Karnataka High Court

Sri Basavaraju vs State Of Karnataka on 1 December, 2023

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                                                    NC: 2023:KHC:43492
                                                CRL.RP No. 361 of 2016




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                   BEFORE
                    THE HON'BLE MR JUSTICE ANIL B KATTI
               CRIMINAL REVISION PETITION NO. 361 OF 2016
             BETWEEN:

                 SRI.BASAVARAJU
                 S/O MUNIYAPPA
                 AGED ABOUT 32 YEARS
                 R/AT MALLIMAKANAPURA VILLAGE
                 HOSKOTE TALUK-562 114
                 BANGALORE RURAL DISTRICT
                                                         ...PETITIONER
             (BY SRI.H.MUJTABA FOR
                 SRI. BHARATH KUMAR V., ADVOCATE)

             AND:

                 STATE OF KARNATAKA
                 THROUGH CHINTHIMANI P.S
                 CHINTAMANI-563 125
Digitally        CHIKKABALLAPUR DISTRICT
signed by
SUMITHRA R                                          ...RESPONDENT
Location:  (BY SRI.RAJAT SUBRAMANYAN, HCGP)
HIGH
COURT OF        THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING
KARNATAKA TO SET ASIDE THE JUDGMENT PASSED BY ADDL. CIVIL JUDGE
             AND JMFC, CHINTAMANI IN C.C.NO.147/2013 DATED
             06.09.2014 AND TO SET ASIDE THE JUDGMENT PASSED IN II
             ADDL. DISTRICT AND S.J., CHIKKABALLAPUR (SITTING AT
             CHINTHAMANI) IN CRL.A.NO.61/2014 DATED 04.12.2015 AND
             TO ALLOW THIS CRL.RP.

                  THIS PETITION, COMING ON FOR HEARING, THIS DAY,
             THE COURT MADE THE FOLLOWING:
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                                                  NC: 2023:KHC:43492
                                            CRL.RP No. 361 of 2016




                              ORDER

Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of

II Addl.District and Sessions Judge, Chikkaballapur, sitting

at Chintamani in Crl.A.No.61/2014, dated 04.12.2015, in

confirming the judgment of Trial Court on the file of

Addl.Civil Judge and JMFC, Chintamani, in

C.C.No.147/2013, dated 06.09.2014 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 both the sides and on perusal of Trial

Court Records with judgment of both the Courts below the

following points arise for consideration:

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1) Whether the judgment of First Appellate

Court in confirming the judgment of

conviction passed by the Trial Court for

the offence punishable under Sections 279

and 304-A of IPC is perverse capricious

and legally not sustainable?

2) Whether any interference by this Court?

5. On perusal of the oral and documentary evidence

placed on record by the prosecution, it would go to show

that on 23.09.2012 at about 12.00 noon in front of

Bhyraveshwara school, on the road leading from Kaiwara

cross to Kaiwara village, accused being rider of motor

cycle bearing No.KA-53-J-4792 with pillion rider

Krishnappa drove the same with rash and negligent

manner and while passing over road hump did not

exercise due care in driving the vehicle. On account of

such negligence of accused in riding the vehicle, the pillion

rider Krishnappa was thrown out of the vehicle and due to

which he suffered head injuries. The injured was

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immediately shifted to Axon Hospital at Bengaluru where

he succumbed to the injuries sustained in the accident.

The prosecution alleges that accident in question has

occurred due to rash and negligent riding of motor cycle

by accused.

6. The prosecution to prove the culpable rashness

and negligence of accused in riding motor cycle at the

place of accident relies on the oral testimony of PW.1

Ashok, PW.2 Ashwathappa and PW.3 Narayanaswamy. The

prosecution to prove the place of accident relied on the

oral testimony of PW.4 Nagaraj panch witnesses to the

spot panchanama Ex.P.2. The said evidence is sought to

be corroborated by the evidence of Investigating Officer

PW.5 M.Manjunath, PW.6 Krishnappa, PW.7

M.L.Krushnamurthi. The Trial Court after appreciation of

evidence on record, found the accused guilty for the

offence punishable under Section 279, 304-A of IPC and

accordingly imposed the sentence as per the order on

sentence. The First Appellate Court on re-appreciation of

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evidence on the appeal filed by accused has dismissed the

same and confirmed the judgment of Trial Court.

