Karnataka High Court

Mallesha vs State By Halebeedu Police on 9 January, 2024

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                                                                 NC: 2024:KHC:985
                                                           CRL.RP No. 283 of 2017




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 9TH DAY OF JANUARY, 2024

                                                  BEFORE
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                            CRIMINAL REVISION PETITION NO.283 OF 2017
                      BETWEEN:

                      1.    MALLESHA
                            S/O MALLEGOWDA
                            AGEDA BOUT 49 YEARS
                            R/O KURUBARAHALLI VILLAGE
                            HASSAN TALUK AND DISTRICT-573201
                                                                    ...PETITIONER
                      (BY SRI. GIRISH B BALADARE, ADVOCATE)

                      AND:

                      1.    STATE BY HALEBEEDU POLICE
                            BELUR TALUK
                            HASSAN DISTRICT
                            REPRESENTED BY PUBLIC PROSECUTOR
Digitally signed by         HIGH COURT BUILDING
SANDHYA S
Location: High              BANGALORE-01
Court of
Karnataka                                                          ...RESPONDENT
                      (BY SRI M.R. PATIL, HCGP)

                           THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                      TO SET ASIDE THE JUDGMENT DATED 07.12.2016 PASSED BY
                      THE LEARNED III ADDL. DIST. ANDS.J., HASSAN IN
                      CRLA..NO.39/2015 BY CONFIRMING THE JUDGMENT DATED
                      13.02.2015 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC,
                      BELUR IN C.C.NO.328/2013 FOR THE OFFENCES P/U/S 279,
                      304A OF IPC AND THE PETITIONER TO BE ACQUITTED FOR THE
                      OFFENCE ALLEGED AGAINST HIM.
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                                                NC: 2024:KHC:985
                                         CRL.RP No. 283 of 2017




     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
                             ORDER

The accused-Revision Petitioner has preferred this

Revision Petition against the judgment of conviction and order

of sentence dated 13th February, 2015 passed in CC No.328 of

2013 (for short hereinafter referred to as the "trial Court")

which is confirmed by the III Additional District and Sessions

Judge at Hassan in Criminal Appeal No.39 of 2015 vide order

dated 07th December, 2016 (for short hereinafter referred to as

the "appellate Court").

2. For the sake of convenience, the parties in this appeal

are referred to with their status and rank before the trial Court.

3. The brief facts of the prosecution case is that on 18th

December, 2012, at Angadihalli, at about 11.30 am, the

deceased Akkamma was standing by the side of the road. At

that time, the accused being the driver of the lorry bearing

No.KA-41-242 to the said lorry reverse in a rash and negligent

manner and without observing the said Akkamma, dashed to

her resultantly, the left rear wheel of the lorry passed over her

left leg, then she succumbed to the injuries while being shifted

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to the hospital. Thereafter, Investigating Officer filed charge

sheet for the commission of offence punishable under Sections

279 and 304A of Indian Penal Code. After taking cognizance,

case was registered in CC.No.328 of 2013 and after issuance of

summons accused appeared and obtained bail. Charges were

framed, and the same were read over and explained to the

accused. Having understood the same, accused pleaded not

guilty and claimed to be tried.

4. To prove the guilt of the accused, prosecution has

examined 09 witnesses as PWs1 to 9 and got marked eleven

documents as Exhibits P1 to P11. On closure of prosecution

side evidence, statement of the accused under Section 313 of

the Code of Criminal Procedure was recorded and the accused

has denied all the incriminating evidence adduced by the

prosecution but has not chosen to lead any defence evidence

on his behalf.

5. Having heard the learned counsel for the parties, the

trial Court convicted the accused for commission of offence

punishable under Section 279 and 304A of the Indian Penal

Code. The accused was sentenced to undergo simple

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imprisonment for a period of six months for commission of

offence punishable under Section 279 Indian Penal Code with

fine of Rs.1,000/-. The accused was also sentenced to undergo

rigorous imprisonment for a period of one year for commission

of offence punishable under Section 304A and to pay fine of

Rs.5,000/-, in default to undergo simple imprisonment for a

period of three months.

