Karnataka High Court
Thotayya vs The State Of Karnataka on 21 January, 2025
Author: V Srishananda
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.R.P.No.776/2016
BETWEEN
1 . THOTAYYA
S/O PANCHAKSHARAYYA,
DRIVER OF KSRTC,
AGED ABOUT 35 YEARS,
R/O HALAKARURU,
MATT HOUSE, ARALIKATTE,
P.O. BELGAUM-590 001
...PETITIONER
(BY SRI ARUNA SHYAM.M, SR. ADVOCATE A/W
SRI SUYOG HERELE.E, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH UPPINAGADY POLICE STATION,
PUTTUR, D.K,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W
401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
2
THE ORDER DATED 04.04.2016 PASSED BY THE V ADDL.
DIST. AND S.J., D.K., MANGALURU, SITTING AT PUTTUR,
D.K. IN CRL.A.No.2/2014, THEREBY CONFIRMING THE
ORDER DATED 17.12.2013 PASSED BY THE ADDL. CIVIL
JUDGE AND JMFC, PUTTUR, D.K., IN C.C.No.1678/2013
AND CONSEQUENTLY ACQUIT THE PETITIONER OF ALL
THE CHARGES LEVELED AGAINST HIM.
THIS PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV ORDER
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
Accused who suffered an order of conviction in C.C
No.1678/2013 on the file of the Additional Civil Judge and
JMFC, Putturu, Dakshina Kannada, for the offences
punishable under Sections 279, 337, 338 and 304A of the
Indian Penal Code confirmed in Criminal Appeal No.2/2014
on the file of the V Additional District and Sessions Judge,
Dakshina Kannada, Mangaluru sitting at Putturu, is the
revision petitioner.
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2. Facts of the case in brief which are utmost necessary
for disposal of the present Criminal Revision Petition are as
under:
A complaint came to be lodged with Uppinangadi
Police, Putturu Taluk, Dakshina Kannada, Mangaluru
District, alleging that accused being the driver of KSRTC
Volvo bus bearing registration No.KA-01/F-8338, on
17.05.2009 drove the same in a rash and negligent
manner while proceeding from Bengaluru to Mangaluru
and at about 6:00 am near Shiradi village at Udane,
dashed to a lorry bearing registration No.KA-01/A-1850
which was parked on the road, loaded with wooden logs.
3. Lorry purportedly was parked on the left side of the
road on account of deflated left side tyre. Because of the
impact of dashing of the bus to the lorry, wooden logs
were ripped into the windshield of the bus and having
regard to the speed of the bus, wooden logs hit the
passengers who were sitting on the left side of the bus and
about 15 to 20 passengers were injured. The injuries
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varied from simple to grievous hurt. Further, five
passengers by name Smt.Prabhatha C. Hegde, Santhosh,
Varaprasad, Satishchandra and Girish died on the spot on
account of grievous hurt sustained in the accident.
4. Having known about the incident, the villagers and
other commuters gathered near the place of accident.
With their help injured passengers were shifted to the
hospital in separate vehicles.
5. Among the injured who were shifted to Mahaveer
Hospital, Putturu, one Ismail lodged the complaint with
Uppinangadi police. Based on the said complaint, police
registered a case in Crime No.117/2009 for the offences
punishable under sections 279, 338, 337 and 304A of the
Indian Penal Code.
6. After registering the case, the Investigation Officer
conducted detailed investigation, recorded the statements
of injured passengers by visiting to the hospital and after
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thorough investigation filed the charge sheet for the
aforesaid offences.
7. Learned Trial Magistrate took cognizance of the
aforesaid offences and secured the presence of the
accused and after completing the procedure as
contemplated under the provisions of Section 207 of the
Code of Criminal Procedure, recorded the plea of the
accused. Accused pleaded not guilty and therefore trial
was held.
8. In order to bring home the guilt of the accused,
prosecution in all examined 19 witnesses as PWs.1 to 19
comprising of complainant, other injured passengers,
mahazar witnesses, doctors who conducted the post
mortem and issued wound certificates and the
Investigation Officers.
9. Prosecution placed on record 54 documentary
evidences which were exhibited and marked as Exs.P.1 to
54 comprising of FIR, photographs, spot mahazar, IMV
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report, wound certificates, inquest reports, post mortem
reports and spot sketch.
10. Detailed cross-examination of the prosecution
witnesses by suggesting that the driver of the lorry had
parked the lorry in a negligent manner and the wooden
logs were protruding outside the body of the lorry which
ultimately resulted in the incident for which accused is no
way responsible, is denied.
11. In the cross-examination of PW-1, portion of the
complaint averment was marked as Ex.D.1 and two
photographs were marked by confronting it to the P.W.1 as
Exs.D.2 and D.3. Portion of the statement of P.W.8
wherein contradiction was found was marked as Ex.D.4.
Likewise, contradictory statements given by P.Ws.9 and 10
were marked as Exs. D.5 and D.6. Photographs of the
parked lorry was marked at Ex.D-7.
12. Thereafter, learned Trial Magistrate proceeded to
record the accused statement as is contemplated under
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Section 313 of the Code of Criminal Procedure. Accused
has denied all the incriminatory materials that were found
in the case of the prosecution and did not chose to offer
his explanation to the incriminatory materials either in the
form of written statement as is contemplated under section
313(4) of the Code of Criminal Procedure nor examined
himself to substantiate his defence that because of the
negligent parking of the lorry, the accident has occurred.
