Manjappa Chakrasali vs Stat Of Karnataka
2023 Latest Caselaw 2808 Kant

                                                     -1-
                                                            CRL.RP No. 1615 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. 1615 OF 2016
                        BETWEEN:

                        MANJAPPA CHAKRASALI
                        S/O HANUMANTAPPA,
                        AGED 42 YEARS, OCC. DRIVER, KSRTC, NEKRTC,
                        NOW WORKING AT HAGARIBOMMANAHALLI,
                        DEPOT.DIST. BALLARI-583101.             ...PETITIONER
                        (BY SHRI VISHWANATH HEGDE, ADV)

                        AND:
          Digitally
          signed by J
          MAMATHA
J
          Date:
                        STAT OF KARNATAKA
MAMATHA   2023.05.28
          20:09:20 -
                        THROUGH HADAGALAI POLICE STATION,
          0700
                        HADAGALIL DIST: BALLARI,
                        REP BY HCGP HIGH COURT OF KARNATAKA,
                        BENGALURU-560001.                          ...RESPONDENT
                        (BY SHRI M.H.PATIL, AGA)

                                                    ***

                             THIS CRIMINAL REVISION PETITION FILED U/S.397 R/W
                        401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING
                        THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
                        THE JUDGMENT DATED 28.09.2016 PASSED BY THE III ADDL.
                        DIST. AND SESSIONS JUDGE, BELLARI SITTING AT
                        HOSAPETTE IN CRL.A.NO. 5024/2015 AND JUDGMENT DATED
                        12.06.2015 PASSED BY CIVIL JUDGE AND JMFC, HADAGALI IN
                        C.C.NO.517/2012      AND       CONSEQUENTLY        THE
                        ACCUSED/REVISION PETITIONER BE AQUITTED.

                             THIS CRIMINAL REVISION PETITION COMING ON FOR
                        FINAL HEARING AND THE SAME HAVING BEEN HEARD AND
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                                          CRL.RP No. 1615 of 2016



RESERVED FOR ORDER ON 28.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:


                              ORDER

Revision petitioner/accused feeling aggrieved by

judgment of first appellate Court on the file of III Addl. District

and Sessions Judge, Ballari, (sitting at Hosapete), in

Crl.A.No.5024/2015 dated 28.09.2016 preferred this appeal.

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

02.03.2012 at about 3.45 p.m. on Hadagali-Hirehadagali road

at Thippapura village near the land of Mabusab, accused being

the driver of KSRTC bus bearing registration No.KA-32/F-1449

drove the same with high speed in rash and negligent manner.

On account of the said actionable negligence of accused dashed

to TVS XL heavy duty moped bearing registration No.KA-27/U-

8286 driven by Nagya Naik s/o Dakananaik along with pillion

rider, mother - Seethavva, from its back side, due to which

they sustained grievous injuries and succumbed to such

CRL.RP No. 1615 of 2016

accidental injuries. The prosecution alleges that due to

actionable negligence of accused in driving the bus, accident in

question occurred leading to the death of rider of motorcycle

and pillion rider. On these allegations made in the complaint,

Investigation Officer on completion of investigation, filed

charge-sheet.

4. In response to summons, accused appeared before

the trial Court through counsel. The trial Court after being

prima facie satisfied framed accusation against the accused.

Accused pleaded not guilty and claimed to be tried.

Prosecution to prove the accusation leveled against accused

relied on the evidence of PWs-1 to 10, Ex.P.1 to Ex.P.13, so

also got identified M.O.1.

5. On closure of prosecution evidence, statement of

accused under Section 313 Cr.P.C. came to be recorded.

Accused has denied all the incriminating material evidence

appearing against him and claimed that false case is filed. Trial

Court after appreciating the evidence on record has convicted

the accused for the offences punishable under Sections 279 and

304(A) IPC read with Section 187 of the Motor Vehicles Act.

Accordingly, imposed the sentence as per order of sentence.

CRL.RP No. 1615 of 2016

6. Accused challenged the said judgment of conviction

and order of sentence before the first Appellate Court on the

file of III Addl. District and Sessions Judge, Ballari, (sitting at

Hosapete), in Crl.A.No.5024/2015. The first Appellate Court

after re-appreciating the evidence on record by judgment dated

28.09.2016 confirmed the judgment of trial Court in convicting

the accused and also imposition of sentence.

7. Revision petitioner/accused feeling aggrieved by the

judgment of both the Courts below preferred this revision

petition contending that the trial Court has not properly

appreciated the evidence of PWs-1 to 3 with reference to the

spot features at the place of accident recorded in the spot

panchanama Ex.P.2 and sketch map Ex.P.12. The mere proof

of factum of accident and death of rider of motorcycle and

pillion rider by itself cannot be said as substantive evidence to

prove actionable negligence on the part of accused in driving

the bus leading to the accident in question. The rider of

motorcycle was talking on the cell phone, due to which he lost

control and came on the way of moving bus, as a result of

which accident in question has occurred. The inmates of the

bus had no any occasion to witness the actual accident.

