Karnataka High Court
Sri. S. Sheena vs The State Of Karnataka By on 20 December, 2023
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CRL.RP No. 326 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 326 OF 2017
BETWEEN:
SRI. S. SHEENA
S/O MADHAVA
AGED ABOUT 51 YEARS
R/AT SIDYALA HOUSE
CHIKKAMMUDNOOR VILLAGE
PUTTUR TALUK, D.K.-57
MANGALORE DIST.
...PETITIONER
(BY SRI.PAVAN CHANDRA SHETTY. H., FOR
SRI.NAGARAJ A.C., ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
BELTHANGADY POLICE STATION
D.K, MANGALORE-574214
Digitally ...RESPONDENT
signed by (BY SMT.N.ANITHA GIRISH, HCGP)
SUMITHRA R
Location: THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING TO
HIGH COURT SET ASIDE THE IMPUGNED ORDER DATED 4.2.2017 PASSED BY
OF
KARNATAKA THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN CRL.A.NO.7/2012 AND FURTHER SET ASIDE THE
ORDER DATED 16.12.2011 PASSED BY THE CIVIL JUDGE AND
J.M.F.C., BELTHANGADY, D.K. IN C.C.NO.93/2007 AND EXAMINE
THE LEGALITY PROPRIETY AND CORRECTNESS OF THE
PROCEEDINGS AND IMPUGNED JUDGMENT. SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE AND DIRECT THE
ACQUITTAL OF THE APPELLANT/PETITIONER.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 326 of 2017
ORDER
Revision Petitioner/accused feeling aggrieved by the
judgment of First Appellate Court on the file of IV
Addl.District and Sessions Judge, D.K. Mangaluru in
Crl.A.No.7/2012, dated 04.02.2017, in confirming the
judgment of Trial Court on the file of Civil Judge and JMFC,
Belthangady, D.K., Mangaluru in C.C.No.93/2007, dated
16.12.2011 preferred this Revision Petition.
2. Parties to the Revision Petition are referred with
their ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and
on perusal of the Trial Court records, so also the judgment
of both the Courts below the following points arise for
consideration:
1) Whether the impugned judgment of the First
Appellate Court under revision in confirming
the judgment of Trial Court for the offence
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under Section 279, 337, 338 and 304-A of
IPC is perverse, capricious and legally not
sustainable?
2) Whether the interference of this Court is
required?
5. On careful perusal of the oral and documentary
evidence placed on record, it would go to show that
prosecution alleges that on 16.06.2006 at 6 p.m. accused
being driver of KSRTC bus bearing register No.KA-19-F-
2026 drove the same with high speed in rash and
negligent manner so as to endanger the human life and
dashed against the jeep bearing No.KA-21-3760 coming
from the opposite side near Yennekalathota of
Dharmasthala. On account of rash and negligent driving of
KSRTC bus bearing registration No.KA-19-F-2026 the
accident in question has occurred leading to the death of
six inmates of the jeep and injuries to PW.1 Ammu and
PW.2 Vasantha Gowda.
6. The Trial Court after appreciation of oral and
documentary evidence placed before it has convicted the
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accused for the offences alleged against accused. The
accused has challenged the said judgment of conviction
and order of sentence before the First Appellate Court. The
First Appellate Court after re-appreciation of evidence has
dismissed the appeal and confirmed the judgment of Trial
Court in convicting the accused and also imposition of
sentence.
7. Learned counsel for the accused has
vehemently argued that PW.1 Ammu and PW.2 Vasantha
Gowda who were the inmates of the jeep bearing
registration No. KA-21-3760 driven by one Dayananda
have sustained injuries, but their evidence is
conspicuously absent regarding the culpable rashness or
negligence in driving the KSRTC bus bearing registration
No. KA-19-F-2026 leading to the accident in question.