7. Learned counsel for Revision Petitioner has argued

that the evidence of PWs.1 to 3 is insufficient to prove the

culpable rashness and negligence in riding the vehicle by

accused leading to the accident in question. The Road

humps at the place of accident was unnoticed by the rider

of the motor cycle and there is no evidence placed on

record by the prosecution to prove that rider of the motor

cycle was ridden with high speed in rash and negligent

manner. Therefore, the mere fact of accident itself cannot

be said as sufficient evidence to prove the culpable

rashness and negligence on the part of accused.

8. Per contra learned incharge High Court

Government Pleader has argued that the place of accident

and accused was riding the motor cycle bearing

registration No.KA-53-J-4792 and the place of accident

and the existence of road hump has not been disputed by

accused. The evidence placed on record would

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demonstrate the fact that accused did not exercise due

diligence while negotiating on the road hump in riding the

motor cycle due to which the pillion rider Krishnappa was

thrown out of the motor cycle leading to the accident in

question. On account of such negligence pillion rider

Krishnappa was thrown out of the vehicle and suffered

injuries to which he succumbed to the injuries sustained in

the accident while he was in the hospital for treatment.

The panch witness PW.4 and spot panchanama Ex.P.2

coupled with the sketch map Ex.P.4 and the evidence of

PW.5 Muniyappa that he prepared spot panchanama at the

place of accident Ex.P.2 and the sketch map Ex.P.4 would

go to show that the accident in question occurred due to

negligent riding of vehicle at the place of accident. The

accused being rider of motor cycle was aware about the

existence of road hump, since on the same road he had

gone to the temple and while returning, the accident has

occurred. Therefore, he should have been more cautious

while riding the motor cycle at the place of accident. The

failure of accused in exercising such diligence, the accident

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in question has occured leading to death pillion rider

Krishnappa. The Courts below have rightly appreciated the

material evidence on record and the same does not call for

any interference of this Court.

9. PW.1 Ashok has deposed to the effect that on

23.09.2011 at 10.00 a.m. accused and his brother

Krishnappa on the motor cycle of accused went to

Amaranarayanaswamy temple of Kaiwara. While returning

at 12 noon near Bhyraveshwara school, the accident in

question has occurred due to rash and negligent riding of

motor cycle by accused while passing on the road hump.

He further deposed to the effect that his injured brother

Krishnappa was shifted to the hospital and he succumbed

to the injuries sustained in the accident and accordingly he

has filed complaint Ex.P.1. Police have also prepared

panchanama in his presence Ex.P.2 and he identifies his

signature Ex.P.2(a). PW.2 Ashwathappa and PW.3

Narayanaswamy were proceeding on the motor cycle and

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they were back to the motor cycle ridden by accused with

pillion rider Krishnappa. When they reached near

Bhyraveshwara School, due to rash and negligent riding of

motor cycle by accused while passing on the road hump,

the pillion rider Krishnappa was thrown out of the vehicle

and sustained head injuries. Thereafter, he was

immediately shifted to hospital where he succumbed to the

injuries sustained in the accident.

10. The evidence of PW.5 M.Manjunath, PW.6

Krishnappa and PW.7 Lingaiah would only speak about the

investigation carried out by them after registering the case

on receipt of the complaint filed by PW.1 vide Ex.P.1.

Therefore, the only material witnesses to speak on the

aspect of negligence in riding the vehicle at the place of

accident. PW.1 Ashok, PW.2 Ashwathappa and PW.3

Narayanaswamy as referred above.

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11. It is true that mere speed of the vehicle as

deposed by PW.1 Ashok, PW.2 Ashwathappa and PW.3

Narayanaswamy itself cannot be said as sufficient

evidence to prove the culpable rashness or negligence in

riding the motor cycle by accused at the relevant point of

time. The prosecution must demonstrate by the evidence

on record that, the accused did not exercise due diligence

while riding the motor cycle and it is on account of failure

of accused to exercise such diligence the accident in

question has occurred.

