Karnataka High Court
Mr. Gautham V vs State Of Karnataka on 25 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:8398
CRL.RP No. 1129 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1129 OF 2022
BETWEEN:
1. MR. GAUTHAM V.,
AGED ABOUT 25 YEARS
S/O VASU POOJARY
R/O 11-113-86/1
BRAHMARI NILAYA
ULLANJE VILLAGE MENNABETTU
KINNIGOLI
MANGALURU-575 003.
...PETITIONER
(BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR
SRI. VENKATESH SOMAREDDI, ADVOCATE BY
M/S. PP HEGDE ASSOCIATES)
AND:
Digitally signed
by DEVIKA M 1. STATE OF KARNATAKA
Location: HIGH BY TRAFFIC NORTH POLICE STATION
COURT OF MANGALURU
KARNATAKA
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
...RESPONDENT
(BY SRI. M. DIVAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.10.2021
PASSED BY THE COURT OF J.M.F.C (II COURT), MANGALURU IN
C.C.NO.3949/2017, WHEREBY THE PETITIONER HEREIN IS
HELD GUILTY OF THE OFFENCE PUNISHABLE UNDER SECTION
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CRL.RP No. 1129 of 2022
279 AND DIRECTED TO PAY A FINE OF RS.1000/- AND IN
DEFAULT TO PAY A FINE TO UNDERGO SIMPLE IMPRISONMENT
FOR A PERIOD OF 10 DAYS AND HE IS ALSO HELD GUILTY OF
THE OFFENCE UNDER 304A OF IPC AND FURTHER DIRECTED
TO UNDERGO SENTENCE OF SIMPLE IMPRISONMENT FOR A
PERIOD OF SIX MONTHS AND PAY A FINE OF RS.5000/- AND
IN DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF THREE MONTHS AND TO SET ASIDE THE ORDER OF
CONFIRMATION OF THE CONVICTION AND SENTENCE DATED
22.07.2022 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.144/2021
AND CONSEQUENTLY ACQUIT THE PETITIONER ACCUSED OF
THE OFFENCES PUNISHABLE UNDER SECTION 279 AND 304A
OF IPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for petitioner and learned counsel for respondent.
2. The factual matrix of case of the prosecution before the Trial Court is that on 30.08.2017 at about 9.10 am, accused on his motorcycle bearing Reg.No.KA.19-EU-715 drove the vehicle in a rash and negligent manner. As a result, he dashed against the women, who was crossing the road from west to east on the National Highway and when she was reaching the edge of the road, accused dashed against deceased Smt. Varija and she fell down and succumbed to the -3- NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 injuries. The police have registered the crime in Crime No.204/2017 for the offence punishable under Sections 279 and 338 IPC and thereafter, on account of death of deceased, invoked the offence punishable under Sections 304A IPC. The police after investigation, secured the accused and accused did not plead guilty.
3. The prosecution examined the witnesses as P.Ws.1 to 6 and marked the documents as Exs.P1 to P13. The Trial Court having considered the material on record, particularly the evidence of P.Ws.1 and 2 and also P.W.3, who also claimed to be eye witness and partly supported the case of the prosecution and having considered the sketch which is marked as Ex.P4 and spot mahazar, comes to the conclusion that accident has occurred on account of negligence on the part of rider of the motorcycle and convicted and sentenced the petitioner for a period of six months for the offence punishable under Section 304-A IPC and imposed fine of Rs.5,000/- and imposed fine of Rs.1,000/- for the offence under Section 279 IPC and in default of payment of fine, to undergo simple imprisonment for a period of ten days.
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NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022
4. Being aggrieved by the said order, an appeal is filed before the First Appellate Court in Crl.A.No.144/2021 and the First Appellate Court also having reassessed both oral and documentary evidence placed on record, comes to the conclusion that P.Ws.1 and 2 deposes that P.W.1 was standing bear Mukka Check post bus stand and P.W.2 was travelling on his own motorcycle in the same road and both of them deposed that accident has occurred due to negligence on the part of rider of the motorcycle. Having considered Exs.P3 and P4- mahazar and sketch respectively, confirmed the order of the Trial Court. Hence, the present revision petition is filed before this Court.
