Karnataka High Court

G Vishwanth vs The State Of Karnataka By on 31 July, 2023

Bench: Rajendra Badamikar

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                                                        NC: 2023:KHC:26549
                                                        CRL.RP No. 1031 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 31ST DAY OF JULY, 2023

                                               BEFORE
                         THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                         CRIMINAL REVISION PETITION NO. 1031 OF 2019
                      BETWEEN:

                      G. VISHWANTH
                      S/O LATE G.S. GOPALA RAO,
                      AGED ABOUT 54 YEARS,
                      R/AT NO. 237, 2NDD CROSS,
                      GIRINAGAR, 1ST PHASE,
                      BENGALURU-560 085.
                                                                  ...PETITIONER
                      (BY SRI. BALASUBRAMANYA .B.N, ADVOCATE)
                      AND:

                      THE STATE OF KARNATAKA BY,
                      BASAVANAGUDI TRAFFIC POLICE,
                      BENGALURU 560 004,
                      REP. BY ITS STATE PUBLIC PROSECUTOR,
                      HIGH COURT COMPLEX,
                      BENGALURU 560 001.
                                                                 ...RESPONDENT
Digitally signed by   (BY SRI. RAHUL RAI .K, HCGP)
RENUKAMBA K G
Location: High             THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C,
Court of Karnataka    PRAYING TO SET ASIDE THE JUDGMENT AND ORDERS PASSED
                      BY THE HON'BLE LXII ADDITIONAL CITY CIVIL AND SESSIONS
                      JUDGE,   BENGALURU    IN   CRL.A.NO.2333/2018,   DATED
                      16.07.2019 IN CONFIRMING THE JUDGMENT AND ORDER
                      PASSED BY THE HON'BLE METROPOLITAN MAGISTRATE
                      TRAFFIC COURT-IV, BENGALURU IN C.C.NO.5214/2017, DATED
                      23.10.2018 FOR THE OFFENCE P/U/S 279, 304A OF IPC
                      REGISTERED    BY    BASAVANAGUDI     TRAFFIC    POLICE,
                      BENGALURU AND ACQUIT THE PETITIONER.

                           THIS PETITION COMING ON FOR ADMISSION THIS DAY,
                      THE COURT MADE THE FOLLOWING:
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                                           NC: 2023:KHC:26549
                                           CRL.RP No. 1031 of 2019




                                ORDER

This revision is filed by the revision

petitioner/accused under Section 397 r/w 401 of Cr.P.C.

challenging the judgment of conviction and order of

sentence passed by the Metropolitan Magistrate Traffic

Court IV, Bangalore in C.C.No.5214/2017 convicting the

revision petitioner for the offences punishable under

Sections 279 and 304A of IPC which is confirmed by the

LXII Additional City Civil & Sessions Judge, Bengaluru in

Crl.A.No.2333/2018 vide judgment dated 16.07.2019.

2. For the sake of convenience, the parties herein

are referred to the original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to the case are

that on 28.02.2017 at 6.25 a.m., the accused being the

driver of the car bearing registration No.KA-41/Z-1393

drove the same in a rash and negligent manner,

endangering human life and public safety on Vanivilas

Road, National College flyover, Benagluru. While so driving

NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

he dashed the pedestrian, who was crossing the road near

the flyover down the ramp. As a result, the pedestrian

sustained grievous injuries and was immediately shifted to

the hospital by the accused himself. However, she did not

respond to the treatment and succumbed to the injuries in

the hospital. In this regard, the complainant has lodged a

complaint by setting the law in motion. On the basis of the

complaint, the crime was registered and after

investigation, the Investigating Officer submitted the

Charge Sheet against the accused for the offences

punishable under Sections 279 and 304A of IPC.

4. The accused appeared pursuant to notice issued

to him, and the prosecution papers were furnished to him.

The plea under Sections 279 and 304A of IPC was read

over and explained to him and he pleaded not guilty.

5. To prove the guilt of the accused, the

prosecution has examined in all six witnesses, as PWs.1 to

6 and also placed reliance on ten documents marked at

Exs.P1 to P10.

NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

6. After the conclusion of the evidence of the

prosecution, the statement of the accused under Section

313 Cr.P.C. is recorded to enable the accused to explain

the incriminating evidence appearing against him in the

case of the prosecution. The case of accused is of total

denial. However, he did not choose to lead any defense

evidence in support of his contention.

7. After having heard the arguments and

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offences punishable under Sections 279 and 304A of IPC.

He has imposed a fine of Rs.1,000/- for the offence

punishable under Section 279 of IPC and further imposed

imprisonment for a period of six months with a fine of

Rs.3,000/- in default, to undergo simple imprisonment for

three months for the offence punishable under Section

304A of IPC.

8. Against this judgment of conviction and order of

sentence, the accused has approached the learned

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Sessions Judge in Crl.A.No.2333/2018 by filing an appeal

under Section 374(3) of Cr.P.C. The learned Sessions

Judge after re-appreciating the oral as well as

documentary evidence, dismissed the appeal by

confirming the judgment of conviction and order of

sentence passed by the learned Magistrate. Being

aggrieved by these concurrent findings, the accused is

before this Court by way of Revision.

9. Heard the arguments advanced by the learned

counsel for revision petitioner/accused and the learned

HCGP for respondent- State. Perused the records.

