Karnataka High Court
Manjappa Chakrasali vs Stat Of Karnataka on 2 June, 2023
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CRL.RP No. 1615 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 1615 OF 2016
BETWEEN:
MANJAPPA CHAKRASALI
S/O HANUMANTAPPA,
AGED 42 YEARS, OCC. DRIVER, KSRTC, NEKRTC,
NOW WORKING AT HAGARIBOMMANAHALLI,
DEPOT.DIST. BALLARI-583101. ...PETITIONER
(BY SHRI VISHWANATH HEGDE, ADV)
AND:
Digitally
signed by J
MAMATHA
J
Date:
STAT OF KARNATAKA
MAMATHA 2023.05.28
20:09:20 -
THROUGH HADAGALAI POLICE STATION,
0700
HADAGALIL DIST: BALLARI,
REP BY HCGP HIGH COURT OF KARNATAKA,
BENGALURU-560001. ...RESPONDENT
(BY SHRI M.H.PATIL, AGA)
***
THIS CRIMINAL REVISION PETITION FILED U/S.397 R/W
401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT DATED 28.09.2016 PASSED BY THE III ADDL.
DIST. AND SESSIONS JUDGE, BELLARI SITTING AT
HOSAPETTE IN CRL.A.NO. 5024/2015 AND JUDGMENT DATED
12.06.2015 PASSED BY CIVIL JUDGE AND JMFC, HADAGALI IN
C.C.NO.517/2012 AND CONSEQUENTLY THE
ACCUSED/REVISION PETITIONER BE AQUITTED.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING AND THE SAME HAVING BEEN HEARD AND
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CRL.RP No. 1615 of 2016
RESERVED FOR ORDER ON 28.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by judgment of first appellate Court on the file of III Addl. District and Sessions Judge, Ballari, (sitting at Hosapete), in Crl.A.No.5024/2015 dated 28.09.2016 preferred this appeal.
2. Parties to the revision petition are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 02.03.2012 at about 3.45 p.m. on Hadagali-Hirehadagali road at Thippapura village near the land of Mabusab, accused being the driver of KSRTC bus bearing registration No.KA-32/F-1449 drove the same with high speed in rash and negligent manner. On account of the said actionable negligence of accused dashed to TVS XL heavy duty moped bearing registration No.KA-27/U- 8286 driven by Nagya Naik s/o Dakananaik along with pillion rider, mother - Seethavva, from its back side, due to which they sustained grievous injuries and succumbed to such -3- CRL.RP No. 1615 of 2016 accidental injuries. The prosecution alleges that due to actionable negligence of accused in driving the bus, accident in question occurred leading to the death of rider of motorcycle and pillion rider. On these allegations made in the complaint, Investigation Officer on completion of investigation, filed charge-sheet.
4. In response to summons, accused appeared before the trial Court through counsel. The trial Court after being prima facie satisfied framed accusation against the accused. Accused pleaded not guilty and claimed to be tried. Prosecution to prove the accusation leveled against accused relied on the evidence of PWs-1 to 10, Ex.P.1 to Ex.P.13, so also got identified M.O.1.
5. On closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. came to be recorded. Accused has denied all the incriminating material evidence appearing against him and claimed that false case is filed. Trial Court after appreciating the evidence on record has convicted the accused for the offences punishable under Sections 279 and 304(A) IPC read with Section 187 of the Motor Vehicles Act. Accordingly, imposed the sentence as per order of sentence. -4- CRL.RP No. 1615 of 2016
6. Accused challenged the said judgment of conviction and order of sentence before the first Appellate Court on the file of III Addl. District and Sessions Judge, Ballari, (sitting at Hosapete), in Crl.A.No.5024/2015. The first Appellate Court after re-appreciating the evidence on record by judgment dated 28.09.2016 confirmed the judgment of trial Court in convicting the accused and also imposition of sentence.
7. Revision petitioner/accused feeling aggrieved by the judgment of both the Courts below preferred this revision petition contending that the trial Court has not properly appreciated the evidence of PWs-1 to 3 with reference to the spot features at the place of accident recorded in the spot panchanama Ex.P.2 and sketch map Ex.P.12. The mere proof of factum of accident and death of rider of motorcycle and pillion rider by itself cannot be said as substantive evidence to prove actionable negligence on the part of accused in driving the bus leading to the accident in question. The rider of motorcycle was talking on the cell phone, due to which he lost control and came on the way of moving bus, as a result of which accident in question has occurred. The inmates of the bus had no any occasion to witness the actual accident. However, both the Courts below conveniently ignored these -5- CRL.RP No. 1615 of 2016 material aspects of the matter and recorded improper reasons in holding that accused is guilty of the offences alleged against him. The approach and appreciation of oral and documentary evidence by both the Courts below and the findings recorded are contrary to law and evidence on record. Therefore, prayed for allowing the revision petition. Consequently, to set aside the judgment of conviction and order of sentence of both the Courts below. Consequently to acquit the accused from accusation leveled against him.
