Karnataka High Court
U.Keshava vs The State Of Karnataka on 11 April, 2023
Bench: S Vishwajith Shetty
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CRL.RP No. 1037 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. No. 1037 OF 2014
BETWEEN:
U. KESHAVA
S/O LINGAPPA GOWDA
AGED ABOUT 30 YEARS
R/O VALAKDAMA HOUSE
KOILA VILLAGE, PUTTUR
TALUK, D.K. - 574 201.
...PETITIONER
(BY SRI POOJA KATTIMANI, ADV., FOR
SRI RAVINDRA B. DESHPANDE, ADV.)
AND:
Digitally THE STATE OF KARNATAKA
signed by B
A KRISHNA BY VITTAL POLICE STATION
KUMAR D.K.DISTRICT - 574 243.
Location: ...RESPONDENT
High Court
of Karnataka (BY SMT. RASHMI JADHAV, HCGP)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DTD.05.06.2013 PASSED BY THE ADDL. CIVIL JUDGE (JR. DN.) AND
JMFC, BANTWAL D.K., IN C.C.NO.394/2010 AND THE JUDGMENT
ORDER DTD.18.09.2014 PASSED BY THE PRL.SESSIONS JUDGE,
D.K., MANGALORE IN CRL.A.NO.235/2013 AND ACQUIT THE
PETITIONER OF THE CHARGES LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 Cr.PC is
filed by the accused challenging the judgment and order of
conviction and sentence dated 05.06.2013 passed by the Addl.
Civil Judge & JMFC, Bantwal, Dakshina Kannada, and the
CRL.RP No. 1037 of 2014
judgment and order dated 18.09.2014 passed by the Principal
Sessions Judge, D.K., Mangaluru, in Crl.A.No.235/2013.
2. Heard the learned Counsel for the petitioner and the
learned HCGP for the respondent.
3. Facts leading to filing of this revision petition as
revealed from the records narrated briefly are, on 02.11.2009
at about 9.15 p.m. at Budoli Palike of Mani village, Bantwal
Taluk, on Mangaluru-Bengaluru National Highway No.48, the
petitioner who was the driver of the Tanker lorry bearing
registration No.KA-41-7766 drove the said lorry from
Mangaluru towards Bengaluru side in a rash and negligent
manner and had dashed against the Ambassador Car bearing
No.KA-19-7765 driven by CW-2/PW-3 and had caused the
accident. In the said accident, PWs-1 & 2 who were the inmates
of the Ambassador Car had suffered injuries and their daughter
Kum. Deeksha who had also sustained injuries, succumbed to
the same on her way to the hospital. On the basis of the
complaint lodged by PW-1, a criminal case was registered
against the petitioner for the offences punishable under
Sections 279, 337, 338 & 304-A of IPC. The police after
CRL.RP No. 1037 of 2014
investigation had filed charge sheet against the petitioner for
the aforesaid offences.
4. In the said proceedings, the petitioner who had
appeared before the Trial Court pleaded not guilty and claimed
to be tried. The prosecution to prove its case had examined
nine witnesses as PWs-1 to 9 before the Trial Court and also
got marked 14 documents as Exs.P-1 to P-14. The
incriminating circumstances available against the petitioner was
denied by him during the course of his statement under Section
313 Cr.PC. The Trial Court, thereafter, heard the arguments on
both sides and by its judgment and order dated 05.06.2013
convicted the petitioner for the offences for which he was
charged and for the offence under Section 304-A IPC, he was
sentenced to undergo rigorous imprisonment for a period of
one year and to pay fine of Rs.5,000/- and in default to
undergo simple imprisonment for a period of three months. For
the offence under Section 337 IPC, the petitioner was
sentenced to undergo rigorous imprisonment for a period of
three months and pay fine of Rs.500/- and in default to
undergo simple imprisonment for a period of 15 days, and for
the offence under Section 338 IPC, he was sentenced to
CRL.RP No. 1037 of 2014
undergo rigorous imprisonment for a period of six months and
to pay fine of Rs.1,000/- and in default to undergo simple
imprisonment for a period of 30 days. The said judgment and
order of conviction and sentence passed by the Trial Court was
confirmed by the Appellate Court in Crl.A.No.235/2013 on
18.09.2014. It is in this factual background, the petitioner has
approached this Court in this revision petition.
5. Learned Counsel for the petitioner submits that the
courts below have erred in convicting the petitioner for the
alleged offences. She submits that the material on record would
go to show that the accident had taken place on the left hand
side of the road and the Ambassador car had dashed against
the lorry on the complete right side of the road, and therefore,
the courts below were not justified in convicting the petitioner
for the alleged offences. She submits that there is no evidence
available on record to prove that the petitioner was driving the
offending lorry in a rash and negligent manner. She also
submits that the independent witness - PW-9 has not supported
the case of the prosecution. She, accordingly, prays to allow
the petition.
CRL.RP No. 1037 of 2014
6. Learned HCGP has argued in support of the impugned
judgment and order of conviction and sentence and submits
that PWs-1 & 2 have consistently deposed before the Trial
Court to the effect that the accident had taken place due to the
rash and negligent driving of the petitioner. She submits that
the courts below have concurrently held that the accident had
taken place on the complete right hand side of the road, and
therefore, there is no scope for interference by this Court in
exercise of its revisional powers, and accordingly, she prays to
dismiss the petition.
7. I have given my anxious consideration to the
arguments addressed on both the sides and also perused the
material available on record.
