Karnataka High Court
Parashurama vs State Of Karnataka on 29 March, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH 2023
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRL.R.P.No.352/2015
BETWEEN:
PARASHURAMA
S/O KALLURAPPA
AGED ABOUT 36 YEARS
DRIVER OF KSRTC BUS
BEARING REG.NO.KA36/F 663
SINDANOOR DEPOT, INDIRANAGAR
N/O SHIRUR POST, BAGALKOTE
TALUK AND DISTRICT
PIN:567 236. ...PETITIONER
(BY SRI A.H. BHAGAVAN, ADV.)
AND:
STATE OF KARNATAKA
BY KADUR POLICE
CHICKMAGALURU DISTRICT
REPRESENTED BY
THE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 24.5.2013 IN
C.C.NO.98/2010 PASSED BY THE C.J. AND J.M.F.C., KADUR
AND CONFIRMED BY THE JUDGMENT DATED 20.3.2015
PASSED BY THE PRL. S.J., CHIKKAMAGALURU IN
CRL.A.NO.193/2013 AND ACQUIT THE PETR.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR 'PRONOUNCEMENT OF
ORDER', THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
1. This criminal revision petition under Sections 397 read with 401 Cr.PC is filed by the accused challenging the judgment and order of conviction and sentence dated 24.05.2013 passed by the Prl. Civil Judge & JMFC, Kadur, in C.CNo.98/2010 and the judgment and order dated 20.03.2015 passed by the Prl. Sessions Judge, Chickamagaluru, in Crl.A.No.193/2013.
2. Heard the learned Counsel for the petitioner and the learned HCGP appearing for the respondent-State.
3. Facts leading to filing of this revision petition as revealed from the records that may be necessary for the purpose of disposal of this petition are, on 15.11.2009 at about 7.30 p.m., the KSRTC bus bearing registration No.KA-36-F-663 was driven in a rash and negligent manner by the petitioner on NH-206 from Kadur side towards Banawara and near Thangalithandya, the bus dashed against 407 van bearing registration No.KA-18-A- 3880 and caused the accident. In the said accident, the inmates of the bus and the van had suffered injuries and 3 one B.H.Patil and his wife Champamma who were the inmates of the van had suffered grievous injuries and succumbed to the same at the spot. On the basis of the complaint lodged by PW-1 - the driver of the van, FIR was registered against the petitioner for the offences punishable under Sections 279, 337, 338 & 304A of IPC and the Police after investigation had filed charge sheet against him for the aforesaid offences.
4. In the said proceedings, the petitioner had appeared before the Trial Court and claimed to be tried, and therefore, charges were framed against him for the charge-sheeted offences. The prosecution to prove its case had examined 16 witnesses as PWs-1 to 16 and had got marked 28 documents as Exs.P-1 to P-28. Though the petitioner had denied the incriminating circumstances available against him on record during the course of his statement under Section 313 Cr.PC, he however did not chose to lead any defence evidence.
5. The Trial Court, thereafter, heard the arguments on both sides and by judgment and order dated 24.05.2013 convicted the petitioner for the offences for which he was 4 charged and sentenced him to undergo simple imprisonment for a period of six months and pay fine of Rs.1,000/- and in default to undergo simple imprisonment for a period of 30 days for the offence under Section 279 IPC. For the offence under Section 337 IPC the petitioner was sentenced to undergo simple imprisonment for a period of four months and pay fine of Rs.500/- and in default to undergo simple imprisonment for a period of 15 days, for the offence under Section 338 IPC he was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.1,000/- and in default to undergo simple imprisonment for a period of 30 days, and for the offence under Section 304A IPC he was sentenced to undergo simple imprisonment for a period of two months and pay fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of 60 days. The said judgment and order of conviction and sentence passed by the Trial Court was confirmed in Crl.A.No193/2013 by the Appellate Court by judgment and order dated 20.03.2015. It is in this factual background, the petitioner is before this Court. 5
6. Learned Counsel for the petitioner submits that the courts below have erred in convicting the petitioner for the alleged offences. He submits that the courts below have failed to properly appreciate the oral and documentary evidence available on record which has resulted in erroneous conviction of the petitioner. He submits that there is no evidence to prove that the petitioner was driving the offending bus in a rash and negligent manner and had caused the accident. He submits that from the evidence of PWs-6 & 7, it is clear that the van was driven in a high speed on the right side of the road and when the bus tried to avoid the accident, the bus brushed to the right side of the van and went towards its left side and dashed against the tamarind tree which was on the side of the road. He submits that the accident had taken place when the driver of the van tried to overtake a lorry which was ahead of him, and thereby he had come to the extreme right side of the road and dashed against the bus. He submits that the independent eye-witnesses have not supported the case of the prosecution and PWs-1 & 3 being the driver and owner of the van which was a goods vehicle carrying 6 passengers, their evidence is required to be scrutinized carefully. He submits that the evidence of PW-7 corroborates the evidence of PW-5 and nothing has been elicited from PW-7 during his cross-examination by the prosecution, and therefore, the evidence of PW-7 who was treated hostile cannot be discarded totally. In support of his contentions, he has placed reliance on the judgment in the case of SYAD AKBAR VS STATE OF KARNATAKA - 1980 SCC (Cri) 59.
