Mallikarjun vs The State Of Karnataka
2022 Latest Caselaw 2869 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                             BEFORE

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

     CRIMINAL REVISION PETITION No.377 OF 2018

BETWEEN:

Mallikarjun, Naregal
S/o. Sangappa, Naregal,
Aged about 41 years
R/o. Naregal Janatha Nagar House,
Shirur village,
Bagalkote - Tq & Dist.
PIN -587 120.
                                                   ..Petitioner
(By Sri. S.B. Halli, Advocate)

AND:

The State of Karnataka,
Rept by High Court Public
Prosecutor,
Venhuru Police Station,
Belthangady - Tq,
Dakshina Kannada,
Mangalauru - 574 214.
                                                 .. Respondent
(By Smt. K.P. Yashodha, High Court Govt. Pleader)

                                  ****
     This Criminal Revision Petition is filed under Section 397 (1)
read with Section 401 of the Code of Criminal Procedure, 1973,
                                                 Crl.R.P.No.377/2018
                                  2


praying to call for and examine the records, and set aside the order
of conviction and sentence passed by the learned Judge of Civil
Judge, and JMFC, at Belthangady, in C.C.No.849/2010, dated
24-08-2017, and order passed by the learned Principal Sessions
Judge, at Dakshina Kannada, Mangaluru, in Crl.A.No.134/2017
dated 05-03-2017, and acquit the petitioner for the offences
punishable under Section 279, 337 and 338 of the IPC, by allowing
this petition and pass any other suitable orders which this Court
deems fit, in the facts and circumstances of the case, in the interest
of justice and equity.

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

                              ORDER

The present petitioner was accused in C.C.No.849/2010

in the Court of the learned Civil Judge and J.M.F.C.

Belthangady, (hereinafter for brevity referred to as "the Trial

Court"), who, by the judgment of conviction and order on

sentence dated 24-08-2017 of the trial Court, was convicted

for the offences punishable under Sections 279, 337 and 338

of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as "the IPC") and was sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.134/2017, in the Court of the learned Crl.R.P.No.377/2018

Principal Sessions Judge, Dakshina Kannada, Mangaluru

(hereinafter for brevity referred to as the "the first appellate

Court"), which after hearing both side, dismissed the appeal,

confirming the impugned judgment of conviction and order on

sentence passed by the Trial Court. It is challenging both the

judgments passed by both the Trial Court as well the first

appellate Court, the accused/revision petitioner has preferred

the present revision petition.

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

the present revision petitioner as driver of the Karnataka

State Road Transport Corporation (KSRTC) Bus bearing

registration No.KA-19/F-2729 drove the said Bus in a rash and

negligent manner on his trip from Moodabidre to Belthangady

on 14-07-2010 at about 5:30 p.m. and dashed to a North-

West Karnataka State Road Transport Corporation Bus

(NWKSRTC) bearing registration No.KA-25/F-2777 which

resulted in several of the passengers in both the Buses Crl.R.P.No.377/2018

sustaining simple to grievous injuries and thereby has

committed offences punishable under Sections 279, 337 and

338 of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the guilt against

the accused, the prosecution got examined in all twelve (12)

witnesses from PW-1 to PW-12 and got marked documents

from Exs.P-1 to P-29(a). However, neither any witness was

examined nor any documents were got marked on behalf of

the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the first appellate Court's records

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

Crl.R.P.No.377/2018

6. Learned counsel for the accused/revision petitioner

and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Though this matter was listed for Admission,

however, as desired by the learned counsels from both side,

the arguments on the main matter itself were heard from both

side. Perused the materials placed before this Court including

the impugned judgments passed by both the Courts and also

the Trial Court and first appellate Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

9. 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 first appellate Court that, the accused committed the alleged offences punishable Crl.R.P.No.377/2018

under Sections 279, 337, 338 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

10. Learned counsel for the accused/revision petitioner

submits that the revision petitioner does not dispute the

occurrence of the accident on the date, time and place

mentioned in the charge sheet involving two public

transportation Buses bearing registration Nos.KA-19/F-2729

and KA-25/F-2777. He also does not dispute that as at the

time of accident, it was the revision petitioner/accused who

was driving the Bus bearing registration No.KA-19/F-2729. He

further submits that it is also not in dispute that due to the

said accident, some of the passengers in both the Buses also

sustained injuries.

