Karnataka High Court
Satish S/O Ganapati Gunagi vs The State Of Karnataka on 21 December, 2023
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NC: 2023:KHC-D:14996
CRL.RP No. 100143 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100143 OF 2019 (397)
BETWEEN:
SATISH S/O. GANAPATI GUNAGI,
AGE: 38 YEARS, OCC: KSRTC DRIVER,
R/O: YATTINBAIL, MIRZAN, TQ: KUMTA,
UTTAR KANNADA.
...PETITIONER
(BY SRI. B.G. INDI FOR SRI. K.L. PATIL, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
THROUGH ANKOLA P.S.,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER 397 R/W
401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
SAMREEN ORDER DATED 29/05/2019 PASSED IN CRIMINAL APPEAL NO.
AYUB
253/2008 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DESHNUR
UTTAR KANNADA, KARWAR. SET ASIDE THE JUDGMENT AND ORDER
Digitally signed
by SAMREEN OF CONVICTION DATED 26/11/2008 IN CC NO. 62/2007 BY THE
AYUB DESHNUR
Date: 2023.12.22
JMFC ANKOLA CONVICTING THE PTITIONERFOROFFENCES
11:13:37 +0530
PUNISHABLE UNDER SECTIONS 279, 337, 304 A OF IPC.
THIS PETITION, HAVING BEEN HEARD AND RESERVED ON
30.10.2023, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT PASSED THE FOLLOWING:
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NC: 2023:KHC-D:14996
CRL.RP No. 100143 of 2019
ORDER
The revision petitioner has filed this revision petition challenging the judgment of conviction and order on sentence dated 26.11.2008 in C.C.No.62/2007 passed by the JMFC, Ankola and confirmed by the Principal District and Sessions Judge, Uttar Kannada, Karwar in Crl.A.No.253/2008 vide judgment dated 29.05.2019.
2. For the sake of convenience, parties to this revision petition are referred to as per their rank before the Trial Court.
3. The case of the prosecution in brief is as under:
i) That, on 27.11.2006 one Kumar.Dhananjaya S/o.Vittal Naik aged about 13 years residing in the address so mentioned in the complaint gave his statement in the hospital before PW15-N.G.Bhaskar Rai, the then police inspector, Ankola P.S., stating that he was studying in 7th Standard at KVS School, Ankola. In the same school, his younger brother-
Mrityunjaya, aged about 11 years, was also studying in 5th standard. Everyday, the complainant and his younger brother used to attend their school by walk. It is stated that on 27.11.2006, when he along with his younger brother- -3-
NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 Mrityunjaya and his another friend-Abhilash Maruti Gaonkar aged about 12 years, were moving towards their house by walk. At about 12.10 p.m. when they were so moving from K.C.Road, in front of Harsha Hotel, a KSRTC bus bearing registration No.KA-31/F-620 came from their behind from Ankola bus stand side. The driver of the said bus was driving it in a high speed in rash and negligent manner and dashed against these three persons. This complainant suddenly went towards the side of the road and fell down. But the other two i.e. Mrityunjaya and Abhilash sustained grievous head injuries because of dashing of the bus on their person and they fell down on the road. The bus after dashing them went ahead to some extent and stopped. Due to the impact, the complainant sustained injuries on his left knee. He noticed oozing of blood from the head of Mrityunjaya and Abhilash. After the accident, the people gathered there shifted the injured to Hospital in a vehicle. It is stated that, Mrityunjaja and Abhilash died at 12.40 p.m., on account of grievous injuries sustained by them. It is alleged that, it is because of rash and negligent driving of the bus bearing registration No.KA-31/F-620 by its driver by name -4- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 Satish S/o. Ganapathi Gunagi the said accident has taken place.
ii) With those allegations, he gave a compliant before PW15. Based upon that, PW15 registered the crime in Crime No.264/2006 and set the criminal law into motion. He conducted the investigation and after completion of investigation and by following all formalities, filed the charge sheet against the accused for the offences punishable under Section 207, 304-A and 337 of IPC.
iii) Before the Trial Court, to prove the guilt of the accused, in all 17 witnesses were examined by the prosecution as PW1 to PW17 and got marked sixteen documents as per Ex.P1 to Ex.P16 and signatures thereon and closed the prosecution evidence. The accused also entered the witness box and was examined as DW1. He also examined one more witness as DW2 on his behalf and he got marked documents as per Ex.D1 to Ex.D16 and closed his evidence.
iv) The Trial Court on hearing the arguments and on evaluation of the evidence and on assessment of documents, found the accused guilty of committing offences under Section -5- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 279, 304-A and 337 of IPC and convicted the accused and sentenced him as under:
"Accused found guilty for the offence punishable under Sections 279, 304(a) and 337 of IPC.
