Karnataka High Court
Sri. Thippesha C vs The State Of Karnataka By Sira Rural ... on 21 December, 2018
Equivalent citations: AIRONLINE 2019 KAR 27
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 877 OF 2011
BETWEEN
Sri. Thippesha C,
S/o Chandrappa T,
Aged about 47 years,
R/o. Door No. 515/14,
Shivakumarswamy Layout,
Davanagere - 577 005.
... Petitioner
(By Sri. Prabhu Swamy N., Advocate for
Sri. V.B. Siddaramaiah, Advocate)
AND
The State of Karnataka by
Sira Rural Police,
Tumkur Taluk & District.
... Respondent
(By Sri. Vijay Kumar Majage, Addl. SPP)
This CRL.R.P. is filed under Section 397 R/w 401 of
Cr.P.C praying to set aside the order dated 18.07.2011
passed by the Presiding Officer, Fast Track Court - II,
Tumkur in Crl.A.No. 38/2011 and order dated 03.05.2011
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passed by the Senior Civil Judge and JMFC, Sira in
C.C.No. 992/2008.
This CRL.R.P. having been heard and reserved for
orders on 13.12.2018, coming on for pronouncement this
day, the court made the following:
ORDER
This Criminal Revision Petition has been preferred by the petitioner / accused under Section 397 read with Section 401 of Cr.P.C. praying to set aside the judgment of conviction and sentence dated 18.07.2011 passed in Crl.A.No.38/2011 by the Fast Track Court II, Tumakuru confirming the judgment of conviction and sentence dated 03.05.2011 in C.C.No.992/2008 passed by the Senior Civil Judge & JMFC, Sira and thereby acquit the petitioner. By the judgment of the Trial Court, the accused was convicted for the offences punishable under Sections 279, 337, 338 and 304A of IPC and thereby was sentenced to undergo simple imprisonment for one year for the offence punishable under Section 304A IPC and was sentenced to pay fine of Rs.1,000/- for the offence :3: punishable under Section 279 IPC, and in default to undergo simple imprisonment for a period of six months. Further the accused was sentenced to pay a fine of Rs.800/- each for the offences punishable under Sections 337 and 338 of IPC. In default of payment of fine he was to undergo simple imprisonment for a period of 3 months.
2. Heard the learned counsel for the petitioner - accused and the learned Additional SPP for the respondent.
3. The factual matrix of this petition is as under:
One Parameshwarappa S/o Eshwarappa, Nimbapura Kondadahalli, Santhebennur Hobli,
Channagiri Taluk, Davanagere District filed the complaint on 16.10.2008 at about 5.15 a.m. to the effect that, he along with others in order to go to Bangalore, had boarded the SRE bus at Channagiri Town on 15.10.2008 at about 10.30 p.m. When the said bus bearing No. KA-16-A-7833 was proceeding towards Bangalore, in the early morning at about 3 a.m. when it was proceeding near Manangi Village on NH-4 road Sira, the front right side tyre of the :4: bus got punctured. Hence, the driver stopped the bus and started changing the tyre. At that time, at about 3.30 a.m. one KSRTC bus bearing No. KA-17-F-987 came from Hiriyur side in high speed and in a rash and negligent manner and dashed to the SRE bus from the back side. As a result of the accident, the relative of the complainant by name M.V. Shivamurthy who was sitting on the back seat sustained severe head injuries and died on the spot. Similarly, 10 to 15 passengers had also sustained injuries. They were taken to Government hospitals at Sira and Hiriyur and were treated for the injuries.
4. On the basis of the said complaint, Sira Town Police registered a case in Crime No.234/2008 against the petitioner / accused for the aforesaid offences. Subsequently, the case was investigated by the Investigating Officer who laid a charge-sheet against the accused before the Jurisdictional Court.
Subsequent to framing of charge against the accused, the plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to :5: be tried. Hence, the case was proceeded for facing of trial. In order to establish the guilt of the accused, the prosecution examined in all 17 witnesses as PW1 to PW17 and got marked 21 documents as Exhibits P.1 to P.21 and closed the evidence. Subsequent to closure of the evidence of the prosecution, the accused was examined as required under Section 313 of Cr.P.C. wherein the accused denied the truth of the evidence of the prosecution adduced so far. He also did not lead any evidence on the part of the defence side.
