Kalakappa S/O. Sangappa vs The State
2021 Latest Caselaw 3191 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 23RD DAY OF AUGUST, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL.R.P.NO.2009/2013
BETWEEN:

KALAKAPPA S/O. SANGAPPA
AGE: 52 YEARS, OCC: DRIVER
R/O. BANDIHAL VILLAGE, YALABURGA, DIST: KOPPAL
                                           ...PETITIONER
(BY SRI.UMESH HAKKARAKI, ADV. FOR
    SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV.)

AND:

THE STATE
BY SUB INSPECTOR OF POLICE,
H. B.HALLI POLICE STATION,
H. B. HALLI, AND ALSO
R/BY STATE PUBLIC PROSECUTOR,
 CIRCUIT BENCH, DHARWAD.
                                           ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION U/SEC. 397 R/W 401 OF CR.P.C. IS SEEKING TO SET
ASIDE THE JUDGMENT AND CONVICTION DATED 19.12.2012 IN
CRIMINAL APPEAL NO.133/2012 PASSED BY THE FAST TRACK
COURT-III, HOSPET AND CONSEQUENTLY ACQUIT THE
PETITIONER BY SETTING ASIDE THE JUDGMENT AND
CONVICTION DATED 06.10.2012 PASSED BY THE CIVIL JUDGE
AND JMFC, HAGARIBOMANAHALLI IN C.C.NO.13/2012.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 16.08.2021 COMING
ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:
                                  2




                               ORDER

The accused/revision petitioner has filed this criminal

revision petition seeking to set aside the judgment dated

19.12.2012 passed by the Fast Track Court-III, Hospet in

Crl.A.No.133/2012 confirming the judgment of conviction

and order of sentence dated 06.10.2012 passed by the

Civil Judge and JMFC, Hagaribommanahalli in

C.C.No.13/2012.

2. Brief facts leading to the case are that, on

16.08.2011 at about 5.15 p.m., the deceased Teverappa,

aged about 14 years was returning to his house from the

Church school on his bicycle and the accused being the

driver of Nandini Milk lorry bearing Reg.No.KA-35/A-3761

drove it in a rash and negligent manner endangering

human life and public safety and dashed to the bicycle.

Due to impact, the rider of the bicycle fell on the ground

and sustained grievous injuries. He was shifted to

Government Hospital, H.B.Halli and later shifted to

C.G.Hospital, Davanagere, but he succumbed because of

the accidental injuries on 25.08.2011. On the basis of the

complaint, the case was registered in crime No.92/2011 of

H.B.Halli police station. After investigation, the

investigating officer has submitted the charge sheet for the

offences punishable under Sections 279 and 304(A) of IPC.

The learned Magistrate has taken cognizance of the

offence and issued process to the accused. The accused

appeared and was enlarged on bail. The accusation under

Section 279 and 304(A) of IPC was read over and

explained to him. The accused pleaded not guilty. Then the

prosecution has examined in all 13 witnesses and got

marked 9 documents, in order to bring home the guilt of

the accused. Thereafter, the statement of the accused

under Section 313 of Cr.P.C. was recorded to enable him

to explain the incriminating evidence appearing against

him in the case of the prosecution. The case of the accused

is of total denial.

3. Having heard the arguments and appreciating

the evidence on record, the learned Magistrate has

convicted the accused for the offence punishable under

Sections 279 and 304(A) of IPC. He has imposed fine of

Rs.1,000/- for the offence punishable under Section 279 of

IPC and sentenced him to undergo simple imprisonment

for a period of one year and to pay fine of Rs.500/- for the

offence punishable under Section 304(A) of IPC. This

judgment came to be challenged before the Fast Track

Court-III, Hospet in Crl.A.No.133/2012. The learned

Sessions Judge by judgment dated 19.12.2012 dismissed

the appeal by confirming the judgment of conviction and

order of sentence passed by the trial court. Being

aggrieved by the concurrent findings, the accused has filed

this criminal revision petition.

4. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned High Court

Government Pleader for the respondent. The trial court

records are secured and I have perused them in detail.

5. Learned counsel for the revision petitioner

would contend that the judgment of conviction of both the

courts below is opposed to the facts and evidence on

record. That the judgment is wholly unsustainable as it is

against the materials placed on record. He further contend

that there is no evidence to show that revision

petitioner/accused was negligent in driving the vehicle and

no convincing evidence is placed in this regard. That the

evidence discloses that there is a curve at the accident

spot and that the lorry dashed to the rear side of the

bicycle and the same is clearly establish that the deceased

himself was negligent. It is further contended that the

deceased was hearing a song and riding the bicycle, as a

result, he lost control and dashed to the rear wheel of the

lorry and for that, the revision petitioner/accused cannot

be made to suffer for the negligence on the part of the

deceased. For these amongst other grounds, it is prayed

for setting aside the judgment of conviction passed by

both the courts below and acquit the accused/revision

petitioner.