5. The main contention of learned counsel for the petitioner before this Court is that once the offence under Section 279 IPC is invoked and the same merges with the serious offence of 304A IPC, particularly invoking Section 279 IPC does not arise as the ingredients are one and the same. Learned counsel would contend that there are several inconsistencies in the statement of witnesses pertaining to alleged accident and vehemently contend that the Trial Court and the First Appellate Court have lost sight of the document of -5- NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 Ex.P4 which clearly depicts the place of accident i.e., in the middle of the road in the direction in which the rider of motorcycle was proceeding and the accident is not on the edge of the road as contended by the prosecution. Apart from that, counsel brought to notice of this Court that there are admissions in the cross-examination of P.Ws.1 and 2 that there was no zebra crossing and no provision was made to cross the road in the place of accident and suddenly, victim rushed to the road, in order to cross the road. Learned counsel also brought to notice of this Court that though there is a road divider in between both the roads, the same is a straightway and the accident has occurred on account of the negligence on the part of the deceased herself, since she rushed to the road without observing movement of the vehicles. Hence, it requires interference of this Court by exercising revisional jurisdiction.
6. Per contra, learned HCGP for the respondent-State would contend that the place of accident is depicted in the sketch at Ex.P4 which discloses that there are houses and a bus stand. When such being the case, rider of the motorcycle ought to have driven the vehicle in a slow manner. P.Ws.1 and 2 categorically depose the manner in which rider of the -6- NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 motorcycle drove the vehicle and accident is on account of rashness on his part while driving the vehicle and the Court has to take note of place of accident and spot mahazar clearly discloses that the victim was thrown away from the spot and motorcycle had fallen on the other end of the road. Hence, both the Courts have taken note of the material on record, in coming to such a conclusion and that order of the Trial Court as well as the First Appellate Court does not require any interference.
7. Learned counsel for petitioner in reply to the arguments of the learned HCGP for the respondent-State, relied upon the judgment of the Apex Court in MAHADEO HARI LOKRE VS. THE STATE OF MAHARASHTRA reported in (1972) 4 SCC 758 and brought to notice of this Court paragraph No.4, wherein also in the similar set of facts, when the deceased made an attempt to cross the road, an accident occurred, the Apex Court observed, that would mean that if Ravikant suddenly crossed the road from West to East without taking note of the approaching bus there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road the bus driver, however, slowly he may be -7- NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent.
8. Learned counsel also relied upon the Judgment in K.SRINIVAS VS. STATE OF KARNATAKA reported in 2002 SCC ONLINE KAR 708 and brought to notice of this Court paragraph No.4, wherein the Apex Court observed that in fact there are road dividers put on the platform road from the circle to an extent of 40 ft. The manner of accident as per sketch and the recitals in the panchanama does not disclose that the driver of the bus alone can be castigated for the accident in question. It appears that the driver of the moped has also contributed for causation of the accident. The contributory negligence in realm of torts may be an extenuating circumstance to mitigate the liability to pay the damages but that cannot a sole decisive factor to avoid the liability of compensation. However in criminal jurisprudence if the victim has also contributed for causation of the accident by contributory negligence and in the absence of any material to show that only on account of rash and negligent driving of the accused/driver the accident has occurred, it would not be -8- NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 permissible under such circumstances to hold the accused/ driver guilty of committing an offence under Section 279 and 304-A of I.P.C. Since the contributory negligence of the victim or deceased affords as an intervening circumstances but for if the accident could not have happened. However, the law keeps a clear distinction between cases of composite negligence and contributory negligence. Whereas in a case of contributory negligence, no penal liability can be fastened on the accused/driver. Learned counsel referring these two judgments would vehemently contend that principles of these two judgments are aptly applicable to the case on hand.
9. Having heard learned counsel for the petitioner and learned HCGP for the respondent-State, the points that would arise for consideration of this Court are:
(i) Whether both Trial Court and the First Appellate Court have lost sight of the manner in which the accident has occurred and whether it is on account of negligence on the part of the petitioner or on account of negligence on the part of the victim and whether it requires interference of this Court by exercising revisional jurisdiction?-9-
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(ii) What order?
