Mahantesh Dundayya Yadavadmath vs State Of Karnataka
2021 Latest Caselaw 978 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF JANUARY 2021

                             BEFORE

  THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.963 OF 2011

BETWEEN:

Mahantesh Dundayya Yadavadmath
S/o. Dundayya,
Aged about 38 years,
Working as Driver,
Token 11825
25th Dept. HSR Layout,
Agra-Bangalore
R/o. Itagi Grama, Itagi Post,
Khanapur Taluk, Belgaum District.
                                                    ..Petitioner
(By Sri. M.V. Hiremath, Advocate)

AND:

State of Karnataka
Represented by Chamarajpet Traffic
Police Station,
Bangalore.
                                                .. Respondent
(By Smt. K.P. Yashodha, High Court Govt. Pleader)

                                   ****
     This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the judgment
dated 27-07-2011 in Crl.A.No.212/2009 passed by the City Fast
                                                   Crl.R.P.No.963/2011
                                    2


Track (Sessions)Judge, Bangalore City (F.T.C.No.VII); and set aside
the judgment dated 25-02-2009 in C.C.No.489/2007, passed by the
Court of Metropolitan Magistrate, Traffic Court-II, Bangalore, etc.

      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:

                            ORDER

The present petitioner was tried as an accused by the Court of

the Metropolitan Magistrate, Traffic Court-II, Bangalore,

(hereinafter for brevity referred to as the "Trial Court") in

C.C.NO.489/2007, for the offences punishable under Sections 279

and 304-A of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as the "IPC") and was convicted by the judgment of

conviction and order on sentence dated 25-02-2009.

Aggrieved by the same, the accused preferred an appeal in

Criminal Appeal No.212/2009 in the Court of the City Fast Track

(Sessions) Judge, Bangalore City (F.T.C.No.VII) (hereinafter for

brevity referred to as the "Sessions Judge's Court"), which after

hearing both side dismissed the appeal filed by the accused by its

judgment dated 27-07-2011. Not satisfied with the same, the

accused has preferred the present revision petition.

Crl.R.P.No.963/2011

2. The summary of the case of the prosecution is that on

11-01-2007, when the complainant (PW-1) was on duty from

2:00 p.m. to 10:00 p.m., near Victoria Hospital at K.R. Point, within

the limits of the respondent - Police Station, at about 7:30 p.m.,

the present accused driving the Volvo Bus bearing registration

No.KA-01/F-1939, violating the traffic signal given by the

complainant to stop the Bus, rushed ahead and passed on a

pedestrian, who was crossing the road from east to west direction.

Due to the said rash and negligent driving of the Bus driver, it

dashed to the pedestrian who fell down and the right front wheel of

the Bus ran over him crushing his head, due to which injuries, the

pedestrian succumbed to the injuries in the spot. Thus, it was

alleged in the charge sheet that the accused has committed an

offence punishable under Sections 279 and 304-A of the IPC.

3. The respondent - State is being represented by the

learned High Court Government Pleader.

4. The Trial Court and the Sessions Judge's Court's records

were called for and the same are placed before this Court.

Crl.R.P.No.963/2011

5. Heard the arguments from both side. Perused the materials

placed before this Court including the Trial Court and Sessions

Judge's Court's records.

6. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial Court.

7. After hearing the learned counsels for the parties, the only

point that arise for my consideration in this revision petition is:

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 279 and 304-A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

8. The learned counsel for the petitioner in his argument

submitted that he would dispute the very occurrence of the road

traffic accident on the date, time and place alleged in the charge

sheet and the prosecution case is not believable for the reason that

it has not examined any independent witnesses. He submits that

the rough sketch at Ex.P-8 does not show the existence of any

zebra crossing in the spot of the accident. With this, he submits

that the prosecution has utterly failed to prove the case against the Crl.R.P.No.963/2011

accused including the alleged rash and negligent driving of the

alleged vehicle by the accused. However, learned counsel fairly

submits that he concedes that as on the date of accident and at the

time of accident, the present petitioner was driving the said Bus

bearing registration No.KA-01/F-1939, which Bus belongs to the

Bangalore Metropolitan Transport Corporation (BMTC).

9. In order to prove the charges leveled against the accused,

the prosecution got examined five witnesses from PWs 1 to 5 and

got marked documents from Exs.P1- P-10(a). From the accused's

side, neither any witness was examined nor any document was

marked as Exhibits.

