Karnataka High Court
Halyanaik @ Haleshinaik vs The State Of Karnataka on 1 March, 2024
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NC: 2024:KHC-D:4776
CRL.RP No. 100313 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100313 OF 2016 (397)
BETWEEN:
HALYANAIK @ HALESHINAIK
S/O VALYANAIK LAMANI,
AGE: 48 YEARS, OCC: DRIVER,
KSRTC DEPOT, HIREKERUR,
DIST: HAVERI.
...PETITIONER
(BY SRI M.B. GUNDAWADE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH HAUMSABHAVI POLICE STATION,
TQ: HIREKERUR, DIST: HAVERI.
...RESPONDENT
(BY SRI PRAVEENA Y. DEVAREDDIYAVAR, ADVOCATE)
Digitally signed by
SAROJA HANGARAKI
Location: HIGH COURT
SAROJA OF
HANGARAKI KARNATAKA,DHARWAD
BENCH
Date: 2024.03.05
16:42:14 +0530
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C., PRAYING TO CALL FOR
THE RECORDS PERTAINING TO C.C. NO.94/2009 FROM THE FILE OF
CIVIL JUDGE AND J.M.F.C. COURT HIREKERUR AND
CRL.A.NO.60/2011 FROM THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT HAVERI (SITTING AT RANEBENNUR) AND
TO EXAMINE THE CORRECTNESS, LEGALITY AND PROPRIETY OF
FINDING AND IN PASSING JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE AND TO PASS A JUDGMENT OF ACQUITTAL IN FAVOR
OF PETITIONER BY SETTING ASIDE THE JUDGMENT OF CONVICTION
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NC: 2024:KHC-D:4776
CRL.RP No. 100313 of 2016
AND ORDER OF SENTENCE DATED 17-10-2011, PASSED BY THE
CIVIL JUDGE AND J.M.F.C. COURT HIREKERUR IN C.C. NO.94/2009
AND ALSO SETTING ASIDE THE JUDGMENT PASSED BY THE LOWER
APPELLATE COURT IN CRL.A. NO.60/2011 DATED 27-10-2016,
PASSED BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HAVERI (SITTING AT RANEBENNUR).
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by judgment of the First Appellate Court in Crl.A.No.60/2011, on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur, dated 27.10.2016 in confirming the judgment of conviction and order of sentence passed by the Trial Court on the file of the Prl. Senior. Civil Judge and JMFC, Hirekerur in CC.No.94/2009, dated 17.10.2011, preferred this revision petition.
2. Parties to the revision petition are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. Heard the arguments of both sides.
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4. After hearing the arguments of both sides and on perusal of the Trial Court records, so also the impugned judgment under the revision, the following points arise for consideration:
i) Whether the impugned judgment of First Appellate Court in confirming the judgment of conviction and order of sentence passed by the Trial Court for the offences punishable under Sections 279 and 304(A) of I.P.C. is perverse, capricious and legally not sustainable?
ii) Whether interference of this Court is required?
5. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 22.12.2008 accused being the driver of the KSRTC bus No.KA-27-F-41 the same with high speed and in rash and negligent manner and dashed against Ganesha S/o. Dineshappa Kenchagoudar, aged about 5 years, due to the said accident, wheels of the said bus ran over the head of deceased Ganesh, who was proceeding from the shop of PW.7-Basavaraj Dundeppa Narasapur after purchasing chocolate and caused his death on the spot. The prosecution -4- NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 further alleges that due to culpable rashness or negligence of accused in driving the KSRTC bus bearing No.KA-27-F-41, dashed against the Ganesh, aged about 5 years, who was crossing the road and due to which he succumbed to the injuries sustained in the accident on the spot itself.
6. The prosecution to prove allegations made against accused relied on the evidence of PW.1 to 12 and documents at Ex.P.1 to 11. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. The Trial Court after hearing the arguments of both sides and on appreciation of oral and documentary evidence placed on record, convicted the accused for the offences punishable under Sections 279 and 304(A) of I.P.C. and imposed sentence as per the order of sentence.
7. Accused challenged the said judgment of conviction and order of sentence before First Appellate Court in Crl.A.No.60/2011. The First Appellate Court after re- appreciation of evidence, by judgment dated 27.10.2016 dismissed the appeal and confirmed the judgment of the -5- NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 Trial Court in convicting accused and also imposed sentence for the aforementioned offences.