13. To question No.28 in the accused statement, accused
has stated that the incident has not occurred on account of
his fault and requested the Court to accept the documents
to be filed by him.
14. Thereafter, learned Trial Magistrate heard the parties
in detail and on considering the oral and documentary
evidence placed on record in a cumulative manner
recorded an order of conviction and sentenced the accused
to undergo imprisonment for a period of one year for the
offence punishable under Section 304A of the Indian Penal
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Code and three months imprisonment for the offence
punishable under Section 338 of the Indian Penal Code and
directed to pay compensation of Rs.1,000/- to each of the
injured passengers and to pay Rs.2,000/- to each of the
dependents of the passengers who died in the accident.
15. Being aggrieved by the same, accused preferred an
appeal before the District Court in Criminal Appeal
No.2/2014.
16. Learned Judge in the First Appellate Court after
securing the records, heard the parties in detail and by the
judgment dated 04th April 2016 dismissed the appeal filed
by the accused, inter alia, holding in paragraph 17 to 32 as
under:
"17. Out of 19 witnesses examined by the
prosecution PW1 is complainant cum injured while he
was travelling in the offending bus at the time of
accident. PW2 to 7 are injured cum passengers of
the said bus. PW8 and 9 are eyewitness cum driver
and cleaner of lorry bearing No. KA 01-A-1850 which
was parked by the side of road on the date of
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accident. PW10 is eyewitness to the accident as he
was having shop by the side of Mangalore-Bangalore
NH 48, at Udane. PW11 and 12 are panch witnesses
to Ex.P18 spot panchanama. PW13 is Motor Vehicle
Inspector who tested KSRTC bus and above said
lorry. PW14 is conductor of offending bus. PW15 is
owner of above said lorry. PW16 is W.H.C. who
carried FIR from Uppinangady PS to the Court. PW
17 is police constable of Uppinangady PS who visited
Mahaveera Hospital Puttur, as per the direction of
PSI, on 18-05-2009 at about 8-00a.m. and recorded
statement of PW1 between 9-30a.m. to 10-00 a.m.
as per Ex.P1 and produced the same before PSI.
PW18 is PSI who firstly visited the scene of
occurrence on 18-05-2009 after receipt of
information about the accident and sent dead bodies
to Uppinangady and Puttur Government hospital and
directed PW17 to go and record statement of
complainant and after receipt of Ex.P1 registered
case in Cr.No.117/2009 and sent FIR to the Court
through PW16. PW19 is the then CPI of Puttur Rural
Circle who completed investigation and filed charge
sheet.
18. In this case admittedly the KSRTC Volvo
bus bearing Reg.No. KA-01-F-8338 departured
Bangalore at about 11-00p.m. on 17-05-2009, in
which PW1 to 7 were travelling as passengers. So
also the other injured and deceased persons were
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travelling as passengers. Admittedly bus reached a
place called Udane on NH 48 of Bangalore-
Mangalore.
19. It has come in the evidence of PW1 that
he was sitting at seat no.28 in the said bus and
when it reached at Udane of Shirady bus was with
high speed and without noticing the lorry which was
parked by the side of road, driver of bus dashed to
the said lorry, in which wooden logs were loaded and
that the log ripped the glass and went inside the
bus, then bus gone at the distance of 100 meters
from the place of incident and due to the hit by the
wooden logs which ripped into bus had claimed some
lives. Himself and other people have sustained
injuries. On which part of his body injuries are
caused are also deposed. According to PW1 there
was sufficient space in the place of accident, to move
the vehicle, despite of that driver of the bus had
committed such mistake, which resulted in the
accident. It has come in the evidence of PW1 that
accident occurred due to high speed driving by the
accused. The evidence of PW1 has been referred by
the lower court in para no 10 to 14 of the judgment.
So also referred the evidence of PW2 to 7 in para
no.15 to 20 of the judgment. On perusal of evidence
of PW1 to 10 it is found that they unequivocally
deposed that accident took place due to fault of
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driver of the bus as it was driving with high speed
and negligently and dashed to the parked lorry.
20. Learned counsel for accused elicited in the
cross-examination of PW1 that usually in National
High way vehicles would go with speed. He admitted
the suggestion that usually to facilitate to give side
to vehicles coming from opposite side, the vehicles
would take to left side. It is elicited in page no.4 of
his cross- examination that bus was going at a speed
of 120/km/hour. Further elicited that the width of
road is 25 to 30 feet and on the right side of road
there is no rough road, but on left side of road there
is rough road like same width of tar road. It is the
defence of accused that the accused took his bus to
the left side since from his opposite side another
vehicle was coming by overtaking some other vehicle
and in order to avoid the accident, he took the bus
to the left side and after taking the bus to the left
side, then while taking bus to tar road, by that time
wooden log loaded to the lorry which extended to
rear side dashed to the bus.
21. Of course PW1 has denied the above
suggestions, but the above defence shows that if
accused took the bus to the left side by giving way
to the opposite vehicle, to avoid accident, he should
have gone in the same direction in the mud/rough
road, ahead. It appears that because of parking of
lorry on left side of mud road, he took the vehicle to
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the tar road i.e. towards right side, from mud road.