Acting under Section 255(2) of Cr.P.C. I hereby convict the accused for the offence punishable under Sections 279, 304(a) and 337 of IPC and sentence him to under go simple imprisonment for one year for the offence punishable under Section 304(a) read with Section 279 of IPC. Accused shall pay fine of Rs.1,000/- in default of payment of fine amount accused shall further undergo simple imprisonment for 3 months.
Further accused is sentenced to undergo simple imprisonment for 2 months for the offence punishable under Section 337 of IPC and shall pay fine of Rs.200/-. In default of payment of fine amount accused shall further undergo simple imprisonment for 15 days."
v) This judgment of conviction and order on sentence was challenged by the accused by preferring an appeal before the Principal District and Sessions Judge, Uttar Kannada, Karwar in Crl.A.No.253/2008. The learned First Appellate Court on hearing the arguments of both the sides vide judgment -6- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 dated 29.05.2019 dismissed the said appeal by confirming the judgment of conviction and order on sentence passed by the Trial Court. This is how, now the revision petitioner is before this Court by way of revision challenging both the judgments.
4. It is submitted by the counsel for the accused that, there is no proper assessment of evidence by the courts below. The judgment of conviction and order on sentence suffers from severe infirmities. The materials placed on record by the prosecution are full of contradictions and omissions. There was no proof of rash and negligent driving of the bus by the accused.
5. It is his submission that, the said accident has taken place near the bus stand. It is contended that, the evidence of DW2 is satisfactory to the extent of how the accident took place. But even then, the Trial Court has proceeded to convict the accused.
6. It is his submission that, all the independent witnesses have not supported the case of the prosecution. As such, the story of the prosecution cannot be accepted. Merely because the accident has taken place, it would not absolve the -7- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 prosecution to prove its case beyond all reasonable doubt. Accused was driving a heavy vehicle and he cannot be held guilt of the offence since there are discrepancies in the evidence adduced by the prosecution. The ingredients of Section 279, 304-A of IPC are not fulfilled by the prosecution. The Trial court as well as First Appellate Court have not considered the arguments advanced by both the sides. Thus, the judgment of conviction and order on sentence so passed by the Trial Court and confirmed by the First appellate Court is without appreciation of evidence in proper perspective, which has resulted in substantial miscarriage of justice to the petitioner-accused. There is no proper appreciation of evidence of the prosecution by the Courts below. Therefore, relying upon the evidence placed on record by both the sides, it is prayed to allow the revision petition and acquit the accused of all the offences.
7. As against this submission, the learned Additional SPP appearing for the State submits that, both Trial Court as well as the First Appellate Court have concurrently held that, because of rash and negligent driving of the bus by accused, the accident has taken place. The complainant-PW1 being -8- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 eyewitness and injured in the alleged accident stated about the manner in which the accused caused the accident. The accused caused two deaths of students who were studying in primary school. One was the brother of the complainant and another one was the friend of his brother. After completion of school hours, when complainant and the above two deceased were proceeding towards their house, the said bus came from Ankola Bus stand and the driver of the said bus without following the mandatory traffic rules and regulations, caused the accident by driving the same in rash and negligent manner. It was a busy road and it was expected by the driver of the bus or the other road users to take all available precautions to avoid any causalities. But in this case, no such precautions were taken by the accused at the time of driving the bus. It is his submission that, because of rash and negligent driving of the bus, the said accident has taken life of two students, who were studying in primary school. The complainant was also injured in the said accident. It is his submission that, both the Courts below have properly appreciated the evidence on record and have rightly came to the conclusion that, the accused is guilty of committing the offences alleged against him. In support of his submission, -9- NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 he too relies upon the evidence placed by the prosecution. He prays for dismissal of this revision petition.
8. I have given my anxious consideration to the arguments advanced by both the sides. In view of rival submissions, the points that would arise for consideration of this court are as under:
i) Whether the findings of the Trial Court in attributing the rash and negligent driving on the part of the accused which is confirmed by the Appellate Court, suffers from infirmity?
ii) Whether the judgment of conviction and order on sentence passed by the Trial Court and confirmed by the First Appellate Court requires interference by this Court?
Point No.1 and 2 are discussed together.
