Karnataka High Court
Basavaraj @ Basappa S/O Ramappa ... vs The State Of Karnataka, on 25 September, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.R.P. NO.2299/2011
BETWEEN
BASAVARAJ @ BASAPPA
S/O RAMAPPA SANNINGANNAVAR
AGE: 26 YEARS, OCC: DRIVER,
R/O. TUPPADAKURAHATTI,
TQ: NAVALGUND, DIST: DHARWAD
... PETITIONER
(BY SMT.PADMAJA TADAPATRI ADV.,
FOR SRI.K.L.PATIL, ADV.,)
AND
THE STATE OF KARNATAKA
THROUGH MULGUND POLICE STATION,
MULGUND.
... RESPONDENT
(BY SRI.PRAVEEN UPPAR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. TO SET ASIDE THE ORDER OF
CONVICTION PASSED BY THE LEARNED II ADDITIONAL CIVIL
JUDGE (JR.DN.) AND JMFC COURT, GADAG IN C.C. NO.1/2007
DATED 4/8/2007 AND ALSO SET ASIDE THE UPHOLDING
ORDER OF CONVICTION PASSED BY THE DISTRICT AND
SESSIONS JUDGE, GADAG IN CRL.APPEAL NO.37/2007 DATED
4/8/2011.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
This criminal revision petition is filed questioning the validity of the judgment passed in C.C.No.1/2007 dated 04.08.2007 on the file of the II Additional Civil Judge (Jr.Dn.) and JMFC, Gadag (hereinafter referred to as the 'trial Court'), which was confirmed in Crl.A.No.37/2007 by the District and Sessions Judge, Gadag (hereinafter referred to as the 'First Appellate Court'), whereby the revision petitioner was convicted for the offences punishable under Sections 279, 337, 338, 304(A) of Indian Penal Code (hereinafter referred to as 'IPC') and Section 134 read with Section 187 of Motor Vehicles Act (hereinafter referred to as the 'Act').
2. The brief facts, which are necessary for disposal of the criminal revision petition are as under:
A First information came to be lodged by one Azij Doddamani (Ex.P.2) with Gadag Rural police station alleging that on 05.09.2006 at about 2.30 p.m. near Dodda Halla Pool, the petitioner being the driver of bus -3- bearing No.KA-26/3771 drove the bus towards Mulgund from Gadag in a high speed and in a curve road could not control the bus and dashed against the tipper lorry bearing No.KA-31/1002, which was moving in the opposite direction resulting in an accident, wherein four persons by name Meenakshi, Vinod, Basavaraj, Fazulsab died on the spot and other passengers sustained injuries and sought for taking necessary action against the driver of the bus. Gadag rural police conducted detailed investigation and filed the charge sheet against the petitioner herein. In view of petitioner denial of plea, trial was held.
3. Before trial Court, the prosecution examined six witnesses as PWs.1 to 6 and relied on documentary evidence vide Exs.P.1 to 23. After recording the evidence, statement of the accused as contemplated under Section 313 of Cr.P.C. was recorded; wherein the petitioner denied all the incriminatory circumstances, -4- which were found against him. He did not choose to lead any evidence on his behalf.
4. On cumulative consideration of the oral and documentary evidence on record and after hearing the parties, the learned Magistrate convicted the petitioner for the offences punishable under Sections 279, 337, 338, 304(A) of IPC and Section 134 read with Section 187 of the Motor Vehicles Act.
5. Being aggrieved by the said judgment, the petitioner preferred Crl.A.No.37/2007 before Sessions Court. First Appellate Court after securing the records and hearing the parties confirmed the judgment of trial Court. This revision petition is filed by accused being aggrieved by both the judgments.
6. Smt.Padmaja Tadapatri, learned counsel for the revision petitioner, vehemently contended that the learned Magistrate as well as the First Appellate Court have grossly erred in law in convicting the accused for -5- the offences alleged against him. She further contended that the evidence on record is not properly appreciated by both the Courts. She argued that the prosecution witnesses suppressed the material facts and did not place true facts before the trial Court, which resulted in miscarriage of justice. Further she points out that Ex.P.21-sketch would demonstrate that the place of accident is a curved road resulting in the accident as an error of judgment by the accused and which fact has been ignored by trial Court as well as the First Appellate Court and sought for allowing the revision petition.
7. Per contra, the learned HCGP, Sri. Praveen Uppar supports the impugned judgments contending that in the absence of any defence evidence or offering any explanation as to the cause of accident, the revision petitioner cannot be permitted to say that he is not guilty of the offences alleged against him. -6-
8. He further submitted that the petitioner did not take necessary precaution in driving the public transport vehicle, especially when the road is curved road as is depicted in Ex.P.21-sketch. He also points out that the speed is not the only criteria for assessing the rashness of the driving and if petitioner had driven the bus with necessary care and caution, the accident itself would not have occurred.
9. He also drew the attention of this court to IMV report, wherein it is mentioned that left side of the bus is damaged and the right side of the tipper is also damaged, which would have occurred while overtaking the lorry in a curved road negligently and prayed for dismissal of the revision petition.
10. Having heard both the parties, the sole point that would arise for consideration is:
1. Whether the finding of the trial Court holding the revision petitioner guilty of the -7- offences punishable under Sections 279, 337, 338, 304(A) of IPC and Section 134 read with Section 187 of Motor Vehicles Act, confirmed by the First Appellate Court is suffering from legal infirmities or perversity?
