Karnataka High Court
Dilip S/O Kallappa Kotyale vs State Of Karnataka on 2 June, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100280 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF June, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100280 OF 2016
BETWEEN:
DILIP S/O KALLAPPA KOTYALE,
AGE: 28 YEARS, OCC: DRIVER
R/O JANAWADA, TQ: BIDAR DIST: BIDAR
...PETITIONER
(BY SRI. P. N. HOSMANI FOR SRI. RAJASHEKHAR BURJI,
ADVOCATES)
AND:
Digitally
signed by J
J
MAMATHA STATE OF KARNATAKA
Date:
MAMATHA 2023.05.28 THROUGH PSI TOWN POLICE STATION JAMAKHANDI.
20:03:14 -
0700 REPT BY SPP HIGH COURT DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS REVISION PETITION IS FILED U/SEC 397 AND 401
OF CR.P.C., PRAYING TO SET-ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE PASSED BY THE
COURT OF 1 ADDL DISTRICT AND SESSIONS JUDGE
BAGALKOT TO SIT AT JAMAKHANDI DATED 30-04-2016 IN
CRIMINAL APPEAL NO 48/2013 AND THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE PASSED BY COURT OF
PRINCIPAL CIVIL JUDGE JAMAKHANDI IN CC NO 301/2009
DATED 17-04-2013 FOR THE OFFENCE U/S 279, 337 AND 304A
OF IPC, AND ACQUIT THE PETITIONER FOR THE ALLEGED
OFFENCE.
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CRL.RP No. 100280 of 2016
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 23.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner-accused feeling aggrieved by
judgment of the First Appellate Court in Crl.A.No.48/2013 on
the file of I Addl. District and Sessions Judge, Bagalkot,
sitting at Jamakhandi, dated 30.4.2016, 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. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
25.2.2009 complainant along with his family left Bidar to
attend a marriage at Belagavi in TATA Indica car bearing
No.KA-49/M-7725. Accused being the driver of the said car
drove the same with high speed rash and negligent manner,
due to which car fell down in a ditch by the side of
Dr.Nyamagouda Hospital on account of actionable negligence
of accused in driving the car bearing No.KA-49/M-7725. The
CRL.RP No. 100280 of 2016
complainant and mother in law sustained injuries, whereas
wife of the complainant Nirmaladevi succumbed to injuries
sustained in the accident. On these allegations made in the
complaint, case was registered in Crime No.30/2009 of
Jamakhandi Town police station for the offences punishable
under Sections 279, 337, 304-A of IPC. The investigating
officer on completion of investigation filed charge sheet.
4. Accused was secured before the Trial Court
through process of law. The Trial Court, on being prima facie
satisfied framed accusation against accused for the aforesaid
offences and accused pleaded not guilty. The prosecution to
prove allegations made against the accused relied on the
evidence of PW.1 to 12 and documents at Ex.P.1 to 17, so
also got identified M.O.No.1.
5. On closure of prosecution evidence statement of
accused under Section 313 of Cr.P.C. came to be recorded.
Accused denied all incriminating material evidence appearing
against him and claimed that false case is filed. The Trial
Court after appreciating the evidence on record has found
CRL.RP No. 100280 of 2016
the accused guilty and convicted accused for the aforesaid
offences and imposed sentence as per the order of sentence.
6. Accused challenged the said judgment of
conviction and order of sentence before the First Appellate
Court on the file of I Addl. District and Session Judge,
Jamakhandi in Crl.A.No.48/2013. The First Appellate Court
on re-appreciation of evidence by its judgment dated
30.4.2016 dismissed the appeal and confirmed the judgment
of conviction and order of sentence passed by the Trial
Court.
7. Revision petitioner/accused feeling aggrieved by the
concurrent finding of both courts below filed revision petition
contending that both courts below have not properly
appreciated the evidence of inmates of car PWs.3 and 4 with
respect to spot feature at the place of the accident. The
prosecution has failed to discharge its initial burden of proving
actionable negligence on the part of the accused in driving the
car bearing No.KA.49-M-7725 leading to accident in question.
The doctrine of res ipsa loquitur is not applicable to the facts of
the present case and both courts below have committed serious
error by drawing inference from the evidence of prosecution
CRL.RP No. 100280 of 2016
witnesses about actionable negligence on the part of accused
leading to accident in question. The approach and appreciation
of oral and documentary evidence by both courts below are not
based on any legal evidence on record. Therefore, prayed for
allowing the revision petition and to set aside the judgment of
conviction passed by the Trial Court, which is affirmed by the
First Appellate Court. Consequently, to acquit the accused from
the accusation leveled against him.
8. In response to notice learned HCGP has appeared
for respondent.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary
evidence placed on record by prosecution, it would go to show
that on 25.2.2009, complainant along with his family left Bidar
to attend a marriage at Belagavi in Indica car bearing No.KA-49
7725 driven by the accused. The accused drove the said car
with high speed in rash and negligent manner by the side of
Dr.Nyamagouda Hospital, near Jamakhandi. Due to which, the
car fell in a ditch on account of the said actionable negligence
of accused in driving the vehicle, inmates of the car sustained
injuries and wife of the complainant Nirmaladevi succumbed to
CRL.RP No. 100280 of 2016
the injuries sustained in the accident. The material witnesses to
prove the said charge are the injured inmates of the car PW.3-
Basavaraj N Jabshetti, PW.5-Basavaraj K Matgar and mother in
law of the complainant. The said oral evidence has to be
appreciated with spot feature at the place of the accident
recorded in the spot panchanama Ex.P.1 and hand sketch map
Ex.P.15.
11. The defence has not disputed the factum of accident
and inmates of the car PWs.1, 4 and 6 having sustained injuries
and wife of the complainant-Nirmaladevi succumbed to the
injuries sustained in the accident. The evidence of PW.9- M.V.
