Karnataka High Court
Kallappa S/O Bhimappa ... vs The State Of Karnataka on 7 June, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100048 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100048 OF 2015
BETWEEN:
KALLAPPA S/O BHIMAPPA SUTAGANNAVAR
AGE: 32 YEARS, OCC: DRIVER
R/O: HALLADKERI, TAL:HUKKERI
DIST:BELAGAVI-590001
...PETITIONER
(BY SHRI SHIVARAJ BALLOLI, ADV)
AND:
Digitally THE STATE OF KARNATAKA
signed by J
J
MAMATHA REPRESENTED BY
MAMATHA Date: STATE PUBLIC PROSECUTOR
2023.06.08
13:16:13 -
0700 HIGH COURT BUILDING
DHARWAD
...RESPONDENT
(BY SHRI M.H. PATIL, AGA)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W SECTION 401 OF CR.P.C. SEEKING TO QUASH THE ORDER
OF CONVICTION 10/10/2014 PASSED IN CRIMINAL APPEAL.
NO.176/2013 ON THE FILE OF VII ADDL. DISTRICT AND
SESSION JUDGE BELAGAVI AT CHIKODI CONFIRMING THE
CONVICTION ORDER DATED 27/9/2014 PASSED IN
C.C.362/2012 ON THE FILE OF CIVIL JUDGE AND JMFC
HUKKERI OFFENCES U/S. 279, 304 A OF IPC & 134 R/W SEC.
187 OF MV ACT.
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CRL.RP No. 100048 of 2015
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 29.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
The revision petitioner/accused feeling aggrieved by
judgment of first appellate Court on the file of VII Additional
District and Sessions Judge, Belgaum, at Chikodi, in criminal
appeal No.176/2013 dated 10.10.2014, preferred this
present 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
17.05.2012 at about 2.40 p.m. near Hukkeri, Government
Hospital on the bus stand Court circle, the accused being
driver TATA ACE Goods Vehicle bearing registration No.KA-
49-2344 driven the same with high speed in rash and
negligent manner. On account of such actionable negligence
in driving the vehicle, dashed to kumari Deepa who was
CRL.RP No. 100048 of 2015
going to hospital along with her mother and as a result,
accident in question occurred. On account of accidental
injuries, Kumari Deepa succumbed to the injuries sustained
in the accident, while she was under treatment in the
hospital. On these allegations made in the complaint, the
case was registered in Hukkeri P.S. in crime No.54/2012 for
the offences punishable under Section 279, 304(A) of Indian
Penal Code (hereinafter referred as 'IPC' for brevity) and
Section 187 of Indian Motor Vehicles Act (hereinafter
referred as 'M.V.Act' for brevity). The investigating officer
on completion of investigation filed charge sheet.
4. In response to the summons, accused has appeared
before the trial Court and contested the case. The accused
pleaded not guilty to the accusation leveled against him and
claimed to be tried. Prosecution in order to prove the
accusation leveled against accused relied oral evidence of
PWs.1 to 9 and documents Exs.P.1 to 16.
5. On closure of prosecution evidence, statement of
accused under Section 313 of Cr.P.C, came to be recorded.
Accused denied all the incriminating material evidence
CRL.RP No. 100048 of 2015
appearing against him and claimed that false case is filed.
Accused relied his own evidence as DW.1. The trial Court
after appreciating the evidence on record convicted the
accused for the offences punishable under Sections 279,
304A of IPC, and 134 R/W Section 187 of MV Act and
imposed sentence as per order of sentence.
6. Accused challenged said judgment of conviction and
order of sentence before First Appellate Court on the file of
VII Additional District and Sessions Judge, Belgaum, at
Chikodi in Criminal Appeal No.176/2013. The First Appellate
Court on re-appreciating the material evidence on record,
dismissed the appeal and confirmed the judgment of trial
Court in convicting the accused and imposition of sentence.
However modified the sentence imposed for the offence
under Section 304A of IPC reducing to three months simple
imprisonment and fine of Rs.5,000/-.
7. Revision petitioner-accused feeling aggrieved by
concurrent findings of both Courts below preferred this
revision petition contending that both the Courts below have
committed serious error in relying evidence of P.W.1, who is
CRL.RP No. 100048 of 2015
mother of deceased of Kumari Deepa which is not
corroborated by any other evidence on record. The
prosecution has failed to prove the culpable rashness of
negligence of accused in driving the vehicle leading to the
accident in question. The finding recorded by both Courts
below are not in conformity with spot features available at
spot of accident recorded under spot panchanama Ex.P.6
and sketch map Ex.P.7, as the result recorded improper
reasoning in holding accused guilty for the offences alleged
against him. The abrupt appearance of Kumari Deepa across
the vehicle was not anticipated by the accused and as a
result, the child came in contact with vehicle and
succumbed to the injuries sustained in the accident. The
approach and appreciation of oral and documentary
evidence by both the Courts below and the findings
recorded cannot be legally sustained. Therefore, prayed for
allowing the revision petition and to set-aside the judgment
of both the Courts below. Consequently to acquit the
accused from the charges leveled against him.
