Earanna Gurupadappa Bhadragonda vs The State Of Karnataka
2022 Latest Caselaw 5722 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 30TH DAY OF MARCH, 2022

                           BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.990/2012

BETWEEN:

EARANNA GURUPADAPPA BHADRAGONDA,
S/O GURUPADAPPA,
AGE: 35 YEARS,
OCC: KSRTC BUS DRIVER,
BUS NO.KA-19-F-2375,
MADIKERI DEPOT,
R/O KARVARA VILLAGE & POST,
SIDHAGI TALUK, BIJAPUR DISTRICT.                ...PETITIONER

             (BY SMT. A.L. SARITA, AMICUS CURIAE)

AND:

THE STATE OF KARNATAKA,
BY MADIKERI RURAL POLICE,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-01.                                  ...RESPONDENT

               (BY SMT. RASHMI JADHAV, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 AND 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
16.08.2012 PASSED BY THE S.J., KODAGU, MADIKERI IN CRL.
APPEAL NO.15/2011 THEREBY CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION DATED 27.04.2011 PASSED BY THE
C.J.M., KODAGU, MADIKERI IN C.C.NO.126/2010 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 279 AND 304A OF IPC.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Heard the learned amicus curiae for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

2. The factual matrix of the case of the prosecution is

that on 27.05.2010 at about 10.30 a.m., on Madikeri Madapura

Main Road, near 3rd Mail at Karnangeri Village, the accused being

the driver of the KSRTC bus No.KA-19-F-2375 drove the same in

a rash and negligent manner towards Somwarpet from Madikeri

endangering the human life and dashed against the Maruti Omni

Van bearing No.KA-12-N-2685, which was coming from

Somwarpet towards Madikeri. Due to the impact, the injured

sustained grievous injuries and succumbed to the injuries while

taking him to the hospital. The police have registered the case

and investigated the matter and filed the charge-sheet for the

offence punishable under Sections 279 and 304A of IPC. The

accused was secured and he did not plead guilty and hence the

prosecution examined P.W.1 to P.W.10 and got marked the

documents at Exs.P.1 to 12. The petitioner has not led any

defence evidence. The Trial Court after considering both oral

and documentary evidence placed on record, particularly

believing the evidence of P.W.7, comes to the conclusion that

P.W.7 witnessed the accident and he is an eye-witness and

convicted the petitioner and sentenced him to undergo

imprisonment for a period of six months and to pay fine of

Rs.1,000/- for the offence punishable under Sections 279 and

304A of IPC and in default of payment of fine to undergo simple

imprisonment for a period of 15 days.

3. Being aggrieved by the judgment of conviction and

sentence, an appeal is filed in Crl.A.No.15/2011 and the

Appellate Court, on re-appreciation of the evidence available on

record, particularly considering Exs.P.7 and 8 spot mahazar and

sketch, dismissed the appeal confirming the judgment of

conviction and comes to the conclusion that the petitioner has

not explained as to why he had been to the wrong side of the

road. Absolutely he has no explanation for it. The Appellate

Court took note of the principle of res-ipsa-loquitor and applied

the same and also observed that though there is no eye-witness

account and circumstances speak for themselves and certainly

an inference can be drawn that the accident took place on

account of the rash and negligent driving of the appellant and

hence answered the point as affirmative in coming to the

conclusion that the accident was taken place due to the

negligence on the part of the petitioner and dismissed the

appeal. Hence, the present petition is filed before this Court.

4. The learned counsel for the petitioner did not appear

before this Court and hence this Court appointed amicus curiae

to assist the Court. The amicus curiae in her argument would

vehemently contend that both the Courts have failed to take

note of the fact that P.W.7 is not an eye-witness and though he

was projected as an eye-witness, he is not an eye-witness and

wrongly convicted the petitioner applying the principle of res-

ipsa-loquitor. There is no material before the Court that accident

was on account of culpable recklessness or negligence on the

part of the petitioner and the Appellate Court mainly relied upon

the documents Exs.P.7 and 8 and ought not to have relied upon

the same.

5. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

P.W.7 claims that he is an eye-witness and the documents

Exs.D.1 and 2 which were confronted are admitted by P.W.7 and

hence no doubt the evidence of P.W.7 cannot be accepted as he

deposed, but the fact is that the document Exs.P.7 and 8 are

spot mahazar and sketch which are not disputed by the

petitioner during the course of cross-examination and the driver

went on the wrong side and dashed against the car which was

coming in the opposite direction from Somwarpet towards

Madikeri. Hence, the Appellate Court in paragraph No.28

discussed in detail and confirmed the conviction and sentence.

