the bus in the process of taking from left side to tar road the accident would not have been occurred.’

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22. PW2 denied the suggestion of defence counsel that in claim petition filed for compensation he has stated that accident occurred due to fault of accused and for the same reason he is deposing so in this case. But nowhere suggested that the accused was not driving the bus with high speed and negligently. Simply suggested that accident was not caused due to fault of accused. PW3 in his crossexamination denied the suggestion that accident not occurred due to the fault of the accused. Further denied that accident occurred due to fault of lorry driver. It is suggested to PW6 in her crossexamination that in order to claim compensation she falsely deposed that accident occurred due to fault of bus driver. PW7 also in her cross-examination denied the suggestion that there was no fault of driver of the bus. Further denied the suggestion that accident took place due to fault of driver of lorry.

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23. PW8 and 9 being owner and cleaner of above said lorry and they are independent witnesses. They deposed about date place and time of the accident and parking of lorry facing towards

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Mangalore on the side of Mangalore-Bangalore tar road. PW8 further deposed that bus was coming with high speed and due to accident five persons travelling in the bus were died. At the time of accident he was standing by the side of lorry, they shifted injured to the hospital and thereafter informed to the police. Police came after two hours of the accident. He showed accident spot to the police so also villagers showed police prepared mahazar, to which he has signed. He has identified spot mahazar as per Ex.P18 and his signature as per Ex.P18a. He has identified the accused before the Court and also stated that he has given statement to the police. PW8 has specifically deposed that accident took place due to the fault of driver of the bus.

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24. PW9 also deposed as to when where and how the accident took place. According to him bus came with high speed and rammed to parked lorry. Himself and his lorry driver went and saw that passengers of the bus were sustained injuries and injured were sent to hospital in the vehicles came there. He has given statement before the police. He has identified the vehicles in the photos Ex.P2 to 17 and also deposed that accident took place due to fault of driver of bus.

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25. In the cross-examination of defence counsel PW8 admitted the suggestion that wooden

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logs extended outside body of the lorry. PW8 voluntarily deposed that he has installed signal. But admitted that the parking light and indicator light were not visible, as same is not visible in Ex.P14. He denied the suggestion that violating the rules he loaded and parked vehicle on the side of the road due to which accident took place and same is his fault. It has come in the cross-examination of PW9 that they installed signal light in respect of extending of wooden logs from the body of lorry. When confronted Ex.P12 to 17 he admitted that the said signals are not visible. He has also denied the suggestion they parked lorry across the road to some extent by the side of road. Further denied the suggestion that for the said reason the logs loaded in lorry came across the tar road. Further denied the suggestion that accident took place due to fault of driver of lorry.

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26. PW10 who is independent witness also deposed as to when were and how and because of whose fault the accident took place. He has also deposed about parking of lorry and presence of its driver and cleaner. He deposed about death of passengers of the bus and also injuries sustained by some of the passengers. According to him accident took place due to the fault of driver of bus. In the cross-examination of defence counsel he has denied the suggestion that driver of the lorry is his villager

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and he used to come to his shop. Further denied the suggestion that accident though was not took place due to fault of bus driver, but falsely deposed that it was took place due to fault of bus driver, since lorry driver belongs to his caste.

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27. PW14 and 16 to 19 are official witnesses deposed about their official acts. In this case accident is admitted, but according to counsel for appellant due to faulty parking of wooden logs laden lorry across the road to some extent and logs were extended from the body of lorry to the extent of 1.8meters this accident took place. Learned counsel for appellant attempted to shift entire criminal liability/burden on the driver of lorry. But on perusal of oral and documentary evidence on the side of prosecution it is very much clear that accident took place due to rash and negligent driving of bus by its driver i.e. accused. Same is rightly observed by the trial court in its judgment. The lower court rightly observed that accused drove the bus so as to endanger to human life and safety of others without keeping in his mind that vehicles of such kind could often stop due to various reasons and where the place of accident there is no curve to say that accused had no chance to see the vehicle parked by the side of the road.