Learned counsel for the revision petitioner submits that

however, he seriously disputes that the said accident is caused

due to the alleged rash and negligent driving of the Bus by the

revision petitioner herein. Learned counsel submits that none Crl.R.P.No.377/2018

of the witnesses examined by the prosecution have specifically

mentioned as to at which speed the alleged offending Bus was

moving. Further, those prosecution witnesses also have not

stated that the said driving of the accused/revision petitioner

was rash and negligent driving. As such, in the absence of

there being no evidences regarding the alleged rash and

negligent driving of the revision petitioner/accused, merely

because there was head-on collision between the two Buses,

the alleged rash and negligent driving cannot be made out

upon the accused. He further submitted that the panchas to

the scene of offence also have not supported the case of the

prosecution, as such, the concept of res ipso loquitur also

cannot be applied in the case.

In his support, he relied upon a judgment of the Hon'ble

Apex Court in the case of State of Karnataka Vs. Satish

reported in (1998) 8 Supreme Court Cases 493. which would

be dealt with at an appropriate stage.

Crl.R.P.No.377/2018

11. Learned High Court Government Pleader for the

respondent-State, in her arguments submitted that, the date,

time and place of occurrence of the accident and involvement

of the two KSRTC Buses including the offending vehicle are

undisputed facts. Similarly, the fact that the present revision

petitioner was driving the offending Bus at the time of

accident and that several of the passengers in both the Buses

sustained injuries due to the accident is also admitted. In

such a situation, the evidence of PW-3, PW-4 and PW-6 clearly

establishes that the driving of the offending vehicle by the

accused was in a rash and negligent manner, resulting in

causing the accident and several of the passengers sustaining

injuries. Since the medical evidence supported by the Wound

Certificates also goes to show that, several of the prosecution

witnesses and many other inmates of the two Buses sustained

simple and grievous injuries, the Trial Court has properly held

the accused guilty of the alleged offences which was confirmed Crl.R.P.No.377/2018

by the learned first appellate Court. Hence, interference in

the impugned judgments of both the Courts, is not called for.

12. Among the twelve (12) witnesses examined by the

prosecution, PW-1 - Vidyashree, PW-2 - Sowmya, PW-3 -

Jaisuddeen and PW-4 - Mohana Shetty are shown to be the

injured persons in the accident. Those witnesses are shown to

be passengers travelling in the two Buses which were

involved in the alleged accident.

13. PW-6 -K.R. Balakrisha was shown to be travelling

in the offending vehicle as a conductor of the said Bus.

Though he has not stated about the alleged rash and negligent

driving of the accused/revision petitioner in specific terms, but

about the accident, he has shown the involvement of both the

alleged vehicles.

14. PW-7- Narayana Poojari and PW-8 - Ahmed Bava,

though were examined as panchas for the scene of offence Crl.R.P.No.377/2018

panchanama, not only stated that the Police have drawn the

panchanama and obtained their signatures upon Ex.P-1, but

also stated that they do not know the contents of the said

panchanama.

15. PW-9 - Dr. Adam has stated about he examining the

alleged injured persons in the road traffic accident and issuing

Wound Certificates in that regard at Exs.P-4 to P-21.

16. PW-10 - Umesh Uppalika, the then Assistant Sub-

Inspector of Police of complainant Police Station has stated

about he taking up the investigation in this matter, after his

transfer on 28-07-2010 and recording the statement of CW-1.

He has also stated that, he has collected the Wound

Certificate of the injured in the incident and also Motor Vehicle

Inspector's report and filed the charge sheet after completing

the investigation.

17. PW-11 - A.S. Mohammed Khaleed has stated that

as a Motor Vehicle Inspector, he has examined both the Buses Crl.R.P.No.377/2018

said to have been involved in the accident and has noticed

that the accident was not due to any mechanical defect with

either of the vehicles (Buses).

18. While PW-12 - M. Vasudeva Naika has spoken about

he registering the FIR in this case and recording the

statement of two witnesses, i.e. CW-5 and CW-6. The

Investigating Officer has spoken about he conducting

investigation and filing a charge sheet in the matter.

19. PW-1 - Vidyashree has stated that at the time of

accident, she was travelling in the opposite vehicle to which

the alleged offending Bus came and dashed. She has stated

that the Bus in which she was travelling was being driven on

extreme left side of the road by its driver, however, the Bus

coming from the opposite direction dashed to the Bus in which

she was travelling, due to which, she sustained injuries to her

nose, lips, teeth and right leg. She also stated that several

other passengers in the Bus also sustained injuries and all of Crl.R.P.No.377/2018

them were shifted to the Government Hospital at Belthangady

in an ambulance. Though she could not specifically identify

the accused in the Court as the driver of the alleged offending

vehicle, but she stated that it must be the said accused.

