Karnataka High Court
Basavaraj S/O. Matuteppa Arer vs State Of Karnataka on 25 July, 2024
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NC: 2024:KHC-D:10540
CRL.RP No. 100074 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100074 OF 2018
BETWEEN:
BASAVARAJ S/O. MATUTEPPA ARER,
AGED ABOUT 38 YEARS,
OCC: DRIVER OF KSRTC DEPOT,
PRESENTLY WORKING IN KSRTC
DIVISIONAL STORE, HAVERI.
...PETITIONER
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
STATE OF KARNATAKA
REP BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI. PRAVEENA Y. DEVAREDDIYAVAR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 READ WITH 401 OF CR.P.C., SEEKING TO CALL FOR
Digitally signed RECORDS AND SET ASIDE THE JUDGMENT AND ORDER DATED
by NARAYANA
UMA 23.03.2018 PASSED BY THE I ADDL. DISTRICT & SESSIONS
Location: HIGH
COURT OF
JUDGE, AT HAVERI IN CRIMINAL APPEAL NO.24/2017 AND
KARNATAKA ALSO SET ASIDE THE JUDGMENT AND ORDER DATED
01.07.2017 IN C.C. NO.130/2016 PASSED BY THE CIVIL JUDGE
& JMFC AT SHIGGAON; AND CONSEQUENTLY ACQUIT THE
PETITIONER HEREIN FROM ALL THE CHARGES LEVELED
AGAINST HIM.
THIS REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR HEARING ON 25.07.2024, COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THIS COURT MADE
THE FOLLOWING:
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NC: 2024:KHC-D:10540
CRL.RP No. 100074 of 2018
ORDER
This revision petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 01.07.2017 in C.C. No.130/2016 passed by the Civil Judge and JMFC at Shiggaon and its confirmation order dated 23.03.2018 in Crl.A.No.24/2017 on the file of I Addl. District and Sessions Judge, Haveri.
2. The ranks of the parties before the trial Court will be considered as it is for convenience.
Brief facts of the case:
3. The complaint is registered by one of the inmates of the bus which discloses that the petitioner was working as a KSRTC driver. On 14.06.2015 at about 2.50 p.m., he was deputed to take charge of the bus bearing registration No.KA-27/ED-1460 which was flying from Mulakeri to Muddinakoppa. The accused was driving the said bus and the said bus crossed Konanakeri. The complainant noticed that the bus was being driven in a -3- NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018 high speed and rash and negligent manner. Resultantly, it dashed the motorcycle which was coming from its opposite direction. Consequently, the pillion rider of the motor bike died at the spot. Whereas, the rider of the bike sustained grievous injuries to his head. The injured was given first- aid and he was shifted to hospital for treatment. The complainant being one of the inmates of the bus lodged a complaint against the driver of the bus. The jurisdictional police have registered a case in crime No.102/2015 for the offence punishable under Sections 279, 338 and 304A of IPC. After conducting the investigation, submitted the charge sheet.
4. To prove the case of the prosecution, the prosecution examined 10 witnesses as PW1 to PW10 and got marked 13 documents as Ex.P1 to P13. The Trial Court after appreciating both oral and documentary evidence on record, recorded the conviction for the offence punishable under Section 279, 338 and 304-A of IPC. Being aggrieved by the same, the petitioner herein had preferred an appeal -4- NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018 before the Appellate Court. The Appellate Court after considering the oral and documentary evidence and after reappreciating the same, confirmed the judgment of conviction passed by the Trial Court.
5. Heard Sri. Aravind D. Kulkarni, learned counsel for the petitioner and Sri. Praveena Y. Devareddiyavara, learned HCGP for the respondent-State.
6. It is the submission of learned counsel for the petitioner that the judgment of conviction and order of sentence passed by the Trial Court is against to the evidence on record and contrary to the law laid down by the Hon'ble Supreme Court and therefore, the same is required to be set aside.
7. It is further submitted that the learned counsel for the petitioner mainly contended that nowhere in the evidence of all the witnesses the word, rash and negligent driving has not mentioned. In the absence of the evidence about rash and negligent driving, the conviction cannot be sustained.
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8. It is further submitted that the driver can fly the vehicle with high speed that may not be an offence, however, it should not be coupled with rash and negligent driving. The evidence of PW1, though stated to be of eye witness of the incident, did not disclose regarding rash and negligent driving. Hence, the findings of the Courts below in recording the conviction is required to be set aside.