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28. The trial court rightly followed the decision relied upon by learned APP before the trial court

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reported in ILR 2004 KAR 1459 in the case of Ishwar Sadeppa Nandennanavar Vs State of Karnataka. In para no.16 of judgment lower court by referring evidence of conductor of the bus i.e. PW14 observed that conductor of offending vehicle himself has deposed in the examination-in-chief as the accident was occurred due to the fault of the accused and came to the conclusion that accident was occurred due to fault of accused, has to be taken into consideration. Further observed in page no.28 of the judgment that credibility of witnesses and injured, the court has to consider other factors pertaining to the injured, surrounding circumstances, probabilities, and to weigh the same. In para no.62 of judgment the trial court observed that there is clear absence of care and caution on the part of accused in whose hand more than 30 lives were handed over and if he could have taken little caution, definitely he could have avoided accident and he should not shift the responsibility on others, and it is only a blame game to escape from clutches of law. Further observed that if really owner and driver of lorry have violated the traffic and permit rules, there is separate Penal Provision to punish such offenders and what has done by this accused to avoid the accident is not placed on record. The further observation of lower court is that the other defence of the accused is that he gave way to another lorry to avoid head on

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collision and it is only a self serving statement of accused. The lower court believing the evidence of prosecution witnesses came to right conclusion that accused has committed the offences and rightly answered points for consideration in the affirmative.

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29. As could be seen there are no any glaring omission and contradictions in the evidence of prosecution witnesses which come in the way of conviction of the accused. The trial court has properly appreciated the evidence of prosecution witnesses and not committed any error. Any minor contradictions, according to accused will not go to the root of the case.

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30. The following rulings cited by the counsel for appellant

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1. 2014(2) SCC (Crl) 497 in the case of Basappa Vs State of Karnataka

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2. AIR 2000 S.C. 2511 in the case of Mohammed Aynuddin Vs State of A.P. reported in AIR 2000 SC 2511

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3. 2008(4) KCCR 2177

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4. ILR 2006 Karn.3621

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5. 2015(3) KCCR 2013 in the case of Pakariah Sangaiah Halakeri Vs The State of Karnataka where in it is held that the evidence of conductor was crucial and

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cannot be ignored-Lower Appellate Court also ignoring evidence of conductor, except recording that he was treated as a hostile witness-This cannot be reconciled with evidence of other witnesses who were apparently asleep at that point of time-Held, both Courts below have committed an error in holding that accident had occurred as a result of rash and negligent driving on part to petitioner.

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The above decisions will not come to the help of appellant.

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31. On the other hand the learned PP relied on the following decisions

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1. 2004(4) Crimes 52 in the case of M.Nagaraju Vs State of Whitefield Bangalore wherein it is held that no explanation by accused as to cause of accident in his examination u/s 313 Cr.P.C.- Defence plea that a cow tried to cross the road and to avoid same, driver was forced to take bus to extreme right was denied by most of witnesses.

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2. (2012) 3 SCC cases 1107 in the case of Ravi Kumar Vs State of Rajasthan wherein it is held that rash and negligent driving has to be

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examined in the light of the facts and circumstances of a given case. Speed of vehicle not always determinative-Reckless and negligent driving at slow speed is also possible. Principle of Res-ipsa loquitur is also applicable to criminal cases of accident.

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3. ILR 1999 Kar 1498 in the case of State by Bidadi Police Station Vs S.B. Marigowda wherein it is observed that sometimes after hearing the sound only the person will turn down and would see about the happening. This does not mean that he is not a eye witness out and out. This witness might not have been able to give the whole graphic picture of the accident. Neverthless he speaks of his presence and would also speak of the manner of accident and place of accident. He has immediately filed the complaint as per Ex.P1.

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4. ILR 2004 Kar 1459 in the case of Ishwar Sadeppa Nandennavar Vs State of Karnataka rep-by its State Public Prosecutor, Bangalore where in it is held that –“A person like a driver of a offending vehicle has been called out for having special knowledge of the occurrence and if he does not explain the same when he has been given a last opportunity while questioned under Sec. 313 Cr.P.c. after the

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prosecution has discharged its burden prima facie the courts are entitled to draw adverse inference.

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32. The principles of said decisions are applicable to the case on hand. In a recent decision reported in 2015(5) SCC page 182 in Criminal Appeal No.520 of 2015 in the case of State of Punjab Vs Saurabh Bakshi it is observed by the Hon’ble Apex Court that –“It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim and be it said on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalized. The principles of said decision are aptly applicable to the present case on hand, and same is followed by this Court.”

