Karnataka High Court
Manasing S/O Tukaram Lamani vs The State Of Karnataka on 12 January, 2024
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE R
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100215 OF 2015
BETWEEN:
MANASING S/O. TUKARAM LAMANI,
AGE: 44 YEARS, OCC: DRIVER,
R/O: MUDANAL LT, TQ: MUDDEBIHAL,
DISTRICT: VIJAYPUR.
...PETITIONER
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BENCH, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF THE CODE OF CRIMINAL
Digitally
signed by
SHIVAKUMAR
HIREMATH
PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED:
Date:
2024.01.22
12:35:04 11/11/2011 PASSED BY PRINCIPAL CIVIL JUDGE AND JMFC,
+0530
BAGALKOT IN CC 208/2011, CONVICTING THE PETITIONER
FOR OFFENCES PUNISHABLE UNDER SECTIONS 279, 338 AND
304 A OF IPC AND ACQUIT THE PETITIONER HEREIN OF THE
OFFENCES PUNISHABLE UNDER SECTIONS 279, 338 AND 304
A OF IPC IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The revision petitioner i.e. accused in
C.C.No.208/2011 on the file of Principal Civil Judge and
JMFC, Bagalkot (for short "Trial Court") being aggrieved by
the judgment of conviction and order on sentence passed
by the Trial Court vide judgment dated 11.11.2011
convicting and sentencing him for the offence punishable
under Section 279, 338 and 304-A of IPC and confirmed
by the II-Additional District and Sessions Judge, Bagalkot
(for short "I-Appellate Court") in Criminal Appeal
No.77/2011 vide judgment dated 01.09.2015, has filed
this revision petition.
2. For the sake of convenience, the parties to this
petition are referred to as per their rank before the Trial
Court.
3. The facts leading to the case of the revision
petitioner-accused in brief are as under:
That, on 19.11.2010 at 3.45 p.m., the accused being
the driver of KSRTC Bus bearing registration No.KA-29/F-
848, drove his bus in rash and negligence manner towards
Kaladagi from Bagalkot via Gaddanakeri, near I.B. of
Kaladagi village and dashed against the motorcycle
bearing registration No.KA-29/J-6929 driven by Yallappa
Kulageri along with pillion rider-Mallikarjuna Devatagi. In
the said accident, both Yallappa and Mallikarjuna
sustained simple and grievous injuries. Due to accidental
injuries suffered by the pillion rider, he succumbed to the
injuries. With these allegations, complaint was filed which
was registered in crime No.95/2010 of Kaladagi Police
Station and criminal law was set in motion.
4. Before the Trial Court, to bring home the guilt
of the accused, the prosecution, in all, examined ten
witnesses PW1 to PW10 and got marked Ex.P1 to Ex.P10
with respective signatures thereon. During the course of
cross-examination, certain portions of complaint as well as
statements of PW5, PW6 and PW7 recorded under section
161 of Cr.P.C., were marked.
5. Learned Trial Court on hearing the arguments
and on assessment of the evidence, found the driver of
KSRTC guilty of committing offences punishable under
section 297, 338 and 304-A of IPC and sentenced him as
under:
"(A) For the offence punishable U/Sec.279 of Indian Penal
Code, an accused shall undergo simple imprisonment
for thirty days and shall liable to pay fine of
Rs.1,000/- (One Thousand Only) and in default of
payment of fine, he shall undergo simple
imprisonment for fifteen days.
(B) For the offence punishable U/Sec.338 of Indian Penal
Code, an accused shall undergo simple imprisonment
for two months and shall liable to pay fine of
Rs.1,000/- (One Thousand Only) and in default of
payment of fine, he shall undergo simple
imprisonment for fifteen days.
(C) For the offence punishable U/Sec.304(A) of Indian
Penal Code, an accused shall undergo simple
imprisonment for six months and shall liable to pay
fine of Rs.3,000/- (Three Thousand Only) and in
default of payment of fine, he shall undergo simple
imprisonment for thirty days.
