Karnataka High Court
Sri.M.Isubu vs The State Of Karnataka on 6 December, 2023
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CRL.RP No. 40 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 40 OF 2015
BETWEEN:
SRI.M.ISUBU
AGED ABOUT 46 YEARS
S/O LATE ABDUL RAHIMAN
R/AT ANDETHADAKA HOUSE
ILANTILA VILLAGE,
(MADIKERI BOTTU HOUSE,
BARYA VILLAGE)
BELTHANGADY TALUK,
D.K.-574 201
...PETITIONER
(BY SRI.HAREESH BHANDARY T., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY UPPINANGADI POLICE STATION
REPRESENTED BY
Digitally STATE PUBLIC PROSECUTOR,
signed by HIGH COURT BUILDINGS,
SUMITHRA R
BANGALORE-560 001
Location: ...RESPONDENT
HIGH COURT (BY MRS.ANITHA GIRISH N., HCGP)
OF
KARNATAKA THIS CRL.RP FILED U/S.397 CR.P.C, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DTD.
20.04.2011 MADE IN C.C.NO.1303/2006 BY THE COURT OF ADDL.
CIVIL JUDGE & JMFC, PUTTUR, D.K., AND THE JDGMENT AND
ORDER DTD. 29.09.2014 MADE IN CRL.A.NO.92/2011 BY THE
COURT OF V-ADDL. DIST AND SESSIONS JUDGE, D.K.
MANGALORE SITTING AT PUTTUR, D.K., AND ACQUIT HIM OF THE
OFFENCES WITH WHICH HE WAS CONVICTED BY THE COURTS
BELOW.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 40 of 2015
ORDER
Revision Petitioner/accused feeling aggrieved by the
judgment of First Appellate Court on the file of V
Additional District and Sessions Judge, D.K., Mangalore,
sitting at Puttur D.K. in Criminal Appeal No.92/2011 dated
29.09.2014 confirming the judgment of Trial Court on the
file of Additional Civil Judge, JMFC, Puttur, D.K. in Criminal
Case No.1303/2006 dated 20.04.2011 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 Trial Court records, including the judgment
of both the courts below, the following points arise for
consideration:
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1. "Whether the impugned judgment of First
Appellate Court in confirming the judgment of
Trial Court convicting the accused for offences
punishable under Sections 279, 337, 338, 304A of
IPC is perverse, capricious and legally not
sustainable ?
2. Whether interference of this Court is required?
5. On perusal of oral and documentary evidence
placed on record by the prosecution, it would go to show
that on 3.3.2006 in the morning at about 06.15 a.m.,
accused being the driver of Eicher Lorry bearing
registration No.KA.20-A-5625 at Pullotte, Shirady village
of Puttur Taluk on N.H.48, drove the same from Gundya
side towards Mangalore with high speed in a rash and
negligent manner so as to endanger human life. On
account of such actionable negligence of accused, the
Eicher Lorry bearing registration No.KA.20-A.5625 came to
the wrong side and dashed to the Tata Sumo bearing
registration No.KA.25-M-6685 which was coming from
opposite side. The inmates of the Tata Sumo bearing
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registration No.KA.25-M-6685, CW.3 sustained simple
injuries and CWs.4 to 7 sustained grievous injuries.
Further, Soumya, Mahanthayya, Chennayya, Vishweshwari
and Suresh succumbed to the injuries sustained in the
accident. The prosecution alleges that accident in
question has occurred due to the rash and negligent
driving of Eicher Lorry bearing registration No.KA.20-A-
5625 by its driver, the accused herein, since he proceeded
to the right side by traveling to its extreme right side and
dashed against the Tata Sumo bearing registration
No.KA.25-M-6685 which was coming from the opposite
side, due to which accident in questions has accured.
6. The Trial Court after hearing the arguments of both
sides and on appreciation of oral and documentary
evidence placed on record by prosecution, convicted the
accused for offences punishable under Sections 279, 337,
338, 304A of IPC and imposed sentence as per the order
of sentence. Accused challenged the said judgment of
conviction and order of sentence before First Appellate
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Court. The First Appellate Court on re-appreciation of
evidence, dismissed the appeal and confirmed the
judgment of conviction and order of sentence passed by
the Trial Court.
