Karnataka High Court
Adithya vs State By K.S. Layout on 3 January, 2024
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CRL.RP No. 628 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 628 OF 2020
BETWEEN:
ADITHYA
S/O NAGARAJU
AGED ABOUT 24 YEARS
Digitally
signed by N R/AT NO.66, 7TH CROSS
UMA 1ST MAIN, BHUVANESHWARI NAGAR
Location:
HIGH COURT T.DASARAHALLI
OF BENGALURU - 560 057.
KARNATAKA
...PETITIONER
(BY SRI. ROOPESHA B, ADVOCATE)
AND:
STATE BY K.S. LAYOUT
TRAFFIC POLICE STATION
SUBRAMANYAPURA
BENGALURU. REP. BY S.P.P
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W SECTION 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
28.08.2020 IN CRL.A.NO.1762/2018 PASSED BY THE LXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-62) AND THE ORDER DATED 23.08.2018 IN
C.C.NO.15202/2017 PASSED BY METROPOLITAN MAGISTRTE
TRAFFIC COURT-IV, BENGALURU AND ETC.,
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 628 of 2020
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 23.08.2018 in C.C.No.15202/2017 on
the file of the Court of the Metropolitan Magistrate, Traffic
Court - IV, Bangalore and its confirmation judgment and order
dated 28.08.2020 in Crl.A.No.1762/2018 on the file of the LXI
Additional City Civil and Sessions Judge, Bangalore City,
wherein both the Courts have recorded the conviction for the
offences punishable under Sections 279 and 304-A of Indian
Penal Code (for short 'IPC')
2. The rank 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
26.08.2017 at about 07.45 p.m., the accused being the rider of
motorcycle bearing registration No.KA.02.JQ.6217 has driven
the said vehicle in a rash and negligent manner so as to
endanger human life on the Nice road and dashed against the
pedestrian who was crossing the road near
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Nagenagowdanapalya. As a result, the pedestrian sustained
grievous injury and later he succumbed to the injury at Sai
Ram Hospital. A complaint came to be registered by PW.1 who
was deputed to discharge his duty from Kanakapura Toll Gate
to Thalaghattapura road. Based on the complaint, the
jurisdictional police have registered a case in Crime
No.441/2017 for the above said offences and after conducting
investigation, submitted charge sheet.
4. The prosecution, in order to prove its case, has
examined 5 witnesses namely PWs.1 to 5 and got marked
Ex.P1 to Ex.P9. The Trial Court after appreciating the oral and
documentary evidence on record, held that the accused /
petitioner was guilty of the offences stated supra. On appeal
being filed, the Appellate Court also confirmed the judgment of
conviction passed by the Trial Court. Being aggrieved by the
same, the petitioner has preferred this revision petition seeking
to set aside the concurrent findings.
5. Heard Sri. Roopesha.B., learned counsel for the
petitioner and Shri Rahul Rai.K., learned High Court
Government Pleader for the respondent / State.
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6. It is the submission of the learned counsel for the
petitioner that, the concurrent findings recorded for conviction
by the Courts below are perverse, erroneous and opposed to
law and facts. Hence, the conviction recorded by the Courts
below is required to be set aside.
7. It is submitted that the Trial Court and the
Appellate Court have committed error while appreciating the
evidence of the witnesses and also failed to take note of the
documentary evidence properly, as a result, the impugned
judgment has been passed which is required to be set aside.
8. It is further submitted that the Appellate Court is
having jurisdiction to re-appreciate both facts and law,
however, the Appellate Court has not properly appreciated the
evidence, both oral and documentary, and confirmed the
judgment of conviction which is against the evidence on record.
Therefore, the said confirmation order is also required to be set
aside.
9. It is further submitted that the road where the
accident had occurred is not supposed to be meant for
pedestrians to cross the road and if a person suddenly crosses
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the road, the person who is driving the vehicle, however, may
be slow in riding the said vehicle, may not be in a position to
avoid the accident. The Trial Court and the Appellate Court
failed to take note of the negligence on the part of the
pedestrian in crossing the road where he was not supposed to
cross it. The conviction recorded by both the Courts is not in
accordance with the settled principles of law. Therefore, the
judgments of both the Courts are required to be set aside.
10. In support of his contentions, learned counsel for
the petitioner relied on the judgments of the Hon'ble Supreme
Court in the case of MAHADEO HARI LOKRE v. THE STATE OF
MAHARASHTRA1 and another judgment in the case of AMBALAL
D. BHATT v. THE STATE OF GUJARAT2. Making such
submissions, learned counsel for the petitioner prays to allow
the petition.
11. Per contra learned High Court Government Pleader
(for short "HCGP") vehemently justified the concurrent findings
of both the Courts and also submitted that the accused could
have avoided the accident if he had driven it in a slow and
(1972) 4 SCC 758
(1972) 3 SCC 525
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moderate speed. The Courts below have concurrently held that
the accused was guilty of the offences punishable under
Sections 279 and 304-A of IPC.
12. It is further submitted that the rashness and
negligent driving of the vehicle by the accused has been proved
by the independent witness namely PW.3. PW.1 being the
complainant has identified the driver of the offending vehicle.
Therefore, the prosecution has proved the case beyond all
reasonable doubt that the accused has committed an offence.
Interference with said findings may not be warranted. Making
such submission, learned HCGP prays to dismiss the petition.
13. Having heard the rival contentions urged by the
learned counsels for the respective parties and also perused the
judgments of the Courts below, the points which would arise for
my consideration are:
i) Whether the findings of the Trial Court and
the Appellate Court in recording the conviction of
the petitioner for the offences punishable under
Sections 279 and 304-A of IPC are sustainable?
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ii) Whether the petitioner has made out
grounds to interfere with the said findings?