Subsequently, on hearing the arguments of the prosecutor and the defence counsel relating to the charges levelled against the accused, the Trial Court came to the conclusion that the prosecution has proved the guilt of the accused and convicted the accused for the aforesaid offences. The said judgment of conviction and sentence passed by the Trial Court in C.C.No.992/2008 was challenged by the accused before the First Appellate Court in Crl.A.No.38/2011. The said court, by order dated 18.07.2011 passed a judgment confirming the judgment :6: of conviction and sentence passed by the Trial Court. It is these judgments which are under challenge in the present revision petition.
5. The learned counsel for the petitioner contends that the order of conviction passed by the Trial court and confirmed by the Appellate Court is contrary to law, alleged facts and probabilities of the case. Further he contends that on mechanical application of mind, the trial court has convicted the petitioner for the alleged offences. The sessions court as well has not re-appreciated the evidence on record and has thus dismissed the appeal filed by the petitioner.
The learned counsel contends that according to the case of the prosecution, the SRE bus was parked on the right side of the road. It is but usual for all buses plying in the Highway road at night hours to go at a high speed. When the said SRE parked on the right side of the road in a highway that too at night, in all probability, the driver / petitioner cannot control the bus during night hours. Even the driver of SRE bus has also admitted that if the :7: SRE bus had been parked on the left side of the road, the accident might not have occurred. The admission of the driver of SRE bus clearly shows that the rash and negligent driving of the KSRTC bus cannot be alleged against the petitioner and hence the conviction imposed by the trial court is bad in law.
It is his further contention that P.W.6 Shivakumar, the conductor of KSRTC bus has clearly stated in the examination-in-chief that the accident occurred due to the mistake of the driver of SRE bus. SRE bus was parked at the right side of the road at 3.30 a.m., since the tyre of the said bus had bursted in the middle of the road. The fact that during the night hours the petitioner could not see the bus parked on the right side of the road, has been admitted by the important witnesses. Some of the witnesses have clearly admitted that the driver of the SRE bus had tried to park the bus on the left side but the vehicle did not move. Reasonable care had not been taken by the driver of SRE bus and signal was not given by the SRE bus driver regarding parking of the vehicle. Hence, :8: he submits that the order of conviction imposed by the courts below is bad in law.
It is further contended that the passengers of the KSRTC bus have not supported the case of the prosecution. P.Ws. 2, 3, 4 and 5 are passengers of SRE bus who have been treated as hostile witnesses. P.Ws. 7 and 8 are passengers of KSRTC bus who have clearly admitted during the course of cross-examination that they woke up after the accident. Hence, in view of these inconsistencies, the prosecution has failed to prove the case beyond reasonable doubt. Further, the courts below have failed to appreciate the entire evidence in toto and have failed to appreciate the admissions, contradictions and omissions. The prosecution has failed to prove the intention and motive against the petitioner in committing the alleged offences.
It is the further contention of the learned counsel that the petitioner/accused being a KSRTC bus driver who had suffered severe injuries in the accident and in view of conviction, the petitioner will be removed from service and :9: he will be put to great hardship and inconvenience, if the order of conviction passed by both the courts below are confirmed.
On all these grounds urged, the learned counsel for the petitioner / accused prays that the judgments of both the courts below be set aside and the accused be acquitted of the offences charged against him.
6. Per contra, the learned Additional SPP for the State justifies the impugned judgment of conviction and sentence passed by the Trial Court and which has been confirmed by the Appellate Court and submits that both the courts below have rightly appreciated the evidence on record and have come to a conclusion that the accused had caused the accident. The accused being the driver of the offending KSRTC bus bearing Registration No.KA-17- F-987, had driven the same in a rash and negligent manner so as to endanger human life and dashed the SRE bus which was parked from behind, due to the impact of which one M.V. Shivamurthy who was sitting on the last seat of the bus, sustained severe injuries and succumbed : 10 : to the injuries and 15 other passengers of the bus had also sustained simple injuries. The punishment imposed being commensurate with the gravity of the offence committed by the accused, the learned Addl. SPP seeks to dismiss the revision petition. Hence, the learned Addl. SPP supports the judgments passed by the Trial Court which has been confirmed by the Appellate Court and submits that the said judgments being just and proper, the same do not call for any interference by this Court in this revision petition.
