Karnataka High Court

Ayaz Ahamad vs State Of Karnataka on 4 April, 2024

                              -1-
                                    CRL.RP No. 552 of 2019


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 04TH DAY OF APRIL, 2024
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 552 OF 2019
BETWEEN:
   AYAZ AHAMAD
   S/O LATE NASEER AHAMAD
   AGED ABOUT 48 YEARS
   R/AT KEMPANAHALLI VILLAGE
   KUNIGAL TALUK
   TUMKUR DISTRICT - 572 130.
                                               ...PETITIONER

(BY SRI. A N RADHA KRISHNA, ADVOCATE)

AND:
   STATE OF KARNATAKA
   BY HEBBUR POLICE
   TUMKUR
   REPRESENTED BY
   THE STATE PUBLIC PROSECUTOR
   HIGH COURT BUILDINGS
   BENGALURU - 560 002.
                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)


     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
SENTENCE PASSED BY THE 4TH ADDITONAL CIVIL JUDGE AND
JMFC, AT TUMKUR IN C.C.NO.2382/2005 DATED 27.12.2016
CONVICTING THE PETITIONER/ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 279, 337, 338,
304(A) IPC AND UNDER SECTION 134(a) ABD (b) OF IMV ACT,
1988 AND etc.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 16.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                   -2-
                                         CRL.RP No. 552 of 2019




                            ORDER

1. This Criminal Revision Petition is filed by the petitioner,

being aggrieved by the judgment of conviction and order

on sentence dated 27.12.2016 in C.C.No.2382/2005 on

the file of the IV Additional Civil Judge and JMFC at

Tumakuru and its confirmation judgment and order dated

16.03.2019 in Crl.A.No.2/2017 on the file of the II

Additional Sessions Judge at Tumakuru, seeking to set

aside the concurrent findings recorded by the Courts

below, wherein the petitioner / accused is convicted for

the offences punishable under Sections 279, 337, 338

and 304-A of Indian Penal Code (for short 'IPC') and

under Sections 134(a) and (b) of Indian Motor Vehicles

Act (for short 'IMV Act').

2. The ranks of the parties in the Trial Court henceforth will

be considered accordingly for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that on 28.12.2005 at

about 12.00 noon, the informant who was traveling on his

TVS motorcycle on the Honnudiki - Doddakere river bund,

he has noticed that the private bus bearing its

registration No.KA-11-A-4444 was carrying the

passengers and moving on the said bund road which was

under construction. However, the driver of the bus driven

the said bus without taking proper care and caution,

made the bus to touch the live electric wire which was

hanging in the pole. Consequently, the bus was

electrocuted and four persons died in the electric accident

due to shock and other three persons died in the

respective hospitals. Therefore, a case came to be

registered against the petitioner herein. The respondent

police after conducting the investigation, submitted the

charge sheet for the offences under Sections 279, 337,

338 r/w 304-A of IPC and Sections 134(a) and (b) of IMV

Act.

4. The prosecution in order to prove the case examined 19

witnesses as PW.1 to PW.19 and got marked 38

documents as Exs.P1 to P38. After considering the oral

and documentary evidence on record, the Trial Court

convicted the accused / petitioner herein for the offences

stated supra. In the appeal filed by the petitioner, the

Appellate Court confirmed the judgment of conviction

passed by the Trial Court and dismissed the appeal.

Hence this revision petition.

5. Heard Sri.A.N.Radha Krishna, learned counsel for

petitioner and Sri.Rahul Rai.K, learned High Court

Government Pleader for the respondent.

6. It is the submission of the learned counsel for the

petitioner that initially complaint came to be registered by

the complainant against three persons namely the driver

of the bus, the contractor of the road and authority of the

electricity. The witnesses are all consistent in their

evidence that due to the negligence of the officers of the

Departments namely, PWD and Electricity, the accident

occurred. However, the Trial Court and the Appellate

Court failed to take note of the evidence of all the

witnesses properly and recorded the acquittal against

accused Nos.2 and 3 and convicted accused No.1 which is

contrary to the evidence on record. Therefore, the said

conviction is liable to be set aside.

7. It is further submitted that the driver of the bus cannot

anticipate as to whether the electricity was passing

through the wire or not as the road was under

construction. There were no sign boards nor any persons

deployed to look after the situation by the contractor or

PWD Department. The said fact has been admitted by

the witnesses. The negligence on the part of the

authority has been ignored by the Trial Court and the

Appellate Court. The liability was fixed only against the

accused No.1 in order to facilitate to claim the insurance

by the deceased and other injured. Since the Courts

below have committed an error in recording the

conviction, it is appropriate to interfere with the said

findings and the judgments are required to be set aside.

Making such submission, learned counsel for the

petitioner prays to allow the petition.

8. Per contra, learned High Court Government Pleader for

the respondent - State vehemently justified the

judgments of the Courts below and submitted that the

evidence of all the witnesses indicate that the petitioner

was driving the said vehicle as a driver and it was being

driven in a rash and negligent manner and made the bus

to touch the electric wire.

9. It is further submitted that the driver of the vehicle could

have avoided in taking the vehicle towards the electric

pole. The accident occurred due to negligent act of the

driver and nothing else. The Courts below have rightly

appreciated both oral and documentary evidence on

record and recorded the conviction which is appropriate

and relevant and there is no necessity to interfere with

the said findings. Having said thus, learned High Court

Government Pleader prays to dismiss the revision

petition.