8. The correctness and legality of the concurrent finding of both the courts below has been challenged in the present revision petition contending that both courts below have not properly appreciated the evidence on record and proceeded to convict accused on the premises that Ganesh, boy aged about 5 years died in the accident and accused was held to be guilty for the offences alleged against him without appreciation of factual aspects at the place of accident and cross examination of PWs.1, 4, 5 to 7. If recital of panchanama Ex.P.2, Sketch Map Ex.P.3 and evidence of PW.2-Mounesh and PW.3-Channappa, the panch witnesses and the complaint allegations are appreciated, it would go to show that Ganesh, boy aged about 5 years after purchasing chocolate without noticing the vehicle moving on the road abruptly came across the bus, due to which the accident in question has occurred and situation was beyond the control of the accused. The said aspect of the matter has not been properly appreciated by both courts below and as a result -6- NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 recorded erroneous findings in holding the accused guilty for the aforesaid offences alleged against him.
9. Per contra, learned High Court Government Pleader has argued that the defence of accused has not been established out of the evidence of the prosecution witnesses, nothing worth material has been brought on record during the course of their cross examination, further accused has not led any of his defence evidence. There are no any valid reasons to disbelieve the evidence of PW.1-Irabassappa, PW.4-Basavva, grand mother of the deceased Ganesh, PW.5- Suresh, PW6-Basappa and PW.7-Basavaraj. The courts below have rightly appreciated the evidence on record and arrived to a just and proper conclusion in holding that accused is guilty of the offences alleged against him and also in imposing sentence. The said findings recorded by both the courts below are based on material evidence on record and the same does not call for any interference by this Court.
10. The accused was driver of KSRTC bus bearing No.KA-27-F-41 and PW.8-Yadiyuraiyya was conductor of said bus and was on duty at the relevant point of time, the place -7- NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 of accident and death of Ganesh aged about 5 years at the time of accident in question, further accident occurred is not due to any mechanical defects of the bus are the facts not in dispute and the same also can be borne out from the material evidence placed on record by the prosecution. The dispute is only with respect to alleged culpable rashness or negligence leading to the accident in question resulting the death of Ganesh aged about 5 years while crossing the road.
11. PW.1-Irabasappa has deposed to the effect that 11 months back at about 10 a.m. in front of the house of Sankrappa Somanhalli on Hirekerur-Dhopadhalli road, accused came driving his KSRTC bus bearing No.KA-27-F-41 with high speed in rash and negligent manner and dashed against Ganesh, who was crossing the road after purchasing chocolate from the shop to reach the place where the grand mother was sitting. The front left side wheel of the bus ran over the head Ganesh, due to which he succumbed to the injuries sustained in the accident on the spot itself. Thereafter, he filed a complaint Ex.P.1.
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12. PW.4-Basavva is grand mother of the deceased Ganesh and she has deposed to the effect that about 1 year back, she was waiting for the bus in Yathinahalli village bus stand and her grand son Ganesh had gone to purchase chocolate from the road side shop. While he was returning, the bus driven by accused came from Chikkerur side towards Yathinahalli village and dashed against her grand son. She further deposed to the effect that though she gave signal to the accused to stop the bus, since her grand son is crossing the road, but accused without stopping the vehicle allowed the bus to further proceed and dashed against her grand son Ganesh, as a result, wheels of the bus ran over the head of Ganesh and due to which he succumbed to the injuries sustained in the accident on the spot itself.
13. PW.5-Suresh, PW.6-Basappa and PW.7-Basavaraj Dundappa Narasapur are said to be eye witnesses to the accident in question and they have deposed about factum of accident and the death of Ganesh, aged about 5 years while he was crossing the road, after purchasing chocolate from the shop of the PW.7- Basavaraj Dundappa Narasapur. In -9- NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 the cross examination of PW.6-Basappa it has been elicited that he came to the spot after the accident and he is not eye witness. However, no any material has been brought on record in the cross examination of PW.5-Suresh, PW.7- Basavaraj to discredit their evidence regarding the manner in which accident has taken place due to rash and negligent driving of KSRTC bus bearing No.KA-27-F-41.
14. It is the defence of the accused that boy aged about 5 years abruptly was crossing the road without noticing the moving vehicle on the road, which was never expected by him and as a result, bus driven by him was dashed against the boy, who succumbed to the injuries sustained in the accident. The said defence of the accused will have to be appreciated with reference to the evidence of the aforementioned witnesses during the course of their cross examination by taking into consideration of spot features rerecorded in the spot panchanama EX.P.2 and also evidence of panch witnesses PW.2-Mounesh, PW.3- Chennappa and the sketch map Ex.P3.
