Siddik Huseen vs State Of Karnataka
2023 Latest Caselaw 5859 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF AUGUST, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.211 OF 2016

BETWEEN:

SIDDIK HUSEEN S/O ABDUL SAMAD,
AGED ABOUT 44 YEARS,
R/AT JANATHA COLONY,
GARIGESHWARI VILLAGE,
T. NARASHIPURA TALUK,
MYSORE DISTRICT-57110
                                          ....PETITIONER

(BY SRI.S.T. BIKKANNAVAR, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY SIRA POLICE-572 137,
(REPRESENTED BY LEARNED
PUBLIC PROSECUTOR).
                                         ...RESPONDENT
(BY SRI. GNANESH .H. KEMPANNA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT PASSED IN C.C.NO.1305/2012 DATED
25.04.2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC AT SIRA AND SET ASIDE THE JUDGMENT OF
CONFIRMATION      PASSED       IN     CRL.A.NO.67/2013
DATED:9.12.2015 ON THE FILE OF VI ADDL. DIST. AND S.J.,
AT TUMKUR AND ACQUIT THE ACCUSED/APPELLANT IN
C.C.NO.1305/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AT SIRA.
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     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 14.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

This revision is filed by the accused under Section 397

r/w 401 of Cr.p.C. challenging the judgment of conviction and

order of sentence passed by the Senior Civil Judge and JMFC,

Sira in C.C.No.1305/2012 dated 25.04.2013 and confirmed by

VI Additional Sessions Judge, Tumkur in Crl.A.No.67/2013

vide judgment dated 09.12.2015.

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are as

under:

Complainant who is the driver of the VRL bus bearing

registration No.KA 25 B 6341 has lodged a complaint on

30.04.2012 regarding the accident and on the basis of

complaint, Investigating Officer investigated the crime and

submitted the charge sheet against the accused for the

offences punishable under Sections 279, 337, 378 and 304A of

IPC.

4. According to the prosecution on 29.04.2012, the

complainant along with his bus left Ramadurga at 7.00 p.m.

and near Sira at 4.30 a.m. because of traffic jam, the vehicles

were stopped. He has also stopped his vehicle and in front of

his vehicle the KSRTC bus bearing No.KA 01-F-8470 was also

stopped due to traffic jam. It is alleged that at the time the

accused being the driver of National Travels bus bearing

registration No.KA 01-C-693 came from behind by driving the

bus in a rash and negligent manner and dashed to the rear

portion of the VRL bus. As a result, the VRL bus dashed to rear

portion of the KSRTC which was standing in front of the VRL

bus. All the three buses had sustained damages and

passengers in National Travels fell down and sustained

injuries. It is also alleged that one of the injured Manjunath

succumbed because of the injuries. It is the specific assertion

of the prosecution that the accident in question is because of

the actionable negligence on the part of the accused who

ignoring the traffic jam drove the bus in a high speed and

dashed to the stationed bus in the traffic jam. Hence, the

charge sheet came to be submitted. On the basis of the

charge sheet, learned Magistrate has taken cognizance and

issued process against the accused. The accused has appeared

through his counsel and was enlarged on bail. The prosecution

papers were also furnished to him under Section 207 of

Cr.P.C. Accused denied the plea framed against him and

claims to be tried.

5. To prove the guilt of the accused the prosecution

has examined in all eleven witnesses as PW1 to PW11 and

fourteen documents were marked at Ex.P1 to Ex.P14. After

the conclusion of the evidence of the prosecution, the

statement of accused under Section 313 Cr.P.C. was recorded

to enable him to explain the incriminating evidence appearing

against him. But the case of the accused is of total denial and

he did not lead any oral or documentary evidence in support

of his defence.

6. After hearing the arguments and after appreciating

the oral and documentary evidence, the learned Magistrate

has convicted the accused for the offences punishable under

Sections 279, 337, 338 by imposing imprisonment for six

months and for the offence punishable under Section 304A of

IPC he is sentenced to under go simple imprisonment for a

period of one year. Being aggrieved by this judgment of

conviction and order of sentence, the accused has approached

learned VI Additional Sessions Judge, Tumkur, in

Crl.A.No.67/2013.

7. The learned Sessions Judge after re-appreciating

the oral and documentary evidence, has dismissed the appeal

by confirming the judgment of conviction and order of

sentence passed by the learned Magistrate. Being aggrieved

by these concurrent findings, the accused is before this Court

by way of this revision.

8. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned HCGP for the

State. Perused the records.

9. The learned counsel for revision petitioner

contended that admittedly it is a chain of accident involving

three buses and when the Investigating Officer has visited the

spot after 4 to 5 hours, the vehicles were removed from the

spot and there is no incriminating evidence forthcoming. It is

alleged that PW7 and PW1 are the material witnesses and

their evidence is inconsistent and contrary. He would also

contend that speed is not criteria for deciding rash and

negligent driving and the prosecution has taken inconsistent

and contrary defense. Hence, he would contend that the

prosecution has failed to bring home the guilt of the accused

and both the Courts below have failed to appreciate the oral

and documentary evidence in proper perspective and have

erroneously convicted the accused.

10. Alternatively, he would contend that considering

the manner in which accident has occurred the benefit of the

Probation of Offenders Act, 1958, (for short 'PO Act') may be

extended to the accused which was not considered by both the

Courts below.

