Karnataka High Court
Satish S/O Ganapati Gunagi vs The State Of Karnataka on 21 December, 2023
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CRL.RP No. 100143 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100143 OF 2019 (397)
BETWEEN:
SATISH S/O. GANAPATI GUNAGI,
AGE: 38 YEARS, OCC: KSRTC DRIVER,
R/O: YATTINBAIL, MIRZAN, TQ: KUMTA,
UTTAR KANNADA.
...PETITIONER
(BY SRI. B.G. INDI FOR SRI. K.L. PATIL, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
THROUGH ANKOLA P.S.,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER 397 R/W
401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
SAMREEN ORDER DATED 29/05/2019 PASSED IN CRIMINAL APPEAL NO.
AYUB
253/2008 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DESHNUR
UTTAR KANNADA, KARWAR. SET ASIDE THE JUDGMENT AND ORDER
Digitally signed
by SAMREEN OF CONVICTION DATED 26/11/2008 IN CC NO. 62/2007 BY THE
AYUB DESHNUR
Date: 2023.12.22
JMFC ANKOLA CONVICTING THE PTITIONERFOROFFENCES
11:13:37 +0530
PUNISHABLE UNDER SECTIONS 279, 337, 304 A OF IPC.
THIS PETITION, HAVING BEEN HEARD AND RESERVED ON
30.10.2023, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT PASSED THE FOLLOWING:
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CRL.RP No. 100143 of 2019
ORDER
The revision petitioner has filed this revision petition
challenging the judgment of conviction and order on sentence
dated 26.11.2008 in C.C.No.62/2007 passed by the JMFC,
Ankola and confirmed by the Principal District and Sessions
Judge, Uttar Kannada, Karwar in Crl.A.No.253/2008 vide
judgment dated 29.05.2019.
2. For the sake of convenience, parties to this revision
petition are referred to as per their rank before the Trial Court.
3. The case of the prosecution in brief is as under:
i) That, on 27.11.2006 one Kumar.Dhananjaya
S/o.Vittal Naik aged about 13 years residing in the address so
mentioned in the complaint gave his statement in the hospital
before PW15-N.G.Bhaskar Rai, the then police inspector, Ankola
P.S., stating that he was studying in 7th Standard at KVS
School, Ankola. In the same school, his younger brother-
Mrityunjaya, aged about 11 years, was also studying in 5th
standard. Everyday, the complainant and his younger brother
used to attend their school by walk. It is stated that on
27.11.2006, when he along with his younger brother-
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Mrityunjaya and his another friend-Abhilash Maruti Gaonkar
aged about 12 years, were moving towards their house by
walk. At about 12.10 p.m. when they were so moving from
K.C.Road, in front of Harsha Hotel, a KSRTC bus bearing
registration No.KA-31/F-620 came from their behind from
Ankola bus stand side. The driver of the said bus was driving it
in a high speed in rash and negligent manner and dashed
against these three persons. This complainant suddenly went
towards the side of the road and fell down. But the other two
i.e. Mrityunjaya and Abhilash sustained grievous head injuries
because of dashing of the bus on their person and they fell
down on the road. The bus after dashing them went ahead to
some extent and stopped. Due to the impact, the complainant
sustained injuries on his left knee. He noticed oozing of blood
from the head of Mrityunjaya and Abhilash. After the accident,
the people gathered there shifted the injured to Hospital in a
vehicle. It is stated that, Mrityunjaja and Abhilash died at 12.40
p.m., on account of grievous injuries sustained by them. It is
alleged that, it is because of rash and negligent driving of the
bus bearing registration No.KA-31/F-620 by its driver by name
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Satish S/o. Ganapathi Gunagi the said accident has taken
place.
ii) With those allegations, he gave a compliant before
PW15. Based upon that, PW15 registered the crime in Crime
No.264/2006 and set the criminal law into motion. He
conducted the investigation and after completion of
investigation and by following all formalities, filed the charge
sheet against the accused for the offences punishable under
Section 207, 304-A and 337 of IPC.
iii) Before the Trial Court, to prove the guilt of the
accused, in all 17 witnesses were examined by the prosecution
as PW1 to PW17 and got marked sixteen documents as per
Ex.P1 to Ex.P16 and signatures thereon and closed the
prosecution evidence. The accused also entered the witness
box and was examined as DW1. He also examined one more
witness as DW2 on his behalf and he got marked documents as
per Ex.D1 to Ex.D16 and closed his evidence.
iv) The Trial Court on hearing the arguments and on
evaluation of the evidence and on assessment of documents,
found the accused guilty of committing offences under Section
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279, 304-A and 337 of IPC and convicted the accused and
sentenced him as under:
"Accused found guilty for the offence punishable
under Sections 279, 304(a) and 337 of IPC.
Acting under Section 255(2) of Cr.P.C. I hereby
convict the accused for the offence punishable under
Sections 279, 304(a) and 337 of IPC and sentence
him to under go simple imprisonment for one year
for the offence punishable under Section 304(a) read
with Section 279 of IPC. Accused shall pay fine of
Rs.1,000/- in default of payment of fine amount
accused shall further undergo simple imprisonment
for 3 months.