It is not the defence of accused that after taking bus
from tar road to left side he stopped for a while in
order to avoid accident. Had the accused controlled
the bus in the process of taking from left side to tar
road the accident would not have been occurred.'
22. PW2 denied the suggestion of defence
counsel that in claim petition filed for compensation
he has stated that accident occurred due to fault of
accused and for the same reason he is deposing so
in this case. But nowhere suggested that the accused
was not driving the bus with high speed and
negligently. Simply suggested that accident was not
caused due to fault of accused. PW3 in his cross-
examination denied the suggestion that accident not
occurred due to the fault of the accused. Further
denied that accident occurred due to fault of lorry
driver. It is suggested to PW6 in her cross-
examination that in order to claim compensation she
falsely deposed that accident occurred due to fault of
bus driver. PW7 also in her cross-examination denied
the suggestion that there was no fault of driver of
the bus. Further denied the suggestion that accident
took place due to fault of driver of lorry.
23. PW8 and 9 being owner and cleaner of
above said lorry and they are independent
witnesses. They deposed about date place and time
of the accident and parking of lorry facing towards
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Mangalore on the side of Mangalore-Bangalore tar
road. PW8 further deposed that bus was coming with
high speed and due to accident five persons
travelling in the bus were died. At the time of
accident he was standing by the side of lorry, they
shifted injured to the hospital and thereafter
informed to the police. Police came after two hours
of the accident. He showed accident spot to the
police so also villagers showed police prepared
mahazar, to which he has signed. He has identified
spot mahazar as per Ex.P18 and his signature as per
Ex.P18a. He has identified the accused before the
Court and also stated that he has given statement to
the police. PW8 has specifically deposed that
accident took place due to the fault of driver of the
bus.
24. PW9 also deposed as to when where and
how the accident took place. According to him bus
came with high speed and rammed to parked lorry.
Himself and his lorry driver went and saw that
passengers of the bus were sustained injuries and
injured were sent to hospital in the vehicles came
there. He has given statement before the police. He
has identified the vehicles in the photos Ex.P2 to 17
and also deposed that accident took place due to
fault of driver of bus.
25. In the cross-examination of defence
counsel PW8 admitted the suggestion that wooden
14
logs extended outside body of the lorry. PW8
voluntarily deposed that he has installed signal. But
admitted that the parking light and indicator light
were not visible, as same is not visible in Ex.P14. He
denied the suggestion that violating the rules he
loaded and parked vehicle on the side of the road
due to which accident took place and same is his
fault. It has come in the cross-examination of PW9
that they installed signal light in respect of extending
of wooden logs from the body of lorry. When
confronted Ex.P12 to 17 he admitted that the said
signals are not visible. He has also denied the
suggestion they parked lorry across the road to
some extent by the side of road. Further denied the
suggestion that for the said reason the logs loaded in
lorry came across the tar road. Further denied the
suggestion that accident took place due to fault of
driver of lorry.
26. PW10 who is independent witness also
deposed as to when were and how and because of
whose fault the accident took place. He has also
deposed about parking of lorry and presence of its
driver and cleaner. He deposed about death of
passengers of the bus and also injuries sustained by
some of the passengers. According to him accident
took place due to the fault of driver of bus. In the
cross-examination of defence counsel he has denied
the suggestion that driver of the lorry is his villager
15
and he used to come to his shop. Further denied the
suggestion that accident though was not took place
due to fault of bus driver, but falsely deposed that it
was took place due to fault of bus driver, since lorry
driver belongs to his caste.
27. PW14 and 16 to 19 are official witnesses
deposed about their official acts. In this case
accident is admitted, but according to counsel for
appellant due to faulty parking of wooden logs laden
lorry across the road to some extent and logs were
extended from the body of lorry to the extent of
1.8meters this accident took place. Learned counsel
for appellant attempted to shift entire criminal
liability/burden on the driver of lorry. But on perusal
of oral and documentary evidence on the side of
prosecution it is very much clear that accident took
place due to rash and negligent driving of bus by its
driver i.e. accused. Same is rightly observed by the
trial court in its judgment. The lower court rightly
observed that accused drove the bus so as to
endanger to human life and safety of others without
keeping in his mind that vehicles of such kind could
often stop due to various reasons and where the
place of accident there is no curve to say that
accused had no chance to see the vehicle parked by
the side of the road.
28. The trial court rightly followed the decision
relied upon by learned APP before the trial court
16
reported in ILR 2004 KAR 1459 in the case of Ishwar
Sadeppa Nandennanavar Vs State of Karnataka. In
para no.16 of judgment lower court by referring
evidence of conductor of the bus i.e. PW14 observed
that conductor of offending vehicle himself has
deposed in the examination-in-chief as the accident
was occurred due to the fault of the accused and
came to the conclusion that accident was occurred
due to fault of accused, has to be taken into
consideration. Further observed in page no.28 of the
judgment that credibility of witnesses and injured,
the court has to consider other factors pertaining to
the injured, surrounding circumstances, probabilities,
and to weigh the same. In para no.62 of judgment
the trial court observed that there is clear absence of
care and caution on the part of accused in whose
hand more than 30 lives were handed over and if he
could have taken little caution, definitely he could
have avoided accident and he should not shift the
responsibility on others, and it is only a blame game
to escape from clutches of law. Further observed
that if really owner and driver of lorry have violated
the traffic and permit rules, there is separate Penal
Provision to punish such offenders and what has
done by this accused to avoid the accident is not
placed on record. The further observation of lower
court is that the other defence of the accused is that
he gave way to another lorry to avoid head on
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collision and it is only a self serving statement of
accused. The lower court believing the evidence of
prosecution witnesses came to right conclusion that
accused has committed the offences and rightly
answered points for consideration in the affirmative.
