Parashurama vs State Of Karnataka
2023 Latest Caselaw 2072 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF MARCH 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

               CRL.R.P.No.352/2015

BETWEEN:

PARASHURAMA
S/O KALLURAPPA
AGED ABOUT 36 YEARS
DRIVER OF KSRTC BUS
BEARING REG.NO.KA36/F 663
SINDANOOR DEPOT, INDIRANAGAR
N/O SHIRUR POST, BAGALKOTE
TALUK AND DISTRICT
PIN:567 236.                            ...PETITIONER

(BY SRI A.H. BHAGAVAN, ADV.)

AND:

STATE OF KARNATAKA
BY KADUR POLICE
CHICKMAGALURU DISTRICT
REPRESENTED BY
THE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001.                   ...RESPONDENT

(BY SMT. RASHMI JADHAV, HCGP)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 24.5.2013 IN
C.C.NO.98/2010 PASSED BY THE C.J. AND J.M.F.C., KADUR
AND CONFIRMED BY THE JUDGMENT DATED 20.3.2015
PASSED    BY  THE    PRL.  S.J., CHIKKAMAGALURU    IN
CRL.A.NO.193/2013 AND ACQUIT THE PETR.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR 'PRONOUNCEMENT OF
ORDER', THIS DAY, THE COURT MADE THE FOLLOWING:
                             2


                       ORDER

1. This criminal revision petition under Sections 397

read with 401 Cr.PC is filed by the accused challenging

the judgment and order of conviction and sentence dated

24.05.2013 passed by the Prl. Civil Judge & JMFC, Kadur,

in C.CNo.98/2010 and the judgment and order dated

20.03.2015 passed by the Prl. Sessions Judge,

Chickamagaluru, in Crl.A.No.193/2013.

2. Heard the learned Counsel for the petitioner and

the learned HCGP appearing for the respondent-State.

3. Facts leading to filing of this revision petition as

revealed from the records that may be necessary for the

purpose of disposal of this petition are, on 15.11.2009 at

about 7.30 p.m., the KSRTC bus bearing registration

No.KA-36-F-663 was driven in a rash and negligent

manner by the petitioner on NH-206 from Kadur side

towards Banawara and near Thangalithandya, the bus

dashed against 407 van bearing registration No.KA-18-A-

3880 and caused the accident. In the said accident, the

inmates of the bus and the van had suffered injuries and

one B.H.Patil and his wife Champamma who were the

inmates of the van had suffered grievous injuries and

succumbed to the same at the spot. On the basis of the

complaint lodged by PW-1 - the driver of the van, FIR

was registered against the petitioner for the offences

punishable under Sections 279, 337, 338 & 304A of IPC

and the Police after investigation had filed charge sheet

against him for the aforesaid offences.

4. In the said proceedings, the petitioner had

appeared before the Trial Court and claimed to be tried,

and therefore, charges were framed against him for the

charge-sheeted offences. The prosecution to prove its

case had examined 16 witnesses as PWs-1 to 16 and had

got marked 28 documents as Exs.P-1 to P-28. Though

the petitioner had denied the incriminating circumstances

available against him on record during the course of his

statement under Section 313 Cr.PC, he however did not

chose to lead any defence evidence.

5. The Trial Court, thereafter, heard the arguments on

both sides and by judgment and order dated 24.05.2013

convicted the petitioner for the offences for which he was

charged and sentenced him to undergo simple

imprisonment for a period of six months and pay fine of

Rs.1,000/- and in default to undergo simple

imprisonment for a period of 30 days for the offence

under Section 279 IPC. For the offence under Section 337

IPC the petitioner was sentenced to undergo simple

imprisonment for a period of four months and pay fine of

Rs.500/- and in default to undergo simple imprisonment

for a period of 15 days, for the offence under Section 338

IPC he was sentenced to undergo simple imprisonment

for a period of one year and pay fine of Rs.1,000/- and in

default to undergo simple imprisonment for a period of

30 days, and for the offence under Section 304A IPC he

was sentenced to undergo simple imprisonment for a

period of two months and pay fine of Rs.2,000/- and in

default to undergo simple imprisonment for a period of

60 days. The said judgment and order of conviction and

sentence passed by the Trial Court was confirmed in

Crl.A.No193/2013 by the Appellate Court by judgment

and order dated 20.03.2015. It is in this factual

background, the petitioner is before this Court.