7. On hearing the learned counsel for the revision petitioner / accused as well as the learned Additional SPP and on an examination of the oral and documentary evidence on record, it is seen that the accused being the driver of the KSRTC bus drove his bus with high speed and in a rash and negligent manner and dashed to the S.R.E. bus which was stopped for changing the punctured tyre near Manangi Village on NH-4 road Sira. As a result of the accident, the inmates of S.R.E. bus had sustained injuries and one M.V. Shivamurthy died on the spot. : 11 :
P.W.1 is the complainant, who deposed regarding the accident and also death of one Shivamurthy. In the examination-in-chief he has stated that, the bus in which they were proceeding got punctured and the driver of the said bus stopped it on the road and when he was changing the tyre, a KSRTC bus came from behind and dashed to it. As a result, the back portion of S.R.E. bus was completely damaged and Shivamurthappa died on the spot. So he filed the complaint as per Ex.P.1 and the police had conducted the panchanama as per Ex.P.2. Further, he had stated that, when the bus was stopped for changing the tyre, the indicator light was switched on and in spite of that, the KSRTC bus dashed to it. In the cross- examination, he had stated that he did not know if any stone or something was kept on the back side of the bus, but he stated that, all the four parking lights were switched on.
P.W.2, one of the passengers of S.R.E. bus had deposed regarding indicator lights having been switched on. Though he deposed regarding the accident, but he did : 12 : not support the prosecution regarding the identification of the accused. So with respect to that aspect he was turned partly hostile and cross examined, wherein he admitted that the police had recorded his statement, but denied the identification of accused. Further, that he was sitting along with the complainant three seats behind the driver and according to him, one wooden piece was kept in front side in order to stop the bus from proceeding and stone was kept on the back for identification of the vehicles coming from the back side. Further this witness in the cross examination stated that, in spite of best efforts made by their bus driver to park the bus on the left side of the road, because of the tyre burst he could not park the vehicle on the left side of the road, as a result, the said bus was stopped on the right side. Further he stated that, there were no branches of the tree and also stones at that place.
P.W.3, who was also proceeding to Bangalore along with the complainant and a victim who sustained injuries in the accident has supported the complainant regarding : 13 : the accident. But he had also not seen the accused on the date of accident. So with respect to identification of accused he was treated hostile by the prosecution and cross examined by the APP. He also admitted that, he came to know the accident only after hearing the sound. According to him, stone was kept on the back side for identification of the vehicles coming from the back side. He also deposed that, even though the driver of the S.R.E. bus made efforts to park the bus on the left side of the road, due to tyre burst he could not control the same. Hence it was parked on the right side and rest of the things denied.
P.W.4 driver of the S.R.E. bus has deposed to the effect that on 15.10.2008 he was proceeding to Bangalore from Channagiri. About 35 to 40 passengers were travelling in his bus. The front right tyre of his bus had burst near Manangi Village on NH-4 road. Since the right side tyre burst, the bus was dragging towards the right side. He had switched on the parking lights and was then changing the tyre. At that time, KSRTC bus came and : 14 : dashed to his bus. So the inmates of his bus had sustained injuries and one Shivamurthy died on the spot. But this witness also though deposed regarding the accident, but has not identified the accused. So with respect to that aspect, he was treated hostile and cross examined by the APP. In the cross examination made by the defence, he stated that, the out side portion will not be visible from inside the bus and he had not put the curtains to the windows. So from inside nearby distance would be visible. He again admitted that, if he stopped the bus on the left side, accident would not happened.
P.W.6, the conductor of KSRTC bus, had stated that, accused and himself were taking the bus bearing no. KA- 17-F-987 from Davanagere to Bangalore and he stated regarding the accident, but he has not supported the prosecution regarding the rash and negligent act of accused. So with respect to this aspect he was cross examined by the APP, but nothing was elicited to connect the accused to the alleged offences.
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8. Hence, on a perusal of the entire evidence of the prosecution witnesses, it is clear that an accident occurred between the Government KSRTC bus and the private S.R.E. bus. Further it is also admitted fact that, the private S.R.E. bus had stopped on the road in order to change the tyre which had burst. At that time, the KSRTC bus dashed on the back. So considering the evidence of all the witnesses, P.W.1 to 4 are the inmates of SRE bus and all of them supported the prosecution regarding the accident caused due to the rash and negligence of KSRTC bus driver. But P.W.1 to 4 though supported regarding the accident by the KSRTC bus driver, they were unable to identify the driver of the KSRTC bus. Except the identification they had supported the prosecution case. Even though they are relatives of the deceased Shivamurthy who was traveling in the SRE bus, they were supporting the case as per the prosecution version, but only not supporting the identification of the driver.
Similary, P.W.5 is the conductor of the S.R.E. bus and who turned hostile and not supported the : 16 : prosecution. Then P.W.6 is the conductor of the KSRTC bus he also supported the accident, but according to him, accident was caused due to negligence of SRE bus. So he did not support the prosecution regarding the negligence of KSRTC bus driver.
