Vijaya vs State Of Karnataka By
2021 Latest Caselaw 2243 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JUNE 2021

                           BEFORE

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

   CRIMINAL REVISION PETITION No.364 OF 2018

BETWEEN:

Vijaya,
S/o. Shivakumar,
Aged about 40 years,
R/o Hannur, Kaudahalli Village,
Koilegal Taluk,
Chamarajanagar District-571 440.                 .. Petitioner

 ( By Smt.Archana K.M., Amicus Curiae)

AND:

State of Karnataka
By Station House Officer,
Bangalore City Railway Station,
Bangalore-560 009.                             .. Respondent

 ( By Smt. K.P.Yashodha, HCGP )

       This Criminal Revision Petition is filed under Section
401 (1) of Cr.P.C. praying to set aside the judgment and
conviction of the petitioner passed in C.C.No.550/2006 on
06.06.2015, on the file of Prl.Civil Judge and JMFC, Ramanagara
and that of the judgment and conviction passed in Crl.Appeal
No.16/2015, dated 05.02.2018, on the file of I Addl.District and
Sessions Judge, Ramanagara and acquit the petitioner from the
accusation for the offences punishable under Sections 279, 337,
338, 427 and 304A of IPC and to allow the Criminal Revision
Petition.
                                              Crl.R.P.No.364/2018
                                 2


     This Criminal Revision Petition having been heard through
Video Conferencing Heading and reserved for orders on
10.06.2021, coming on for pronouncement this day, the Court
made the following:

                              ORDER

The present petitioner was tried as accused by the Court of

learned Prl.Civil Judge & J.M.F.C., Ramanagara, (hereinafter for

brevity referred to as the `trial Court') in C.C.No.550/2006, for

the offences punishable under Sections 279. 337. 338. 427,

304A of 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 06.06.2015.

Aggrieved by the same, the accused preferred an appeal in

Criminal Appeal No.16/2015, before the learned I Addl.District &

Sessions Judge, Ramanagara, (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

05.02.2018. Being aggrieved by the same, the accused has

preferred the present revision petition.

2. The summary of the case of the prosecution against the

accused was that, on 26.02.2006, at about 5.45 p.m., near

Kethohalli Railway Halt Gate, a Tipper Lorry bearing registration Crl.R.P.No.364/2018

No.KA-03-2675, being driven by the accused in a high speed and

in a rash and negligent manner, dashed against a moving

passenger train bearing No.234, as a result of which accident,

the complainant and other passengers in the said train sustained

simple and grievous injuries. Though the injured were admitted

or treated immediately in the hospitals, but, one among the

injured by name Tabarez, son of Nasarulla Shariff, who was

admitted to the Government Hospital, Ramanagara, succumbed

to the injuries. Thus, the accused was charged for the offences

punishable under Sections 279, 337, 338, 427, 304A of IPC.

3. In order to prove the alleged guilt against the accused,

the prosecution got examined fifteen witnesses from PW-1 to

PW-15 and got marked documents from Exs.P-1 to P-22.

Neither any witness was examined nor any documents were

marked as exhibits from the side of the accused.

4. After hearing both side, the trial Court by its impugned

judgment of conviction and order on sentence dated 06.06.2015,

convicted the accused (present petitioner) for the offences

punishable under Sections 279, 337, 338, 427, 304A of IPC and

sentenced him accordingly.

Crl.R.P.No.364/2018

As observed above, the appeal challenging the said

judgment of conviction and order on sentence filed in the learned

Sessions Judge's Court in Criminal Appeal No.16/2015, also

came to be dismissed. Aggrieved by the same, the

petitioner/accused has filed the present petition.

5. The trial Court and the Sessions Judge's Court's records

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

6. In view of the fact that the learned counsel for the

petitioner failed to appear before this Court on several dates of

hearing, this Court by its detailed order dated 23.03.2021,

appointed learned counsel Smt.Archana K.M. as Amicus Curiae

for the petitioner. As such, the petitioner is being represented

by the learned Amicus Curiae.

7. Heard the arguments of learned Amicus Curiae for the

petitioner and the learned High Court Government Pleader for

the respondent. Perused the materials placed before this Court

including the trial Court and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the trial

Court.

Crl.R.P.No.364/2018

9. After hearing the learned Amicus Curiae for the

petitioner and the learned High Court Government Pleader for

the respondent-State, 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, 337, 338, 427, 304A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

10. It is a case where all the fifteen witnesses examined by

the prosecution on its side have one way or the other supported

the case of the prosecution. PWs.2, 3, 4, 5, 6, 7, 10, 13 and 15

in their evidence have uniformly stated that as at the time of the

accident, they were the passengers going in the train and the

accident took place due to the Tipper Lorry coming and dashing

to the train. All of them have stated that they sustained injuries

in the said accident and were treated in the hospital. Among

these witnesses, PW-3, PW-5, PW-6, PW-13 and PW-15 have

categorically stated that the accident had taken place due to the

fault of the driver of the Tipper Lorry. PW-15 has even identified

the accused in the Court stating that he was the driver who was Crl.R.P.No.364/2018

driving the said Tipper Lorry at the time of the accident. PW-2

and PW-8 have stated that the scene of offence panchanama as

per Ex.P-15 was drawn in their presence.

