Mr Aswathanarayana Reddy vs The State Of Karnataka
2023 Latest Caselaw 4994 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF JULY, 2023

                         BEFORE

  THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR

       CRIMINAL REVISION PETITION No. 974/2015


BETWEEN:

 MR. ASWATHANARAYANA REDDY
 S/O. MR. KRISHNA REDDY,
 AGED ABOUT 38 YEARS,
 MASILAHALLI VILLAGE,
 KOAPPALLI PANCHAYATH,
 AMBAJIDURGA HOBLI,
 CHINTAMANI TALUK - 563 125,
 CHICKABALLAPURA DISTRICT.              ... PETITIONER

(BY SRI. K. SHASHIKANTH PRASAD., ADVOCATE)

AND:

 THE STATE OF KARNATAKA
 REPRESENTED BY S.P.P
 HIGH COURT OF KARNATAKA,
 BENGALURU - 560 001.                  ... RESPONDENT

(BY SRI. RAHUL RAI.K., (HCGP))

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 02.09.2015 PASSED BY THE II
ADDL. DIST. AND S.J.,CHICKABALLAPUR (SITTING AT
CHINTAMANI) IN CRL.A NO. 39/2014 AND THE JUDGMENT
DATED 07.06.2014 PASSED BY THE PRL.C.J. AND J.M.F.C.,
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CHINTAMANI IN C.C.NO. 125/2013 AND THERE REV. PETR./
ACQUITTED THE ACCUSED OF THE OFFENCE U/S 279 AND 304
(A) OF IPC.

    THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND  RESERVED    ON    16.06.2023  COMING    ON   FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                               ORDER

Petitioner-accused being aggrieved and dissatisfied with

the judgment of conviction and sentence passed in CC

No.125/2013 dated 7.6.2014 on the file of the Prl.Civil Judge

and JMFC, Chintamani registered for the offences punishable

under Sections 279, 304A of IPC and confirmed by the II Addl.

Dist. and Sessions Judge, Chikkaballapura sitting at Chintamani

in Crl.Appeal NO.39/2014 dated 2.9.2014, has preferred this

revision.

2. The parties to this revision are referred to as per their

rank before the trial Court:

3. The brief and relevant facts upto this revision are as

under:

That, on 13.11.2012, at about 12.15 p.m. accused being

the driver of tractor-trailor bearing Registration No.KA-40 T-

8643 and KA-40 T-8654 drove the same in front of Sri

Raghavendra Coffee/Tea Centre situated opp. to Adarsha

Cinema Theatre within the limits of Chintamani Police Station,

Chintamani in high speed in rash and negligent manner, dashed

against Tejas, a 10 year old boy on his back side who was

moving on his cycle. Because of this accident, the said Tejas fell

down on the left side of the tractor and the back wheel of the

tractor rolled on his head and because of the same he died.

4. With these allegations, a complaint came to be filed

which was registered in Crime No. 259 of 2012 for the aforesaid

offences in Chintamani Police Station. Subsequently, the IO,

after conducting the investigation filed the charge sheet against

the accused for the offences punishable under Sec.279 and

304(A) of IPC.

5. After filing charge sheet, jurisdictional Magistrate took

the cognizance of the offence. Secured the presence of the

accused and he was enlarged on bail. The learned jurisdictional

Magistrate recorded the plea of the accused for the aforesaid

offences, read over and explained the same to the accused in

the language known to him. He pleaded not guilty and claimed

to be tried.

6. To prove the guilt of the accused, prosecution in all

examined 7 witnesses and got marked Ex.P1 to P9 with

respective signatures thereon and closed prosecution evidence.

7. Thereafter, accused was questioned under Sec.313 of

Cr.PC so as to enable him to answer the incriminating

circumstances appearing in the evidence of the prosecution. He

denied his complicity in the crime and did not choose to lead any

defence evidence on his behalf.

8. The learned jurisdictional Magistrate after hearing the

arguments, found the accused guilty and sentenced the accused

for the offences under Sec.279, 304A of IPC as under:

"...Accused is convicted for an offence punishable under Sec.279 of IPC and sentenced to undergo SI for a period of

two months and sentenced to pay fine of Rs.500/- and in default of payment of fine amount accused shall undergo SI for a period of fifteen days.

