Karnataka High Court
Vinod S/O Shivamurthy Naikar vs The State Of Karnataka on 5 April, 2024
-1-
NC: 2024:KHC-D:6207
CRL.RP No. 100131 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100131 OF 2018 (397)
BETWEEN:
VINOD S/O. SHIVAMURTHY NAIKAR
AGE: 42 YEARS, OCC: KSRTC DRIVER,
R/O: KSRTC DEPOT, DHARWAD.
...PETITIONER
(BY SRI. R.H. ANGADI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(ALANAVAR POLICE STATION),
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
Digitally signed
by SAMREEN
AYUB
THIS CRIMINAL REVISION PETITION IS FILED UNDER
DESHNUR
Location: HIGH
SECTION 397 R/W SEC. 401 OF CR.P.C., PRAYING TO ALLOW
COURT OF
KARNATAKA THE PETITION AND TO CALL FOR THE RECORDS AND TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION PASSED IN CRIMINAL APPEAL NO.14/2017,
DATED 31.05.2017 U/SEC.279, 304(A) OF IPC AND SEC.134
R/W 187 OF MV ACT PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD,
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION
PASSED IN C.C.NO.980/2015, DATED 17.01.2017, PASSED BY
THE LEARNED III ADDL. CIVIL JUDGE & JMFC, DHARWAD AND
CONSEQUENTLY ACQUIT THE PETITIONER.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2024:KHC-D:6207
CRL.RP No. 100131 of 2018
ORDER
Petitioner/accused by filing this Revision Petition has
assailed the judgment of his conviction and order of
sentence passed in C.C. No.980/2015 (old C.C.
No.2069/2009) dated 17.01.2017 by the III Additional
Civil Judge (Jr. Dn.) and JMFC, Dharwad (for short the
'Trial Court'), and confirmed in Criminal Appeal
No.14/2017 vide judgment dated 31.05.2017 by the II
Additional District and Sessions Judge and Special Judge,
Dharwad (for short the 'First Appellate Court').
Brief and relevant facts leading to the case of the
prosecution upto this revision petition are as under:
2. Parties to this revision petition are referred to
as per their rank before the Trial Court for the purpose of
convenience.
3. That, one Nagappa Yallappa Madiwalar resident
of the address so stated in the complaint gave his
statement/complaint on 05.07.2009 to the PSI, Alnawar
Police Station stating that, his brother Vitthal has got
NC: 2024:KHC-D:6207
three children two male and one female. The said female
child by name Chaitra was aged 07 years and studying in
Ist standard. It is stated that, on 05.07.2009 at 3.00
p.m., this complainant went to Murakatti cross to bring
the betel nut. He was followed by his brother's daughter
Chaitra. Complainant purchased biscuit for her and was
returning to the house. He was moving ahead and the
said Chaitra was following him from at a distance. When
he reached near Basaveshwar farm, at that time, a bus
going towards Haliyal came from Dharwad side and the
said bus was been driven by the driver in a high speed
and in negligent manner. At that time, he shouted at
Chaitra to come with him by coming on the side of the
road. By that time, the said bus dashed to Chaitra who
was moving on by the side of the road and she fell on the
road. From at a distance the driver of the bus stopped the
bus and ran away by stopping the bus. The complainant
rushed to the place where Chaitra was found lying. She
has sustained injuries on her eyes, so also right hand and
she has sustained inner injuries no her head. On hearing
NC: 2024:KHC-D:6207
the sound, Nagappa Basappa Amargol who was working in
the land came there, so also the inmates of the bus also
got down from the bus. When she was taken to the
hospital, she died. The registration number of the said bus
was KA-25/F-1678. The said accident took place at about
3.30 p.m., on that day. With these allegations, a
complaint came to be filed as per Ex.P.3 which was
registered in Crime No.60/2009 of Alnawar Police Station
and criminal law was set in motion.
4. After filing the complaint, the Investigating
Officer went to the scene of offence, conducted the spot
panchanama, prepared the sketch, so also prepared the
inquest panchanama. Recorded the statements of the
witnesses. Sent the dead body for post-mortem.
Subjected the offending bus for mechanical examination
by the RTO. After collecting the necessary documents and
after completion of investigation, he filed the charge
sheet.
NC: 2024:KHC-D:6207
5. Before the Jurisdictional Magistrate to prove the
case of the prosecution, in all, prosecution examined eight
witnesses as PW.1 to PW. 8 and got marked documents at
Ex.P.1 to P.10 and closed the prosecution evidence.