12. The prosecution relies on the evidence of PW4.

Nagaraj who is the panch witness to the spot panchanama

Ex.P.2 and that of Investigating Officer PW.5 M.Manjunath

to prove the place of accident. PW.4 Nagaraj has deposed

to the effect that he was called by the Police about 11

months back at 6.00 p.m. near Kaiwara cross in front of

Bhyraveshwara school where accident had occurred. Police

have seized the motor cycle involved in the accident and

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prepared panchanama in his presence Ex.P.2 and identifies

his signature as Ex.P.2(a).

12(a). PW.5 M.Manjunath has deposed to the effect

that after visiting Hosakote Government hospital and on

conducting inquest panchanama proceeded to the place of

accident and prepared spot panchanama Ex.P.2 and the

place of accident is on the road leading from Kaiwara cross

to Kaiwara village and also spoken about the existence of

road hump. The motor cycle had fallen at a distance of 15

ft. from the said road hump.

12(b). PW.5 M.Manjunath has also deposed to the

effect that he has prepared the sketch map Ex.P.4, the

defence though has subjected both these witness to cross-

examination, nothing worth material has been brought on

record, so as to discredit their evidence regarding

preparation of spot panchanama Ex.P.2, sketch map

Ex.P.4. Apart from denial suggestions which has not been

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admitted by the witnesses as true, there is no other

material evidence brought on record during the course of

their cross-examination.

13. On perusal of the spot panchanama Ex.P.2, it

would go to show that the road at the place of accident is

a public road leading from Kaiwara cross to Kaiwara village

and Bhyraveshwara School is situated to the Eastern side

and the accident has occurred at speed humps. There is

road divider at the place of accident and the width of the

road is about 18 ft. having foot path on either side of the

road. The place of accident is shown at a distance of 10 ft.

from Sourthern side of road hump and the motor cycle

bearing No. KA-53-J-4792 was damaged. The sketch map

Ex.P.4 also would go to show that road at the place of

accident runs from South to North and to the Eastern side

there is Bhyraveshwara School and the existence of road

hump is shown at a distance of 10 ft. from Eastern side. It

is thereafter at a distance of 15 ft. The motor cycle was

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found lying. Looking to these spot features as shown in

the sketch map Ex.P.4 and also in the spot panchanama

Ex.P.2, it would go to show that accused was riding the

motor cycle bearing No.KA-53-J-4792 with pillion rider

Krishnappa while passing on the road hump did not

exercise due care and caution and as a result of which the

pillion rider Krishnappa was thrown out of the vehicle, due

to which sustained injuries and he succumbed to the injury

sustained in the accident while he was under treatment in

the hospital.

14. Learned counsel for the Revision Petitioner in

support of his contention that principle of res ipsa

loquitur is not applicable to the facts of the case and in the

absence of negligence in driving the motor cycle, the

conviction of accused for the offence under Section 279,

304-A of IPC cannot be legally sustained relies on the co-

ordinate bench judgment of this Court in Sri.Durgappa

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Vs. The State of Karnataka, reported in ILR 2008 KAR

3759, wherein it has been observed and held that:

"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 principles 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".

This Court having so observed has set aside the

judgment of conviction passed by both the Courts below

and acquitted the accused.

15. In the present case, the case of prosecution is

not based only on the principles of res ipsa loquitur. On

the other hand there is evidence of two eye witnesses

PW.2 Ashwathappa and PW.3 Narayanaswamy who were

proceeding on their motor cycle just behind motor cycle

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ridden by accused. The existence of road hump at the

place of accident has not been specifically denied by the

accused during the cross-examination of PWs.1 to 3. On

the other hand PW.2 Ashwathappa and PW.3

Narayanaswamy have categorically deposed to the effect

that accused was riding the motor cycle bearing

No.KA-53-J-4792 while passing on the road hump with

speed did not exercise due diligence due to which pillion

rider Krishnappa was thrown out of the vehicle, and as a

result of which he fell on the road and sustained head

injuries. The defence counsel in their cross-examination

has not specifically denied their presence at the place of

accident that they were moving on the motor cycle behind

the motor cycle ridden by the accused. The cross-

examination would reveal that it has been elicited about

spot features at the place of accident and the same has

been admitted by the evidence which run in consonance

with the evidence of PW.5 M.Manjunath, the Investigating

Officer who has drawn panchanama at the place of

incident Ex.P.2 and also prepared sketch map Ex.P.4. The

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motor vehicle report Ex.P.5 would reveal that accident was

not due to any mechanical defect of the motor cycle.

