Karnataka High Court
Basayya S/O Gurusangayya Mathapati vs The State Of Karnataka on 31 October, 2022
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CRL.RP No. 100260 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 31ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 100260 OF 2014
BETWEEN:
1. BASAYYA
S/O GURUSANGAYYA MATHAPATI,
AGE:40 YEARS, OCC: DRIVER,
R/O: NIDAGUNDI,
TQ: RON, DIST: GADAG.
...PETITIONER
(BY SRI. K L PATIL & SRI. SRINIVAS B NAIK, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
THROUGH RON PS,
REP BY SPP,
HIGH COURT OF KARNATAKA BENCH,
DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
Digitally signed
ROHAN
by ROHAN
HADIMANI T
SECTION 397 & 401 OF CR.P.C. SEEKING TO SETTING ASIDE
HADIMANI Date:
T 2022.11.22
11:06:48
THE JUDGMENT AND ORDER OF CONVICTION DATED
+0530
1/12/2014 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, GADAG IN CRIMINAL APPEAL NO.20/2014 FOR
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CRL.RP No. 100260 of 2014
OFFENCES PUNISHABLE UNDER SECTION 279 & 304(A) OF IPC
AND ALSO SET ASIDE THE ORDER DATED 27.06.2014 PASSED
BY SENIOR CIVIL JUDGE & JMFC, RON IN C.C.NO.111/2013
REGISTERED FOR OFFENCES PUNISHABLE U/SEC. 279 AND
304(A) OF IPC.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This criminal revision petition is filed under Sections 397 and 401 of Cr.P.C. seeking to set aside the judgment and order of conviction dated 01.12.2014 passed by the Prl. District and Sessions Judge, Gadag, in Crl.A.No.20/2014 confirming the judgment of conviction and order of sentence passed by the Senior Civil Judge & JMFC, Ron, in C.C.No.111/2013 dated 27.06.2014.
2. The parties are referred to as per their ranks in the trial court.
3. The relevant facts of the case leading to this revision petition are as under:
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3.1. That on 12.04.2012, when C.W.6 to C.W.18 were travelling in a Tata Ace vehicle bearing registration No.KA.32/A 6750 from Nidagundi Village to Naregal and at about 06.30 p.m. when their vehicle was proceeding near a graveyard situated at Naregal on the Naregal-
Gajendragad road, a lorry bearing registration No.KA.26/5598 driven by the accused was also proceeding towards Naregal and the said lorry was behind the Tata Ace. The accused being a lorry driver, drove the said lorry in a rash and negligent manner and hit Tata Ace from backside. As a result, C.W.6 to C.W.18 sustained simple and grievous injuries and one Veerappa Gurappa Kolkar died on 27.04.2012 while being treated at SDM Hospital, Dharwad. Thus, the accused has committed the offences punishable under Sections 279, 337, 338 and 304(A) of the IPC.
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4. After filing the charge sheet, cognizance was taken by the learned magistrate and case was registered in C.C.No.111/2013 and summons was issued to the accused. In response to the summons, the accused appeared before the trial court. Plea was recorded, accused was pleaded not guilty and claimed to be tried.
5. To prove the case of the prosecution, all 20 witnesses have been examined as P.W.1 to P.W.20 and 26 documents were marked as Exs.P-1 to P-26. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C. was recorded. The accused has totally denied all the incriminating evidence appearing against him, but he has not chosen to lead any defence evidence on his behalf. On hearing the arguments, the learned Magistrate has convicted the accused for the commission of an -5- CRL.RP No. 100260 of 2014 offence punishable under Sections 279 and 304(A) of the IPC.
6. Being aggrieved by this judgment and order of conviction, the accused has preferred an appeal before the Principal District and Sessions Judge, Gadag, in Crl.A.No.20/2014. The said appeal came to be dismissed on 01.12.2014. Being aggrieved by this judgment, the accused has filed this revision petition.