10. The learned counsel for the revision petitioner

would contend that, both the Courts below have failed to

appreciate the oral and documentary evidence in proper

perspective. He would contend that except PW3, there are

no other independent eyewitnesses examined and the

evidence of PW3 does not inspire the confidence of the

Court. He would also submit that the accident has taken

place when the vehicle was moving downward ramp on a

NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

flyover and when there was no provision for pedestrian to

cross the road, the victim suddenly came across the road

in hurry, which resulted in accident and the accused could

not anticipate accident, as there was no zebra crossing.

Hence, he would contend that both the Courts below have

failed to appreciate the oral and documentary evidence in

proper perspective and the learned Sessions Judge on

presumptions and assumptions held that, there is a

negligent act on the part of the driver which has resulted

in miscarriage of justice. Hence, he would seek for

allowing this revision petition by setting aside the

impugned judgment of conviction and order of sentence

passed by both the Courts below.

11. Per contra, the learned HCGP would support the

judgment of conviction and order of sentence passed by

both the Courts below. He would contend that the

petitioner being the driver of the offending vehicle, was

required to take proper care while driving the vehicle and

the evidence discloses that he was driving the vehicle at

NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

80 km speed which discloses his reckless attitude, as it

was fast approaching junction and hence he would seek

for dismissal of the petition, as the accused has not

explained as to under what circumstances the accident has

occurred and what precautions he has taken for avoiding

the accident.

12. Having heard the arguments and having

perused the records, now the following point would arise

for my consideration:

"Whether the Judgment of conviction and order of sentence passed by both courts below are erroneous, arbitrary and illegal so as to call for any interference by this court in this revision?"

It is an undisputed fact that the petitioner was driver

of the offending vehicle. It is also admitted that the vehicle

was met with an accident and the injured succumbed in

the hospital. The accused has only disputed the rash and

negligent driving on his part.

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13. The prosecution is relying on the evidence of

PW3 as well as PW6. PW3 claims to be an eyewitness and

PW6 is the Investigating Officer. PW3 in his evidence has

simply deposed that, the driver of the offending vehicle

drove his vehicle from Lalbagh in a rash and negligent

manner and dashed to pedestrian which has resulted in

the accident. His cross-examination reveals that the driver

of the offending vehicle suddenly applied the brakes. He

asserts that the vehicle was moving at 80 km speed.

Though he claims to be an eyewitness, he admits that he

did not assist in shifting the injured to the hospital, but

claims that accused has assisted in shifting the injured to

the hospital.

14. PW6 is the Investigating Officer and in his

examination-in-chief, he has deposed regarding

investigation done by him. In the cross-examination, he

admits that there was no zebra crossing available for

pedestrian to cross the road. Ex.P10 is the sketch of the

NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

scene of offence drawn by the Investigating Officer and it

is a material document.

15. At the accident spot, the road is running from

east to west. The accused was driving the vehicle from

east towards west and he was moving downwards in

flyover ramp. There is a road divider in between and there

is no provision for taking right turn. Though there is a road

joining to the junction moving towards Uttaradi Mutt at

north side. The left road is moving towards DVG road and

the accused was driving the vehicle from east towards

west. There is no scope to take turn towards northern side

as there is a divider and only course open is to move

straight or on the left towards the south side i.e., towards

DVG road. The driver was driving the vehicle close to the

northern edge of the road divider. Admittedly, there is no

zebra crossing and the sketch as well as the admission

given by PW3 clearly disclose that the deceased crossed

the road and then crossed the road divider and then she

suddenly came across on the road which was moving

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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

towards Vanivilas Road when she was hit by the offending

vehicle. The deceased ought not to have crossed the road

when there is no provision for crossing the road. The

entire road was divided by road divider and there is no

provision for pedestrian to cross the road. In spite of that,

the deceased crossed one road and she came from the

Bank of Maharashtra Circle and jumped the divider and

without waiting, suddenly came across the road in order to

move towards Jyothi Prakash Stores on the southern side,

which has resulted in the accident. The driver is not

expected to anticipate the pedestrian crossing by jumping

the road divider and hence, the rash and negligent act

cannot be attributed to the driver of the offending vehicle.

No doubt there was no wall constructed at the time of the

accident though there was a divider and it has come in

evidence that subsequently, wall was constructed with an

intention to avoid the pedestrian using this path as a short

cut method.

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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

16. Looking to these facts and circumstances, both

the Courts below have erred in holding that the accident is

because of actionable negligence on the part of the driver

of the offending vehicle. Both the Courts below did not

appreciate Ex.P.10 and the evidence of PW3 in proper

perspective and in a mechanical way proceeded to convict

the accused only on the ground that he was driving the

offending vehicle and the accident has been admitted. The

speed is not the criteria for deciding rash and negligent act

and the evidence falls short of proving actionable

negligence on the part of the driver of the offending

vehicle, i.e., accused/revision petitioner.

Under these circumstances, the judgment of

conviction and order of sentence passed by both the

Courts below needs to be set aside. As such, point under

consideration is answered in the affirmative as both the

Courts have erroneously convicted the accused. As such,

revision petition needs to be allowed and accordingly, I

proceed to pass the following:

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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019

I. The revision petition is allowed.

II. The impugned judgment of conviction and order of sentence passed by the trial Court viz., Metropolitan Magistrate Traffic Court IV, Bangalore in C.C.No.5214/2017, which is confirmed by the LXII Additional City Civil & Sessions Judge, Bengaluru in Crl.A.No.2333/2018 vide judgment dated 16.07.2019 stand set aside.