Further accused is sentenced to undergo simple
imprisonment for 2 months for the offence
punishable under Section 337 of IPC and shall pay
fine of Rs.200/-. In default of payment of fine
amount accused shall further undergo simple
imprisonment for 15 days."
v) This judgment of conviction and order on sentence
was challenged by the accused by preferring an appeal before
the Principal District and Sessions Judge, Uttar Kannada,
Karwar in Crl.A.No.253/2008. The learned First Appellate Court
on hearing the arguments of both the sides vide judgment
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dated 29.05.2019 dismissed the said appeal by confirming the
judgment of conviction and order on sentence passed by the
Trial Court. This is how, now the revision petitioner is before
this Court by way of revision challenging both the judgments.
4. It is submitted by the counsel for the accused that,
there is no proper assessment of evidence by the courts below.
The judgment of conviction and order on sentence suffers from
severe infirmities. The materials placed on record by the
prosecution are full of contradictions and omissions. There was
no proof of rash and negligent driving of the bus by the
accused.
5. It is his submission that, the said accident has
taken place near the bus stand. It is contended that, the
evidence of DW2 is satisfactory to the extent of how the
accident took place. But even then, the Trial Court has
proceeded to convict the accused.
6. It is his submission that, all the independent
witnesses have not supported the case of the prosecution. As
such, the story of the prosecution cannot be accepted. Merely
because the accident has taken place, it would not absolve the
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prosecution to prove its case beyond all reasonable doubt.
Accused was driving a heavy vehicle and he cannot be held
guilt of the offence since there are discrepancies in the
evidence adduced by the prosecution. The ingredients of
Section 279, 304-A of IPC are not fulfilled by the prosecution.
The Trial court as well as First Appellate Court have not
considered the arguments advanced by both the sides. Thus,
the judgment of conviction and order on sentence so passed by
the Trial Court and confirmed by the First appellate Court is
without appreciation of evidence in proper perspective, which
has resulted in substantial miscarriage of justice to the
petitioner-accused. There is no proper appreciation of evidence
of the prosecution by the Courts below. Therefore, relying upon
the evidence placed on record by both the sides, it is prayed to
allow the revision petition and acquit the accused of all the
offences.
7. As against this submission, the learned Additional
SPP appearing for the State submits that, both Trial Court as
well as the First Appellate Court have concurrently held that,
because of rash and negligent driving of the bus by accused,
the accident has taken place. The complainant-PW1 being
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eyewitness and injured in the alleged accident stated about the
manner in which the accused caused the accident. The accused
caused two deaths of students who were studying in primary
school. One was the brother of the complainant and another
one was the friend of his brother. After completion of school
hours, when complainant and the above two deceased were
proceeding towards their house, the said bus came from Ankola
Bus stand and the driver of the said bus without following the
mandatory traffic rules and regulations, caused the accident by
driving the same in rash and negligent manner. It was a busy
road and it was expected by the driver of the bus or the other
road users to take all available precautions to avoid any
causalities. But in this case, no such precautions were taken by
the accused at the time of driving the bus. It is his submission
that, because of rash and negligent driving of the bus, the said
accident has taken life of two students, who were studying in
primary school. The complainant was also injured in the said
accident. It is his submission that, both the Courts below have
properly appreciated the evidence on record and have rightly
came to the conclusion that, the accused is guilty of committing
the offences alleged against him. In support of his submission,
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he too relies upon the evidence placed by the prosecution. He
prays for dismissal of this revision petition.
8. I have given my anxious consideration to the
arguments advanced by both the sides. In view of rival
submissions, the points that would arise for consideration of
this court are as under:
i) Whether the findings of the Trial Court in attributing
the rash and negligent driving on the part of the
accused which is confirmed by the Appellate Court,
suffers from infirmity?
ii) Whether the judgment of conviction and order on
sentence passed by the Trial Court and confirmed
by the First Appellate Court requires interference by
this Court?
Point No.1 and 2 are discussed together.
9. Before adverting to the other aspects of the case,
let me analyse the admitted facts in this case.
10. That there was an accident on 27.11.2006 at about
12.10 p.m. when the complainant and his brother-Mrityunjaya
and friend-Abhilash were moving on K.C.Road, in front of
Harsha Hotel, from bus stand side towards their residential
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house. At that time, a KSRTC bus came from Ankola bus stand
and dashed from their behind. Because of this accident,
complainant and sustained simple injuries and his brother-
Mrityunjaya and friend-Abhilash sustained grievous injuries on
their person and died in the hospital at 12.40 p.m. The
involvement of KSRTC bus bearing registration No. KA-31/F-
620 in the alleged accident is not in dispute. So also the
accused being driver of the said bus at the relevant time. To
prove the said aspect of accidental death of Mrityunjaya S/o.
Vittal Naik and Abhilash Maruti Gaonkar, the prosecution relies
upon the inquest report as per Ex.P2 and Ex.P3. These inquest
reports prepared by the Investigating Officer do suggest that
the said two boys died in the accident which was taken place on
27.11.2006. They died because of accidental injuries. To prove
the said fact, the prosecution relies upon the postmortem
reports marked at Ex.P12 and Ex.P13. The contents of these
postmortem reports show that, the death of these two persons
was due to accidental injuries. In the said accident, the
complainant sustained injuries as noticed in Ex.P10. The
injuries so sustained are grievous in nature noticed by the
doctor. The wound certificate of Abhilash is also collected by
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the investigating officer as per Ex.P11. These documents are
not disputed by the defence.