All sentences of imprisonment shall run concurrently.
As per the provisions of Sec.357 (A) of Cr.P.C. an
accused is liable to pay the compensation amount of
Rs.20,000/- to the dependent of deceased Mallikarjun
Deevatagi and Rs.5,000/- to the injured person by
name Yallappa Kulageri."
6. This judgment of conviction and order on
sentence was challenged by the accused before the I-
Appellate Court by preferring an appeal in
Crl.A.No.77/2011. The I-Appellate Court on hearing the
arguments and on evaluation of the evidence, confirmed
the said judgment of conviction and order on sentence
passed by the Trial. This is how the revision petitioner-
accused is before this Court challenging both the
judgments passed against him by both the Courts below.
7. It is submitted by the learned counsel for the
petitioner-accused that, he being bus driver has taken all
precautions to avoid the accident. When he was moving
his bus by crossing the road circle, it was the rider of the
motorcycle came in high speed in a rash and negligent
manner in the middle of the road without anticipating any
vehicles on main road and dashed to the KSRTC Bus.
There was no negligence or rashness on the part of the
accused in driving the bus. The pillion rider of the
motorcycle died due to the rashness and negligence on the
part of the rider of the motorcycle. The eyewitnesses to
the incident have not supported the case of the
prosecution. It is his submission that on seeing the sketch
so prepared by the investigating officer at the time of
conducting the investigation, do demonstrate the
topographical features of the scene of occurrence of the
accident. He submits that the lacunas or discrepancies so
brought on record in the cross-examination of the
witnesses have not been properly appreciated by the Trial
Court as well as by the I-Appellate Court. It is his further
submission that, on investigation, police have filed charge
sheet not only against the accused but also against the
rider of the motorcycle. There was sheer negligence on the
part of the rider of the motorcycle in riding the
motorcycle. It is his submission that, the prosecution has
utterly failed to prove the guilt of the accused beyond all
reasonable doubt. None of the ingredients of offences so
attributed against the accused are duly proved in
accordance with law. Hence, it is prayed by the revision
petitioner-accused to allow the revision petition and set
aside the judgments of the Courts below.
8. As against this submission, the learned
Additional SPP, Sri.M.B.Gundawade, submits that, on
seeing the topographical features as narrated in the sketch
prepared by the investigating officer, it do suggest that
how far accused was rash and negligent in driving the bus.
He has not anticipated any vehicles coming from the other
approaching road. According to his submission, both the
Courts below have properly appreciated the evidence
placed on record and have convicted the accused and such
judgment of conviction and order of sentence cannot be
interfered by this Court in this revision. He submits that
both the Courts below have not at all committed any
illegality or perversity in passing the judgment of
conviction and order on sentence.
9. I have given my anxious consideration to the
submissions made by both the sides. Meticulously perused
the records. In view of rival submissions of both the sides,
the points that would arise for consideration are as under:
i) Whether the Trial Court and the I-Appellate Court
have committed illegality in appreciating the
evidence placed on record by the prosecution and
have wrongly found the accused guilty of
commission of the offences attributed against
him?
ii) If so, whether the impugned judgments passed
by both the Courts below require interference by
this Court?
10. In this case, father of the complainant by name
Danappa has lodged the complaint. According to his
evidence on 19.11.2010 his son deceased-Mallikarjun was
moving on motorcycle as pillion rider along with Yallappa
to bring fuel to tractor. One Yallappa was the rider of the
motorcycle and he drove it in a rash and negligent
manner. When the said motorcycle went near I.B. cross
towards Gaddanakeri cross, he was turning his motorcycle
towards Gaddanakeri and at that time, KSRTC bus came
from opposite direction in high speed and in rash and
negligent manner and there was an head on collision in
between both the vehicles. The driver of the KSRTC bus as
well as rider of the motorcycle lost their control over the
vehicles. Immediately, the complainant rushed to the spot
of the accident and noticed injuries being suffered by both
rider as well as pillion rider of the motorcycle. His son,
being pillion rider, had sustained grievous injuries on his
chest and blood was oozing. His son had sustained injuries
on his left hand, right wrist and left feet. He was unable to
speak. Even the rider of the motorcycle, Yallappa, had
sustained injuries on his right thigh. He also sustained
some abrasions. He was unable to speak. The said
accident has taken place at about 3.45 p.m. Immediately,
the injured were shifted to Kaladagi government hospital.