7. Per contra, learned HCGP appearing on behalf of the respondent-State submits that the evidence of the eye-witnesses coupled with documentary evidence clearly establishes that the accident in question had taken place due to the rash and negligent driving of the offending bus by the petitioner. She submits that the petitioner has not disputed the accident nor the fact that he was the driver of the offending bus at the time of accident, and therefore, the courts below were justified in convicting the petitioner for the alleged offences, and accordingly, prays to dismiss the petition.
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8. I have given my anxious consideration to the arguments addressed on both sides and also perused the oral and documentary evidence available on record.
9. The only question that arises for consideration in this revision petition is, "whether the courts below were justified in convicting the petitioner for the offences punishable under Sections 279, 337, 338 & 304A IPC?
10. For the purpose of convicting the accused for the offences punishable under Sections 279, 337, 338 & 304A IPC, the prosecution is required to prove that the accused was not only driving the offending vehicle in a rash or negligent manner endangering public safety, but he had also failed to take sufficient care and thereby had caused the accident. Merely for the reason the vehicle was driven in high speed, it cannot be said that the driver was guilty of driving the vehicle rashly or negligently. Negligence or rashness proved by evidence must be such as to carry with it a criminal liability. 8
11. The position as to the concept of rashness and negligence was explained by the Delhi High Court in the case of KANTI PARSHAD VS THE STATE - 1971 CRL.L.J. 1241, as follows:
"Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking his life as well as the life of the person who may lose his life as a result of the crime. Section 304-A IPC is such a provision which discloses that criminality may be there apart from any mens rea. There may be no motive or intention. Still a person may venture to practice such rashness or negligence which may cause the death of another. The death so caused is not the determining factor."
12. The prosecution in order to prove its case has examined 16 witnesses before the Trial Court as PWs-1 to 16. Amongst these witnesses, PWs-1 to 11 & 13 are the eye-witnesses to the accident. Amongst the eye- witnesses PWs-1 to 6 have supported the case of the prosecution and the remaining eye-witnesses have not supported the case of the prosecution and they were 9 treated as hostile witnesses by the prosecution. PWs-12 & 15 are the panch witnesses for the spot mahazar and these witnesses have also turned hostile to the prosecution case. PW-14 is the PSI who had initially registered the FIR against the petitioner and carried out the investigation and PW-16 is the Investigating Officer who had taken over the investigation from PW-14 and after completion had filed charge sheet against the petitioner for the alleged offences.
13. PWs-1 to 3 were the inmates of the van. PW-1 was the driver of the van and he is also the complainant. Ex.P-1 is the copy of the complaint. Though PW-1 has reiterated the contents of Ex.P-1, during the course of his cross-examination, he admits that there was dense traffic on the road at the time of accident. He also admits that there was a vehicle in front of his van and to a specific suggestion put to him that because of his rash and negligent driving the van had dashed against the bus and when the driver of the bus tried to avoid the accident he had dashed the bus against the tamarind tree, he has 10 answered that he is not aware of the same. It is relevant to note that this suggestion was not denied by PW-1.
14. PW-2 has stated that he was seated in the back side of the van and since the back portion of the van was covered with a tarpaulin, he could not see the accident and he has also stated that he was not in a position to say as to how the accident had taken place.
15. PW-3 is another inmate of the van who was seated in the front on the left hand side of PW-1 - driver of the van. The material on record would go to show that PW-3 was the owner of the van and application was filed by him before the Trial Court seeking custody of the van. Though this witness during the course of his examination-in-chief has corroborated the evidence of PW-1 and nothing has been elicited by the defence during the course of his cross-examination, having regard to the fact that PWs-1 & 3 are the driver and owner of the goods carriage vehicle which was carrying passengers who had died in the accident in question, it is highly unsafe to place reliance on the evidence of these two witnesses to arrive at a conclusion as to the manner in 11 which the accident had taken place. It is relevant to note here that though PWs-1 & 3 have stated that the driver of the offending bus was driving in a high speed at the time of accident, they have not stated that he was driving the offending bus in a rash and negligent manner and thereby caused the accident. Undisputedly, the accident had taken place in a National Highway and the vehicles moving in the National Highway cannot be expected to be driven slowly and merely for the reason that the bus was driven in a high speed, it cannot be said that the driver of the bus was driving in a rash and negligent manner. Speed cannot be sole criteria for determining that the vehicle was driven in a rash and negligent manner.