10. The prosecution witnesses, who speak about the

occurrence of the alleged accident are only two, i.e. PW-2 and

PW-3. PW-2 - R. Manjunath is a Police Constable and PW -3 -

Jagannath is a Police Head Constable, both of whom have stated

that as on the date and at the time of accident, both of them were

on duty in the spot where the accident has taken place which is

called as 'K.R. Point' near Victoria Hospital within the limits of Crl.R.P.No.963/2011

respondent Police Station. Both these witnesses have uniformly

stated that, at about 7:30 p.m., on 11-01-2007, while they were on

duty at the said 'K.R. Point', the present accused - driver of the

BMTC Bus bearing registration No.KA-01/F-1939 drove it in a rash

and negligent manner from south to north direction and jumping

the police signal, dashed to a pedestrian who was crossing the road

and caused fatal injuries upon him, due to which injuries, the

pedestrian died on the spot.

11. PW-2 has further stated that it was him who, being the

Police Constable on duty, had given a stop signal and had allowed

the pedestrians to cross the road from east to west and it was at

that time, the accused, driving the said BMTC Bus bearing

registration No.KA-01/F-1939, without stopping the vehicle and

neglecting the traffic signal shown to him, rushed the Bus forward

which dashed and struck down the pedestrian who was aged about

50 to 55 years, on the floor and the pedestrian was ran over by the

right front wheel of the said Bus, due to which the pedestrian

sustained injuries and succumbed to it on the spot. He has also

stated that he informed the same through wireless and also gave a Crl.R.P.No.963/2011

written complaint in that regard as per Ex.P-2. He further says that

thereafter, the Investigating Officer, summoning the panchas to the

spot, came to the spot and drew a scene of offence panchanama as

per Ex.P-3. The denial suggestions were made to this witness in his

cross-examination. However, he has not admitted those denial

suggestions as true. On the other hand, he has given some more

details as to the traffic gathering in the spot at the time of accident

and made it clear that there was effective control of the traffic of

the vehicles, but still, the accused was negligent by violating the

traffic signal given to him. He has reiterated that he had given a

stop signal for the vehicles to enable the pedestrians to cross the

road, as such, there was a clearance for the deceased to cross the

road.

12. The evidence of PW-3 is also in consonance with the

evidence of PW-2, who also has, in unequivocal terms stated that, it

was the accused who violated the traffic signal given by PW-2 and

ran the Bus over the deceased pedestrian for which, he was an

eye witness. Both these witnesses have identified the accused in

the Court, stating that it was the very same accused who was Crl.R.P.No.963/2011

driving the Volvo Bus bearing registration No.KA-01/F-1939 at the

time of accident.

13. PW-1 - the Doctor has stated that, he conducted post-

mortem examination on the body of the deceased and has given his

report as per Ex.P-1. He has opined that the injuries found on the

deceased may result in Road Traffic Accident, when vehicle runs

over a victim.

14. PW-4 - a Traffic Controller with BMTC has stated that he

has given a written reply to the Investigation Officer as per Ex.P-4,

confirming that as on the date of accident, it was the accused who

was the driver of the Bus bearing registration No.KA-01/F-1939

which was involved in the accident.

15. PW-5 - the Investigating Officer who has stated that

after registering a crime at the instance of PW-2, he has submitted

an FIR to the Court and proceeding to the spot, drew a scene of

offence panchanama in the presence of the panchas as per Ex.P-3

and also prepared a rough sketch as per Ex.P-8 and recorded the

statements of CWs 2 to 5 and gathered the information about the Crl.R.P.No.963/2011

identity and details of the deceased and also collected the

statement as per Ex.P-4 from PW-4 and got the post mortem

examination of the deceased body done and also drew the scene of

offence sketch as per Ex.P-8 and concluding the investigation has

filed the charge sheet against the accused. The denial suggestions

made to him in the cross-examination were not admitted as true by

him. However, he has stated in his cross-examination that he has

not recorded the statement of the passengers of the Bus, but gave

a reason stating that none of the passengers were available at that

time, as such, he could not record the statement of any of the

passengers.

16. When the above evidence of the prosecution witnesses

are perused, it is clear that PW-2, PW-3 though they are the official

witnesses, but their presence in the spot is not suspectable for the

reason that both of them have stated that they were deputed to

discharge their duty as Police Officers in the spot of the accident, as

such, their presence in the spot at the time of accident is

believable. It is not denied in their cross-examination that they

were not on duty on the spot of the accident at the time of Crl.R.P.No.963/2011

accident. PW-2 specifically and categorically stated that being a

policeman on duty, he had given a stop signal, stopping the other

vehicles on the road at 'K.R.Point', however, the present accused

who was driving the BMTC Bus bearing registration No.KA-01/

F-1939 did not obey his signal, but proceeded further only to run

over the deceased pedestrian who was crossing the road. The said

witness has specifically stated that by giving a stop signal to the

motor vehicles, he had allowed the pedestrians to cross the road.