Inspector and M.V. report as per Ex.P.12 would go to show that
accident was not due to any mechanical defects. Therefore, the
prosecution is only required to prove actionable negligence on
the part of the accused in driving the car leading to accident in
question.
12. The panch witnesses to the spot panchanama PW.1
and 2 have not supported to the case of prosecution. However,
evidence of PW.10 first investigating officer would go to show
that on the same day prepared spot panchanama from 7.45 am
to 9.00 a.m. as per Ex.P.1. The defence has not disputed the
CRL.RP No. 100280 of 2016
place of accident Therefore, the evidence of PW.10
investigating officer regarding preparation of spot panchanama
Ex.P.1 and the hand sketch map Ex.P.15 has to be accepted.
13. The material witnesses who are inmates of the car
PW.3- Basavaraj Naganna Jabashetti has filed the complaint as
per Ex.P.2 and mother in law of the complainant PW.4-would
go to show that they have spoken only about admitted case of
prosecution with regard to factum of accident and injuries
sustained by inmates of the car. The passers of the road, who
are witnesses to the accident PWs.6 and 7 have also not
supported to the case of prosecution. The Trial Court recorded
finding that accused has not offered any valid explanation in
terms of Section 106 of Indian Evidence Act, who has got
special knowledge about factum of accident. The Trial Court is
of the opinion that accused is the driver of Indica car bearing
No.KA-48/M-7725 and place of accident is not disputed, so also
M.V. report as per Ex.P.12 speaks about the damages found on
the car and by applying doctrine of res ipsa loquitur in view of
judgment of this Court Abdul Sattar V/s. State of Alur
Police reported in 2013(2) KLJ 461 held that prosecution has
proved actionable negligence on the part of the accused in
driving Indica car bearing No.KA-48/M-7725 leading to accident
CRL.RP No. 100280 of 2016
in question. The said finding has also been affirmed by the First
Appellate Court.
14. On perusal of the spot panchanama Ex.P.1, it would
go to show that Bijapur-Jamakhandi road runs east to west and
accident took place in front of Dr.Nyamagouda Hospital and
there is guttar cannel towards northern side having depth of 8
feet. There is distance of 12 feet from southern side road to
northern side and width of road from south to north is 36 feet
and break marks of the car were found on the road. The initial
burden is on the prosecution to prove the actionable negligence
on the part of accused leading to accident in question.
15. Learned counsel for the revision petitioner in
support of his contention that doctrine of res ipsa loquitur
stricto sensu would not apply to the criminal case as its
applicability in an action for injury by negligence is well known
relied on the judgment of Hon'ble Apex Court in Nanjundapa
and another V/s. State of Karnataka, in Crl.A.No.900/2017,
reported in 2022 live law (5) page No. 489. The opinion of
Hon'ble Apex Court relied on the earlier judgment of in Sayyed
Akbar V/s. State of Karnataka, reported in 1979
CRL.RP No. 100280 of 2016
Crl.Law.Journal page No. 1374 reporduced para 29 of the
said judgment, which reads as under:
"29. Such simplified and pragmatic
application of the notion of res ipsa loquitur, as a
part of the general mode of inferring a fact in issue
from another circumstantial fact is subject to all the
principles, the satisfaction of which is essential
before an accused can be convicted on the basis of
circumstantial evidence alone. These are: Firstly, all
the circumstances, including the objective
circumstances constituting the accident, from which
the inference of guilt is to be drawn, must be firmly
established.
Secondly, those circumstances must be of a
determinative tendency pointing unerringly towards
the guilt of the accused. Thirdly, the circumstances
should make a chain so complete that they cannot
reasonably raise any other hypothesis save that of
the accused's guilt. That is to say, they should be
incompatible with his innocence, and inferentially
exclude all reasonable doubt about his guilt."
The Hon'ble Apex Court having considered the said
principle has held that doctrine of res ipsa loquitur stricto sensu
would not apply to criminal case.
16. In the present case, all the material witnesses as
referred above have not supported to the case of prosecution.
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CRL.RP No. 100280 of 2016
The evidence of inmates of the car speaks only about factum of
accident and injuries sustained by inmates of the car, further
wife of complainant Nirmaladevi succumbed to injuries
sustained in the accident. However, evidence placed on record
by the prosecution is conspicuously absent on the point of
actionable negligence of accused in driving Indica car bearing
No.KA-48/M-7725 leading to the accident in question. The
prosecution has failed to discharge its initial burden of proving
the actionable negligence of accused. Therefore, accused was
under no obligation to offer explanation regarding the manner
in which the accident took place. The onus shifts on the
accused only when discharges its initial burden of proving
actionable negligence of accused leading to the accident in
question. Therefore, both courts below have committed error in
recording the guilt of the accused on the basis of accused not
offering explanation and application of doctrine of Res Ipsa
Loquitur cannot be legally sustained. Therefore, prosecution
has failed to prove beyond all reasonable doubt the actionable
negligence of accused in driving Indica car bearing No.KA-
49/M-7725 leading to accident in question. Consequently,
proceed to pass the following:
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CRL.RP No. 100280 of 2016
ORDER
Revision petition filed by revision petitioner-accused is
hereby allowed.
The judgment passed in Crl.A.No.48/2013 on the file of
I Addl. District and Sessions Judge, Bagalkot, sitting at
Jamakhandi, dated 30.4.2016, confirming the judgment of the
Trial Court in C.C.No.301/2009 on the file of Prl. Civil Judge &
J.M.F.C., Jamakhandi is hereby set aside.
Accused is acquitted for the offences punishable under
Sections 279, 337 and 304-A of IPC.
The fine amount, if deposited by accused is ordered to be
refunded.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
VB/-