11. On cumulative reading of the inquest reports,
postmortem reports and the evidence of PW1 and other
witnesses do suggest that, in the said accident, two boys stated
in the inquest report succumbed to the injuries caused in the
accident. PW1 has spoken to the effect of he witnessing the
accident being eyewitness. Likewise, PW2-Anil Rama Naik,
PW3-Shrikant Bovi, PW4-Subbray Gaonkar, PW5-Dinakar
Gaonkar, in their respective evidence have spoken about their
presence when the inquest panchanama was conducted by the
investigating officer. So also the evidence of these witnesses is
supported by the evidence of the investigating officer that he
conducted inquest panchanama on the dead bodies of those
two boys. Therefore, on reading the evidence of these
witnesses, it is duly established that, the said two boys by
name Mrityunjaya and Abhilash died because of accidental
injuries. There is corroborative evidence spoken to by PW15-
Investigating Officer by name N.G.Baskar Rai.
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12. It is the case of the prosecution that, the said
accident has taken place not because of any mechanical
defects. But to prove the said fact, the prosecution relies upon
Ex.P15-M.V. report. As per mechanical examination made by
the Motor Vehicle Inspector, he was of the opinion that, the
said accident has taken place not because of any mechanical
defects. While marking this document, no serious objections
were raised by the defence. However, it is the defence of the
accused that, when he was entrusted to drive the said bus
towards Keni, he complained to the Traffic Controller that the
said bus is suffering from so many mechanical defects. But he
was compelled to take the same bus as the passengers were
waiting. He complained certain defects in the said vehicle to the
traffic controller, however the said defects were not cured and
he was compelled to do the duties whatever the traffic
controller says or otherwise, action would be taken against him
by informing the higher authorities. One thing is clear from the
defence of the accused that, the said bus was having certain
mechanical defects and it required a repair and though it was
brought to the notice of the Traffic controller, no steps were
taken and therefore he was compelled to take vehicle as the
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passengers were waiting and Traffic Controller gave him a
threat that he will take action against him by complaining to
higher authorities.
13. It is the specific case of the prosecution that,
because of rash and negligent driving of the bus by the
accused, the said accident has taken place. To ascertain as to
whether the accused was really driving the bus in rash and
negligent manner so as to endanger human life and caused the
accident, this court has to go through the evidence placed on
record by the prosecution.
14. PW1 the complainant has reiterated the complaint
allegations in his evidence on oath. As per his evidence, when
he was moving on the road along with his younger brother and
his friend, the offending bus came behind them in a high speed
and dashed from their hind side. After dashing them, the said
bus went to up to at a distance of 70 ft and stopped. This
complainant fell by the side of the road and sustained injuries
on his both knees, chest, lips etc. His brother-Mrityunjaya and
friend-Abhilash sustained grievous head injuries and died in the
hospital. According to PW1, the driver of the said bus bearing
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Registration KA-31/F-620 was driving it in high speed and in
rash and negligent manner so as endanger human life. After
the accident, they were taken to hospital. In the hospital, he
gave his statement as per Ex.P1.
15. This PW1 has been thoroughly cross-examined by
the defence. It is his evidence that he left the house along with
his younger brother at 7.00 a.m. in the morning on the said
day. From hospital he was taken to the place where accident
has taken place and thereafter he went to his house. According
to him, in between 2.00 to 3.00 p.m. he was with police. On
the following day of the accident, the police came to him and
recorded his statement. It is elicited in the cross-examination
that the place of accident is the heart of the city of Ankola City.
He admits that by the side of the said road, there were number
of shops situated. Always numbers of people move on the said
road. So also he admits that, all along by the side of the road,
people parked their two wheelers, cycles etc. It is suggested to
this witness that, because of parking of vehicles, the place of
accident had covered 8 to 10 ft of the road by the parked
vehicles. But the said suggestion was answered by PW1 stating
that when the said accident has taken place, ample width of
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road was available for movement of the bus. He has stated that
he came to know about the said accident only when the bus
dashed him from his behind. It is further suggested to him that
the said bus came without any sound and dashed to him. The
place of accident is about 100-200 ft away from Ankola bus
stand. He admits that immediately after the accident, nearly
100 people gathered at the spot. He denied all other
suggestions.
16. He being eyewitness and injured in the said
accident has spoken about the negligent driving of the bus by
the accused. Suggestions so directed to this PW1 establish that
the accused being driver of the bus knew about the condition of
the road commencing from Ankola bus stand towards Keni
village being busy road i.e. number of people used to move on
the said road, number of vehicles ply on the said road but even
then the accused drove the said bus without any sound as per
the say of PW1. As per the defence of the accused, the said bus
had no ignition starter at all. Due to which he asked some of
the passengers available in the bus to push the said bus. When
the accused himself has asked the passengers to push the bus,
he could have taken available precautions. Even it is the
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defence of the accused that, the bus was at all not having horn.
If that is so, the accused must be very cautious but he has not
taken any precautions, which were available to avoid the
causalities.