However, she stated that she was unable to say exactly as to

at whose fault, the accident has occurred.

20. PW-2 - Sowmya has stated that at the time of

accident, she was travelling in the alleged offending Bus. In

order to overtake a lorry, when the Bus moved, the accident

had occurred due to which she along with several other

inmates in the Bus sustained injuries and that all of them were

shifted to Hospital in an ambulance. Stating so, she has

identified the accused in the Court as the driver of the alleged

offending vehicle.

In her cross-examination, though attempts were made to

show that she has not observed the manner in which the

accident has occurred, but she stated that she believes that Crl.R.P.No.377/2018

the accident has occurred due to the fault of the Bus driver in

which she was travelling.

21. PW-3 - Jaisuddeen stated that at the time of

accident, he was travelling in the opposite Bus to which the

alleged offending vehicle came and dashed. He has stated

that the offending vehicle came from the opposite direction in

high speed and dashed against the Bus in which he was

travelling. He has stated that, due to the said accident, he

sustained injuries to his lips, hands and legs. Several other

passengers in the Bus also sustained injuries. Further, they

were also shifted by the localites in an ambulance to

Belthangady Hospital. He has identified the accused in the

Court as the driver of the alleged offending vehicle, who,

according to him, caused the accident. He also stated that at

the time of accident, the Bus in which he was travelling was

going on the extreme left side of the road.

Crl.R.P.No.377/2018

22. PW-4 - Mohana Shetty has stated that at the time of

accident, he was travelling in the opposite Bus when the

offending vehicle came and dashed. He too has stated that, in

an attempt to overtake a Lorry, the said Bus came from the

opposite direction and dashed to the Bus in which he was

travelling. Apart from giving registration number of the

alleged offending vehicle as KA-19/F-2729, the witness also

identified the accused in the Court as the driver of the

offending vehicle at the time of accident. The witness also

stated that due to the said accident, he sustained injuries to

his nose and right leg and like him several other passengers

also sustained injuries, who were also shifted to the

Government Hospital at Belthangady for first aid and

thereafter to Manipal Hospital. He specifically stated that the

accident has occurred due to driving of the offending Bus by

the accused in high speed and in his attempt to overtake a

Lorry which was going on the road.

Crl.R.P.No.377/2018

23. PW-1, PW-2, PW-3 and PW-4 were subjected to a

detailed cross-examination from the accused's side. Though

PW-1 and PW-2, in their response to the question put to

them in their cross-examination have shown that they were

not actually seeing the road and the manner of occurrence of

the accident, since they were talking to the co-passengers at

that time, but PW-3 and PW-4 have reiterated even in their

cross-examination that they were sitting behind the driver in

such a position that, they could able to see the driving as well

as the road and that they have seen that the accident has

occurred due to high speed driving of the offending vehicle by

its driver.

24. PW-7 and PW-8, though were examined as panchas

to the scene of offence panchanama, but they have not

supported the case of the prosecution fully. But the fact that

the alleged place of accident as stated by PW-1 to PW-4, in

their evidences, since have not been specifically denied and Crl.R.P.No.377/2018

also since PW-10 and PW-12, the Police officials' evidence

also have not specifically denied in their evidence, regarding

the place of the occurrence of the accident, it stands

established that the accident in question has occurred on 14-

07-2010 at about 5:30 p.m. on the State Highway between

Moodabidre and Belthangady.

25. No doubt, PW-1 to PW-4 have not used the words

specifically in their evidence that, the driving of the accused of

the offending vehicle was in a rash and negligent manner.

Similarly, none of them have stated as to, at what particular

speed, the offending Bus was moving at the time of accident.

However, it is not the criteria as to whether the mentioning of

a particular speed of the alleged offending vehicle is

necessarily required. In some cases, if an ordinary

passenger speaks about a particular speed of the Bus

without having any reference either to his knowledge

regarding the speed and velocity of the vehicle or having no Crl.R.P.No.377/2018

accessibility to have a look at the speedometer of the vehicle,

it may lead to suspicion about the trustworthiness of his

evidence regarding the alleged speed of the vehicle. However,

it cannot be ignored of the fact that all these witnesses have

mentioned specifically that the offending vehicle was being

driven by the accused in high speed. No doubt even the

alleged high speed also need not be always considered as a

rash and negligent driving. Still, the alleged high speed, if it

were to be unable to be controlled by the driver of the vehicle

and if it leads to a road traffic accident, then, such a driving

which is said to have caused the accident due to high speed,

may have to be treated as a rash and negligent driving. In

the instant case, for the reasons best known to them, the

prosecution has not got marked the scene of offence

panchanama either through any of the witnesses or through the

Investigating Officer, who is PW-10. However, the evidence of

PW-6 is an important evidence which throws more light on the

said aspect.