6. Being aggrieved by the said judgment of conviction and

order of sentence, the accused preferred appeal before the III

Additional District and Sessions Judge at Hassan in Criminal

Appeal No.39 of 2015. The Appellate Court, vide judgment and

order dated 07th December, 2016 dismissed the appeal.

7. Being aggrieved by the judgment of conviction passed

by the trial Court which is confirmed by the Appellate Court,

the accused has preferred this revision petition.

8. Sri Girish B. Baladare, learned counsel appearing for

the revision petitioner submits that the learned Magistrate, as

well as the Appellate Court have not properly appreciated the

evidence on record in accordance with law and facts. He

submits that as per the complaint averments, it is the

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allegation that the accused, while taking the lorry reverse, has

dashed against the deceased. But it is specifically admitted by

the complaint in his cross-examination that the accused was

taking lorry reverse in the small road where it cannot be driven

in high speed, so also, in a rash and negligent manner, the

same is evident from the spot mahazar and other material on

record. Hence, it is apparent that since deceased was aged 75

as on the date of accident and was having vision problem she

herself contributed for the accident by standing behind the lorry

knowing that the lorry was coming reverse. Hence, there is no

negligence on the part of the revision petitioner and he is not

responsible for the death of Akkamma. The learned counsel

further submits that PW3-Raja, who is the alleged eye-witness

to the incident as per the case of the prosecution, has clearly

admitted in his cross-examination that, he was inside the house

and he has not witnessed the accident. But the trial Court has

not considered the same.

9. Learned counsel further submits that during cross-

examination of PW9-Regional Transport Officer, he has clearly

admitted that while driving in reverse direction, it is not

possible to drive the same at a speed more than 20 kmph.

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Same is also not considered by both the courts. Though the

accused has taken utmost care and caution while taking the

lorry reverse, unfortunately, the deceased has not observed the

lorry due to negligence on her part the accident occurred.

Absolutely, there is no material to attract the alleged

commission of offence punishable under Sections 279 and 304A

of Indian Penal Code. However, the trial Court has convicted

the accused mechanically and the same is confirmed by the

appellate court. On all these grounds, the learned counsel

sought to allow the revision petition by acquitting the accused.

10. On the other hand, Sri M.R. Patil, learned High Court

Government Pleader appearing on behalf the State, submitted

that the trial Court has properly appreciated the evidence on

record in accordance with law and facts. The appellate court

has also confirmed the judgment of conviction and order of

sentence passed by the trial Court and that there are no

grounds to interfere with the same in this revision petition.

Accordingly, sought for dismissal of the revision petition.

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11. Having heard the learned counsel for the parties and

on perusal of record, the following points would arise for my

consideration:

1. Whether the Revision Petitioner has made out a

ground to interfere with the impugned judgment

of conviction and order of sentence passed by

the trial Court which is confirmed by the

Appellate Court as illegal, perverse and not

sustainable under law?

2. What order?

12. My answer to the above points are as under:

Point No.1: in the affirmative

Point No.2: as per final order

Regarding Point No.1:

13. I have carefully examined the material placed before

this Court. It is the case of the prosecution that on 18th

December, 2012 at Angadihalli, at about 11.30 am, the

deceased Akkamma was standing by the side of the road. At

that time, the accused being the driver of the lorry bearing

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No.KA-41-242 to the said lorry reverse in a rash and negligent