17. The prosecution has also examined the so called
eyewitnesses to the said accident. Amongst them, PW6-
Hariyappa Tukaram Kotyan has stated that on the date of the
incident i.e. on 27.11.2006, when he was standing in front of
his hotel, he noticed that, the bus was going from Ankola bus
stand and at that time, school children were moving by the side
of the road. The said bus dashed to three boys who were
moving on the road. But in the cross-examination, it is elicited
that, he has not seen the said accident and only came to know
about the accident after hearing galata. It is suggested to this
witness that, by the side of the said road as there was parking
of the vehicles on either side of the road, the road available
was very small. But the said suggestion is denied.
18. PW7-Kamalaksha Gaonkar is another eyewitness.
He too speaks in similar terms as that of PW6. He has also seen
the said accident only after its occurrence. He also states that
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the width of the road at the place of accident is very small. He
went to the scene of offence only after hearing galata.
19. PW8-Ekanath Khemu Naik is also another
eyewitness to the said accident. He went to the scene of
offence only after hearing the noise of the accident as per his
evidence. He turned hostile to the case of the prosecution.
20. PW9-Raju Ramachandra Naik is pancha to Ex.P5 &
P6. He also turned hostile to the case of the prosecution. He
states that, when the panchanama was conducted, he was very
much present at the scene of offence, the police have seized
certain glass pieces. Though he has been directed with severe
cross-examination, but nothing worth is elicited.
21. PW10-Shankar Tukkappa Naik has shifted the
injured to the hospital. He turned hostile to the case of the
prosecution. To the extent of he shifting the injured to the
hospital, his evidence has to be accepted. Though he has been
cross-examined by the prosecution, he has denied all the
suggestions.
22. PW11-Sanjay Modi is a pancha to Ex.P6. In his
presence Ex.P5 and P6 panchanamas were conducted. With
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regard to drawing of panchanama at the scene of occurrence,
there is no dispute raised by the defence.
23. PW12-Rajesh Mitra Naik is an eyewitness. He too
speaks in line with the evidence of PW6 and PW7 with regard to
noticing of the accident. He has shifted the injured to the
hospital as per his evidence. Though he has been cross-
examined at length but he has spoken about the said accident
in his examination-in-chief, which is not properly denied in the
cross-examination.
24. PW13 is the traffic inspector attached to Ankola bus
stand wherein he speaks about issuance of Ex.P8 i.e. entrusting
of the said offending bus to the accused on the date of the
accident. Except denial, nothing is elicited.
25. PW14 is another eyewitness. According to his
evidence, on the date of the accident i.e. on 27.11.2006 at
about 12.00 noon, when he was standing near rickshaw stand,
one bus came from bus stand and dashed against three boys
who were moving in from of Harsha hotel. Because of the
accident, two boys came under the tyres of the said bus and
another boy sustained small injuries on his person. According
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to his evidence, he has seen the said bus on Ankola-Kumta
main road. He states that the said accident has taken place on
Kachcha road. Except this, there is no other contradiction or
omission brought on record in his cross-examination.
26. PW15 is the investigating officer. He has conducted
investigation and filed the charge sheet. So far as conducting
investigation by him and filing of the charge sheet, is not
denied by the defence.
27. PW16 Nityanand Pandit is pancha to Ex.P3-inquest
panchanama. Nothing worth is elicited to disbelieve his
evidence.
28. PW17-Laxminarayan Purasayya Naik was the motor
vehicle inspector, who mechanically examined the offending
bus and issued the M.V. report as per Ex.P15. The contents of
Ex.P15 are disputed by the defence. The only defence of the
accused is that the said bus was not in proper condition and it
was under repair. As per the defence, because of force by his
superior officer, the accused drove the said bus. But to
substantiate this fact, nothing worth is elicited from the mouth
of this PW17 by the accused. However, no fitness certificate
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was issued in respect of the offending bus by the RTO as per
the evidence of PW17.
29. DW1 being the accused in this case, in his evidence,
has stated that he was entrusted with the offending bus on
27.11.2006 at about 7.30 a.m. First trip he took the said bus
from Ankola to Belangal. As the break system of the bus was
not in order, he cancelled the said trip. Thereafter, at 9.30 a.m.
he took the said bus for another trip. He was unable to start
the said bus and but was started by pushing. For the third trip,
he was to go from Ankola to Manjaguni at 11.30 a.m. The
traffic controller asked him to go to Honnebailu village by
cancelling the Manjaguni trip. At that time, he informed the
traffic controller that he would get inspect the bus but the
traffic controller did not permit him to take the said bus for
inspection and compelled the accused to continue his third trip
to Honnebailu as already the passengers have boarded the bus.
He further states that at about 12.15 p.m. he was driving the
said bus towards Honnebailu. The said bus did not start and
therefore, he asked the some of the passengers to push the
said road. For the first time in his evidence, without any
suggestion to anybody, it is stated by him that, the said bus
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had already run for more than 10 lakh km and to that effect he
issued notice to the authorities concerned. He has also stated in
his further examination-in-chief that as per KSRTC Rules if the
bus runs more than 6 lakh km, such bus will be sent for scrap.
But no such evidence has been brought on record by the
defence except self-serving say of DW1. DW1 stated that there
was no horn, no ignition starter and no meter in condition and
the breaks of the said bus were also not in order. For the first
time, without any evidence, DW1 spoken has all these facts.
