Karnataka High Court

Venkatesh vs State Of Karnataka on 5 January, 2024

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                                                         NC: 2024:KHC:637
                                                  CRL.RP No. 1178 of 2016




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 5TH DAY OF JANUARY, 2024

                                      BEFORE
                    THE HON'BLE MR JUSTICE VENKATESH NAIK T
                   CRIMINAL REVISION PETITION NO.1178 OF 2016

            BETWEEN:

                VENKATESH
                S/O LATE SHIVANANJEGOWDA
                AGED ABOUT 47 YEARS, BUS DRIVER
                RESIDING AT BARAGUR VILLAGE, ARKALAGUDU
                HASSAN DISTRICT
                KARNATAKA -573 102.
                                                             ...PETITIONER
                (BY SRI K.B.K. SWAMY, ADVOCATE)
            AND:

                STATE OF KARNATAKA
                BY STATION HOUSE OFFICER
                HUNSUR TOWN POLICE STATION
                HUNSUR, MYSURU DISTRICT - 570 001
                THROUGH STATE PUBLIC PROSECUTOR
                HIGH COURT OF KARNATAKA
                BENGALURU - 560 001.
Digitally                                                   ...RESPONDENT
signed by       (BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
VINUTHA M
Location:                               ***
HIGH
COURT OF         THIS CRIMINAL REVISION PETITION IS FILED UNDER
KARNATAKA   SECTION 397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO
            SET ASIDE THE ORDER DATED 9-7-2016 PASSED BY THE PRINCIPAL
            DISTRICT AND SESSIONS JUDGE, MYSURU, IN CRL.A. NO.399/2013
            AND THE ORDER DATED 5-12-2013 PASSED BY THE SENIOR CIVIL
            JUDGE AND J.M.F.C., HUNSUR, IN C.C. NO.223/2012, AND ETC.

                 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
            AND   RESERVED    ON    15-12-2023,  COMING   ON   FOR
            PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED THE
            FOLLOWING:
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                                          NC: 2024:KHC:637
                                   CRL.RP No. 1178 of 2016




                       ORDER

Heard Sri K.B.K. Swamy, learned counsel for the

petitioner and Sri Vinay Mahadevaiah, learned High Court

Government Pleader for the respondent-State.

2. The petitioner has filed this petition under

Section 397 read with Section 401 of the Code of Criminal

Procedure, 1973 (for short, 'Cr.P.C.') praying to set aside

the judgment of conviction and order on sentence dated

5-12-2013 passed by the Senior Civil Judge and Judicial

Magistrate First Class, Hunsuru, in Criminal Case No.223

of 2012 and confirmed by the Principal District and

Sessions Judge, Mysuru, in Criminal Appeal No.399 of

2013 dated 19-7-2016 for the offences punishable under

Sections 279 and 338 of the Indian Penal Code, 1860 (for

short, 'IPC') and prays to acquit the petitioner of the

aforesaid offences.

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3. For the sake of convenience, the parties are

referred to as per their ranking before the trial Court. The

petitioner is the accused and the respondent is

complainant-State.

4. The case of the prosecution is that, on

7-8-2011, PW1 was traveling in a KSRTC bus, bearing

Registration No.KA-09 F-4093, from Bettadapura to

Mysuru. The accused was a driver of the said bus. When

the bus was proceeding near Halagere on B.M. Road of

Hunsuru Town, at about 3:15 p.m., the accused drove the

bus in a rash and negligent manner and all of a sudden

applied brake. As a result of sudden application of brake,

PW1, who was seated behind the seat of the driver, hit

against the grills fixed behind the driver's seat and she

sustained grievous injuries on her face and shoulder. She

was shifted to the Government Hospital, Hunsuru, and

from there to K.R. Hospital, Mysuru, for further treatment

and later, she lodged a complaint as per Ex.P1. Hence, a

case has been registered and the Investigating Officer

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investigated the matter and filed the charge-sheet for the

aforesaid offences.

5. Soon after receipt of the charge-sheet, the

Magistrate took cognizance, recorded plea and ultimately

convicted the accused for the offences punishable under

Sections 279 and 338 of the IPC.

6. Aggrieved by the judgment of conviction and

order on sentence passed by the trial Court, the accused

filed Criminal Appeal No.399 of 2013 before the First

Appellate Court and in turn, the First Appellate Court

dismissed the appeal and confirmed the judgment of

conviction and order on sentence passed by the trial

Court. Aggrieved by the concurrent findings passed by the

trial Court as well as the First Appellate Court, the accused

preferred this revision petition contending that the trial

Court as well as the First Appellate Court have not

considered the evidence of the prosecution witnesses in

right perspective and there are omissions, contradictions

and improvements in the prosecution case.