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Being further aggrieved by the same accused is

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before this court in this revision petition on the following grounds:

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 The conviction and sentence passed by the Courts below are contrary to law, illegal and liable to be set aside to meet the ends of justice.

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 The courts below have failed to note that the ingredients of alleged offence are not made against the petitioner. The Courts below have not properly considered and appreciated the evidence on record.

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 The Courts below have convicted the petitioner on assuming the connection in narration of facts, although they are inconsistent.

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 The Courts below have failed to note that in the absence of reliable independent evidence and proving the case beyond reasonable doubt in convicting the petitioner is bad in law.

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 That the prosecution mainly on the evidence of the complainant and evidence of PW-8 PW-9 and PW-15 are the interested witness to the prosecution, the courts below have failed to note that there is a serious infirmity in the prosecution case about the presence of the eye witness.

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 The courts below have not applied the principle of Res-ipsa-loquitor to asses the actual cause for the alleged accident.

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 Both the courts below have misunderstood the concept of speed, rash and negligent driving. Mearly driver is driving the vehicle at high speed doeds not mean that he is rash and negligent. In the present case both the courts below have not appreciated the defences of the petitioner that the lorry was loaded were protruded outside the body of the lorry. The prosecution case itself is that the timber logs were ripped through the left side window pane and came inside the bus. Thus there was no head on collusion and that itself goes to show that the lorry was negligently parked, however both the courts below have not considered the above admitted fact at all.  The Courts below have failed to note that the prosecution has failed to prove the case beyond reasonable doubt. Under these circumstances, convicting the petitioner is unsustainable.  The Courts below have failed to note that there are no materials to hold that the petitioner is guilty of the offence alleged. Further, there are no materials to hold that the petitioner was negligent and was responsible for the death of the victims. The Courts below have not properly appreciated these aspects.

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 The courts below failed note that the Ex.P-1 complaint has been prepared after preparation and deliberations and that too after the investigating officer to the spot. The delay in registration of the FIR lends support to the defense of the accused and since the FIR is hit by Sec. 161 of Cr, PC, both the courts below ought to have discarded the prosecution version set up on the basis of Ex.P-1.

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 The Courts below have failed to note that the spot mahazar and the cause of accident are not proved in accordance with law. Further, there are no materials to hold that the petitioner is responsible and guilty of the offence. The ingredients of the offence are also not made out. There is a serious infirmity in the case of the prosecution of not examining the author of the PM Report.

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 The court below has committed an error in convicting the petitioner on surmise and conjectures. The prosecution has failed to prove the guilt beyond reasonable doubt. The sentence and conviction of the petitioner is bad in law and same is liable to be set aside to meet the ends of justice.”

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Sri Aruna Shyam, learned Senior Advocate representing the accused- revision petitioner before this Court reiterating the grounds urged in the revision petition vehemently contended that, as could be seen from the

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operative portion of the order passed by the Trial Court, learned Trial Magistrate failed to convict the accused for the offence punishable under Section 279 of the Indian Penal Code. Therefore, conviction of the accused for the offence under Sections 338 and 304A of the Indian Penal Code is impermissible.

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He also pointed out that the application of the maxim res ipsa loquitur is impermissible as the prosecution is required to establish its case by placing cogent and convincing evidence on record.

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He also pointed out that the incident has occurred on account of improper parking of the lorry on the highway and so also loaded wooden logs were protruding outside the body of the lorry without there being any caution. He further pointed out that that the incident has occurred on 17.05.2009 at about 6.00 am. The visibility of the road was not so clear as it was rainy season. Therefore, negligence could not have been attributed to the driver of

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the bus which is sine qua non for convicting the accused for the offences punishable under Sections 338 and 304A of the Indian Penal Code.

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He also contended that the learned Trial Magistrate has not properly appreciated the defence evidence, viz., Exs.D-2, 3 and 7/photographs. He further pointed out that the judgment of the learned Trial Magistrate is nothing but reiteration of the case of the prosecution and therefore, there is no application of judicious mind while passing the impugned judgment resulting in miscarriage of justice and sought for allowing the revision petition.