16. PW-4 was the inmate of the offending bus and he was seated in the second front row of the bus. During the course of his cross-examination, he has stated that he had not seen the oncoming van and he does not know how the van was driven. He has admitted that at the time of accident, the conductor of the bus was issuing tickets to the passengers.
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17. PW-5 is the wife of PW-4 and she was sitting besides him. She has stated that the van came in a high speed on the right side of the road.
18. PW-6 is another inmate of the bus and during the course of his cross-examination, he has stated that he had not seen how the van was driven before the accident took place. This witness has further stated that the bus dashed against the van on the right side of the road. It is nobody's case that the bus had dashed against the van on the right side of the road, and therefore, much importance cannot be given to the evidence of this witness.
19. It is relevant to note here that even PWs-4 to 6 have only stated that the driver of the offending bus was driving the same in a high speed, but they have not stated that he was driving the bus in a rash and negligent manner. Therefore, from the evidence of PWs-1 to 6 who have supported the case of the prosecution, it is not evident that the driver of the offending bus was driving the same in a rash and negligent manner and thereby had caused the accident in question. PWs-1 to 6 13 have only stated that the driver of the offending bus was driving the bus in a high speed and that does not mean that he was guilty of driving the bus in a rash or negligent manner.
20. PW-7 is another eye-witness who was the inmate of the bus. During the course of his examination-in-chief, he has stated that the bus was driven in an average speed and the van was driven in a high speed on the right side of the road and though the accused tried to avoid the accident, the van dashed against the bus. This witness was treated hostile and was cross-examined by the prosecution, but nothing has been elicited from him so as to disbelieve the statement made by him during the course of his examination-in-chief. The statement of PW-7 corroborates the evidence of PW-5. Merely for the reason that the prosecution has treated this eye-witness as hostile and cross-examined him, his evidence cannot be discarded in its entirety.
21. The Hon'ble Supreme Court in Syad Akbar's case supra, in paragraphs 11 to 13, has observed as under: 14
"11. In regard to the first question, it may be noted that the police statements of the eyewitnesses were not put specifically, bit by bit, to them by the prosecution, in cross-examination. Only an omnibus question was asked as to whether they had stated before the police that the accident occurred due to the negligence of the accused. This was, at best, a matter of inference to be drawn by the Court. The witnesses were not contradicted with regard to material facts which were the product of their direct sensory perception. For instance, their version with regard to the speed of the vehicle, the blowing of horn, the child running across the road and sudden swerving of the vehicle to the right in an attempt to save the child, etc., was not impeached by the prosecution in cross- examination. In short, the credit of these witnesses with regard to the substratum of their examination-in-chief had not been shaken in cross-examination by the prosecution.
12. As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him "hostile" and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration (SCC p. 745, para
52) 15 Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence, discard his evidence in toto."
13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony." 16
22. A reading of the cross-examination of PW-7 would go to show that the testimony of this witness in relation to the manner in which the van was driven by its driver was not impugned in the cross-examination by the prosecution, and therefore, the statement made by PW-7 during the course of his examination-in-chief cannot be brushed aside, more so when the same corroborates the evidence of PW-5.
23. PWs-8 & 13 are the inmates of the bus and PW-10 is the conductor of the bus. All these witnesses have not supported the case of the prosecution and they have been treated as hostile witness. PW-10 during the course of his examination-in-chief has stated that he was issuing tickets to the passengers of the bus when the accident had taken place and during the course of cross- examination he has stated that normally the bus will be driven slowly when the tickets are issued to the passengers by the conductor. PW-10's evidence that he was issuing tickets to the passengers is corroborated by PW-4.
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24. PWs-9 & 11 are the independent eye-witnesses to the accident in question and these witnesses have not supported the case of the prosecution, and therefore, they were treated as hostile witnesses.
25. PWs-12 & 15 are panch witnesses to the spot mahazar who have turned hostile to the prosecution case.
26. PW-14 is the PSI who had registered a case against the petitioner for the alleged offences on the basis of the complaint of PW-1. This witness has also prepared the spot mahazar - Ex.P-8 and rough sketch of the accident spot Ex.P-13 on 16.11.2009. At the instance of this witness, the photographs of the accident spot were also taken. The photographs of the accident spot were marked through PW-1 and the same was also identified by PWs-3 & 14. During the course of his cross- examination, PW-14 has admitted that the photographs at Exs.P-2 & P-3 were not taken showing both the vehicles which were involved in the accident and he has further stated that he had no problem to take 18 photographs showing both the vehicles which were involved in the accident.