10. After having heard the learned counsel for the respective

parties and also perused the evidence of all the

witnesses, it appears that the complainant had lodged a

complaint against all the three accused persons including

the petitioner herein. PW.1 is stated to be the driver of

the bus, PW.2 is a contractor constructing the road and

PW.3 was working as Engineer at BESCOM.

11. The prosecution has examined 19 witnesses. PW.1 is an

eyewitness to the incident. According to him, the

accident occurred at about 12.30 p.m. The said accident

occurred due to the gross negligence of all the accused

persons. In his evidence he has deposed that he had not

seen the driver of the bus.

12. PW.2 was the inmate of the bus. As on the date of the

accident, he was traveling in the said bus. He also did

not identify the driver of the bus.

13. PW.3 is said to be the inmate of the bus, sustained

injuries in the said accident. He did not identify the

driver of the bus, however, he says the accident occurred

due to negligence of the driver of the bus.

14. PW4 also inmate of the bus, said to have sustained

injuries, he has not supported the case of the

prosecution.

15. PW.5 is also one of the inmates of the bus, said to have

sustained injuries. He has not supported the case of the

prosecution regarding identity of the driver of the bus.

16. PW.6 who was working as Asst. Engineer, Tumkuru,

Department of Public Works. He has stated that he knew

accused No.3 and the accused No.3 was allotted the

contract work to construct the road. He has not stated as

to how the accident occurred.

17. Except the evidence of these witnesses, the evidence of

other witnesses regarding the accident may not be

significant. Therefore, their evidence may not be

considered for the purpose of appreciation.

18. Be that as it may, the evidence of PW.10 which discloses

that the accused No.1 was driving the said bus as on the

date of accident. Now it is relevant to refer to the

document which is marked as Ex.P35, which is a letter

written by Assistant Executive Engineer on 30.04.2005 to

the higher authorities. The contents of the said document

which reads thus:

"E.Ltr.

 No. AEE(E)/RSD/TKr/392-396               Office of the
 Encl:                                 Executive Engineer El.
                                       O&M Division, Tumkur.
                                        Dated 30.04.2005.



 1. The Superintendent of Police,
    Tumkur.
 2. The Deputy Commissoner,
    Tumkur Distirct,
    Tumkur.
 3. The Circle Inspector of Police,
    Kyathasandra Police,
    Tumkur.
 4. The Sub-Inspector of Police,
    Hebbur, Tumkur Taluk.

Respected Sir,

             Sub: Reporting of accident due to

negligence of the PWD Authorities, Tumkur. Ref: Accident occurred on 28.04.2005, when A private Bus Travelin to Tumkur, from Sankanaghatta Village, caught frie, after The roof of the bus came I contact with an 11 KV line at Honnudike.

With reference to the above, I bring to your kind notice that, without any oral or written permission from the BESCOM, the PWD Authorities, Tumkur, have started the road extension work at Honnudike Village near to the road headed by 11KV Line, and they have not followed the Indian Electricity Act of 1948 and 2003. The earlier old road is only 20 feet and new extended road is almost 20 feet which is almost near to the 11KV line and edge of the new road is underneath of the line. Further I submit that, without our knowledge, and within 3 - 4 days, the PWD Authorities raised a road level up to 8 feet's and on 28.04.2005, a huge mound of mud lay

on the middle of the road and on sign board has been fixed or no body was there to supervise the repair work, because of that reason, the bus driver took the bus to the left side of the road without noticing the High Tension wire, and because of high height from the existing road upto 8 feet's the 11Kv line came in contact with the roof of the bus, because of that, 4 passengers of the bus touched the line wire and were reduced to ashes and some other passengers of the bus were injured. It is only due to negligence of the PWD Authorities the accident happened, and the PWD Tumkur, wholly responsible for all the loses and damages occurred. This is for kind information.

Thanking You, Yours faithfully,"

19. On careful reading of the letter - Ex.P35 and also the

statement of all the witnesses, the accident occurred due

to the negligence of the Department of Public Works.

When the road was under repair, they should have taken

proper care to shift the electric poles to the edge of the

road or otherwise, they should have given intimation to

the BESCOM authority to disconnect the power supply.

However, the Courts below without considering the

averments of Ex.P35, recorded the conviction which is not

proper and appropriate. Moreover, it cannot be expected

that the driver of bus must be aware about the supply or

non-supply of electricity when the road was under

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construction. When the driver of the bus had no

knowledge regarding the supply of electricity, the

conviction in respect of negligence is required to be set

aside.

20. Accordingly, I am of the considered opinion that the

conviction recorded against accused No.1 for the above

said offences is perverse and illegal and therefore, the

said conviction is liable to be set aside. Hence, I proceed

to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.


      (ii)     The judgment of conviction and order on

               sentence         dated            27.12.2016        in

C.C.No.2382/2005 on the file of the IV

Additional Civil Judge and JMFC at

Tumakuru and the judgment and order

dated 16.03.2019 in Crl.A.No.2/2017 on

the file of the II Additional Sessions Judge

at Tumakuru, are set aside.