PW.3 Umesh and PW.4 Ravi who were travelling in the bus
driven by the accused have not supported the case of
prosecution. The panch witnesses PW.5 Bharath Singh and
PW.6 Sundara Gowda have not supported the case of
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prosecution. The evidence of PWs.1 and 2 is totally lacking
with material particulars and the spot features at the place
of accident recorded under the spot panchanama Ex.P.6
and the sketch map Ex.P.22. The evidence of Investigating
Officers PW.7 Subhashchandra, PW.8 Ramakrishna who
have conducted the part of investigation cannot be said
as sufficient evidence to prove the culpable rashness or
negligence of accused in driving the KSRTC bus bearing
registration No. KA-19-F-2026 leading to the accident in
question. The Courts below only on the premises that
accident has taken place leading to the death and injuries
to the inmates of the jeep proceeded to hold that
prosecution has proved the culpable rashness or
negligence of accused and the said findings recorded by
both the Courts below cannot be legally sustained and
interference of this Court is required.
8. Per contra, learned High Court Government
Pleader has argued that accused has not disputed the
factum of accident wherein the six inmates of the jeep
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died and two of them have suffered injuries. The spot
features recorded in spot panchanama Ex.P.6 and the
sketch map Ex.P.22 has been proved by the prosecution
through the evidence of PW.9 Jayakumar and the said
evidence is corroborated by the evidence of investigating
officers PWs.7 and 8. Accused has not offered any
explanation during the course of recording his 313 Cr.P.C.
statement. The Courts below have rightly appreciated the
oral and documentary evidence and the findings recorded
are based on evidence placed on record, as such the same
does not call for any interference by this Court.
9. The factum of accident and the accused was the
driver of KSRTC bus bearing No. KA-19-F-2026 leading to
the accident in question has not disputed by accused. The
dispute is only with regard to culpable rashness or
negligence of accused in driving the KSRTC bus bearing
No.KA-19-F-2026 which dashed against the jeep bearing
No. KA-21-3760 coming from the opposite side.
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10. PW.1 Ammu, complainant has deposed to the
effect that about three years back he was travelling from
Ujire to Dharmasthala in the jeep bearing No.KA-21-3760
driven by accused. When they reach near Yennekalathota,
KSRTC bus bearing No.KA-19-F-2026 came from the
opposite side and dashed against the jeep, due to which
he suffered injuries and three persons died on the spot.
The accused being the driver of KSRTC bus bearing
No.KA-19-F-2026 as on the date of accident leading to the
accident, he has filed the complaint Ex.P.1.
11. PW.2 Vasantha Gowda has deposed to the
effect that on 16.06.2006 on Friday he was travelling from
Ujire to Dharmasthala in the jeep bearing No.KA-21-3760
driven by Dayananda. When they reach near
Yennekalathota, KSRTC bus bearing No.KA-19-F-2026
came from opposite side and dashed against the jeep, due
to which the jeep was capsized and he has suffered
injuries in the said accident. PW.2 Vasantha Gowda further
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deposed that the driver of the KSRTC bus came to the
wrong side and dashed against the jeep.
12. PW.3 Umesh and PW.4 Ravi @ Dose Ravi who
were travelling in the KSRTC bus bearing No. KA-19-F-
2026 driven by the accused have not supported the case
of prosecution, though they have been subjected to cross-
examination, nothing worth material has been brought on
record, so as to prove the culpable rashness or negligence
of driver of KSRTC bus in driving the KSRTC bus bearing
No.KA-19-F-2026 driven by the accused.
13. PW.5 Bharath Singh, PW.6 Sundara Gowda and
PW.9 Jayakumar are the panch witness to the spot
panchanama Ex.P.6. PW.5 Bharath Kumar and PW.6
Sundara Gowda have not supported the case of
prosecution. PW.9 Jayakumar has deposed to the effect
that he has signed on the panchanama prepared at the
place of accident and identifies his signature Ex.P.6(d). If
the evidence of PW.1 Ammu, injured complainant and
PW.2 Vasantha Gowda another injured and inmate of the
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jeep driven by the accused would go to show that they
have spoken only about the factum of accident and death
of six persons and two of them have subjected to injuries.
However, their evidence is totally silent regarding the
culpable rashness or negligence of accused in driving the
KSRTC bus bearing registration No. KA-19-F-2026 leading
to the accident in question.
14. The spot features with reference to the place of
accident recorded in the spot panchanama Ex.P.6 and the
sketch map Ex.P.22 coupled with the evidence of PW.8
Ramakrishna investigating officer who has conducted the
spot panchanama Ex.P.6 and the sketch map Ex.P.22 has
to be appreciated with the evidence of PW.5 Bharath
Singh. PW.6 Sundara Gowda and PW.9 Jayakumar who are
the panch witnesses to the spot panchanama Ex.P.6.