6. Learned Counsel for the petitioner submits that the

courts below have erred in convicting the petitioner for

the alleged offences. He submits that the courts below

have failed to properly appreciate the oral and

documentary evidence available on record which has

resulted in erroneous conviction of the petitioner. He

submits that there is no evidence to prove that the

petitioner was driving the offending bus in a rash and

negligent manner and had caused the accident. He

submits that from the evidence of PWs-6 & 7, it is clear

that the van was driven in a high speed on the right side

of the road and when the bus tried to avoid the accident,

the bus brushed to the right side of the van and went

towards its left side and dashed against the tamarind

tree which was on the side of the road. He submits that

the accident had taken place when the driver of the van

tried to overtake a lorry which was ahead of him, and

thereby he had come to the extreme right side of the

road and dashed against the bus. He submits that the

independent eye-witnesses have not supported the case

of the prosecution and PWs-1 & 3 being the driver and

owner of the van which was a goods vehicle carrying

passengers, their evidence is required to be scrutinized

carefully. He submits that the evidence of PW-7

corroborates the evidence of PW-5 and nothing has been

elicited from PW-7 during his cross-examination by the

prosecution, and therefore, the evidence of PW-7 who

was treated hostile cannot be discarded totally. In

support of his contentions, he has placed reliance on the

judgment in the case of SYAD AKBAR VS STATE OF

KARNATAKA - 1980 SCC (Cri) 59.

7. Per contra, learned HCGP appearing on behalf of

the respondent-State submits that the evidence of the

eye-witnesses coupled with documentary evidence clearly

establishes that the accident in question had taken place

due to the rash and negligent driving of the offending bus

by the petitioner. She submits that the petitioner has not

disputed the accident nor the fact that he was the driver

of the offending bus at the time of accident, and

therefore, the courts below were justified in convicting

the petitioner for the alleged offences, and accordingly,

prays to dismiss the petition.

8. I have given my anxious consideration to the

arguments addressed on both sides and also perused the

oral and documentary evidence available on record.

9. The only question that arises for consideration in

this revision petition is,

"whether the courts below were justified in convicting the petitioner for the offences punishable under Sections 279, 337, 338 & 304A IPC?

10. For the purpose of convicting the accused for the

offences punishable under Sections 279, 337, 338 &

304A IPC, the prosecution is required to prove that the

accused was not only driving the offending vehicle in a

rash or negligent manner endangering public safety, but

he had also failed to take sufficient care and thereby had

caused the accident. Merely for the reason the vehicle

was driven in high speed, it cannot be said that the

driver was guilty of driving the vehicle rashly or

negligently. Negligence or rashness proved by evidence

must be such as to carry with it a criminal liability.

11. The position as to the concept of rashness and

negligence was explained by the Delhi High Court in the

case of KANTI PARSHAD VS THE STATE - 1971 CRL.L.J.

1241, as follows:

"Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking his life as well as the life of the person who may lose his life as a result of the crime. Section 304-A IPC is such a provision which discloses that criminality may be there apart from any mens rea. There may be no motive or intention. Still a person may venture to practice such rashness or negligence which may cause the death of another. The death so caused is not the determining factor."

12. The prosecution in order to prove its case has

examined 16 witnesses before the Trial Court as PWs-1

to 16. Amongst these witnesses, PWs-1 to 11 & 13 are

the eye-witnesses to the accident. Amongst the eye-

witnesses PWs-1 to 6 have supported the case of the

prosecution and the remaining eye-witnesses have not

supported the case of the prosecution and they were

treated as hostile witnesses by the prosecution. PWs-12

& 15 are the panch witnesses for the spot mahazar and

these witnesses have also turned hostile to the

prosecution case. PW-14 is the PSI who had initially

registered the FIR against the petitioner and carried out

the investigation and PW-16 is the Investigating Officer

who had taken over the investigation from PW-14 and

after completion had filed charge sheet against the

petitioner for the alleged offences.