27. Exs.P-25, 26, 27 & 28 are the photographs which show both the vehicles which were involved in the accident. The order sheet of the Trial Court would go to show that after recording the statement of the accused under Section 313 Cr.PC, the case was posted for arguments on 01.02.2011. Thereafter, the arguments addressed on both sides were heard and the case was posted for judgment. At that stage, the Investigating Officer was directed to produce the case diary and the copies of the photographs in their file and accordingly, Exs.P-25 & P-26 were produced and marked through PW- 3 on 04.05.2012 and the photographs at Exs.P-27 & P-28 were produced and marked through PW-16 on 11.06.2012. Though on instructions of PW-14 the photographs were taken, Exs.P-25 to P-28 were not marked through him and he has not identified the said photographs. PW-14 has virtually stated that except Exs.P-2 & P-3, there are no other photographs. The 19 prosecution has not given reasons for not producing these documents earlier.
28. It is relevant to mention here that from Exs.P-8 & P-13 which are the spot mahazar report and rough sketch of the spot, the manner in which the accident had taken place cannot be gathered. In Ex.P-8 - spot mahazar, it is stated that the width of the road where the accident had taken place was 24 feet and it was a National Highway. Further, the boundaries of the spot have been given, but no description whatsoever is given with regard to the actual spot of the accident. There is also no description with regard to any tyre marks found on the spot, nor there is any mention with regard to the objects or parts of the vehicle fallen on the spot as a result of the impact between the vehicles which would have helped to prove the spot of the accident. In the spot mahazar, it is stated that the tamarind tree is located at a distance of 10 feet from the road on the western side, whereas in Ex.P-13, it is seen that the tamarind tree exists on the eastern side of the road. Even in Ex.P-13, the spot of accident has not been mentioned. Even the 20 distance between the two vehicles after the accident had taken place is not forthcoming in Ex.P-13. PW-16 during the course of cross-examination has admitted that in Ex.P-13, the spot of the accident has not been shown. Therefore, Exs.P-8 & P-13 does not in any way assist the prosecution to prove its case against the petitioner.
29. Ex.P-28 is the photograph of the spot which is subsequently produced by the prosecution on 11.06.2012 through the Investigating Officer - PW-16 and a perusal of this photograph would go to show that the position of the vehicles after the accident, is found in this document. After the accident had taken place, the bus had gone to its complete left side and had dashed against the tamarind tree which as per Ex.P-8 is at a distance of 10 feet from the road. From this photograph, it is evident that the bus had traveled a very short distance after the accident and had dashed against the tree. The van is found lying on the road. In Ex.P-8, it is mentioned that the van was lying occupying about three feet of the tar road. According to the prosecution, after the accident, the van had turned towards its left side and capsized. 21 Since the capsized van is found occupying the portion of the road, it cannot be said that the van was coming on the complete left hand side of the road. Since it is the specific case of the prosecution that after the accident, the van had turned towards its left side and capsized, the accident must have taken place on the right hand side of the road or atleast on the middle of the road. This is fortified by the evidence of PWs-5 & 7 who have stated that the van was coming in high speed on the right side of the road and had dashed against the bus. It is the specific defence of the accused that the van driver tried to overtake the lorry in front of the van, and thereby he had come to the right side and had caused the accident. PW-1 has admitted during the course of his cross- examination that there was a vehicle in front of his van before the accident had taken place. The courts below by placing reliance on Exs.P-8 & P-13 have held that the prosecution has proved the spot of accident and this finding of the courts below is illegal having regard to the aforesaid analysis of Exs.P-8 & P-13 coupled with the evidence of PWs-14 & 16.
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30. In the case of MRS. SHAKILA KHADER VS NAUSHER GAMA & ANOTHER - AIR 1973 SC 1324, it was observed that the main criteria for deciding the driving which led to the accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic and the attempt to overtake other vehicles resulting in the car going to the wrong side of the road and causing the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road.
31. The evidence of PWs-5 & 7 would go to show that the van which was driven in a high speed had come towards its right side before the accident took place and from a perusal of Ex.P-28 - photograph of the spot, it can be safely gathered that the accident in question had taken place either on the right side of the road or on the middle of the road, but definitely not on the left side of the road as sought to be made out by the prosecution. 23
32. The courts below have failed to appreciate the aforesaid aspects of the matter and have erroneously recorded a finding of guilt against the petitioner and have accordingly convicted him for the offences for which he was charged. In my considered view, the judgment and order of conviction and sentence passed by the courts below, are therefore, illegal and cannot be sustained in the eye of law. The question for consideration is, therefore, answered in the negative. Accordingly, the following order:
33. The criminal revision petition is allowed. The judgment and order of conviction and sentence dated 24.05.2013 passed by the Prl. Civil Judge & JMFC, Kadur, in C.CNo.98/2010 and the judgment and order dated 20.03.2015 passed by the Prl. Sessions Judge, Chickamagaluru, in Crl.A.No.193/2013, are set aside The petitioner is acquitted of the offences punishable under Sections 279, 337, 338 & 304A IPC.
Sd/-
JUDGE KK