Karnataka High Court
Arun Mangu @ Krishna Poojari vs The State Of Karnataka on 30 September, 2022
Bench: G Basavaraja
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CRL.RP No. 2315 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 2315 OF 2012 (397)
BETWEEN:
1. ARUN MANGU @ KRISHNA POOJARI
AGE: 26 YEARS,
R/O. KULUGIRI, UDUPI, DIST: UDUPI
...PETITIONER
(BY SRI. HALEEMA AMEEN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS MANKI POLICE STATION R/BY ADDITIONAL
PUBLIC PROSECUTORHIGH COURT OF KARNATAKA
CIRCUIT BENCH,DHARWAD
...RESPONDENT
(BY SRI. ADDL SPP.,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT
AND ORDER OF CONVICTION DATED 04.02.2011 PASSED BY
THE PRL. JMFC, HONAVAR, IN C.C.NO.413/2010 AND WHICH
WAS CONFIRMED BY THE JUDGEMENT AND ORDER DATED
30.10.2012 PASSED BY THE DIST. & SESSIONS JUDGE,
UTTARA KANNADA, KARWAR, IN CRL.A.NO.37/2011 AND
ACQUIT THE PETITIONER FOR THE CHARGES P/U/S 279, 337,
338, 304-A OF IPC.
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CRL.RP No. 2315 of 2012
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
06.09.2022 FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed under Section
397 read with Section 401 of Cr.P.C. seeking to set aside
the judgment and order of conviction dated 04.02.2011
passed by the Principal JMFC, Honnavar in C.C.
No.413/2010 which is confirmed by the judgment and
order dated 30.10.2012 passed by the District and
Sessions Judge, Uttara Kannada, Karwar in Criminal
Appeal No.37/2011 and acquitted the petitioner for the
charges punishable under Sections 279, 337, 338 and
304A of IPC.
2. The ranks of the parties are referred to as per their
status before the trial Court.
CRL.RP No. 2315 of 2012
3. The case of the prosecution in brief is that on
30.04.2010 at about 10 A.M. at Manki Ellimakki in
Honnavar Taluk on NH-17, accused being the driver of
Tempo trax bearing registration No.KA-20/T-3557 drove
the same in a rash and negligent manner, so as to
endanger the human life, took left side and went to a hill,
as a result the vehicle was capsized. After filing the charge
sheet, the trial Court has taken cognizance for the alleged
commission of offence. The case was registered in C.C.
No.413/2010. In response to the summons, accused
appeared before the trial Court and plea was recorded,
accused pleaded not guilty and claimed to be tried.
4. To prove the guilt of the accused, prosecution
examined in all five witnesses as PWs.1 to 5 and got
marked 18 documents as Exs.P1 to P18. The statement
under Section 313 of Cr.P.C. was recorded. The accused
has totally denied evidence appearing against him. He has
not chosen to lead any evidence on his behalf, but during
CRL.RP No. 2315 of 2012
the course of cross-examination of PW4, Ex.D1 got
marked.
5. On hearing the arguments of both side, the trial
Court has convicted the accused for the commission of
offence punishable under Sections 279, 337, 338 and 304
of IPC. The impugned judgment of the trial court reveals
that the accused was produced before the Court by the
surety on 31.01.2011. The trial Court order sheet reveals
that on 21.02.2011, accused was released on bail. As per
the order sheet of Sessions Judge in Crl.A.No.37/2011,
accused was in judicial custody for a period of 20 days and
sentenced for a period of three months for the offence
punishable under Section 337 and 338 of IPC and simple
imprisonment for one year for the commission of offence
under Section 304A of IPC. Being aggrieved by the
judgment and order of sentence, the accused has
preferred an appeal in Crl.A.No.37/2011 on the file of
District and Sessions Judge, Uttara Kannada, Karwar and
the said appeal came to be dismissed on 30.10.2012.
CRL.RP No. 2315 of 2012
Being aggrieved by the judgment passed by the Appellate
Court, petitioner is before this Court.
6. The learned counsel appearing on behalf of the
petitioner has submitted his arguments that the impugned
judgment passed by the trial Court is not sustainable in
law. Both the courts below have not properly appreciated
the evidence on record. PWs.1, 3 and 4 are eye witnesses.
During the course of cross examination of PW1, he has
clearly admitted that, accident is not occurred due to the
act of the PWs.1 and 3. In para 28 of the judgment of
Appellate Court, it is observed that prosecution witnesses
have admitted that there was slight drizzling on the day of
incident. However, witnesses have specifically answered
that the driver of the vehicle did not tried to overtake any
vehicle at the time of accident. They have also stated that
they cannot assign any exact reason for the accident.
