Karnataka High Court

Basavaraj S/O. Matuteppa Arer vs State Of Karnataka on 25 July, 2024

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                                                     NC: 2024:KHC-D:10540
                                                     CRL.RP No. 100074 of 2018




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                              DATED THIS THE 25TH DAY OF JULY, 2024
                                            BEFORE
                              THE HON'BLE MR JUSTICE S.RACHAIAH
                       CRIMINAL REVISION PETITION NO. 100074 OF 2018
                   BETWEEN:
                   BASAVARAJ S/O. MATUTEPPA ARER,
                   AGED ABOUT 38 YEARS,
                   OCC: DRIVER OF KSRTC DEPOT,
                   PRESENTLY WORKING IN KSRTC
                   DIVISIONAL STORE, HAVERI.
                                                                  ...PETITIONER
                   (BY SRI. ARAVIND D. KULKARNI, ADVOCATE)

                   AND:

                   STATE OF KARNATAKA
                   REP BY ITS PUBLIC PROSECUTOR,
                   HIGH COURT OF KARNATAKA,
                   CIRCUIT BENCH, DHARWAD.
                                                            ...RESPONDENT
                   (BY SRI. PRAVEENA Y. DEVAREDDIYAVAR, HCGP)

                        THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
                   397 READ WITH 401 OF CR.P.C., SEEKING TO CALL FOR
Digitally signed   RECORDS AND SET ASIDE THE JUDGMENT AND ORDER DATED
by NARAYANA
UMA                23.03.2018 PASSED BY THE I ADDL. DISTRICT & SESSIONS
Location: HIGH
COURT OF
                   JUDGE, AT HAVERI IN CRIMINAL APPEAL NO.24/2017 AND
KARNATAKA          ALSO SET ASIDE THE JUDGMENT AND ORDER DATED
                   01.07.2017 IN C.C. NO.130/2016 PASSED BY THE CIVIL JUDGE
                   & JMFC AT SHIGGAON; AND CONSEQUENTLY ACQUIT THE
                   PETITIONER HEREIN FROM ALL THE CHARGES LEVELED
                   AGAINST HIM.

                        THIS REVISION PETITION HAVING BEEN HEARD AND
                   RESERVED FOR HEARING ON 25.07.2024, COMING FOR
                   PRONOUNCEMENT OF ORDER THIS DAY, THIS COURT MADE
                   THE FOLLOWING:
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                                   NC: 2024:KHC-D:10540
                                   CRL.RP No. 100074 of 2018




                           ORDER

This revision petition is filed by the petitioner being

aggrieved by the judgment of conviction and order of

sentence dated 01.07.2017 in C.C. No.130/2016 passed

by the Civil Judge and JMFC at Shiggaon and its

confirmation order dated 23.03.2018 in Crl.A.No.24/2017

on the file of I Addl. District and Sessions Judge, Haveri.

2. The ranks of the parties before the trial Court

will be considered as it is for convenience.

Brief facts of the case:

3. The complaint is registered by one of the

inmates of the bus which discloses that the petitioner was

working as a KSRTC driver. On 14.06.2015 at about 2.50

p.m., he was deputed to take charge of the bus bearing

registration No.KA-27/ED-1460 which was flying from

Mulakeri to Muddinakoppa. The accused was driving the

said bus and the said bus crossed Konanakeri. The

complainant noticed that the bus was being driven in a

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high speed and rash and negligent manner. Resultantly, it

dashed the motorcycle which was coming from its opposite

direction. Consequently, the pillion rider of the motor bike

died at the spot. Whereas, the rider of the bike sustained

grievous injuries to his head. The injured was given first-

aid and he was shifted to hospital for treatment. The

complainant being one of the inmates of the bus lodged a

complaint against the driver of the bus. The jurisdictional

police have registered a case in crime No.102/2015 for the

offence punishable under Sections 279, 338 and 304A of

IPC. After conducting the investigation, submitted the

charge sheet.

4. To prove the case of the prosecution, the

prosecution examined 10 witnesses as PW1 to PW10 and

got marked 13 documents as Ex.P1 to P13. The Trial Court

after appreciating both oral and documentary evidence on

record, recorded the conviction for the offence punishable

under Section 279, 338 and 304-A of IPC. Being aggrieved

by the same, the petitioner herein had preferred an appeal

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before the Appellate Court. The Appellate Court after

considering the oral and documentary evidence and after

reappreciating the same, confirmed the judgment of

conviction passed by the Trial Court.

5. Heard Sri. Aravind D. Kulkarni, learned counsel

for the petitioner and Sri. Praveena Y. Devareddiyavara,

learned HCGP for the respondent-State.

6. It is the submission of learned counsel for the

petitioner that the judgment of conviction and order of

sentence passed by the Trial Court is against to the

evidence on record and contrary to the law laid down by

the Hon'ble Supreme Court and therefore, the same is

required to be set aside.

7. It is further submitted that the learned counsel

for the petitioner mainly contended that nowhere in the

evidence of all the witnesses the word, rash and negligent

driving has not mentioned. In the absence of the evidence

about rash and negligent driving, the conviction cannot be

sustained.