13. PWs-1 to 3 were the inmates of the van. PW-1 was

the driver of the van and he is also the complainant.

Ex.P-1 is the copy of the complaint. Though PW-1 has

reiterated the contents of Ex.P-1, during the course of his

cross-examination, he admits that there was dense traffic

on the road at the time of accident. He also admits that

there was a vehicle in front of his van and to a specific

suggestion put to him that because of his rash and

negligent driving the van had dashed against the bus and

when the driver of the bus tried to avoid the accident he

had dashed the bus against the tamarind tree, he has

answered that he is not aware of the same. It is relevant

to note that this suggestion was not denied by PW-1.

14. PW-2 has stated that he was seated in the back

side of the van and since the back portion of the van was

covered with a tarpaulin, he could not see the accident

and he has also stated that he was not in a position to

say as to how the accident had taken place.

15. PW-3 is another inmate of the van who was seated

in the front on the left hand side of PW-1 - driver of the

van. The material on record would go to show that PW-3

was the owner of the van and application was filed by

him before the Trial Court seeking custody of the van.

Though this witness during the course of his

examination-in-chief has corroborated the evidence of

PW-1 and nothing has been elicited by the defence during

the course of his cross-examination, having regard to the

fact that PWs-1 & 3 are the driver and owner of the

goods carriage vehicle which was carrying passengers

who had died in the accident in question, it is highly

unsafe to place reliance on the evidence of these two

witnesses to arrive at a conclusion as to the manner in

which the accident had taken place. It is relevant to note

here that though PWs-1 & 3 have stated that the driver

of the offending bus was driving in a high speed at the

time of accident, they have not stated that he was

driving the offending bus in a rash and negligent manner

and thereby caused the accident. Undisputedly, the

accident had taken place in a National Highway and the

vehicles moving in the National Highway cannot be

expected to be driven slowly and merely for the reason

that the bus was driven in a high speed, it cannot be said

that the driver of the bus was driving in a rash and

negligent manner. Speed cannot be sole criteria for

determining that the vehicle was driven in a rash and

negligent manner.

16. PW-4 was the inmate of the offending bus and he

was seated in the second front row of the bus. During the

course of his cross-examination, he has stated that he

had not seen the oncoming van and he does not know

how the van was driven. He has admitted that at the

time of accident, the conductor of the bus was issuing

tickets to the passengers.

17. PW-5 is the wife of PW-4 and she was sitting

besides him. She has stated that the van came in a high

speed on the right side of the road.

18. PW-6 is another inmate of the bus and during the

course of his cross-examination, he has stated that he

had not seen how the van was driven before the accident

took place. This witness has further stated that the bus

dashed against the van on the right side of the road. It is

nobody's case that the bus had dashed against the van

on the right side of the road, and therefore, much

importance cannot be given to the evidence of this

witness.

19. It is relevant to note here that even PWs-4 to 6

have only stated that the driver of the offending bus was

driving the same in a high speed, but they have not

stated that he was driving the bus in a rash and

negligent manner. Therefore, from the evidence of PWs-1

to 6 who have supported the case of the prosecution, it is

not evident that the driver of the offending bus was

driving the same in a rash and negligent manner and

thereby had caused the accident in question. PWs-1 to 6

have only stated that the driver of the offending bus was

driving the bus in a high speed and that does not mean

that he was guilty of driving the bus in a rash or

negligent manner.

20. PW-7 is another eye-witness who was the inmate

of the bus. During the course of his examination-in-chief,

he has stated that the bus was driven in an average

speed and the van was driven in a high speed on the

right side of the road and though the accused tried to

avoid the accident, the van dashed against the bus. This

witness was treated hostile and was cross-examined by

the prosecution, but nothing has been elicited from him

so as to disbelieve the statement made by him during the

course of his examination-in-chief. The statement of

PW-7 corroborates the evidence of PW-5. Merely for the

reason that the prosecution has treated this eye-witness

as hostile and cross-examined him, his evidence cannot

be discarded in its entirety.