29. As could be seen there are no any glaring
omission and contradictions in the evidence of
prosecution witnesses which come in the way of
conviction of the accused. The trial court has
properly appreciated the evidence of prosecution
witnesses and not committed any error. Any minor
contradictions, according to accused will not go to
the root of the case.
30. The following rulings cited by the counsel
for appellant
1. 2014(2) SCC (Crl) 497 in the case of
Basappa Vs State of Karnataka
2. AIR 2000 S.C. 2511 in the case of
Mohammed Aynuddin Vs State of A.P.
reported in AIR 2000 SC 2511
3. 2008(4) KCCR 2177
4. ILR 2006 Karn.3621
5. 2015(3) KCCR 2013 in the case of
Pakariah Sangaiah Halakeri Vs The State
of Karnataka where in it is held that the
evidence of conductor was crucial and
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cannot be ignored-Lower Appellate Court
also ignoring evidence of conductor,
except recording that he was treated as a
hostile witness-This cannot be reconciled
with evidence of other witnesses who
were apparently asleep at that point of
time-Held, both Courts below have
committed an error in holding that
accident had occurred as a result of rash
and negligent driving on part to
petitioner.
The above decisions will not come to the
help of appellant.
31. On the other hand the learned PP relied on the
following decisions
1. 2004(4) Crimes 52 in the case of
M.Nagaraju Vs State of Whitefield Bangalore
wherein it is held that no explanation by
accused as to cause of accident in his
examination u/s 313 Cr.P.C.- Defence plea
that a cow tried to cross the road and to avoid
same, driver was forced to take bus to
extreme right was denied by most of
witnesses.
2. (2012) 3 SCC cases 1107 in the case of
Ravi Kumar Vs State of Rajasthan wherein it is
held that rash and negligent driving has to be
19
examined in the light of the facts and
circumstances of a given case. Speed of
vehicle not always determinative-Reckless and
negligent driving at slow speed is also
possible. Principle of Res-ipsa loquitur is also
applicable to criminal cases of accident.
3. ILR 1999 Kar 1498 in the case of State by
Bidadi Police Station Vs S.B. Marigowda
wherein it is observed that sometimes after
hearing the sound only the person will turn
down and would see about the happening.
This does not mean that he is not a eye
witness out and out. This witness might not
have been able to give the whole graphic
picture of the accident. Neverthless he speaks
of his presence and would also speak of the
manner of accident and place of accident. He
has immediately filed the complaint as per
Ex.P1.
4. ILR 2004 Kar 1459 in the case of Ishwar
Sadeppa Nandennavar Vs State of Karnataka
rep-by its State Public Prosecutor, Bangalore
where in it is held that -"A person like a driver
of a offending vehicle has been called out for
having special knowledge of the occurrence
and if he does not explain the same when he
has been given a last opportunity while
questioned under Sec. 313 Cr.P.c. after the
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prosecution has discharged its burden prima
facie the courts are entitled to draw adverse
inference.
32. The principles of said decisions are
applicable to the case on hand. In a recent decision
reported in 2015(5) SCC page 182 in Criminal Appeal
No.520 of 2015 in the case of State of Punjab Vs
Saurabh Bakshi it is observed by the Hon'ble Apex
Court that -"It is sometimes said in an egocentric
and uncivilised manner that law cannot bind the
individual actions which are perceived as flaws by
the large body of people, but, the truth is and has to
be that when the law withstands the test of the
constitutional scrutiny in a democracy, the individual
notions are to be ignored. At times certain crimes
assume more accent and gravity depending on the
nature and impact of the crime on the society. No
court should ignore the same being swayed by
passion of mercy. It is the obligation of the court to
constantly remind itself that the right of the victim
and be it said on certain occasions the person
aggrieved as well as the society at large can be
victims, never be marginalized. The principles of said
decision are aptly applicable to the present case on
hand, and same is followed by this Court."
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17. Being further aggrieved by the same accused is
before this court in this revision petition on the following
grounds:
The conviction and sentence passed by the
Courts below are contrary to law, illegal and liable to
be set aside to meet the ends of justice.
The courts below have failed to note that the
ingredients of alleged offence are not made against
the petitioner. The Courts below have not properly
considered and appreciated the evidence on record.
The Courts below have convicted the
petitioner on assuming the connection in narration of
facts, although they are inconsistent.
The Courts below have failed to note that in
the absence of reliable independent evidence and
proving the case beyond reasonable doubt in
convicting the petitioner is bad in law.
That the prosecution mainly on the evidence
of the complainant and evidence of PW-8 PW-9 and
PW-15 are the interested witness to the prosecution,
the courts below have failed to note that there is a
serious infirmity in the prosecution case about the
presence of the eye witness.
22
The courts below have not applied the
principle of Res-ipsa-loquitor to asses the actual
cause for the alleged accident.