9. Before adverting to the other aspects of the case, let me analyse the admitted facts in this case.
10. That there was an accident on 27.11.2006 at about 12.10 p.m. when the complainant and his brother-Mrityunjaya and friend-Abhilash were moving on K.C.Road, in front of Harsha Hotel, from bus stand side towards their residential
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 house. At that time, a KSRTC bus came from Ankola bus stand and dashed from their behind. Because of this accident, complainant and sustained simple injuries and his brother- Mrityunjaya and friend-Abhilash sustained grievous injuries on their person and died in the hospital at 12.40 p.m. The involvement of KSRTC bus bearing registration No. KA-31/F- 620 in the alleged accident is not in dispute. So also the accused being driver of the said bus at the relevant time. To prove the said aspect of accidental death of Mrityunjaya S/o. Vittal Naik and Abhilash Maruti Gaonkar, the prosecution relies upon the inquest report as per Ex.P2 and Ex.P3. These inquest reports prepared by the Investigating Officer do suggest that the said two boys died in the accident which was taken place on 27.11.2006. They died because of accidental injuries. To prove the said fact, the prosecution relies upon the postmortem reports marked at Ex.P12 and Ex.P13. The contents of these postmortem reports show that, the death of these two persons was due to accidental injuries. In the said accident, the complainant sustained injuries as noticed in Ex.P10. The injuries so sustained are grievous in nature noticed by the doctor. The wound certificate of Abhilash is also collected by
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 the investigating officer as per Ex.P11. These documents are not disputed by the defence.
11. On cumulative reading of the inquest reports, postmortem reports and the evidence of PW1 and other witnesses do suggest that, in the said accident, two boys stated in the inquest report succumbed to the injuries caused in the accident. PW1 has spoken to the effect of he witnessing the accident being eyewitness. Likewise, PW2-Anil Rama Naik, PW3-Shrikant Bovi, PW4-Subbray Gaonkar, PW5-Dinakar Gaonkar, in their respective evidence have spoken about their presence when the inquest panchanama was conducted by the investigating officer. So also the evidence of these witnesses is supported by the evidence of the investigating officer that he conducted inquest panchanama on the dead bodies of those two boys. Therefore, on reading the evidence of these witnesses, it is duly established that, the said two boys by name Mrityunjaya and Abhilash died because of accidental injuries. There is corroborative evidence spoken to by PW15- Investigating Officer by name N.G.Baskar Rai.
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019
12. It is the case of the prosecution that, the said accident has taken place not because of any mechanical defects. But to prove the said fact, the prosecution relies upon Ex.P15-M.V. report. As per mechanical examination made by the Motor Vehicle Inspector, he was of the opinion that, the said accident has taken place not because of any mechanical defects. While marking this document, no serious objections were raised by the defence. However, it is the defence of the accused that, when he was entrusted to drive the said bus towards Keni, he complained to the Traffic Controller that the said bus is suffering from so many mechanical defects. But he was compelled to take the same bus as the passengers were waiting. He complained certain defects in the said vehicle to the traffic controller, however the said defects were not cured and he was compelled to do the duties whatever the traffic controller says or otherwise, action would be taken against him by informing the higher authorities. One thing is clear from the defence of the accused that, the said bus was having certain mechanical defects and it required a repair and though it was brought to the notice of the Traffic controller, no steps were taken and therefore he was compelled to take vehicle as the
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 passengers were waiting and Traffic Controller gave him a threat that he will take action against him by complaining to higher authorities.
13. It is the specific case of the prosecution that, because of rash and negligent driving of the bus by the accused, the said accident has taken place. To ascertain as to whether the accused was really driving the bus in rash and negligent manner so as to endanger human life and caused the accident, this court has to go through the evidence placed on record by the prosecution.
14. PW1 the complainant has reiterated the complaint allegations in his evidence on oath. As per his evidence, when he was moving on the road along with his younger brother and his friend, the offending bus came behind them in a high speed and dashed from their hind side. After dashing them, the said bus went to up to at a distance of 70 ft and stopped. This complainant fell by the side of the road and sustained injuries on his both knees, chest, lips etc. His brother-Mrityunjaya and friend-Abhilash sustained grievous head injuries and died in the hospital. According to PW1, the driver of the said bus bearing
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 Registration KA-31/F-620 was driving it in high speed and in rash and negligent manner so as endanger human life. After the accident, they were taken to hospital. In the hospital, he gave his statement as per Ex.P1.