8. In response to notice, learned High Court Government Pleader appeared for respondent.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence placed on record, it would go to show that the accident in question occurred on 02.03.2012 at 3.45 p.m. on Hadagali - Hirehadagali main road, at Thippapura village near the land of Mabusab. The accused was driver of KSRTC bus bearing registration No.KA-32/F-1449 involved in the accident in question.
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11. It is alleged in the complaint Ex.P.1 that accused being the driver of KSRTC bus bearing registration No.JA-32/F- 1449 drove the same in rash and negligent manner and in the process of overtaking TVS XL heavy duty moped bearing registration No.KA-27/U-8286 dashed from back side, due to which rider of motorcycle and pillion rider fell to the ground and sustained grievous injuries. They were shifted to Hadagali Government Hospital for treatment and subsequently, they succumbed to the injuries sustained in the accident.
12. The oral evidence of PW-1, independent eye-witness to the accident, PWs-2 and 3, inmates of the KSRTC bus driven by accused would go to show that the accused was driving KSRTC bus bearing registration No.KA-32/F-1449 with high speed in rash and negligent manner and dashed against TVS XL heavy duty moped bearing registration No.KA-27/U-8286 from its back side.
13. PW-2 has deposed to the effect that the driver of KSRTC bus in the process of overtaking, dashed against TVS XL heavy duty moped bearing registration No.KA-27/U-8286 from it's back side, due to which the accident in question occurred. PW-2 has further deposed to the effect that after the accident, -7- CRL.RP No. 1615 of 2016 bus bearing registration No.KA-32/F-1449 driven by the accused carried TVS XL heavy duty moped bearing registration No.KA-27/U-8286 to some distance and then stopped due to which the rider of motorcycle and pillion rider suffered injuries and they succumbed to such injuries. The same evidence of PW-2 is vouchsafed by the evidence of PW-3 who is another inmate of the bus driven by the accused. PWs-1 to 3 have been partially declared as hostile witnesses by the prosecution.
14. PW-1 during the cross-examination by the learned APP has admitted that due to negligence of accused in driving the bus, accident occurred and also spoken about the presence of CWs-6 and 7, further police prepared panchanama and seized TVS moped and the bus. PWs-2 and 3 after they being declared as partially hostile witnesses also admitted that the accused being driver of KSRTC bus bearing registration No.KA- 32/F-1449 in the process of overtaking dashed against TVS moped from it's back side due to which accident occurred.
15. PW-4, conductor of the bus driven by accused claims that accused on blowing horn was overtaking TVS moped vehicle and the rider of the motorcycle was talking over cell phone and came in contact with backside wheel of the bus -8- CRL.RP No. 1615 of 2016 due to which accident has occurred. PW-4 naturally to support his colleague has not supported the case of prosecution on the aspect of culpable negligence leading to the accident in question as per the case of prosecution and the evidence of PWs-1 to 3. However, it is pertinent to note that it is not the case of prosecution that accident in question occurred due to rider of motorcycle coming into contact with back wheel of the bus on account of his own negligence while talking over cell phone. The said evidence is against the complaint allegations Ex.P.1 and the evidence of independent eyewitness PW-1, so also the two inmates of the bus, PWs-2 and 3. However, the fact remains that even according to PW-4 also, accident in question occurred while accused was in the process of overtaking the moped driven by Nagyanaik, rider of the motorcycle.
16. PWs-5 and 6 being the panch witnesses to the spot panchanama Ex.P.2 have not supported the case of prosecution for having drawn spot panchanama Ex.P.2. However, their evidence would go to show that they admit their signature on Ex.P.2. PW-6 has admitted his presence in the photograph and admits that CW-1 and CW-7 i.e., co-panch PW-5 signed on the panchanama Ex.P.2. The evidence of Investigating Officer, -9- CRL.RP No. 1615 of 2016 PW-7 would go to show that he has visited the spot and prepared panchanama Ex.P.2 and drawn the handsketch map Ex.P.12, further, seized M.O.1 under the said panchanama. Therefore, from the said evidence placed on record by prosecution, it is evident that PW-7 has prepared spot panchanama Ex.P.2 in the presence of PWs-5 and 6 and seized M.O.1, further, drawn the sketch Ex.P.12. Therefore, the contents of spot panchanama Ex.P.2 and the sketch map Ex.P.12 can be taken into consideration in appreciating the spot features at the place of accident with reference to the evidence of PWs-1 to 3 while deciding the actionable negligence of accused in driving the bus bearing No.KA-32/F-1449 at the time of accident.