CRL.RP No. 100048 of 2015
8. In response to the notice, learned HCGP has
appeared for respondent-State.
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 accident occurred on 17.05.2012 at about 2.40
p.m. near Hukkeri Government Hospital on the bus stand
Court circle. Accused was driver of TATA ACE Goods Vehicle
bearing registration No.KA-49-2344 and driven the vehicle
with high speed in a rash and negligent manner. On account
of such actionable negligence of accused in driving the
vehicle, dashed against Kumari Deepa. Due to which she
succumbed to the injuries sustained in the accident. The
prosecution to prove the said allegation mainly relies on the
evidence of P.W.1 the mother of deceased Kumari Deepa
and P.W.4 eye witness to accident. The said evidence is
sought to be corroborated with spot panchanama Ex.P.6 and
sketch map Ex.P.7 and that of investigating officer P.Ws.8
and 9.
CRL.RP No. 100048 of 2015
11. The accused was driver of TATA ACE Goods Vehicle
bearing registration No.KA-49-2344 at the time of accident,
place of accident, Kumari Deepa succumbed to accidental
injuries in the Government Hospital while she was under the
treatment. The damages found on the vehicle as per the
evidence of P.W.7 MV inspector and MV report Ex.P.13 are
the facts not in serious dispute and the same also can be
borne out from material evidence on record. Therefore,
prosecution is required to prove that accident in question
has occurred due to actionable negligence of accused in
driving the vehicle involved in the accident and as a result
Kumari Deepa succumbed to the injuries sustained in the
accident. The prosecution has to establish the nexus
between death of Kumari Deepa and actionable negligence
of accused in driving the TATA ACE Goods Vehicle bearing
registration No.KA-49-2344 leading to the accident in
question.
12. P.W.1-mother of the deceased Kumari Deepa has
deposed to the effect that she was going to Hukkeri
Government Hospital for treatment of her daughter Kumari
CRL.RP No. 100048 of 2015
Deepa and she was proceeding by side of the road near
Government Hospital with her two years old sons on arms
and deceased Kumari Deepa was following her from the
back side. The TATA Tum-Tum vehicle driven by accused
came from back side and dashed against Kumari Deepa,
who was following her. The wheels of the TATA Tum-Tum
ran over her stomach and the injured daughter Kumari
Deepa was immediately shifted to the Government Hospital
and while she was under treatment, succumbed to the
injuries sustained in the accident.
13. The another material witness relied by the
prosecution is P.W.4, who deposed to the effect that about
6 to 7 months back he was proceeding from Hukkeri bus
stand to Court circle near Government Hospital, at that time
TATA Tum-Tum vehicle came from bus stand towards circle
and dashed against small girl. Thereafter, the vehicle
stopped at some distance and injured girl was shifted to
hospital for treatment and he went to the hospital. While
returning from hospital, he did not found driver of vehicle
CRL.RP No. 100048 of 2015
and the girl succumbed to injuries sustained in the accident
while she under treatment in the hospital.
14. Accused got examined as DW.1 and deposed to the
effect that one side of the road, the road repair work was in
progress and in the remaining portion of the road vehicles
were moving. The machinery and vehicle were stationed for
forming tar road. The labourers, were cleaning the road with
machine, the dust was emanating. When he reached near
Government hospital, frightened girl came in contact of
vehicle from back side. Due to which she succumbed to the
injuries sustained in the accident.
15. The above referred evidence of P.W.1 and 4 with
defence of accused as DW.1 has to be appreciated with
reference to spot features recorded in spot panchanama
Ex.P.6 and sketch EX.P.7 while deciding the issue of
actionable negligence of accused in driving the vehicle
involved in the accident leading to the accident in question.
P.W.2 panch witness to the spot panchanama has not
supported the case of the prosecution. However, he
admitted his signature on spot panchnama at Ex.P.6 as per
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CRL.RP No. 100048 of 2015
Ex.P.6(a). The evidence of P.W.1 and 4 coupled with the
evidence of D.W.1 would go to show that place of accident
in front of Government hospital, Hukkeri is not in dispute.
The evidence of P.W.9 would go to show that he has
prepared spot panchanama Ex.P.6 and sketch map Ex.P.7,
so also taken photographs of the place of accident Ex.P.4.
Therefore, the contents of the spot panchanama Ex.P.6 and
sketch map Ex.P.7 can be looked into for deciding the issue
of actionable negligence of accused with reference to the
evidence of P.W.1 and 4.
