Showkathali S/O. Alabakshsab ... vs The State Of Karnataka
2021 Latest Caselaw 3097 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 3RD DAY OF AUGUST, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL REVISION PETITION NO. 2263/2012

BETWEEN:

SHOWKATHALI
S/O. ALABAKSHSAB GANGAPUR
AGE: 31 YEARS
OCC: DRIVER
R/O. RATTIHALLI,
HIREKERUR TALUK
HAVERI DISTRICT
                                             ...PETITIONER
(BY SRI.N.P. VIVEKMEHTA, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY ADDL. PUBLIC PROSECUTOR
HIGH COURT CIRCUIT BENCH BUIDLING
DHARWAD
                                          ...RESPONDENT
(BY SRI.RAMESH B. CHIGARI, HCGP)


     THIS CRIMIANL REVISION PETITION IS FILED UNDER
SECTION 397 (1) OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF DISTRICT AND SESSIONS JUDGE,
UTTARA KANNADA, KARWAR, DATED 29.08.2012 PASSED IN
CRL.A NO.95/2011 AND THE JUDGMENT AND ORDER OF THE
JMFC, YELLAPUR, DATED 27.06.2011 PASSED IN C.C.
NO.17/2011 AND ACQUIT THE ACCUSED.

     THIS CRIMINAL REVISION  PETITION   HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 30.07.2021, COMING
ON FOR 'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:
                                   2



                                ORDER

The petitioner has filed this petition under Section

397(1) read with 401 of Cr.P.C. for setting aside the

judgment and order dated 29.08.2012 passed by the

District and Sessions Judge, Uttara Kannada, Karwar in

Criminal Appeal No.95/2011 and the judgment and order

dated 27.06.2011 passed by the JMFC, Yellapur in CC

No.17/2011 and to acquit the accused by allowing the

revision.

2. For the sake of convenience, the parties herein

are referred as per the original rankings occupied by them

before the trial Court.

3. The factual matrix leading to this case is that,

the accused was the driver of the lorry bearing

No.KA.31/4725. It is alleged that, on 30.11.2010 at about

7.00 p.m., on NH-63 near Arabail Ghat within the

jurisdiction of Yellapur Police Station, the

petitioner/accused drove the lorry in a rash and negligent

manner and dashed to a road side tree on losing control

over the lorry. It is further alleged that, after hitting to the

tree, the lorry did not come to halt and it again went ahead

and gone inside a petty shop-cum-house adjacent to the

tree. As a result, one Krishna Narayan Bandi, who was

present in the petty shop died on the spot and other two

witnesses have sustained injuries. It is also alleged that,

after causing the accident, the accused fled from the spot

and injured have been admitted to the hospital. The

complainant set the law in motion by lodging a complaint.

The Investigating Officer investigated the case and

submitted the charge sheet against the petitioner/accused

for the offences punishable under Sections 279, 337 and

304-A of IPC and also under Section 187 as well as 196 of

the Indian Motor Vehicles Act ( for short, 'MV Act').

Thereafter, the trial was conducted before the learned

Magistrate and eight witnesses have been examined as

PW. 1 to PW.8 and twelve documents were marked as per

Ex.P1 to Ex.P12.

`

4. After hearing the learned counsels appearing on

both sides and also considering the oral and documentary

evidence placed on record, the learned Magistrate by

judgment dated 27.06.2011 convicted the accused for the

offences punishable under Sections 279, 337 and 304(A) of

IPC and Section 187 of the MV Act. Being aggrieved by this

judgment of conviction, the petitioner/accused has filed

Criminal Appeal No.95/2011 before the learned District and

Sessions Judge, Uttara Kannada, Karwar District. The

learned Sessions Judge by judgment dated 29.08.2012

dismissed the appeal by confirming the judgment of

conviction passed by the learned Magistrate. Being

aggrieved by the judgment of conviction passed by the

learned Sessions Judge, the petitioner/accused has

approached this Court.

5. Heard the arguments advanced by the learned

counsel for the petitioner and the learned High Court

Government Pleader ( for short, 'HCGP') appearing for the

respondent-State, at length. Perused the records.

6. Learned counsel for the petitioner/accused

would argue that the road where the accident occurrred is

down-gradient and a banking road, whereon the accident

has taken place while the accused was negotiating the

curve and lost control over the lorry, as the lorry was

loaded with paddy. He would further contend that, there is

no nexus between the rash and negligent driving and the

alleged death and as such, the ingredients of Section 304-A

of IPC are not attracted. He would further submit that due

to centrifugal/centripetal force the accident has occurred

and it is only due to error of judgment and hence, Section

304(A) of IPC cannot be made applicable. Hence, he would

request for allowing the revision by setting aside the

impugned judgments passed by the courts below.

7. Per contra, the learned HCGP has seriously

contested the matter contending that there are eye-

witnesses to the incident, who have specifically deposed

against the petitioner/accused and the accident is

undisputed; that the death, involvement of the offending

vehicle and the accused being the driver, are also

undisputed. The accused is required to explain as to under

what circumstances, the accident has occurred as

contemplated under Section 106 of the Indian Evidence Act,

1982. But, his case is of simply total denial and hence,

adverse inference is required to be drawn. He would

further submit that the accident is not because of any

mechanical defect and such being the case, the accused

being the driver, has not taken reasonable care at the time

of driving the vehicle. Hence, he would submit that there is

material evidence and both the courts below have

appreciated the evidence on detailed consideration of the

evidence and hence, he would seek for rejection of the

revision petition.