15. The independent two panch witnesses PW.5
Bharath Singh and PW.6 Sundara Gowda have not
supported the case of prosecution. The another witness
PW.9 Jayakumar except stating that he has signed on the
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spot panchanam Ex.P.6 and identifies his signature as
Ex.P.6(d) has not spoken anything about the spot features
at the place of accident so as to draw inference from the
evidence that the accident in question has occurred on
account of culpable rashness or negligence in driving the
KSRTC bus bearing No. KA-19-F-2026 driven by accused.
The KSRTC bus bearing No. KA-19-F-2026 driven by
accused was proceeding from Dharmasthala to Ujire,
whereas the jeep bearing register No. KA-21-3760 driven
by Dayananda was proceeding from Ujire to
Dharmasthala. It means that prior to the accident both the
vehicle were moving in opposite direction. Under such
circumstances, the prosecution has to prove by the
evidence on record that the accused has failed to exercise
due diligence in the given set of facts and circumstances of
the case an ordinary common prudent man would have
exercised care and caution to avoid the accident, but
accused has failed to exercise the same. As a result of
which the accident in question has occurred. If the entire
cross-examination of PW.1 Ammu, PW.2 Vasantha Gowda
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and PW.9 Jayakumar who is the another panch witness to
the spot panchanama Ex.P.6 are taken into consideration
and appreciated with the complaint allegations Ex.P.1,
then it would go to show that their evidence is
conspicuously absent regarding the failure of accused in
exercising due diligence leading to the accident in
question. Looking to the recitals of the spot panchanama,
it would go to show that the road leading from
Dharmasthala to Ujire runs from South to North is down
gradient and there is mud path way on either side of the
road. The width of the road at the place of accident is
about 22 ft. The jeep bearing registration No. KA-21-3760
immediately after the accident was capsized on it's left
side only that is towards Eastern side. The bus was
stopped at a distance of 36 ft. after the accident. The said
spot features found in the spot panchanama Ex.P.6 and
sketch map Ex.P.22 has not been spoken by the injured
material witnesses PW.1 Ammu, PW.2 Vasantha Gowda,
further PW.5 Bharath Singh and PW.6 Sundara Gowda
have not supported the case of prosecution to prove the
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spot features of the accident recited in Ex.P.6. The
evidence of PW.9 Jayakumar is only with respect to he
having signed on the panchanama at the place of accident.
The evidence of Investigating Officer PW.8 Ramakrishna
who is the author of the spot panchanama Ex.P.6 and the
sketch map Ex.P.22 regarding the spot features available
at the place of accident shown in Ex.P.6 and sketch map
Ex.P.22 is totally silent. The prosecution should have
elicited from the mouth of PW.9 Jayakumar and that of
Investigating Officer PW.8 Ramakrishna about the spot
features recorded in the spot panchanama Ex.P.6 and
sketch map Ex.P.22, so as to draw inference on the proved
facts of the case that accused came to the wrong side and
dashed against the jeep bearing registration No.KA-21-
3760 which was coming from the opposite side. It is also
pertinent to note that PW.6 Sundara Gowda according to
the case of prosecution is the eye witness which is evident
from the recitals of the spot panchanama Ex.P.6. However,
he has not supported the case of prosecution and has also
denied that he has given statement before police Ex.P.7.
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Therefore, the evidence of PW.8 Ramakrishna that PW.6
Sundara Gowda being the eye witness has shown the spot
where the accident took place has not been supported by
any evidence on record.