On medical examination by the doctor, it was declared
that son of the complainant is dead. It is alleged that
because of rash and negligent driving of the bus, the said
accident has taken place.
11. To prove the said fact of death of deceased-
Mallikarjuna Danappa Devatagi, prosecution relies upon
Ex.P2-inquest panchanama. So also, it relies upon the
postmortem report marked at Ex.P6. These documents do
demonstrate that, deceased-Mallikarjun died because of
accidental injuries. While marking these documents,
defence has not raised any objection. Thus, in this case,
death of Mallikarjuna in the said accident is not disputed
and it is proved. This fact has been spoken to by the
witnesses so examined in this case.
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12. Merely because the prosecution was able to
prove the death of Mallikarjuna in the said accident and
injuries to the rider of the motorcycle by name Yallappa,
that does not mean that, it was accused, who drove the
bus in a rash and negligent manner endangering human
life.
13. The documents relied by the prosecution are
very much important to decide about the alleged rash and
negligent driving of bus by the accused in the manner
alleged by the prosecution. Ex.P3 is the seizure
panchanama under which of both the vehicles were seized.
Ex.P4 is the scene of offence panchanama wherein it is
recited regarding where exactly the said accident has
taken place. As per Ex.P4, the said road is having about
50 ft width. It is called a State Highway No.20. Towards
Kaladagi, a road curve is existing. Towards the eastern
side of the road, at a distance of 5 ft and from the western
edge of the said road, at a distance of 40 ft, the said
accident has taken place. There is a circle and after
crossing the said circle, towards the right of the said circle,
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the said Kaladagi road is situated. From the scene of
offence panchanama, it is also noticed that, there is
approaching road to the extent of 30 ft. The investigating
officer has also noticed blood stains at the scene of
offence. Ex.P5 is the photograph of the scene of offence,
which was snaped by the investigating officer in the
presence of panchas.
14. Relying upon this evidence, the learned
Additional SPP submits that, in view of documentary
evidence, it do establishes the rash and negligent act on
the part of the driver of the bus.
15. Ex.P7 is an FIR. It is not in dispute. The very
important document in this case is Ex.P8-Sketch of spot of
occurrence of the accident prepared by the investigating
officer at the time of conducting investigation and
panchanama. On scrupulous scrutiny of this sketch, it
shows that, the said highway leads from Bagalkot to
Belagavi. The said bus was moving from Bagalkot towards
Kaladagi. The width of the said highway is about 30 ft as
per the sketch. So also the width of Kaladagi road is about
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40 ft. The said bus was coming from Bagalkot and was
turning towards Kaladagi road. As per the case of the
prosecution itself, this Bagalkot-Belagavi State Highway is
a main road. When the said bus was turning towards the
right side of Kaladagi road, the rider of the motorcycle was
coming from Kaladagi towards Bagalkot near Inspection
Bungalow of Kaladagi city. The said accident has taken
place at a distance of 12 ft from the edge of the road, so
also 5 ft from the eastern side. The circle mark is shown
as scene of offence.
