Karnataka High Court

Nabsab Varikar vs State Of Karnataka on 7 March, 2023

Bench: S Vishwajith Shetty

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                                                         CRL.RP No. 531 of 2014




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                             DATED THIS THE 7TH DAY OF MARCH, 2023
                                              BEFORE
                         THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                     CRL.R.P. No. 531 OF 2014
                   BETWEEN:
                   NABSAB VARIKAR
                   S/O BABU SAB
                   AGED ABOUT 37 YEARS
                   TOKEN NO.11194, BMTC
                   17TH DEPOT, CHANDRA LAYOUT
                   BANGALORE - 560 040.
                                                                     ...PETITIONER
                   (BY SRI M.V. RAMACHANDRA RAO, ADV.)
                   AND:
Digitally signed
by B A KRISHNA     STATE OF KARNATAKA
KUMAR
Location: High
                   BY VIJAYNAGAR TR.POLICE
Court of           BANGALORE - 560 040
Karnataka
                   REP BY ITS PUBLIC PROSECUTOR
                   HIGH COURT BUILDING
                   BANGALORE - 560 001.
                                                                    ...RESPONDENT
                   (BY SRI ROHIR GOWDA B.J, HCGP)


                         THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
                   SET ASIDE THE CONVICTION AND SENTENCE PASSED BY THE
                   M.M.T.C.-II, BANGALORE IN C.C.NO.33/2010 DATED 16.6.2011 AND
                   SAME IS CONFIRMED BY THE P.O., F.T.C.-XV, BANGALORE IN
                   CRL.A.NO.491/2011 DATED 26.4.2014 ARE LIABLE TO BE SET ASIDE
                   AND THE PETR. MAY KINDLY BE ACQUITTED.

                       THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
                   COURT MADE THE FOLLOWING:

                                              ORDER

This Criminal Revision Petition under Section 397 of Code

of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed

by the petitioner challenging the judgment and order of

CRL.RP No. 531 of 2014

conviction and sentence passed by the Metropolitan Magistrate,

Traffic Court-II, Bengaluru (for short the 'Trial Court) in

C.C.No.33/2010 dated 16.06.2011 and the judgment and order

passed by the Court of FTC XV, Bangalore (for short the

'Appellate Court') in Crl.A.No.491/2011 dated 26.04.2014.

2. The petitioner was charged for the offences

punishable under section 279 and 304(A) of IPC before the Trial

Court. It is the case of the prosecution that on 07.11.2009 at

about 11.20 a.m., the petitioner who was driving the offending

bus bearing registration no.KA-01-FA-2316 in a rash and

negligent manner from south towards north direction over

Siddaiah Puranik Road, Basaveshwaranagar had dashed the bus

against the scooter bearing registration no.KA-02-EU-2605 and

caused accident. In the said accident, the rider of the scooter

namely C.N.Shanthakumar who had suffered grievous injuries

had succumbed to the same on 10.11.2009. The police on the

basis of complaint of eye witness PW1 had registered a case

against the petitioner for the offences punishable under

Sections 279 and 337 of IPC and subsequent to death of

injured, Section 304(A) of IPC was invoked against the

petitioner. The police after investigation had filed charge sheet

CRL.RP No. 531 of 2014

against the petitioner for the offences punishable under

Sections 279 and 304(A) of IPC.

3. The petitioner claimed to be tried before the Trial

Court and therefore, the prosecution in order to prove its case

had examined 7 witnesses as PW.1 to 7 and got marked 13

documents as Exs.P1 to P13. The petitioner during the course

of his Section 313 of Cr.P.C., statement had denied the

incriminating evidence which was available on record against

him. However, he did not choose to lead any defence evidence

nor did he produce any document in support of his defence.

The Trial Court thereafter heard the arguments addressed on

both sides and by its judgment and order dated 16.06.2011

convicted the petitioner for the offences punishable under

Section of 279 & 304(A) of I.P.C and sentenced him to undergo

Simple Imprisonment for 3 months and to pay fine of

Rs.1,000/- in default to undergo Simple Imprisonment for 1

month for the offence punishable under Section 279 of IPC and

the petitioner was sentenced to undergo simple imprisonment

for a period of 6 months and to pay fine of Rs.3,000/- and in

default, to undergo simple imprisonment for 3 months for the

offences punishable under Section 304(A) of IPC. The petitioner

CRL.RP No. 531 of 2014

being aggrieved by the said judgment and order of conviction

had filed Crl.A.No.491/2011. The Appellate Court by its

judgment and order dated 26.04.2014 had dismissed the

appeal filed by the petitioner. Under the circumstance, the

petitioner is before this Court in this revision petition.

4. Learned counsel for the petitioner submits that the

prosecution has failed to establish that the petitioner was

driving the offending bus in a rash and negligent manner at the

time of accident. He submits that on perusal of IMV Report

Ex.P13 it is seen that the scooter had not sustained any

damage and if the statement of the eye witness is to be

believed, the scooter should have damages. He submits that

rough sketch as per Ex.P5 does not disclose the correct picture

of accident as the bus has been admittedly moved from the

position of accident when the said sketch was prepared. He

submits that eye witnesses have not stated that the petitioner

was driving the vehicle in question in a rash and negligent

manner and thereby caused accident and therefore the Courts

below were not justified in convicting the petitioner.

5. Per contra, learned HCGP has argued in support of

the impugned judgment and order of conviction passed by the

CRL.RP No. 531 of 2014

Courts below. He submits that after appreciating the oral and

documentary evidence available on record have concurrently

found the petitioner guilty of the alleged offences. He submits

that material on record would clearly go to show that the

petitioner was driving the offending vehicle at the time of

accident and the manner in which the accident has been caused

would go to show that the petitioner was driving the offending

vehicle in rash and negligent manner at the time of accident.