However, both the Courts below conveniently ignored these

CRL.RP No. 1615 of 2016

material aspects of the matter and recorded improper reasons

in holding that accused is guilty of the offences alleged against

him. The approach and appreciation of oral and documentary

evidence by both the Courts below and the findings recorded

are contrary to law and evidence on record. Therefore, prayed

for allowing the revision petition. Consequently, to set aside

the judgment of conviction and order of sentence of both the

Courts below. Consequently to acquit the accused from

accusation leveled against him.

8. In response to notice, learned High Court

Government Pleader appeared for respondent.

9. Heard the arguments of both sides.

10. On careful perusal of oral and documentary

evidence placed on record, it would go to show that the

accident in question occurred on 02.03.2012 at 3.45 p.m. on

Hadagali - Hirehadagali main road, at Thippapura village near

the land of Mabusab. The accused was driver of KSRTC bus

bearing registration No.KA-32/F-1449 involved in the accident

in question.

CRL.RP No. 1615 of 2016

11. It is alleged in the complaint Ex.P.1 that accused

being the driver of KSRTC bus bearing registration No.JA-32/F-

1449 drove the same in rash and negligent manner and in the

process of overtaking TVS XL heavy duty moped bearing

registration No.KA-27/U-8286 dashed from back side, due to

which rider of motorcycle and pillion rider fell to the ground and

sustained grievous injuries. They were shifted to Hadagali

Government Hospital for treatment and subsequently, they

succumbed to the injuries sustained in the accident.

12. The oral evidence of PW-1, independent eye-witness

to the accident, PWs-2 and 3, inmates of the KSRTC bus driven

by accused would go to show that the accused was driving

KSRTC bus bearing registration No.KA-32/F-1449 with high

speed in rash and negligent manner and dashed against TVS XL

heavy duty moped bearing registration No.KA-27/U-8286 from

its back side.

13. PW-2 has deposed to the effect that the driver of

KSRTC bus in the process of overtaking, dashed against TVS XL

heavy duty moped bearing registration No.KA-27/U-8286 from

it's back side, due to which the accident in question occurred.

PW-2 has further deposed to the effect that after the accident,

CRL.RP No. 1615 of 2016

bus bearing registration No.KA-32/F-1449 driven by the

accused carried TVS XL heavy duty moped bearing registration

No.KA-27/U-8286 to some distance and then stopped due to

which the rider of motorcycle and pillion rider suffered injuries

and they succumbed to such injuries. The same evidence of

PW-2 is vouchsafed by the evidence of PW-3 who is another

inmate of the bus driven by the accused. PWs-1 to 3 have

been partially declared as hostile witnesses by the prosecution.

14. PW-1 during the cross-examination by the learned

APP has admitted that due to negligence of accused in driving

the bus, accident occurred and also spoken about the presence

of CWs-6 and 7, further police prepared panchanama and

seized TVS moped and the bus. PWs-2 and 3 after they being

declared as partially hostile witnesses also admitted that the

accused being driver of KSRTC bus bearing registration No.KA-

32/F-1449 in the process of overtaking dashed against TVS

moped from it's back side due to which accident occurred.

15. PW-4, conductor of the bus driven by accused

claims that accused on blowing horn was overtaking TVS

moped vehicle and the rider of the motorcycle was talking over

cell phone and came in contact with backside wheel of the bus

CRL.RP No. 1615 of 2016

due to which accident has occurred. PW-4 naturally to support

his colleague has not supported the case of prosecution on the

aspect of culpable negligence leading to the accident in

question as per the case of prosecution and the evidence of

PWs-1 to 3. However, it is pertinent to note that it is not the

case of prosecution that accident in question occurred due to

rider of motorcycle coming into contact with back wheel of the

bus on account of his own negligence while talking over cell

phone. The said evidence is against the complaint allegations

Ex.P.1 and the evidence of independent eyewitness PW-1, so

also the two inmates of the bus, PWs-2 and 3. However, the

fact remains that even according to PW-4 also, accident in

question occurred while accused was in the process of

overtaking the moped driven by Nagyanaik, rider of the

motorcycle.

16. PWs-5 and 6 being the panch witnesses to the spot

panchanama Ex.P.2 have not supported the case of prosecution

for having drawn spot panchanama Ex.P.2. However, their

evidence would go to show that they admit their signature on

Ex.P.2. PW-6 has admitted his presence in the photograph and

admits that CW-1 and CW-7 i.e., co-panch PW-5 signed on the

panchanama Ex.P.2. The evidence of Investigating Officer,

CRL.RP No. 1615 of 2016

PW-7 would go to show that he has visited the spot and

prepared panchanama Ex.P.2 and drawn the handsketch map

Ex.P.12, further, seized M.O.1 under the said panchanama.