7. The learned counsel appearing on behalf of the accused has submitted his arguments that both the Courts below have not properly appreciated the evidence on record. P.W.1 - informant has not supported the case of the prosecution and P.W.2 & P.W.3-panchanama witnesses have also turned hostile. P.W.14 and P.W.15 - inmates of the Tata Ace vehicle have not deposed as to the rash and negligent act on the part of the accused. As the road -6- CRL.RP No. 100260 of 2014 condition was not good, the question of driving the vehicle at a high speed does not arise. All the inmates of the vehicle are interested witnesses and they have filed the petition only to get compensation. They have also deposed in their evidence that the accused drove the vehicle at a high speed and hit the Tata Ace. The driver of the Tata Ace was carrying more than 25 passengers in the vehicle and has violated the provisions of the Motor Vehicles Act and Rules. Further, he has submitted that during the course of cross examination of P.W.1, he has clearly admitted that he was sitting in the cabin by the side of the driver and that the backside of the vehicle was not visible to him as the backside was covered with tarpaulin. Further he has submitted that Ex.P-6 - post mortem report reveals that the deceased Veerappa Gurappa Kolkar, the inmate of the vehicle, had sustained injuries Nos.1 to 3. As indicated in the PM report, at Sl.No.4, it is stated that "Heart - -7- CRL.RP No. 100260 of 2014 thrombos in proximal part of left descending artery 70% block" and the doctor has opined that the death is due to cardiac disease. He has also drawn my attention to Ex.P-23, which is the letter addressed by the Assistant Professor, Department of Forensic Medicine, SDM College of Medical Sciences & Hospital, Sattur, Dharwad, to the Circle Inspector of Police, in which, Dr.Hemath Kumar R.G., Assistant Professor has opined that "The injuries, as a precipitating factor for aggrevating the pre-existing cardiac disease cannot be ruled out". Therefore, medical evidence clearly goes to show that there is no nexus between the death of Veerappa Gurappa Kolkar and this accident and Veerappa Gurappa Kolkar has not died due to accidental injuries and same is not observed by the Courts below. On all these grounds, he sought for allowing the revision petition.
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8. As against this, learned Addl. SPP has submitted his arguments that P.W.4 to P.W.16, the inmates of Tata Ace have clearly deposed in their evidence as to the manner of the accident, which was caused due to rashness and negligence on the part of the accused. The spot panchanama - Ex.P-2 and photo - Ex.P-4 reveals that the road was in good condition. P.W.20 has clearly deposed that the accused was the driver of the offending vehicle and same is also not disputed by the accused. It is further submitted that both the Courts have properly appreciated the evidence of the prosecution witnesses and passed the impugned judgments and as such, there are no grounds to interfere with the impugned judgments and that the grounds urged in the review petition are baseless and a frivolous petition has been filed by the petitioner. On all these grounds, he sought for dismissal of the revision petition. -9- CRL.RP No. 100260 of 2014
9. THE LAW INVOLVED IN THE PRESENT CASE:
Section 279 of IPC provides for the offence of rash driving or riding on a public way. It reads as under:
"Whoever drives any vehicle, or rides, on any public way, in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
9.1 On a bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute an offence of rash driving on a public way.
1. Person must be driving or riding on a public way;
2. He must be driving in a rash or negligent manner;
3. Likely to endanger human life or cause hurt or injury to any person 9.2 Section 337 & 338 of IPC provide for the offences of causing hurt/grievous hurt by an act
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CRL.RP No. 100260 of 2014 endangering life or personal safety of others. These provisions are the consequences of rash or negligent act of driving on a public way, punishable under Section 279 of IPC. They read as under:
"Sec.337. Causing hurt by act endangering life or personal safety of others Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Sec.338. Causing grievous hurt by act endangering life or personal safety of others Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
9.3 A perusal of these provisions also makes it very clear that hurt/grievous hurt, as the case may be, must be caused by a rash or negligent act endangering human life or the personal safety
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CRL.RP No. 100260 of 2014 of others. These provisions will be applicable/attracted only in cases where the hurt/grievous hurt, as the case may be, is a direct result of the rash or negligent act. 9.4 Further, Section 304A of IPC provides for the offence of causing death by negligence. Death must have been caused by rash or negligent act, which must not amount to culpable homicide. It reads as under:
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
9.5 A perusal of the above discussed provisions makes it very clear that an act of rashness or negligence endangering the human life or personal safety is a common ingredient in all these offences. Now a question arises as to what would constitute a rash or negligent act.
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CRL.RP No. 100260 of 2014 The doing of a rash or negligent act, that causes death, is the essence of Section 304A. There is a slight distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without due consideration and 'negligence' connotes a want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results, but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
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CRL.RP No. 100260 of 2014
10. The Hon'ble Supreme Court in the case of MOHAMMED AYNUDDIN @ MIYAN vs THE STATE OF ANDHRA PRADESH reported in (2000) 7 SCC 72 has discussed in detail as to what constitute a rash or negligent act. It has held as under:
"A rash act is primarily an over hasty act. It is opposed to 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."
11. Further, it should be noted that there should be a direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The Delhi High Court in the case of ABDUL SUBHAN vs STATE (NCT OF DELHI) [133 (2006) DLT 562] has discussed regarding the ingredients which needs to be
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CRL.RP No. 100260 of 2014 established by the prosecution for convicting an accused u/s 279 and 304 A IPC. The Delhi High Court has interalia held as under:
"As observed in Badri Prasad (supra) the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash or negligent act has to be proved."