Accordingly, he prays to dismiss the petition.

6. PWs.1 to 4 are the alleged eye witnesses to the

accident in question. PW.1 is said to be the complainant and

based on the complaint lodged by him a criminal case was

registered against the petitioner which is marked as Ex.P2.

From the reading of the complaint averments and also

deposition of PW-1, it is seen that PW1 has nowhere stated that

the petitioner was driving the offending vehicle in rash and

manner at the time of accident. He has stated that BTS bus

which came from opposite direction in a high speed dashed

against the scooter and had caused accident. He has also

stated that front right portion of the bus had dashed against

the scooter. PW2 also has stated that there was a head on

CRL.RP No. 531 of 2014

collision between the two vehicles but this witness has not

stated any anything about the manner in which the bus was

driven by the petitioner at the time of accident.

7. PW3 who is another eye witness has stated that the

bus which was coming from opposite direction, dashed against

the scooter in which the deceased was traveling. Even this

witness does not speak anything about the rash and negligent

driving of the bus by the petitioner at the time of accident.

During the course of cross-examination this witness has stated

that he was inside the bus on the rear side of right portion and

therefore it would be highly doubtful that he could have seen

the accident in question.

8. PW4 is another eye witness who is said to have

been riding a two wheeler and was behind the offending bus.

Even this witness has stated that after the bus struck two-

wheeler, victim fell down and he had suffered injury. He has

also stated that the bus was coming in speed but he has not

spoken about rash and negligent driving of the bus by its

driver. Even according to this witness, front right portion of the

bus had dashed against the two-wheeler which means that

there was head on collision between the two vehicles.

CRL.RP No. 531 of 2014

9. Ex.P13 is the IMV report prepared by PW7. From

the said report, it is seen that there were no visible damages

found on the body of the scooter. If the evidence of PWs1 to 4

is considered they have consistently stated that there was head

on collision between the two vehicles and right front side of the

bus had dashed against the scooter. If that was so, the scooter

should have sustained at least some damages on its body, but

the IMV report shows that there were no visible damages found

on the scooter. On perusal of IMV report it is also seen that

scratch marks were found on the body of right side of the bus

from front door to rear body. According to the eye witness, the

right front side of the bus had dashed against the scooter but

no corresponding damages are found in the bus.

10. Ex.P5 is the rough eye sketch drawn by PW 5.

Admittedly, the said sketch does not depict the position of the

vehicle immediately after the accident. PW5 has clearly

admitted during the course of his deposition that the vehicles

were moved at the time of preparing the sketch. The sketch

shows that the bus was parked on the complete left hand side

of the road, but the accident had taken place virtually on the

middle of the road.

CRL.RP No. 531 of 2014

11. PW5 who has registered FIR based on the

information received from the hospital on the basis of the

statement of eye witness PW1, during the course of his

examination-in-chief has stated that the accident had taken

place on 07.11.2009 and while he was on duty he had received

death intimation and therefore he had gone to the hospital and

recorded the statement of CW1 (PW1) as Ex.P2 and the

signature of PW1 was marked as Ex. P2(b).

12. The material on record would go to show that the

injured Shanthakumar who had suffered grievous injury in the

accident on 07.11.2009 had died in the hospital only on

10.11.2009 and therefore PW5 could not have received any

death intimation from the hospital on 07.11.2009 as stated by

him during the course of his chief-examination. This witness

has also admitted during the course of his cross-examination

that Ex.P5 eye sketch of the spot does not specify the position

of the vehicles immediately after the accident. He also states

that he does not know who had moved the vehicle from the

spot. Further, this witness also admitted that adjacent shop

owners were not summoned by him at the time of drawing the

CRL.RP No. 531 of 2014

Spot Mahazar and therefore, this statements were not recorded

by him.

13. PW7 who has issued Ex.P13 has clearly admitted

during the course of his examination-in-chief that he had

observed damage to the bus but there was no damage to the

two-wheeler. If the accident had taken place in the manner as

deposed by PWs1 to 4, the scooter in which the deceased was

traveling should have sustained damages. From the perusal of

evidence of PWs1 to 4, it is seen that none of these witnesses

have clearly stated that the bus was driven by its driver in a

rash and negligent manner at the time of accident and

therefore he had caused accident.

14. From overall appreciation of the oral and

documentary evidence available on record, it is evident that the

prosecution had failed to prove the charges levelled against the

petitioner that he was driving the offending vehicle in a rash

and negligent manner at the time of accident and had caused

the accident. The speed of the vehicle will not always determine

the question whether the vehicle was driven in a rash and

negligent manner. The speed is not conclusive factor to

determine the negligence or carelessness of the driver of the

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CRL.RP No. 531 of 2014

vehicle. The Courts below have failed to appreciate this aspect

of the matter and only for the reason that the prosecution had

proved that the petitioner was the driver of the offending

vehicle at the time of accident without appreciating the fact

that the prosecution has failed to prove that the bus was driven

in rash and negligent manner and as a result the accident had

taken place, have erred in convicting the petitioner for the

alleged offences. If the evidence of eye witnesses is taken into

consideration and if there was a head on collision between the

two vehicles, the scooter should have sustained corresponding

damages on it whereas the material on record would clearly

show that there was no damage whatsoever on the body of the

scooter. Under the circumstance, I am of the considered view

that the Courts below have erred in convicting the petitioner

and therefore the impugned judgment and order passed by the

Courts below cannot be sustained. Accordingly, the following :-

::ORDER::

Criminal Revision Petition is allowed.

                 The judgment and order of conviction

           and   sentence     passed      by     the     Court   of

           Metropolitan     Magistrate,        Traffic    Court-II,