Accused is convicted for an offence punishable under Sec.304(A) of IPC and sentenced to undergo SI for a period of six months and sentenced to pay fine of Rs.2000/- and in default of payment of fine amount accused shall undergo SI for a period of one month."

9. Being aggrieved by the said conviction and sentence,

accused preferred an appeal in Crl.A.No.39/2014 before the II

Addl. District and Sessions Judge, Chikkaballapur sitting at

Chintamani. The learned first appellate Court confirmed the said

judgment of conviction and sentence. Now the accused is before

this Court challenging the aforesaid judgments of his conviction

and sentence.

Submission of Counsel for revision Petitioner/Accused:

10. It is submitted by the counsel for accused-revision

petitioner that, the said deceased Tejas was riding his cycle in a

rash and negligent manner and he himself had dashed against

the moving tractor-trailor. As the said road was having road

humps, it was not possible for any drivers of the vehicle to drive

the vehicle in high speed. Accused was very cautious in driving

the tractor-trailor. He relies upon the various evidences and

submits that the rash and negligent driving of the tractor is not

proved by the prosecution beyond all reasonable doubt.

Therefore, he prays to allow this revision and acquit the accused.

Submission of State:

11. As against this submission, the learned HCGP submits

that, the trial Court as well as the first Appellate Court are

justified in finding the accused guilty and there is no reason to

interfere into the well-reasoned judgments of both the courts. He

supported the findings of the trial Court and first Appellate Court

and prays to dismiss the revision.

12. I have given my anxious consideration to the

arguments of both the side.

13. In view of the submission of both the side, the only

point that would arise for consideration is,

(i) whether the judgment of the trial Court and first

appellate Court suffer from perversity and illegality in finding the

accused guilty and sentencing him for the offences punishable

under Sec.279 AND 304A of the IPC?

14. Before adverting to the other aspects of the case, let

me discuss the admitted facts between the parties are:

(i) There was an accident at 12.15 p.m. on

13.11.2002 on M.G.Road in front of the Raghavendra

Coffee Tea Centre, situated opposite to Adarsha Cinema

theatre at Chintamani.

(ii) Accused was driver of tractor trailor at the time

of accident bearing registration no.lKA-40 T 8653 and

trailer KA 40 T - 8654. In the said accident, Tejas a boy of

10 years old died.

(iii) The said accident has taken place not because

of any mechanical defects in the said offending tractor-

trailor.

The aforesaid facts are admitted facts between both

the side which need not be proved.

15. It is the case of accidental death of deceased Tejas

who was riding his cycle on 13.11.2012 at 12.15 p.m. in front of

Adarsha Cinema Theatre in Chintamani Town near Sri

Raghavendra Coffee/Tea Centre on M.G.Road. At that time,

accused being the driver of the aforesaid offending tractor-tailor

loaded with sand was found driving the said tractor-trailor in

high speed in a rash and negligent manner endangering human

life and dashed against the said Tejas. Because of the same, it is

alleged that the said Tejas fell down on the road and came in

contact with left side back wheel of the tractor and the said

wheel rolled on his head. Thus, he died on the spot.

16. In case of such accident, it is the duty of the

prosecution to prove that accused being the driver of offending

vehicle drove his vehicle in high speed and because of rash and

negligent driving the said accident has taken place and death

has been caused as a result of rash and negligent act of accused.

It must also be proved that, that act must be efficient cause

without intervention of another's negligence. It must be the

"causa causans' it is not enough that it may have been the

'causa sine quanon' that means there must be a direct nexus

between death of a person and rash and negligent act of the

accused. So to say the death should be the direct result of the

rash and negligent act of the accused and that act must be the

proximate and efficient cause without intervention of another's

negligence.

17. Here in this case, accused is charged with the offences

under Sec.279, 304A of IPC of rash and negligent driving of

tractor-trailor endangering human life.