Therefore, from the said evidence placed on record by

prosecution, it is evident that PW-7 has prepared spot

panchanama Ex.P.2 in the presence of PWs-5 and 6 and seized

M.O.1, further, drawn the sketch Ex.P.12. Therefore, the

contents of spot panchanama Ex.P.2 and the sketch map

Ex.P.12 can be taken into consideration in appreciating the spot

features at the place of accident with reference to the evidence

of PWs-1 to 3 while deciding the actionable negligence of

accused in driving the bus bearing No.KA-32/F-1449 at the

time of accident.

17. The contents of spot panchanama Ex.P.2 would go

to show that the place of accident is shown by complainant -

PW-1. The KSRTC bus bearing registration No.KA-32/F-1449

and TVS XL heavy duty moped bearing registration No.KA-

27/U-8286 were found at the place of accident. The width of

road at the place of accident is 18 feet having kachcha road of

5 feet on either side of the road. The road at the place of

accident runs from South to North. The bus driven by accused

halted after 39 feet from the place of accident and tyre brake

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CRL.RP No. 1615 of 2016

marks were found. If the said spot features recorded in the

spot panchanama Ex.P.2 and the sketch map Ex.P.12 are taken

into consideration and appreciated with the evidence of PWs-1

to 3, then it is evident that accused while driving the KSRTC

bus bearing No.KA-32/F-1449 in the process of overtaking the

TVS moped did not exercise due diligence and dashed to it from

back side, as a result caused the accident leading to death of

rider and pillion rider of motorcycle. The bus did not stop

immediately after the accident, but carried the TVS moped

further to a distance of 39 feet and all throughout that place

brake marks could be found. Therefore, from the evidence on

record, it is evident that accused did not exercise due diligence

while driving the bus bearing No.KA-32/F-1449 in overtaking

the moped proceeding in front of the bus. On account of such

actionable negligence dashed against the TVS moped from it's

back side. Accused could not control the bus and stop

immediately at the place of accident. However, the evidence

would go to show that TVS moped was carried at a distance of

39 feet even after the accident and both the above referred two

circumstances would clearly demonstrate that accused has

failed to exercise due diligence while driving the bus at the

place of accident and in overtaking TVS moped, due to said

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CRL.RP No. 1615 of 2016

actionable negligence caused the accident leading to the death

of rider and pillion rider of the TVS moped.

18. The contention of learned counsel for revision

petition is that evidence of PWs-1 to 3 cannot be relied, since

they were declared as hostile witnesses and another

independent eyewitness PW-8 has not supported the case of

prosecution, cannot be legally sustained. It is now well settled

law that evidence of hostile witnesses cannot be out rightly

rejected. The part of such evidence which find support from

the material evidence on record can be relied. Otherwise also,

evidence of PWs-1 to 3 is consistent with regard to the manner

in which the accident took place and KSRTC bus driven by

accused dashed from the back side of moped. The oral

evidence of PWs-1 to 3, spot panchanama Ex.P.2 and sketch

map Ex.P.12 would unmistakably go to show that accident

occurred due to actionable negligence of accused in driving

KSRTC bus bearing No. KA-32/F-1449, since accused did not

exercise due diligence while overtaking the moped proceeding

in front of the bus and dashed to it from the back side, as a

result of which the accident in question has occurred leading to

the death of rider and pillion rider of the motorcycle.

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CRL.RP No. 1615 of 2016

19. Learned counsel for revision petitioner relied on the

judgment of Hon'ble Apex Court in STATE OF KARNATAKA

VS. SATISH [(1998) 8 SCC 493] wherein it has been

observed and held that mere driving of truck with high speed

cannot lead to draw inference that driver was negligent or rash

in driving the vehicle causing the accident. In the absence of

evidence to establish negligence or rashness, the doctrine of

res ipsa loquitur cannot be applied to convict the accused.

20. In the present case, there is enough material

evidence to establish actionable negligence of accused in

driving the KSRTC bus leading to the accident in question.

Accused while overtaking the moped proceeding in front of the

bus, did not exercise due diligence and dashed from back side,

further the TVS moped was carried for a distance of 39 feet

from the place of accident which would suggest that accused

could not control the bus and stop immediately after the

accident. It is on account of such negligence the accident in

question has occurred. Therefore, the principles enunciated in

the aforesaid decision of the Hon'ble Apex Court has no

application to the facts of the present case. The Courts below

have rightly appreciated the evidence on record and arrived at

a just and proper conclusion in holding that accident in question

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CRL.RP No. 1615 of 2016

occurred due to actionable negligence of accused in driving the

vehicle. The Courts below were also justified in imposing the

sentence and the said sentence to run concurrently and the

same does not call for interference of this Court. Consequently,

proceed to pass the following:

ORDER

Criminal Revision Petition filed by accused is dismissed.

The judgment of the first Appellate Court on the file of III

Addl. District and Sessions Judge at Ballari, (sitting at

Hosapete) in Crl.A.No.5024/2015 dated 28.09.2016 which

confirmed the judgment of trial Court on the file of Civil Judge

and JMFC, Hadagali, in C.C.No.517/2012 dated 12.06.2015 is

hereby confirmed.

The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE

Jm/-