30. He has been directed with severe cross-
examination. It is alleged that, he has informed about the
defects in the said bus to his higher authorities. When the said
bus was not in order, it was expected by the driver of such
vehicle to see only the bus which is in order and roadworthy,
has to be plied on the roads. But in this case, DW1 being driver
of the bus has not taken all available precautions. As per his
evidence, he yielded to the pressure of his superior officers. But
he being a responsible driver, must have been aware about the
passengers who travel in the said bus. So also the persons who
are moving on road both in vehicles and by walk. But DW1 has
not followed all the requirement of a professional driver. The
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said traffic controller is not examined to prove the same of
accused.
31. DW2-Mahesh Naik is a witness examined by the
prosecution to show that the said bus started by pushing it on
the day of the accident. This fact is also not disputed by the
prosecution.
32. In a case of present nature, when rash and
negligent driving of the bus is attributed against the driver of
the bus, it is the bounden duty of the prosecution to prove the
rash and negligent driving by the driver. In this case, as stated
supra, the driver of the bus was driving it from Ankola bus
stand towards Honnebailu, which was not in order. As per the
evidence brought on record, it was a busy road. So many
vehicles were plying on road, so also people were also moving
on either side of the road. If that is so, when he was driving the
said bus, according to him which was not in good condition, he
must have taken all available precautions. Non-taking of such
precautions amounts to rashness and negligence on the part of
the accused. In a case of present nature, when such rash and
negligence is attributed against the accused, it is well settled
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that in such a case, the rash and negligence have to be
attributed against such drivers. On this aspect law is laid down
by the Hon'ble Apex Court with regard to accidental deaths and
injuries by defining the negligence, reasonable care, rash and
negligent driving, culpable rashness and negligence in
judgment in the case of Ravi Kapur v. State of Rajasthan1
has held as under:
A. Penal Code, 1860 - Ss. 304-A, 279 and 337-Road
accidents-Rash and negligent driving-Preconditions for
invocation of S. 279 IPC, restated-Determination of
negligent and rash driving-Relevant considerations-Nature
of proof-Can be inferred from attendant circumstances-
Doctrine of "res ipsa loquitur" (thing speaks for itself)-Also
applicable to criminal cases of accident-Principle of
"reasonable care" and concept of "culpable rashness" and
"culpable negligence"-Meaning and application of,
explained
-Held, rash and negligent driving has to be examined in
the light of the facts and circumstances of a given case-
Speed of vehicle not always determinative possible-
Reckless and negligent driving at slow speed is also
possible
-In present case, a bus coming from opposite direction
driving on wrong side of the road colliding with a jeep
(2012) 9 SCC 284
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and resulting in death and injuries to persons travelling in
jeep - No dispute as to said accident - Consistent
statements of eyewitnesses that bus was being driven by
accused, who after the accident parked it at a place away
from place of occurrence and ran away-Conduct of moving
bus after accident to a different point indicated that it was
being driven on wrong side of road - No reason to
disbelieve reliable and trustworthy testimony of
eyewitnesses - In view of these facts and having regard to
principle of res ipsa loquitur, judgment of High Court
reversing acquittal and convicting accused under Ss. 304-
A, 279 and 337 IPC, held, proper and not liable to be
interfered with - Motor Vehicles Act, 1988, Ss. 184 and
-Words and Phrases - "Negligence", "reasonable care",
"rash and negligent driving", "culpable rashness" and
"culpable negligence"
A bus, which was coming from opposite direction following
wrong side of the road, collided with a jeep resulting in
death and injuries to persons travelling in the jeep. An
FIR of the said accident was registered on the basis of
information given by PW 2, who was travelling in another
jeep which was behind the jeep which met with the
accident. The bus driver was put to trial for offences
under Sections 304-A, 279, 337 and 338 IPC. The
prosecution examined as many as 11 witnesses including
four eyewitnesses, doctors and the investigating officer
himself. The trial court disbelieved the testimony of the
eyewitnesses on the basis of certain contradictions in their
testimony and held that the prosecution failed to prove its
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case beyond reasonable doubt. Consequently, the trial
court acquitted the accused of all the said charges. In
appeal, the High Court concluded that the judgment of the
trial court was incorrect, and therefore, it reversed the
judgment of acquittal and convicted the accused under
Sections 304-A, 279 and 337 IPC and awarded sentence
in relation thereto. Hence, the present appeal by the
accused bus driver.
The accused argued that as per the settled law, the
appellate court should normally not interfere with the
judgment of acquittal unless it is perverse and contrary to
the evidence on record. He contended that the High Court
in the instant case exceeded its jurisdiction in reversing
the judgment of acquittal. As per the accused, there was
no evidence on record to identify or link him with the
commission of the offence. He stated that there was no
direct evidence to show that he was driving the bus
involved in the accident. He also submitted that even if it
was presumed that he was the person driving the bus at
the relevant time, still there was no evidence to prove
that he drove the bus rashly and negligently.
