Gangadhar S/O Veerabhadrappa ... vs State Of Karnataka
2021 Latest Caselaw 3080 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 31ST DAY OF JULY, 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

      CRIMINAL REVISION PETITION NO.100074 OF 2020

BETWEEN
GANGADHAR
S/O VEERABHADRAPPA SUTTAKOTTI
AGE: 43 YEARS, OCC: COOLIE,
R/O: BURADIKATTI,
TQ: HIREKERUR, DIST: HAVERI.
                                            ...PETITIONER

(BY SRI. M. B. GUNDAWADE, ADVOCATE)

AND
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH HIREKERUR POLICE.
                                           ...RESPONDENT

(BY SRI. RAMESH B CHIGARI, HCGP)
      THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397
R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGEMENT
OF CONVICTION AND ORDER OF SENTENCE DATED ON
21/01/2016, PASSED IN C.C.NO.238/2011, BY SENIOR CIVIL
JUDGE AND JMFC COURT, HIREKERUR AND JUDGMENT OF
CONFIRMATION OF CONVICTION DATED 20/01/2020, PASSED
BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HAVERI (SITTING AT RANBENNUR), IN CRIMINAL APPEAL
NO.9/2016 AND TO ACQUIT THE PETITIONER/ACCUSED FOR
THE OFFENCES PUNISHABLE U/SEC.279, 337 AND 304(A) OF
INDIAN PENAL CODE.
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      THIS PETITION HAVING BEEN HEARD AND RESERVED ON
28.07.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

This revision petition is filed under Section 397 read

with Section 401 of the Code of Criminal Procedure, 1908

for setting aside the judgment of conviction passed by the

Senior Civil Judge and JMFC, Hirekerur in C.C.No.238/2011

dated 21.01.2016 confirmed by the II Additional District

and Sessions Judge in Criminal Appeal No.9/2016 vide

judgment dated 20.01.2020 and sought for acquitting him

of the charges leveled against petitioner.

2. For the sake of convenience, parties are

referred to with the original ranks occupied by them before

the Trial Court.

3. The brief facts of the case are that accused

was the driver of Mahindra Tempo bearing registration

No.KA-27/A-8129. That on 25.06.2009, he was on the way

to Jogihalli from Hamsabhavi and he was driving the

vehicle in a rash and negligent manner with 15-20

passengers on the board. After passing 1 km away from

Hadrihalli, near the land of one Sadashiva Hottegoudra, all

of a sudden the accused lost control over the vehicle

because of high speed and suddenly applied breaks and as

a result, the vehicle fell in a roadside ditch at about 3.45

p.m. Due to the said accident, the complainant and others

sustained injuries and one lady by name Puttamma

succumbed in the hospital on account of accidental

injuries. Hence, on the basis of the complaint and after

investigation, the investigating officer has submitted the

charge sheet against the accused for the offences

punishable under sections 279, 337, 338, 304-A of IPC.

After submission of the charge sheet, the learned

Magistrate took cognizance and issued summons to the

accused. Accused appeared before the Magistrate and was

enlarged on bail. The plea of the accused was recorded

wherein he pleaded not guilty. Then the prosecution has

led the evidence of 19 witnesses as PW1 to PW19 and

documents as per Ex.P1 to Ex.P20 were marked.

Thereafter, the statement of the accused under Section

313 of Cr.P.C., was recorded. Accused did not give his

explanation to the incriminating evidence appearing

against him but the case of the prosecution was totally

denied by him. He has also not led any evidence. After

hearing the arguments, the learned Magistrate has

convicted the accused for the offence punishable under

Sections 279, 337, 304-A of IPC, but acquitted him for the

offence punishable under Section 338 of IPC. The learned

Trial Court imposed sentence to pay fine for the offences

punishable under Section 279 and 337 of IPC and as

regards offence punishable under section 304-A of IPC, he

was sentenced to undergo simple imprisonment for a

period of one year and to pay fine amount of Rs.2,000/-

with default clause.

