Bangalore District Court
Sri Basappa Halahalli vs State Of Karnataka on 13 September, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 13th day of September 2019
PRESENT
Sri B. B.Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
Crl. Appeal No.2061/2018
APPELLANT/S: Sri Basappa Halahalli,
S/o Nagappa
Aged about 43 years,
R/at No.52/1, 1st Cross,
Kalleshwaranagara,
Ponna Street,
Yajagiri,
Belagavi.
(Rep.by Sri Mahanthesha.,
Advocate)
-Vs-
RESPONDENT/S: State of Karnataka
Yeshwanthpura Traffic Police,
Bengaluru
(Rep.by P.P., City Civil Court,
Bengaluru)
JUDGMENT
This Criminal Appeal is filed under Section 374(3) of Cr.P.C. challenging the legality and correctness of the judgment 2 Crl.Ap.No.2061/2018 of conviction and order of sentence passed by the learned MMTC-III, Bengaluru in C.C.No.4521/2017 dated 04.10.2018.
2. The essential facts required for disposal of this appeal are that, the Police Inspector, Yeshwanthpur Police Station filed charge sheet against the appellant/accused for the offence under Section 279 and 304A of IPC alleging that on 08.04.2017 at about 5.20 A.M. Shivarudrappa Badigera, aged about 70 years was crossing Tumkur - Yeshwanthpur road and at that time the VRL Bus bearing No.KA-25-C-8024 driven by the accused came from Tumkur side. The accused was driving the bus in a rash and negligent manner and therefore, the bus hit to Shivarudrappa Badigera and he sustained grievous injuries. He was admitted to Victoria hospital for treatment and he succumbed to the injuries on 14.04.2017 at about 10.00 A.M.
3. The accused appeared through his counsel before the court below and pleaded not guilty. In order to prove the allegation made against the accused, the prosecution 3 Crl.Ap.No.2061/2018 examined six witnesses as PW.1 to 6 and got marked documents at Ex.P.1 to Ex.P.11. The accused in his examination under Section 313 of Cr.P.C. denied the incriminating evidence and stated that Shivarudrappa Badigera suddenly came to cross the road and therefore, the accident took place and there was no rash and negligent driving of the bus. The Trial Judge after hearing the parties has held that the accused drove the bus in a rash and negligent manner and caused the death of Shivarudrappa Badigera and thereby held the accused guilty for the offence under Section 279 ad 304A of IPC. The accused has been sentenced to undergo S.I. for one month and pay fine of Rs.1,000/- in default shall undergo S.I. for 15 days for the offence under Section 279 of IPC. Further the Trial Court has sentenced the accused to undergo S.I. for six months and to pay fine of Rs.10,000/- in default shall undergo S.I. for six months for the offence under Section 304A 4 Crl.Ap.No.2061/2018 of IPC. This judgment of conviction and order of sentence is assailed by the accused in the Appeal.
4. The LCRs have been secured. The respondent / complainant is represented by learned Public Prosecutor.
5. The learned counsel for the accused has argued that the accused admitted his identity as a driver of VRL bus No.KA-25-C-8024, his identity as driver, accident and death of Shivarudrappa Badigera because of the accident. Even the accused has admitted that there was no mechanical defect in the vehicle so as to cause the accident. However, the accused has denied his rash and negligent driving of bus at the relevant point of time. The PW.1 and 2 are the eye witnesses and both of them have stated that the accused was driving the bus in a high speed and they have admitted that the deceased was crossing the road where there was no zebra crossing. The statement made by PW.1 ad 2 that the bus was in hight speed is not sufficient to prove the rash and negligent driving of the 5 Crl.Ap.No.2061/2018 vehicle by the accused and then also the Court below has wrongly convicted the accused. In support of this submission the learned counsel for the accused has placed reliance on the decisions reported in AIR 197s SC 221 { Mahadev Hari Loke V/s. The State of Maharashtra} and IV (2006) CCR 286 (SC) { State of Karnataka V/s. Satish} He has further argued that the scene of offence shows that there was one way road and there was median. In a road there were three tracks and the deceased was crossing the road from north to south without looking into on going vehicles and therefore, the spot itself indicates that the accident was due to negligence of deceased and not the accused. On these main grounds, he prayed to set aside the judgment of conviction and order of sentence.