Dismissing the appeal, the Supreme Court
Held:
The preliminary conditions for applicability of Section 279
IPC are that: (a) it is the manner in which the vehicle is
driven; (b) it be driven either rashly or negligently, and
(c) such rash or negligent driving should be such as to
endanger human life. Once these ingredients are satisfied,
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the penalty contemplated under Section 279 IPC is
attracted.
(Para 12)
Rash and negligent driving has to be examined in the light
of the facts and circumstances of a given case. It is a fact
incapable of being construed or seen in isolation. It must
be examined in light of the attendant circumstances. A
person who drives a vehicle on the road is liable to be
held responsible for the act as well as for the result. It
may not be always possible to determine with reference
to the speed of a vehicle whether a person was driving
rashly and negligently. Both these acts presuppose an
abnormal conduct. Even when one is driving a vehicle at a
slow speed but recklessly and negligently, it would
amount to "rash and negligent driving" within the
meaning of the language of Section 279 IPC. That is why
the legislature in its wisdom has used the words "manner
so rash or negligent as to endanger human life".
(Para 12)
"Negligence" means omission to do something which a
reasonable and prudent person guided by the
considerations which ordinarily regulate human affairs
would do or doing something which a prudent and
reasonable person guided by similar considerations would
not do. Negligence is not an absolute term but is a
relative one; it is rather a comparative term. It is difficult
to state with precision any mathematically exact formula
by which negligence or lack of it can be infallibly
measured in a given case. Whether there exists
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negligence per se or the course of conduct amounts to
negligence will normally depend upon the attending and
surrounding facts and circumstances which have to be
taken into consideration by the court. In a given case,
even not doing what one was ought to do can constitute
negligence.
(Para 13)
The court has to adopt another parameter i.e. "reasonable
care" in determining the question of negligence or
contributory negligence. The doctrine of reasonable care
imposes an obligation or a duty upon a person (for
example a driver) to care for the pedestrian on the road
and this duty attains a higher degree when the
pedestrians happen to be children of tender years. It is
axiomatic to that while driving a vehicle on a public way,
there is an implicit duty cast on the drivers to see that
their driving does not endanger the life of the right users
of the road, may be either vehicular users or pedestrians.
They are expected to take sufficient care to avoid danger
to others.
(Para 14)
The other principle that is pressed in aid by the courts in
such cases is the doctrine of res ipsa loquitur. This
doctrine serves two purposes-one that an accident may
by its nature be more consistent with its being caused by
negligence for which the opposite party is responsible
than by any other causes and that in such a case, the
mere fact of the accident is prima facie evidence of such
negligence. Secondly, it is to avoid hardship in cases
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where the claimant is able to prove the accident but
cannot prove how the accident occurred. The courts have
also applied the principle of res ipsa loquitur in cases
where no direct evidence was brought on record.
(Para 15)
The courts have also taken the concept of "culpable
rashness" and "culpable negligence" into consideration in
cases of road accidents. "Culpable rashness" is acting with
the consciousness that mischievous and illegal
consequences may follow but with the hope that they will
not and often with the belief that the actor has taken
sufficient precautions to prevent their happening. The
imputability arises from acting despite consciousness
(luxuria). "Culpable negligence" is acting without the
consciousness that the illegal and mischievous effect will
follow, but in circumstances which show that the actor has
not exercised the caution incumbent upon him and that if
he had, he would have had the consciousness. The
imputability arises from the neglect of civic duty of
circumspection. In such a case the mere fact of accident
is prima facie evidence of such negligence. The maxim res
ipsa loquitur suggests that on the circumstances of a
given case the res speaks and is eloquent because the
facts stand unexplained, with the result that the natural
and reasonable inference from the facts, not a conjectural
inference, shows that the act is attributable to some
person's negligent conduct.
(Para 15)
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Negligence in the case of an accident can be gathered
from the attendant circumstances. The doctrine of res
ipsa loquitur is equally applicable to the cases of accident
and not merely to the civil jurisprudence. The said
principle can equally be extended to criminal cases
provided the attendant circumstances and basic facts are
proved. Either the accident must be proved by proper and
cogent evidence or it should be an admitted fact before
this principle can be applied. This doctrine comes to aid at
a subsequent stage where it is not clear as to how and
due to whose negligence the accident occurred. The
factum of accident having been established, the court with
the aid of proper evidence may take assistance of the
attendant circumstances and apply the doctrine of res
ipsa loquitur. The mere fact of occurrence of an accident
does not necessarily imply that it must be owed to
someone's negligence. In cases where negligence primary
cause, it may not always be that direct evidence to prove
it exists. In such cases, the circumstantial evidence may
be adduced to prove negligence. is the Circumstantial
evidence consists of facts that necessarily point to
negligence as a logical conclusion rather than providing an
outright demonstration thereof. Elements of this doctrine
may be stated as: (i) the event would not have occurred
but for someone's negligence, (ii) the evidence on record
rules out the possibility that actions of the victim or some
third party could be the reason behind the event, and (iii)
the accused was negligent and owed a duty of care
towards the victim.
(Para 20)
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In the present case, the bus involved in the accident was
seized and was later on given on superdari to the owner
of the bus i.e. the accused. In fact, there is no serious
dispute as to the fact that the accident between the jeep
and the bus took place at the place of occurrence.
