Sri Ramesha vs State Of Karnataka
2022 Latest Caselaw 2878 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                      BEFORE

         THE HON'BLE Mr. JUSTICE P.N.DESAI

   CRIMINAL REVISION PETITION No.243/2012

BETWEEN:

SRI RAMESHA
BUS DRIVER
SON OF VASANAPPA
AGED ABOUT 34 YEARS
R/O ASIYA THANDA
RAYACHURU DISTRICT
                                       ...PETITIONER
(BY SRI R SRINIVAS, ADVOCATE-absent)

AND:

STATE OF KARNATAKA
BY ALUR POLICE STATION
HASSAN DISTRICT
                                    ...RESPONDENT
(BY SRI B S VENKATANARAYAN, ADVOCATE
as AMICUS CURIAE
SRI RAHUL RAI K, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTIONS 397 AND 401 OF CR.P.C. TO SET ASIDE
THE ORDER DATED 10.09.2008 IN CC NO.284/2006
PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC, ALUR
AND SET ASIDE THE ORDER DATED 15.11.2010 PASSED
BY THE ADDITIONAL SESSIONS JUDGE AT HASSAN IN
CRL.A.NO.138/2008.
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:

                             ORDER

This Criminal Revision Petition is filed assailing

the judgment of learned Additional Sessions Judge,

Hassan, passed in Criminal Appeal No.138/2008,

dated 15.11.2010 whereby, the learned Additional

Sessions Judge confirmed the judgment of conviction

and order of sentence passed by the Civil Judge

(Jr.Dn.) & JMFC, Alur, in C.C.No.284/2006, dated

10.09.2008 wherein, the revision petitioner was

convicted for the offences punishable under Sections

279, 337 and 338 of Indian Penal Code, 1860 (for

short 'IPC').

2. The Revision petitioner was the accused before

the trial Court.

3. The parties will be referred as per their

respective ranks before Trial Court for convenience.

4. The factual matrix of the prosecution case are

that on 01.01.2006, in the midnight between 12.30

and 1.00 a.m., the accused who is the revision

petitioner in this case being the driver of a KSRTC bus

bearing Regn.No.KA-19/F-2143 drove the said vehicle

in a rash and negligent manner near Eshwarahalli

Koodige and dashed the said bus to a Canter Lorry

bearing Regn. No.KA-42-62 from hind side. Due to

the said impact, the vehicle of the accused and also

the Canter lorry got damaged and six persons

sustained injuries. In this regard, a complaint came

to be lodged as per Ex.P.10-statement. On the basis

of the said statement, a case in CC No.284/2006 came

to be registered by the Alur Police Station and FIR was

sent to the Court. The said complaint was registered

on the basis of the memo received from the hospital

as per Ex.P.9. Accordingly, the Head Constable-

PW.11 visited the hospital and recorded the statement

of the injured and registered the complaint. On the

same date, he registered the place of offence and

conducted spot panchanama as per Ex.P.1. He also

seized the vehicle and prepared the sketch map. He

also took photographs of both the vehicles as per

Exs.P.13-P.19 and the negatives were also produced.

Then, the Investigation Officer called the Motor

Vehicle Inspector for inspecting the vehicles and

recorded the statement. He arrested the accused on

03.01.2006 and handed over the further investigation

to his higher officer i.e. CW.17, who, after completing

the investigation has filed charge sheet against the

accused for the offences stated above.

5. The accused appeared before the learned JMFC

and denied the substance of the accusations put

against him. The prosecution examined eight

witnesses as PWs.1 to 8 and got marked 11

documents as per Exs.P.1 to P.11. Thereafter, the

statement of the accused as required under Section

313 (b) of Cr.P.C. was recorded. The accused denied

all the circumstances appearing against him in the

evidence of the prosecution witnesses. The accused

has not chosen to lead any defence evidence. After

hearing the arguments, the learned JMFC convicted

the accused for the offences punishable under

Sections 279, 337 and 338 of IPC and sentenced the

accused to undergo simple imprisonment for one

month with fine of Rs.1,000/- for the offence

punishable under Section 279 of IPC; to undergo

simple imprisonment for 15 days with fine of Rs.500/-

for the offence punishable under Section 337 of IPC

and to undergo simple imprisonment for one month

with fine of Rs.1,000/- for the offence punishable

under Section 338 of IPC and directed that all the

punishment shall run concurrently and in default, to

undergo further simple imprisonment for 15 days.

