RAGHU .K. v. STATE OF KARNATAKA

ORDER This revision petition is preferred against the judgment dated 01.07.2019 passed in C.C.No.100/2018 by the Court of Additional Senior Civil Judge and JMFC, Bhadravathi (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment dated

10.12.2019 passed in Crl. Appeal No.5013/2019 by the Court of IV Addl. District and Sessions Judge, Shimoga, sitting at Bhadravathi (hereinafter referred to as 'Appellate Court' for short).

For the sake of convenience, the parties in this revision petition are referred to as per their status and rank before the Trial Court.

The brief facts of the case of prosecution is that on 02.07.2017 at about 11.30 a.m., the accused and deceased were proceeding in a bike bearing No.KA-14/EN- 4837 belong to the accused from H.K. Junction towards - 3 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 B.R.P., and while they were so proceeding near Tammadihalli village cross, at that time, the accused drove the said bike in a rash and negligent manner and lost control over bike and dashed against the electric pole which was beside the road. As a result of which, the deceased Sridhar V. Pai who was pillion rider, fell and sustained injuries all over his body. Immediately the injured was shifted to Nanjappa hospital, Shivamogga and inspite of giving treatment, he succumbed to the injuries. Thus, the accused has committed offences punishable under Section 279, 304A of Indian Penal Code.

After filing of charge sheet, the case was registered in C.C.No.100/2018 and summons was issued to the accused and in response to summons, the accused appeared before the Court and enlarged on bail and accused pleaded not guilty and claimed to be tried.

To prove the case of prosecution, eight witnesses were examined as PWs.1 to 8 and nineteen documents were marked as Exs.P1 to P19. Accused has - 4 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 denied the evidence of prosecution and did not choose to adduce any evidence on his behalf. Having heard the arguments on both sides, the Trial Court has convicted the accused for the offence punishable under Section 279 and also sentenced to pay a fine of Rs.1,000/-. In default to pay fine amount, to undergo simple imprisonment for one week. Further, the Trial Court has convicted the accused for the offence punishable under Section 304A of Indian Penal Code and also sentenced to pay a fine of Rs.5,000/-. In default to pay fine amount, to undergo simple imprisonment for one month. Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred an appeal before the IV Addl. District and Sessions Judge, Shimoga in Crl. Appeal No.5013/2019 and the same came to be dismissed on 10.12.2019. Being aggrieved by the judgment of both the Courts, the accused has preferred this revision petition. - 5 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 Submission of learned counsel for revision petitioner:

Learned counsel for revision petitioner has vehemently submitted that both the Courts have not properly appreciated the evidence on record in accordance with law and facts. The prosecution has failed to place the material on record to attract the ingredients of Sections 279 and 304A of Indian Penal Code. PW.1 is alleged to be complainant and has given the complaint as per Ex.P1 wherein he clearly admitted in his cross examination that he has not written the complaint and did not know the contents of complaint at Ex.P1. Further, he clearly admits that he has not seen the accident. PW.3 is another witness clearly deposed that he has not witnessed the accident. PWs.4 and 5 are the other eye witnesses have not supported the case of prosecution. The Trial Court as well as the Appellate Court have clearly observed that the prosecution witnesses have not deposed as to the rash and negligent act on the part of accused. However, both - 6 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 the Courts have observed that since the accused has not disputed the contents of mahazar and rough sketch.

Further, he submits that the Appellate Court observed that if the road was slippery due to heavy rain because of that the vehicle was skidded, there was no chance of moving further to a distance of 40 feet and dashing to the electric pole. On the other hand, it should have fell on the road if the road was slippery, accused should have ride the vehicle with utmost care and caution and he should have control over the vehicle. If he was riding the vehicle in moderate or low speed. On all these grounds, the Trial Court has convicted the accused for the alleged commission of offence and the same was confirmed by the Appellate Court.