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8. It is further submitted that the driver can fly

the vehicle with high speed that may not be an offence,

however, it should not be coupled with rash and negligent

driving. The evidence of PW1, though stated to be of eye

witness of the incident, did not disclose regarding rash and

negligent driving. Hence, the findings of the Courts below

in recording the conviction is required to be set aside.

9. Learned HCGP vehemently justified the

concurrent findings recorded by the Courts below and

submitted that, the complainant was one of the inmates of

the bus. He instructed the accused to slow down the

vehicle in the cross road. However, the accused did not

heed his words and proceeding with high speed. Due to his

rashness and negligent act, the accident occurred. As a

result of which, the pillion rider of the scooter which was

coming from the opposite direction died at the spot and

the rider sustained injuries. Even though, PW1 has been

cross examined in order to discredit his trustworthiness,

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he withstood the cross examination and supported the

case of the prosecution.

10. It is further submitted that the sketch, the

motor vehicle inspection report and spot mahazar are

clearly indicate the manner in which the accident occurred

and the manner in which the accused was driving the said

vehicle with high speed coupled with rash and negligence.

Therefore, the trial Court and Appellant Court concurrently

held the accused found guilty of the offences stated supra

and therefore, it is not necessary to interfere with the said

findings. Making such submission, learned HCGP prays to

dismiss the petition.

11. Having heard the learned counsel for respective

parties and also perused the findings of the Courts below

in recording the conviction, the points which arises for my

consideration are:

i) Whether the findings of the Courts below in recording the conviction are justified?

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ii) Whether the petitioner made out the grounds to interfere with the said findings?

12. This Court being a revisional Court and having a

limited jurisdiction to reappreciate the evidence of the

Courts below. However, in order to ascertain as to whether

any errors or irregularities committed by the Courts below

in recording such conviction, it has to be dealt with in

accordance with law.

13. Now, it is relevant to refer the evidence of PW1

who is the complainant in this case. He deposed in his

evidence that he was travelling in the said bus as on the

date of the incident. Though, he tried to convince the

accused to slow down the vehicle, he failed to convince

him. However, the accused was driving the said bus in a

rash and negligent manner with high speed. Consequently,

the accident had occurred. He had been cross-examined

by the accused at length, however, nothing has been

elicited to disbelieve his evidence. PW-1 is consistent in his

evidence that the bus was being driven with high speed.

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14. PW2 and PW3 are the witnesses to the spot

mahazar and they have supported the case of the

prosecution in respect of spot mahazar.

15. PW4 was working as conductor of the said bus.

He deposed that he heard the sound of accident and got

down from the bus and saw that two persons who were

coming on motorcycle were sustained injuries in the

accident. He further deposed that the bus was moving in a

moderate speed.

16. PW5 and PW6 stated to be the eye witnesses to

the accident, however, they did not support the case of

prosecution.

17. PW7 was working as Police Constable at

Bankapura Police station, after receiving the message

about the accident, he went to the spot along with others

and stated to have written spot mahazar and inquest.

PW8 was working as Head Constable of the same police

station. After receiving the complaint, he said to have

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registered FIR in Crime No.105/2015 and the same has

been identified by him as ExP10.

18. PW9 was working as ASI of Bankapura Police

station. He said to have conducted the investigation and

submitted the charge sheet. PW10 was the father of rider

of the motor cycle. He is the hearsay witnesses.

19. On careful reading of the evidence of the

witnesses, it appears from the record that the evidence of

PW1 considered as material evidence. According to him,

the bus was moving with high speed. However, he did not

depose regarding rash and negligent driving. It is

needless to say that, mere driving the vehicle in high

speed cannot be construed as rash and negligent act of

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

State of Karnataka V/s Satish1 held in paragraph No.4

and 5 as under:

"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of

(1998)8SCC 493

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the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged"

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20. On careful reading the dictum of the Hon'ble

Supreme Court, it makes it clear that merely because the

vehicle was being driven at a "high speed" does not be

speak of either "negligence or rashness" by itself.

21. In the present case, though PW1 supported the

case of the prosecution in respect of the accident, he did

not depose about rash and negligent act of the accused.

Therefore, having considered the dictum of the Hon'ble

Supreme Court, I am of the considered opinion that the

trial Court should have applied its mind on the principle of

the dictum of the Hon'ble Supreme Court. As it has filed to

consider the same, the said order passed by the trial Court

appears to be obiter dicta and it requires to be clarified

and set-aside.

22. In the light of the observation made above, I

proceed to pass the following:

ORDER

i. The revision petition is allowed.

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                                       NC: 2024:KHC-D:10540





         ii.    The judgment of conviction and order of
                sentence     dated        01.07.2017     in

C.C.No.130/2016 on the file of the Civil Judge and JMFC at Shiggaon and its confirmation order dated 23.03.2018 in Crl.A.No.24/2017 on the file of the I Addl. District and Sessions Judge at Haveri are set aside.