15. This PW1 has been thoroughly cross-examined by the defence. It is his evidence that he left the house along with his younger brother at 7.00 a.m. in the morning on the said day. From hospital he was taken to the place where accident has taken place and thereafter he went to his house. According to him, in between 2.00 to 3.00 p.m. he was with police. On the following day of the accident, the police came to him and recorded his statement. It is elicited in the cross-examination that the place of accident is the heart of the city of Ankola City. He admits that by the side of the said road, there were number of shops situated. Always numbers of people move on the said road. So also he admits that, all along by the side of the road, people parked their two wheelers, cycles etc. It is suggested to this witness that, because of parking of vehicles, the place of accident had covered 8 to 10 ft of the road by the parked vehicles. But the said suggestion was answered by PW1 stating that when the said accident has taken place, ample width of
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 road was available for movement of the bus. He has stated that he came to know about the said accident only when the bus dashed him from his behind. It is further suggested to him that the said bus came without any sound and dashed to him. The place of accident is about 100-200 ft away from Ankola bus stand. He admits that immediately after the accident, nearly 100 people gathered at the spot. He denied all other suggestions.
16. He being eyewitness and injured in the said accident has spoken about the negligent driving of the bus by the accused. Suggestions so directed to this PW1 establish that the accused being driver of the bus knew about the condition of the road commencing from Ankola bus stand towards Keni village being busy road i.e. number of people used to move on the said road, number of vehicles ply on the said road but even then the accused drove the said bus without any sound as per the say of PW1. As per the defence of the accused, the said bus had no ignition starter at all. Due to which he asked some of the passengers available in the bus to push the said bus. When the accused himself has asked the passengers to push the bus, he could have taken available precautions. Even it is the
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 defence of the accused that, the bus was at all not having horn. If that is so, the accused must be very cautious but he has not taken any precautions, which were available to avoid the causalities.
17. The prosecution has also examined the so called eyewitnesses to the said accident. Amongst them, PW6- Hariyappa Tukaram Kotyan has stated that on the date of the incident i.e. on 27.11.2006, when he was standing in front of his hotel, he noticed that, the bus was going from Ankola bus stand and at that time, school children were moving by the side of the road. The said bus dashed to three boys who were moving on the road. But in the cross-examination, it is elicited that, he has not seen the said accident and only came to know about the accident after hearing galata. It is suggested to this witness that, by the side of the said road as there was parking of the vehicles on either side of the road, the road available was very small. But the said suggestion is denied.
18. PW7-Kamalaksha Gaonkar is another eyewitness. He too speaks in similar terms as that of PW6. He has also seen the said accident only after its occurrence. He also states that
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 the width of the road at the place of accident is very small. He went to the scene of offence only after hearing galata.
19. PW8-Ekanath Khemu Naik is also another eyewitness to the said accident. He went to the scene of offence only after hearing the noise of the accident as per his evidence. He turned hostile to the case of the prosecution.
20. PW9-Raju Ramachandra Naik is pancha to Ex.P5 & P6. He also turned hostile to the case of the prosecution. He states that, when the panchanama was conducted, he was very much present at the scene of offence, the police have seized certain glass pieces. Though he has been directed with severe cross-examination, but nothing worth is elicited.
21. PW10-Shankar Tukkappa Naik has shifted the injured to the hospital. He turned hostile to the case of the prosecution. To the extent of he shifting the injured to the hospital, his evidence has to be accepted. Though he has been cross-examined by the prosecution, he has denied all the suggestions.
22. PW11-Sanjay Modi is a pancha to Ex.P6. In his presence Ex.P5 and P6 panchanamas were conducted. With
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 regard to drawing of panchanama at the scene of occurrence, there is no dispute raised by the defence.
23. PW12-Rajesh Mitra Naik is an eyewitness. He too speaks in line with the evidence of PW6 and PW7 with regard to noticing of the accident. He has shifted the injured to the hospital as per his evidence. Though he has been cross- examined at length but he has spoken about the said accident in his examination-in-chief, which is not properly denied in the cross-examination.
24. PW13 is the traffic inspector attached to Ankola bus stand wherein he speaks about issuance of Ex.P8 i.e. entrusting of the said offending bus to the accused on the date of the accident. Except denial, nothing is elicited.
25. PW14 is another eyewitness. According to his evidence, on the date of the accident i.e. on 27.11.2006 at about 12.00 noon, when he was standing near rickshaw stand, one bus came from bus stand and dashed against three boys who were moving in from of Harsha hotel. Because of the accident, two boys came under the tyres of the said bus and another boy sustained small injuries on his person. According
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 to his evidence, he has seen the said bus on Ankola-Kumta main road. He states that the said accident has taken place on Kachcha road. Except this, there is no other contradiction or omission brought on record in his cross-examination.
