Karnataka High Court

M Vinod Kumar vs State Of Karnataka on 16 May, 2024

                              -1-
                                    CRL.RP No. 1224 of 2017


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 16TH DAY OF MAY, 2024
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1224 OF 2017
BETWEEN:
   M VINOD KUMAR
   S/O MANI M, AGED 27 YEARS
   NO. 78, 7TH CROSS, RAMAKRISHNA LAYOUT
   NAGARBHAVI 2ND STAGE
   SUMNAHALLI CROSS
   MALAGALA ROAD
   BANGALORE - 560 091.

                                               ...PETITIONER
(BY SMT. S.NIRMMALA, ADVOCATE)

AND:
   STATE OF KARNATAKA
   BY VIJAYANAGARA POLICE
   BANGALORE
   REP. BY SPP HIGH COURT
   BANGALORE - 560 001.

                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 30-08-2011
PASSED IN C.C.NO.2977/2008 ON THE FILE OF THE
METROPOLITAN MAGISTRATE, TRAFFIC COURT-II BANGALORE
AND    JUDGMENT    DATED    26-10-2017  PASSED   IN
CRL.A.NO.636/2011 ON THE FILE OF THE LXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-
62).

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 22.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                               -2-
                                      CRL.RP No. 1224 of 2017




                            ORDER

1. This revision petition is filed by the petitioner being

aggrieved by the judgment of conviction and order of sentence

dated 30.08.2011 in C.C. No.2977/2008 on the file of the

Metropolitan Magistrate, Traffic Court-II, Bangalore and its

confirmation judgment dated 26.10.2017 passed in Crl.A.

No.636/2011 on the file of the LXI Additional City Civil and

Sessions Judge, Bangalore, by which both the Courts have

concurrently held that the petitioner herein is guilty for the

offences punishable under Sections 279, 337, 304-A of Indian

Penal Code (for short 'IPC') and Sections 3(1) r/w Section 181

of Indian Motor Vehicle Act (for short 'IMV Act') and Section

146 r/w Section 196 of IMV Act.

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience

Brief facts of the case:

3. It is the case of the prosecution that on 23.07.2008

around about 8.00 a.m., the accused being the rider of the

motorcycle bearing its No.KA-02-ER-7517 along with CW.9

dashed against the pedestrian who was crossing the road near

Sharavathi Nursing Home, M.C.Road, Bengaluru. The injured

succumbed to the said injuries. In fact, the accused even did

not have a valid driving license. A complaint came to be

registered against the accused. The jurisdictional police have

registered a case in Crime No.134/2008 for the offences stated

supra. After conducting the investigation, charge sheet was

submitted.

4. To prove the case of the prosecution, the

prosecution examined 7 witnesses as PWs.1 to 7 and got

marked 16 documents as Exs.P.1 to P.16. The Trial Court

recorded the conviction against the accused and passed the

order of sentence. Being aggrieved by the same, the accused

approached the Appellate Court wherein the Appellate Court

dismissed the appeal. Hence this revision petition.

5. Heard Smt. S. Nirmmala, learned counsel for

petitioner and Shri Rahul Rai K., learned High Court

Government Pleader for the respondent - State.

6. It is the submission of learned counsel for petitioner

that the concurrent findings of the Courts below are perverse

and illegal and also against to the evidence on record and

therefore, the conviction is liable to be set aside.

7. It is further submitted that the alleged accident

took place due to the negligent act of the deceased as he

suddenly rushed towards the road. In fact, the accused and

CW.9 both have sustained injuries. However, the Courts below

did not consider the contributory negligence of the deceased.

8. It is further submitted that the evidence of PWs.3

and 4 ought not to have been accepted for the reason that both

PWs.3 and 4 were friends of deceased Mahadevappa and they

said to have gone there to meet him. Both these witnesses

even though stated in their evidence that the accident occurred

due to rash and negligent driving of the accused, they did not

forget to say that the accused and the pillion rider had also

suffered severe injuries in the said accident and all three were

shifted to the hospital for treatment. The wound certificates of

the accused and pillion rider are marked as Exs.P1 and P2.