6. The learned Magistrate after hearing the
arguments and on appreciation of evidence, found the
accused guilty of committing the offences under Section
279, 304A of Indian Penal Code, 1860 (for short 'IPC') and
Section 134 read with Section 187 of the Motor Vehicles
Act, 1988 and sentenced him as under:
"The accused is sentenced to pay a
fine of Rs.1,000/- (one thousand rupees
only) and in default he shall undergo
Simple imprisonment for a period of 30
days (Thirty days) for the offence
punishable U/Sec.279 of IPC.
Further the accused is sentenced to
undergo simple imprisonment for a
period of one year and he shall also pay
fine of Rs.2,000/- (Two thousand rupees
only) in default he shall undergo Simple
imprisonment for 40 days (Forty days)
NC: 2024:KHC-D:6207
for the offence punishable U/Sec.304(A)
of IPC.
Further the accused is sentenced to
undergo Simple imprisonment for a
period of one month and he shall also
pay fine of Rs.500/- (Five hundred
rupees) in default he shall undergo
Simple imprisonment for 15 days (fifteen
days) for the offence punishable U/Sec.
134 R/w. Sec.187 of M.V. Act."
7. This judgment of conviction and order of
sentence was challenged by the accused by preferring an
appeal in Criminal Appal No.14/2017 before the First
Appellate Court. The learned First Appellate Court on
hearing the arguments and on perusal of the records
produced by the prosecution and by re-appreciating
evidence, confirmed the judgment of conviction and order
of sentence passed by the Trial Court. This is how, now
the revision petitioner/accused is before this Court
challenging both the judgments of the Courts below.
NC: 2024:KHC-D:6207
8. Shri. R. H. Angadi, learned counsel for the
revision petitioner/accused submits that, except the
complainant there are no witnesses being examined by
the prosecution so as to prove that, accused being the
driver of the bus was driving the bus in a rash and
negligent manner and thereby, because of culpable
negligence on the part of the accused, the said accident
has taken place. According to his submission, the victim
girl-Chaitra was following PW.3 and there was no occasion
for PW.3-complainant to see that, how the said accident
has taken place. The other witness by name Nagappa
Basappa Amargol was working in his landed property and
there was no occasion to see the accident.
8.1. It is his further submission that, prior to the
accident one truck was coming from Haliyal side and as
the accused was to give a way to the truck, he took the
bus to the left side of the road and suddenly the victim girl
- Chaitra who was moving behind the truck came in front
of the bus and dashed to the bus. There was no
NC: 2024:KHC-D:6207
negligence on the part of the accused in driving his bus
and he was not driving the bus in a high speed on that
day.
8.2. It is his further submission that, there is no
corroborative evidence with regard to the rash and
negligent driving of the bus by the accused. Learned
counsel for the accused also relied upon the various
evidence brought on record in the cross examination and
with all force submits that, accused is not responsible for
the said accident. The scene of offence shown in a sketch
itself shows that, the deceased-Chaitra was moving on a
tar road though have a kachcha road by the side of the tar
road. When PW.3 shouted at Chaitra to come as per the
complaint allegations at that time, because of the said call
by PW.3-complainant, she tried to rush towards him and
at that time, the said accident has taken place.
8.3. He further submits that, both the Courts below
have not properly appreciated the evidence and there was
no rashness or negligence on the part of the accused. He
NC: 2024:KHC-D:6207
submits to allow this revision petition and prays for
acquittal of the accused.
9. As against this submission, the learned
Additional State Public Prosecutor Shri. M. B. Gundawde,
supported the reasons being assigned by both the Courts
below and with all vehemence submits that, so far as
accident is concerned, it is admitted. He submits that, the
said Chaitra died because of accidental injuries. It was a
sheer negligence and rashness on the part of the bus
driver i.e., accused in causing the accident. PW.3 being
the complainant is an eyewitness to the said accident.
One Nagappa who was also an eyewitness has spoken
before the Court that, because of rash and negligent
driving of the bus the said accident has taken place.
10. Learned Additional State Public Prosecutor
further submits that, the evidence spoken to by the
witnesses have been properly appreciated by the Courts
below. Therefore, he submits that the impugned
- 10 -
NC: 2024:KHC-D:6207
judgments do no require interference by this Court. He
prays to dismiss the petition.
11. I have given my anxious consideration to the
arguments of both the side. Perused the records in depth.
In view of the rival submissions of both the side the
following points arise for my consideration:
i) Whether the judgment of
conviction and order of sentence passed
by the Trial Court and affirmed by the
First Appellate Court suffer from factual
or legal error without appreciating
evidence in proper manner?
ii) If so, whether the impugned
judgments of the Courts below require
interference by this Court?
iii) What order?
