Karnataka High Court
Sri B S Umesh vs State Of Karnataka By on 16 May, 2024
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CRL.RP No. 888 of 2015
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. 888 OF 2015
BETWEEN:
SRI. B S UMESH
S/O SHANTHAIAH
AGED ABOUT 53 YEARS
BELLURALLI VILLAGE
KODLIPETE HOBLI
SOMAVARPET TALUK
MADIKERE - 571 201.
...PETITIONER
(BY SRI. H P LEELADHAR, ADVOCATE)
AND:
STATE OF KARNATAKA BY
YESALUR POLICE STATION
SAKALESHAPURA TALUK
HASSAN DISTRICT - 573 201.
...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 JUDGMENT, CONVICTION AND
SENTENCE DATED 10.08.2011 PASSED BY THE CIVIL JUDGE
AND JMFC, SAKALESHPUR, IN CC NO.254/2009 AND ALSO V
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HASSAN IN
CRL.A.NO.94/2011 BY ITS ORDER DATED 23.07.2015 AND
ETC.,
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:
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CRL.RP No. 888 of 2015
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 10.08.2011 in C.C.No. 254/2009 on
the file of the Civil Judge and JMFC, Sakleshpur and its
confirmation judgment and order dated 23.07.2015 in
Crl.A.No.94/2011 on the file of the V Addl. District and Sessions
Court, Hassan, seeking to set aside the concurrent findings
recorded by the Courts below, wherein the petitioner / accused
is convicted for the offences punishable under Sections 279,
304(A) of IPC, Rule 21(10) of Central Motor Vehicle Rules (for
short 'Rules') r/w Section 177 of Motor Vehicles Act (for short
'M.V. Act') and Section 66(1) r/w Section 192(A) of M.V. Act.
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case are as under:
3. It is the case of the prosecution that the accused
being a driver of an auto rickshaw bearing its Reg.No.KA-12-
8941 was driving the same on hire and many passengers were
traveling in the said auto. It is stated in the complaint that the
accused being a driver of the said auto, drove the said auto in
high speed and took turn in the cross by maintaining the same
speed, resultantly, the auto got toppled.
4. Due to the said accident, one of the inmates died at
the spot and another inmate died at the hospital. P.Ws.4, 6, 9
and 10 being inmates of the auto have sustained injuries. They
have been shifted to the hospital for treatment.
5. A complaint came to be registered by the brother-
in-law of deceased Basappa. Based on the complaint, a case
came to be registered by the jurisdictional police in Crime
No.7/2009 for the offences stated supra. After conducting the
investigation, charge sheet was submitted for the aforesaid
offences.
6. To prove the case of the prosecution, the
prosecution examined, in all, 13 witnesses namely P.Ws.1 to 13
and got marked 14 documents as Exs.P1 to P14.
7. Heard Shri H.P.Leeladhar, learned counsel for the
petitioner and Shri Rahul Rai K, learned High Court Government
Pleader for the respondent - State.
8. 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 erroneous and capricious
and the same is liable to be set aside.
9. It is further submitted that the Courts below failed
to appreciate the evidence of P.Ws. 1 to 3 who were present at
the time of incident. According to them, they did not witness
the accident. However, they came to the spot after the auto
rickshaw got toppled.
10. It is further submitted that the evidence of all the
witnesses did not disclose the manner in which the accused was
driving the said auto rickshaw. Mere mentioning that the
accused was driving the auto in a rash and negligent manner is
not sufficient to hold him guilty. However, both the Courts
below have committed error in recording the conviction.
11. It is further submitted that in the absence of the
evidence regarding rash and negligent driving, conviction ought
not to have been recorded and moreover, the prosecution has
not proved the case regarding violation of permit rules. Mere
mentioning that the auto was being plied beyond the permitted
area ipso-facto is not sufficient to say that the vehicle had
violated the permit rules.
12. It is further submitted that even though the
prosecution has failed to prove the rash and negligent driving
of the accused, both the Courts committed error in recording
the conviction in respect of the above said offences. Moreover,
the violation of permit rules has also not established and
therefore, the conviction in respect of the aforesaid offences
cannot be sustained and the said conviction is required to be
set aside. Making such submission, the learned counsel for the
petitioner prays to allow the revision petition.
13. Per contra, learned High Court Government Pleader
(for short 'HCGP') justified the concurrent findings and
submitted that the evidence of P.Ws.1 to 3 clearly corroborate
the speed and rash and negligent driving of the accused. As per
the evidence of these three witnesses, it makes it clear that the
accused was driving the auto in a rash and negligent manner
and made it toppled and caused death and injuries to the
inmates.
14. It is further submitted that driving the auto without
taking proper care in the cross road, which amounts to
negligence. The driver must have taken proper precautionary
measures in crossing his vehicle in the cross road, however, in
this case, the auto got toppled due to negligent act of the
accused. Therefore, the conviction recorded by the Courts
below to be justified.
15. It is further submitted that the accused was driving
the said auto for hire without having any permit. The auto
being a passenger auto must have a valid permit before it
enters the road, however, when the Investigating Officer
enquired about the permit, the accused did not produce any
permit. Therefore, the accused committed an offence under
the Motor Vehicles Act. Hence, the conviction in respect of the
offences under the Motor Vehicles Act is also justified.