Applying the principle of res ipsa loquitur, it can safely be
inferred that it was a serious accident that occurred at a
turning point in which a number of people had died. After
the accident, the bus driver moved the bus away to a
different point. If what is submitted by the accused had
even an iota of truth in it, the most appropriate conduct of
the bus driver would have been to leave the vehicle at the
place of accident to show that he was on the extreme left
side of the road (his proper side for driving) and the jeep
which was trying to overtake the other vehicle had come
on the wrong side of the road resulting in the accident.
This would have been a very material circumstance and
relevant conduct of the driver.
(Para 29)
There is consistency in the statements of the witnesses
(PWs 1, 2 and 4) that the accused was driving the vehicle
and after parking the vehicle at a place away from the
place of occurrence, he had run away. There is no reason
to disbelieve the statements of these witnesses. The
witnesses also identified the accused in the court. The
trial court ignored the statement of the eyewitnesses,
particularly when they were reliable, trustworthy and gave
the most appropriate eye account of the accident. The
High Court rightly interfered with the judgment of
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acquittal passed by the trial court and convicted the
accused under the relevant provisions.
(Paras 30, 35 and 42 to 45)
33. The aforesaid principles laid down by the Hon'ble
Apex Court are aptly applicable to the facts of this case as the
witnesses to this case being eyewitnesses and injured
eyewitness have spoken about the manner in which the
accused drove the bus.
34. The learned Trial Court while assessing the
evidence placed on record by the prosecution has come to the
conclusion that except bald defence of the accused regarding
condition of the bus, no other concrete defence has been taken
by the accused. When accused was having knowledge of
condition of the bus, the accused could have refused to take
the said bus on a public road on a specified route as observed
by the Trial Court. With regard to threatening by the superior
officer of the accused that the accused would lose his job, the
accused has to see the safety of the road users as well as
inmates of the bus. But he has not thought of the same and
has taken risk. Such a taking of risk and plying such
unconditioned bus on road itself amounts to rash and
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negligence that too when on either side of the road the vehicles
were parked and people were moving on either side of the road
and the accused also anticipated so many vehicles from the
opposite direction that too in a busy vicinity. He must have
taken all the precautions to avoid the accident. This act of the
accused amounts to sheer negligence on his part. The learned
First Appellate court has considered all these aspects and has
confirmed the judgment passed by the Trial Court in convicting
the accused for the offences alleged against him. Therefore, I
do not find any factual or legal error in the judgment of
conviction and order on sentence passed by the Trial Court and
confirmed by the First Appellate Court. The Revisional Court
cannot sit over as Appellate Court and re-appreciate the
evidence on record, since the powers vested with revisional
courts are limited.
35. The Trial Court has convicted the accused for the
offence punishable under Section 279, 304-A and 337 of IPC.
The major offence is under Section 304-A of IPC. Therefore,
whatever the sentence so imposed for the offence punishable
under Section 279 of IPC merges with Section 304-A of IPC.
Therefore, the accused has to be sentenced for the offence
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under Section 304-A and 337 of IPC. The Trial Court has
imposed sentence of one year for the offence punishable under
Section 304-A of IPC and for the offence under Section 279 of
IPC, the accused was directed to pay fine of Rs.1,000/- with
default sentence. As minor offence under Section 279 of IPC
merges with major offence under Section 304-A of IPC, the
accused is liable for conviction under Section 304-A of IPC. It is
submitted by the counsel for the accused that the offence has
taken place on 27.11.2006 and now we are in the year 2023.
In view of the grounds stated by the revision petitioner in the
revision petition as well as considering the age of the
proceedings before the Court, the accused is must be now aged
44 years. That is only the mitigating circumstance to show
some leniency in imposing the sentence on the accused.
36. With regard to imposing of sentence in a case of
present nature, the Hon'ble Apex Court has laid down law in
the case of State of Karnataka v. Krishna Alias Raju2, has
observed as under:
"Criminal P.C. (2 of 1974), S. 377- Enhancement of
sentence - Driver convicted for killing one person and
AIR 1987 SC 861
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injuring another for offences under S. 304A and under
other provisions - Sentence of fine of Rs.250/--Refusal of
High Court of enhance sentence - Not proper. Criminal
Appeal No.451 of 1981, D/- 31-1-1983 (Kant), Reversed.
(Penal Code, (1860), S. 304A)
Where the driver had not only driven his bus in a reckless
manner and caused the death of one person and injuries
to another but he had also attempted to escape
prosecution by failing to report the accident to the police
authorities and the driver was guilty of offence under S.
304A and other offences, it was not proper for the High
Court not to enhance the sentence of fine of Rs.250/- for
all offences."
37. At this stage, this Court is obliged to observe about
the conditions of the KSRTC buses being plied in the state and
outside the State.
38. As per publication by the Government of Karnataka
on "Evaluation of Karnataka State Road Transport Corporations
(KSRTC, NWKRTC and KKRTC) from 2014-15 to 2019-2020
issued in the month of February 2022", the findings indicated
are as under:
"The findings indicate that the KSRTC has the highest
number of passengers carried (10.53 lakh). NWKRTC
has a higher number of passengers carried per bus
per day (488), with KSRTC at 375 and KKRTC at 338.