11. The answer to the above point is in negative for the following:
REASONS
12. In order to prove the accident, the prosecution placed its reliance on the complaint averments and also the oral evidence of PW.2, who is the complainant. In Ex.P.2, complaint it has been deposed by PW.2 in clear and categorical manner that he was driving the tipper lorry on the left side of the road and the offending bus which was driven by the petitioner came in a rash and negligent manner and collided to the hind portion of the tipper on the right side, resulting in an accident and the passengers of the bus fell down. He also deposed that after the accident, -8- the bus did not stop and it proceeded for about 200 meters. He is also an injured in the same accident.
13. In the cross-examination, no doubt he admits that the front side of the bus did not touch the tipper lorry. He denies that the bus was on the left side of the road. He denies that the accident has not happened on account of the driver of the bus.
14. Injured eye witnesses in the same accident are PW.3 and 4. They have deposed that the accident has occurred on account of the rash driving of the bus. In their cross-examination, no useful materials are elicited.
15. It is pertinent to note that based on the oral testimony of PWs.1, 3 and 4 and the IMV report marked at Ex.P.23 and the sketch at Ex.P.21, the trial Court found that it is the negligence on the part of the petitioner which has resulted in an accident and held that the prosecution has proved the charges leveled -9- against the petitioner beyond reasonable doubt and convicted the petitioner.
16. First Appellate Court did discuss the infirmities pointed out on behalf of the revision petitioner in detail and answered them with cogent and convincing reasons.
17. In order to constitute an offence punishable under Section 279 IPC, the following ingredients are to be established by prosecution:-
(I) There must be rash or negligent
driving or riding;
(II) It must be on a public way; &
(III) The driving or riding must be in a manner as rash or negligent so as to endanger human life or to be likely to cause hurt or injury to any person other than the driver.
18. Similarly, to constitute an offence punishable under Section 304A IPC, it is necessary for -10- the prosecution to establish that the death is caused by rashness or negligence.
19. In order to determine whether alleged act of the accused amounts to rash and negligent act, Hon'ble Apex Court in Naresh Giri v. State of M.P reported in (2008) 1 SCC 791 held as under:
"7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not -11- be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence -12- which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (p. 3) as follows:
"1. General principles of the law of negligence- Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of -13- foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two."
20. It is pertinent to note that the driver of the tipper lorry, who being the injured (complainant) and PWs.3 and 4, who are also injured witnesses have all attributed the guilt of the petitioner. They did not possess any previous enmity or animosity against the revisionist. Further, as is observed in Naresh Giri supra over speeding is not necessary to constitute rash driving. It is deposed by PWs.1 to 3 that accused drove the bus in a rash and negligent manner resulting in -14- accident. Defence of revision petitioner is, since the road was curved road it was impossible for him to drive in high speed. But the petitioner being the driver of the offending bus was required to explain his version as to the accident before trial court. For the reasons best known he did not do so while recording the accused statement or by leading defence evidence in this regard. It is well settled proposition of law that 'rash driving' need not always be construed as high speed. But rash act is primarily an overhasty act. Failure to exercise the required care and caution expected of a driver of public transport vehicle would itself constitute a negligent driving.
21. In this regard, this Court places reliance on the principles of law enunciated by the Hon'ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284. -15-
22. Relevant portion of the said judgment is culled out hereunder:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
23. On applying the principles of law enunciated in the above decision to the facts of this case, the petitioner was duty bound to explain the incriminatory circumstances found against him in the prosecution -16- evidence and also required to offer his explanation about the accident. In the absence of any such explanation offered by him, this court does not find any legal infirmity in the finding recorded by the learned Magistrate which is confirmed by the First Appellate Court.
24. No other point is urged by the revision petitioner to hold that the impugned judgments are incorrect or suffering from legal infirmity or perversity. Hence the conviction order is to be maintained.
25. But, on perusal of the sentence ordered in the impugned judgment, the learned Magistrate has ordered for rigorous imprisonment for two years. First Appellate Court did not consider in its judgment about the sentence was proportionate.
26. Learned counsel for revisionist submitted that sentence of rigorous imprisonment is excessive in view of admission of PW.1 in his cross examination. -17-
27. This Court finds force in the argument advanced on behalf of the petitioner that sentencing the petitioner for rigorous imprisonment for two years is not based on sound reasons. The reasoning recorded in paragraph No.33 of the judgment of the trial Court to the effect that the maximum punishment to be imposed on the accused would be rigorous imprisonment. But why rigorous imprisonment is to be imposed on the accused is not supported by any reasons much less sound and appropriate reasons. It is admitted by PW.1 that the front side of the bus did not touch the tipper lorry. Therefore, to that extent revisionist had exercised care. What happened thereafter to collide with the tipper so as to result in accident, no evidence is available on record. As discussed supra revisionist did not explain the same in accused statement nor stepped into witness box to offer an explanation. -18-
28. In view of foregoing discussion, this Court is of the considered opinion that the sentence as ordered by the trial Court needs to be modified to the extent that the revisionist has to undergo simple imprisonment for two years and not rigorous imprisonment for two years as ordered by the trial Court.
29. Thus, impugned judgment stands modified to the above said extent by allowing the criminal revision petition in part.
Sd/-
JUDGE Sh