manner and without observing the said Akkamma, dashed to

her resultantly, the left rear wheel of the lorry passed over her

left leg, and she succumbed to the injuries while being shifted

to the hospital. Initially, the deceased was taken to

Government Hospital at Hassan and then she was shifted to

Wenlock Hospital, Mangaluru and she died on account of

injuries sustained in the accident. It is not in dispute that the

age of the deceased, as on the date of accident, was 75 years

and the same is also reflected in Exhibit P6-inquest

panchanama and in Exhibit P8-post-mortem report. Exhibit P1-

complaint reveals that the lorry dashed to Akkamma and she

fell on the road and the rear left wheel of the lorry passed over

her leg and the bone of the leg was broken. Then, the

complainant-Guddaiah and Madduraiah have shifted the injured

to the hospital. The said Guddaiah, who is the son of deceased

Akkamma, is examined as PW1, has deposed as to the contents

of complaint Exhibit P1. PW2-Madduraiah has deposed in his

evidence that accused being the driver of the lorry, has drove

the same in a high speed and while taking reverse, without

observing the said Akkamma who was behind the lorry, has

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dashed the lorry to her and hence, the accident occurred.

PW3-Raja has admitted in his evidence that he is the grandson

of deceased Akkamma and that CWs3 and 4 are his relatives.

During the course of his cross-examination, he has clearly

admitted that at the time of accident, he was inside the house

and only after the occurrence of accident, he has witnessed the

incident. Therefore, PW3 is not an eye-witness to the accident.

PW4-Chandraiah is the attestor to seizure mahazar Exhibit P5.

PW5-Krishna and PW6-Gangadhara are the attestors to inquest

mahazar Exhibit P6. PW7-Annappa is the owner of the lorry

bearing registration No.KA-31-242. He has not deposed

anything as to the accident. PW8-Beeregowda is the

Investigating Officer has deposed as to the investigation. PW9-

C.P. Anil Kumar, who is the Inspector of Motor Vehicles, has

deposed as to the examination lorry involved in the accident

and issuance of Motor Vehicle report as per Exhibit P11. In the

cross-examination, he has clearly deposed that the truck while

moving in a reverse gear can move at a maximum speed of 20

kmph. It is also the case of the prosecution that the accident

occurred while the driver of the lorry moving the lorry in the

reverse direction. The prosecution papers as well as the

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evidence of PWs1 and 2 reveal the same. Therefore, the

question of driving the lorry in a high speed, as alleged by the

prosecution, does not arise. Now the question would be,

whether the accused has took the lorry reverse without

observing that the deceased standing by the side of the road.

In this regard, Exhibit P1-complaint does not reveal as to at

what distance the deceased-Akkamma was standing? Whether

she was standing by the side of the road or on the footpath has

not been disclosed in Exhibit P1. Even PWs1 and 2 have not

deposed anything in this regard. Therefore, in the absence of

these material evidence, this Court can accept the arguments

advanced on behalf of the accused is, that the deceased who

was aged 75 years suffering from vision problem, would have

come on to the road abruptly without observing the moving

lorry, then said unfortunate incident might have occurred. For

this reason, this court cannot presume that the accused being

the driver of the lorry drove the same in a rash and negligent

manner and caused the accident. The prosecution has not

placed any cogent, corroborative and convincing evidence to

prove that the accident occurred due to rash and negligent act

on the part of the accused. In this regard, it is appropriate to

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refer to the judgment of Hon'ble Supreme Court in the case of

NANJUNDAPPA v. STATE OF KARNATAKA, wherein it is

observed that doctrine of res ipsa loquitur stricto sensu would

not apply to a criminal case. In the said, judgment it is

observed as under:

"Indian Penal Code. 1860; Section 304A - Doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case - For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim.

14. Considering the facts and circumstances of the case

and keeping in mind the decision of the Hon'ble Supreme Court

in the case referred to above, I am of the considered opinion

that both the Courts have not properly appreciated the

evidence on record in accordance with law and facts. On re-

appreciation of the evidence on record, I do not find any

material to attract the rash and negligent act on the part of the

accused. Hence, I answer Point No.1 in the affirmative.

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Regarding Point No.2:

15. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

1. Revision Petition is allowed;

2. Judgment of conviction and order of sentence dated 13th February, 2015 passed in CC No.328 of 2013 which is confirmed by the III Additional District and Sessions Judge at Hassan in Criminal Appeal No.39 of 2015 vide order dated 07th December, 2016, is set aside;