Though the Appellate Court has observed this fact, same is
not properly appreciated in favour of the accused and
confirmed the impugned judgment passed by the trial
CRL.RP No. 2315 of 2012
Court. Both the courts have relied on the doctrine of Res
Ipsa Loquitur and has convicted the accused for alleged
commission of offence. Said principle of doctrine of Res
Ipsa Loquitur is not applicable to the criminal cases in view
of the reasons assigned in the judgment of Hon'ble Apex
Court. On all these grounds, he seeks for allowing the
revision petition.
7. The learned counsel Addl. SPP has submitted his
arguments that both the Courts have properly appreciated
the evidence on record and convicted the accused for
commission of the alleged offences. The accused has not
offered any explanation as to this accident while recording
statement under Section 313 of Cr.P.C. Therefore, the
defence set up by the accused counsel cannot be accepted
and to substantiate his arguments, he relied on the
decisions of Hon'ble Supreme Court in the Case of State of
Karnataka Vs. Vajrappa reported in 2018(4) KCCR
3182. During the course of reply arguments, learned
counsel for the petitioner relied on decision of Hon'ble
CRL.RP No. 2315 of 2012
Supreme Court, in the case of Bharat Vs. State of
Madyapradesh reported in 2003(3) SCC 106 and in the
case of Balaji Gunthu Dhule vs State Of Maharashtra
Reported in 2012(11) SCC 685.
8. I have carefully examined the materials placed by
the prosecution. According to the case of the prosecution,
PW-1-Chandrakantha Seena Shetty is the complainant,
CWs.6 to 14 are the eye witnesses to this incident. Out of
them, the prosecution has examined CW-1 Chandrakanth
Seena Shetty, who has deposed in his evidence that on
30.04.2010, he, his wife, CWs.5 to 14 and deceased were
proceeding in a Tempo Trax to Gokarna at about 10 a.m.
They left to Murudeshwara. While, they were proceeding
near Manki Ellimakki in Honnavar Taluk, the accused drove
the vehicle in high speed and in negligent manner. He
took vehicle towards left side and went on hill and it was
capsized. As a result, he has sustained injuries and then
he was shifted to RNS Hospital, Murudeshwara. Then he
lodged the complaint before the Police as per Ex.P1.
CRL.RP No. 2315 of 2012
Further, he has deposed that Police have conducted
mahazar as per Ex.P2.
9. From the prosecution papers, the CW.2-Suresh
Kumar has attested the panchanama-Ex.P2 & has deposed
in his evidence that Investigating Officer has conducted
spot mahazar as per Ex.P2, prepared the spot sketch as
per Ex.P3 and he has put his signature on inquest
panchanama-Ex.P.4. CW.5-Narayana and CW.6-Jyothi are
said to be the injured eye witnesses examined as PWs.3
and 4. They have deposed in their evidence that on
30.04.2010, while they were proceeding in a Tempo Trax
driven by the accused from Murudeshwara to Gokarna,
near Manki Ellimakki the accused drove the vehicle in rash
and high speed, the vehicle to the left side of the road and
went on hill and capsized as a result both have sustained
some injuries.
10. CW.21-M.Jagadish, CPI has deposed in his evidence
that on 30.04.2010, the inquest panchanama as per Ex.P4
and he has also conducted spot panchanama as per Ex.P2
CRL.RP No. 2315 of 2012
and recorded statement of witnesses CWs.4 to CW.16. He
arrested the accused and released him on bail. He has
issued the notice to the owner of the vehicle as per Ex.P5
and obtained his reply as per Ex.P.6 and after obtaining
postmortem report, wound certificates and IMV report, he
has submitted the charge sheet against the accused.
11. It is not in dispute that accused was the driver of the
Trax bearing No.KA-20-B-3557 at the relevant point of
time. The accident is also not disputed. The death of one
of the inmate of the vehicle Sri.Kutti s/o Seena selly, aged
55 years is not disputed. Postmortem report is also
submitted as per Ex.P7. It is also not in dispute that due
to this accident, CWs.3, 4 and others have sustained some
injuries. The wound certificate also produced as per Ex.P.9
to 18. It is also not in dispute that this accident is not due
to any mechanical defect which is also reflected from IMV
report-Ex.P.8. Now, the question is whether the accident
occurred due to rash and negligent act on the part of the
accused. In this regard, PWs.1, 3 and 4 have deposed in
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CRL.RP No. 2315 of 2012
their examination in chief that the accident occurred, as
the accused drove the vehicle in high speed and in
negligent manner. But, during the cross examination of
PW.1, he has clearly stated that at the time of accident,
accused has not over took any vehicle. Further, he has
admitted that the road is down gradient on the accident
spot. That day, it was raining and oil was spilled on the
road. Further, he has admitted that the accident not
occurred due to fault of the accused. In the cross
examination of PW.31, he has stated that accused has not
overtook any vehicle at the time of accident and accident
occurred towards left side of the road. He does not know
as to exact cause for this accident. Further, he has
deposed that he cannot say how the accident was
occurred.