21. The Hon'ble Supreme Court in Syad Akbar's case

supra, in paragraphs 11 to 13, has observed as under:

"11. In regard to the first question, it may be noted that the police statements of the eyewitnesses were not put specifically, bit by bit, to them by the prosecution, in cross-examination. Only an omnibus question was asked as to whether they had stated before the police that the accident occurred due to the negligence of the accused. This was, at best, a matter of inference to be drawn by the Court. The witnesses were not contradicted with regard to material facts which were the product of their direct sensory perception. For instance, their version with regard to the speed of the vehicle, the blowing of horn, the child running across the road and sudden swerving of the vehicle to the right in an attempt to save the child, etc., was not impeached by the prosecution in cross- examination. In short, the credit of these witnesses with regard to the substratum of their examination-in-chief had not been shaken in cross-examination by the prosecution.

12. As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him "hostile" and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration (SCC p. 745, para

52)

Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence, discard his evidence in toto."

13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony."

22. A reading of the cross-examination of PW-7 would

go to show that the testimony of this witness in relation

to the manner in which the van was driven by its driver

was not impugned in the cross-examination by the

prosecution, and therefore, the statement made by PW-7

during the course of his examination-in-chief cannot be

brushed aside, more so when the same corroborates the

evidence of PW-5.

23. PWs-8 & 13 are the inmates of the bus and PW-10

is the conductor of the bus. All these witnesses have not

supported the case of the prosecution and they have

been treated as hostile witness. PW-10 during the course

of his examination-in-chief has stated that he was issuing

tickets to the passengers of the bus when the accident

had taken place and during the course of cross-

examination he has stated that normally the bus will be

driven slowly when the tickets are issued to the

passengers by the conductor. PW-10's evidence that he

was issuing tickets to the passengers is corroborated by

PW-4.

24. PWs-9 & 11 are the independent eye-witnesses to

the accident in question and these witnesses have not

supported the case of the prosecution, and therefore,

they were treated as hostile witnesses.

25. PWs-12 & 15 are panch witnesses to the spot

mahazar who have turned hostile to the prosecution

case.

26. PW-14 is the PSI who had registered a case against

the petitioner for the alleged offences on the basis of the

complaint of PW-1. This witness has also prepared the

spot mahazar - Ex.P-8 and rough sketch of the accident

spot Ex.P-13 on 16.11.2009. At the instance of this

witness, the photographs of the accident spot were also

taken. The photographs of the accident spot were

marked through PW-1 and the same was also identified

by PWs-3 & 14. During the course of his cross-

examination, PW-14 has admitted that the photographs

at Exs.P-2 & P-3 were not taken showing both the

vehicles which were involved in the accident and he has

further stated that he had no problem to take

photographs showing both the vehicles which were

involved in the accident.

27. Exs.P-25, 26, 27 & 28 are the photographs which

show both the vehicles which were involved in the

accident. The order sheet of the Trial Court would go to

show that after recording the statement of the accused

under Section 313 Cr.PC, the case was posted for

arguments on 01.02.2011. Thereafter, the arguments

addressed on both sides were heard and the case was

posted for judgment. At that stage, the Investigating

Officer was directed to produce the case diary and the

copies of the photographs in their file and accordingly,

Exs.P-25 & P-26 were produced and marked through PW-

3 on 04.05.2012 and the photographs at Exs.P-27 & P-28

were produced and marked through PW-16 on

11.06.2012. Though on instructions of PW-14 the

photographs were taken, Exs.P-25 to P-28 were not

marked through him and he has not identified the said

photographs. PW-14 has virtually stated that except

Exs.P-2 & P-3, there are no other photographs. The

prosecution has not given reasons for not producing

these documents earlier.