Therefore, the conviction recorded by the Courts below needs
to be maintained. Making such submission, the learned High
Court Government Pleader prays to dismiss the petition.
16. After having heard learned counsel for the
respective parties and also perusal of the documents available
on record, the findings of the Courts below in recording the
conviction, it is necessary to have a cursory look upon the
evidence of all the witnesses.
17. P.W.1 being a complainant has deposed in his
evidence that the accused was driving the said auto rickshaw
and he is responsible for causing the death of his brother-in-
law.
18. P.W.2 stated to be an eyewitness to the incident,
immediately rushed to the place after the accident. He and
others have made necessary arrangements to send the injured
to the hospital and also co-operated with the jurisdictional
police in conducting the spot mahazar. He affixed his signature
to the spot mahazar which is marked as Ex.P2.
19. P.W.3 has also supported the case of the
prosecution and deposed that the accused was driving the said
vehicle as on the date of the accident and it was being driven
with high speed. However, he did not depose regarding rash
and negligent driving.
20. P.W.4 is stated to be an inmate of an auto rickshaw
and she was proceeding to attend housewarming ceremony
along with her husband. However, she lost her husband in the
said accident.
21. P.Ws.5 and 6 are stated to be eyewitnesses,
however they have turned hostile.
22. P.Ws.7 and 8 are the witnesses to Ex.P2-mahazar
and they have not supported the case.
23. P.W.9 is one of the inmates of the auto rickshaw.
She deposed that the said auto rickshaw got toppled and she
sustained injuries in the said accident. However, she did not
depose as to how the accused was responsible for the said
accident.
24. P.W.10 supported the case of the prosecution and
identified that the accused was driving the said vehicle as on
the date of the accident and further he deposed that he was
one of the inmates of the auto rickshaw. According to him, the
reasons for the said topple of the auto cannot be ascertained.
25. P.W.11 being a Circle Inspector of Sakaleshpura
stated to have conducted investigation and submitted the
charge sheet.
26. P.W.12 being a PSI for the said period stated to
have conducted the partial investigation and handed over the
case files to P.W.11 for further investigation.
27. P.W.13 was working as a police constable said to
have carried the FIR and reached to the Magistrate.
28. On conjoint reading of the evidence of P.Ws.1 to 3,
it appears that they are independent witnesses and also
eyewitnesses to the accident. According to them, the accused
was driving the said auto rickshaw in a rash and negligent
manner and the accident took place while the accused was
crossing the curve road in front of the house of the
Gurumallappa with high speed, as a result of which, the auto
got toppled. These three witnesses are consistent in respect of
rash and negligent driving of the accused. Therefore, it can be
considered that the evidence of these witnesses are believable.
29. On reading of the evidence of other witnesses,
some of them have not supported the case in respect of seizure
of auto rickshaw and spot mahazar. Therefore, their evidence
may not be relevant for consideration. Some of the witnesses
who are stated to be the inmates of the auto rickshaw are
consistent that the accused was driving the said auto on the
date of the said accident. However, they did not depose the
reason for the said topple. The evidence of all the witnesses
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clearly established that the accused was the driver of the said
auto as on the date of the accident.
30. As regards the rash and negligent driving of the
accused of the auto rickshaw is concerned, it can be gathered
from the evidence that the accused was driving the said vehicle
with high speed while he was taking turn in the cross road,
consequently, the auto got toppled. If the accused had taken
reasonable care to minimize the speed, he would have avoided
the said accident. Therefore, inference can be drawn that the
accused was negligent in his driving and he was driving the
vehicle in a rash and negligent manner. Hence, the conviction
in respect of the offences under Sections 279, 304-A of IPC are
necessarily be maintained and interference with the findings of
the Courts below is not necessary.
31. The conviction as regards the offences under
Section 66(1) r/w Section 192-A of Motor Vehicles Act is
concerned, as per the evidence of P.W.1, the auto rickshaw was
required to be plied within the radius of 10 kms., of
Shanivarasanthe. However, the accused was driving the said
vehicle within the jurisdiction of Sakaleshwara Taluk without
having any permit required to be obtained by the concerned
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RTO. Therefore, the conviction of the above said offences is
also required to be maintained. In addition to the violation of
the permit rules, the accused has allowed the passengers to be
seated more than its capacity. As per the permit rules, the
maximum number of passengers permitted to be carried is
three plus one (3+1), however, as per the evidence of inmates,
namely, PWs.4, 9 and 10, there were more than five
passengers, excluding the driver, were traveling in the said
auto. Therefore, the conviction in respect of over load as
stipulated under Rule 21(10) of Central Motor Vehicle Rules
read with Section 177 of Motor Vehicles Act is also required to
be maintained.
32. In the light of the observation made above, I
proceed to pass the following:
ORDER
i. The criminal revision petition is dismissed.
ii. The judgment of conviction and order of
sentence passed by the Courts below are
confirmed.
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iii. The Registry is directed to send the records
to the Trial Court along with a copy of this
order forthwith.
Sd/-
JUDGE
un
