Karnataka High Court
G Vishwanth vs The State Of Karnataka By on 31 July, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:26549
CRL.RP No. 1031 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 1031 OF 2019
BETWEEN:
G. VISHWANTH
S/O LATE G.S. GOPALA RAO,
AGED ABOUT 54 YEARS,
R/AT NO. 237, 2NDD CROSS,
GIRINAGAR, 1ST PHASE,
BENGALURU-560 085.
...PETITIONER
(BY SRI. BALASUBRAMANYA .B.N, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY,
BASAVANAGUDI TRAFFIC POLICE,
BENGALURU 560 004,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU 560 001.
...RESPONDENT
Digitally signed by (BY SRI. RAHUL RAI .K, HCGP)
RENUKAMBA K G
Location: High THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C,
Court of Karnataka PRAYING TO SET ASIDE THE JUDGMENT AND ORDERS PASSED
BY THE HON'BLE LXII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN CRL.A.NO.2333/2018, DATED
16.07.2019 IN CONFIRMING THE JUDGMENT AND ORDER
PASSED BY THE HON'BLE METROPOLITAN MAGISTRATE
TRAFFIC COURT-IV, BENGALURU IN C.C.NO.5214/2017, DATED
23.10.2018 FOR THE OFFENCE P/U/S 279, 304A OF IPC
REGISTERED BY BASAVANAGUDI TRAFFIC POLICE,
BENGALURU AND ACQUIT THE PETITIONER.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:26549
CRL.RP No. 1031 of 2019
ORDER
This revision is filed by the revision petitioner/accused under Section 397 r/w 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the Metropolitan Magistrate Traffic Court IV, Bangalore in C.C.No.5214/2017 convicting the revision petitioner for the offences punishable under Sections 279 and 304A of IPC which is confirmed by the LXII Additional City Civil & Sessions Judge, Bengaluru in Crl.A.No.2333/2018 vide judgment dated 16.07.2019.
2. For the sake of convenience, the parties herein are referred to the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are that on 28.02.2017 at 6.25 a.m., the accused being the driver of the car bearing registration No.KA-41/Z-1393 drove the same in a rash and negligent manner, endangering human life and public safety on Vanivilas Road, National College flyover, Benagluru. While so driving -3- NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 he dashed the pedestrian, who was crossing the road near the flyover down the ramp. As a result, the pedestrian sustained grievous injuries and was immediately shifted to the hospital by the accused himself. However, she did not respond to the treatment and succumbed to the injuries in the hospital. In this regard, the complainant has lodged a complaint by setting the law in motion. On the basis of the complaint, the crime was registered and after investigation, the Investigating Officer submitted the Charge Sheet against the accused for the offences punishable under Sections 279 and 304A of IPC.
4. The accused appeared pursuant to notice issued to him, and the prosecution papers were furnished to him. The plea under Sections 279 and 304A of IPC was read over and explained to him and he pleaded not guilty.
5. To prove the guilt of the accused, the prosecution has examined in all six witnesses, as PWs.1 to 6 and also placed reliance on ten documents marked at Exs.P1 to P10.
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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019
6. After the conclusion of the evidence of the prosecution, the statement of the accused under Section 313 Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial. However, he did not choose to lead any defense evidence in support of his contention.
7. After having heard the arguments and appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offences punishable under Sections 279 and 304A of IPC. He has imposed a fine of Rs.1,000/- for the offence punishable under Section 279 of IPC and further imposed imprisonment for a period of six months with a fine of Rs.3,000/- in default, to undergo simple imprisonment for three months for the offence punishable under Section 304A of IPC.
8. Against this judgment of conviction and order of sentence, the accused has approached the learned -5- NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 Sessions Judge in Crl.A.No.2333/2018 by filing an appeal under Section 374(3) of Cr.P.C. The learned Sessions Judge after re-appreciating the oral as well as documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Being aggrieved by these concurrent findings, the accused is before this Court by way of Revision.
9. Heard the arguments advanced by the learned counsel for revision petitioner/accused and the learned HCGP for respondent- State. Perused the records.
10. 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. He would contend that except PW3, there are no other independent eyewitnesses examined and the evidence of PW3 does not inspire the confidence of the Court. He would also submit that the accident has taken place when the vehicle was moving downward ramp on a -6- NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 flyover and when there was no provision for pedestrian to cross the road, the victim suddenly came across the road in hurry, which resulted in accident and the accused could not anticipate accident, as there was no zebra crossing. Hence, he would contend that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and the learned Sessions Judge on presumptions and assumptions held that, there is a negligent act on the part of the driver which has resulted in miscarriage of justice. Hence, he would seek for allowing this revision petition by setting aside the impugned judgment of conviction and order of sentence passed by both the Courts below.