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He further pointed out that learned Judge in the First Appellate Court did not independently appreciate the material evidence on record and improperly dismissed the appeal in a mechanical manner and sought for allowing the revision petition.

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Learned Senior Advocate further contended that the photographs produced by the prosecution on comparison

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with the photographs placed on record by the accused vide Exs. D-2, 3 and 7 would make out a case that it is the improper parking of the lorry in a negligent manner with wooden logs protruding outside the body of the lorry which has resulted in the incident and thus sought for allowing the revision petition.

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In support of his arguments Sri Aruna Shyam, learned Senior Advocate placed reliance on the following judgments:

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(i)Syed Akbar vs. State of Karnataka reported in (1980)1 SCC 30.

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(ii) Nanjundappa and another vs. State of Karnataka reported in 2022 SCC Online SC 628.

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(iii) State of Himachal Pradesh vs. Manohar Singh, Crl. Appeal No.288/2004 Date: 18.03.2011.

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(iv) State of Karnataka vs. Satish reported in (1998) 8 SCC 493.

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(v) Kishore Chand Joshi vs. State, reported in 2018 SCC Online Del 12337.

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(vi) Abdul Subhan vs. State (NCT of Delhi) reported in ILR (2006) II Delhi 882.

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Per contra, Sri Vinay Mahadevaiah, learned High Court Government Pleader supports the impugned orders by contending that the material on record is rightly appreciated by both the Courts in recording an order of conviction for the aforesaid offences and sought for dismissal of the revision petition.

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He further pointed out that the accused failed to place his version on record and suggestions made by learned counsel for the accused in the cross-examination of prosecution witnesses having been denied and other material evidence on record fortify the allegations leveled against the accused by the prosecution, recording an order of conviction by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court is just and proper and sought for dismissal of the revision petition.

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He also pointed out that the learned Trial Magistrate did not properly worded in the operative portion of the

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impugned Order. But, on perusal of the operative portion of the order passed by the learned Trial Magistrate, it is crystal clear that the learned Trial Magistrate has convicted the accused for all the offences which were charged against him. Therefore, contention on the part of the learned counsel for the revision petitioner that there was no negligence on the part of the accused and therefore conviction for the offence punishable under Section 337, 338 and 304A of the Indian Penal Code is impermissible, cannot be countenanced in law and sought for dismissal of the revision petition.

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He also pointed out that the prosecution witnesses who are also injured in the incident did not nurture any enmity or animosity against the accused and taking note of the fact that five passengers have died on the spot and several others were injured in the accident, negligence on the part of the driver of the bus has to be taken into consideration as is depicted by the photographs relied on

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by the prosecution and sought for dismissal of the revision petition.

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Having heard the parties this Court perused the material on record meticulously.

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On such perusal of the material on record, the following points would arise for consideration:

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(i)Whether the revision petitioner makes out a case that the impugned judgments are suffering from legal infirmity, patent factual error calling for interference by this Court?

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(ii) Whether the sentence is excessive?

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(iii) What Order?

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REGARDING POINT No.1: In the case on hand, the

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accident is not in dispute, so also, the revision petitioner/ accused being the driver of the KSRTC Volvo bus bearing registration No.KA-01/F-8338. Death of five passengers and injury to other passengers is also not in dispute.

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Complainant is one of the passengers in the said bus. He has intimated the police about the incident and police reached the spot at about 7.15 am. Complaint came to be registered in Mahaveer Hospital at Putturu between 9.00 to 10.00 am on the same day and FIR came to be registered at 10.30 am. Very fact that there is death of five passengers and injury to 17 passengers in the unfortunate incident depicts the ghostly incident.

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It was tried to be impressed upon before this Court by the learned counsel for the revision petitioner that the lorry parked on the left side of the road was loaded with wooden logs which had protruded from the body of the lorry and the hind side. It was also tried to impress upon this Court by the learned counsel for the revision petitioner that some of the wooden logs were protruding outside the body of the lorry on either side of the body of the lorry.

