Karnataka High Court
Anand G Mulu Rathod vs The State Of Karnataka on 19 January, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 2253 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 2253 OF 2013
BETWEEN:
ANAND G. MULU RATHOD
AGE: 35 YRS, OCC: DRIVER OF KSRTC,
R/O.INDI, DIST: BIJAPUR.
...PETITIONER
(BY SRI B. N. JAMADAR AND
SRI VASANTH G. HOLEYANNAVAR, ADVOCATES)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY SPP,
CIRCUIT BENCH HIGH COURT,
DHARWAD, P.I TRAFFIC POLICE STATION,
DHARWAD.
...RESPONDENT
Digitally signed by
SUJATA SUBHASH
(BY SRI RAMESH CHIGARI, HCGP)
PAMMAR
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
BENCH,
DHARWAD.
THIS CRIMINAL REVISION PETITION FILED U/S 397 R/W
401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
THE SENTENCE ORDER DATED 09/11/2012 PASSED BY THE
PRL.DISTRICT AND SESSIOINS JUDGE, DHARWAD IN
CRL.A.NO.55/2011 CONFIRMING THE JUDGMENT AND ORDER
DATED 04/06/2011 PASSED BY THE PRL. CIVIL JUDGE (SR.DN)
AND CJM COURT DHARWAD IN CC.NO.290/2007.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 2253 of 2013
ORDER
This revision was filed against the judgment of conviction and order of sentence passed by the learned Principal Senior Civil Judge and C.J.M., Dharwad in C.C.No.290/2007 dated 04.06.2011 and confirmed by the learned Principal District and Sessions Judge, Dharwad in Crl.A.No.55/2011 vide judgment dated 09.11.2012 whereby the accused-revision petitioner was convicted for the offences punishable under Sections 279 and 304(A) of IPC.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that the accused is the driver of the K.S.R.T.C. bus No.KA25/F 2070 and on 30.04.2007 he drove the bus in a rash and negligent manner on Corporation Road, near Kalabhavan at 01:10 p.m. and while taking turn in high speed, the passenger Vidyavati Patil, who was in the bus -3- CRL.RP No. 2253 of 2013 thrown out from the front door of the bus and she fell down and sustained injuries. She was immediately shifted to the hospital, but she succumbed because of the injuries subsequently. In this regard a complaint came to be lodged and crime was registered. The investigating officer visited the spot drawn the scene of offence, mahazar and also recorded the statement of the witnesses and then he submitted the charge sheet against accused for the offence punishable under Section 279 of IPC Section and Section 304A of IPC. The learned Magistrate has taken cognizance of the said offences and summons have been issued to the accused. The accused has appeared and was enlarged on bail. He was also provided prosecution papers. The accusation was read over and explained to him and he pleaded not guilty. To prove the guilt of the accused, prosecution has examined in all 6 witnesses and also placed reliance on 7 documents.
4. After conclusion of evidence of the prosecution, the statement of accused under Section 313 Cr.P.C. is -4- CRL.RP No. 2253 of 2013 recorded to enable the accused to explain incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial and he did not choose to lead any oral or documentary evidence in support of his defence. After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offences punishable under Section 279 and Section 304(A) of IPC. He has imposed fine of Rs.800/- for the offence punishable under Section 279 of IPC. However, for the offence under Section 304(A) of IPC the learned Magistrate has imprisoned him for 6 months and imposed fine of Rs.1,000/-. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned Principal District and Sessions Judge, Dharwad in Crl.A.No.55/2011. The learned Sessions Judge by re- appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of -5- CRL.RP No. 2253 of 2013 conviction and order of sentence vide judgment dated 09.11.2011. Being aggrieved by these concurrent findings, the revision petitioner is before this Court.
5. Heard the learned counsel for the revision petitioner and the learned High Court Government Pleader for respondent-State. Perused the records.
6. The learned counsel for the revision petitioner would contend that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and have failed to note that, the alleged incident has occurred prior to approach of the bus stand and while the bus was approaching the bus stand, the deceased intended to get down and, in a hurry, she fell down which has resulted in fatal injuries and she succumbed subsequently. He would contend that the evidence on record clearly establish these aspects. In support of this case, he has also placed reliance on the decision of the Hon'ble Apex Court reported in 2000 part-7 SCC page No.72. Hence, he would seek for setting aside -6- CRL.RP No. 2253 of 2013 the impugned judgment of conviction and order of sentence passed by both the Courts below, as it is resulted injustice to the revision petitioner and prayed for allowing the appeal by acquitting the revision petitioner.
7. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by both the Courts below. He would submit that all the witnesses have fully supported the case of the prosecution, and the complainant as well as other eye-witnesses have specifically asserted the rash and negligent act on the part of the accused-revision petitioner and hence both the Courts have justified in convicting the accused and the judgment of conviction and order of sentence does not call for any interference. Hence, he would seek for dismissal of the revision.
8. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
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a) Whether the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Principal Sessions Judge call for any interference by this Court ?
9. There is no serious dispute of the fact that the accused was driver of the offending K.S.R.T.C. bus. There is also no serious dispute of the fact that the deceased was the inmate of the bus and she fell from the bus which has resulted in fatal injuries and later on she succumbed because of the injuries. The accident spot is shown near Kalabhavan on Corporation Road. It is evident from the admissions given by the parties that bus stop is situated in front of the Corporation and there is no bus stop in front of Kalabhavan immediately after taking a turn in Jublee Circle. The Kalabhavan is situated on the left side which is adjacent to the Corporation and bus stop is situated in front of Corporation. Further it is an one way road, which is also not under serious dispute. No doubt some of the -8- CRL.RP No. 2253 of 2013 witnesses have deposed that the driver of the K.S.R.T.C. bus has drove the bus in high speed and taken a right turn in a speed, which has resulted in fall of the victim from the bus. But this aspect would have been best explained by the conductor of the bus, who is examined as PW.4. But evidence is silent regarding the rash and negligent driving and he simply asserts that the bus stopped subsequently, when it is revealed that a woman fell from the bus. He did not speak as to how the accident has occurred and interestingly, the prosecution has not treated him as a hostile witness nor suggested him regarding rash and negligent driving on the part of the accused. The other so called eye-witnesses are not the inmates of the bus and they only claims to be following bus in their respective vehicles and one is the Traffic Constable.
10. In this context, the learned counsel for revision petitioner has placed reliance on a decision of the Hon'ble Apex Court in Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh dated 28.07.2000 reported -9- CRL.RP No. 2253 of 2013 in (2000) 7 SCC 72 wherein the Hon'ble Apex Court has observed as under:
"4. The conductor of the bus was examined as PW3. He did not say how the accident happened. However, he admitted that while the bus was in motion he heard a sound of accident and the bus was then stopped. The only witness who spoke about the occurrence was PW4. It is further observed that:
5. *****
6. A driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward.
7. *****
8. The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.
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CRL.RP No. 2253 of 2013
9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
10. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting a signal to move forward. The evidence in this case is too scantly to fasten him with criminal negligence. Some further evidence is indispensably needed to presume
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CRL.RP No. 2253 of 2013 that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the Court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.
11. In the result, we allow this appeal and set aside the conviction and sentence and he is acquitted. "
11. He has further placed reliance on the decisions of the Hon'ble Delhi High Court in the case of Niranjan Singh vs. The State (Delhi Administration) dated 04.09.1996 reported in 1997 criminal law journal page No.336 wherein the Delhi High Court has observed in para No.9 as under:
"9. Both the Courts below have failed to notice that none of the prosecution witnesses has states as to what was the actual cause of the deceased's fall from the bus. It is not at all amenable to reason that a passenger sitting in a bus would have fallen down from the moving bus in the manner as alleged by the prosecution."
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CRL.RP No. 2253 of 2013
12. The Hon'ble Apex Court has analyzed how the accident occurs when there is a fall from the bus or when there is an attempt to hold bus. The observations made in the said decision by the Apex Court clearly establishes that a passenger may fall from the bus from various reasons as it may be accidentally, or it could be negligence on the part of the passenger himself or it could be negligence act on the part of the driver but it is further observed that to fix the liability only on part of driver there must be clinching evidence which establishes that the accident is solely because of his negligence act. But this material evidence is also missing in the instant case. The investigating officer has not recorded the statement of any of the passengers traveling in the bus and they would have been the best witnesses in the given circumstances. Looking to these facts and circumstances and in view of the law laid down by the Hon'ble Apex Court as referred above in the case of Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh (supra), it is evident that
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CRL.RP No. 2253 of 2013 both the Courts have failed to appreciate the oral and documentary evidence in proper prospective. Hence, it has resulted into an erroneous findings and it leads injustice to the present revision petitioner, who was convicted. Looking to these facts and circumstances, the revision petition needs to be allowed by setting aside the impugned judgment of conviction and order of sentence passed by the Trial Court as well as the First Appellate Court and the revision petitioner is entitled for acquittal of the charges levied against him. Accordingly, the point under consideration is answered in the affirmative. Hence, I proceed to pass the following:
ORDER
i) The revision petition is allowed.
ii) The judgment of conviction and order of sentence passed by the learned Principal Senior Civil Judge and C.J.M., Dharwad in C.C.No.290/2007 dated 04.06.2011 and confirmed by the learned Principal District
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CRL.RP No. 2253 of 2013
and Sessions Judge, Dharwad in
Crl.A.No.55/2011 vide judgment dated
09.11.2012 are set aside.
iii) Accused-revision petitioner stands acquitted of charges alleged.
Sd/-
JUDGE SSP List No.: 1 Sl No.: 38