Point Nos.1 and 2 are discussed together:
12. In this case accident is not in dispute. In the
said accident death of Chaitra aged 07 years is not in
dispute. Accused was the driver of the offending bus is
also not in dispute. So also scene of offence is not
- 11 -
NC: 2024:KHC-D:6207
seriously disputed by both the side. So also the said
accident has taken place not because of any mechanical
defects as per the Motor Vehicles Mechanical examination
report. These admitted facts need not be proved.
13. However to prove the inquest panchanama on
the dead body of the deceased-Chaitra, the prosecution
relies upon the evidence of one Tolappa Gadigeppa Badad
(PW.1) and Suresh B. Haliyal (PW.2). As per their
evidence in their presence inquest panchanama on the
dead body of deceased-Chaitra was conducted. They
deposed that, she died because of the accidental injuries.
They are the signatories to Ex.P.1 the inquest
panchanama. In their presence, scene of offence
panchanama was also conducted by the police. There is no
serious dispute about preparing panchanama as per
Ex.P.2. Therefore, evidence of PWs.1 and 2 prove the
contents of Ex.P.1 and P.2. Further to prove that, she
died because of accidental injuries, prosecution relies upon
P.M. report at Ex.P.4. The doctor while conducting the
- 12 -
NC: 2024:KHC-D:6207
post-mortem on the dead of the deceased, noticed injuries
on the deceased-Chaitra and mentioned the same in the
P.M. Report. He was of the opinion that, because of the
accidental injuries due to shock and haemorrhage Chaitra
died. Contents of Ex.P.4 are not denied by the defense.
14. Ex.P.5 is the Motor Vehicles Accident report
wherein, it is noticed by the Motor Vehicles Inspector that,
the said accident has taken place not due to any
mechanical defects in the motor vehicle involved in the
accident. Thus, the contents of these documents are not
denied by the defense.
15. Merely because the aforesaid facts are not
denied as they are proved by the prosecution, it does not
mean that, the prosecution is able to establish the guilt of
the accused. It is for the prosecution to prove that,
because of rash and negligent driving of the bus by the
accused, the said accident has taken place. To prove such
an offence, the prosecution has to satisfy:
- 13 -
NC: 2024:KHC-D:6207
i) Death must have been
caused by the accused
ii) Death caused by rash and
negligent act
iii) Rash and negligent act must
not amount to culpable homicide.
16. Unless these ingredients are proved in
accordance with law, it cannot be stated that, the
prosecution is able to prove the gilt of the accused. That
means, the heavy burden is on the prosecution to prove
the guilt of the accused.
17. As per the contents of the complaint it is stated
that, when complainant was returning after purchasing
biscuit for Chaitra and Betel nuts for him, at that time
deceased-Chaitra was following him. He was moving
ahead. When he came near Basaveshwar farm, he
noticed one bus coming towards Haliyal side from
Dharwad and driver was driving the bus in a high speed
and at that time, he shouted at Chaitra to come fast and
by that time, the accident has taken place. Whereas in his
- 14 -
NC: 2024:KHC-D:6207
evidence this complainant-PW.3 has stated that, when the
said accident took place he was returning from Murakatti
cross and he was moving ahead and deceased-Chaitra was
following him. She was at a distance of 5-10 steps. When
they came near Basaveshwar farm at that time one bus
towards Dharwad to Haliyal came in speed and dashed to
Chaitra. He states that, when he saw towards backside at
that time, he noticed dashing of the bus to Chaitra.
Chaitra fell down. Driver of the bus stopped the bus at a
distance. She sustained injuries on her chest and head,
she died. The said accident took place at 3.30 p.m.
18. PW.3 has been thoroughly cross examined by
the defense. According to his evidence, his house is
situated on the left side of the road leading towards
Dharwad. According to him, at the spot itself he has
lodged the complaint. He says that, police wrote the
complaint and he signed it. According to him, on that day
he was moving from the left side of the road. It is
questioned to him that, as Chaitra was a child therefore,
- 15 -
NC: 2024:KHC-D:6207
he ought to have moved with her by holding her hands.
To this question, he answered that, as she was moving
from his behind from at a distance he was simply moving
ahead. He admits that, on Dharwad-Haliyal road number
of vehicles ply. He was also lorry driver in the year 2009.
He admits that, to all the buses of KSRTC the speed
checks are installed. Likewise, the said offending bus was
also installed with a speed check.