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15. On careful perusal of the spot features recorded in the spot panchanama Ex.P.2 then it would go to show that there is circle where the four road joins. The place of accident is shown in front of the house of Shankrappa Somanhalli, road at the place of accident runs from the north to south. The place of accident is shown at a distance of 15 feet towards southern side. The house of Shankrappa Somanhalli and floor is shown towards eastern side and the same spot features are shown in sketch map Ex.P.3. The evidence of material witnesses PW.1-Irabasappa PW.4- Basavva, PW.5-Suresh, PW.6-Basappa and PW.7-Basavaraj Narasapur would go to show that the deceased Ganesh is grand son of PW.4-Basavva had gone to purchase chocolate from the shop of PW.7-Basavaraj Narasapur and while returning from the shop, after purchasing the chocolate, the accident in question has occurred. The photographs of the place of accident with dead body of the deceased Ganesh are produced at Ex.P.7 and 8 and the evidence of aforementioned witnesses would go to show that wheels of the bus ran over the head of Ganesh and he succumbed to
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 the injuries sustained in the accident. It is the evidence of the PW.1-Irabasappa that shop of Basavaraj Narasapur is situated at the right side of the road and grand mother of the deceased Ganesh i.e. P.W.4-Basavva was sitting on the floor in front of the house of Shankrappa Somanhalli. There is distance between 15-20 feet in between the place where she was sitting to the place of the accident and her grand son was returning to reach her, after purchasing chocolate.
16. PW.4-Basavva grand mother of the deceased Ganesh has spoken about the shop of Basavaraj Narasapur is situated to the western side and in between the place where she was sitting and the shop is about 15 feet. The evidence of PW.5-Suresh and PW.6-Basappa, eyewitnesses would go to show that shop of PW.7-Basavaraj Dundeppa Narasapur is situated to the road side. The owner of the shop is examined as PW.7-Basavaraj Dundeppa Narasapur and he has deposed to the effect that his pan shop is situated at Yatinahalli circle and Ganesh after purchase of chocolate from the shop, was returning to opposite side to reach his grand mother at that time the accident in question has occurred and wheels of
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 KSRTC bus bearing No.KA-27-F-41 driven by the accused ran over the head of Ganesh, who succumbed to the injuries sustained in the accident on the spot itself.
17. The aforementioned evidence brought on record through the evidence of PW.1-Irabasappa, PW.4-Basavva, PW.5-Suresh, PW.7-Basavaraj Dundeppa Narasapur, it would go to show that shop of PW.7-Basavaraj Dundeppa Narasapur is situated to western side. The grand mother of the deceased i.e. PW.4-Basavva was sitting on the floor in front of the house of Shankrappa Somanhalli. The deceased Ganesh went to the shop of PW.7-Basavaraj Dundeppa Narasapur situated to the opposite side of the road for purchasing the chocolate and thereafter, he was returning back to the eastern side to reach to the place where his grand mother was sitting on the floor in front of the house of Shankrappa Somanhalli. It is in the process of Ganesh, aged 5 years, while crossing road, the accident in question has occurred, the right side wheel of the bus has ran over the head of Ganesh, who succumbed to the injuries sustained in the accident on the spot itself.
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18. The tender age boy of 5 years was left unattended by his grandmother Basavva and allowed to cross the road where the vehicles are moving on the public road to go to shop of Basavaraj Dundeppa Narasapur for purchasing the chocolate. The defence has not brought any worth material in the cross examination of aforementioned witnesses to disbelieve their evidence that deceased Ganesh was returning from the shop of PW7-Basavaraj after purchasing the chocolate and proceeding to reach the place where his grandmother was sitting on the floors on the other side of the road. It is from the evidence of aforementioned witnesses an inference can be drawn that tender aged boy of 5 years was crossing the road, where the vehicles were moving and without noticing the bus attempted to cross the road, which was never expected by accused, who was driving KSRTC bus bearing No.KA-27-F-41 involved in the accident and as a result the accident in question has occurred.
19. The evidence of PW.4-Basavva that she has given signal to the driver of the bus that her grandson is crossing the road and stop the vehicle, but the same is not supported
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 by any other evidence placed on record by the prosecution. Therefore, defence of accused that boy of 5 years age, without noticing the bus abruptly came across the bus, which was never expected by him and beyond his control, the accident in question has occurred appears to be more probable and the same is further supported by evidence of PW.1-Irabasappa and PW.4-Basavva, PW.5-Suresh and PW.7-Basavaraj Dundeppa Narsapur.