6. Per contra, learned HCGP has supported the

judgment of conviction passed by the courts below and

specifically asserted that the evidence discloses that the

lorry dashed to the bicycle and it has resulted in the

accident. He would also contend that the evidence of eye-

witnesses does support the case of the prosecution and the

accused has not denied that he was driver of the lorry and

the death is also undisputed. Hence, he would contend

that the evidence on record clearly establish actionable

negligence on the part of the revision petitioner/accused

and both the courts below have appreciated the oral and

documentary evidence in detail and arrived at a just

decision. Hence, he would contend that the said judgments

of the courts below do not call for any interference. Hence,

he sought for rejection of the revision petition.

7. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

Whether both the courts below have erred in convicting the accused/revision petitioner for the offences punishable under Sections 279 and 304(A) of IPC and the judgment of conviction and order of sentence suffers from serious illegality and perversity so as to call for interference by this court?

8. It is not in dispute that the accident had

occurred on 16.08.2011 at 5.15 p.m. In the said accident,

the brother of the complainant Teverappa aged about 14

years sustained injures and succumbed because of the

injuries. It is also not under serious dispute that the

accused was the driver of the offending vehicle. Both the

courts below on the basis of the evidence of P.Ws.1, 3, 5

and 6 have come to the conclusion that the prosecution

has discharged the burden. P.Ws.1 and 2 are the spot and

inquest mahazar witnesses and their evidence does not

help the prosecution in any way. P.W.3 is the complainant

and brother of the deceased. According to him, while his

brother was returning home on his bicycle, the lorry

dashed to him from back side. Further, his evidence

discloses that he got this information from Kotrashi. The

complaint is marked at Ex.P3. The evidence of the

complainant P.W.3 as well as complaint Ex.P3 clearly

establish that the complainant is not an eye-witness.

Further, admittedly, he rushed to the spot immediately

after the accident and according to him, he got the

information from Kotreshi, i.e., P.W.5. However, he was

specific that the lorry dashed to the bicycle of his brother

from back side. If at all the lorry has hit the bicycle from

the back side, then definitely the victim would have been

thrown in front of the lorry and the bicycle would have also

thrown in front of the lorry. In that event, the front wheel

of the lorry should have run over on the bicycle or the

victim. But in the instant case, the allegations of the

prosecution itself disclose that the deceased came beneath

the left rear wheel of the lorry and that is required to be

explained by the prosecution. In this regard, the evidence

of P.W.5 is relevant.

9. P.W.5 in his evidence deposed that on

16.08.2011 evening at 5.15 p.m., when he and Krisnhappa

were proceeding near church school, the deceased was

coming on a bicycle and the lorry came in a high speed

and after crossing the speed breaker, it hit on the left side

of the bicycle. If the lorry hit on the left side of the bicycle,

then the bicycle should fall on the right side of the lorry.

But the sketch as well as photographs discloses that the

deceased fell on the left side of the lorry near rear wheel.

It is not the case of the prosecution that bicycle came from

opposite direction and lorry dashed on the left side. If the

bicycle was moving in the same direction and the lorry

following the bicycle, the lorry cannot hit the bicycle on the

left side, but it can only hit on the right side of the bicycle,

when the bicycle was moving in the same direction. This

anomaly is not explained by the prosecution.

10. P.W.6 who also claims to be an eye-witness

has simply deposed that lorry came from Harapanahalli

and moving towards H.B.Halli and dashed to the bicycle.

But the evidence of P.W.5 disclose that it was hit on the

left side of bicycle. But photographs produced at Exs.P7

and P8 disclose that bicycle was found on the left rear

wheel of the lorry. Further, the lorry did not run over the

bicycle and very interestingly, there is no evidence as to

what damage was caused to the bicycle. The entire

prosecution story is silent in this regard. The IMV report

disclose that there was no damage to the lorry and Motor

Vehicle Inspector also clarified that if there is an accident

between light vehicle with heavy vehicle, the damage to

the heavy vehicle may not be visible. But, since the bicycle

was thrown out, there should have been some damage to

the bicycle and whether it was on the right side or left side

is required to be ascertained. It is not the case of the

prosecution that bicycle was coming from opposite end to

the lorry and no such case is made out by the prosecution.