9. Learned HCGP vehemently justified the concurrent findings recorded by the Courts below and submitted that, the complainant was one of the inmates of the bus. He instructed the accused to slow down the vehicle in the cross road. However, the accused did not heed his words and proceeding with high speed. Due to his rashness and negligent act, the accident occurred. As a result of which, the pillion rider of the scooter which was coming from the opposite direction died at the spot and the rider sustained injuries. Even though, PW1 has been cross examined in order to discredit his trustworthiness, -6- NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018 he withstood the cross examination and supported the case of the prosecution.
10. It is further submitted that the sketch, the motor vehicle inspection report and spot mahazar are clearly indicate the manner in which the accident occurred and the manner in which the accused was driving the said vehicle with high speed coupled with rash and negligence. Therefore, the trial Court and Appellant Court concurrently held the accused found guilty of the offences stated supra and therefore, it is not necessary to interfere with the said findings. Making such submission, learned HCGP prays to dismiss the petition.
11. Having heard the learned counsel for respective parties and also perused the findings of the Courts below in recording the conviction, the points which arises for my consideration are:
i) Whether the findings of the Courts below in recording the conviction are justified?-7-
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ii) Whether the petitioner made out the grounds to interfere with the said findings?
12. This Court being a revisional Court and having a limited jurisdiction to reappreciate the evidence of the Courts below. However, in order to ascertain as to whether any errors or irregularities committed by the Courts below in recording such conviction, it has to be dealt with in accordance with law.
13. Now, it is relevant to refer the evidence of PW1 who is the complainant in this case. He deposed in his evidence that he was travelling in the said bus as on the date of the incident. Though, he tried to convince the accused to slow down the vehicle, he failed to convince him. However, the accused was driving the said bus in a rash and negligent manner with high speed. Consequently, the accident had occurred. He had been cross-examined by the accused at length, however, nothing has been elicited to disbelieve his evidence. PW-1 is consistent in his evidence that the bus was being driven with high speed. -8-
NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018
14. PW2 and PW3 are the witnesses to the spot mahazar and they have supported the case of the prosecution in respect of spot mahazar.
15. PW4 was working as conductor of the said bus. He deposed that he heard the sound of accident and got down from the bus and saw that two persons who were coming on motorcycle were sustained injuries in the accident. He further deposed that the bus was moving in a moderate speed.
16. PW5 and PW6 stated to be the eye witnesses to the accident, however, they did not support the case of prosecution.
17. PW7 was working as Police Constable at Bankapura Police station, after receiving the message about the accident, he went to the spot along with others and stated to have written spot mahazar and inquest. PW8 was working as Head Constable of the same police station. After receiving the complaint, he said to have -9- NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018 registered FIR in Crime No.105/2015 and the same has been identified by him as ExP10.
18. PW9 was working as ASI of Bankapura Police station. He said to have conducted the investigation and submitted the charge sheet. PW10 was the father of rider of the motor cycle. He is the hearsay witnesses.
19. On careful reading of the evidence of the witnesses, it appears from the record that the evidence of PW1 considered as material evidence. According to him, the bus was moving with high speed. However, he did not depose regarding rash and negligent driving. It is needless to say that, mere driving the vehicle in high speed cannot be construed as rash and negligent act of the driver. The Hon'ble Supreme Court in the case of State of Karnataka V/s Satish1 held in paragraph No.4 and 5 as under:
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of 1 (1998)8SCC 493
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NC: 2024:KHC-D:10540 CRL.RP No. 100074 of 2018 the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged"
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20. On careful reading the dictum of the Hon'ble Supreme Court, it makes it clear that merely because the vehicle was being driven at a "high speed" does not be speak of either "negligence or rashness" by itself.
21. In the present case, though PW1 supported the case of the prosecution in respect of the accident, he did not depose about rash and negligent act of the accused. Therefore, having considered the dictum of the Hon'ble Supreme Court, I am of the considered opinion that the trial Court should have applied its mind on the principle of the dictum of the Hon'ble Supreme Court. As it has filed to consider the same, the said order passed by the trial Court appears to be obiter dicta and it requires to be clarified and set-aside.
22. In the light of the observation made above, I proceed to pass the following:
ORDER i. The revision petition is allowed.
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CRL.RP No. 100074 of 2018
ii. The judgment of conviction and order of
sentence dated 01.07.2017 in
C.C.No.130/2016 on the file of the Civil Judge and JMFC at Shiggaon and its confirmation order dated 23.03.2018 in Crl.A.No.24/2017 on the file of the I Addl. District and Sessions Judge at Haveri are set aside.
iii. The petitioner/accused is acquitted for the offence under Sections 279, 338 and 304-A of IPC.
iv. The bail bonds executed, if any, stands cancelled.
Sd/-
JUDGE RKM CT:ANB