Both the courts below have misunderstood the
concept of speed, rash and negligent driving. Mearly
driver is driving the vehicle at high speed doeds not
mean that he is rash and negligent. In the present
case both the courts below have not appreciated the
defences of the petitioner that the lorry was loaded
were protruded outside the body of the lorry. The
prosecution case itself is that the timber logs were
ripped through the left side window pane and came
inside the bus. Thus there was no head on collusion
and that itself goes to show that the lorry was
negligently parked, however both the courts below
have not considered the above admitted fact at all.
The Courts below have failed to note that the
prosecution has failed to prove the case beyond
reasonable doubt. Under these circumstances,
convicting the petitioner is unsustainable.
The Courts below have failed to note that
there are no materials to hold that the petitioner is
guilty of the offence alleged. Further, there are no
materials to hold that the petitioner was negligent
and was responsible for the death of the victims. The
Courts below have not properly appreciated these
aspects.
23
The courts below failed note that the Ex.P-1
complaint has been prepared after preparation and
deliberations and that too after the investigating
officer to the spot. The delay in registration of the
FIR lends support to the defense of the accused and
since the FIR is hit by Sec. 161 of Cr, PC, both the
courts below ought to have discarded the
prosecution version set up on the basis of Ex.P-1.
The Courts below have failed to note that the
spot mahazar and the cause of accident are not
proved in accordance with law. Further, there are no
materials to hold that the petitioner is responsible
and guilty of the offence. The ingredients of the
offence are also not made out. There is a serious
infirmity in the case of the prosecution of not
examining the author of the PM Report.
The court below has committed an error in
convicting the petitioner on surmise and conjectures.
The prosecution has failed to prove the guilt beyond
reasonable doubt. The sentence and conviction of
the petitioner is bad in law and same is liable to be
set aside to meet the ends of justice."
18. Sri Aruna Shyam, learned Senior Advocate
representing the accused- revision petitioner before this
Court reiterating the grounds urged in the revision petition
vehemently contended that, as could be seen from the
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operative portion of the order passed by the Trial Court,
learned Trial Magistrate failed to convict the accused for
the offence punishable under Section 279 of the Indian
Penal Code. Therefore, conviction of the accused for the
offence under Sections 338 and 304A of the Indian Penal
Code is impermissible.
19. He also pointed out that the application of the maxim
res ipsa loquitur is impermissible as the prosecution is
required to establish its case by placing cogent and
convincing evidence on record.
20. He also pointed out that the incident has occurred on
account of improper parking of the lorry on the highway
and so also loaded wooden logs were protruding outside
the body of the lorry without there being any caution. He
further pointed out that that the incident has occurred on
17.05.2009 at about 6.00 am. The visibility of the road
was not so clear as it was rainy season. Therefore,
negligence could not have been attributed to the driver of
25
the bus which is sine qua non for convicting the accused
for the offences punishable under Sections 338 and 304A
of the Indian Penal Code.
21. He also contended that the learned Trial Magistrate
has not properly appreciated the defence evidence, viz.,
Exs.D-2, 3 and 7/photographs. He further pointed out that
the judgment of the learned Trial Magistrate is nothing but
reiteration of the case of the prosecution and therefore,
there is no application of judicious mind while passing the
impugned judgment resulting in miscarriage of justice and
sought for allowing the revision petition.
22. He further pointed out that learned Judge in the First
Appellate Court did not independently appreciate the
material evidence on record and improperly dismissed the
appeal in a mechanical manner and sought for allowing the
revision petition.
23. Learned Senior Advocate further contended that the
photographs produced by the prosecution on comparison
26
with the photographs placed on record by the accused vide
Exs. D-2, 3 and 7 would make out a case that it is the
improper parking of the lorry in a negligent manner with
wooden logs protruding outside the body of the lorry which
has resulted in the incident and thus sought for allowing
the revision petition.
24. In support of his arguments Sri Aruna Shyam,
learned Senior Advocate placed reliance on the following
judgments:
(i) Syed Akbar vs. State of Karnataka reported in
(1980)1 SCC 30.
(ii) Nanjundappa and another vs. State of
Karnataka reported in 2022 SCC Online SC
628.
(iii) State of Himachal Pradesh vs. Manohar
Singh, Crl. Appeal No.288/2004 Date:
18.03.2011.
(iv) State of Karnataka vs. Satish reported in
(1998) 8 SCC 493.
(v) Kishore Chand Joshi vs. State, reported in
2018 SCC Online Del 12337.
27
(vi) Abdul Subhan vs. State (NCT of Delhi)
reported in ILR (2006) II Delhi 882.
25. Per contra, Sri Vinay Mahadevaiah, learned High
Court Government Pleader supports the impugned orders
by contending that the material on record is rightly
appreciated by both the Courts in recording an order of
conviction for the aforesaid offences and sought for
dismissal of the revision petition.
26. He further pointed out that the accused failed to
place his version on record and suggestions made by
learned counsel for the accused in the cross-examination
of prosecution witnesses having been denied and other
material evidence on record fortify the allegations leveled
against the accused by the prosecution, recording an order
of conviction by the learned Trial Magistrate confirmed by
the learned Judge in the First Appellate Court is just and
proper and sought for dismissal of the revision petition.