4. This judgment of conviction and order on

sentence were challenged by the accused/revision

petitioner before the II Additional District and Sessions

Judge Haveri (Sitting at Ranebennur) in Crl.Appeal

No.9/2016. The learned Sessions Judge by judgment dated

20.01.2020 dismissed the appeal by confirming the

judgment of conviction and order on sentence passed by

the Trial Court. Being aggrieved by these judgments

passed by the Courts below, the revision

petitioner/accused has filed this revision petition.

5. Heard the arguments advanced by the learned

counsel for revision petitioner and the learned HCGP for

respondent-state. Perused the records.

6. The learned counsel for petitioner would

submit that the Panchas have not supported the case of

the prosecution and the material witnesses have turned

hostile and they have not deposed regarding accused

driving the vehicle in a high speed and there is no

evidence to show that the vehicle was driven in a high

speed and hence, he would submit that the Courts below

have erred in convicting the revision petitioner. He would

further argue that the mahazar was not proved, sketch

was not produced and rash and negligent act on the part

of the accused was not established and mere accident

cannot be termed as because of rash and negligent driving

and all the injured witnesses have not supported the case

of the prosecution. He would further submit that material

witnesses were not examined and hence, would submit

that both the Courts below erred in convicting the revision

petitioner for the offences punishable under section 279,

337 and 304-A of IPC.

7. Per contra, the learned High Court Government

Pleader has vehemently contended that the accident itself

is not disputed. He would further submit that the accused

has not denied that he was the driver of the offending

vehicle which was involved in the accident and under

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

the accused to establish the fact within his knowledge but

he has not produced any material evidence and he has

also not stepped into witness box. He would further submit

that the evidence on record clearly establishes the

actionable negligence on the part of the revision petitioner

in causing accident and hence, both the Courts below are

justified in convicting the revision petitioner. Hence, he

would submit that the revision is not maintainable and

sought for dismissal of the revision.

8. The records of the Trial Court as well as the

Appellate Court are secured. I have also perused the

records in detail. After having heard the arguments and

perusing the records now the following point would arise

for consideration.

"Whether learned Magistrate and the learned Sessions Judge have erred in convicting the accused/revision petitioner for the offence punishable under Sections 279, 337, 304-A of IPC and the judgment of the Courts below suffer from infirmity and illegality so as to call for interference of this Court?"

9. It is to be noted here that the accident is not in

dispute. It is also an admitted fact that the accused was

the driver of the offending Mahindra vehicle bearing

registration No.KA-27/A-8129 on 25.06.2009 at 3.40 pm.

It is undisputed fact that the said vehicle met with an

accident near Hadrihalli of Hirekerur-Kodachigond road and

in the said accident, number of persons sustained injuries

and one lady by name Puttamma succumbed to the

injuries sustained by her in the said accident.

10. The prosecution has examined in all 19

witnesses. PW1 is the complainant and he has supported

the case of the prosecution. PW2 and PW3 are the spot

mahazar witnesses and they have turned hostile. PW4 to

15 and 17 and 18 are the injured eyewitnesses, who were

traveling in the tempo. It is to be noted here that the

tempo was carrying more than 15-20 passengers, which is

beyond the capacity. This fact is also undisputed. Number

of witnesses though deposed regarding the accident, but

they pleaded ignorance as to how the accident has

occurred. Some of the witnesses have deposed that the

accused was driving the vehicle slowly. The complainant,

PW14 and PW15 have deposed that accused was driving

the vehicle in a high speed and accident caused due to

actionable negligence on the part of the accused.