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7. Learned counsel for the petitioner-accused has

contended that none of the prosecution witnesses has

supported the case of the prosecution. PW1-injured does

not know the bus number, PW2-sister of PW1, who is a

hearsay witness, turned hostile to the case of the

prosecution. PW3-conductor of the KSRTC bus has stated

that before applying brake, the accused was driving the

bus in a normal speed. There was delay in lodging the

complaint and the reasons for the delay have not been

explained. It is contended that the in-mate of the bus are

not examined, the Investigating Officer has not prepared

sketch of the scene of offence, the Doctor who examined

PW1 is also not examined, Wound Certificate-Ex.P6 was

marked with consent. It is contended that the driver

applied sudden brake as a lorry from the opposite direction

came in a high speed, but the trial Court and the First

Appellate Court wrongly convicted the accused without

appreciating the evidence of the prosecution witnesses in a

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right perspective. There is error on the face of the record

and thus, he prays for allowing the revision petition.

8. Learned High Court Government Pleader has

contended that the trial Court as well as the First Appellate

Court have given concurrent findings. Therefore,

interference of this Court is not necessary in order to set

aside the judgment of conviction and order on sentence

passed against the accused. Hence, he justified the

judgment of the trial Court as well as the First Appellate

Court and prays to dismiss the revision petition.

9. On perusal of the material available on record,

the trial Court relying upon the evidence of PW1-Padma,

injured eyewitness and PW3-Jaisingh, conductor of the

KSRTC bus, convicted the accused. As per the evidence of

PW1, she has deposed that the accused drove the bus in a

rash and negligent manner and suddenly, applied brake.

Thus, she sustained injuries over her neck. In the cross-

examination, she admits that she does not know the bus

number. PW1 unable to say that 'since a lorry came in a

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rash and negligent manner from opposite direction and in

order to avoid accident, the accused applied brake and she

has not denied the said suggestion. PW3 has stated that

on the date of the incident, the accused was the driver of

the KSRTC bus and PW1 was sitting behind the seat of the

driver and when the driver applied brake, PW1 hit against

grills fixed behind the seat of the driver and she sustained

injuries. PW3 admits that the accused was in normal speed

before applying brake. In the cross-examination of PW3,

he denied the suggestions that the accused was driving

the bus in a rash and negligent manner.

10. The oral testimony of PW1 is supported by the

oral testimony of PW3. The evidence of PW1 is also

supported by medical evidence which is marked at

Ex.P6-Wound Certificate.

11. From the evidence of the prosecution witnesses,

it establishes that the injuries sustained by PW1 are not

disputed, identity of the accused is not disputed, and the

factum of the accident is also not disputed. As per the

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IMV report, the accident was not due to mechanical defect

of the bus. Therefore, the accused has to explain as to

why he applied brake, but the accused in his examination

under Section 313 of the Cr.P.C. has not explained the

cause of the sudden application of brake. Therefore, the

trial Court has applied res-ipsa loquitur theory and

convicted the accused.

12. As rightly pointed out by the learned High Court

Government Pleader, this petition being filed against the

concurrent findings of the trial Court as well as the First

Appellate Court, as such, the scope of interference on the

factual aspects is very limited. The evidence on record

shows that the accused has not disputed the occurrence of

the accident. He has also not disputed the injuries

sustained by PW1 and he has not disputed his identity

before the trial Court. It was his defence that since a lorry

came from opposite direction in a rash and negligent

manner, he applied sudden brake. So, the accident is

admitted.

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13. Now, the only question that arises for the

consideration of this Court is:-

"Whether imposition of sentence is tenable?"

14. Learned counsel for the petitioner submits that

the petitioner has no criminal antecedents or he had any

intention to cause the accident; he was a Government

servant and during his tenure, he never caused any

accident. Now the accused is retired from service and is

aged about 68 years. The incident occurred in the year

2011 and thirteen years have been elapsed. Hence, he

prays to take a lenient view.

15. In the instant case, the sentence imposed by the

trial Court for the offence under Section 338 of the IPC is

three months. While dealing with the question "whether it

is desirable to impose minimal or negligible sentence in a

case of offences punishable under Sections 279 and 338 of

the IPC", the Hon'ble Apex Court in the case of STATE OF

MADHYA PRADESH v. BACCHUDAS @ BALRAM AND

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OTHERS reported in (2007) 9 SCC 135 held that the

term negligence as the gross and culpable neglect or

failure to exercise that reasonable and proper care and

precaution to guard against injury either to the public

generally or to and individual in particular. Rashness

means doing a dangerous or wanton act with the

knowledge that it so, and that it may cause injury and

doing so with the consciousness of risk that even

consequences will follow but with the hope that it will not.

The negligence or rashness is to be assessed in the light of

the factual scenario at the spot and ocular account of

witnesses.

16. The Hon'ble Supreme Court in the case of

SURENDRAN v. SUB-INSPECTOR OF POLICE reported

in (2021) 17 SCC 799 has held as under:

"We are of the view that it would be rather harsh to send the appellant to jail after 18 years of the occurrence. The ends of justice would be met if the appellant is asked to pay a