These aspects should have been considered by the Trial Court

to conclude that the deceased suddenly rushed towards the

road without observing the vehicles and sustained injuries due

to the accident.

9. It is further submitted that the evidence of PWs.3

and 4 though appears to be true as eyewitnesses to the

incident, the rash and negligent driving of the accused is not

forthcoming in their evidence. Even assuming that they are the

eyewitnesses to the incident, as per their evidence, both were

standing on the other side of the road and the deceased was

crossing the road on their instruction. The accident took place

at the fag end of the road. The manner in which the deceased

was crossing the road had to be considered while analyzing the

evidence. Having failed to consider the same, the impugned

judgments have been passed which are required to be set

aside.

10. Per contra, learned High Court Government Pleader

vehemently justified the concurrent findings and submitted that

PW.3 being the complainant categorically stated in his

complaint that the accused was driving the motorbike in a rash

and negligent manner and the complaint was registered on the

same day by mentioning the vehicle registration number. Both

PWs.3 and 4 are consistent in their evidence that the accident

occurred due to rash and negligent driving, therefore, their

evidence cannot be discarded as both these witnesses have

been subjected to cross-examination and nothing has been

elicited in the evidence of defence. Therefore, the findings of

the Courts below cannot be found fault with. Making such

submission, learned High Court Government Pleader prays to

dismiss the petition.

11. Having heard the learned counsel for the respective

parties and also perused judgments of the Courts below, it is

relevant to refer to the evidence of PWs.3 and 4 as they

claimed to be the eyewitnesses to the incident. PW.3 is the

complainant. According to him, he had been to meet the

deceased Mahadevappa, on his motorbike near Sharavathi

Hospital, Vijayanagara, Bengaluru. In the meantime, PW.4 had

also gone there. Both PWs.3 and 4 were standing on the other

side of the road and Mahadevappa was about to cross the road

to meet PWs.3 and 4. By that time, the accused said to have

ridden his motorbike in a rash and negligent manner and

dashed Mahadevappa, consequently, Mahadevappa, the

accused and the pillion rider have sustained injuries. Even

though Mahadevappa was admitted to various hospitals, he

succumbed to the injuries.

12. It is needless to say that, PW.4 also stated in his

evidence in consonance with the evidence of PW.3. Both these

witnesses even though they are consistent in their evidence

that the accused was driving the motorbike in a rash and

negligent manner, they did not state in their evidence as to

how the said rash and negligent had been determined. In fact,

both these witnesses have stressed about the high speed of the

vehicle.

13. Be that as it may, mere driving the vehicle in high

speed cannot be construed as rash and negligent manner,

unless, it is specifically stated as to how such rash and

negligent act can be determined. Both PWs.3 and 4 are

consistent in their evidence that Mahadevappa was crossing the

road to meet them, but they did not speak as to whether the

rider of the motorbike was driving the said vehicle contrary to

any road safety measures. In the absence of any such

violations of the road safety measures, it is not appropriate to

infer that the rider of the vehicle driven it in a rash and

negligent manner. Having said thus, it can be inferred that

both the Courts have committed error in recording the

conviction.

14. It is needless to say that mere driving the vehicle in

high speed cannot be termed as rash and negligent driving. To

fortify the said fact, it is appropriate to refer the judgment of

the Hon'ble Supreme Court in the case of STATE OF

KARNATAKA v. SATISH1.

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

(1998) 8 SCC 493

reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

On careful reading of the judgment of the Hon'ble Supreme

Court, it can be inferred that mere riding of the vehicle in a

high speed cannot be termed as rash and negligent act unless

it is specifically proved regarding rash and negligent act.

15. In the present case, none of the witnesses have

spoken about the manner in which the accused was riding the

vehicle in a rash and negligent manner. In the absence of

specific evidence regarding rash and negligent act, the

conviction in respect of all the offences stated supra cannot be

sustained. Hence, I am of the considered opinion that both the