27. He also pointed out that the learned Trial Magistrate
did not properly worded in the operative portion of the
28
impugned Order. But, on perusal of the operative portion
of the order passed by the learned Trial Magistrate, it is
crystal clear that the learned Trial Magistrate has convicted
the accused for all the offences which were charged
against him. Therefore, contention on the part of the
learned counsel for the revision petitioner that there was
no negligence on the part of the accused and therefore
conviction for the offence punishable under Section 337,
338 and 304A of the Indian Penal Code is impermissible,
cannot be countenanced in law and sought for dismissal of
the revision petition.
28. He also pointed out that the prosecution witnesses
who are also injured in the incident did not nurture any
enmity or animosity against the accused and taking note of
the fact that five passengers have died on the spot and
several others were injured in the accident, negligence on
the part of the driver of the bus has to be taken into
consideration as is depicted by the photographs relied on
29
by the prosecution and sought for dismissal of the revision
petition.
29. Having heard the parties this Court perused the
material on record meticulously.
30. On such perusal of the material on record, the
following points would arise for consideration:
(i)Whether the revision petitioner makes out a
case that the impugned judgments are
suffering from legal infirmity, patent factual
error calling for interference by this Court?
(ii) Whether the sentence is excessive?
(iii) What Order?
31. REGARDING POINT No.1: In the case on hand, the
accident is not in dispute, so also, the revision petitioner/
accused being the driver of the KSRTC Volvo bus bearing
registration No.KA-01/F-8338. Death of five passengers
and injury to other passengers is also not in dispute.
30
32. Complainant is one of the passengers in the said
bus. He has intimated the police about the incident and
police reached the spot at about 7.15 am. Complaint
came to be registered in Mahaveer Hospital at Putturu
between 9.00 to 10.00 am on the same day and FIR came
to be registered at 10.30 am. Very fact that there is death
of five passengers and injury to 17 passengers in the
unfortunate incident depicts the ghostly incident.
33. It was tried to be impressed upon before this Court
by the learned counsel for the revision petitioner that the
lorry parked on the left side of the road was loaded with
wooden logs which had protruded from the body of the
lorry and the hind side. It was also tried to impress upon
this Court by the learned counsel for the revision petitioner
that some of the wooden logs were protruding outside the
body of the lorry on either side of the body of the lorry.
31
34. It was further argued that at the time of the
incident, having regard to the fact it was mid May 2009,
visibility of the road at 6.00 am was not that good and
therefore, accused/ revision petitioner could not see the
lorry with wooden logs protruded outside the body of the
lorry and incident has occurred all of a sudden whereby
movement of the bus by movement of the bus, protruded
wooden logs pierced into the left side of the bus after
hitting the wind shield of the bus whereby it came in
contact with the passengers sitting on the left side of the
bus thereby, entire negligence is on the part of the driver
of the lorry and charge sheet came to be filed against the
revision petitioner by the police without proper
investigation and collection of material evidence.
35. Learned High Court Government Pleader however
supported the impugned Orders as referred to supra.
36. In the light of the above contentions urged on behalf
of the revision petitioner, this Court re-visited into the
32
material evidence on record even though the Court is
required to consider the patent factual error or error of
jurisdiction having regard to the scope of the revision
petition as is held by the Hon'ble Apex Court in the case of
Amit Kapoor vs. Ramesh Chander and another
reported in (2012)9 SCC 460.
37. For the said limited purpose, material evidence is
considered in this Order.
38. P.W.1-Ismail was one of the passenger in seat
No.28. He has deposed about the accident. He has also
stated that bus was moving in high speed and accident has
occurred only on account of negligence on the part of the
bus. Pertinently bus could stop only after 100 mtrs from
the place of the accident. In his cross-examination, no
doubt, he has stated that he was asleep in his seat and
therefore, he did not really witness what caused the
accident.
33
39. P.W.1 also admitted that there was no cautionary
methods like tying red flag on the protruded wooden logs
and, back door of the body of the lorry was open.
40. P.W.2-Manjunatha is yet another passenger who was
travelling with his daughter who also deposed about the
accident and the fact of five passengers losing their life. In
his cross examination also, it is elicited that he was also
sleeping at the time of the accident.
41. So also P.W.3-Ravish Nayak admits that he was also
sleeping at the time of the accident and he has answered
that wooden logs protruded 10 to 12 feet outside the body
of the lorry.
42. P.W.4-Smt.Gayitri admits in her cross-examination
that she came to know about the negligent driving of the
bus by the revision petitioner/accused only after the
accident.
34
43. P.W.5-Nanappa Poojary also deposed about moving
of bus in high speed and admits in the cross-examination
that he did not observe the parked lorry.
44. P.W.6-Smt.Meera is the wife of P.W.5 who also
deposes that she was sleeping in the bus at the time of the
accident.
45. P.W.7-Smt.Vaani in the cross examination admits
that she was sleeping at the time of accident.
46. P.W.8-Lakshmana Gowda is the driver of the lorry
who is an eye witness to the incident. In his cross-
examination he admits that the wooden logs loaded to the
lorry had protruded even outside the body of the lorry and
it was raining on the date of accident. He admitted that at
the time of the accident there was no proper light and it
was dark in the sky.
35
47. P.W.9-Manjunatha being the cleaner of the lorry also
deposed on similar lines that of P.W.8.
48. It is pertinent to note that the suggestions made to
P.Ws.8 and 9 that the accident has occurred on account of
their negligence is denied by them.