11. Per contra, the learned HCGP would support the judgment of conviction and order of sentence passed by both the Courts below. He would contend that the petitioner being the driver of the offending vehicle, was required to take proper care while driving the vehicle and the evidence discloses that he was driving the vehicle at -7- NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 80 km speed which discloses his reckless attitude, as it was fast approaching junction and hence he would seek for dismissal of the petition, as the accused has not explained as to under what circumstances the accident has occurred and what precautions he has taken for avoiding the accident.
12. Having heard the arguments and having perused the records, now the following point would arise for my consideration:
"Whether the Judgment of conviction and order of sentence passed by both courts below are erroneous, arbitrary and illegal so as to call for any interference by this court in this revision?"
It is an undisputed fact that the petitioner was driver of the offending vehicle. It is also admitted that the vehicle was met with an accident and the injured succumbed in the hospital. The accused has only disputed the rash and negligent driving on his part.
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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019
13. The prosecution is relying on the evidence of PW3 as well as PW6. PW3 claims to be an eyewitness and PW6 is the Investigating Officer. PW3 in his evidence has simply deposed that, the driver of the offending vehicle drove his vehicle from Lalbagh in a rash and negligent manner and dashed to pedestrian which has resulted in the accident. His cross-examination reveals that the driver of the offending vehicle suddenly applied the brakes. He asserts that the vehicle was moving at 80 km speed. Though he claims to be an eyewitness, he admits that he did not assist in shifting the injured to the hospital, but claims that accused has assisted in shifting the injured to the hospital.
14. PW6 is the Investigating Officer and in his examination-in-chief, he has deposed regarding investigation done by him. In the cross-examination, he admits that there was no zebra crossing available for pedestrian to cross the road. Ex.P10 is the sketch of the -9- NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 scene of offence drawn by the Investigating Officer and it is a material document.
15. At the accident spot, the road is running from east to west. The accused was driving the vehicle from east towards west and he was moving downwards in flyover ramp. There is a road divider in between and there is no provision for taking right turn. Though there is a road joining to the junction moving towards Uttaradi Mutt at north side. The left road is moving towards DVG road and the accused was driving the vehicle from east towards west. There is no scope to take turn towards northern side as there is a divider and only course open is to move straight or on the left towards the south side i.e., towards DVG road. The driver was driving the vehicle close to the northern edge of the road divider. Admittedly, there is no zebra crossing and the sketch as well as the admission given by PW3 clearly disclose that the deceased crossed the road and then crossed the road divider and then she suddenly came across on the road which was moving
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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 towards Vanivilas Road when she was hit by the offending vehicle. The deceased ought not to have crossed the road when there is no provision for crossing the road. The entire road was divided by road divider and there is no provision for pedestrian to cross the road. In spite of that, the deceased crossed one road and she came from the Bank of Maharashtra Circle and jumped the divider and without waiting, suddenly came across the road in order to move towards Jyothi Prakash Stores on the southern side, which has resulted in the accident. The driver is not expected to anticipate the pedestrian crossing by jumping the road divider and hence, the rash and negligent act cannot be attributed to the driver of the offending vehicle. No doubt there was no wall constructed at the time of the accident though there was a divider and it has come in evidence that subsequently, wall was constructed with an intention to avoid the pedestrian using this path as a short cut method.
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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019
16. Looking to these facts and circumstances, both the Courts below have erred in holding that the accident is because of actionable negligence on the part of the driver of the offending vehicle. Both the Courts below did not appreciate Ex.P.10 and the evidence of PW3 in proper perspective and in a mechanical way proceeded to convict the accused only on the ground that he was driving the offending vehicle and the accident has been admitted. The speed is not the criteria for deciding rash and negligent act and the evidence falls short of proving actionable negligence on the part of the driver of the offending vehicle, i.e., accused/revision petitioner.
Under these circumstances, the judgment of conviction and order of sentence passed by both the Courts below needs to be set aside. As such, point under consideration is answered in the affirmative as both the Courts have erroneously convicted the accused. As such, revision petition needs to be allowed and accordingly, I proceed to pass the following:
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NC: 2023:KHC:26549 CRL.RP No. 1031 of 2019 I. The revision petition is allowed.
II. The impugned judgment of conviction and order of sentence passed by the trial Court viz., Metropolitan Magistrate Traffic Court IV, Bangalore in C.C.No.5214/2017, which is confirmed by the LXII Additional City Civil & Sessions Judge, Bengaluru in Crl.A.No.2333/2018 vide judgment dated 16.07.2019 stand set aside.
III. The accused/revision petitioner stands acquitted for the offences punishable under Sections 279 and 304A of IPC and he is set at liberty.
IV. Bail bonds stand cancelled.
V. The fine amount if any deposited shall be returned to the accused/revision petitioner. Send back the original records to the concerned trial Court along with a copy of this order.
Sd/-
JUDGE DS List No.: 1 Sl No.: 22