Varaputra Hanakanahalli S/O. ... vs State Of Karnataka
2022 Latest Caselaw 2545 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH
        DATED THIS THE 16TH DAY OF FEBRUARY, 2022
                         BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

         CRIMINAL REVISION PETITION No.2109/2012

BETWEEN:

VERAPUTRA HANAKANAHALLI
S/O. DEVAPPA AGE:27 YEARS,
OCC: DRIVER R/O. RAYANAL,
HUBLI TALUK, DISTRICT:DHARWAD.
                                        ...PETITIONER

(BY SHRI.D.M. MANJUNATH, ADVOCATE)

AND:

STATE OF KARANATAKA
REPRESENTED BY PUBLIC PROSECUTOR
UTTARA KANNADA, KARWAR.
                                       ...RESPONDENT

(BY SHRI VIJAY S.KALASURMATH, HCGP)

      THIS CRIMINAL PETITION IS FILED U/S 397 R/W. 401 OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT PASSED BY THE
COURT OF THE DISTRICT AND SESSIONS JUDGE, UTTARA
KANNADA, KARWAR, IN CRL.A. NO.72/2010 DATED 28.09.2011,
VIDE AT ANNEXURE-B AND CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE JMFC ANKOLA, IN C.C.
NO.552/2007 DATED 24.04.2009, VIDE AT ANNEXURE-A.

      THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
                                     2




                                  ORDER

This Criminal Revision Petition is preferred

against the judgment and order passed against the

petitioner convicting and sentencing him for offence

punishable under Sections 279, 304-A, 337 and 338

of IPC, which is confirmed by the appellate Court.

2. The case of the prosecution is that on

21.09.2007, the first informant namely the driver of

lorry bearing registration no.KA-28/A-225 was

proceeding in his lorry from Mangalore to Kamalapur

of Hospet taluk. In the early hours i.e., at about

3:30 am, while the said lorry reached the village

limits of Honnalli of Ankola taluk, it's tyre got

punctured and therefore he parked the lorry on the

left side of the load. The cleaner of the lorry by

name Siddu (deceased) was replacing the punctured

tyre and one Rafeeq, cleaner of another lorry was

assisting him to replace the punctured tyre. At that

time, at about 4:00 am, a private bus driven by the

accused/ petitioner came from Ankola side in a high

speed and in a rash and negligent manner and the

driver of the bus lost control of the vehicle and hit

against the rear portion of the lorry. Due to the

impact, the cleaner of the lorry died on the spot and

some of the passengers of the bus also sustained

injuries.

3. Before the trial Court the prosecution got

examined PWs.1 to 8 and got marked Ex.P.1 to 16,

to establish the guilt of the accused.

4. The learned magistrate vide judgment

dated 24.04.2009 in Criminal Case No.552/2007

convicted and sentenced the accused for offences

punishable under Sections 279, 304(a), 337 and 338

of IPC.

5. The learned Sessions judge vide judgment

dated 28.09.2011 in Criminal Appeal No.72/2010

preferred by the accused, dismissed the said appeal

and thereby confirmed the judgment passed by the

trial Court.

6. Out of the witnesses examined by the

prosecution, PWs.1, 3 to 6 are projected as eye

witnesses. PW.3 is the cleaner of the bus in

question, which caused the accident. However, he

has not supported the case of prosecution. Further

PW.6, the driver of another lorry is also treated

hostile. PW.2 is the panch witness to the spot

mahazar/ Ex.P.2, PW.7 is the father of the victim.

He is not an eye witness. PW.8 is the investigation

Officer who registered the case and conducted the

investigation and filed charge sheet.

7. PW.1 is the first informant. He is the

driver of the lorry bearing registration No.KA-28/A-

225. He has deposed that the tyre of his lorry got

punctured and therefore he parked the lorry by the

side of the road and along with the cleaner of the

lorry, he was replacing the tyre and it was

about 4:00 am in the morning. He has further stated

that the cleaner of another lorry, by name Rafeeq

(PW.4) was assisting them. At that time the bus in

question came in a high speed and hit the lorry on

it's back and caused the accident. On account of the

same the cleaner namely Siddu sustained injuries

and died on the spot. He has stated that after the

accident in question the driver of the lorry ran away

from the spot.

8. PW.3 namely the cleaner of the bus has

turned hostile. He has stated that he is not aware as

to how the accident took place. He has stated that

there were two drivers in the bus and name of one

of the driver is Nagappa and he is not aware of the

name of another driver.

9. PW.4, the cleaner of another lorry has

stated that he was helping to replace the tyre, at

that time the bus in question came in a high speed

and caused the accident and in the said accident the

cleaner of the lorry died and he also sustained

injuries. He has stated that he has not seen as to

who was driving the said bus.

