Suresh S/O Shrimant Kamble vs The State Of Karnataka
2022 Latest Caselaw 12044 Kant

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              CRL.RP No. 100187 of 2014


  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 22ND DAY OF SEPTEMBER, 2022

                           BEFORE
         THE HON'BLE MR JUSTICE G BASAVARAJA
  CRIMINAL REVISION PETITION NO. 100187 OF 2014 (397)
BETWEEN:

    SURESH S/O SHRIMANT KAMBLE
    AGE: 38 YEARS, OCC: DRIVER IN KSRTC
    R/O. SHIRGAON, TQ: CHIKODI
    DIST: BELGAUM


                                               ...PETITIONER
(BY SRI. ANAND L SANDRIMANI.,ADVOCATE)

AND:

    THE STATE OF KARNATAKA
    YAMAKANMARDI POLICE STATION
    R/BY STATE PUBLIC PROSECUTOR
    HIGH COURT OF KARNATAKA,DHARWAD


                                              ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP.)

       THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W

401 OF CR.P.C. PRAYING TO ALLOW THE ABOVE SAID APPEAL AND

SET ASIDE THE JUDGMENT DATED 01.09.2014 PASSED BY THE VII-

ADDL. DIST. & SESSIONS JUDGE, BELGAUM, AT CHIKKODI IN

CRL.A.NO.139/2013 AND JUDGMENT PASSED IN C.C.NO.109/2012

ON THE FILE OF THE CIVIL JUDGE & JMFC COURT, HUKKERI, DATED

30.07.2013.
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             CRL.RP No. 100187 of 2014


     THIS PETITION HAVING BEEN HEARD AND RESERVED ON

05.09.2022 FOR ORDERS AND COMING ON FOR PRONOUNCEMENT,

THIS DAY, THE COURT MADE THE FOLLOWING:


                              ORDER

This criminal revision petition is filed by the

petitioner / accused under Section 397 read with Section

401 of the Code of Criminal Procedure, 1973 (for short

'Cr.P.C.') for setting aside the Judgment dated 01.09.2014

passed by the VII Addl. District and Sessions Judge,

Belgaum, Chikkodi in Crl. A. No.139/2013 and Judgment

passed in C.C. No.109/2012 on the file of Civil Judge and

JMFC, Hukkeri dated 30.07.2013.

2. Heard the arguments of learned counsel for the

petitioner and the learned Additional State Public

prosecutor.

3. The parties will be referred to as per their ranks in

the trial Court.

CRL.RP No. 100187 of 2014

4. The case of the prosecution is that on 03.02.2012 at

about 12.30 p.m. near the land of Dundappa Nashipudi, on

the Hattaragi-Hukkeri public road, the accused being the

driver of KSRTC Bus bearing Registration No.KA-23/F-404,

drove the bus in a rash and negligent manner and dashed

to the bullock cart coming in front of the bus and caused

the accident due to which the bullock cart fell down on the

left side of the road and inmates of the bullock cart CW-1

and CW-6 sustained grievous injuries and Laxmavva

sustained grievous injuries and died in the hospital. Thus

the accused has committed the alleged offences.

5. After the filing charge-sheet, the Trial Court has

taken cognizance against the accused for the alleged

commission of offences and case was registered in C.C.

NO.109/2012. Plea was recorded, accused pleaded not

guilty and has claimed to be tried.

6. To substantiate the case of the prosecution, in all,

ten witnesses were examined as P.W.1 to P.W.10 and

nineteen documents are got marked as Exs.P1 to P19.

CRL.RP No. 100187 of 2014

One material - sample bottle are marked as M.O.1. On

closure of prosecution side evidence, the statement under

Section 313 Cr.P.C. was recorded. Accused has denied the

incriminating circumstances found against him and

submitted written statement. But he has not chosen to

lead any defence evidence on his behalf. On hearing the

arguments, the learned Civil Judge and JMFC, Hukkeri has

passed the Judgment by convicting the accused for the

commission of offences punishable under Sections 279,

337, 304A of IPC and sentenced the accused to pay a fine

of Rs.1,000/- for the offence under Section 279 of IPC,

fine of Rs.500/- for the offence under Section 337 of IPC

and to undergo simple imprisonment for a period of six

months and pay a fine of Rs.1,000/- for the offence under

Section 304A of IPC.