6. The learned Public Prosecutor has argued that the scene of offence shown in the panchanama and the rough sketch indicate that the road was wide and deceased crossed the road about 80%. The accused had possibility of witnessing 6 Crl.Ap.No.2061/2018 the deceased at the time of crossing the road then also without reducing the speed of the bus dashed the bus to the deceased, which is sufficient to show that because of rash or negligent driving of the bus, the accident took place and Shivarudrappa Badigera died. On these grounds he justified the finding recorded by the Trial Court and prayed to dismiss the Appeal.
7. I have perused the materials placed on record carefully. In the light of the submissions made by the parties, the only point that arises for my consideration is:
"Whether the prosecution proves beyond reasonable doubt that the accused drove the bus bearing No. No.KA-25-C-8024 in a rash and negligent manner so as to endanger human life and caused death of Shivarudrappa Badigera not amounting to culpable homicide?"
8. My finding to the above point is in the Affirmative for the following:-
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Crl.Ap.No.2061/2018 REASONS
9. The prosecution produced inquest, P.M. Report at Ex.P.5 and P.6 of Shivarudrappa Badigera which show that he was aged about 70 years and sustained injuries in road traffic accident took place on 08.04.2017 at about 5.20 A.M. in the spot shown in the panchanama at Ex.P.1 and succumbed to those injuries on 14.04.2017. The first information of the accident is at Ex.P.2, which has been given by P.C.No.11236 / PW.1 on 08.04.2017 at about 8.45 A.M. and such information has been registered in FIR produced at Ex.P.7. This FIR has been registered by PW.6 / Devika Devi. The accident took place at 5.20 A.M. and FIR was registered at 8.45 A.M. on 08.04.2017. There is no delay in registration of FIR. The place of accident is shown in Ex.P.1 / panchanama and sketch at Ex.P.8. The PW.6 drawn the panchanama and the sketch and accordingly, deposed. Ex.P.3 is the M.V. Accident report issued by PW.4/R. Chandrashekar, wherein it has been shown that 8 Crl.Ap.No.2061/2018 there was no mechanical defect in the bus bearing No.No.KA- 25-C-8024 so as to cause accident. All these oral and documentary evidence not disputed by the accused. The PW.1 and 2 have stated that the accused was driving the bus at the relevant time and such evidence is also not disputed by the accused.
10. Therefore, the prosecution proved beyond reasonable doubt that on 08.04.2017 at about 5.20 A.M. bus bearing No.No.KA-25-C-8024 driven by the accused and hit to Shivarudrappa Badigera, aged about 70 years on the spot shown in Ex.P.1, Shivarudrappa Badigera sustained grievous injuries and succumbed to the injuries on 14.04.2017. The accident was not due to any mechanical defect in the bus. So, in order to bring home the accused for the guilt under Section 279 and 304A of IPC, the prosecution is required to establish that the accused was driving the bus in a rash or negligent manner so as to endanger human life. If this fact is proved, 9 Crl.Ap.No.2061/2018 then the accused is required to suffer with the sentence. In the background of these facts, let us examine the core issue involved in the case.
11. PW.1 and 2 are the star witnesses of the prosecution to prove the rash or negligent driving of the bus by the accused. The PW.1 and 2 in their examination-in-chief have stated that they witnessed the accident. The deceased was crossing the road and he crossed the road about 90% and the bus was in high speed and therefore, the bus hit to pedestrian and caused his death. They are signatories to panchanama at Ex.P.1 and accordingly, they have spoken. The presence of PW.1 and 2 on the spot and witnessing the accident is not disputed by the accused. The evidence of PW.1 and 2 about witnessing of accident and their present at the time of drawing the panchanama is not shaken in the Cross- examination.
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Crl.Ap.No.2061/2018
12. The PW.1 in the Cross-examination has stated that there is a junction at a distance of 30 ft. to 40 ft ahead of the scene of offence and there was a zebra crossing where the deceased was crossing the road. The PW.2 in the Cross- examination has stated that junction is at a distance of 50 ft. and in the junction there is zebra crossing. The PW.1 and 2 have admitted that there is median in between two roads and the road on the spot was one way. So, from the evidence of PW.1 and 2 it is clear that there is a junction at a distance of 50 ft from the scene of offence and in the junction there was a zebra crossing where the pedestrian can cross the road.