19. It is elicited in the further cross examination of
PW.3 that, when the bus came he suddenly moved behind
and at that time, bus dashed to Chaitra and stopped the
bus ahead. This evidence of PW.3 being the eyewitness
and so also the complainant is quite contrary to the
contents of the complaint.
20. PW.4-Nagappa Basappa Amargol is branded as
eyewitness to the said accident. It is his evidence that,
when the said accident has taken place, he was in his
landed property. But again he states that, he noticed
moving of PW.3 ahead and deceased-Chaitra was
- 16 -
NC: 2024:KHC-D:6207
following him. This PW.4 was also following the said
Chaitra, at that time one bus came from Dharwad side and
dashed Chaitra, she fell down. The said accident has taken
place in between 2.30 p.m. and 3.30 p.m. In the cross
examination it is elicited that, on that day he was working
in the landed property. He cannot say about the stoping
of the bus by its driver on that day. It is suggested that,
when the said accident took place and when he was
working in the landed property, therefore, there is no
possibility of he witnessing the said accident. But,
according to him after finishing the work in his landed
property he was returning to house. But he further states
that, from 8.00 a.m. in the morning till 8.30 p.m. in the
night he works in his landed property. In his further cross
examination on 03.04.2013, he states that, when the said
accident took place he was working in his landed
property. The said landed property situated at a distance
of 30-40 feet away from the accident road.
- 17 -
NC: 2024:KHC-D:6207
21. PW.4 further admits that, the eyewitnesses to
the said incident are the inmates of the bus. But states
that, he also went to the said place. According to him,
when he heard the noise of the inmates of the bus, he ran
towards the accident place. He admits that, on the day of
giving evidence he met the police constable of Alnawar
Police Station. He has accompanied to the complainant to
file the complaint to the Police Station.
22. On reading the evidence of this PW.2
threadbare, it shows that, he is not an eyewitness to the
said accident but heard the noise of accident, noise of the
inmates of the bus and thereafter went to the said place.
Whereas PW.3 was moving ahead and deceased was
following him. He too saw the accident only after the
accident took place. Therefore, PW.4 also cannot be
termed as eyewitness.
23. PW.5- Amaresh N. Barkar was the CPI, who
took up the investigation and conducted the investigation.
According to his evidence, he conducted the spot
- 18 -
NC: 2024:KHC-D:6207
panchanama wherein, he noticed the width of the road as
18 feet. He further states that, on the said road at a time
two vehicles can move. He admits that, by the side of the
said road there exists a kachcha road and thereafter,
there are road side trees. He states that, he has not
recorded the statements of inmates of the bus on the day
of said accident took place. He states that, near the scene
of offence there exist no shops at all. This evidence of
PW.5 shows that, PW.3-complainant went to Murakatti
cross for the purpose of bringing the betel nuts and his
brother's daughter by name Chaitra followed him. After
purchasing betel nuts and biscuit for Chaitra both were
returning to the home. When Chaitra was aged 07 years
who was the child, it was the duty of PW.3 - complainant
to take care of the said child as he was moving on the
Dharwad - Haliyal road which is the busy road. So many
vehicles ply on the said road. But as per his evidence, he
was moving alone and deceased Chaitra was following
him. As per his complaint assertions, before the accident
he shouted at Chaitra to come with him. That must have
- 19 -
NC: 2024:KHC-D:6207
made the deceased Chaitra to move fast without noticing
any vehicle on the road and that must be the reason for
the accident. This submission of the counsel for the
accused has got some substance.
24. It is the defense of the accused that, before the
accident one truck came from Haliyal side therefore, he
took the bus towards left side of the road and at that time,
a child was found coming behind the truck and suddenly
came in front of the bus. This fact has been stated by the
accused in his Section 313 of Cr.P.C., statement. So
because of sudden coming of Chaitra in front of the bus
the said accident must have taken place as per the
submission of the learned counsel of the accused.
25. PW.5 Investigating Officer has not noticed all
these facts during his investigation. In a casual manner,
he has conducted the investigation and filed the charge
sheet.
26. PW.6 - Rajendra S. Barigidad was a senior
Motor Vehicles Inspector, who mechanically examined the
- 20 -
NC: 2024:KHC-D:6207
offending bus and issued the Motor Vehicle report as per
Ex.P.5. The contents of Ex.P.5 are not disputed by the
defense. So to the extent of issuing Ex.P.5, his evidence
can be believed.