7. Being aggrieved by this Judgment and Order of

conviction and sentence passed by the Trial Court, the

accused/petitioner had preferred an appeal before the VII

Addl. District and Sessions Judge, Belgaum at Chikkodi in

CRL.RP No. 100187 of 2014

Crl.A. No.139/2013. The appeal was partly allowed by

confirming the order of conviction passed in C.C.

No.109/2012 dated 30.07.2013 and sentence was

modified by reducing the simple imprisonment from six

months to three months and fine of Rs.5,000/-, in default

to undergo two months' simple imprisonment for the

offence punishable under Section 304A of IPC. As against

this, the revision petitioner has preferred this Criminal

Revision Petition.

8. The learned counsel appearing on behalf of the

petitioner has submitted his arguments that the impugned

Judgments passed by both the Courts are not maintainable

in law. The learned Magistrate has mechanically believed

the testimony of the complainant and witnesses. The

interested testimony of PW-1, PW-3 and PW-5 have not

been corroborated by any independent witnesses. The

accused has explained the cause for accident in his written

statement under Section 313 Cr.P.C. but same has not

been appreciated by both the Courts. Further it is

CRL.RP No. 100187 of 2014

submitted that PW-1, PW-3 and PW-5 said to be the eye

witnesses have admitted in their cross-examination that

on seeing the Maruti car, the driver of the bullock cart all

of a sudden changed the track of road without taking any

precaution. But this aspect has not been considered by

both the Courts. Both the Courts have failed to appreciate

the evidence on record in proper perspective manner.

Hence, sought for allowing this revision petition.

9. Before appreciating the evidence on record, it is

relevant to mention here as to the provisions of Section

401 of the Code of Criminal Procedure, 1973 which reads

as under:

" 401. High Court' s Powers of revision:

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges

CRL.RP No. 100187 of 2014

composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

CRL.RP No. 100187 of 2014

Keeping in mind the above provisions, perused the

prosecution papers.

10. From the perusal of the prosecution papers and

evidence it can be seen that PW-1 Bhairappa Durgappa

Badiger is the complainant. PW-2 Jeevappa Santu Patil

and PW-4 Ravindra Ramagouda Agasar are the attestors

to the spot panchanama and inquest panchanama

respectively. PW-3 Ratnavva Tukaram Badiger is the

injured. PW-5 Basavaraja Appasab Desai is the only eye

witness. PW-6 Ramesha Balappa Guddakai is the hearsay

witness. PW-8 N.G. Pathan is the Motor Vehicle Inspector.

PW-9 S.S. Nadagaddi and PW-10 S.B. Girisha are the

Investigating Officers who have deposed as to their

respective investigation.

11. From a careful scrutiny of the evidence placed before

the Trial Court, it is crystal clear that the accident is not

disputed. It is also not disputed that due to the accident,

Laxmavva Tukaram Badiger aged 80 years succumbed to

the injuries which is also evident from the Ex.P8 post-

CRL.RP No. 100187 of 2014

mortem report of Laxmavva Tukaram Badiger. It is also

not in dispute as to the injuries caused to PW-1 Bhairappa

Durgappa Badiger and PW-3 Ratnavva Tukaram Badiger

which is reflected in the two wound certificates as per

Exs.P9 and P10. It is also not in dispute that due to this

accident, two bullocks sustained injuries as shown in

Exs.P11 and P12 wound certificates issued by the

veterinary doctor. Now the question for consideration is

whether accident occurred due to rash and negligent

driving of the accused or not.