11. The evidence of the above injured witnesses and that

of mahazar witnesses to the effect that the accident in question

had taken place on the date, time and place mentioned in the

charge sheet, involving a passenger train and a Tipper Lorry has

not been denied or disputed specifically from the accused side.

As such, the occurrence of accident, the involvement of the

Tipper Lorry bearing registration No.KA-03-2675 and PWs.1, 3,

4, 5, 6, 7, 10, 13 and 15 sustaining injuries in the said accident

has remained as not specifically disputed facts.

12. The evidence of PW-9, PW-11 and PW-12, who are the

Investigating Officers and the inquest panchanama at Ex.P-1, the

wound certificates at Exs.P-2 to P-11 and the post mortem report

at Ex.P-12, would further go to corroborate the evidence of the

injured witnesses that they were injured in the accident and that

one Tabarez who had sustained injuries in the very same

accident was succumbed to it while under treatment.

13. Learned Amicus Curiae for the petitioner in her

argument though submitted that she would not deny or dispute Crl.R.P.No.364/2018

the occurrence of the accident and the involvement of the

passenger train and the Tipper Lorry in the alleged accident,

but, contended that the evidence of alleged injured witnesses

cannot be believed since none of them have produced any

railway tickets of their journey in the train. She further

submitted that since as per Section 2(29) of the Railways Act,

1989 (hereinafter for brevity referred to as `Railways Act'), a

passenger means a person travelling with a valid pass or a

ticket, these injured persons cannot be considered as

passengers in the train.

The said argument of the learned Amicus Curiae for the

petitioner is not acceptable, for the reasons that, PW-1 who is

the complainant has stated that, as at the time of accident, he

was holding a valid ticket, however, he has not handed over the

said ticket to the police. His said statement has not been

denied from the accused side. PW-3, the another passenger,

has stated that, at the time of journey, he had a valid ticket,

however, he did not produce the same before the police since the

dress he was wearing had torn in the accident. PW-4 also has

stated that, since the cloth he was wearing has torn in the

accident, he did not know where his journey ticket had fallen.

Crl.R.P.No.364/2018

PWs.5 and 6 have stated that they have produced their journey

tickets before the police. With respect to the other injured

witnesses, nothing was asked about they not producing their

journey tickets in the case. On the other hand, none of these

witnesses were suggested by the accused in their cross-

examination that they were not travelling in the train at the time

of the accident. On the contrary, to PW-1, PW-7, PW-10 and

PW-13, suggestions were made from the accused side in their

cross-examination suggesting that when the train was moving

slowly near Kethohalli gate, these witnesses in an attempt to get

down from the train, themselves fell down and sustained injuries,

however, those suggestions were not admitted as true by the

witnesses. Thus, by making such suggestions, the accused

himself has shown that he is not disputing that those witnesses

were travelling in the train at the time of accident. Therefore,

the mere fact of the prosecution not producing the journey

tickets of these injured witnesses would not by itself make their

evidence unacceptable. As such, the said argument on the part

of the learned Amicus Curiae for the petitioner is not acceptable.

14. The second point of argument of learned Amicus Curiae

for the petitioner is that the alleged rash and negligent driving of Crl.R.P.No.364/2018

the Tipper Lorry by its driver is not proved since none of the

witnesses have specifically stated as to with what speed the said

Tipper Lorry was moving at the time of accident.

Learned High Court Government Pleader in her argument

submitted that speed is not the sole criteria to decide that the

alleged vehicle was being driven in a rash and negligent manner.

In the instant case, the accused has not denied or disputed

that he was the driver of the Tipper Lorry at the time of the

accident. As already observed above, PW-15, one of the injured,

has identified the accused in the Court as the one who was

driving the Tipper Lorry at the time of accident. The said

identification made by PW-15 also has not been denied in his

cross-examination.