26. PW15 is the investigating officer. He has conducted investigation and filed the charge sheet. So far as conducting investigation by him and filing of the charge sheet, is not denied by the defence.
27. PW16 Nityanand Pandit is pancha to Ex.P3-inquest panchanama. Nothing worth is elicited to disbelieve his evidence.
28. PW17-Laxminarayan Purasayya Naik was the motor vehicle inspector, who mechanically examined the offending bus and issued the M.V. report as per Ex.P15. The contents of Ex.P15 are disputed by the defence. The only defence of the accused is that the said bus was not in proper condition and it was under repair. As per the defence, because of force by his superior officer, the accused drove the said bus. But to substantiate this fact, nothing worth is elicited from the mouth of this PW17 by the accused. However, no fitness certificate
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 was issued in respect of the offending bus by the RTO as per the evidence of PW17.
29. DW1 being the accused in this case, in his evidence, has stated that he was entrusted with the offending bus on 27.11.2006 at about 7.30 a.m. First trip he took the said bus from Ankola to Belangal. As the break system of the bus was not in order, he cancelled the said trip. Thereafter, at 9.30 a.m. he took the said bus for another trip. He was unable to start the said bus and but was started by pushing. For the third trip, he was to go from Ankola to Manjaguni at 11.30 a.m. The traffic controller asked him to go to Honnebailu village by cancelling the Manjaguni trip. At that time, he informed the traffic controller that he would get inspect the bus but the traffic controller did not permit him to take the said bus for inspection and compelled the accused to continue his third trip to Honnebailu as already the passengers have boarded the bus. He further states that at about 12.15 p.m. he was driving the said bus towards Honnebailu. The said bus did not start and therefore, he asked the some of the passengers to push the said road. For the first time in his evidence, without any suggestion to anybody, it is stated by him that, the said bus
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 had already run for more than 10 lakh km and to that effect he issued notice to the authorities concerned. He has also stated in his further examination-in-chief that as per KSRTC Rules if the bus runs more than 6 lakh km, such bus will be sent for scrap. But no such evidence has been brought on record by the defence except self-serving say of DW1. DW1 stated that there was no horn, no ignition starter and no meter in condition and the breaks of the said bus were also not in order. For the first time, without any evidence, DW1 spoken has all these facts.
30. He has been directed with severe cross- examination. It is alleged that, he has informed about the defects in the said bus to his higher authorities. When the said bus was not in order, it was expected by the driver of such vehicle to see only the bus which is in order and roadworthy, has to be plied on the roads. But in this case, DW1 being driver of the bus has not taken all available precautions. As per his evidence, he yielded to the pressure of his superior officers. But he being a responsible driver, must have been aware about the passengers who travel in the said bus. So also the persons who are moving on road both in vehicles and by walk. But DW1 has not followed all the requirement of a professional driver. The
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 said traffic controller is not examined to prove the same of accused.
31. DW2-Mahesh Naik is a witness examined by the prosecution to show that the said bus started by pushing it on the day of the accident. This fact is also not disputed by the prosecution.
32. In a case of present nature, when rash and negligent driving of the bus is attributed against the driver of the bus, it is the bounden duty of the prosecution to prove the rash and negligent driving by the driver. In this case, as stated supra, the driver of the bus was driving it from Ankola bus stand towards Honnebailu, which was not in order. As per the evidence brought on record, it was a busy road. So many vehicles were plying on road, so also people were also moving on either side of the road. If that is so, when he was driving the said bus, according to him which was not in good condition, he must have taken all available precautions. Non-taking of such precautions amounts to rashness and negligence on the part of the accused. In a case of present nature, when such rash and negligence is attributed against the accused, it is well settled
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 that in such a case, the rash and negligence have to be attributed against such drivers. On this aspect law is laid down by the Hon'ble Apex Court with regard to accidental deaths and injuries by defining the negligence, reasonable care, rash and negligent driving, culpable rashness and negligence in judgment in the case of Ravi Kapur v. State of Rajasthan1 has held as under:
A. Penal Code, 1860 - Ss. 304-A, 279 and 337-Road accidents-Rash and negligent driving-Preconditions for invocation of S. 279 IPC, restated-Determination of negligent and rash driving-Relevant considerations-Nature of proof-Can be inferred from attendant circumstances- Doctrine of "res ipsa loquitur" (thing speaks for itself)-Also applicable to criminal cases of accident-Principle of "reasonable care" and concept of "culpable rashness" and "culpable negligence"-Meaning and application of, explained
-Held, rash and negligent driving has to be examined in the light of the facts and circumstances of a given case- Speed of vehicle not always determinative possible- Reckless and negligent driving at slow speed is also possible
-In present case, a bus coming from opposite direction driving on wrong side of the road colliding with a jeep 1 (2012) 9 SCC 284
