Gujarat High Court
Chandubhai Bhanubhai Rathod (Rajput) vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 1134 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
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Approved for Reporting Yes No
✔
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CHANDUBHAI BHANUBHAI RATHOD (RAJPUT)
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK G. NANAVATI, ADVOCATE FOR NANAVATI & CO.(7105) for
the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 02/05/2025
ORAL JUDGMENT
[1] Present revision application is preferred under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") assailing the correctness and validity of order dated 24.11.2017 passed by the learned 3rd Additional Sessions Judge, Gandhidham - Kutch Page 1 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined (hereinafter referred to as "the Appellate Court") in Criminal Appeal No.07 of 2015, which inter alia confirmed the judgment and order dated 13.03.2015 passed by the learned Additional Chief Judicial Magistrate, Gandhidham - Kutch (hereinafter referred to as "the Trial Court") in Criminal Case No.5220 of 2007. By way of judgment and order dated 13.03.2015, the Trial Court convicted present applicant for the offences punishable under Sections 304-A, 279, 337 and 338 of the Indian Penal Code (hereinafter referred to as "the IPC") and Sections 177 and 184 of the Motor Vehicles Act (hereinafter referred to as "the M.V.Act") and had sentenced the applicant to undergo two years rigorous imprisonment alongwith fine of Rs.10,000/-.
[2] The brief facts leading to filing of the present revision application are that as per the case of prosecution, the applicant was riding his motorcycle on the correct side of the road on 05.10.2007 at around 12.30 hours. One Karansinh Devda suddenly attempted to cross the road as a pedestrian. As Karansinh Devda suddenly tried to cross the road collusion took Page 2 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined place between the applicant and Karansinh. Both persons sustained injuries in the accident. Eventually, Karansinh Devda succumbed to injuries. Pursuant to the incident, a First Information Report came to be lodged by one Shailendrasinh Sajubha Parmar, being C.R. No.380 of 2007. Subsequent to the filing of the First Information Report, investigation took place and charge-sheet came to be filed, which culminated into Criminal Case No.5220 of 2007. After hearing the parties and perusing the material on record, the Trial Court by way of judgment and order dated 13.03.2015 found the applicant guilty for offences punishable under Sections 304-A, 279, 337 and 338 of the IPC and Sections 177 and 184 of the M.V.Act and was sentenced to undergo two years of rigorous imprisonment alongwith fine of Rs.10,000/-.
[2.1] Being aggrieved by the judgment and order passed by the Trial Court, the applicant preferred an appeal under Section 374 of the Code before the Appellate Court. The appeal came to be numbered as Criminal Appeal No.07 of 2015. By way of impugned judgment and order dated 24.11.2017, the Appellate Page 3 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined Court rejected the appeal and confirmed the judgment and order dated 13.03.2015 passed by the Trial Court which has culminated into present revision application. [3] Heard Mr. Maulik G. Nanavati, learned advocate appearing for the applicant and Mr. Hardik Soni, learned Additional Public Prosecutor for the State - Respondent. [4] It has been submitted by Mr. Maulik G. Nanavati, learned advocate appearing for the applicant that the judgments and orders passed by both the Trial Court as well as the Appellate Court are contrary to the evidence on record and based on an erroneous and absolute misreading of evidence. Both the courts have committed a grave error of law and fact in convicting the present applicant. The impugned judgments and orders are not in accordance with law and are inconsistent with the oral and documentary evidence on record. It was further submitted that both the courts below have erred in holding that the applicant was driving rashly and negligently on the public road and that death of the deceased had occurred solely and exclusively Page 4 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined because of such rash and negligent act. According to Mr. Nanavati, learned advocate, such findings, if any, are perverse and reflect a complete misreading of the evidence on record. It was further submitted that no forensic evidence was collected by the investigating agency to establish that the motorcycle was being driven at a high speed. It was further submitted that deceased was not crossing the public road at the pedestrian crossing and in fact was a wayfarer. The courts below have failed to appreciate that if a person suddenly crosses road without taking note of an approaching vehicle and gets knocked down by the vehicle then the driver of the vehicle cannot be held responsible for an offence under Section 304-A of the IPC. As a matter of fact, the panchnama at the scene of offence clearly reveals that the motorcycle did not drag the deceased person. Further, perusal of the medical report reveals that the applicant has sustained injuries on the left side. If the applicant had not taken care both the deceased as well as the applicant would have collided with the road breaker on the road. As a matter of fact, the applicant had tried to save the deceased and for the same, had sustained injuries himself. It was further Page 5 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined submitted that the testimony of the eye-witnesses being relatives of the deceased was sole ground to come to a conclusion that the applicant has committed the offence. In the facts and circumstances of the present case, the situation as a whole need to be looked into. In view of such submission, Mr. Nanavati, learned advocate has prayed to quash and set aside the order passed by the Appellate Court as well as the judgment and order passed by the Trial Court.