16. It is argued by the learned Additional SPP that,
this sketch depicts about riding of motorcycle as well as
KSRTC bus in the middle of the road. He submits that
when KSRTC bus was turning right side towards Kaladagi,
the driver of the bus would have anticipated the vehicles
coming from the approaching road. But Traffic rules
envisages that when the vehicles are being driven on the
approaching road by the drivers, when they are
approaching the main road, it is the duty of the drivers
who want to take their vehicles on the main road, to stop
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their vehicle and see on either side of the road, to know
that, whether any vehicle is moving on the main road and
then take his vehicle on the main road. But in this case as
rightly submitted by the counsel for the accused, there is
no evidence placed on record by the prosecution that, the
rider of the motorcycle had stopped his vehicle and
noticed on either side of the road to know, whether any
vehicles are moving on the main road. The rider of the
motorcycle was also riding the motorcycle in high speed as
per the contents of the complaint allegations. Said
assertion made in the complaint has been marked in
evidence as Ex.D1. It is stated that, "Yallappa Kulageri
was riding the motorcycle in high speed near Gaddanakeri
cross, which is also called as I.B. cross and when he ws
turning his motorcycle, the said accident has taken place".
This recital in the complaint has been corroborated by the
statement of witnesses like Arif, examined as PW5,
Abdulsab, examined as PW6 and Laxmibai examined as
PW7, in their evidence. On reading the contents of Ex.D1
to Ex.D5, it shows that the son of the complainant,
Mallikarjuna, was a pillion rider and at that time the rider
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of the motorcycle was riding the motorcycle in high speed.
The deceased Mallikarjuna was holding Oil Can with him
and the said rider of the motorcycle without giving any
signal turned his vehicle towards Gaddanakeri cross, at
that time, the said accident has taken place. PW6 has
stated that, at 3.45 p.m. on the date of the accident, when
he was crossing the road near I.B. cross towards his land,
the said accident has taken place. Even Laxmibai has also
spoken in similar lines as that of other witnesses.
According to the evidence of Laxmibai, both rider of the
motorcycle as well as the driver of the bus have lost
control over their vehicles and hence the said accident has
taken place.
17. Further, it is an admitted fact between both the
sides that, the accident has taken place not because of
any mechanical defects in the vehicles. Ex.P9 is the M.V.
report in which the damages sustained by both the
vehicles are mentioned. This document is not disputed by
the defence. Ex.P10 is the wound certificate of Yallappa
showing injuries so sustained by him in the said accident.
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18. On cumulative reading of all these documents,
they do suggest that the said accident has taken place as
noted in Ex.P8-Sketch.
19. So far as oral evidence is concerned, PW1-
complainant has reiterated the contents of the complaint
in his evidence on oath. He has been cross-examined at
length. According to his evidence, there was harvesting of
onion in his landed property along with coolies. At that
time, his son wanted to bring diesel to his tractor and
therefore, he went along with Yallappa on motorcycle with
a Can. He alleges that, because of rash and negligent
driving of KSRTC bus, the said accident has taken place.
He identifies the accused as the driver of KSRTC bus. But
he states that, he has not given any statement as recited
in Ex.D1. At one breath, he states that, the rider of the
motorcycle was rash and negligent and lost control over
the motorcycle and dashed against the KSRTC bus and at
another breath, he denies that because of rash and
negligent riding of motor cycle by the rider of the
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motorcycle as well as the driver of the KSRTC bus the said
accident has taken place.
20. PW2-Razaksab and PW3-Rajasab are panchas
to Ex.P3 i.e. scene of occurrence panchanama. But both
the witnesses have been turned hostile and nothing worth
is elicited from their mouth so as to disbelieve their
version spoken to in their examination-in-chief. Their
evidence would not help the case of the prosecution.
21. PW4-Maliyappa is the pancha to Ex.P4-scene of
occurrence panchanama. He identified Ex.P5-photograph.
He also identifies the scene of offence panchanama as well
as inquest panchanama. There is no effective cross-
examination except eliciting that, on either side of the
road towards Kaladagi, there exist trees but the said
suggestion so directed to him was denied by this witness.