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 and resulting in death and injuries to persons travelling in jeep - No dispute as to said accident - Consistent statements of eyewitnesses that bus was being driven by accused, who after the accident parked it at a place away from place of occurrence and ran away-Conduct of moving bus after accident to a different point indicated that it was being driven on wrong side of road - No reason to disbelieve reliable and trustworthy testimony of eyewitnesses - In view of these facts and having regard to principle of res ipsa loquitur, judgment of High Court reversing acquittal and convicting accused under Ss. 304- A, 279 and 337 IPC, held, proper and not liable to be interfered with - Motor Vehicles Act, 1988, Ss. 184 and 166
-Words and Phrases - "Negligence", "reasonable care", "rash and negligent driving", "culpable rashness" and "culpable negligence"
A bus, which was coming from opposite direction following wrong side of the road, collided with a jeep resulting in death and injuries to persons travelling in the jeep. An FIR of the said accident was registered on the basis of information given by PW 2, who was travelling in another jeep which was behind the jeep which met with the accident. The bus driver was put to trial for offences under Sections 304-A, 279, 337 and 338 IPC. The prosecution examined as many as 11 witnesses including four eyewitnesses, doctors and the investigating officer himself. The trial court disbelieved the testimony of the eyewitnesses on the basis of certain contradictions in their testimony and held that the prosecution failed to prove its
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 case beyond reasonable doubt. Consequently, the trial court acquitted the accused of all the said charges. In appeal, the High Court concluded that the judgment of the trial court was incorrect, and therefore, it reversed the judgment of acquittal and convicted the accused under Sections 304-A, 279 and 337 IPC and awarded sentence in relation thereto. Hence, the present appeal by the accused bus driver.
The accused argued that as per the settled law, the appellate court should normally not interfere with the judgment of acquittal unless it is perverse and contrary to the evidence on record. He contended that the High Court in the instant case exceeded its jurisdiction in reversing the judgment of acquittal. As per the accused, there was no evidence on record to identify or link him with the commission of the offence. He stated that there was no direct evidence to show that he was driving the bus involved in the accident. He also submitted that even if it was presumed that he was the person driving the bus at the relevant time, still there was no evidence to prove that he drove the bus rashly and negligently.
Dismissing the appeal, the Supreme Court Held:
The preliminary conditions for applicability of Section 279 IPC are that: (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently, and
(c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied,
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 the penalty contemplated under Section 279 IPC is attracted.
(Para 12) Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to "rash and negligent driving" within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life".
(Para 12) "Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.
(Para 13) The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
(Para 14) The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes-one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record.
(Para 15) The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. The maxim res ipsa loquitur suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct.
(Para 15)
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 Negligence in the case of an accident can be gathered from the attendant circumstances. The doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. The said principle can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. Either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. is the Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as: (i) the event would not have occurred but for someone's negligence, (ii) the evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event, and (iii) the accused was negligent and owed a duty of care towards the victim.
(Para 20)
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 In the present case, the bus involved in the accident was seized and was later on given on superdari to the owner of the bus i.e. the accused. In fact, there is no serious dispute as to the fact that the accident between the jeep and the bus took place at the place of occurrence. Applying the principle of res ipsa loquitur, it can safely be inferred that it was a serious accident that occurred at a turning point in which a number of people had died. After the accident, the bus driver moved the bus away to a different point. If what is submitted by the accused had even an iota of truth in it, the most appropriate conduct of the bus driver would have been to leave the vehicle at the place of accident to show that he was on the extreme left side of the road (his proper side for driving) and the jeep which was trying to overtake the other vehicle had come on the wrong side of the road resulting in the accident. This would have been a very material circumstance and relevant conduct of the driver.
(Para 29) There is consistency in the statements of the witnesses (PWs 1, 2 and 4) that the accused was driving the vehicle and after parking the vehicle at a place away from the place of occurrence, he had run away. There is no reason to disbelieve the statements of these witnesses. The witnesses also identified the accused in the court. The trial court ignored the statement of the eyewitnesses, particularly when they were reliable, trustworthy and gave the most appropriate eye account of the accident. The High Court rightly interfered with the judgment of
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 acquittal passed by the trial court and convicted the accused under the relevant provisions.