Similarly, P.W.7, 8 and 9 were also victims traveling in the KSRTC bus. They also supported the prosecution regarding the accident and also the injuries sustained by them. But P.W.10 who is also one of the KSRTC bus passenger turned hostile and not supported the prosecution case. and P.W.11 and 12 have also not supported the prosecution case.
However P.W.3 is the Traffic Controller of KSRTC Depot, Sira who deposed regarding accused was the driver of the bus which met with an accident. Then P.W.14 and 15 are the panchas who had also not supported the prosecution case.
9. The accused has been convicted for the offences under Sections 279, 337, 338 and 304A IPC. In this revision petition it is relevant to extract Sections 279, 337, : 17 : 338 and 304-A IPC for the purpose of ingredients as to constitute the offence.
"279. Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337. Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
338. Causing grievous hurt by act endangering life or personal safety of others.- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend : 18 : to two years, or with fine which may extend to one thousand rupees, or with both.
304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
10. The essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. To establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section : 19 : 304A extends to any rash and negligent act falling short of culpable homicide. The rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence. In that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care.
11. In so far as offence under Section 304-A of IPC is concerned, the provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. Section 304-A postulates a rash and negligent act entailing death of another. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence; and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in a tort for damages also. There is no criminal liability for harm thus caused by inadvertence.
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12. In the case on hand, apart from a bare statement made by a witness that the vehicle was being driven at a high speed, there was no attempt made to establish that there was any rash or negligent act on the part of the driver of the bus. The SRE bus which was parked on the right side of the NH-4 road is the cause for the accident. Even if the bus could not be moved by the driver of the SRE bus to the left side of the road, he ought to have taken the help of passengers to move the bus to the left side of the road, which would have avoided the accident. Hence, the driver of the KSRTC bus cannot be blamed for having dashed the SRE bus which was wrongly parked on the right side of the NH-4 road. Proper caution should have been taken by the driver of the SRE bus to have parked the bus on the left side of the road and added to keeping the indicators on, he ought to have kept big stones or some barrier at least at some distance away from the bus, which would have given caution to other buses plying that way and would have given an indication that they should proceed slowly. This caution having not : 21 : been taken by the SRE bus driver, has resulted in the KSRTC bus driver not able to control the bus at the particular moment. Hence, I am of the opinion that the judgment rendered by the Trial Court in C.C.No.992/2008 relating to the aforesaid offences and so also the judgment rendered by the Appellate Court in Crl.A.No.38/2011 confirming the judgment of conviction and order of sentence passed by the Trial Court, are found to suffer from infirmities and certainly there is a miscarriage of justice. Hence, the judgments of both the courts below requires to be re-visited by scanning the entire material evidence available on record and so also the documents placed by the prosecution to prove the guilt of the accused.
13. Keeping in view the grounds urged by the learned counsel for the petitioner, I find that the conviction and sentence held against the accused under Section 304A IPC requires intervention in view of the aforesaid reasons, in view of the infirmities found in the impugned judgments. But however, the conviction in so : 22 : far as the offence under Sections 279, 337 and 338 IPC do not call for any interference.
14. In view of the peculiar facts and circumstances of the case and so also the evidence produced by the prosecution relating to the aforesaid offences are concerned, in this revision petition the impugned judgment rendered by the courts below requires to be re- visited in so far as the offence under Section 304A IPC. Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition filed by the accused under Section 397 read with Section 401 Cr.P.C. is hereby allowed in part. Consequently, the order of conviction and sentence passed by the Trial Court in C.C.No.992/2008 dated 03.05.2011 convicting the petitioner / accused for the offence under Section 304A IPC, which was confirmed by the Appellate Court, is hereby set aside. The sentence imposed by the Trial Court under Section 304A IPC to undergo simple imprisonment of one year is concerned is hereby set aside. However, the petitioner / accused is : 23 : sentenced to pay a fine of Rs.25,000/- for the offence under Section 304A IPC, which amount shall be deposited before the Trial Court within a period of one month from the date of receipt of a copy of this order. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of six months. The conviction and sentence in so far as the offence under Sections 279, 337 and 338 IPC imposed by the Trial Court and confirmed by the Appellate Court, shall remain unaltered.
On deposit of Rs.25,000/- the same shall be disbursed to the legal heir of the deceased M.V. Shivamurthy, i.e., his wife, on proper identification.
Sd/-
JUDGE KS