6. Aggrieved by the said judgment, the revision

petitioner/accused preferred Criminal Appeal

No.138/2008 and the learned Additional Sessions

Judge, after hearing the arguments, dismissed the

said appeal confirming the judgment passed by the

learned JMFC. Aggrieved by the said judgment, this

revision petition is preferred by the accused.

7. The order sheet indicates that the revision

petitioner after filing the revision petition did not

appear before the Court. The case was listed many

times and the counsel for the revision petitioner was

absent. By order dated 17.11.2021,

Sri B S Venkatanarayan, learned advocate, was

appointed as amicus curiae to represent the revision

petitioner.

8. Heard Sri B S Venkatanarayan, learned amicus

curiae for the revision petitioner and Sri Rahul Rai K,

learned High Court Government Pleader for the

respondent-State.

9. Learned amicus curiae for the revision petitioner

argued that both the Courts have failed to appreciate

the proposition of law that the initial burden is on the

prosecution to establish the guilt beyond all

reasonable doubt. The Courts have given much

importance to Section 106 of Indian Evidence Act,

1872 ('Act' for short). On the other hand, it is for the

prosecution to prove its case. Learned amicus curiae

further argued that PW.1- driver of the Canter lorry

has not stated as to how the bus was driven. Because

according to the prosecution, the accident has

occurred from hind side. Even PW.2, the Cleaner of

the Canter lorry has also not stated about the rash

and negligent driving by the accused. The other

witness PW.3 is the hearsay witness. He further

referred to evidence of PWs.4 and 5, who are

witnesses to the mahazar. They have not stated

anything about the position of the lorry. Learned

amicus curiae further argued that since there is no

eyewitness to the incident, the possibility of the

accident occurring in the midnight due to the fault of

the lorry cannot be ruled out. When the prosecution

has failed to prove beyond all reasonable doubt that it

is the action of the accused which resulted in the

accident and as other views are also possible, the

Courts should have taken the view favourable to

accused as per the settled principles of law and should

have given the benefit of doubt and acquitted the

accused. As the evidence of the prosecution creates a

doubt in the mind of the Court, learned amicus curiae

argued that the judgments of both the Courts below

be set aside and the accused be acquitted.

10. Learned amicus curiae further argued that the

accused is a KSRTC bus driver and the entire family is

depending upon him. There are no records to show

that he was previously involved in any other the

accident. Therefore, the punishment imposed is also

not based on the evidence on record. With these

main arguments, learned amicus curiae prayed to

allow the revision petition.

11. Against this, Sri Rahul Rai K, learned High Court

Government Pleader appearing for the respondent-

State argued that both the Courts have considered the

evidence of the prosecution meticulously and

appreciated the evidence in proper perspective.

Learned Government Pleader further argued that the

very nature of the accident itself shows that it is due

to the rash and negligent driving by the driver of the

bus i.e. the revision petitioner this accident has

occurred. Further, learned Government Pleader

brought to the notice of the Court that the road was

straight and the photographs along with the negatives

produced before the Court shows that the damage

was on the left side of the bus and damage to the

Canter lorry was on the hind side. That itself shows

the nature of accident. Of-course the driver of the

Canter lorry not stated anything as he was sitting in

the front. But the nature of accident, the sketch of the

spot panchanama coupled with other circumstances

clearly indicate that it is the act of the accused which

has resulted in with the accident and causing injuries

to inmates of the Canter. Learned Government

Pleader submits that one of the injured has sustained

grievous injuries. Because of the impact, the Canter

lorry trembled or turtled. Learned Government

Pleader further argued that the accused - revision

petitioner has taken inconsistent defence in the cross-

examination and has not explained anything as to how

the accident has occurred. Therefore, in view of

Section 106 of the Act, adverse inference will have to

be drawn against the revision petitioner for not

explaining or not giving defence evidence as to how

the accident has occurred. Learned Government

Pleader further argued that the learned JMFC as well

as learned Additional Sessions Judge have referred to

the evidence meticulously and have rightly come to

the conclusion that it is only because of the rash and

negligent driving of the bus by the revision petitioner,

the accident has occurred which has resulted in

injuries to the injured and the accused has been

rightly convicted and sentenced by both the Courts.