16. The spot features recorded under Panchanama
Ex.P.6 and sketch map Ex.P.7 would go to show that road at
the place of accident runs south to north. The width of the
road is 30 feet and there is kachcha road of 4 feet on the
eastern side and the western side half portion the work of
forming new tar road was in progress. The place of accident
is shown towards eastern side at a distance of 4 feet
towards western side. It is defense of accused that P.W.1
was proceeding by western side of the road and girl who
was following her mother abruptly came across the vehicle
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CRL.RP No. 100048 of 2015
and the back portion of vehicle hit to her, due to which she
succumbed to the injuries sustained in the accident.
17. P.W.1 has stated in the cross examination that she
was going to Hukkeri Government Hospital for getting
treatment for her daughter Kumari Deepa, since she was
unwell and she was following her from back side. Further,
her two years son was on her arms. P.W.1 admits in her
cross examination that road repair work was in progress
and on other side of the road, the vehicle and machineries
were stationed and she was proceeding from the western
side of the road at the place of accident having 4 to 5 feet
kachcha road on either side of the road. P.W.1 further
admits, the labours were cleaning the road and dust was
emanating, due to which the daughter Kumari Deepa moved
to the side and her shirt was stucked to the cleaning
vehicle. P.W.4 is eye witness to the accident also admits in
the cross examination that the road repair work was in
progress to the western side, further the vehicles and
machines attending to the road work were stationed and he
was back to the Tata Tum-Tum vehicle involved in the
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CRL.RP No. 100048 of 2015
accident. The photograph at Ex.P.4, would go to show that
substantial portion of the road towards western side was
blocked due to road repair work and vehicles have to move
in the remaining portion of the road and on the kachcha
road. P.W.1 categorically admitted that she was proceeding
from western side of the road to go to Government hospital.
The spot features recorded in the spot panchanama Ex.P.6
and sketch map Ex.P.7 would go to show that Government
Hospital is situated to the eastern side of the road and the
formation of new tar road work was in progress to the
western side. Out of the 30 feet width road substantial
portion is covered for forming new tar road and remaining
portion towards eastern side is being used by passers of
road and to move the vehicle. Looking to the place of
accident shown in the sketch map Ex.P.7 and taking note of
the fact admitted by P.W.1 that she was proceeding from
western side of the road where the work was in progress, it
is evident that P.W.1 along with children was moving
towards eastern side to go to Government Hospital,
Hukkeri, situated at eastern side. looking in to the above
referred admission of P.Ws.1 and 4, coupled with spot
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CRL.RP No. 100048 of 2015
features recorded under the spot panchanama Ex.P.6 and
sketch map Ex.P.7, the tender age child Kumari Deepa,
crossing the road, the defence of accused that the child
remained unattended by mother P.W.1 while proceeding to
Government Hospital Hukkeri towards eastern side and due
to which she abruptly appears against vehicle, as a result
accident in question has occurred appears to be more
probable. If examination in chief of P.Ws.1 and 4 without
the test of cross examination on the face of it is to be
accepted, then also there evidence specifically does not
speak anything about actionable negligence of accused
leading to the accident in question. On other hand there
evidence only speaks about factum of accident in front of
Government Hospital Hukkeri and daughter of P.W.1 Kumari
Deepa succumbed to the injuries sustained in the accident.
The admitted evidence alone cannot be said as sufficient
evidence to hold the actionable negligence of accused in
driving the vehicle at the time of the accident.
18. The prosecution alleges that accused has not taken
injured to the hospital and failed to give information about
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CRL.RP No. 100048 of 2015
the accident to the nearest police station. The evidence on
record would go to show that P.Ws.1 and 4 have seen
accused in the police station and given statement before the
police. The accused was very much present at the spot of
accident. The injured Kumari Deepa was immediately
shifted to the Government Hospital Hukkeri which is just in
front of the place of accident. Therefore, the contrary
finding recorded by both Courts below that the accused did
not attend the injured and failed give information to the
police cannot be legally sustained. The Courts below have
not properly appreciated the evidence of P.Ws.1 and 4 with
reference to the place of accident found in Ex.P.6 and Ex.P.7
in the light of the defence of accused and admission of
P.Ws.1 and 4 during their cross examination, committed
error in holding that the accused is guilty of the offences
alleged against him. The said finding recorded by the Courts
below cannot be legally sustained and interference of this
court is required. Consequently, proceed to pass the
following:
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CRL.RP No. 100048 of 2015
ORDER
Revision petition filed by revision petitioner/accused
is hereby allowed.
The judgment of first appellate Court on the file of
VII Additional District and Sessions Judge, Belgaum, at
Chikodi, in criminal appeal No.176/2013 dated
10.10.2014, confirming the judgment of trial Court
C.C.No.362/2012 dated 27.09.2013 are hereby set-aside.
Accused is acquitted from the charges leveled
against him for punishable under Section 279 , 304A and
IPC and Section 187 MV Act.
Registry to send back records with judgment to
Courts below.
(Sd/-)
JUDGE
AC/-