Further, he submits that the judgment of both Courts are only on the basis of assumptions and presumptions and it is contrary to material on record. It is not the case of prosecution that the accident was occurred as the accused has failed to take utmost care and caution. - 7 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 It is the case of prosecution that the accident occurred to rash and negligent act on the part of accused. All the material eyewitnesses including the complainant have not deposed as to the rash and negligent act on the part of accused. Further, both the Courts have not properly appreciated the material on record which is not sustainable under law. On all these grounds, he sought to allow the revision petition.

As against this, learned High Court Government Pleader submits that both the Courts have properly appreciated the material on record and convicted the accused for the alleged commission of offences and there are no grounds to interfere with the judgment passed by both the Courts.

Having heard the arguments of learned counsel for revision petitioner and on perusal of materials on record, following points would arise for my consideration: - 8 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 i. Whether the revision petitioner has made out the grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court which is confirmed by the Appellate Court? ii. What order?

My answer to the above points are as under: Point No.1: in the affirmative Point No.2: as per final order Regarding point No.1:

I have carefully examined the material placed before the Court. It is the case of prosecution that on 02.07.2017 at about 11.30 a.m., the accused and deceased were proceeding in a bike bearing No.KA-14/EN-4837 belong to the accused from H.K. Junction towards B.R.P., and while they were so proceeding near Tammadihalli village cross, at that time, the accused drove the said bike in a rash and negligent manner and lost control over bike and dashed against the electric pole which was beside the road. As a - 9 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 result of which, the deceased Sridhar V. Pai who was pillion rider, fell and sustained injuries all over his body. Immediately the injured was shifted to Nanjappa hospital, Shivamogga and inspite of giving treatment, he succumbed to the injuries. To prove the case of prosecution, eight witnesses were examined as PWs.1 to 8 and nineteen documents were marked as Exs.P1 to P19. According to the case of prosecution, PW.1 Sunil Kumar who is the complainant has lodged complaint as per Ex.P1 and PWs. 3 to 5 are the eyewitnesses to the incident.

In paragraph No.16 of the judgment, the Trial Court has observed as under: "16. On perusal of the evidence given by material witness i.e. PW.1, PW.3 to 5 though they have deposed that they have not directly seen the accident but admitted that deceased was travelling in the offending vehicle of which accused was the driver and also admitted that death of deceased was due to hit of the offending vehicle against the electric pole. None of the witnesses including PW.2 the mahazar witness have disputed the spot of accident. Even accused while cross examining prosecution witnesses including the eye witnesses and investigation - 10 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 officer nowhere has disputed the spot of accident, deceased travelling in the offending vehicle as pillion rider and the cause for the death of deceased due to hitting of offending vehicle against the electric pole but taken the defense that at the time of accident it was raining and as road was slippery offending vehicle was skidded and hit against the electric pole.

It is also appropriate to mention here that the observation made by the Appellate Court in paragraph Nos.17 and 18 as under: the electric pole "17. As per Ex.P2 which is a spot mahazar, in the spot of accident, the road is about 21 feet width, on either side there is each 6 feet kacha road and from the accident spot towards north at a distance of 70 feet, there is curve road is standing at a and electric pole distance of 40 feet towards west from the accident spot. So, it is very clear to which motorcycle dashed was standing at a distance of 40 feet from the road. PW.1 deposed about mahazar conducted by the police in the spot. PW.2 also deposed that police have conducted mahazar near Tamadihalli cross in the spot of accident as per Ex.P2 and obtained his signature. In the course of cross-examination, drawing of mahazar has not been denied by the defence counsel. PW.6 also deposed about the mahazar conducted by him as per Ex.P2 in the spot of accident based on the spot shown by the PW.1. In his cross- examination by the defence counsel, the - 12 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 All road. towards cart in Ex.P2, spot of accident shown correctness of its contents, has not been denied. PW.6 also deposed that at the time of mahazar he has prepared rough sketch as per Ex.P7, which discloses that electric pole against which motorbike ride by the accused was dashed is situated far away from the road, which leads towards B.R.P. and it also takes witnesses have deposed that motorbike dashed against the electric pole. So, the accused has to prove that he was riding the bike in a moderate or low speed, as the road was slippery due to the rain, his motor bike was skidded. It is only a defence of learned advocate for the the course of cross- accused examination of witnesses. But, during the course of his statement under Sec.313 of Cr.P.C., accused has not stated anything as to manner in which accident caused. No doubt, in the course of cross-examination of PWs.1,3 to 5 by the defence counsel, they deposed that they have not witnessed the incident. But it is well settled that even if there is no eye witness, the court has to take the judicial notice about the negligent driving based on spot of accident. disputed