12. PW-1 Bhairappa Durgappa Badiger and PW-3

Ratnavva Tukaram Badiger are the eye witnesses who

have also sustained injuries in the accident. PW-1

Bhairappa Durgappa Badiger has deposed in his evidence

that on 03.02.2012, he along with his sister Laxmavva

Tukaram Badiger and sister-in-law Ratnavva Tukaram

Badiger were going in a bullock cart towards left side of

Badakundri village road. At that time, the KSRTC Bus

came from back side in a high speed and hit to the bullock

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CRL.RP No. 100187 of 2014

cart. As a result, he has received injuries on his right

knee and waist. Laxmavva Tukaram Badiger has received

injuries on her forehead and legs. Ratnavva Tukaram

Badiger has sustained injuries to her legs, cheeks and

waist. Laxmavva Tukaram Badiger died in the hospital at

Hukkeri. The two bullocks also sustained injuries. Police

have recorded his statement as per Ex.P1.

13. PW-3 Ratnavva Tukaram Badiger has deposed in her

evidence that she along with her mother and CW-1 were

going in a bullock cart to go to Holevva temple. At that

time the bus came from back side and hit to the bullock

cart. As a result, she and her mother sustained injuries

and she was unconsciousness and she did not know who

was the driver of the bus. She gained consciousness in the

hospital. Her mother died in the hospital. This witness is

treated as hostile witness by the prosecution. During her

cross-examination made by the learned APP she has

admitted that accused was the driver of the bus at the

time of the accident.

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CRL.RP No. 100187 of 2014

14. P.W.5 Basavaraj Appasab Desai said to be the eye

witness has deposed in his evidence that on 03.02.2012,

C.W.1 Bhairappa Durgappa Badiger and his wife and

others were going in a bullock cart on Hukkeri road. The

KSRTC bus came from back side and hit to the bullock

cart. As a result, bullock cart was damaged, bullocks and

inmates of bullock cart sustained injuries. He took the

injured Laxmavva Tukaram Badiger, Ratnavva Tukaram

Badiger and Bhairappa Durgappa Badiger to the hospital

at Hukkeri. Laxmavva Tukaram Badiger died in the

hospital. Bhairappa Durgappa Badiger and Ratnavva

Tukaram Badiger sustained injuries. The accident occurred

due to fault of the driver of the bus.

15. According to the case of the prosecution, P.W.1

Bhairappa Durgappa Badiger is the complainant and also

injured. P.W.3 Ratnavva Tukaram Badiger is the injured

and P.W.5 Basavaraj Appasab Desai is the eye witness to

this accident.

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CRL.RP No. 100187 of 2014

16. From a careful scrutiny of this material witnesses

along with document Ex.P1 complaint, it is crystal clear

that the name of the alleged eye witness P.W.5 Basavaraj

Appasab Desai is not shown in the complaint. P.W.5 has

taken the injured to the hospital. But in the wound

certificate of Bhairappa Durgappa Badiger Ex.P9 and

wound certificate of Ratnavva Tukaram Badiger Ex.P10,

the name of P.W.5 Basavaraj Appasab Desai is not

disclosed. If really P.W.1 Bhairappa Durgappa Badiger and

P.W.3 Ratnavva Tukaram Badiger were taken to the

hospital by this P.W.5, the medical officer would have

mentioned the name of P.W.5 in the wound certificate that

injured was brought by PW5 with history of RTO.

Prosecution papers and also the evidence of I.O. reveal

that P.W.10 S.B. Girish the I.O. has recorded the

statement of P.W.5 under Section 161 of Cr.P.C. on

03.02.2012 but he has not submitted the same to the

Court on the same day. If really the I.O. P.W.10 had

recorded the statement of this witness P.W.5 on

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CRL.RP No. 100187 of 2014

03.02.2012, he would have submitted the same before the

Court on the same day. But he has not done so. Only at

the time of filing charge-sheet, he has submitted this

statement of P.W.5 Basavaraj Appasab Desai.