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It was further argued that at the time of the incident, having regard to the fact it was mid May 2009, visibility of the road at 6.00 am was not that good and therefore, accused/ revision petitioner could not see the lorry with wooden logs protruded outside the body of the lorry and incident has occurred all of a sudden whereby movement of the bus by movement of the bus, protruded wooden logs pierced into the left side of the bus after hitting the wind shield of the bus whereby it came in contact with the passengers sitting on the left side of the bus thereby, entire negligence is on the part of the driver of the lorry and charge sheet came to be filed against the revision petitioner by the police without proper investigation and collection of material evidence.

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Learned High Court Government Pleader however supported the impugned Orders as referred to supra.

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In the light of the above contentions urged on behalf of the revision petitioner, this Court re-visited into the

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material evidence on record even though the Court is required to consider the patent factual error or error of jurisdiction having regard to the scope of the revision petition as is held by the Hon’ble Apex Court in the case of

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Amit Kapoor vs. Ramesh Chander and another reported in (2012)9 SCC 460 .

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For the said limited purpose, material evidence is considered in this Order.

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P.W.1-Ismail was one of the passenger in seat No.28. He has deposed about the accident. He has also stated that bus was moving in high speed and accident has occurred only on account of negligence on the part of the bus. Pertinently bus could stop only after 100 mtrs from the place of the accident. In his cross-examination, no doubt, he has stated that he was asleep in his seat and therefore, he did not really witness what caused the accident.

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P.W.1 also admitted that there was no cautionary methods like tying red flag on the protruded wooden logs and, back door of the body of the lorry was open.

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P.W.2-Manjunatha is yet another passenger who was travelling with his daughter who also deposed about the accident and the fact of five passengers losing their life. In his cross examination also, it is elicited that he was also sleeping at the time of the accident.

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So also P.W.3-Ravish Nayak admits that he was also sleeping at the time of the accident and he has answered that wooden logs protruded 10 to 12 feet outside the body of the lorry.

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P.W.4-Smt.Gayitri admits in her cross-examination that she came to know about the negligent driving of the bus by the revision petitioner/accused only after the accident.

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P.W.5-Nanappa Poojary also deposed about moving of bus in high speed and admits in the cross-examination that he did not observe the parked lorry.

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P.W.6-Smt.Meera is the wife of P.W.5 who also deposes that she was sleeping in the bus at the time of the accident.

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P.W.7-Smt.Vaani in the cross examination admits

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that she was sleeping at the time of accident.

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P.W.8-Lakshmana Gowda is the driver of the lorry who is an eye witness to the incident. In his crossexamination he admits that the wooden logs loaded to the lorry had protruded even outside the body of the lorry and it was raining on the date of accident. He admitted that at the time of the accident there was no proper light and it was dark in the sky.

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P.W.9-Manjunatha being the cleaner of the lorry also deposed on similar lines that of P.W.8.

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It is pertinent to note that the suggestions made to P.Ws.8 and 9 that the accident has occurred on account of their negligence is denied by them.

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P.W.10 is an eye witness to the incident who owned a shop on the National Highway. He has deposed about lorry being parked on the left side of the road and bus dashing against the said lorry. He also admits in his crossexamination that wooden logs which were loaded in the lorry had protruded outside the body of the lorry.

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P.W.13-K.S.Ravindra is the Motor Vehicle Inspector. He admits in his cross-examination that indicator or tail lamps of the lorry could not have been witnessed by the drivers driving in the same direction on account of the fact that the back door of the lorry had been found in open position which was covering the tail lamps of the lorry.

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P.W.19-Manjaiah being the Investigation Officer admitted in his cross-examination that if the wooden logs had not protruded affecting the free movement on the road perhaps the accident could not have occurred.

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Such admissions were sought to be canvassed as patent factual error in recording an order of conviction against driver of the bus.

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It is pertinent to note that in the accused statement recorded under Section 313 of the Code of Criminal Procedure accused has denied all the incriminatory circumstances and to question No.28 he has answered that accident has not occurred on account of his fault and he has furnished few documents.

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Sri Aruna Shyam, learned Senior Advocate contended that, but for the protrusion of one of the wooden logs which came in contact with the moving bus whereby windshield of the bus got broken and because of the allowable speed on the National Highway, if the

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wooden logs piercing into the bus, bus had moved for some distance resulting in wooden logs coming into contact with the passengers sitting on the left side of the bus lost their lives and few passengers got injured severely and some with simple injuries.