7. Accused in challenging the concurrent findings of
both the courts below has argued that complainant PW.1-
Joseph, who has filed the complaint Ex.P.1, has not
supported the case of prosecution. The evidence of
injured witnesses PWs.2 to 4 and 7, inmates of Tata Sumo
bearing registration No.KA.25-M-6685, though have
spoken about the factum of accident, however, from their
evidence the culpable rashness or negligence of accused
leading to the accident in question, could not be
ascertained. The independent panch witnesses, PW.1-
Joseph, PW.8-Thomas to the spot panchanama Ex.P.2,
have not supported the case of prosecution. The
Investigating Officer has not been examined by the
prosecution to prove the correctness of spot features
recorded in spot panchanama Ex.P.2. The First Appellate
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Court has relied on sketch map which has not been
brought on record by prosecution and recorded the finding
by applying the principles of res ipsa loquitur based on the
evidence of PWs.2 to 4 and 7 and held that prosecution
has proved the guilt against accused which cannot be
legally sustained.
8. Per contra, learned HCGP has argued that there are
no reasons to disbelieve the oral testimonies of PWs.2 to 4
and 7 who were inmates of Tata Sumo bearing registration
No.KA.25-M-6685. The independent panch witnesses PW.1
and PW.8 though have not supported the case of
prosecution, but the evidence of injured eye witnesses
PWs.2 to 4 and 7, who have spoken about the place of
incident, can be relied even without examining the author
of spot panchanama Ex.P.2 i.e., the Investigating Officer
of the case. The sketch map is part of record and First
Appellate Court has rightly appreciated the sketch map
with recitals of spot panchanama Ex.P.2 and recorded its
finding. The findings recorded by both courts below are
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based on material evidence on record and the same does
not call for any interference by this Court.
9. The accused has initially disputed the fact that he
was driver of Eicher Lorry bearing registration No.KA.20-A-
5625. The evidence of injured eye witnesses PW.2-
Suvarna, PW.3-Shyla, PW.4-Chennamma and PW.7-
Vijayalakshmi would go to show that they have identified
accused before Court as the person who was driving the
Eicher Lorry bearing registration No.KA.20-A-5625 which
dashed against the vehicle in which they were traveling
i.e., Tata Sumo bearing registration No.KA.25-M-6685.
PW.9-Abdul Razak is the owner of the Eicher Lorry bearing
registration No.KA.20-A-5625 and given particulars of
vehicle and documents, so also accused being the driver of
aforesaid vehicle as on the date of accident and reply to
notice is marked as Ex.P.31. PW.9-Abdul Razak during the
course of his evidence has specifically deposed of accused
being the driver of Eicher Lorry bearing registration
No.KA.20-A.5625 as on the date of accident and
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Investigating Officer has issued notice to him. Further he
has given reply as per Ex.P.31. Therefore, mere admission
of PW.9-Abdul Razak, owner of the vehicle, that he cannot
tell as to who was driving the lorry cannot be a ground to
reject his entire examination-in-chief and reply given by
him to the notice of Investigating Officer Ex.P.31. Above
all, accused during the course of his statement recorded
Section 313 Cr.P.C., has claimed that accident did not
occur due to his fault. It means that accused admits that
he was the driver of Eicher Lorry bearing registration
No.KA.20-A.5625. Therefore, both the courts below have
rightly held that prosecution has proved that accused was
the driver of Eicher Lorry bearing registration
No.KA.20-A-5625 as on the date of accident and findings
of both the courts below are based on material evidence
on record.
10. PW.1-Joseph who was running a hotel on the
national highway, according to the prosecution, is the eye-
witness and filed complaint Ex.P.1. However, PW.1-Joseph
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has not supported the case of prosecution and though he
was subjected to cross-examination, nothing worth
material has been brought on record, so as to prove
culpable rashness or negligence of accused in driving the
Eicher Lorry bearing registration No.KA.20-A-5625 leading
to the accident in question.
10(a) PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma
and PW.7-Vijayalakshmi were all traveling in the Tata
Sumo vehicle bearing registration No.KA.25-M-6685 from
Hubli to Dharmastala and Kukke Subramanya. On
3.3.2006 at about 6.15 a.m. after visiting Dharmastala,
they were proceeding to Kukke Subramaya and after
crossing Shirady Ghat, the driver of their vehicle-Tata
Sumo bearing registration No.KA.25-M-6685 was
proceeding by keeping to left side of road. At that time,
driver of Eicher Lorry bearing registration No.KA.20-
A.5625 came from Bengaluru side i.e., opposite side and
dashed against right side portion of the Tata Sumo bearing
registration No.KA.25-M-6685, due to which, 5 inmates of
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their vehicle, i.e., Soumya, Mahanthayya, Chennayya,
Vishweshwari and Suresh succumbed to the injuries
sustained and others sustained injuries in the
said accident. It is also their evidence that driver of
Eicher Lorry bearing registration No.KA.20-A-5625 dashed
against right side portion of the Tata Sumo bearing
registration No.KA.25-M-6685. It is the evidence of PW.2-
Suvarna that accident occurred due to fault of driver of
Eicher Lorry bearing registration No.KA.20-A-5625. They
have further deposed to the effect that due to impact of
the accident, Tata Sumo bearing registration No.KA.25-
M.6685 has taken turn absolutely to it's back side and the
lorry proceeded further towards right side of road.