17. The I.O. has not offered any explanation as to the

non submission of the statement of P.W.5 on 03.02.2012

or at least on the next day. The I.O. has also not

explained anything as to why the name of the alleged eye

witness P.W.5 Basavaraj Appasab Desai has not been

shown in the complaint Ex.P1 and also in the wound

certificates Exs.P9 and P10. Apart from this, during the

course of cross-examination of P.W.5 he has unequivocally

admitted that he came to the spot only after the accident

and found the bullock cart and bus on the spot. This

admission of P.W.5 itself clearly goes to show that he has

not witnessed the alleged incident. Though this witness

has not witnessed this incident, the I.O. has figured this

witness as an eye witness. Apart from this, P.W.5

Basavaraj Appasab Desai has not whispered anything as to

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CRL.RP No. 100187 of 2014

the rash and negligent act on the part of the accused.

Therefore, viewed from any angle, the evidence of P.W.5

is not helpful to the case of the prosecution.

18. P.W.3 Ratnavva Tukaram Badiger said to be the eye

witness and also injured has not whispered anything as to

the rash and negligent act of the accused. Therefore this

evidence of P.W.3 will not be helpful to the case of the

prosecution to prove the guilt of the accused.

19. Now I have to analyse the evidence of P.W.1

Bhairappa Durgappa Badiger who was riding the bullock

cart at the relevant point of time. Before appreciating the

evidence of P.W.1, it is necessary to mention here as to

the defence taken by the accused which is also reflected in

the written statement of the accused filed under Section

313 of Cr.P.C. wherein he has stated that at the relevant

point of time one Maruti car came from the opposite side.

Then the rider of the bullock cart took the cart by the side

of the road without observing the vehicles coming from

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CRL.RP No. 100187 of 2014

back side. At that time, the middle of chassis (ªÀÄzsÀåzÀ F¸ÀÄ)

nudged the bus in force as a result, the accident occurred.

20. Learned counsel for the petitioner has submitted his

arguments that the material witness P.W.1 has not

deposed as to the rash and negligent act on the part of the

accused. On the date of accident, there was Badakundri

Yallawwa fair. Hence a number of vehicles and bullock

carts were moving on the road. During the course of

cross-examination of P.W.1, P.W.3 and P.W.10 the I.O.

have admitted the same in their cross-examination. The

material witness who was the rider of this bullock cart has

clearly admitted in his cross-examination that at the

relevant point of time, one Maruti car came from his

opposite side. Further he has admitted that since the car

came from opposite side he tried to take his bullock cart

by the side of the road. This admission of P.W.1 and other

prosecution witnesses reveals that since the rider of the

bullock cart all of a sudden had taken the bullock cart by

the side of the road, the alleged accident occurred. But

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CRL.RP No. 100187 of 2014

this admission and the written explanation given by the

accused has not been considered by the Courts below.

21. If really the accused drove the bus with high speed

and rash and negligent manner as alleged by the

prosecution, the bullock cart would have broken into

pieces and there could have been a major accident causing

grievous injuries to the inmates of the bullock cart and

also the bullocks. The bullocks and inmates of bullock cart

i.e. P.W.1 and P.W.3 have sustained only simple injuries

as per the wound certificates at Exs.P9 to P12. Laxmavva

Tukarm Badiger who was aged 80 years old died in the

hospital. Ex.P.8-Postmortem report reveals the external

appearance of this lady as "Old lady poorly built". Further,

the Doctor has opined that death is due to head injury.

The accused being driver of KSRTC Bus has taken all

precautionary measures to avoid the accident. But, due to

unavoidable circumstances, the middle of the chassis of

the bullock cart hit the bus and thus accident had

occurred. Further, he has submitted that the evidence

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CRL.RP No. 100187 of 2014

placed by the prosecution itself reveals that accident has

occurred not due to rash and negligent act of the accused.

On these grounds, learned counsel prays for allowing the

petition.