49. P.W.10 is an eye witness to the incident who owned
a shop on the National Highway. He has deposed about
lorry being parked on the left side of the road and bus
dashing against the said lorry. He also admits in his cross-
examination that wooden logs which were loaded in the
lorry had protruded outside the body of the lorry.
50. P.W.13-K.S.Ravindra is the Motor Vehicle Inspector.
He admits in his cross-examination that indicator or tail
lamps of the lorry could not have been witnessed by the
drivers driving in the same direction on account of the fact
that the back door of the lorry had been found in open
position which was covering the tail lamps of the lorry.
36
51. P.W.19-Manjaiah being the Investigation Officer
admitted in his cross-examination that if the wooden logs
had not protruded affecting the free movement on the
road perhaps the accident could not have occurred.
52. Such admissions were sought to be canvassed as
patent factual error in recording an order of conviction
against driver of the bus.
53. It is pertinent to note that in the accused statement
recorded under Section 313 of the Code of Criminal
Procedure accused has denied all the incriminatory
circumstances and to question No.28 he has answered that
accident has not occurred on account of his fault and he
has furnished few documents.
54. Sri Aruna Shyam, learned Senior Advocate
contended that, but for the protrusion of one of the
wooden logs which came in contact with the moving bus
whereby windshield of the bus got broken and because of
the allowable speed on the National Highway, if the
37
wooden logs piercing into the bus, bus had moved for
some distance resulting in wooden logs coming into
contact with the passengers sitting on the left side of the
bus lost their lives and few passengers got injured severely
and some with simple injuries.
55. Therefore, police ought to have taken into
consideration the fact of improper parking of the lorry on
the left side of the road and should have filed charge sheet
against the driver of the lorry and not against driver of the
bus, inasmuch as, driver and cleaner of the lorry admits
that on the day of the incident, it was raining and sky was
dark and parking of the lorry was not clearly visible.
56. No doubt, such material evidence has been placed on
record in the form of cross-examination of P.Ws.8 and 9.
However, accused being the professional driver and was
driving in the said road often, ought to have taken such
necessary precaution and expect the unexpected while
driving the bus in question.
38
57. Degree of attentiveness especially in the early hours
where visibility is low, driver is expected to drive the bus
cautiously. Moreover, Motor Vehicle Inspector did not
notice any mechanical defect in the bus. Bus is a
sophisticated Volvo Bus having brighter head lights.
58. Sketch of the place of accident and so also the
photographs that were taken near the place of incidence
would go to show that the road was 21 feet wide. A road
which is wide enough having width of 21 feet, two vehicles
can easily pass through by allowing sufficient margin on
the left side.
59. The photographs that are marked in the evidence
show that the right side of the body of the lorry is also
damaged because of the impact of the accident which
clearly establishes that there was no sufficient margin left
by the driver of the bus. If the driver of the bus had taken
such precaution even when the protrusion of the wooden
39
logs were to be there from the parked lorry, accident
would not have occurred.
60. Accused failed to explain as to was there any
upcoming vehicle so that he could not driven the bus by
leaving sufficient margin on the left side. Mere parking of
the lorry with protruded wooden logs would not therefore
absolve the guilt of rash and negligence on the part of the
accused.
61. It is also pertinent to note that none of the
prosecution witnesses nurtured any enmity or animosity
with the accused.
62. It is settled principles of law that mere high speed is
not the only parameter to adjudge the rash and negligence
in driving a vehicle in a given case.
63. Taking note of these aspects of the matter, learned
Trial Judge and the learned Judge in the First Appellate
Court have categorically recorded the negligence on the
40
part of the accused/revision petitioner while answering the
issues raised especially, for the offence punishable under
Section 279 of the Indian Penal Code.
64. No doubt, the reasoning assigned by the learned
Trial Judge is not that happy enough. But, learned Judge
in the First Appellate Court has supplemented additional
reasons while maintaining the Order of conviction.
65. Taking note of the scope of the revision petition as is
held in the case of Amit Kapoor supra, this Court is of the
considered opinion that in the revision petition this Court
cannot form a different opinion by re-visiting into the
factual circumstances insofar as the guilt of the accused is
concerned and record a different finding by upsetting the
order of conviction.
66. The decision placed on record on behalf of the
revision petitioner in the case of Syed Akbar referred to
supra, deals with a situation as to the fact of appreciation
of evidence where maxim res ipsa loquitur which is
41
incorrect and would be basically applicable for the tortuous
acts and in a criminal case, degree of proof is beyond
reasonable doubt and therefore, said maxim is not
applicable while adjudging the criminal case.
67. No doubt, it is settled principle of law that in a
criminal case, the prosecution is expected to prove its case
by placing such cogent evidence on record beyond
reasonable doubt to bring home the guilt of the accused.
However, in a given case, accused failed to place his
version about the incident and mere parking of the lorry
with wooden logs protruded outside the body of the lorry
would not be sufficient enough to adjudge that accused
drove the bus in a diligent manner.
68. As such, even though there cannot be any dispute as
to the principles of law enunciated in the case of Syed
Akbar supra, same would not be of much avail in
upsetting the finding of conviction recorded by the learned
Trial Judge.
42
69. In the case of Nanjundappa supra, Hon'ble Apex
Court in paragraph 9, reiterated the principles of law
enunciated Syed Akbar's case. Since this Court has
considered Syed Akbar's case and is unable to accept the
contentions on behalf of the revision petitioner with regard
to his diligence, Nanjundappa's case is also of no avail in
recording an order of acquittal.