18. Herein, as discussed above, the accused correctness of Ex.P2 spot mahazar and also rough sketch. As I already discussed above, if the road was slippery due to heavy raining and because of that vehicle was skidded, there was no - 13 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 chance of it was moving further to a distance of 40 feet and dashing to the electric pole. On the other hand, it should have fell on the road. Further, if road was slippery, accused should have ride the vehicle with utmost care and caution and he should have control over the vehicle. If he was riding the vehicle in moderate or low speed, there is no chance of skidding or even if it is skidded, moving ahead crossing the road. When there is no explanation on the part of the accused as to how motor bike moved further crossing the road and dashed to the electric pole, that itself sufficient to say that accident caused due to rash and negligent driving of accused. "

On examination of the opinion expressed by both the Courts, it is crystal clear that PW.1 who is said to be the complainant has not supported the case of prosecution. PWs.3 to 5 have clearly deposed that they have not witnessed the accident.

The admission made by the aforesaid witnesses clearly goes to show that though PWs.3 to 5 have not witnessed the accident, the investigating officer has cited them as eyewitnesses and recorded their statements as to - 14 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 the rash and negligent act on the part of accused. The prosecution has not elicited any favourable answer from the mouth of PWs.3 to 5 as to the rash and negligent act on the part of accused. Both the Courts have ignored the material evidence of PWs.1,3 to 5 though there is no evidence as to the rash and negligent act on the part of accused as alleged. The Trial Court has convicted the accused only on the basis of assumptions and presumptions which is not permissible under law. The Appellate Court has also not appreciated the evidence and material on record in accordance with law and facts and confirmed the judgment passed by the Trial Court which is not sustainable under law.

It is necessary to mention here as to the judgment of Hon'ble Supreme Court as to burden of proof in offence under Section 304A of the Indian Penal Code. In the case of NANJUNDAPPA AND ANOTHER v. THE STATE OF KARNATAKA reported in 2022 LIVELAW (5) 489, the Hon'ble Apex Court held that - 15 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 the doctrine of Res Ipsa Loquitur Stricto Sensu would not apply to criminal cases.

In the case on hand, the prosecution has failed to explain the correct/exact reason for the accident. When the prosecution has failed to prove the alleged rash and negligent act of the accused, the question of explaining the reasons for accident by the accused does not arise. Therefore, the opinion expressed by both the Courts are not tenable in law.

On re-appreciation / re-examination / re-consideration of the entire evidence on record, I do not find any material as to the rash and negligent act on the part of the accused. Accordingly, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubts. Hence, I answer point No.1 in affirmative. Regarding point No.2:

For the aforesaid reasons and discussions, I proceed to pass the following: - 16 - NC: 2024:KHC:13774 CRL.RP No. 443 of 2020 ORDER i. Criminal revision petition is allowed. ii. Judgment dated 01.07.2019 passed in C.C.No.100/2018 by Additional Senior Civil Judge and JMFC, Bhadravathi is set aside. the Court iii. Judgment dated 10.12.2019 passed in Crl. Appeal No.5013/2019 by the Court of the IV Addl. District and Sessions Judge, Shivamogga (Sitting at Bhadravathi) is set aside. iv. Revision petitioner/accused is acquitted for the offences punishable under Section 279 and 304A Indian Penal Code. v. If any fine amount is deposited by the accused, the same shall be paid to them in accordance with law. vi. Registry is directed to send copy of this order along with records to the concerned Courts. Sd/- JUDGE SSD List No.: 1 Sl No.: 33