Therefore, when PW-2, as a policeman on duty himself has stated

that, he had given a stop signal only to enable the pedestrians to

cross the road and pedestrians were crossing the road, it is not

necessary to expect a zebra marking on the said point of the road.

Therefore, the argument of the learned counsel for the petitioner

that the non-mentioning of zebra crossing in Ex.P-8 is fatal to the

case of the prosecution, is not acceptable nor it could be an excuse

for the driver of any motor vehicle to disobey the traffic signal

given by PW-2.

17. The evidence of PW-3 which is also in consonance with

the evidence of PW-2 further corroborates the evidence of PW-2 Crl.R.P.No.963/2011

that it was accused and accused alone who has caused the road

traffic accident by violating the traffic signal and moving the heavy

vehicle on the pedestrian who was crossing the zebra crossing.

No doubt, in that public place, which is admittedly a busy

area in the heart of the city, there would be availability of number

of independent witnesses or the nearby shop owners, or

businessmen whose statement the Investigating Officer could have

obtained. But non-recording of the statements of those other

witnesses who could have been found in the spot itself would not

make the case of the prosecution a suspectable one, that too, when

the presence of PW-2 and PW-3, as Police Officers on duty could not

be suspected. Therefore, merely because the independent

witnesses were not examined, the evidence of PW-2 and PW-3

which otherwise also satisfies the Court about their presence and

narration of the incident, cannot be doubted or disbelieved or

discarded. Therefore, the argument of the learned counsel for the

revision petitioner that no independent witnesses were examined is

also not convincing and acceptable.

Crl.R.P.No.963/2011

18. The evidence given by PW-2 and PW-3 that, the Bus was

being driven by the present accused and he was driving it in a rash

and negligent manner and did not stop the Bus, despite the signal

being given by PW-2, would clearly go to show that his driving

must be rash and negligent. Though the petitioner contends that in

that busy area, no vehicle can move with a high speed, but speed

alone is not a criteria to decide the rash and negligent driving.

There can be rashness and negligence in driving a vehicle, even in

the absence of a high speed. Non-stopping of a vehicle, despite a

specific signal to stop was given in a busy commercial area, though

other vehicles had stopped, ipso facto show that, the driver was

negligent and rash in his driving.

In the instant case, the evidence of PW-2 and PW-3 would go

to show that, despite a specific signal to stop being given by PW-2,

the accused drove the Bus, violating the traffic signal and

proceeded further which resulted in the said Bus running over the

deceased pedestrian. This act can happen only because of the rash

and negligent driving of the vehicle and not otherwise. As such, the

last leg of argument of the learned counsel for the petitioner that Crl.R.P.No.963/2011

there was no rash and negligent driving on the part of the

petitioner/accused, is also not acceptable.

19. The evidence of PW-1 (Doctor) which has remained

undisputed on many aspects also would go to show that, he has

conducted autopsy on the body of the deceased, which deceased

was identified as one Sri. Param Shivan, a male, aged about 50

years. The Doctor has noticed compression of the head from side

to side with laceration measuring 17 cm. x 7 cm. x cavity deep over

frontal, right parietal region, underlying facial and skull bones with

multiple fracture of the internal bones. He has also noticed

laceration measuring 7 cm. x 3 cm. x cavity deep over left parietal

region with underlying bone fractured. He has observed that both

facial and skull bones were found fractured, irregular and at

multiple points. Apart from these, he has also found various other

injuries including fracture of the pelvis bone on both sides. He has

opined that the death of the deceased was due to shock and

haemorrhage, as a result of multiple injuries sustained. The

witness has opined that those multiple injuries could be caused in a

road traffic accident. More importantly, as already observed above, Crl.R.P.No.963/2011

both PW-2 and PW-3 have stated that they are the eye witnesses to

the accident and that the injuries found on the deceased were

caused in the said road traffic accident caused by the present

accused. Therefore, the death of the deceased Param Shivan is

proved to be a death in a road traffic accident and which accident

was caused due to the rash and negligent driving of the Bus by the

accused. As such, the death of deceased Param Shivan was an act

of killing a person by negligent act.

20. Since both the Trial Court as well the Sessions Judge's

Court, after due appreciation of the evidence in their proper

perspective, have arrived at the very same conclusion, holding the

accused guilty of both the charges, I do not find any illegality,

irregularity or perversity in the same.

21. So far as the order on sentence is concerned, since the

sentence ordered is also proportionate to the gravity of the proven

guilt, I do not find any reason to interfere in it.

Accordingly, I proceed to pass the following:

Crl.R.P.No.963/2011

ORDER

The Criminal Revision Petition stands dismissed as

devoid of merits.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*