22. PW5-Arif is an eyewitness to the said accident.
According to his evidence, in the landed property of the
complainant there was harvesting of onion. At that time,
deceased-Mallikarjuna went on motorcycle of Yallappa and
at that time, one KSRTC bus came from Bagalkot and
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dashed to the motorcycle. This evidence is quite contrary
to the statement of PW1 marked at Ex.D1. In the cross-
examination, he admits that when the said accident has
taken place, they were engaged in harvesting onion crop
in the landed property of the complainant. When they
were harvesting onion crop in the landed property of the
complainant, was there any occasion for them to observe
the accident, is not properly explained by any of the
witnesses in this case. That means, the evidence of all the
witnesses show that only after the accident they came to
know that the accident has taken place.
23. Likewise, PW6-Abdulsab has stated in line with
the evidence of the complainant. According to his
evidence, bus came at a speed of 40 km per hour. At that
time, the rider of the motorcycle jumped from the
motorcycle. His bike went towards hind portion of the bus
and deceased Mallikarjuna sustained injuries on his chest.
This evidence spoken to by this PW6 has not been stated
either by PW1 or PW5. If really PW1 and PW5 were the
eyewitnesses to the accident, they would also have stated
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as spoken to by PW6. But their version is entirely
different.
24. According to PW6, because of mistake of the
driver of the bus the said accident has taken place. But in
the cross-examination, it is elicited that to go to his landed
property at Kaladagi, one has to cross the police station.
His landed property is situated by the side of police
station. The said road where the accident has taken palce
is running from south to north. From the police station,
the scene of offence is ½ km away. He has not given
statement before the police. Even he has not given any
statement as marked at Ex.D3. So, when such evidence is
spoken to by this witness, it requires corroboration.
25. PW7-Laxmibai is branded as an eyewitness to
the alleged incident. She too says that because of mistake
on the part of the driver of the bus, the said accident has
taken place. She was also cross-examined. She has given
her statement before the police. According to her, the said
scene of offence is about ½ km away from the place
where they have seen the accident. It is hard to accept the
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evidence of PW7 as to how she saw the accident from a
distance of ½ km.
26. PW8-Dr.Ishwarappa Gadad has conducted the
postmortem on the dead body of the deceased-
Mallikarjuna and issued Postmortem report as per Ex.P6.
The death of Mallikarjuna in the accident is not disputed
by the defence.
27. PW9-Pradeep Yamappa Talikeri was PSI at the
relevant time. On receipt of complaint, he set the criminal
law into motion by registering the crime and conducted
part of investigation.
28. PW10-Sadashiva Revappa Kattimani was CPI
and the investigating officer at the relevant time. He has
filed charge sheet against the accused. According to his
evidence, the statements so stated in Ex.D1 to Ex.D5 have
been stated by the witnesses. We find contradictions in
the evidence spoken to by the witnesses.
29. To prove the rash and negligent act of the
accused, as stated supra, the sketch of scene of offence
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plays an important role. As rightly submitted by the
learned counsel for the accused, as per the traffic rules
and regulations, when the users of the approaching road
want to approach the main road, it is their duty to stop
their vehicle and see on either side of the road then turn
their vehicle and proceed as per their destination.
30. In this case, on seeing Ex.P8-Sketch, it shows
that the KSRTC bus is a big vehicle and it has to take turn
towards right i.e. towards Gaddanakeri cross. When a big
vehicle is turning towards right road, automatically it
would cover long space. Many vehicles ply on Belagavi to
Kaladagi road, which has an approaching road to
Bagalkote-Belagavi state highway. It was the duty of the
driver of the bus who wants to use the main road to
anticipate any vehicles from the opposite direction and
then take a turn towards right side. As rightly submitted
by the learned counsel for the accused, the driver of the
bus turned his bus to approach the road and took his
vehicle in the middle of the road. The motorcycle is a
small vehicle and the rider of the motorcycle had sufficient
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place towards his left side to stop his vehicle, but he has
not stopped his motorcycle, due to which the accident took
place. Further, as the evidence of PW1 as well as the
complaint assertions, the rider of the motorcycle was also
riding the motorcycle in a rash and negligent manner.