Accused during the course of 313 Cr.P.C. statement has

not offered any explanation as to how according to him

accident has taken place. The evidence of PW.2

Ashwathappa and PW.3 Narayanaswamy if appreciated

with the spot panchanama Ex.P.2 and sketch map Ex.P.4

with the evidence of Investigating Officer PW.5 Manjunath

then it would go to show that, the accident in question has

occurred due to failure of accused in exercising due

diligence while passing on the road hump, as a result of

which pillion rider of the motor cycle Krishnappa was

thrown out of the vehicle. The sketch map Ex.P.4 and the

recitals of the panchanama Ex.P.2 would speak about the

motor cycle being carried about a distance of 15 ft. from

the road hump, it would only suggest that accused was

not in a position to control his vehicle and due to which it

was rubbed on the road hump but also carried at a

distance of 15 ft., these aspect of the matter would

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demonstrate that accused was rash and negligent in riding

motor cycle at the place of accident.

16. The Courts below have rightly appreciated the

oral and documentary evidence placed on record and

justified in holding that accident in question has occurred

due to rash and negligent riding of motor cycle by accused

while passing on the road hump and it is on account of

such negligence pillion rider of the motor cycle Krishnappa

was thrown out of the motor cycle and succumbed to the

injuries sustained in the accident. The findings recorded by

both the Courts below in holding accused guilty for the

offence punishable under Section 279 and 304-A of IPC is

based on the material evidence on record and same does

not call for interference by this Court.

17. Now coming to the question of imposition of

sentence. The Trial Court has convicted accused for the

offence punishable under Section 279 of IPC to undergo

simple imprisonment for 6 months and pay a fine of

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Rs.1,000/-. Further accused was also convicted for the

offence punishable under Section 304-A of IPC and

sentenced to undergo simple imprisonment for 1 year and

to pay a fine of Rs.8,000/-. The Trial Court has not

imposed any default sentence for both the aforesaid

offences. Looking to the facts and circumstances of the

case and the evidence on record, the imposition of

sentence appears to be on higher side and the same needs

to be interfered by this Court. Looking to the facts and

circumstances of the case, if the accused is sentenced to

undergo simple imprisonment for 3 months and pay a fine

of Rs.1,000/- in default of payment of fine shall undergo

further imprisonment for 1 month for the offence

punishable under Section 279 of IPC, further the accused

is also sentenced to undergo simple imprisonment for 6

months and to pay a fine of Rs.8,000/- and in default of

payment of fine shall undergo simple imprisonment for 1

month for the offence punishable under Section 304-A of

IPC is ordered will meet the ends of justice.

Consequently, proceed to pass the following:

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ORDER

Revision petition filed by Revision Petitioner is hereby

partly allowed.

The judgment of First Appellate Court on the file of

II Addl.District and Sessions Judge, Chikkaballapur, sitting

at Chintamani in Crl.A.No.61/2014, dated 04.12.2015, in

confirming the judgment of Trial Court on the file of

Addl.Civil Judge and JMFC, Chintamani, in

C.C.No.147/2013, dated 06.09.2014 ordered to be

modified as under:

Accused is sentenced to undergo simple

imprisonment for 3 months and to pay a fine of Rs.1,000/,

in default of payment of fine shall undergo further

imprisonment for a period of 1 month for the offence

punishable under Section 279 of IPC.

Accused is also sentenced to undergo simple

imprisonment for a period of 6 months and to pay fine of

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Rs.8,000/- in default of payment of fine shall undergo

simple imprisonment for a period of 1 month for the

offence punishable under Section 304-A of IPC.