11. The learned counsel for the revision petitioner

has stressed on the point that panchas have turned hostile

and sketch is not produced, but it is to be noted here that

the accident itself is undisputed. The mahazar discloses

that at the accident spot, there is a tar road which is also

not in serious dispute. Hence, hostility of the pancha

witnesses does not have any relevancy in this regard,

when accident at relevant time and at relevant place is

admitted. The learned counsel has further argued that

there is no evidence to show that the accused was driving

the vehicle in a high speed. No doubt some of the

witnesses have deposed that accused was driving the

vehicle slowly and some of the witnesses have deposed

that he was driving it in a high speed. The perception of

the individual differs. However, the speed is not criteria for

deciding rash and negligence driving. The rash and

negligent driving has to be decided on facts and

circumstances in the given situation. In the instant

case, admittedly the vehicle was overloaded. Hence, it was

the duty of the accused to drive the vehicle cautiously as

he was carrying more than 20 passengers in the tempo.

But very interestingly during the course of cross-

examination of the complainant, a suggestion was made

that while accused was driving the vehicle slowly, a cow

came on the way and in order to negotiate it, he took the

vehicle by the side of the road and the wheel of the vehicle

ran over the ditch which resulted in toppling of the vehicle.

If at all the accused was driving the vehicle slowly, even if

a cow came in front of the vehicle, there was no need for

him to abruptly negotiate it, but he could have stopped the

vehicle immediately by applying the breaks. But it has not

happened in this case. Very interestingly accused in his

statement recorded under Section 313 of Cr.P.C., was

completely silent and except denial, he did not make any

attempt to explain as to how the accident occurred.

Section 106 of the Indian Evidence Act,1872 reads as

under;

106. Burden of proving fact especially within knowledge.--When any fact is especially within

the knowledge of any person, the burden of proving that fact is upon him.

12. Hence, the burden is on the accused to

establish as to what was the cause for the accident as it is

within his specific knowledge, but in the instant case,

accused has not made any attempt to explain the said

facts. Hence, naturally adverse inference is required to be

drawn as against him. The vehicle was moving on a public

road with number of overloaded passengers and it

suddenly overturned by the side of the road in a ditch. It is

for the accused to explain as to how it has happened and

what precautions he took to avoid the accident, but except

denial he did not make any attempt in this regard. Accused

ought to have explained as to how his moving vehicle

overturned abruptly. Admittedly, the M.V. inspection report

discloses that it is not due to a mechanical defect. Further,

the postmortem report is also undisputed and it discloses

that one Puttamma died because of the injuries sustained

by her in the accident. The other witnesses including the

complainant have sustained simple injuries. The principles

of res ipsa loquitur are directly applicable to the facts and

circumstances in case on hand as the things themselves

speak in the instant case. There is no explanation

forthcoming from the accused. The non-examination of

I.O. and other things have no relevancy as all witnesses

have specifically deposed that they were traveling in the

accident and they did not know how the accident has

occurred and cause of the accident, but being inmates of

the vehicle, the cause for the accident may not be within

their knowledge and it is for accused to explain as to how

the accident occurred, but he did not venture to explain it.

Further, the vehicle was overloaded and it disclose that

accused was driving the vehicle in a rash and negligent

manner, otherwise there was no chance of overturning a

moving vehicle suddenly. Both the courts below have

considered all these aspects and appreciated the oral and

documentary evidence in proper perspective. Further the

reasonable sentence was imposed on the accused. Under

these circumstances, it is evident that the judgment of

both the Courts below does not suffer from any illegality or

infirmity so as to call for any interference by this Court.

Both the Courts have rightly convicted the accused for the

offences punishable under Sections 279, 337 and 304-A of

IPC and imposed reasonable sentence. It does not call for

any interference. Hence, I answer the above point for

consideration in the negative and proceed to pass the

following:

ORDER

The above criminal revision petition is dismissed.

The judgment of conviction passed by the Senior Civil Judge and JMFC, Hirekerur in C.C.No.238/2011 dated 21.01.2016 and the judgment passed by the learned II Additional District and Sessions Judge in Criminal Appeal No.9/2016 dated 20.01.2020 are confirmed.

In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Send the TCR with certified copy of this order to the concerned trial court to secure the accused/revision petitioner for serving the sentence.

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JUDGE yan