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Therefore, police ought to have taken into consideration the fact of improper parking of the lorry on the left side of the road and should have filed charge sheet against the driver of the lorry and not against driver of the bus, inasmuch as, driver and cleaner of the lorry admits that on the day of the incident, it was raining and sky was dark and parking of the lorry was not clearly visible.

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No doubt, such material evidence has been placed on record in the form of cross-examination of P.Ws.8 and 9. However, accused being the professional driver and was driving in the said road often, ought to have taken such necessary precaution and expect the unexpected while driving the bus in question.

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Degree of attentiveness especially in the early hours where visibility is low, driver is expected to drive the bus cautiously. Moreover, Motor Vehicle Inspector did not notice any mechanical defect in the bus. Bus is a sophisticated Volvo Bus having brighter head lights.

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Sketch of the place of accident and so also the photographs that were taken near the place of incidence would go to show that the road was 21 feet wide. A road which is wide enough having width of 21 feet, two vehicles can easily pass through by allowing sufficient margin on the left side.

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The photographs that are marked in the evidence show that the right side of the body of the lorry is also damaged because of the impact of the accident which clearly establishes that there was no sufficient margin left by the driver of the bus. If the driver of the bus had taken such precaution even when the protrusion of the wooden

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logs were to be there from the parked lorry, accident would not have occurred.

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Accused failed to explain as to was there any upcoming vehicle so that he could not driven the bus by leaving sufficient margin on the left side. Mere parking of the lorry with protruded wooden logs would not therefore absolve the guilt of rash and negligence on the part of the accused.

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It is also pertinent to note that none of the prosecution witnesses nurtured any enmity or animosity with the accused.

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It is settled principles of law that mere high speed is not the only parameter to adjudge the rash and negligence in driving a vehicle in a given case.

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Taking note of these aspects of the matter, learned Trial Judge and the learned Judge in the First Appellate Court have categorically recorded the negligence on the

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part of the accused/revision petitioner while answering the issues raised especially, for the offence punishable under Section 279 of the Indian Penal Code.

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No doubt, the reasoning assigned by the learned Trial Judge is not that happy enough. But, learned Judge in the First Appellate Court has supplemented additional reasons while maintaining the Order of conviction.

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Taking note of the scope of the revision petition as is held in the case of Amit Kapoor supra, this Court is of the considered opinion that in the revision petition this Court cannot form a different opinion by re-visiting into the factual circumstances insofar as the guilt of the accused is concerned and record a different finding by upsetting the order of conviction.

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The decision placed on record on behalf of the revision petitioner in the case of Syed Akbar referred to supra, deals with a situation as to the fact of appreciation of evidence where maxim res ipsa loquitur which is

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incorrect and would be basically applicable for the tortuous acts and in a criminal case, degree of proof is beyond reasonable doubt and therefore, said maxim is not applicable while adjudging the criminal case.

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No doubt, it is settled principle of law that in a criminal case, the prosecution is expected to prove its case by placing such cogent evidence on record beyond reasonable doubt to bring home the guilt of the accused. However, in a given case, accused failed to place his version about the incident and mere parking of the lorry with wooden logs protruded outside the body of the lorry would not be sufficient enough to adjudge that accused drove the bus in a diligent manner.

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As such, even though there cannot be any dispute as to the principles of law enunciated in the case of Syed Akbar supra, same would not be of much avail in upsetting the finding of conviction recorded by the learned Trial Judge.

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In the case of Nanjundappa supra, Hon’ble Apex Court in paragraph 9, reiterated the principles of law enunciated Syed Akbar’s case. Since this Court has considered Syed Akbar’s case and is unable to accept the contentions on behalf of the revision petitioner with regard to his diligence, Nanjundappa’s case is also of no avail in recording an order of acquittal.