16. Learned counsel for accused in support of his
contention that without their being any evidence placed on
record to prove the place of accident and the culpable
rashness or negligence of accused in driving the KSRTC
bus bearing registration No. KA-19-F-2026 both the Courts
below on the principle of "res ipsa loquitur" has proceeded
to hold the accused guilty cannot be legally sustained
relies on the Co-ordinate Bench judgment of this Court in
BC Ramachandra Vs. State of Karnataka by
Channarayapatna Town Police, reported in ILR 2006
KAR 3621 and another Co-ordinate Bench judgment of
this Court in Sri.Durgappa Vs. The State of Karnataka,
reported in ILR 2008 KAR 3759, wherein it has been
observed and held that:
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" The perusal of evidence of PW-1 does not reveal
anything as regard the rash and negligent driving of
the bus by the petitioner. The Trial Court presumed
negligence on the part of petitioner and without
considering the fact that there is no material
regarding the rash and negligent driving in the
evidence of PWs.1 to 3 and further held no doubt,
the principle of res ipsa loquitur if applied, the
negligence is presumed as the vehicle had left the
road and hit the house. But it is well established
principle of law that the presumption itself is not
sufficient to prove the guilt beyond all reasonable
doubt. The presumption can be sufficient to prove
the civil liability but not to award conviction and
sentence. This aspect of the matter is not
considered by the Trial Court and the First
Appellate Court. The judgment of conviction is set
aside".
In the present case also the evidence of PW.1 Ammu
and PW.2 Vasantha Gowda and the another panch
witnesses to the spot panchanama and PW.9 Jayakumar is
totally silent to prove the fact that accused came to the
wrong side and dashed against the jeep bearing
registration No. KA-21-3760 leading to the accident in
question. The presumption on the basis of principle of res
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ipsa loquitur can be drawn only on the basis of proved
facts and the initial burden of proving the culpable
rashness or negligence in driving the KSRTC bus bearing
registration No. KA-19-F-2026 leading to the accident in
question is on the prosecution. The prosecution having
failed to discharge it's initial burden of proving the
culpable rashness or negligence, the principle of res ipsa
loquitur cannot be applied to prove the negligence aspect
on the part of accused in driving the KSRTC bus bearing
registration No. KA-19-F-2026.
17. Learned counsel for the accused also relied
another Co-ordinate Bench judgment of this Court in
Puttaiah Vs. State By Rural Police Hassan reported in
2016(2) Kar.L.R 288. Wherein it has been observed and
held that:
"The burden is always on the prosecution to prove
the allegations of negligence or rash driving.
Negligence or rashness cannot be presumed on the
basis of 'res ipsa loquitur' and driving a vehicle at
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"High Speed" does not lead to the negligence or
rash driving."
This Court having so observed, has set aside the
concurrent finding recorded by both the Courts below and
acquitted the accused.
18. In the present case also the prosecution out of
the evidence of PW.1 Ammu and PW.2 Vasanth Gowda
injured witnesses to the accident and PW.9 Jayakumar
another panch witness to the spot panchanama Ex.P.6
coupled with the evidence of PW.8 Ramakrishna has failed
to prove the culpable rashness or negligence in driving the
KSRTC bus bearing registration No. KA-19-F-2026 leading
to the accident in question. The mere fact of accident and
some of the inmates of the jeep bearing registration No.
KA-21-3760 driven by one Dayananda died and other
inmates sustained injuries cannot by itself said as
sufficient evidence to prove the culpable rashness or
negligence in driving the KSRTC bus bearing No.KA-19-F-
2026 by accused.
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19. The Courts below only by taking into
consideration the factum of accident and accused being
the driver of KSRTC bus bearing registration No. KA-19-F-
2026 leading to the accident in question has proceeded to
hold that prosecution has proved the culpable rashness or
negligence in driving the KSRTC bus bearing registration
No.KA-19-F-2026 leading to the accident in question. In
view of the principles enunciated in the aforementioned
judgment of this Court negligence or rashness cannot be
presumed on the basis of res ipsa loquitur. Therefore, the
findings recorded by both the Courts below in convicting
the accused for the offence alleged against him cannot be
legally sustained and the same needs to be interfered by
this Court. Consequently, proceed to pass the following:
ORDER
Revision Petition filed by revision petitioner/accused
is hereby allowed.
The judgment of the IV Addl.District and Sessions
Judge, D.K. Mangaluru in Crl.A.No.7/2012, dated
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04.02.2017, in confirming the judgment of Trial Court on
the file of Civil Judge and JMFC, Belthangady, D.K.,
Mangaluru in C.C.No.93/2007, dated 16.12.2011 is
hereby set aside.
Accused is acquitted for the offence punishable under
Section 279, 337, 338 and 304-A of IPC.
The bail bond of accused and surety shall stand
discharged.
If any fine amount is paid by the accused in terms of
the judgment of the Trial Court, the same is ordered to be
refunded to the accused.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