[5] Per contra, Mr. Hardik Soni, learned Additional Public Prosecutor has submitted that there are two eye witnesses to the incident. The factum of incident taking place is not doubted. The ownership of the vehicle of the applicant is not doubted. The fact with regard to present applicant being involved in the incident which led to a death of a human being is not doubted. The panchnama supports the case of prosecution and therefore, in facts of such case, the powers of revisional jurisdiction should not be exercised. In wake of such submission, Mr. Hardik Soni, learned Additional Public Prosecutor has submitted that the present application is devoid of merits and further there are Page 6 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined concurrent findings, and therefore, the present revision application should be dismissed.
[6] Having heard learned advocates appearing for the respective parties and after perusing the material on record, certain things are not in dispute. The issue of incident in question is described through the witnesses. The panchnamas as well as other investigation papers clearly reveal about the incident. However, the core question is not with regard to the fact of the incident, but is with regard to the intent of the incident which can lead to conviction under Sections 304-A and 279 of IPC. The controversy in question is to determine whether the courts below have arrived at a just conclusion in holding that the incident in question and the actions of the applicant would fall under the purview of parameters of Section 304-A of IPC. Therefore, issues raised by Mr. Nanavati, learned advocate, dwelves upon misreading of evidence rather than re- appreciation of evidence. This Court is conscious of the fact that re-appreciation of the evidence is not permissible under revisional jurisdiction.
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NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined [7] The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles under for Section exercise 397 of the Cr.P.C. revisional were jurisdiction highlighted in D. Stnbens Vs. Nosibolla [1951 SCR 284] as also in K. C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional power of the High Court under Sections 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisional power, undertake in- depth and minute re-examination of entire evidence. However, in the present case, the issue raised by Mr. Maulik Nanavati, learned advocate for the applicant is with regard to misreading of evidence to bring the present case in the purview of Section 304-A of the IPC.
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NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined [8] In facts of present case, to constitute an offence under Sections 279 and 304-A of IPC, the foremost and essential ingredient as well the biggest parameter constitute an action of rash and negligent driving. "Rashness" consists of an act with the knowledge that may cause injury and "negligence" on the other hand is failure to exercise reasonable and proper care or precaution to guard against injury to an individual. To avoid coming in the forecorner of "negligence", an individual must take reasonable care to avoid an act or exercise care for omission of an act which is likely to cause physical injury to persons or property. The degree of care required in particular case depends on the surrounding circumstances, and may vary according to the magnitude of the prospective injury. Further to constitute negligence, there must be of high degree or "gross conduct".
[9] Other aspects, which are required to be observed in the instant case are qua the observations made by the Trial Court as well as the Appellate Court. The only reason given by the Trial Court are at pages 17 and 18 of the paper-book. The reason Page 9 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined recorded by the Trial Court pertains to the fact that there were two eye witnesses and they have identified the applicant. Further, it has been observed that the applicant did not make any effort to caution the deceased by sounding the horn or applying breaks. Other reason recorded by Trial court is that the applicant had no right whatsoever to take a life of a pedestrian. Unfortunately these are the only reasons recorded by the Trial Court. The moot question, however, ought to have been whether the incident in question involved an act on the part of the applicant which resulted into gross negligence and whether such act comes in parameters of Sections 304-A and 279 of IPC. This aspect is neither dwelved upon by the Trial Court nor the Appellate Court. The reasons recorded by the Appellate Court are from pages 9 to 11 of the paper book. The Appellate Court, like the Trial Court also relies on two testimonies of the witnesses who were present and on the basis of that testimonies, the Appellate Court has concluded that the applicant was involved in an act of offence as prescribed under the Sections 304-A and 279 of the IPC. Therefore, the parameters required for convicting the accused under Sections Page 10 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined 304-A and 279 of the IPC are not considered by both the courts below.