10. Having heard learned counsel for petitioner and learned HCGP for the respondent-State and also considering the material facts, the charges made against the petitioner is that he drove the vehicle in a rash and negligent manner and dashed against a women, who was crossing the road. No doubt, it is the case of the prosecution that in NH-66, when Smt. Varija was crossing the road from west to east, when she reached edge of the road, accused dashed against her and she fell down on the road and succumbed to the injuries. The fact that she died on account of injuries is not in dispute and the Court has to take note of Ex.P4 to analyze whether case of the prosecution is correct or not. On perusal of Ex.P4 also, it indicates clearly that she crossed the road from west to east and towards west also, there is a road and the road is having a divider and from west, she crossed the road divider and thereafter, crossed the road towards east. No doubt, accident has occurred on the edge of the road, but the fact is that, when there is no provision to cross the road in the said place, the victim ought not to have crossed the road and the fact that NH- 66 is a National Highway is not in dispute. When there is no
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NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 zebra crossing and no provision to cross the road, she suddenly crossed the road from west to east and the said road is a National Highway. The evidence of P.W.1 is that he was standing near the bus stand and in the cross-examination, he categorically admits that the victim crossed the road, where there is no zebra crossing road and there was no traffic signal in the place of accident and regarding speed is concerned, he has not stated anything about rashness and negligence on the part of rider of the motorcycle and also says that motorcyclist had fallen 4 to 5 feet distance from the place of accident.
11. The other witness P.W.2 also claims that he was proceeding in the motorcycle in the very same road. In the chief evidence, he says that accident occurred due to rashness on the part of the rider of the motorcycle. P.W.2 also admits that the same is a National Highway having four lane road and also admits the width of the road. But though he claims that he was proceeding in 120 kms. Speed, but says that the victim had fallen on the road divider. But, the fact is that in the place of accident, there was no divider and road divider is in the middle of the road. The evidence of P.W.2 is not in consonance with the evidence of P.W.1. But claims that victim had fallen
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NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 on the road divider and distance between the road divider and the place of accident is almost 28 feet and the evidence of P.W.2 is contrary to evidence of P.W.1 and P.W.1 not states anything that victim had fallen on the road divider and both the Courts lost sight of Ex.P4 while appreciating the evidence on record.
12. The case of the prosecution is also that the victim crossed the road from west to east and when P.W.1 admits that there was no zebra crossing and no provision is made to cross the road, it is clear that victim suddenly entered the road and crossed the road without observing movement of the vehicle and ought to have been cautious, since it is a National Highway. When there is a clear admission that in the National Highway, other vehicles were moving and it is negligence on the part of the victim, since she suddenly crossed the road without observing movement of the vehicle and rider of the motorcycle could not control the vehicle and dashed against the victim, when she suddenly crossed the road.
13. The judgments referred by learned counsel for the petitioner is aptly applicable to the facts of the case on hand.
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CRL.RP No. 1129 of 2022
In MAHADEO HARI LOKRE VS. THE STATE OF
MAHARASHTRA reported in (1972) 4 SCC 758, the factual aspect is very clear that deceased suddenly crossed the road from West to East without taking note of the approaching bus there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road the bus driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent.
14. In the case on hand, as per the sketch at Ex.P4, there was a road divider and having considered the said fact, the Apex Court also in the judgment in K.SRINIVAS VS. STATE OF KARNATAKA reported in 2002 SCC ONLINE KAR 708 observed that in criminal jurisprudence if the victim has also contributed for the causation of the accident by contributory negligence and in the absence of any material to show that only on account of rash and negligent driving of the accused/driver the accident has occurred, it would not be permissible under such circumstances to hold the accused driver guilty of committing an offence under Section 279 and
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NC: 2025:KHC:8398 CRL.RP No. 1129 of 2022 304-A of I.P.C. Since the contributory negligence of the victim or deceased affords as an intervening circumstances but for if the accident could not have happened.
15. Having considered the principles laid down by this Court and the Apex Court and having considered the factual aspects, both the Courts ought to have given benefit of doubt in favour of accused when accident has occurred while crossing the road, where there was no provision to cross the road and these are the materials which have not been considered even though witnesses have admitted the same. Hence, it is a fit case to exercise revisional powers and both the Courts have lost sight of evidence of P.Ws.1 and 2 as well as sketch at Ex.P4 and finding of the Trial Court and the First Appellate Court suffers from legality and correctness. Therefore, I answer point No.(i) as 'affirmative'.
Point No.(ii)
16. In view of the discussion made above, I pass the following:
ORDER
(i) The criminal revision petition is allowed.
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(ii) The impugned order of conviction and sentence and also confirmation by the First Appellate Court is set aside. Consequently, the accused is acquitted for the offence punishable under Section 304A and 279 IPC.
(iii) If the petitioner has deposited any fine amount, the same is ordered to be refunded in favour of the petitioner on proper identification.
Sd/-
(H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 45