12. In the cross examination of PW.4, she has admitted
that accused has not overtook any vehicle, she cannot say
as to the cause of this accident. Rain was coming. In the
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CRL.RP No. 2315 of 2012
cross examination of PW.5, the Investigating Officer has
stated that it was rainy season.
13. In para No.6, page No.3 of the judgment of the trial
Court, the trial Court has observed that in the cross
examination of all the witnesses, it is stated that they
cannot say how the accident has taken place. However, it
is observed that merely because of admission of these
witnesses to this effect, the entire evidence in the chief
examination about the specific negligent act and rash
driving of the accused cannot be taken away.
14. The Appellate Court has also observed in the
judgment, as to the admissions made by the prosecution
witnesses. On re-appreciation of the evidence on record,
it is crystal clear that driver of the vehicle did not tried to
overtake any vehicle at the time of accident. It is
admitted that on the date of accident, there was slight
drizzling, and the oil was spilled on the road. The learned
counsel for the accused submitted that the accused has
driven the vehicle slowly, of spilling of oil on the road and
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CRL.RP No. 2315 of 2012
slight drizzling on the day of incident, the alleged accident
was occurred.
15. A perusal of the spot mahazar-Ex.P.2 , the
Investigating Officer has not stated anything as to spilling
of oil on the road, break marks also not observed by the
investigating officer even in Ex.P.3 rough sketch, and also
investigating officer has not shown the essential
ingredients as required under Para 1245 and 1248 of
Chapter-xxvi of Karnataka Police Manual. Both the Courts
below have not taken into consideration as to the
admission made by the prosecution witnesses and only on
the basis of evidence adduced in examination in chief, the
trial Court has convicted the accused for the alleged
commission of offence, without considering the other
factors like spilling of oil on road and slight drizzling at the
relevant point of time along with the admissions made by
the prosecution witnesses. The accused has elicited from
the mouth of prosecution witness that they cannot say
exact cause for the accident. In such circumstances, the
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CRL.RP No. 2315 of 2012
evidence of prosecution witnesses will create reasonable
doubt about the rash and negligent driving on the part of
the accused. In view of the principles of criminal
jurisprudence that benefit of doubt shall be given to the
accused. But, both the courts below have considered the
admissions of the prosecution witnesses but both the
courts have held that the accused has committed the
alleged offence only on the basis of doctrine of Res Ipsa
Loquitur.
16. Now the question arises for consideration is whether
the doctrine of Res Ipsa Loquitur is applicable to the
criminal cases. In this regard, I have relied on the recent
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 is observed that as far as the onus of
proving the ingredients of an offence is concerned, it is
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CRL.RP No. 2315 of 2012
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.
17. In the case on hand, prosecution has failed to prove
the negligent act on the part of the accused. Investigating
Officer has failed to ascertain the exact cause for this
accident. Prosecution also failed to establish direct nexus
between negligence of accused and death of victim.
Considering the facts and circumstances of the case,
keeping in mind the aforesaid recent decision of Hon'ble
Apex Court, I am of the considered opinion that the Courts
below have committed an error in coming to conclusion
that the accused has committed the alleged offences on
the basis of doctrine of Res Ipsa loquitor.
18. On careful examination of the admissions of the
prosecution witnesses, it is crystal clear that the
prosecution has failed to prove the guilt of the accused
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CRL.RP No. 2315 of 2012
beyond all reasonable doubts. However, the Courts below
have convicted the accused for the alleged commission of
offences which is not sustainable in the eyes of law.
Hence, I proceed to pass the following:
ORDER
The Criminal Revision Petition is allowed.
The Judgment of conviction and Order on
sentence passed by the Prl. JMFC., Honnavar in
C.C.No.413/2010 dated 04.02.2011, which is
upheld by the District and Sessions Judge, Uttara
Kannada, Karwar in Crl.A.No.37/2011 dated
30.10.2012 are hereby set aside.
The Revision Petitioner is acquitted of the
offences under Sections 279, 337, 338, 304-A of
IPC. His bail and surety bonds if any, shall stand
cancelled.
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CRL.RP No. 2315 of 2012
The fine amount if any deposited by the
petitioner is ordered to be refunded to him after
due identification and acknowledgement.
Send back the trial courts records along
with copy of this order.
Sd/-
JUDGE
HMB