11. Further, on perusal of the scene of offence and

photographs Ex.P8, it is also evident that there is sufficient

space on the left side of the lorry and all these aspects are

required to be explained by the eye-witnesses, but no

attempt has been made. Even the bicycle was not

submitted for motor vehicle inspection to ascertain the

damages to the bicycle. It is an admitted fact that

deceased came under left rear wheel of the lorry. If he is

proceeding on the bicycle and in that event, the lorry

hitting the left side of the bicycle does not arise at all. At

the most the lorry can touch the bicycle that too only on

the right side, when both bicycle and lorry were proceeding

in a same direction. All these aspects were not at all

explained by the prosecution and only on the evidence of

P.Ws.3, 5 and 6, the courts below proceeded to convict the

accused/revision petitioner. But the evidence in this regard

is not convincing.

12. Both the courts have relied on the maxima res

ipsa loquitur, but when the factual aspects does not

establish and give clear picture, the maxima res ipsa

loquitur cannot be made applicable. In this regard, learned

counsel for the revision petitioner has placed reliance on

the decision of the Hon'ble Apex Court in the case of State

of Karnataka Vs Satish reported in (1998) 8 SCC 493.

He has also placed reliance on the decision of the Hon'ble

Apex Court in the case of Syad Akbar Vs State of

Karnataka reported in (1980) 1 SCC 30. It is evident

that in view of the principles enunciated in the above cited

decisions, the doctrine res ipsa loquitur cannot be applied

directly unless there is proof of negligence. Further, the

speed is not the criteria for deciding the negligence. The

rash and negligent has got a different attitude and it

depends on the individual case. Mis-judgment and

negligence does not go together, as observed by the

Hon'ble Apex Court.

13. Further, in the instant case, provisions of

Section 106 of the Evidence Act also cannot be made

applicable, as the accident is not occurred in front of the

driver of the lorry and he did not hit on the bicycle from

back side as evident from the records. When the deceased

came under the left rear wheel, it is for the prosecution to

explain as to how the actual accident has occurred. Unless

the prosecution discharges its burden in this regard, the

burden cannot be shifted on the accused to explain the

facts within his knowledge. The evidence of P.Ws.5 and 6

does not conclusively establish the rash and negligent

driving on the part of the accused.

14. The learned counsel for the revision

petitioner/accused further placed reliance on the decision

of the Hon'ble Apex Court in the case of Sawal Das Vs

State of Bihar reported in (1974) 4 SCC 193. But the

facts and circumstances are entirely different. However,

the principles under Section 106 of the Evidence Act can

be made applicable in this case, as in the instant case, no

material evidence is placed to prove the rashness on the

part of the driver. Both the courts below have carried away

with the maxima res ipsa loquitur and only on the basis of

the evidence of P.Ws.5 and 6 proceeded to convict the

accused without properly analyzing and visualizing the

accident. If the prosecution story is accepted, it is

impossible to visualize as to how the rear wheel of the

lorry hit the bicycle that too on the left side when they

were proceeding in the same direction. Under these

circumstances, both the courts below have committed an

error in holding that the accused has committed the

offences and convicting him for the offences punishable

under Sections 279 and 304(A) of IPC. The discrepancy in

the evidence of P.Ws.3, 5 and 6 are not considered and

they are not minor contradictions, as they go to the very

root of the accident, so as to visualize the accident. Both

the courts below have failed to advertise this aspect by

appreciating the evidence in proper perspective. The mere

death and involvement of lorry does not mean that

actionable negligence is on the part of the driver of the

offending vehicle and there is no material evidence in this

regard. As such, the accused/revision petitioner is entitled

for acquittal from the accusation for the offences

punishable under Sections 279 and 304(A) of IPC. Hence,

both the courts below erred in convicting the accused and

the judgment of conviction and order of sentence of courts

below suffer from illegality and perversity. Hence, it calls

for interference and accordingly, I answer point under

consideration in the affirmative and I proceed to pass the

following:

ORDER

The criminal revision petition is allowed.

The judgment dated 19.12.2012 passed by the Fast

Track Court-III, Hospet in Crl.A.No.133/2012 confirming

the judgment of conviction and order of sentence dated

06.10.2012 passed by the Civil Judge and JMFC,

Hagaribommanahalli in C.C.No.13/2012 is set aside.

The accused/revision petitioner is acquitted of the

offences charged against him.

Sd/-

JUDGE

MBS/-