18. PW.1 being the complainant, is the father of deceased-

Tejas. When the said accident took place, he was in the house

and he came to know after the said accident from others. He

says that he lodged a complaint about the said accident as per

Ex.P1. Except the denial, nothing is elicited. His evidence can be

accepted to the extent that, he lodged a complaint after getting

knowledge about the accident. To that extent I believe his

evidence.

19. PW.2 Chandanachary is an eye witness to the said

accident who showed the scene of accident to the police. He has

not been cross-examined by the defence. No attempt was made

either by the prosecution or by the defence counsel to re-

summon him to undergo the cross-examination. He is also

signatory to Ex.P2 Panchanama. When there is no cross-

examination directed to PW.2, no evidentiary value can be

attached to the evidence of this PW.2.

20. P.W.3 K.A.Srinivas is another eye witness to the said

accident. He deposed before the Court stating that, on

13.11.2012 himself and his friends were taking tea near

Raghavendra Tea Shop at about 12.15 p.m. At that time, one

tractor-trailor loaded with sand was coming from

Chikkaballapura at the same time, one boy on his bicycle on the

same road was moving to Chintamani. The said tractor dashed

against the said boy and because of the same, the said boy fell

under the left wheel of the tractor which rolled on his head. His

brain came out. He died on the spot. He is also signatory to

Ex.P2. Pancahanama. He identified accused as the driver of said

offending tractor-tailor. This PW.3 has been intensively cross-

examined by counsel for defence. It is elicited that a person

coming from Bagepalli Road, could notice the school by the side

of the road, Adarsha Cinema Theatre. To this suggestion, PW.3

has given positive answer. It is further suggested that, on the

said road, there exist road humps. But, he maintains that at the

time of accident there were no road humps. It is denied that

because of existence of road humps, no vehicle can be driven in

high speed. Throughout the cross-examination he maintains

that, because of rash and negligent driving of offending tractor-

trailor, the said accident has taken place.

21. It is submitted that, PW.3 has admitted that, he has

not given his statement before the Police. Relying on this, it is

argued that, the evidence of PW.3 is not creditworthy and cannot

be accepted. This submission of the accused cannot be accepted

for the simple reason that, the subsequent cross-examination

directed to PW 3 falsifies this stray admission of PW 3. It is

stated by PW.3 that at the time of accident he has seen the

accused. As per the evidence of PW.3 it was within the

knowledge of the accused that near the accident spot by the side

of the road there exists school and cinema theatre. Then

accused must have been more cautious. The only defence of the

accused was existence of road humps on the road in front of

school and theater. But PW.3 has stoutly denied about the

existence of humps. PW.3 has deposed that, at the time of

accident, there were no humps. Humps were put-up after the

accident. There is no further denial of this fact by the defence.

Thus, the evidence of PW.3 being an eye witness is creditworthy

and has to be accepted.

22. PW.4 Arjun is a pancha to Ex.P3 under which the said

tractor-trailor was seized. He also admits that near the scene of

offence, by the side of Adarsha Talkies, there exists school and it

is stated that in front of Adarsha talkies road humps are put. The

evidence of PW.4 can be accepted to the extent that he was very

much present when the panchanama was conducted. He is

specific in his say that only after the accident, road humps were

put. This evidence spoken to by the PW.4 falsifies the defence of

the accused.

23. P.W.5 Syed Amanuddin has been examined by the

prosecution as if he is an eye witness but, he has been turned

hostile. He speaks about the accident and death of Tejas. As he

turned hostile, his evidence can be accepted to the extent that

accident has taken place.

24. PW.6 Nanjappa was the Police Inspector at the

relevant time who received the complaint registered the crime

No.259/12 and set the criminal law in motion and he

investigated and filed charge sheet. With regard to conduct of

panchanama, the witnesses have supported the case of

prosecution. He speaks about the manner of investigation did by

him. He denied all the suggestions so directed to him. When

suggestions are denied, they have no evidentiary value.

25. In all the criminal cases, Panchas are the authors of

Panchanamam and IOs are supervisors of the case. In this case,

Panchas supported the case of the prosecution and their

evidence is corroborative in nature with that evidence PW.6 the

IO. Therefore, evidence of PW.6 can be accepted to the extent of

conducting investigation and filing of charge sheet.