28. It is relevant to mention here that from Exs.P-8 &

P-13 which are the spot mahazar report and rough

sketch of the spot, the manner in which the accident had

taken place cannot be gathered. In Ex.P-8 - spot

mahazar, it is stated that the width of the road where the

accident had taken place was 24 feet and it was a

National Highway. Further, the boundaries of the spot

have been given, but no description whatsoever is given

with regard to the actual spot of the accident. There is

also no description with regard to any tyre marks found

on the spot, nor there is any mention with regard to the

objects or parts of the vehicle fallen on the spot as a

result of the impact between the vehicles which would

have helped to prove the spot of the accident. In the spot

mahazar, it is stated that the tamarind tree is located at

a distance of 10 feet from the road on the western side,

whereas in Ex.P-13, it is seen that the tamarind tree

exists on the eastern side of the road. Even in Ex.P-13,

the spot of accident has not been mentioned. Even the

distance between the two vehicles after the accident had

taken place is not forthcoming in Ex.P-13. PW-16 during

the course of cross-examination has admitted that in

Ex.P-13, the spot of the accident has not been shown.

Therefore, Exs.P-8 & P-13 does not in any way assist the

prosecution to prove its case against the petitioner.

29. Ex.P-28 is the photograph of the spot which is

subsequently produced by the prosecution on 11.06.2012

through the Investigating Officer - PW-16 and a perusal

of this photograph would go to show that the position of

the vehicles after the accident, is found in this document.

After the accident had taken place, the bus had gone to

its complete left side and had dashed against the

tamarind tree which as per Ex.P-8 is at a distance of 10

feet from the road. From this photograph, it is evident

that the bus had traveled a very short distance after the

accident and had dashed against the tree. The van is

found lying on the road. In Ex.P-8, it is mentioned that

the van was lying occupying about three feet of the tar

road. According to the prosecution, after the accident,

the van had turned towards its left side and capsized.

Since the capsized van is found occupying the portion of

the road, it cannot be said that the van was coming on

the complete left hand side of the road. Since it is the

specific case of the prosecution that after the accident,

the van had turned towards its left side and capsized, the

accident must have taken place on the right hand side of

the road or atleast on the middle of the road. This is

fortified by the evidence of PWs-5 & 7 who have stated

that the van was coming in high speed on the right side

of the road and had dashed against the bus. It is the

specific defence of the accused that the van driver tried

to overtake the lorry in front of the van, and thereby he

had come to the right side and had caused the accident.

PW-1 has admitted during the course of his cross-

examination that there was a vehicle in front of his van

before the accident had taken place. The courts below by

placing reliance on Exs.P-8 & P-13 have held that the

prosecution has proved the spot of accident and this

finding of the courts below is illegal having regard to the

aforesaid analysis of Exs.P-8 & P-13 coupled with the

evidence of PWs-14 & 16.

30. In the case of MRS. SHAKILA KHADER VS

NAUSHER GAMA & ANOTHER - AIR 1973 SC 1324, it was

observed that the main criteria for deciding the driving

which led to the accident was rash and negligent is not

only the speed at which the car was running but the

width of the road, the density of the traffic and the

attempt to overtake other vehicles resulting in the car

going to the wrong side of the road and causing the

accident. Even if the accident took place in the twinkling

of an eye it is not difficult for an eye witness to notice a

car overtaking other vehicles and going to the wrong side

of the road.

31. The evidence of PWs-5 & 7 would go to show that

the van which was driven in a high speed had come

towards its right side before the accident took place and

from a perusal of Ex.P-28 - photograph of the spot, it can

be safely gathered that the accident in question had

taken place either on the right side of the road or on the

middle of the road, but definitely not on the left side of

the road as sought to be made out by the prosecution.

32. The courts below have failed to appreciate the

aforesaid aspects of the matter and have erroneously

recorded a finding of guilt against the petitioner and have

accordingly convicted him for the offences for which he

was charged. In my considered view, the judgment and

order of conviction and sentence passed by the courts

below, are therefore, illegal and cannot be sustained in

the eye of law. The question for consideration is,

therefore, answered in the negative. Accordingly, the

following order:

33. The criminal revision petition is allowed. The

judgment and order of conviction and sentence dated

24.05.2013 passed by the Prl. Civil Judge & JMFC, Kadur,

in C.CNo.98/2010 and the judgment and order dated

20.03.2015 passed by the Prl. Sessions Judge,

Chickamagaluru, in Crl.A.No.193/2013, are set aside The

petitioner is acquitted of the offences punishable under

Sections 279, 337, 338 & 304A IPC.

Sd/-

JUDGE KK