(Paras 30, 35 and 42 to 45)
33. The aforesaid principles laid down by the Hon'ble Apex Court are aptly applicable to the facts of this case as the witnesses to this case being eyewitnesses and injured eyewitness have spoken about the manner in which the accused drove the bus.
34. The learned Trial Court while assessing the evidence placed on record by the prosecution has come to the conclusion that except bald defence of the accused regarding condition of the bus, no other concrete defence has been taken by the accused. When accused was having knowledge of condition of the bus, the accused could have refused to take the said bus on a public road on a specified route as observed by the Trial Court. With regard to threatening by the superior officer of the accused that the accused would lose his job, the accused has to see the safety of the road users as well as inmates of the bus. But he has not thought of the same and has taken risk. Such a taking of risk and plying such unconditioned bus on road itself amounts to rash and
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 negligence that too when on either side of the road the vehicles were parked and people were moving on either side of the road and the accused also anticipated so many vehicles from the opposite direction that too in a busy vicinity. He must have taken all the precautions to avoid the accident. This act of the accused amounts to sheer negligence on his part. The learned First Appellate court has considered all these aspects and has confirmed the judgment passed by the Trial Court in convicting the accused for the offences alleged against him. Therefore, I do not find any factual or legal error in the judgment of conviction and order on sentence passed by the Trial Court and confirmed by the First Appellate Court. The Revisional Court cannot sit over as Appellate Court and re-appreciate the evidence on record, since the powers vested with revisional courts are limited.
35. The Trial Court has convicted the accused for the offence punishable under Section 279, 304-A and 337 of IPC. The major offence is under Section 304-A of IPC. Therefore, whatever the sentence so imposed for the offence punishable under Section 279 of IPC merges with Section 304-A of IPC. Therefore, the accused has to be sentenced for the offence
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 under Section 304-A and 337 of IPC. The Trial Court has imposed sentence of one year for the offence punishable under Section 304-A of IPC and for the offence under Section 279 of IPC, the accused was directed to pay fine of Rs.1,000/- with default sentence. As minor offence under Section 279 of IPC merges with major offence under Section 304-A of IPC, the accused is liable for conviction under Section 304-A of IPC. It is submitted by the counsel for the accused that the offence has taken place on 27.11.2006 and now we are in the year 2023. In view of the grounds stated by the revision petitioner in the revision petition as well as considering the age of the proceedings before the Court, the accused is must be now aged 44 years. That is only the mitigating circumstance to show some leniency in imposing the sentence on the accused.
36. With regard to imposing of sentence in a case of present nature, the Hon'ble Apex Court has laid down law in the case of State of Karnataka v. Krishna Alias Raju2, has observed as under:
"Criminal P.C. (2 of 1974), S. 377- Enhancement of sentence - Driver convicted for killing one person and 2 AIR 1987 SC 861
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 injuring another for offences under S. 304A and under other provisions - Sentence of fine of Rs.250/--Refusal of High Court of enhance sentence - Not proper. Criminal Appeal No.451 of 1981, D/- 31-1-1983 (Kant), Reversed. (Penal Code, (1860), S. 304A) Where the driver had not only driven his bus in a reckless manner and caused the death of one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the police authorities and the driver was guilty of offence under S. 304A and other offences, it was not proper for the High Court not to enhance the sentence of fine of Rs.250/- for all offences."
37. At this stage, this Court is obliged to observe about the conditions of the KSRTC buses being plied in the state and outside the State.
38. As per publication by the Government of Karnataka on "Evaluation of Karnataka State Road Transport Corporations (KSRTC, NWKRTC and KKRTC) from 2014-15 to 2019-2020 issued in the month of February 2022", the findings indicated are as under:
"The findings indicate that the KSRTC has the highest number of passengers carried (10.53 lakh). NWKRTC has a higher number of passengers carried per bus per day (488), with KSRTC at 375 and KKRTC at 338.
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 The fleet size shows a slight increasing trend for all corporations, with the largest increase observed for KKRTC (400 buses, 9.3%), On an average, a KSRTC bus runs around 361 km/day, followed by NWKRTC at 348 km/day and KKRTC with 336 km/day. 94% of all bus services depart on time, and 95.2% arrive on time. Fleet Age has been on the rise across all corporations and NWKRTC has the largest share of buses above 9 lakh km (the scrapping threshold). There is decline in accidents and breakdowns over the period. The margin per km (EPKM-CPKM) is negative INR-5.23 and INR-5.34 for KSRTC and KKRTC respectively indicating high operational costs and low earnings due to inappropriate pricing structure and maintenance costs. More than 50% of passengers report satisfaction on all components for RTC services."