Crl.R.P.No.377/2018

Undisputedly, PW-6 - K.R. Balakrishna was the

conductor of the alleged offending vehicle at the time of

accident. He has stated that the accused was the driver of the

offending vehicle of which he was the conductor at the time of

accident. The Bus was proceeding from Laxmeshwara to

Dharmasthala at the time of Accident. A Lorry was going

ahead of their Bus. The driver of the Lorry stopped the said

Lorry without giving any signal. Then the driver of the Bus

Sri.Mallikarnuna Neregal (accused) stopped the Bus.

However, the said Bus without getting stopped, skid forward,

at which time, a KSRTC Bus bearing registration No.KA-25/F-

2777 coming from the opposite direction dashed to their Bus,

due to which, about five to six persons among the passengers

in the offending vehicle sustained injuries. The said witness

(PW-6) was not cross-examined from the accused's side.

Therefore, the said evidence of the witness, which has

remained undisputed, would go to show that, the driver of the Crl.R.P.No.377/2018

offending vehicle was driving the said vehicle in such high

speed that, even if he tried to stop the Bus (probably by

applying brake), it did not stop, but skid and moved forward

at some distance, at which time, the accident occurred, since

from the opposite direction also, a Bus was coming. This

evidence of PW-6, when read with the evidence of PW-1 to

PW-4 clearly gives a picture of how the offending vehicle was

moving at the time of accident. PW-1 to PW-4, among whom,

PW-3 and PW-4 have very specifically and categorically stated

that, it was not just the offending Bus which was being

driven by its driver in high speed, but it was also due to the

fault of the driver of the offending vehicle (accused), the

accident has occurred. The evidence of PW-6 when read in the

light of the evidence of PW-1 to PW-4, would go to show that

the driver of the offending vehicle was driving the Bus in such

a manner in such high speed that even if he attempted to

stop the Bus after seeing the alleged sudden stoppage of a

Lorry, moving ahead of him, he could not control the Bus or Crl.R.P.No.377/2018

could not stop the Bus on the spot, on the other hand, the Bus

moved little more further thus causing a collision with the

other Bus bearing registration bearing No.KA-25/F-2777,

coming from opposite direction. The said evidence of PW-1 to

PW-4 that the accused was driving the Bus with very high

speed, when read in the light of the evidence of none else

than PW-6, who was a Conductor in the very same Bus at the

time of accident, would clearly go to establish that the said

driving of the Bus by the accused was not a safe driving,

though with high speed, but it was a rash and negligent

driving of the Bus with high speed. Thus, the prosecution has

established that the accused has caused the accident due to

his rash and negligent driving of the offending Bus.

26. The learned counsel for the accused/revision

petitioner, while submitting in his argument that, in the

absence of PW-1 to PW-4 specifically not stating that the

driving of the accused was rash and negligent, the Court Crl.R.P.No.377/2018

cannot infer rash and negligent driving on the part of accused,

on the principle of res ipsa loquitur, relied upon the judgment

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

Vs. Satish (supra).

The said case also was with respect to a road traffic

accident involving a motor vehicle and the alleged offences

were punishable under Sections 337, 338 and 304-A of the

IPC and the alleged offending vehicle was a truck in the said

case. The Hon'ble Apex Court, while analysing the evidence

before it, was pleased to observe in paragraph-4 of its

judgment as below:

"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and Crl.R.P.No.377/2018

circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."