14. This Court being a Revisional Court, having limited
jurisdiction to interfere with the findings recorded by the Courts
below. This Court can interfere with the findings only if it
appears that the Trial Court committed error in appreciating
both oral and documentary evidence on record or failed to take
note of the settled principles of law on that point. Having
regard to the scope and ambit envisaged to appreciate the facts
and law, it is necessary to have a cursory look upon the
evidence and also the law, to ascertain as to whether any
illegality or perversity or error committed by the Courts below
in recording the conviction.
15. The prosecution has examined five witnesses. PW.1
who was working as a Police Head Constable was deputed to
work from Kanakapura Tollgate to Thalaghattapura road
attached to the Nice road. On the date of accident, he was
present in the said area and after coming to know that the
accident had occurred, he went to the spot and made necessary
arrangements to send both the injured and the accused to the
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hospital for treatment and thereafter, he has lodged a
complaint. PW.1 has identified the accused. PW.2 - witness
to Ex.P2 - mahazar, supported the case of the prosecution.
PW.3 - independent witness, supported the case of the
prosecution as eyewitness to the accident and also witness to
Ex.P2 - mahazar. PW.4 is the Investigating Officer, after
receiving the documents from CW.13, conducted investigation
and submitted the charge sheet. PW.5 was working as Police
Officer, stated to have received the complaint and registered
the case and handed over the investigation to PW.4.
16. After having read the evidence of the witnesses, it
is relevant to refer to the evidence of PW.3 for consideration.
PW.3 is the independent witness. He has stated in his evidence
that on 26.08.2017 at about 7.45 p.m., when he was going
towards Nagarbhavi after completing his work, he has seen the
accident which had occurred on the opposite road. As per his
evidence, the accident occurred due to rash and negligent
driving of the vehicle by the accused. In the cross-
examination, he has admitted that there were no street lights
in the said road and also there was no zebra cross laid to cross
for the pedestrian. The accident occurred on the Nice road
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where the pedestrian is not supposed to cross it. Unless, it is
specified in such road to cross the road, the pedestrian should
not cross the road. If he intends to cross such road, he would
face the consequences.
17. My view has been fortified by the Hon'ble Supreme
Court in the case of MAHADEO HARI LOKRE stated supra, para
4 which reads thus:
"4. It must be said that there is really no good
evidence on the side of the prosecution to show how
exactly the accident took place. All that PW2 Vijay
Kumar, the friend of the deceased, was able to say was
that the deceased left him at point B. Since the
deceased came under the left front wheel, it can be
only inferred that he must have crossed the road to the
Western Side. That seems to be borne out by the FIR
of PW1 Dayanand who says that when he was standing
near point C he saw Ravikant going by the C.P. Tank
Road towards tin batti, that is, towards the North and
at that time he saw bus dashing against him with its
left side mudguard. The High Court has, in one place,
held that while Ravikant was going along the road from
South to North, he was suddenly dashed by the bus
coming from behind. In the first place, it is rather
difficult to hold that Ravikant would be walking in that
street from South to North some 14′ away from the
Western Kerb of the road. Secondly in his evidence
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before the Court Dayanand, PW1 did not stick to this
case in the FIR. He stated that Ravikant was actually
crossing from the Western Side of the road to the
Eastern Side of the Road. If that is true, it will only
mean that Ravikant was not dashed from behind as he
was going towards North but the impact took place
when he was crossing the road from West to East. The
High Court was not quite clear on the point and so it
observed at another place "that was precisely the
reason why he (appellant) could not see the man
walking ahead of him or trying to cross the road in
front of his bus". If Ravikant was walking along the
street in front from South to North and the bus was
coming from behind, it can be legitimately said that the
driver of the bus would see him in front and if he
dashed against Ravikant as he was walking along, that
would undoubtedly amount to negligence on the part of
the driver. It may have been, perhaps, fool-hardy on
the part of Ravikant to walk in the middle of the road
about 14′ away from the Kerb. But that would not
justify the bus driver knocking him down after taking
due note that he was walking straight in front of the
bus. But the case assumes a different complexion if we
agree with the sole eyewitness in the case Dayanand
PW1 that at the time of the impact Ravikant was
actually crossing the road from West to East. That
would mean that if Ravikant suddenly crossed the road
from West to East without taking note of the
approaching bus there was every possibility of his
dashing against the bus without the driver becoming
aware of his crossing till it was too late. If a person
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suddenly crosses the road the bus driver, however,
slowly he may be driving, may not be in a position to
save the accident. Therefore, it will not be possible to
hold that the bus driver was negligent."
18. On careful reading of the dictum of the Hon'ble
Supreme Court, it makes it clear that, if a pedestrian suddenly
tries to cross the road without taking proper caution, it cannot
be said that the driver of the vehicle is guilty of the offence
under Section 279 of IPC. In the absence of proper evidence
regarding the rashness and negligence on the part of the driver
of the vehicle, conviction in respect of said offence appears to
be inappropriate and unsustainable.
19. The Trial Court and the Appellate Court failed to
take note of the evidence of PWs.1 to 3 properly and recorded
the conviction, even though all these witnesses are consistent
that the road was not meant for crossing the pedestrian, which
is not proper and unsustainable. Therefore, I am of the
considered opinion that the concurrent findings recorded by the
Courts below are required to be set aside.
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20. In the light of the observations made above, the
points which arose for my consideration are answered as
under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 23.08.2018 passed in
C.C.No.15202/2017 by the Court of the
Metropolitan Magistrate, Traffic Court - IV,
Bangalore and its confirmation judgment and
order dated 28.08.2020 in Crl.A.No.1762/2018
on the file of the LXI Additional City Civil and
Sessions Judge, Bangalore City, are set aside.
(iii) The petitioner is acquitted for the offences under
Sections 279 and 304-A of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