17. The contents of spot panchanama Ex.P.2 would go to show that the place of accident is shown by complainant - PW-1. The KSRTC bus bearing registration No.KA-32/F-1449 and TVS XL heavy duty moped bearing registration No.KA- 27/U-8286 were found at the place of accident. The width of road at the place of accident is 18 feet having kachcha road of 5 feet on either side of the road. The road at the place of accident runs from South to North. The bus driven by accused halted after 39 feet from the place of accident and tyre brake
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CRL.RP No. 1615 of 2016marks were found. If the said spot features recorded in the spot panchanama Ex.P.2 and the sketch map Ex.P.12 are taken into consideration and appreciated with the evidence of PWs-1 to 3, then it is evident that accused while driving the KSRTC bus bearing No.KA-32/F-1449 in the process of overtaking the TVS moped did not exercise due diligence and dashed to it from back side, as a result caused the accident leading to death of rider and pillion rider of motorcycle. The bus did not stop immediately after the accident, but carried the TVS moped further to a distance of 39 feet and all throughout that place brake marks could be found. Therefore, from the evidence on record, it is evident that accused did not exercise due diligence while driving the bus bearing No.KA-32/F-1449 in overtaking the moped proceeding in front of the bus. On account of such actionable negligence dashed against the TVS moped from it's back side. Accused could not control the bus and stop immediately at the place of accident. However, the evidence would go to show that TVS moped was carried at a distance of 39 feet even after the accident and both the above referred two circumstances would clearly demonstrate that accused has failed to exercise due diligence while driving the bus at the place of accident and in overtaking TVS moped, due to said
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CRL.RP No. 1615 of 2016actionable negligence caused the accident leading to the death of rider and pillion rider of the TVS moped.
18. The contention of learned counsel for revision petition is that evidence of PWs-1 to 3 cannot be relied, since they were declared as hostile witnesses and another independent eyewitness PW-8 has not supported the case of prosecution, cannot be legally sustained. It is now well settled law that evidence of hostile witnesses cannot be out rightly rejected. The part of such evidence which find support from the material evidence on record can be relied. Otherwise also, evidence of PWs-1 to 3 is consistent with regard to the manner in which the accident took place and KSRTC bus driven by accused dashed from the back side of moped. The oral evidence of PWs-1 to 3, spot panchanama Ex.P.2 and sketch map Ex.P.12 would unmistakably go to show that accident occurred due to actionable negligence of accused in driving KSRTC bus bearing No. KA-32/F-1449, since accused did not exercise due diligence while overtaking the moped proceeding in front of the bus and dashed to it from the back side, as a result of which the accident in question has occurred leading to the death of rider and pillion rider of the motorcycle.
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CRL.RP No. 1615 of 2016
19. Learned counsel for revision petitioner relied on the judgment of Hon'ble Apex Court in STATE OF KARNATAKA VS. SATISH [(1998) 8 SCC 493] wherein it has been observed and held that mere driving of truck with high speed cannot lead to draw inference that driver was negligent or rash in driving the vehicle causing the accident. In the absence of evidence to establish negligence or rashness, the doctrine of res ipsa loquitur cannot be applied to convict the accused.
20. In the present case, there is enough material evidence to establish actionable negligence of accused in driving the KSRTC bus leading to the accident in question. Accused while overtaking the moped proceeding in front of the bus, did not exercise due diligence and dashed from back side, further the TVS moped was carried for a distance of 39 feet from the place of accident which would suggest that accused could not control the bus and stop immediately after the accident. It is on account of such negligence the accident in question has occurred. Therefore, the principles enunciated in the aforesaid decision of the Hon'ble Apex Court has no application to the facts of the present case. The Courts below have rightly appreciated the evidence on record and arrived at a just and proper conclusion in holding that accident in question
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CRL.RP No. 1615 of 2016occurred due to actionable negligence of accused in driving the vehicle. The Courts below were also justified in imposing the sentence and the said sentence to run concurrently and the same does not call for interference of this Court. Consequently, proceed to pass the following:
ORDER Criminal Revision Petition filed by accused is dismissed. The judgment of the first Appellate Court on the file of III Addl. District and Sessions Judge at Ballari, (sitting at Hosapete) in Crl.A.No.5024/2015 dated 28.09.2016 which confirmed the judgment of trial Court on the file of Civil Judge and JMFC, Hadagali, in C.C.No.517/2012 dated 12.06.2015 is hereby confirmed.
The registry is directed to transmit the records with the copy of this judgment to trial Court.
(Sd/-) JUDGE Jm/-