20. Learned counsel for the accused in support of his contention that no actionable negligence can be attributed against the driver of the bus, when the child all of a sudden came across the vehicle, the accused could not avoid the accident despite the best efforts to avoid the accident relied on the judgment of Hon'ble Apex Court in Syad Akbar V/s. State of Karnataka, reported in 1979 SC 1848, wherein it has been observed and held as under:
"The appellant, who was a driver of a bus, was driving the vehicle by a road which ran through a village. On either side of the road there were deep ditches. A mother who was going from the village on the left side of the road to the fields on the right, was being followed at
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 some distance by her daughter (the deceased), a girl of four years. Before crossing the road the mother stopped on the left side and a remonstrated with the girl to go home. Then crossing the road at that point the mother descended on the right side of the road and went out of site. In the meantime bus had slowed down because a few feet away it had to cross a new narrow bridge. The child, which by then reached the left side of the road, seemed to be in two minds whether to cross the road or go back. She, however, dashed across the road with suddenness. The driver blew the horn and to save the child from the accident swerved the vehicle to the right. But the child by then came under the left front wheel and was crushed to death. "
The Hon'ble Apex Court having so observed held that no actionable negligence can be attributed against the accused, where the child all of a sudden came across the bus and despite the best care taken by him to avoid it, could not avoid the accident.
21. Learned counsel for the accused also relied on the Co-ordinate judgment of this Court in Mehaboob S/o Mukthumsab Dalawai V/s. State of Karnataka in Crl.R.P.No.2037/2010 dated 8.1.2013, wherein it has been observed and held at para 10 as under"
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 "In view of the observations made by the Hon'ble Supreme Court in the case Mahadeo Hari Lokare V/s. the State of Maharashtra reported in AIR 1972 Supreme Court 221, the possibilities of suddenly crossing the road by the deceased-
child and PW.3, who were in hurry to go to work in the house of PW.1 is not ruled out and Ex.P.10-Photogrpha taken at the seen of occurrence indicate that the body of the deceased-child is on the tar portion of the road, about 6 feet away from the edge of the road, thus, giving doubt regarding the prosecution case that the incident has happened on the edge of the road.
In that view of the matter, I am of the opinion that benefit of doubt can be given to the petitioner."
In view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court and this Court, if the evidence on record referred above in the present case is appreciated then it would go to show that the accident in question occurred due to child Ganesh 5 years of age abruptly appearing across the vehicle in the process of crossing the road to reach the place where his grand mother PW.4-Basavva was sitting cannot be ruled out. In the given circumstances referred above, the accused could never
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 anticipate that child Ganesh all of a sudden will come across the bus and because of that reason in spite of his best efforts could not avoid the accident has been substantiated by the defence in view of the material evidence brought on record during the cross examination of PW.1 and PW.4 to 7.
22. The both courts below have proceeded on the presumption of culpable rashness or negligence in view of the wheels of the bus ran over the head of Ganesh, who was crossing the road and died on the spot due to injuries sustained in the accident in holding accused guilty for the offences alleged against him without properly appreciating the evidence of above referred material witnesses. The spot features recorded under Panchanama Ex.P.2, so also sketch map Ex.P.3 and the evidence on record has not been properly appreciated. Therefore, findings of both the courts below cannot be legally sustained in holding the accused guilty for the offences alleged against him, since the said findings are against the material evidence placed on record by the prosecution. Therefore, interference of this Court is required. Consequently, proceed to pass the following:
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NC: 2024:KHC-D:4776 CRL.RP No. 100313 of 2016 ORDER Revision petition filed by revision petitioner-accused is hereby allowed.
The judgment passed in Crl. A. No. 60/2011, on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur, dated 27.10.2016 in confirming the judgment of conviction and order of sentence passed by the Trial Court on the file of Prl. Senior. Civil Judge and JMFC, Hirekerur in CC.No.94/2009, dated 17.10.2011 are hereby set aside.
Accused is acquitted for the offences punishable under Sections 279 and 304(A) of I.P.C.
The bail bond of the accused and that of surety shall stand discharged.
The registry is directed to transmit the records of the Trial Court along with copy of this judgment.
Sd/-
JUDGE VB/CT:GSM List No.: 1 Sl No.: 47