8. The prosecution to prove its case had examined nine
witnesses before the Trial Court. PWs-1 & 2 are the inmates of
the car and parents of deceased child Kum. Deeksha. PW-3 was
the driver of the Ambassador car in which PWs-1 & 2 were
traveling along with their children. PWs-4 & 5 are the panch
witnesses to the spot mahazar - Ex.P-2. PW-6 is the owner of
the Ambassador car. PW-7 is the PSI who had received the
complaint from PW-1 and registered the FIR. PW-8 is the
CRL.RP No. 1037 of 2014
Investigating Officer who has completed the investigation and
filed charge sheet. PW-9 is the independent eye-witness to the
accident in question. Ex.P-1 is the complaint lodged by PW-1
and Ex.P-2 is the spot mahazar. Ex.P-6 is the notice issued
under Section 133 of the Motor Vehicles Act, and Ex.P-7 is the
reply given by PW-6 to the said notice. Ex.P-10 is the rough
sketch of the spot and Ex.P-11 is the motor vehicle inspection
report.
9. PWs-1 & 2 have supported the case of the prosecution
and have stated before the Court that at the time of accident,
the petitioner who was the driver of the offending lorry drove
the lorry in a rash and negligent manner and had dashed
against the Ambassador car in which they were traveling on the
complete right side of the road. They have stated that the car
was driven in a moderate speed, while the lorry was driven in
high speed. They have identified the petitioner as the driver of
the offending lorry who had caused the accident.
10. PW-6 is the owner of the Ambassador car and though
he has not supported the case of the prosecution, the reply
given to the notice under Section 133 of the Act by him has
CRL.RP No. 1037 of 2014
been produced and marked before the Court as Ex.P-7 and he
has not disputed his signature found in the said document.
11. Having regard to the evidence of PWs-1 & 2 and also
considering Ex.P-7 - the reply notice given by PW-6, the
identity of the petitioner as the driver of the offending lorry at
the time of accident, has been proved by the prosecution.
12. PWs-1 & 3 have admitted during the course of their
cross-examination that the spot of accident was in a curve. PW-
1 has admitted during the course of his cross-examination that
near the spot of accident, there was a pothole and he has
further stated that the offending lorry was driven at a speed of
about 60 to 70 Kms. per hour at the time of accident. A
suggestion is made to PWs-1, 2 & 3 by the defence that when
the driver of the Ambassador car tried to avoid the pothole, he
had dashed against the lorry on the right side of the road.
Though this suggestion made on behalf of the defence has been
denied by all the three witnesses, the same gains importance
having regard to the rough sketch of the spot at Ex.P-10. The
said document is prepared by the Investigating Officer - PW-8.
A perusal of the said document would clearly go to show that
the spot of accident was in a curve and the width of the road is
CRL.RP No. 1037 of 2014
about 24 feet. The accident had taken place on the left hand
side of the road from Bengaluru to Mangaluru. The lorry was
traveling towards Mangaluru while the car was proceeding
towards Bengaluru on the highway. The spot of accident is at a
distance of about six feet from the left hand side of the road
margin and about 18 feet from the right hand side of the road
margin. The car which was traveling from Mangaluru towards
Bengaluru had come to the extreme right side and had dashed
against the lorry. Therefore, it cannot be said that the accident
had taken place since the lorry which was driven in a rash and
negligent manner by the petitioner had come to the extreme
right side and had dashed against the Ambassador car.
13. If the maxim Res Ipsa Loquitur is made applicable to
the present case, it is very clear that the accident had taken
place on the left hand side of the road from Bengaluru to
Mangaluru and the Ambassador car had moved towards its
right side and dashed against the lorry which was coming on
the extreme left side of the road. The courts below have failed
to appreciate this aspect of the matter and by solely placing
reliance on the evidence of PWs-1 & 2 have held that the
accident had taken place due to the rash and negligent driving
CRL.RP No. 1037 of 2014
of the offending lorry by the petitioner and he had moved
toward the right side of the road and had dashed against the
car.
14. The depositions of PWs-1 & 2 do not tally with the
rough sketch prepared by PW-8. PW-1 has stated before the
Court during the course of his cross-examination that the
offending lorry was driven at a speed of about 60 to 70 Kms.
per hour at the time of accident. The lorry was driven on the
National Highway, and therefore, it cannot be said that the
speed of 60 to 70 Kms. per hour would amount to high speed.
The rought sketch - Ex.P-10 shows that the lorry was moving
on the left side of the road, and therefore, it cannot also be
said that the lorry was driven in a rash and negligent manner.
It has come on record that there existed a pothole near the
spot of accident, and therefore, the defence of the accused that
the driver of the Ambassador car while trying to avoid the
pothole had come to the extreme right side of the road and had
dashed against the lorry appears to be probable. Under the
circumstances, the courts below were not justified in convicting
the petitioner for the offence for which he was charged.
Therefore, the judgment and order of conviction and sentence
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CRL.RP No. 1037 of 2014
passed by the courts below cannot be sustained. Accordingly,
the following order:
15. The criminal revision petition is allowed. The
judgment and order of conviction and sentence dated
05.06.2013 passed by the Addl. Civil Judge & JMFC, Bantwal,
Dakshina Kannada, and the judgment and order dated
18.09.2014 passed by the Principal Sessions Judge, D.K.,
Mangaluru, in Crl.A.No.235/2013, are set aside. The petitioner
is acquitted of the offences under Sections 279, 337, 338 &
304-A of IPC.
Sd/-
JUDGE
KK