[10] In the instant case, there is no doubt regarding the occurrence of the incident. The deceased had passed away due to a collision with vehicle i.e. the motorcycle of the present applicant. However, certain other parameters which conclusively comes on record are that;
(a) The vehicle of the applicant was not going on the wrong side of the road.
(b) The deceased was crossing as a pedestrian and on the main road and not on zebra crossing.
(c) There is no documentary evidence to show that the applicant was driving at full-speed or a rash speed.
(d) The victim had suddenly crossed the road in a hurry which has resulted into the accident. Further looking to the scene of offence panchnama, there are no drag marks. Page 11 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025
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(e) Even the applicant has injured himself while avoiding the incident and falling on the wrong side of the vehicle which clearly indicates that he had tried to avoid the incident.
(f) There is nothing on record to prove the aspect that act of the applicant was negligent enough which has resulted in the incident. As a matter of fact, it is not disputed that victim made an attempt to cross road with moving traffic, which has resulted in the accident.
(g) The body of the victim was not dragged but due to the collision from the accident, his head banged with the road which resulted into sustaining head injury.
All these factors gets transpired from testimonies of both the eye witnesses as well as the scene of offence panchnama. The facts mentioned hereinabove are enough to come to conclusion that the act of the applicant was not rash and negligent. The courts below have failed to consider all these mitigating factor and has convicted the applicant on total Page 12 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined misreading of evidences and further without giving cogent reasons for conviction under Section 304-A and 279 of the IPC. [11] Certain judgments cited by Mr. Nanavati, learned advocate will shed light on the present controversy. In case of Jaspriya Bhasin versus State (NCT of Delhi) and others reported in 2022 SCC OnLine Delhi 2345, the issue rashness and negligence are discussed.
"17. In the present case, the petitioner is accused of committing offence under Sections 279 and 304A IPC. In order to constitute an offence punishable under Section 279 IPC, the following ingredients must be made out:-
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 so rash or
negligent so
18. Similarly, to constitute an offence punishable under Section 304A IPC, it is necessary that the element of 'rash or negligent act' is established. In addition-
i) there must be death of the person in question;
ii) the accused must have caused such death; and
iii) the act of the accused must have been rash or negligent, though not amounting to culpable homicide. Page 13 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025
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19. In Rathnashalvan (Supra), the Supreme Court has elaborated on the law surrounding cases of rash and negligent acts and distinguished between 'rashness' and 'negligence' in the following terms:-
"7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause Page 14 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
9. The distinction has been very aptly pointed out by Holloway J. in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of Page 15 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined circumspection." (See Nidamarti Nagabhushanam, In re, Mad HCR pp. 119-20.)"
20. The nature and scope of Section 304A IPC was also discussed in Naresh Giri (Supra), wherein the Supreme Court held as follows:-
"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 wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not 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 Page 16 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined 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 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 Edn.), Vol. 34, Para 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 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 Page 17 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined 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"."
21. In Jacob Mathew v. State of Punjab and Another reported as (2005) 6 SCC 1, while holding that the rashness or negligence punishable under Section 304A IPC should be of such a high character as to be 'gross', the Supreme Court observed:-
"48. We sum up our conclusions as under:
...(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-
A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high Page 18 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly"."
22. Considering the facts of the present case, I deem it apposite to also refer to the observations made by the Supreme Court in State of Karnataka v. Satish (Supra), wherein the importance of the prosecution establishing guilt of the accused in a case of rash and negligent driving was discussed:-
"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'. ..."