13. The PW.6 / Investigating Officer in the Cross- examination has stated that there is a median and the height of median is 3 ft. She has admitted that the deceased was crossing the road after alighting from the median wall. She has stated that the footpath is at a distance of 60 ft. from the scene of offence. She has admitted that there is no permission for the 11 Crl.Ap.No.2061/2018 pedestrian to cross the road by jumping the median wall. According to the evidence of PW.6, the deceased was crossing the road after jumping the median, which is contrary to the evidence of eye witnesses / PW.1 and 2. The PW.6 is not eye witness and therefore, her evidence that deceased was crossing the road by jumping the median wall cannot be accepted.
14. Ex.P.1 / panchanama and Ex.P.8 / rough sketch prepared by PW.6 is not disputed by the accused. The map clarifies the situation of crime scene. The bus of the accused was proceeding from western side to eastern side. The deceased was crossing the road from northern side to southern side. The road from Tumkur towards Yeshwanthapur on the spot was having three lanes. The width of the road is 50 ft. At a time three four-wheelers can pass on such road, which was one way. There is zebra crossing at a distance of 50 ft. from the scene of offence. The scene of offence is at a distance of 5 12 Crl.Ap.No.2061/2018 ft. from southern edge of the road and 45 ft. from northern edge of the road. This spot indicates that deceased crossed the road for 45 ft. and he is about to pass only 5 ft. So, the pedestrian almost crossed the road and at that time the bus dashed to the deceased.
15. As already stated the situation of the road in Ex.P.1 and P.8 is not disputed by the accused and if this situation of road is taken into consideration to appreciate the evidence of PW.1 and 2, such evidence clearly indicate that the pedestrian passed major portion of the road while crossing the road near zebra crossing and at that time, the bus hit to Shivarudrappa Badigera. The PW.1 and 2 have stated that the bus was in high speed. Such statement is consistent even in the Cross- examination. Both witnesses have not stated that the driver was rash and negligent. The court cannot expect from the public to say legal words at the time of giving their testimony before the courts. Either the prosecution or the accused not 13 Crl.Ap.No.2061/2018 asked the PW.1 and 2 what does mean high speed and how such high sped of the vehicle resulted into accident. The statement of PW.1 and 2 taken into consideration in totality and the road is seen as per Ex.P.8, one can find out that the accused had sufficient opportunity to see the pedestrian crossing the road far away as the road was straight. There was zebra crossing near the scene of offence and the driver was expected to drive the bus slowly near the zebra crossing. There is junction near the spot and therefore, the driver was expected to slow down his bus in the junction. When the accused was driving the bus in high speed in a junction and near zebra crossing and when the bus hit to pedestrian who crossed major portion of the road, inference can be easily drawn that because of rash and negligent driving of the bus by the accused, the bus hit to Shivarudrappa Badigera and as a result Shivarudrappa Badigera died.
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Crl.Ap.No.2061/2018
16. The Hon'ble Supreme Court in the decision reported in AIR 1972 SC 221 has held on facts that if a pedestrian suddenly crosses a road without taking note on the approaching bus, there is every possibility of dashing of bus to the pedestrian and the driver cannot be held guilty for the accident.
17. The Hon'ble Supreme Court in another judgment reported in IV (2006) CCR 286 (SC) in Para No.4 held as under:
'High speed' is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by 'high speed' I criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminally is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any 15 Crl.Ap.No.2061/2018 material on the record, no presumption of 'rashness' or 'negligence' could be drawn by invoking the maxim res ipsa loquitor.
18. In the present case the scene of offence shown in Ex.P.1 and Ex.P.8 is proved through the evidence of Investigating Officer and the eye witnesses. The scene of offence and the evidence of eye witnesses demonstrate that the accused was driving the bus in high speed near junction and zebra crossing. Therefore, the prosecution through the evidence of PW.1 and 2 able to demonstrate that there was negligent or rash driving of the bus by the accused. Therefore, the decisions relied upon by the accused referred above would not come to his aid in any manner.
19. Considering the evidence of PW.1, 2 and 6, it is found that the accused was driving the bus in a rash or negligent manner and that was the reason for death of Shivarudrappa Badigera. Such material is sufficient to bring home the accused for the guilt under Section 279 and 304A of 16 Crl.Ap.No.2061/2018 IPC. Accordingly, the Trial Court has rightly convicted the accused. I do not find any reasons to interfere with the judgment of the Trial Court. Hence, I answer the above point in the Affirmative and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Send the copy of the Judgment along with the records to the lower court.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 13th day of September, 2019).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
17 Crl.Ap.No.2061/2018 18 Crl.Ap.No.2061/2018 13.09.2019:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Send the copy of the Judgment along with the records to the lower court.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
19 Crl.Ap.No.2061/2018