39. It is very unfortunate to note that, not only the inmates of the busses are being affected and their safety is at stake, but also the other road users are seriously affected as noticed in this case.
40. Though the aforesaid findings indicate about the improvement of conveyance facility available to the passengers, who travel in KSRTC buses, but even then it is noticed that, in NWKRTC Central Office, Hubli, when the public
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 relations officer was questioned regarding plying of more number of old buses, he gave a figure stating that NWKRTC operates 4300 scheduled routes everyday and nearly 2300 buses have run 9 lakh kilometres. When such a large number of scheduled routes are commuting everyday by buses maintained by the corporation, it is the duty of KSRTC to ensure better quality of buses to ply on the road keeping in mind the safety of the passengers who travel in KSRTC bus and also the users of the road to avoid any casualties. No doubt it all depends upon the conditions of the buses. In this case, the said offending bus had already run more than 10,00,000 kms and the vehicle was not having ignition starter, horn and breaks. The passengers, who were travelling in the said bus were compelled to push the said bus to get it started. The condition of the bus which is brought on record is quite alarming.
41. It has been stated by the accused that, the traffic controller compels the drivers to use such buses for the scheduled trips. Unless the mechanical department of KSRTC gives a finding that such buses are "fit for road" it will not cause any harm in running buses then only such buses have to be permitted to ply on public road. It is the duty of the KSRTC
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 authorities to get certificate from the concerned RTO that, such buses are fit for route. Even the RTO authorities have to inspect each and every part of the buses and issue certificate of its fitness. Once such certificate is issued, then only such buses are to be permitted to ply on public roads. The RTO authorities also should not have any casual approach in inspecting and certifying about the fitness of the buses to ply on the road. Therefore, in the interest of justice and keeping in mind the safety of the passengers, who use the buses for moving from one destination to another destination, it is just and necessary to issue necessary directions to the authorities concerned to follow the directions scrupulously. Therefore, it is necessary to issue following directions to the authorities concerned to follow safety measures for the safety of passengers, who are making use of the buses. Accordingly, the KSRTC is directed to provide better quality of buses to ply on the roads by following the directions mentioned below:
i) The mechanical department of the KSRTC have to certify about the fitness of the buses "fit for road"
ii) On issuing such certificate only, such buses are to be permitted to ply on roads.
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019
iii) Every year the KSRTC authorities are directed to obtain certificate from the concerned RTO with regard fitness of buses for travelling.
iv) On obtaining such certificate only, the buses are to be permitted to ply on the road.
v) There shall be periodical mechanical examination and repair of the buses.
vi) As per the rules framed by the KSRTC on completion of particular running of kilometres and such buses are bound to be scrapped and such scrapped buses should not be permitted to be used for any scheduled routes either to the cities or to villages.
42. In view of the same, the sentence so imposed by the Trial Court affirmed by the First Appellate Court directing him to undergo simple imprisonment of one year has to be committed to six months with fine of Rs.1,000/-. With this view, the aforesaid points are answered partly in affirmative. Resultantly, I pass the following:
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 ORDER
i) The revision petition filed by the petitioner-
accused is hereby allowed in part.
ii) The judgment of conviction dated 26.11.2008 in C.C.No.62/2007 passed by the JMFC, Ankola and affirmed by the Principal District and Sessions Judge, Uttara Kannada, Karwar Criminal Appeal No.253/2008 vide judgment dated 29.05.2019 is confirmed. However, the sentence imposed by both the Courts below is modified.
iii) The accused is sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 304-A of IPC. So far as imposing of fine amount of Rs.1,000/- is concerned, the same is undisturbed.
iv) The sentence so imposed for the offence under Section 337 of IPC is maintained.
v) The accused shall surrender before the Trial Court within fifteen days from the date of this order.
vi) The Trial Court is directed to secure the presence of the accused by taking necessary
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NC: 2023:KHC-D:14996 CRL.RP No. 100143 of 2019 steps to commit him to the prison. Send back the Trial Court records forthwith along with copy of this order.
vii) Intimate the final order to the Trial Court as well as First Appellate Court through mail.
viii) Registry is requested to send a copy of this order to the following authorities for strict compliance.
a) The Chief Secretary, Government of
Karnataka,
b) The Secretary, Transport Department,
c) Managing Director, KSRTC, Bengaluru to follow the directions as indicated above.
Sd/-
JUDGE YAN List No.: 1 Sl No.: 3