12. The above mentioned judgment sufficiently enlightens that for establishing accusations under Sections 279 and 304A IPC, prosecution is not only required to establish that the accused was rash or negligent while driving the vehicle, but it is additionally incumbent on prosecution to establish that the causa causans of death of deceased or the
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CRL.RP No. 100260 of 2014 proximate cause of death of deceased was the act of accused.
DISCUSSIONS AND DECISION:
13. I have carefully examined the evidence of the prosecution witnesses. As discussed above, the most important ingredient that needs to be established by the prosecution in order to bring home the conviction of an accused under Sections 279, 337, 338, 304A of IPC is, the "act of rash and negligent driving by the accused". 13.1 The Complainant by name Veeranna Shivasimpir, who is examined as P.W.1, has not supported the case of the prosecution. Even during the course of cross examination made by the Assistant Public Prosecutor after treating him as hostile witness, he has categorically denied the contents of Ex.P-1 and further statement said to have been recorded by the
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CRL.RP No. 100260 of 2014 Investigating Officer under Section 161 of the Cr.P.C., which is marked as Ex.P-3. 13.2 C.W.2-Ningappa, S/o. Sannabasappa Kanavi and C.W.3-Devappa Veerappa Maradi said to be attesters to the panchanama - Exs.P-2 and P-5, have also not supported the case of the prosecution.
13.3 C.W.6 - Basappa Veerabasappa Kaati, C.W.7 - Devappa, W/o. Kalakappa Kaati, C.W.9 - Chandrappa Parameshwarappa Chikkoppada, C.W.10-Subhash, S/o.Shivappa Mavinakayi, C.W.11 - Akkamma, W/o. Basanagouda Keerthigouda @ Muradi, C.W.12 - Vijayakumar, S/o.Veerabhadrappa Hanji, C.W.13 - Eravva, W/o.Mallappa Kaati, C.W.14 - Basavva, W/o. Basappa Mavinakayi, C.W.15 - Channamma, W/o. Kalakappa Kaati, C.W.16 - Ningappa, S/o. Channabasappa Kolakara, C.W.17 - Veerappa,
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CRL.RP No. 100260 of 2014 S/o.Rachappa Vaali, C.W.18 - Sharanappa, S/o. Veerappa Kalakannavara, who were proceeding in Tata Ace vehicle, were examined as P.W.4 to P.W.15 and all these witnesses have clearly deposed in their evidence that on the date of accident, accused was driving the lorry bearing registration No.KA-26/5598. The said lorry came from behind and hit the Tata Ace vehicle. As a result of impact, their vehicle got turtled by the side of the road and they sustained injuries and took treatment in the hospital. However, Veerappa Gurappa Kolkar, an inmate of the vehicle, died after 20 days of the accident while taking treatment in the hospital.
13.4 C.W.29 - B.B.Karamadi, C.W.30 - S.N.Ambigera and C.W.31 - S.M.Raagi, ASI, PSI and CPI respectively examined as P.W.16 to P.W.18 have deposed in their evidence as to
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CRL.RP No. 100260 of 2014 their respective investigations and C.W.26 - S.D.Bellad, Motor Vehicle Inspector has deposed as to the inspection of both the vehicles and also issuance of motor vehicle report as per Ex.P-9; C.W.22-Nagarathna, W/o.Shivappa Mulagunda, the owner of lorry bearing registration No.KA-26/5598 has deposed in her evidence that on 12.04.2012 she had deputed Sri.Basayya Mathapathi as driver to her vehicle.
14. On perusal of prosecution papers, it is evident that P.W.4 to P.W.15 have sustained injuries as shown in the wound certificate, which are marked as Exs.P-14 to P-22, P-24 to P-26. The same is not disputed by the other side.
15. The vital document Ex.P-6 is the postmortem report of Veerappa Gurappa Kolkar, in which the injuries
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CRL.RP No. 100260 of 2014 caused to Veerappa Gurappa Kolkar are shown as under:
"(1) Surgically sutured wound 5cmsx0.5cmshorizontal along the lower border of right side of Mandible (operative procedure) on furthure dissection fracture right angle and condylar part of right side of Mandible.
(2) Healed abrasion with a white patch 4cms x 2 cms right shoulder anterior aspect.