Accordingly, he prays to dismiss the revision petition.

12. From the above materials, the point that arises

for my consideration is,

"Whether the judgments of conviction and order of sentence passed by both the Courts are correct and legal or needs any interference by this Court?"

13. I have perused the evidence on record and the

judgments of learned JMFC as well as learned

Additional Sessions Judge.

14. Learned Additional Sessions Judge in his

judgment has raised three points for its consideration

and has also mentioned the principles regarding

interference by the Appellate Court. Accordingly,

learned Additional Sessions Judge has re-appreciated

the evidence. It is also evident that the accident has

occurred on a National Highway i.e. the road between

Sakaleshpura and Hassan near Eshwarahalli Koodige.

It is a public road and the witnesses have clearly

identified the driver of the vehicle. Therefore, the

accident has occurred on a public road is not disputed

and the evidence of these witnesses as referred to by

the learned Additional Sessions Judge that the

accused was driving the said bus is also not disputed.

Learned Additional Sessions Judge has referred to the

report of the Motor Vehicle Inspector-PW.8,

Manjunatha, who has examined the vehicle and gave

the report as per Ex.P.11, which shows that both the

vehicles are damaged. The photographs of both the

vehicles were also produced along with the negatives

and marked as Exs.P.13 to P.19. The said report of

PW.8 clearly indicates that the accident is not due to

any mechanical defect in the vehicle. On the other

hand, the photographs and the spot panchanama

shows that the left side of the bus was damaged and

the hind portion of the Canter lorry was also

damaged. Learned Additional Sessions Judge has

referred to the evidence of PW.1-Ahamed Jaan, driver

of the Canter lorry who has stated that while he was

driving, at about 12.30 a.m. in the midnight on

01.01.2006, a KSRTC bus dashed to his vehicle and

his Canter vehicle turtled, PW.1 and others sustained

injuries. Then, he came out from the front portion of

the vehicle and identified the accused as the driver of

the Bus. The cross-examination of PW.1 shows that

the accused even went to the extent of denying that

PW.1 is not the driver of the said vehicle i.e. Bus.

PW.2-Imran who is the Cleaner of the said lorry has

also stated that the offending vehicle came from

behind and dashed against the lorry and it turtled. He

also sustained injuries. PW.3-Abdul Salam, the owner

of the Canter lorry has stated that both the driver and

the Cleaner of the said vehicle informed him about the

accident. PW.4-Mohammed Ilyas and PW.5-Khallel

Ulla Khan are the witnesses for the recovery mahazar.

They have stated about the mahazar. Ex.P.12-sketch

map and Ex.P.10-complaint clearly show that the road

was straight and there was no curve, Canter lorry was

moving on the left side of the road. Ex.P.1-Mahazar

also clearly stated that the width of the road was

about 22 feet and it was a straight road. Learned

Additional Sessions Judge considering the evidence of

witnesses, photographs and spot panchanama, the

sketch and the report of the Motor Vehicle Inspector

found that the accident occurred on the extreme left

side of the road. The accused has not explained as to

how the accident occurred. Even in the cross-

examination, no suggestions were made in this

regard. In the absence of any such suggestion or

defence evidence by the accused, learned Additional

Sessions Judge came to conclusion that the finding of

learned JMFC that the accident occurred due to rash

and negligent driving by the driver of the said vehicle

cannot be illegal and capricious.

15. I have perused both the judgments and the

evidence on record. The defence of the accused that

the road was curve is not true. On the other hand,

the sketch and the spot panchanama clearly indicate

that the road was straight. The photographs clearly

indicates that the accident occurred due to the bus

hitting the Canter lorry from behind and it got turtled.

Of course, it is midnight at 12.30 a.m., but the width

of the road was 22 feet and the accident occurred on

the extreme left side of the road where Canter lorry

was moving. So the driver of the bus ought to have

taken care and he should have acted as a reasonable

and prudent man in a similar situation while driving

the vehicle on such road and such time. But, here,

the nature of accident and the damage to the vehicles

clearly indicates that the driver of the bus was driving

the vehicle in a negligent and reckless manner and he

was driving on a public road in a rash and negligent

manner so as to endanger human life or which is likely

to cause injuries to the persons inside the Canter

lorry. The driver of the bus ought to have taken

reasonable care in such a situation during night time.