15. The scene of offence panchanama at Ex.P-15, coupled

with the rough sketch of the scene of offence panchanama at

Ex.P-22 would go to show that accident has not happened when

the Tipper Lorry was on the railway track. On the other hand,

it shows that, for a slow moving passenger train which was

entering the Kethohalli Halt Station, the Tipper Lorry came and

dashed to it. Thus, when for a slow moving train, which is a long

train with several coaches and moving on a fixed railway track, Crl.R.P.No.364/2018

a lorry coming and dashing after the engine and some of the

coaches have already passed through, that itself would itself go

to show that the said lorry was being driven by its driver in a

rash and negligent manner. Further, as observed above, several

of the injured witnesses and more particularly, PW-3, PW-5, PW-

6, PW-13 and PW-15 have specifically stated that the accident

has happened at the fault of the driver of the lorry. Therefore,

merely because none of the witnesses have stated as to with

what speed the said lorry was moving at the time of the

accident, that itself would not prevent from the Court coming to

a conclusion that the said lorry was being driven in a rash and

negligent manner at the time of the accident.

16. Learned Amicus Curiae for the petitioner also

contended that since several of the injured witnesses were

travelling on the footboard, there is violation of Section 156 of

the Railways Act, as such also, their evidence cannot be

accepted. No doubt, few of the prosecution witnesses have

stated that at the time of the accident, they were sitting on the

footboard or standing near the door of the slow moving train.

Section 156 of the Railways Act mentions that, if any passenger

or any other person, after being warned by a railway servant to Crl.R.P.No.364/2018

desist, persists in travelling on the roof, step or footboard of any

carriage or on an engine, or in any other part of a train not

intended for the use of passengers, shall be punishable with

imprisonment for a term which may extend to three months, or

with fine, which may extend to five hundred rupees, or with

both. Thus, travelling on a footboard in a moving train would be

an offence under Section 156 of the Railways Act, provided such

passenger was duly warned by a railway servant to desist prior

to such an act by the passenger.

Firstly, in the instance case, nothing has been elicited from

the accused side that any of the injured witnesses who claim to

have travelling on the footboard were previously warned by a

railway servant to desist.

Secondly, assuming that they were earlier warned, still,

committing an offence under Section 156 of the Railways Act by

a passenger would not make his evidence in a case for the

offences punishable under Sections 279, 337, 338, 427, 304A of

IPC as inadmissible. If at all such a passenger who is said to

have committed an offence under Section 156 of the Railways

Act is required to be prosecuted, the machinery meant for that

may take appropriate action against them, but, the same cannot Crl.R.P.No.364/2018

be a defence for the accused in a criminal case where he is

charged with the above said offences, including the one under

Sections 279, 337, 304A of IPC.

17. Lastly, learned Amicus Curiae for the petitioner also

contended that, in the accident, when the train is said to have

sustained the damages worth `500/- only, the prosecution case

is not believable.

The prosecution has also got marked a document at

Ex.P-17, which is shown to be a Certificate issued by the

Southern Railway stating that the cost of damage caused to the

Loco No.11106 involved in the accident in question was

approximately `500/-. The petitioner has failed to show in order

to hold that when a vehicle was involved in an accident, it

should necessarily sustain certain damages which can be

quantified by any particular sum as the cost of the damages.

There can be certain accidents without any damages to a vehicle

involved in the accident or the damages may be enormous. It all

depends upon the type of the vehicle or vehicles involved in the

accident and the circumstances of the case. In the instant case,

the Tipper Lorry had sustained major damages as evidenced in

the scene of offence panchanama at Ex.P-15 and also IMV report Crl.R.P.No.364/2018

at Ex.P-13. The other vehicle being the passenger train, which is

a very heavy Loco with strong fixtures fixed to it cannot be

expected that it should also equally sustain damages as that of a

Tipper Lorry which dashed against it. Therefore, the said

argument of learned Amicus Curiae for the petitioner is not

acceptable.

18. Barring the above, learned Amicus Curiae for the

petitioner has not made out any other grounds worth

considering. On the other hand, as observed above, the

evidence led by the prosecution, wherein all the witnesses, who

are fifteen in number, have unequivocally supported its case and

where all the material witnesses examined by the prosecution as

injured witnesses also have supported the case of the

prosecution and when panchas (mahazar witnesses) also have

supported the case of the prosecution, further the inquest

mahazar, wound certificates, post mortem report, IMV report,

scene of offence panchanama at Exs.P-1 to P-13 and Ex.P-15

have further corroborated the evidence of the prosecution

witnesses, both the trial Court and the Sessions Judge's Court

have rightly held the accused guilty of the alleged offences. The Crl.R.P.No.364/2018

said judgment of conviction cannot be termed as suffering with

any illegality, impropriety or perversity.

Further, the quantum of sentence ordered for the proven

guilt by the trial Court also being proportionate to the gravity of

the guilt proved, the same does not warrant any interference at

the hands of this Court.

19. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition is dismissed as devoid of

merits.

The Court while acknowledging the service rendered by the

learned Amicus Curiae for the petitioner- Smt.Archana K.M.,

recommends honorarium of a sum of not less than `4,000/- to

her payable by the Registry.

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

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

respective records forthwith.

Sd/-

JUDGE

bk/