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The fleet size shows a slight increasing trend for all
corporations, with the largest increase observed for
KKRTC (400 buses, 9.3%), On an average, a KSRTC
bus runs around 361 km/day, followed by NWKRTC at
348 km/day and KKRTC with 336 km/day. 94% of all
bus services depart on time, and 95.2% arrive on
time. Fleet Age has been on the rise across all
corporations and NWKRTC has the largest share of
buses above 9 lakh km (the scrapping threshold).
There is decline in accidents and breakdowns over the
period. The margin per km (EPKM-CPKM) is negative
INR-5.23 and INR-5.34 for KSRTC and KKRTC
respectively indicating high operational costs and low
earnings due to inappropriate pricing structure and
maintenance costs. More than 50% of passengers
report satisfaction on all components for RTC
services."
39. It is very unfortunate to note that, not only the
inmates of the busses are being affected and their safety is at
stake, but also the other road users are seriously affected as
noticed in this case.
40. Though the aforesaid findings indicate about the
improvement of conveyance facility available to the
passengers, who travel in KSRTC buses, but even then it is
noticed that, in NWKRTC Central Office, Hubli, when the public
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relations officer was questioned regarding plying of more
number of old buses, he gave a figure stating that NWKRTC
operates 4300 scheduled routes everyday and nearly 2300
buses have run 9 lakh kilometres. When such a large number of
scheduled routes are commuting everyday by buses maintained
by the corporation, it is the duty of KSRTC to ensure better
quality of buses to ply on the road keeping in mind the safety
of the passengers who travel in KSRTC bus and also the users
of the road to avoid any casualties. No doubt it all depends
upon the conditions of the buses. In this case, the said
offending bus had already run more than 10,00,000 kms and
the vehicle was not having ignition starter, horn and breaks.
The passengers, who were travelling in the said bus were
compelled to push the said bus to get it started. The condition
of the bus which is brought on record is quite alarming.
41. It has been stated by the accused that, the traffic
controller compels the drivers to use such buses for the
scheduled trips. Unless the mechanical department of KSRTC
gives a finding that such buses are "fit for road" it will not
cause any harm in running buses then only such buses have to
be permitted to ply on public road. It is the duty of the KSRTC
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authorities to get certificate from the concerned RTO that, such
buses are fit for route. Even the RTO authorities have to inspect
each and every part of the buses and issue certificate of its
fitness. Once such certificate is issued, then only such buses
are to be permitted to ply on public roads. The RTO authorities
also should not have any casual approach in inspecting and
certifying about the fitness of the buses to ply on the road.
Therefore, in the interest of justice and keeping in mind the
safety of the passengers, who use the buses for moving from
one destination to another destination, it is just and necessary
to issue necessary directions to the authorities concerned to
follow the directions scrupulously. Therefore, it is necessary to
issue following directions to the authorities concerned to follow
safety measures for the safety of passengers, who are making
use of the buses. Accordingly, the KSRTC is directed to provide
better quality of buses to ply on the roads by following the
directions mentioned below:
i) The mechanical department of the KSRTC have to
certify about the fitness of the buses "fit for road"
ii) On issuing such certificate only, such buses are to
be permitted to ply on roads.
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iii) Every year the KSRTC authorities are directed to
obtain certificate from the concerned RTO with
regard fitness of buses for travelling.
iv) On obtaining such certificate only, the buses are
to be permitted to ply on the road.
v) There shall be periodical mechanical examination
and repair of the buses.
vi) As per the rules framed by the KSRTC on
completion of particular running of kilometres and
such buses are bound to be scrapped and such
scrapped buses should not be permitted to be
used for any scheduled routes either to the cities
or to villages.
42. In view of the same, the sentence so imposed by
the Trial Court affirmed by the First Appellate Court directing
him to undergo simple imprisonment of one year has to be
committed to six months with fine of Rs.1,000/-. With this
view, the aforesaid points are answered partly in affirmative.
Resultantly, I pass the following:
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ORDER
i) The revision petition filed by the petitioner-
accused is hereby allowed in part.
ii) The judgment of conviction dated 26.11.2008 in
C.C.No.62/2007 passed by the JMFC, Ankola
and affirmed by the Principal District and
Sessions Judge, Uttara Kannada, Karwar
Criminal Appeal No.253/2008 vide judgment
dated 29.05.2019 is confirmed. However, the
sentence imposed by both the Courts below is
modified.
iii) The accused is sentenced to undergo simple
imprisonment for a period of six months for the
offence punishable under Section 304-A of IPC.
So far as imposing of fine amount of Rs.1,000/-
is concerned, the same is undisturbed.
iv) The sentence so imposed for the offence under
Section 337 of IPC is maintained.
v) The accused shall surrender before the Trial
Court within fifteen days from the date of this
order.
vi) The Trial Court is directed to secure the
presence of the accused by taking necessary
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steps to commit him to the prison. Send back
the Trial Court records forthwith along with
copy of this order.
vii) Intimate the final order to the Trial Court as
well as First Appellate Court through mail.
viii) Registry is requested to send a copy of this
order to the following authorities for strict
compliance.
a) The Chief Secretary, Government of
Karnataka,
b) The Secretary, Transport Department,
c) Managing Director, KSRTC, Bengaluru to
follow the directions as indicated above.
Sd/-
JUDGE
YAN