Here, the very impact of the accident itself shows that

the bus hit the Canter lorry in a very high speed in a

negligent and reckless manner even Canter vehicle's

front glass was also broken. Thus, the Court can infer

the nature of driving by the bus driver.

16. On the other hand, the cross-examination by

accused is totally inconsistent and it goes on changing

from witness to witness. Apart from that, in the

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

accused has not explained anything as to how the

accident occurred. Because it is within the knowledge

of the revision petitioner/accused to show before the

Court as to how the accident occurred. The accident is

admitted, place of the accident is admitted and time is

also admitted. If the driver of Bus denies it, then he

has to explain how the accident occurred. As argued

by learned amicus curiae, the initial burden is on the

prosecution to prove beyond all reasonable doubt the

allegations as alleged. When once the prosecution

proves its case, then, Section 106 of the Act in these

type of cases and circumstances comes into picture.

Section 106 of the Act clearly states that when any

fact is within the knowledge of any person, the burden

of proving that fact is upon him. If the driver of the

bus has not caused the accident because of rash and

negligent manner of driving, then he should have

explained as to how the accident has occurred and the

damage caused to the Canter lorry. The defence that

on its own the Canter lorry turtled and trembled is

false in view of the damage to the bus also. Unless

the bus hits the Canter lorry, this accident would not

have occurred. Therefore, in view of the evidence on

record, both learned JMFC as well as learned

Additional Sessions Judge on re-appreciating the

evidence found that the accused is guilty of the

offence and have rightly convicted the accused. I find

no illegality in the finding of conviction by both the

Courts. On the other hand, both the Courts have

appreciated the evidence on record in a proper

perspective based on settled principles regarding

appreciation of evidence in these types of accident

cases.

17. As far as the order of sentence is concerned,

learned amicus curiae, argued that the accident is of

the year 2006. The revision petitioner is working as a

bus driver in KSRTC, Puttur Depot and there are no

records of he committing any accident subsequent to

this accident. Of course, no material is placed in this

regard to show that he was involved in such cases

subsequent to this accident. Sections 279, 337 and

338 of IPC state that the offender can be punished

either with imprisonment or with fine or with both.

The nature of the injuries, except to one witness, all

other injuries are simple in nature. The accident

occurred on a New Year day of 2006, at 12.30

midnight. Looking to the year of accident, period of

pendency of case, the nature of accident,

circumstance under which the accident has occurred

and keeping in mind the settled principles regarding

imposing sentences, in my considered view, the

sentence of imprisonment works out to be too harsh

to the revision petitioner/accused. The imposition of

sentence depends upon many factors. The Court has

to take into consideration the nature of offence,

gravity of offence, its impact on the society, the

circumstances under which the accident has occurred,

the background of the accident, the subsequent

conduct of the accused during the pendency of the

case and other relevant circumstances. Looking to the

nature of injuries and the nature of accident, in my

considered view, the ends of justice would be met by

setting aside the order of sentence of imprisonment

and modifying the said sentence and confining the

sentence to only one of fine as imposed by learned

JMFC. Accordingly, I pass the following order;

Order

i) The Criminal Revision Petition is partly

allowed.

ii) The judgment of conviction passed by the

Civil Judge (Jr.Dn.) & JMFC, Alur, in C.C.No.284/2006,

dated 10.09.2008 for the offences punishable under

Sections 279, 337 and 338 of IPC which was

confirmed by learned Additional Sessions Judge,

Hassan, in Criminal Appeal No.138/2008, dated

15.11.2010 is hereby confirmed.

iii) Further, the sentence of fine imposed by

learned JMFC and confirmed by learned Additional

Sessions Judge is also confirmed.

iv) The order of sentence of imprisonment

imposed for the offences punishable under Sections

279, 337 and 338 of IPC is set aside.

v) The revision petitioner/accused, if not

deposited the fine amount, the Trial Court shall take

steps to recover the fine amount, in accordance with

law.

This Court places on record the appreciation for

the assistance rendered by Sri B S Venkatanarayan,

learned amicus curiae.

Office is directed to pay an honorarium of

Rs.5,000/-to the learned amicus curiae.

Sd/-

JUDGE

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