10. PW.5, is a passenger in the bus. She has

stated that she was traveling in the said bus and on

account of the accident she as well as several

passengers of the bus sustained injuries.

11. PW.6 is the driver of another lorry. He has

been treated hostile since he did not support the

case of prosecution. He has stated that he was

sleeping in the lorry when the accident took place.

12. Ex.P.10 is the M.V. Report marked through

the Investigating Officer, namely PW.8. As per the

said report, damages were caused to the lorry as

well as the bus and the accident was not on account

of any mechanical defect.

13. It is the case of prosecution that PW.1,

the driver of the lorry bearing No.KA-28/A-225 had

parked his lorry by the side of the road to replace

the tyre which was punctured and at about 4:00 am,

the bus driven by the accused came in a high speed

and hit the lorry on its back and on account of which

the cleaner of the lorry sustained injuries and died

at the spot.

14. It is relevant to see that according to

PW.3 i.e., the cleaner of the bus there were 2

drivers for the bus in question and he has stated the

name of one of the driver is Ramappa and he is not

aware of the name of another driver. In the cross

examination conducted by the defence, PW.3 has

stated that he has not seen who was driving the bus

at the time of accident. From the evidence of PWs.1,

4 and 5 it is not established that it was the accused

who was driving the bus in question at the time of

accident. PW.1 has stated that after the accident the

driver of the bus ran away from the spot and

therefore he could not see the driver. Though PW.4

has stated that the accident was on account of the

fault of the driver of the bus, he has stated that he

has not seen who was driving the bus at the time of

accident. In the cross examination he has stated

that it was the police who informed him about the

name of the driver. PW.5, passenger in the bus has

stated that the accident was due to the fault of the

driver of the bus. However in the cross examination

she has stated that at the time of accident she was

sleeping. Though she has stated that the bus was

being driven in a high speed and the driver of the

bus caused the accident, but she has not stated that

it was the accused who was driving the bus. In view

of the admission given by her that she was sleeping,

her evidence that the bus was being driven in a high

speed at the time of accident can not be accepted.

15. PW.3 i.e., the cleaner of the bus has

deposed that there were two drivers in the bus in

question. Therefore, it is the duty of the prosecution

to establish that it was the accused/ petitioner who

was driving the bus at the time of accident. The

prosecution has failed to prove the same beyond all

reasonable doubt.

16. PW.1 has stated that there was only one

driver in the bus. However, in his cross-examination

he has admitted that at the time of accident it was

dark and it was raining and at the time of accident

he had gone to bring a jack and only after hearing

the sound, he came to know about the accident.

Hence, the case of the prosecution that, the accused

was driving the bus in a rash and negligent manner

and hit the lorry from behind, is not established

beyond reasonable doubt. PW.1 has stated that only

after hearing the noise he came to know about the

accident and PW.5 has specifically stated that at the

time of accident she was sleeping in the bus. The

evidence of PW.4 is therefore not corroborated by

the evidence of PWs.1 and 5.

17. It is relevant to see that admittedly the

accident has taken place in the early hours that is at

about 4:00 am. The case of the prosecution is that

PW.1 had parked the lorry by the side of the road to

replace the punctured tyre. He has admitted that at

the time of accident it was dark and it was also

raining. None of the prosecution witnesses including

the driver have stated that when the lorry was

parked by the side of the road to replace the

punctured tyre, in the dark, sufficient precautions

were taken by putting the indicator. The perusal of

the spot mahazar/ Ex.P.3 and sketch/ Ex.P.4 shows

that the lorry is parked on the left side of the road

on a national highway on the tar road; even though

there is a mud road of 6 feet on the left side. The

bus was moving on the left side of the road, which is

its proper side. Further, left portion of the bus has

hit the lorry from behind. Hence, the possibility that

due to darkness and rain, the driver of the bus was

unable to spot the lorry which was parked on the

National Highway, without putting any indicator. In

such circumstance, it cannot be said that, the

accident was on account of rash or negligent driving

by the driver of the bus. Merely because, the driver

of the bus has caused the accident, it cannot be said

that it was on account of his rash or negligent

driving. Both the Courts have therefore, erred in

holding the accused guilty. Even though the accused

has not given any explanation for the reason for the

accident, however, from the material on record it

cannot be held that the offence has been proved

against him beyond all reasonable doubt. The

accused is therefore entitled to benefit of doubt.

Hence, the following:

ORDER

i) Revision Petition is allowed,

ii) The judgment and order dated 24.04.2009

passed in C.C No.552/2007 by the JMFC

Ankola and the judgment and order dated

28.09.2011 passed in Criminal Appeal

No.72/2010, by the Court of the District

and Sessions Judge, Uttara Kannada,

Karwar are hereby set aside.

iii) Accused is acquitted and his bail bond is

cancelled.

(Sd/-) JUDGE

PJ