6. Having heard the amicus curiae for the petitioner

and learned High Court Government Pleader appearing for the

respondent-State and also on perusal of the material available

on record, the points that arise for the consideration of this

Court are:

(i) Whether both the Courts have committed an error in convicting the petitioner and confirming the conviction and sentence?

(ii) Whether it requires interference of this Court by exercising the revisional powers?

(iii) What order?

Point Nos.(i) and (ii):

7. Having heard the respective learned counsel and also

on perusal of the material available on record, no doubt, it is an

allegation against the petitioner that he drove the vehicle in a

rash and negligent manner and caused the accident and due to

the said act, the injured succumbed to the injuries. The fact that

the injured passed away is also not in dispute. The prosecution

relies upon the evidence of P.W.1 to P.W.10 and mainly relies

upon the evidence of P.W.7 claiming that he is an eye-witness.

Though the Trial Court extracted the admission elicited from the

mouth of P.W.7 in paragraph No.23 admitting the document

Exs.D.1 and 2, inspite of it, given importance to the evidence of

P.W.7. However, the Appellate Court on re-appreciation of the

material on record, particularly in paragraph No.28 discussed

and comes to the conclusion that even though there is no eye-

witness account and circumstances speak for themselves and

certainly an inference can be drawn that the accident took place

on account of rash and negligent driving of the appellant. The

Appellate Court has taken note of Exs.P.7 and 8 and Ex.P.7 and

8 is not disputed during the course of cross-examination of the

Investigating Officer. The said documents are marked through

P.W.1, who had drawn the mahazar in terms of Exs.P.7 and 8.

In the cross-examination of P.W.1, except suggesting that he did

not go to the spot and not drawn the mahazar, nothing is elicited

from the mouth of P.W.1 and P.W.2.

8. The IMV report, which is marked as Ex.P.3 clearly

discloses the damages caused to the bus as well as the vehicle in

which the victim was proceeding. On perusal of the IMV report

of the KSRTC bus, it discloses that windscreen glass was

cracked, front grill damaged, front body damaged, front right

side bottom body dented and torn, front right side body near

wheel arch damaged and front right side headlight broken. All

these damages clearly discloses that the bus only went and

dashed against the other vehicle i.e., Maruti Omni. Apart from

that, the sketch is very clear that the driver of the bus went on

the wrong side and even though the road measurement is 20

feet, only 4 feet is there from the distance at the edge of the

right portion of the road and almost he went towards the right

side for about 16 feet and not proceeded on the left side of the

road. Hence, taking note of Ex.P.8 sketch, Ex.P.7 spot mahazar

and Ex.P.3 IMV report, the Appellate Court in paragraph No.28

rightly re-appreciated the material available on record though

the Trial Court has committed an error in believing the evidence

of P.W.7. The principle of res-ipsa-loquitor is applied by the

Appellate Court and the material on record discloses with regard

to the application of principle of res-ipsa-loquitor having

considered the documents Exs.P.3, 7 and 8. Having considered

the material available on record, I do not find any error

committed by both the Courts in convicting the petitioner, who

drove the vehicle in a rash and negligent manner. But there is a

force in the contention of the petitioner that the prosecution

relied upon the evidence of P.W.7, but the fact is that not only

the prosecution relied upon the evidence P.W.7 and also taken

note of other material as circumstantial evidence and hence I do

not find any ground to exercise the revisional jurisdiction to

come to other conclusion.

9. Regarding sentence part is concerned, the Trial Court

convicted the petitioner for the offence punishable under

Sections 279 and 304A of IPC and imposed fine of Rs.1,000/-

each for both the offences. Apart from that, the substantive

sentence of six months is imposed for the offence punishable

under Section 304A of IPC. When the ingredients of the offence

under Section 279 of IPC merges with the offence under Section

304A of IPC, the Trial Court ought not to have convicted the

petitioner for the offence punishable under Section 279 of IPC.

Hence, it requires interference of this Court and the conviction in

respect of Section 279 of IPC is hereby set aside. Consequently,

the fine of Rs.1,000/- is also set aside. If any amount is

deposited, the same has to be refunded in favour of the

petitioner, on proper identification.

Point No.(iii):

10. In view of the discussions made above, I pass the

following:

ORDER

(i) The criminal revision petition is allowed in part.

(ii) The conviction and sentence in respect of Section 279 of IPC is set aside and the amount in deposit, if any, is ordered to be refunded to the petitioner, on proper identification.

(iii) The conviction and sentence for the offence punishable under Section 304A of IPC is

confirmed and sentence also confirmed. The fine amount is unaltered.

(iv) The Registry is directed to pay the fees of Rs.5,000/- to the amicus curiae.

Sd/-

JUDGE

MD