27. PW.7 - Prashant S. Nayak was the PSI at the
relevant time of accident at Alnawar Police Station who
received the complaint and registered the same and set
the criminal law in motion. To that extent, his evidence is
to be accepted.
28. PW.8 - Subhas R. Pujar, was the conductor at
the relevant time. According to his evidence, when the
said bus departed from Dharwad bus stand and was
moving towards Hulikoppa, it stopped at Nigadi village. 5-
6 passengers boarded the bus. After issuing tickets, he
was standing by the side of the driver. After one
kilometre from Nigadi village one lorry came from opposite
side and went towards Dharwad. Suddenly a child of 7-8
years came behind the lorry and came towards right side
of the bus. The said bus dashed to the girl and she fell
- 21 -
NC: 2024:KHC-D:6207
down. This PW.8 was declared as hostile witness, but
nothing worth is elicited by the prosecution. On seeing the
sketch at Ex.P.7 it shows that, the said accident has taken
place on the extreme left side of the road towards Haliyal
from Dharwad. On either side of the road there exists
kachcha road. The tar road is having 18 feet width.
Though, PW.3 and deceased-Chaitra had sufficient
kachcha road, why the said girl Chaitra came on the tar
road in front of the bus, is not explained by the
prosecution.
29. It is argued by the counsel for the State that, the
learned Trial Court as well as the First Appellate Court have
has taken into consideration of all these aspects and have
come to the conclusion based upon the evidenced of PWs.3
and 4 that, because of the rash and negligent riding of the
bus, the said accident has taken place. The law is that, it is
the bounded duty of the prosecution to place reliable and
cogent evidence showing negligence of the accused. The
sketch so prepared by the Investigating Officer clinchingly
established that, extreme left side of the tar road the said
- 22 -
NC: 2024:KHC-D:6207
accident has taken place. Merely because PWs.3 and 4 have
stated about the driving of the bus by the accused itself is
not sufficient.
30. As discussed above, PWs.3 and 4 cannot be
termed as eyewitnesses. The law is that, merely because
the vehicle was driven in a high speed, it does not speak
of either negligence and rashness itself, is not sufficient.
Prosecution has to prove that, negligent or rash driving
has caused the accident. This principle has been laid down
by the Hon'ble Apex Court in the case of State of
Karnataka Vs. Satish1. So to say, the accident must be
caused because of proximate rash and negligent diving of
the accused. That means rashness sand negligence have
to be proved in accordance with law.
31. No doubt it is the duty of the prosecution like
KSRTC bus being the professional driver pedals the
accelerator of the automobile almost throughout his
working hours. The driver of the vehicle also must take all
(1998) Vol 8 SCC 493
- 23 -
NC: 2024:KHC-D:6207
available precautions. But in this case, except the bald
evidence PW.3 and unbelievable evidence of PW.4, there
is no proper evidence adduced by the prosecution so as to
prove that, because of rash and negligent driving of the
bus by the accused the said accident has taken place.
32. As both the courts below have not properly
appreciated the evidence, the findings given by both courts
below are perverse and against the existing facts and
circumstances of the case so brought on record. Therefore
judgments of the courts below require interference by this
court.
33. Therefore, in view of all these factual features
coupled with non-proving of rash and negligent driving of
the bus by its driver, there arise doubt in the case of the
prosecution and that, benefit of doubt must be extended
to the accused.
34. Consequently, the points raised supra are to be
answered in favour of the petitioner/accused and against
- 24 -
NC: 2024:KHC-D:6207
the prosecution. Accordingly, petition filed by the
petitioner deserves to be allowed.
35. Resultantly , I pass the following:
ORDER
(i) The Revision Petition filed
by the petitioner/accused is allowed.
(ii) Consequentially, the
judgment of conviction and order of
sentence passed by the III Additional
Civil Judge (Jr. Dn.) and JMFC,
Dharwad in C.C. No.980/2015 dated
17.01.2017 and affirmed by the II
Additional District and Sessions Judge
and Special Judge, Dharwad in
Criminal Appeal No.14/2017 dated
31.05.2017, are hereby set aside.
(iii) The petitioner/accused is
acquitted of the charges under Section
279, 304A of IPC and Section 134 read
with Section 187 of M.V. Act.
- 25 -
NC: 2024:KHC-D:6207
(iv) The bail bonds of the
accused/petitioner stand cancelled and
he set at liberty.
(v) If the fine amount is paid
by the accused/petitioner, the same is
to be refunded to him digitally.
(vi) Send back the Trial Court
as well as the First Appellate Court
records forthwith along with copy of
this judgment.
Sd/-
JUDGE
SMM