(emphasis added) Page 19 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined [12] In the case of Braham Das versus State of Himachal Prades reported in (2009) 7 SCC 353, the Hon'ble Apex Court observed that, "Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Sections 279 or 304 -A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved." An act, in order to impose criminal liability under Section 304-A IPC must be the proximate and efficient cause without the intervention of the negligence of the other. In the present case, it is palpably clear that both the brothers were for the first time driving a scooter to a distant place, one of them even with a pillion rider, on a public road having heavy traffic Page 20 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined and there is no evidence to show whether they both were complying with the requirements of the Motor Vehicles Act and wearing the safety helmets, the fatal injury being on the head. [13] In the case of G. Vishwanth versus The State of Karnataka reported in 2023 KHC 26549, it was observed by Karnataka High Court that there is no provision for pedestrian to cross the road and when the victim suddenly crosses the road in a hurry and if there is no zebra crossing and if such incident is resulted into an accident which the accused cannot anticipate then he would not liable to an offence under Sections 304-A and 279 of the IPC. Paras 10 and 15 of the aforesaid judgment are reproduced hereinafter:-
"10. The learned counsel for the revision petitioner would contend that, both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective. He would contend that except PW3, there are no other independent eyewitnesses examined and the evidence of PW3 does not inspire the confidence of the Court. He would also submit that the accident has taken place when the vehicle was moving downward ramp on a flyover and when there was no provision for pedestrian to cross the road, the victim suddenly came across the road Page 21 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined in hurry, which resulted in accident and the accused could not anticipate accident, as there was no zebra crossing. Hence, he would contend that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and the learned Sessions Judge on presumptions and assumptions held that, there is a negligent act on the part of the driver which has resulted in miscarriage of justice. Hence, he would seek for allowing this revision petition by setting aside the impugned judgment of conviction and order of sentence passed by both the Courts below.
15. At the accident spot, the road is running from east to west. The accused was driving the vehicle from east towards west and he was moving downwards in flyover ramp. There is a road divider in between and there is no provision for taking right turn. Though there is a road joining to the junction moving towards Uttaradi Mutt at north side. The left road is moving towards DVG road and the accused was driving the vehicle from east towards west. There is no scope to take turn towards northern side as there is a divider and only course open is to move straight or on the left towards the south side i.e., towards DVG road. The driver was driving the vehicle close to the northern edge of the road divider. Admittedly, there is no zebra crossing and the sketch as well as the admission given by PW3 clearly disclose that the deceased crossed the road and then crossed the road divider and then she suddenly came across on the road which was moving towards Vanivilas Road when she was hit by the offending vehicle. The deceased Page 22 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined ought not to have crossed the road when there is no provision for crossing the road. The entire road was divided by road divider and there is no provision for pedestrian to cross the road. In spite of that, the deceased crossed one road and she came from the Bank of Maharashtra Circle and jumped the divider and without waiting, suddenly came across the road in order to move towards Jyothi Prakash Stores on the southern side, which has resulted in the accident. The driver is not expected to anticipate the pedestrian crossing by jumping the road divider and hence, the rash and negligent act cannot be attributed to the driver of the offending vehicle. No doubt there was no wall constructed at the time of the accident though there was a divider and it has come in evidence that subsequently, wall was constructed with an intention to avoid the pedestrian using this path as a short cut method."
[14] Therefore, in view of the facts on record, it is not in doubt that the deceased has suddenly crossed the road when there was no zebra crossing and traffic was moving. There was no drag marks of the vehicle. There is no document on record to prove that the vehicle of the applicant was going on at full- speed. The testimonies of two witnesses do not narrate the incident in a way which can conclusively derive that applicant was involved in rash and negligent driving. Therefore, the Page 23 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025 NEUTRAL CITATION R/CR.RA/1134/2017 JUDGMENT DATED: 02/05/2025 undefined reasons and finding given by the Appellate Court and the Trial Court are complete misreading of the evidence or to say complete non-reading of evidence.
[15] In view of the reasons given hereinabove, the orders passed by the Appellate Court and the Trial Court are contrary to settled principles of law and complete misreading of evidence and therefore are required to be quashed and are hereby quashed and set aside. The applicant is acquitted for the offence under Sections 304-A, 279, 337 and 338 of the IPC and Sections 177 and 184 of the M.V.Act. The present revision application is allowed accordingly. Rule is made absolute. The record and proceedings shall be sent back to the concerned Trial Court forthwith.
Sd/-
(PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 24 of 24 Uploaded by DHARMENDRA KUMAR(HC01071) on Tue May 27 2025 Downloaded on : Fri May 30 21:35:18 IST 2025