Therefore, merely because the driver of the KSRTC bus
moved the bus towards Kaladagi road in the middle of the
road, that does not mean he was rash and negligent.
Here, it would be appropriate to refer Regulation 9 of
the Motor Vehicles (Driving) Regulations, 2017,
which reads as under:
9. Precautions to be taken at intersections. -
(1) The vehicle shall invariably slow down when
approaching a road intersection, a road junction, a
pedestrian crossing or a road corner, and shall not enter
any such intersection, junction or crossing if it is likely to
endanger the safety of other road users moving onto, or
already on, such intersection, road junction, pedestrian
crossing or road corner.
(2) At intersections and junctions, vehicles approaching
from the right side shall have the right of way:
Provided that this sub-regulation shall not apply,-
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(a) when the junction or intersection is being
regulated by manual signals by an authorised
person, traffic lights or mandatory traffic signs; or
(b) when the vehicle is exiting a minor road and
entering a major road.
(3) A motor vehicle shall not enter an intersection if the
traffic on the intersection has come to a standstill even if
it is on the main road or has a signal to proceed.
31. Evidently, there is no evidence placed on record
that the said road circle was manned by any traffic control
officials. The accident is admitted and the death of
deceased-Mallikarjuna in the said accident is also
admitted. But the traffic rules are not followed by the rider
of the motorcycle. The rider of the motorcycle without
following the traffic rules and without observing the
anticipating vehicles on the main road has ridden his
motorcycle in rash and negligent manner due to which the
accident has taken place.
32. Uncontrolled intersections have no signs or
traffic lights. They are usually found in areas where there
is not much traffic. But they can be dangerous places
because drivers might not be expecting cross traffic or
pedestrians. While approaching a road, one must slow
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down and look out for other road users and scan the
intersection from left to right. If another vehicle has
arrived at the intersection before him, he must slow down
and yield. If two vehicles arrive at the same time, the
vehicle on the left must yield to the vehicle on the right.
One must be careful when he wants to turn left where
other traffic is approaching from the opposite direction. If
anybody intend to go straight through and a vehicle is
already in the intersection turning left, he must yield.
33. The complainant in his complaint has stated
that the rider of the motorcycle was also rash and
negligent. If it is so, the Trial Court as well as the I-
Appellate Court have not properly appreciated the sketch
to ascertain about the following of traffic rules and
regulations. The evidence of eyewitnesses is also
contradictory with each other. When the coolies were
engaged in harvesting Onion crop in the landed property
of the complainant, there was no occasion for them to
notice rashness and negligence of the accused in the
manner stated by the prosecution. Therefore, a doubt
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arises in the case of the prosecution and the benefit of
doubt has to be extended to the accused.
34. It is true that the revisional court cannot lightly
interfere into the judgments of the Court below. But when
there is perversity and capriciousness in appreciating the
evidence by the Courts below, this Court can very well
exercise its powers. Hence, the criminal revision petition
filed by the accused deserves to be allowed. In view of
discussions made above, the above points are answered in
favour of the revision petitioner-accused. Consequentially
petition filed by the revision petitioner-accused succeeds.
Resultantly, I pass the following:
ORDER
i) The criminal revision petition filed by the
accused is hereby allowed.
ii) The judgment of conviction and order on
sentence passed by the Principal Civil Judge
and JMFC, Bagalkot in C.C.No.208/2011 dated
11.11.2011 and confirmed by the II-
Additional District and Sessions Judge,
Bagalkot in Crl.A.No.77/2011 dated
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01.09.2015 against the accused for the
offence punishable under sections 279, 338
and 304-A of IPC are hereby set aside.
iii) The revision petitioner-accused is acquitted of
the offence punishable under sections 279,
338 and 304-A of IPC. His bail bonds shall
stand cancelled.
iv) Fine amount, if any, deposited by the accused
shall be refunded to him digitally.
v) Send a copy of this order to the Trial Court
along with TCRs.
Sd/-
JUDGE
YAN