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Next decision in line that has been relied upon by the learned counsel for the revision petitioner is the judgment in the case of Manohar Singh supra. In paragraph 21 of the said judgment, High Court of Himachal Pradesh, Shimla, again placed reliance on Syed Akbar’s case referred to supra. The same is not of much relevance to the case on hand as there is mechanical defect in the vehicle that has been noted by the Inspector of Motor Vehicles and therefore, High Court of Himachal Pradesh, Shimla, refused to accept the contentions urged on behalf

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of the State of Himachal Pradesh that the maxim res ipsa loquitur is to be applied and accused is to be convicted.

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Since the facts in the case on hand are different and there is no mechanical defect noted by the Inspector of Motor Vehicles, said decision is also of not any relevance while accepting the contentions urged on behalf of the revision petitioner.

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The decision in the case of State of Karnataka vs. Satish referred to supra relied on by the learned counsel for the revision petitioner would deal with a situation where driving of the truck in a high speed would not ipso facto result in negligence or rash driving the vehicle.

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In the case on hand, as referred to supra, mere high speed is not the only parameter to adjudge the negligence or rashness by itself. The very fact that right side of the lorry being damaged and wooden logs that were loaded in the lorry had protruded itself into the bus and it was found from the photographs that it has entered from left side of

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the bus and then is being seen on the right side window of the bus shows not only the high speed, but also non control over the bus while driving the same by the accused. Therefore, said principles enunciated in the said decision though cannot be disputed, cannot be made applicable to the case on hand while accepting the case of the revision petitioner.

¶217

The Delhi High Court in the case of Kishore Chand Joshi , supra, while dealing with the negligence part of the driver of the vehicle in paragraphs 17, 21 and 23 again considered what would be the negligent act or rashness and held that high speed is not the only criteria. While so discussing about what is negligence and rashness, it has been held that prosecution has to prove commission of rash and negligent act by placing cogent and convincing evidence on record.

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The facts and circumstances involved in the said case are altogether different from the facts and

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circumstances of the present case and therefore, said decision is also of no avail for the revision petitioner to assail the finding of guilt of the accused attracting offence punishable under Sections 279 and 304A of the Indian Penal Code.

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The last decision that has been placed on record on behalf of the revision petitioner is the case of Abdul Subhan supra. In the said judgment, High Court of Delhi in paragraphs 10, 11 and 12 again dealt with the fact of whether high speed would only be sufficient to consider the rashness and negligence. High Court of Delhi in the said case placed reliance on the decision rendered in the case of High Court of Karnataka vs. Satish supra to hold that mere high speed could not be considered as act of negligence and rashness ipso facto and therefore, gave the benefit to the driver of the motor vehicle.

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In a matter of this nature, after prosecution places its evidence on record which would be sufficient enough to

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point the guilt towards the accused, accused is bound to place his version on record not only furnishing the explanation to the incriminatory circumstances, but also to explain how the incident has occurred as he is participant in the incident. Recording of accused statement under Section 313 of the Code of Criminal Procedure wherein such an opportunity is provided for the accused is not an empty formality or purposeless. It serves dual purpose. Firstly, affording suitable opportunity for the accused to have his say about the incriminatory materials which is mandatory on the part of the Trial Court.

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Secondly, while recording the accused statement, accused is not only expected to explain the incriminatory circumstances, but would be given a fair opportunity to place on record his version about the incident. If the accused deliberately fails to utilize such an opportunity, consequences in law should follow as is held in the case of Ravi Kapur vs. State of Rajasthan reported in (2012)9 SCC 284.

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In the case on hand, in view of the factual aspects discussed supra, principles of law enunciated in the said decisions relied on behalf of accused would not be of any use in upsetting the finding of conviction recorded by the learned Trial Judge confirmed by the learned Judge in the First Appellate Court. Therefore, from the above discussion, invariable conclusion that this Court can reach is to hold point No.1 in the negative and accordingly it is answered.

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REGARDING POINT No.2: In the case on hand, because of the rash and negligent driving of the bus by the revision petitioner, five precious lives have been lost and 17 persons are injured. Taking note of the maximum period of imprisonment prescribed for the offence punishable under Section 304A of the Indian Penal Code, learned Trial Judge in his discretion has imposed one year simple imprisonment. The State did not appeal against the quantum of sentence. Therefore, in the considered opinion of this Court, there is no scope to modify the sentence

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following the principles of law enunciated in the case of State of Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182 . Accordingly, point No.2 is answered in the negative.

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