No doubt in the case before it, the Hon'ble Apex Court

observed that, "high speed" does not bespeak of either

"negligence" or "rashness" by itself, however, before coming Crl.R.P.No.377/2018

to an opinion that the prosecution has failed to prove the

alleged rash and negligent driving on the part of the driver in

the said case, the Hon'ble Apex Court also observed that in

the case before it, there was evidence to show that

immediately before the truck (offending vehicle) turned turtle,

there was a big jerk. The said jerk was not explained as to

whether the same was because of the uneven road or

mechanical failures. Though a motor vehicle report was

placed on record, but however, the said report was not

forthcoming from the record and the Inspector was not

examined for the reasons best known to the prosecution. It is

in the light of the several such infirmities in the case of the

prosecution, the Hon'ble Apex Court was pleased to observe

that the prosecution in the said case has failed to prove the

"rash" and "negligent" driving of the accused and that the

alleged "rash" and "negligent" driving could not have been

inferred in the said case under the principles of res ipsa

loquitur. Since in the instant case, the facts totally differ and Crl.R.P.No.377/2018

as observed above, not less than four inmates in the offending

Bus have clearly and categorically stated that the alleged Bus

was being driven in a very high speed by the accused and PW-

3 and PW-4 since have specifically and categorically stated

that the accident has occurred solely due to the fault of the

accused herein and more importantly, as analysed above, the

evidence of PW-6 shows that the Bus was being driven in such

a high speed and in such a manner that even after stopping

the vehicle, it moved further which resulted in the accident,

would clearly go to show that, the judgment relied upon by

the learned counsel for the revision petitioner is not applicable

to the facts and circumstances of the present case. On the

other hand, the prosecution has proved the alleged rash and

negligent driving on the part of the driver of the offending

vehicle bearing registration No.KA-19/F-2729.

27. The evidence of PW-1 to PW-4 that they sustained

injuries in the accident and also the evidence of none else Crl.R.P.No.377/2018

than the conductor (PW-6) that five to six passengers in his

Bus sustained injuries due to accident has been further

corroborated by the evidence of PW-9 -Doctor and the Wound

Certificates at Exs.P-4 to P-21 issued by him. The said Doctor

has clearly stated in his evidence that he has examined the

injured persons in his Hospital on the very same date of

accident, in the night. He has given the names of the injured

whom he examined and treated. He has stated that many of

them had sustained simple injuries, the details of which have

all been mentioned by him in the Wound Certificates at Exs.P-

4 to P-21. He has stated that one of the passengers by name

Talawaru @ Tarawaru had sustained grievous injuries and the

same has been mentioned in the Wound Certificate at Ex.P-4.

Though this witness (PW-9- Doctor) was subjected to a

detailed cross-examination, but his statements made in his

examination-in-chief could not be shaken in his cross-

examination.

Crl.R.P.No.377/2018

28. A perusal of the Wound Certificates at Exs.P-4 to P-

21 would go to show that all the injured persons mentioned

therein were examined by PW-9 - Doctor for their alleged

injuries said to have been sustained in the road traffic accident

in question and that the Doctor has noticed different types of

simple injuries on various parts of the body of those patients

among whom one is shown to have sustained grievous

injuries. Thus, the said medical evidence of PW-9 - Doctor

joined by the evidence of PW-1 to PW-4 and PW-6

corroborates the evidence of PW-10 - Investigating Officer

that, in the accident, several of the inmates in both the

vehicles sustained injuries and some of them sustained

grievous injuries also.

29. It is considering these aspects, since the Trial Court

as well the first appellate Court have held the accused guilty of

the alleged offences punishable under Sections 279, 337 and

338 of the IPC, I do not find any infirmity or illegality in the Crl.R.P.No.377/2018

said finding, warranting interference at the hands of this

Court.

30. With respect to the sentence ordered for the proven

guilt also is concerned, the Trial Court has sentenced the

accused to undergo three months' Simple Imprisonment and

to pay fine of `250/- and in default, to undergo Simple

Imprisonment for one and a half months each for the offences

punishable under Section 279 and Section 337 of the IPC, and

ordered sentence of six months' simple imprisonment and fine

of `250/- and in default, to undergo simple imprisonment for

one and half months for the offence punishable under Section

338 of the Indian Penal Code.

31. It is the sentencing policy that, the sentence

ordered for the proven guilt must be proportionate to the

gravity of the proven guilt against the accused. It must not be

exorbitant or for namesake.

Crl.R.P.No.377/2018

32. In the instant case, considering the facts and

circumstances of the case and also in view of the fact that, the

Trial Court has considered all the mitigating factors like the

involvement of the two heavy vehicles in the accident and the

fact that the accused being a driver in service with a statutory

body and also of the fact that he is said to have family

members depending upon him, I do not find any reason even

to interfere in the order on sentence, which is under appeal.

Accordingly, I proceed to pass the following:

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 first appellate Court along with their

respective records forthwith for doing needful.

Sd/-

JUDGE

BMV*