11. Per contra, learned HCGP would contend that all

the witnesses have supported the case of the prosecution and

admittedly, the accused was the driver of the offending vehicle

and he was following other buses and when there was a traffic

jam, he was required to be cautious and he is able to see the

front vehicles but he smashed the VRL bus on back side which

itself disclose his reckless act. He would also contend that the

accused was not following the KSRTC bus, but he was

following VRL bus and he was required to maintain a safe

distance but that was also not done. Hence, he would contend

that no illegality or perversity is found in the judgment of

conviction and order of sentence passed by both the Courts

below. He would also assert that in such matters, the benefit

of the PO Act cannot be extended as it is a reckless driving

and if the accused allowed continue this act, he is putting the

lives of public in danger. Hence, he would seek for dismissal of

the revision.

12. Having heard the arguments and having perused

the records, now the following point would arise for my

consideration:

"Whether the Judgment of conviction and order of sentence passed by both courts below are perverse, erroneous, arbitrary and illegal so as to call for any interference by this court in this revision?"

13. It is the assertion of the prosecution that on

30.04.2012, at morning 4.30 a.m. near Sira there was some

traffic jam. As a result, KSRTC bus stopped and VRL was

following it and the offending bus driven by the accused

smashed the VRL bus from back side and in turn, the VRL bus

smashed the KSRTC bus which has resulted in the accident

causing injury to inmates of the bus as well as death of a

passenger. The death as well as injuries are undisputed.

Further, the accused was the driver of the offending vehicle is

also not under challenge.

14. PW1 is the complainant and he has deposed as per

the complaint assertions. Though regarding rash and negligent

act, he has turned hostile, but he has deposed in accordance

to the complaint regarding the factual aspect and his evidence

if considered in total it is evident that the accident is because

of the actionable negligence on the part of the accused who

was the driver of the offending vehicle. Much arguments have

been advanced that the accused had also visited police station

to lodge the complaint and it is admitted by PW1. On the basis

of his admission it is contended that the police have not

received the complaint lodged by the accused, But

interestingly, it is stated by PW1 in his cross-examination and

accused himself in his 313 Cr.P.C. statement nowhere

asserted that he has attempted to lodge any complaint. Apart

from that, if at all police had refused his complaint, he could

have lodged a private complaint, but that was also not

forthcoming. Hence, the said arguments advanced by the

learned counsel for the petitioner holds no water.

15. PW2 is a spare driver and he has also supported

prosecution. But his evidence discloses that he did not see the

accused but his evidence also establish that accident is

because of reckless driving of the offending bus.

16. PW6 is the IMV inspector and he has deposed

regarding examination of the vehicles and damage being

caused and his statement clearly disclose that the accident is

not because of any mechanical defect.

17. PW7 is another material witness i.e, the driver of

the KSRTC bus and he has also deposed that on 29.04.2012,

he along with PW8 proceeding from Belgaum to Bengaluru by

driving KSRTC bus bearing KA 01F 8470 and near

Bhuvanahalli, there was a traffic jam since a vehicle was

breakdown and he stopped the vehicle and behind him a VRL

bus stopped and suddenly the accused smashed the VRL bus

from back side. As a result, VRL dashed his vehicle. Though

this witness was cross-examined at length nothing was elicited

so as to impeach his evidence. Certain minor contradictions

were highlighted by the defense counsel in order to elicit the

benefit but no contradictions were got marked so as to put to

Investigating Officer.

18. From the assessment of the entire evidence it is

evident that at the time of accident there was certain traffic

jam on national high way. As a result, the vehicles were either

stopped or moving slowly. In view of that matter, accused

being driver of the offending vehicle, he should be more

cautious but he smashed the VRL bus suddenly from back

side. It is not his case that VRL bus abruptly stopped in the

middle of the road. No such defense is set up by him. Further,

the accused has not given any explanation in his 313 Cr.P.C

statement for the cause of the accident. In the given

circumstances, the accused is the best witness to explain how

the accident has occurred. But he did not explain anything. It

is argued that accused has got right to be silent and he cannot

be compelled to say anything. Though accused has got a right

of silence, but under Section 106 of the Evidence Act, the

facts within the knowledge of a particular person are required

to be explained by him.

19. In the instant case, the evidence of all other

witnesses become irrelevant and the statement of accused

alone become more relevant, as he was the driver of the bus

and he is in a best position to explain how the accident has

occurred and what precautions were taken by him. But he did

not made any attempts and his case was a formal denial. In

view of these aspects and in view of Section 106 of the

Evidence Act, adverse inference requires to be drawn against

accused for not disclosing the fact within his knowledge. There

is no dispute regarding death and injuries being caused to the

inmates of the bus.

20. Looking to the oral and documentary evidence and

admitted facts, the principles of res ipsa loquitur are directly

applicable to the case in hand. It is for the accused to explain

the facts as to how the accident has occurred but he did not

do so. Both the courts below have appreciated the oral and

documentary evidence in detail and have rightly convicted the

accused. No illegality or infirmity is found in the judgment of

conviction and order of sentence so as to call for any

interference.

21. Looking to these facts and circumstances, the

point under consideration is answered in the negative and as

such, the revision petition being devoid of any merits does not

survive for consideration. Accordingly, I proceed to pass the

following:

ORDER

1. Revision petition stands dismissed.

2. Send back the TCRs to the concerned Courts below with a certified copy of this order and the trial Court is directed to secure the presence of the accused/revision petitioner for serving sentence.

Sd/-

JUDGE

DS