11. The above referred evidence of material witnesses
i.e., PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma and
PW.7-Vijayalakshmi would go to show that they have
spoken about the factum of accident, place of accident and
accused being the driver of the Eicher Lorry bearing
registration No.KA.20-A-5625 and that due to impact of
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accident, Tata Sumo bearing registration No.KA.25-M-
6685 has taken turn absolutely to it's back on public road
and 5 inmates of Tata Sumo succumbed to injuries
sustained in the accident and remaining inmates have
sustained simple and grievous injuries. The mere fact of
accident having taken place due to driving of Eicher Lorry
bearing registration No.KA.20-A.5625 by accused resulting
death of 5 inmates and injuries to other inmates by itself
cannot be said as sufficient evidence, so as to prove
culpable rashness and negligence on the part of accused
leading to the accident. In this regard, it is the duty of
prosecution to place on record requisite evidence by
bringing material evidence on record regarding spot
features of accident covered under spot panchanama
Ex.P.2, sketch map, if any, and other evidence on record
to prove that accused has driven the vehicle i.e., Eicher
Lorry bearing registration No.KA.20-A.5625 to the extreme
right side of road and dashed against the Tata Sumo
bearing registration No.KA.25-M.6685 leading to accident
in question.
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12. The independent panch witnesses PW.1-Joseph
and PW.8-Thomas to spot panchanama Ex.P.2 have not
supported the case of prosecution. The author of spot
panchanama Ex.P.2 i.e. the Investigating Officer has not
been examined by the prosecution. The sketch map of the
place of accident, which would have certainly thrown light
of spot features of the accident has not been brought on
record by the prosecution through the evidence of PW.1-
Joseph and PW.8-Thomas. Therefore, from the said factual
aspect of the matter, it is evident that prosecution has
neither brought on record the spot features of accident
through evidence of PW.1-Joseph and PW.8-Thomas nor
the author of spot panchanama Ex.P.2 and the sketch map
i.e., the Investigating Officer of the case has been
examined by the prosecution.
13. The Trial Court has relied on the oral testimonies
of PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma and
PW.7-Vijayalakshmi, who are the injured inmates of Tata
Sumo bearing registration No.KA.25-M-6685. However,
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on careful perusal of oral testimonies of the aforesaid
witnesses, it would go to show that except they deposing
about the driver of lorry came from opposite side and
dashed to right portion of Tata Sumo bearing registration
No.KA.25-M-6685 in which they were traveling and due to
the said impact, the Tata Sumo bearing registration
No.KA.25-M.6685 had taken turn absolutely to its back,
have not spoken anything about spot features of place of
accident.
14. Looking to the spot features under the spot
panchanama Ex.P.2, it would go to show that road at the
place of accident runs east to west and width of road is
about 25 ft. The Tata Sumo bearing registration No.KA.25-
M-6685 was completely damaged and front glass of Eicher
Lorry bearing registration No.KA.20-A.5625 was broken
and front side grill, front side bumper, front right side
door, dash board, front side wheel set, diesel tank and
radiator joints were all damaged. The Tata Sumo bearing
registration No.KA.25-M-6685 has taken turn absolutely to
it's back. The rubbing mark of lorry was shown from place
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of accident till the place lorry was stopped towards
southern side. If said recitals in Ex.P.2 are taken into
consideration and appreciated with evidence of PW.2-
Suvarna, PW.3-Shyla, PW.4-Chennamma and PW.7-
Vijayalakshmi, then, it would go to show that their
evidence is silent as to why the opposite vehicle, Eicher
Lorry bearing registration No.KA.20-A.5625, driven by
accused has travelled towards southern side by rubbing
from place of accident till it was halted. Their oral
testimonies also is silent regarding spot features of
accident and actual culpable rashness or negligence in
driving the Eicher Lorry bearing registration No.KA.20-A-
5625.
15. The First Appellate Court on the basis of evidence
of PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma and
PW.7-Vijayalakshmi, has applied principles of res ipsa
loquitor and held that culpable rashness or negligence of
accused in driving the Eicher Lorry bearing registration
No.KA.20-A.5625 is proved by prosecution. In this
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context of matter, it is useful to refer to the Co-ordinate
Bench judgment of this Court in Durgappa vs. State of
Karnataka reported in ILR 2008 Kar 3757 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- The judgment of conviction is set aside."