(3) Fracture of right side forearm bone inits distal (Bone - Radius) (4) Heart - thrombos in proximal part of left and descending artery 70% block." 15.1 In the last page of post mortem report, Dr.Hemanth Kumar R.G., Assistant Professor has given opinion as to the cause of death as under:
"Died at SDM Dental Hospital on 27/04/2012 at 11.30 pm. Heart was sent for Histopathological examination.
On perusal of postmortem examination, Histopathological report and case extract, I am of opinion that death is due to cardiac disease."
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CRL.RP No. 100260 of 2014 15.2 Another document Ex.P-23 - letter addressed to the Circle Inspector by Dr.Hemanth Kumar R.G, Assistant Professor, Department of Forensic and Medicines, SDM College of Medical Sciences & Hospital, Sattur, Dharwad, which reveals that the Circle Inspector of Police, Ron, had sent queries to Dr.Hemanth Kumar R.G., Assistant Professor. Query asked is as under:
"Whether cause of death mentioned in postmortem report can be caused by injuries sustained?
Answer: The injuries, as a precipitating factor for aggrevating the pre-existing cardiac disease cannot be ruled out."
15.3 The documents - Exs.P-6 to P-23 produced by the prosecution reveals that prior to this accident, the deceased was suffering from thrombos in proximal part of left descending artery 70% block in the heart. Cause of death is also shown that the death is due to cardiac
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CRL.RP No. 100260 of 2014 disease. The injuries No.1 to 3 shown in Ex.P-6 reveals that deceased had sustained 3 injuries as stated above. This evidence of prosecution clearly reveals that there is no nexus between the death of Veerappa Gurappa Kolkar and the accident in question. This evidence has not been considered by both the Courts below.
16. A careful scrutiny of the evidence placed by the prosecution makes it crystal clear that both the Courts have properly appreciated the evidence on record as to the rash and negligent act on the part of the accused, but both Courts have not taken into consideration the fact that cause of death of Veerappa Gurappa Kolkar was not due to accidental injuries. On re-examination of prosecution evidence placed before this Court, I am of the considered opinion that the prosecution has proved that the accused has committed the offence punishable under Sections 279, 337, and 338 of the IPC, but
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CRL.RP No. 100260 of 2014 the prosecution has failed to prove the commission of offence punishable under Section 304A of the IPC. I have gone through the judgment of Apex Court in Crl.A.No.900/2017 between NANJUNDAPPA & ANR. vs THE STATE OF KARNATAKA, wherein it has observed in para.10 and 11 as under:
"10. In case of circumstantial evidence, there is a risk of jumping to conclusions in haste. While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts. In the present case however, the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced. As far as the onus of proving the ingredients of an offence is concerned, in the judgment titled as "S.L.Goswami Vs. State of M.P. .2 " this Court held:-
"5 ..... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is
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discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
11. Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the Courts below were not justified in convicting the Appellants of negligence under Section 304A read with Section 34 IPC."
17. The Trial Court has convicted the accused for the commission of offence punishable under Section 279 of IPC and sentenced to undergo simple imprisonment for 2 months and in default to undergo simple imprisonment for 15 days. In this regard, learned counsel for the accused has submitted that at the time of accident the age of
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CRL.RP No. 100260 of 2014 accused was 38 years and now he is aged about 48 years and accused is having wife and children and he is the bread winner and has to look after them. Considering the nature and gravity of the offence, I proceed to pass the following:
ORDER (1) Criminal revision petition is allowed in part.
(2) The judgment and order of conviction dated 27.06.2014 passed by the Senior Civil Judge & JMFC, Ron, under Section 304A IPC in C.C.No.111/2013, which is confirmed in judgment dated 01.12.2014 passed by the Principal District and Sessions Judge, Gadag, in Crl.A.No.20/2014, is set aside.
(3) The judgment dated 27.06.2014 passed by the Senior Civil Judge & JMFC, Ron, in C.C.No.111/2013, which is confirmed in
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Crl.A.No.20/2014 in respect of offence punishable under Section 279 of IPC, is confirmed.
(4) The accused is convicted for the offence punishable under Section 337 of IPC and sentenced to pay fine of Rs.1,000/- and in default shall undergo simple imprisonment for 1 month.
(5) Further the accused is convicted for the offence punishable under Section 338 of IPC and sentenced to pay fine of Rs.1,000/- and in default shall undergo simple imprisonment for 3 months. (6) Accused shall pay remaining fine amount within 30 days before the trial court from the date of receipt of certified copy of this order.
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CRL.RP No. 100260 of 2014 (7) Registry is directed to transmit the records to the jurisdictional trial court along with a copy of this order.
Sd/-
JUDGE DR List No.: 1 Sl No.: 14