26. PW.7 Narayanaswamy was the owner of the said

tractor-tailor. He says that after the accident, the driver of the

said vehicle i.e. accused informed him that he dashed tractor to

one boy and caused the accident. This evidence spoken to by

PW.2 is not denied in the cross-examination.

27. Ex.P1 is the complaint. The contents of the same are

corroborated by PW.1. Ex.P2 is the Panchanama and the witness

by name Srinivas corroborated the contents of Ex.P3. Ex.P3 is

the inquest Panchanama wherein, death of Tejas is noted. Ex.P4

is the statement of Amaruddin who turned hostile. Ex.P5 is FIR

registering the crime. This fact is not disputed. Ex.P6 is the IMV

Report wherein it is noticed that the said accident has taken

place not because of any mechanical defect in the tractor-trailor.

Contents of Ex.P6 are not disputed, by the accused. Ex.P7 is

the PM report. It shows because of accidental injuries, Tejas

died. Ex.P8 is the sketch of the scene of occurrence. It is an

important document both for prosecution as well as the defence.

28. On scrupulous reading of Ex.P8 sketch, it shows that,

the said accident has taken place on the middle of the road. On

either side of the scene of occurrence, there exists a road and

thereafter, towards southern side there exists a road divider.

The tractor was moving from Western side to Eastern side and

the said boy was also moving from eastern side to southern side.

It is the case of the prosecution that the tractor trailer driver

drove the same in high speed and dashed against the said Tejas

who was riding a cycle. Because of that hitting of the tractor to

the bicycle, the said boy fell on the left side, back wheel of the

tractor rolled on the head of the deceased.

29. Thus on reading the sketch, there was ample space

available to the accused at his right side road but, he drove the

tractor trailer on the road without following the traffic rules.

Though it was the defence of the accused, there exists road

humps but, this Ex.P8-sketch the important document is silent

about the same. Even during recording of Sec.313 Cr.PC

statement, accused has not stated that what made him to drive

the vehicle in such a manner and what was the mistake of the

deceased in riding his cycle.

30. In the absence of the same, as the drivers are best

persons to speak about the accident, the defence of the accused

cannot be accepted. Learned trial Court as well as first Appellate

court have rightly come to the conclusion that the said accident

has taken place because of rash and negligent driving of the

tractor-trailer by the accused. The factual evidence spoken to by

PW.4 and other evidence placed on record clinchingly establishes

that the accident was the direct result of the negligence and

rashness of the accused.

31. The standard of proof of negligence is required to be

proved is proved by the prosecution. On appreciation of the

evidence, one cannot find any perversity or illegality committed

by the trial court and first appellate court in arriving at the

conclusion. No grounds have been made out by the revision

petitioner to interfere with the well reasoned judgment of the

trial Court and first Appellate Court in finding the accused guilty.

32. In view of all these factual features coupled with the

evidence placed on record by the prosecution, both the Courts

are right in finding the accused guilty. Therefore, no interference

is called for in the judgment of the trial Court and affirmed by

the first Appellate Court. Consequently, the revision petition

deserves no merit and is liable to be dismissed. Accordingly, the

point for consideration is answered in the negative.

Resultantly, the following:

ORDER

(i) The Revision Petition filed by the accused-

appellant is Dismissed.

(ii) The judgment dated 7.6.2014 in CC

No.125/2013 passed by the Prl.Civil Judge and

JMFC, Chintamani affirmed by the II Addl.District

and Sessions Judge, Chikkaballapur in Crl.Appeal

No.39/2014 dated 2.9.2015 are confirmed.

(iii) Accused shall surrender before the trial

Court within fifteen days from today. The trial Court

shall secure his presence in accordance with law

and commit him to Prison to undergo the sentence.

(iv) Send back the trial Court records and

first Appellate court records forthwith along with a

copy of this judgment

.

(v) Intimate the operative portion of this

order to the trial Court as well as the first appellate

court forthwith.

SD/-

JUDGE

Sk/-