22. A perusal of the written statement filed by the

accused under Section 313 Cr.P.C. and the admissions of

P.W.1, P.W.3 and the I.O. P.W.10 reveal that on the date

of accident there was Badakundri Yallawwa fair and a

number of vehicles and bullock carts were moving on the

road to go to the fair. It is also admitted by P.W.1 and

P.W.3 that before the accident, one Maruti car came from

opposite side, then, all of a sudden P.W.1 the rider of the

bullock cart took his bullock cart by the side of the road

and as such this accident occurred.

23. If really the driver of the bus drove the vehicle in a

high speed, the bullock cart would have broken into pieces

and the inmates of the bullock cart and bullocks would

have sustained grievous injuries. But fortunately, only the

yoke of the bullock cart was broken no damages incurred

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CRL.RP No. 100187 of 2014

to the bullock cart and the bullocks and inmates P.W.1 and

P.W.3 have sustained only simple injuries. Ex.P8-

Postmortem report reveals as to the external appearance

of the deceased Laxmavva that her age is 80 years and

lady poorly built. Further, the doctor has opined that

death is due to head injury.

24. In the decision of the Hon'ble Apex Court in the case

of STATE OF KARNATAKA VS. SATISH reported in

(1998) 8 SCC 493, their Lordships have observed that

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 circumstances of

the case. In a criminal trial, the burden of providing

everything essential to the establishment of the charge

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CRL.RP No. 100187 of 2014

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.

25. In another recent unreported decision of the Hon'ble

Apex Court in the case of NANJUNDAPPA & ANOTHER

VS. THE STATE OF KARNATAKA IN CRIMINAL

APPEAL NO. 900/2017 DATED 17.05.2022, observed

that the doctrine of res ipsa loquitor stricto sensu would

not apply to a criminal case. Further it observed that as

far as the onus of proving the ingredients of an offence is

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CRL.RP No. 100187 of 2014

concerned, it is always upon the prosecution and at no

stage does it shift to the accused. Further observed that

for bringing home the guilt of the accused, prosecution has

to firstly prove negligence and then establish direct nexus

between negligence of the accused and death of the

victim.

26. In the instant case, as already observed, P.W.5

Basavaraj Appasab Desai is not an eye witness to the

alleged accident. P.W.3 Ratnavva Tukaram Badiger has

not whispered anything as to the rash and negligent act on

the part of the accused. P.W.1 Bhairappa Durgappa

Badiger the rider of bullock cart has also not deposed as to

the rash and negligent act on the part of the accused.

Only he has deposed that the KSRTC bus came in a high

speed and hit to back side of bullock cart. Except this

evidence, absolutely there is no evidence on record to

show that the accused drove his vehicle in a rash and

negligent manner as alleged by the prosecution. The

explanation given by the accused in his written statement

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CRL.RP No. 100187 of 2014

under Section 313 Cr.P.C. is substantiated by the

admission of P.W.1 and P.W.3. Both the Courts have not

properly considered the admissions made by P.W.1, P.W.3

and P.W.5. The contents of mahazar-Ex.P4, photo-Ex.P5,

rough sketch-Ex.P6,IMV report-Ex.P7 and also the written

explanation submitted by the accused and have passed

the impugned Judgments.

27. For the aforesaid reasons and discussions and also

keeping in mind the aforesaid Judgments of the Hon'ble

Apex Court, the impugned Judgments are required to be

set aside. Accordingly I proceed to pass the following:

ORDER

The Criminal Revision Petition is allowed.

The Judgment of conviction and Order on sentence

passed by the Trial Court under Section 255(2) of Cr.P.C.

in C.C. No.109/2012 dated 30.07.2013 which is upheld by

the Appellate Court vide Judgment in Crl.A.No.139/2013

dated 01.09.2014 are hereby set aside.

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CRL.RP No. 100187 of 2014

The Revision Petitioner is acquitted from the offences

under Sections 279, 337 and 304-A of IPC. His bail and

surety bonds shall stand cancelled.

The fine amount if any deposited by the petitioner is

ordered to be refunded to him after due identification.

Send a copy of this Order along with the Trial Court

records to the Court of learned Civil Judge and JMFC,

Hukkeri.

Sd/-

JUDGE

SAC