This court having so observed has set aside the
judgment passed by both courts below and acquitted the
accused.
16. Learned counsel for accused has contended that
spot features recorded in the spot panchanama Ex.P.2 has
not been proved by prosecution, since material witnesses
PW.1-Joseph and PW.8-Thomas have not supported the
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case of prosecution. The prosecution has neither
examined the Investigating Officer, who is the author of
spot panchanama Ex.P.2 nor has brought on record sketch
map prepared by Investigating Officer. Therefore, the First
Appellate Court without there being any evidence, was not
justified in relying on sketch map which has not been
brought on record in the manner known to law and record
a finding on culpable rashness or negligence of accused in
driving the Eicher Lorry bearing registration No.KA-20-A-
5625 in question. In support of such contention, reliance
is placed on judgment of Hon'ble Punjab and Haryana High
Court in Thana Ram - vs - State of Haryana reported
in 1996 Cri.L.J. 2020. This decision has been placed
before Trial Court as well as First Appellate Court, but both
courts below did not accept the said decision on the
premise that oral testimonies of PW.2-Suvarna, PW.3-
Shyla, PW.4-Chennamma and PW.7-Vijayalakshmi are
sufficient to prove the place of accident. In the said
decision, it has been held as under :
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"Rash and negligent driving- Eye-witness-
Reliability- As per prosecution, accident occurred
between a truck and a cyclist- Alleged eye-
witness claimed that truck in question was
coming from the front side and he was also on
his cycle at a distance of about 20 yards behind
the deceased- Testimony of this witness found to
be quite vague and indefinite as regards the
investigation carried out by the IO on the spot of
occurrence- Resultantly, it could not be said to
be safe to hold that the petitioner was driving
the vehicle in question in a rash and negligent
manner- Particularly, when the IO found to be
not examined by the prosecution- Resultantly,
guilt of the accused held to be not proved and,
therefore, conviction set aside."
In the present case, PW.11-R Ramesh, after receipt of
the complaint has only registered the case and handed
over further investigation to CW-42. The entire
investigation was conducted by CW.42, but he has not
been examined by prosecution. The independent panch
witnesses, PW.1-Joseph and PW.8-Thomas, have not
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supported the case of prosecution. The evidence of injured
inmates of Tata Sumo bearing registration No.KA.25-M-
6685 - PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma
and PW.7-Vijayalakshmi have only spoken about factum of
accident and that due to impact, the said vehicle turned to
its back. Except this, they have not spoken anything
about culpable rashness or negligence on which basis
inference could be drawn regarding spot features at the
place of accident recited under panchanama Ex.P.2.
17. In view of the reasons recorded as above,
prosecution has failed to prove culpable rashness or
negligence of accused in driving the Eicher Lorry bearing
registration No.KA.20-A-5625 leading to the accident in
question. The contrary findings recorded by both the
courts below based on the evidence of injured inmates of
Tata Sumo bearing registration No.KA-25-M-6685 i.e.,
PW.2-Suvarna, PW.3-Shyla, PW.4-Chennamma and PW.7-
Vijayalakshmi, that prosecution has proved the guilt of
accused beyond all reasonable doubt cannot be legally
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sustained. It is pertinent to note that evidence of above
referred witnesses would only speak about factum of
accident and that 5 of inmates of Tata Sumo bearing
registration No.KA.25-M-6685 succumbed to injuries and
remaining persons sustained simple and grievous injuries.
Other than this, no other inference can be drawn from
their evidence regarding spot features of accident and
culpable rashness or negligence in driving Eicher Lorry
bearing registration No.KA.20-A-5625 leading to accident
in question. Therefore, findings recorded by both courts
below cannot be legally sustained and the same needs to
be interfered with by this Court. Consequently, proceed to
pass the following :
ORDER
Revision Petition filed by Revision Petitioner/accused is
hereby allowed.
The judgment of First Appellate Court on the file of V
Additional District and Sessions Judge, D.K., Mangalore,
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sitting at Puttur D.K. in Criminal Appeal No.92/2011 dated
29.09.2014 confirming the judgment of Trial Court on the
file of Additional Civil Judge, JMFC, Puttur, D.K. in Criminal
Case No.1303/2006 dated 20.04.2011 is hereby set aside.
Accused is acquitted for the offences punishable
under Sections 279, 337, 338, 304A of IPC.
The bail bond of accused and that of his surety shall
stand discharged.
The fine amount, if any, deposited by accused is
ordered to be refunded to accused.
Registry is directed to transmit a copy of this
judgment along with records to Trial Court.
SD/-
JUDGE
rs