8. Having heard the arguments advanced by the

learned counsels appearing for the parties on both sides

and on perusing the records, it is evident that the accused

was the driver of the offending vehicle. Further, it is an

undisputed fact that, on 30.11.2020 at 7.00 p.m. the lorry

driven by the accused first hit a tree on the road side and

thereafter hit a petty shop-cum-house of the deceased and

caused death of the deceased and caused injuries to other

two persons Now, in this revision, the only ground

urged is regarding actionable negligence on the part of the

accused so as to attract the ingredients of Section 304-A of

IPC.

9. Both the Courts below have appreciated the

evidence led by the prosecution in detail. PW.1 is an eye-

witness as well as the complainant, and he also sustained

injuries. PW.2 is the wife of the deceased and she has also

sustained injuries and she deposed regarding the alleged

accident. PWs. 3, 4 and 7 have also supported the

prosecution case. Both the courts below have appreciated

the evidence recorded before the trail Court, in detail.

10. Exs. P11 and P12 are the photographs of the

accident spot, which disclose that there is a curve at the

accident spot. But, at the same time, it also discloses that

the nature, gravity and impact that has been caused, due

to the accident. Admittedly, the lorry was moving from

Yellapur to Ankola side and it has first dashed against a tree

on the right side of the road and thereafter dashed to the

shop-cum-house of the deceased. The photographs are not

under dispute and the road where the accident occurred

was also having sufficient width. It is also evident that the

said road is down-gradient and hence, the accused was

required to drive the vehicle cautiously and further as he

was supposed to negotiate the curve slowly. The concept of

centrifugal and centripetal force has no relevancy, as the

petitioner/accused moved vehicle in question on the right

side and unable to control it. Further, what was the cause

for the accident, is only within the knowledge of the

accused. But, interestingly the accused had not set-up any

specific defence and his case is of simple denial. When

accident is admitted, the burden is on the accused to

explain the facts within his knowledge as contemplated

under Section 106 of the Indian Evidence Act. But the

accused has not made any efforts to explain as to under

what circumstances, the accident has occurred. The

accused being a professional driver, should have taken

proper care and caution while negotiating the curve, but

that is not forthcoming.

11. Learned counsel for the petitioner would

contend that the ingredients of Section 304-A are not

attracted. He would argue that the death is not as a direct

result of the accident, as the lorry first hit the tree and

since there was a ditch, it fell in the ditch. In support of his

argument, he has relied on a decision reported in (1965) 2

SCR 622 (Kurban Hussein Mohamedalli Rangawalla

Vs. State of Maharashtra). The facts and circumstances

in the said are entirely different, as in the said case, the

accident has occurred in the factory and seven workers died

because of presence of heap of varnish and turpentine

which were stored in the factory at a little distance, which

caught fire. That case was considered under Section under

Section 285 of IPC. But in the instant case, it is the act

of the accused, who has not taken minimum precautions

while driving the vehicle and hence, the principles

enunciated in the above cited decision cannot be made

applicable to the case in hand. The arguments advanced by

the learned counsel for the petitioner that, 'the death is not

a consequential result of the accident', cannot be accepted

at any stretch of imagination.

12. On the contrary, the learned HCGP in support of

his contentions, has placed reliance on a decision reported

in (2012) 9 SCC 284 ( Ravikapur Vs. State of

Rajasthan), wherein it is clearly observed that the rash

and negligence can be inferred from the attending

circumstances and doctrine of res ipso loquitur (thing

speaks for itself). In the instant case, the documents-

Exs.P11 and P12 themselves establish the rashness on the

part of the petitioner/accused. The principal of reasonable

care and concept of culpable rashness and culpable

negligence are also applicable to the case in hand. In the

instant case, the accused has not taken any reasonable

care while driving the vehicle and his negligence has

resulted in death of the deceased and causing of injuries to

other two witnesses. Hence, the above said principles are

directly applicable to the case in hand. The evidence of

witnesses and the documents produced before the trial

Court clearly establish that it is a case of rash and negligent

driving on the part of the petitioner/accused and he lost

control over the lorry in question, which has resulted in the

accident in question. Further, the accused has not

attempted to give any explanation as required under

Section 106 of the Indian Evidence Act, as the burden is on

him to prove the facts within his knowledge and in the

absence of the same, an adverse inference is required to be

drawn against him. Further, no mitigating circumstances

are forthcoming to reduce the sentence ordered by the

learned Magistrate and confirmed by the appellate Court.

Hence, the evidence placed on record clearly establish that

the prosecution is able to prove all the ingredients of the

offences alleged and both the Courts below ie., the learned

Magistrate and the learned Sessions Judge have rightly

appreciated the evidence and passed the impugned

judgments. Therefore, the judgments passed by the Courts

below do not suffer from any infirmity or illegality so as to

call for any interference by this Court. Hence this revision

petition is devoid of any merits and needs to be dismissed.

Accordingly, I proceed to pass the following:-

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

KGR*