70. Next decision in line that has been relied upon by the
learned counsel for the revision petitioner is the judgment
in the case of Manohar Singh supra. In paragraph 21 of
the said judgment, High Court of Himachal Pradesh,
Shimla, again placed reliance on Syed Akbar's case
referred to supra. The same is not of much relevance to
the case on hand as there is mechanical defect in the
vehicle that has been noted by the Inspector of Motor
Vehicles and therefore, High Court of Himachal Pradesh,
Shimla, refused to accept the contentions urged on behalf
43
of the State of Himachal Pradesh that the maxim res ipsa
loquitur is to be applied and accused is to be convicted.
71. Since the facts in the case on hand are different and
there is no mechanical defect noted by the Inspector of
Motor Vehicles, said decision is also of not any relevance
while accepting the contentions urged on behalf of the
revision petitioner.
72. The decision in the case of State of Karnataka vs.
Satish referred to supra relied on by the learned counsel
for the revision petitioner would deal with a situation
where driving of the truck in a high speed would not ipso
facto result in negligence or rash driving the vehicle.
73. In the case on hand, as referred to supra, mere high
speed is not the only parameter to adjudge the negligence
or rashness by itself. The very fact that right side of the
lorry being damaged and wooden logs that were loaded in
the lorry had protruded itself into the bus and it was found
from the photographs that it has entered from left side of
44
the bus and then is being seen on the right side window of
the bus shows not only the high speed, but also non
control over the bus while driving the same by the
accused. Therefore, said principles enunciated in the said
decision though cannot be disputed, cannot be made
applicable to the case on hand while accepting the case of
the revision petitioner.
74. The Delhi High Court in the case of Kishore Chand
Joshi, supra, while dealing with the negligence part of the
driver of the vehicle in paragraphs 17, 21 and 23 again
considered what would be the negligent act or rashness
and held that high speed is not the only criteria. While so
discussing about what is negligence and rashness, it has
been held that prosecution has to prove commission of
rash and negligent act by placing cogent and convincing
evidence on record.
75. The facts and circumstances involved in the said
case are altogether different from the facts and
45
circumstances of the present case and therefore, said
decision is also of no avail for the revision petitioner to
assail the finding of guilt of the accused attracting offence
punishable under Sections 279 and 304A of the Indian
Penal Code.
76. The last decision that has been placed on record on
behalf of the revision petitioner is the case of Abdul
Subhan supra. In the said judgment, High Court of Delhi
in paragraphs 10, 11 and 12 again dealt with the fact of
whether high speed would only be sufficient to consider
the rashness and negligence. High Court of Delhi in the
said case placed reliance on the decision rendered in the
case of High Court of Karnataka vs. Satish supra to
hold that mere high speed could not be considered as act
of negligence and rashness ipso facto and therefore, gave
the benefit to the driver of the motor vehicle.
77. In a matter of this nature, after prosecution places
its evidence on record which would be sufficient enough to
46
point the guilt towards the accused, accused is bound to
place his version on record not only furnishing the
explanation to the incriminatory circumstances, but also to
explain how the incident has occurred as he is participant
in the incident. Recording of accused statement under
Section 313 of the Code of Criminal Procedure wherein
such an opportunity is provided for the accused is not an
empty formality or purposeless. It serves dual purpose.
Firstly, affording suitable opportunity for the accused to
have his say about the incriminatory materials which is
mandatory on the part of the Trial Court.
78. Secondly, while recording the accused statement,
accused is not only expected to explain the incriminatory
circumstances, but would be given a fair opportunity to
place on record his version about the incident. If the
accused deliberately fails to utilize such an opportunity,
consequences in law should follow as is held in the case of
Ravi Kapur vs. State of Rajasthan reported in (2012)9
SCC 284.
47
79. In the case on hand, in view of the factual aspects
discussed supra, principles of law enunciated in the said
decisions relied on behalf of accused would not be of any
use in upsetting the finding of conviction recorded by the
learned Trial Judge confirmed by the learned Judge in the
First Appellate Court. Therefore, from the above
discussion, invariable conclusion that this Court can reach
is to hold point No.1 in the negative and accordingly it is
answered.
80. REGARDING POINT No.2: In the case on hand,
because of the rash and negligent driving of the bus by the
revision petitioner, five precious lives have been lost and
17 persons are injured. Taking note of the maximum
period of imprisonment prescribed for the offence
punishable under Section 304A of the Indian Penal Code,
learned Trial Judge in his discretion has imposed one year
simple imprisonment. The State did not appeal against the
quantum of sentence. Therefore, in the considered opinion
of this Court, there is no scope to modify the sentence
48
following the principles of law enunciated in the case of
State of Punjab vs. Saurabh Bakshi reported in
(2015)5 SCC 182. Accordingly, point No.2 is answered in
the negative.
81. REGARDING POINT No.3: In view of the finding of
this Court on point Nos.1 and 2 as above, the following:
ORDER
(i) The Criminal Revision Petition is meritless and is hereby dismissed.
(ii) Time is granted to the revision petitioner to surrender before the learned Trial Judge to serve the sentence, till 28th February 2025.
(iii) Office is directed to return the Trial Court Records along with copy of this Order, forthwith.
Sd/-
(V. SRISHANANDA) JUDGE kcm