- 1 - CRL.RP No.684 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO.684 OF 2018 (397(Cr.PC) / 438(BNSS)) BETWEEN: SRI. ROOPESH BOGAL S/O PANDURANGA BAGAL AGED ABOUT 30 YEARS, DRIVER OF TATA 107 MINI LORRY BEARING REG.NO.MH-11/AG-4446 R/AT SONAPUR, NAGATHANE POST, SATHARA TALUK & DISTRICT, MAHARASHTRA STATE - 415 519. …PETITIONER (BY SRI. SURESHA C., ADV. FOR SRI. HAREESH BHANDARY T., ADV.) AND: THE STATE OF KARNATAKA, REPRESENTED BY RURAL POLICE HARIHARA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS, BANGALORE - 01. …RESPONDENT (BY SMT. N. ANITHA GIRISH, HCGP.) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.06.2014 MADE IN C.C.NO.935/2012 BY THE COURT OF PRINCIPAL CIVIL JUDGE AND JFMC, HARIHARA AND THE JUDGMENT AND ORDER DATED 23.03.2018 MADE IN CRL.A.NO.76/2014 BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, - 2 - CRL.RP No.684 of 2018 DAVANAGERE AND ACQUIT HIM OF THE OFFENCES WITH WHICH HE WAS CONVICTED BY THE COURTS BELOW. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.07.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT,MADE THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA CAV ORDER Accused/Revision petitioner has preferred this revision petition against the judgment of conviction and order on sentence passed by the Principal Civil Judge & JMFC, Harihara (for short 'the trial Court') in CC No.935 of 2012 dated 27thJune 2014, which is confirmed by the I Additional District Judge, Davanagere (for short 'the appellate Court') in Criminal Appeal No.76 of 2014 dated 23rd March 2018. 2. Parties herein are referred to as per their rank before the trial Court. 3. Facts in brief leading to this revision petition are that the Circle Inspector of Police, Harihara Circle has submitted charge sheet against the accused for the offences punishable under Sections 279, 337, 338 and 304A of Indian Penal Code. It is alleged in the charge-sheet that on 3rd July 2012, CWs9 to 11 were proceeding from Hirekerur towards Davanagere in car bearing registration No.KA-27/M-4451 to attend B-Pharma - 3 - CRL.RP No.684 of 2018 examination and CW1 was driving the car. At 6:30 am when they were proceeding near Haraganahalli on National Highway- 4 bypass, the accused being the driver of TATA 407 Mini Lorry bearing registration No.MH-11/AG-4446 coming from Davanagere towards Ranebennur, drove the vehicle in a rash and negligent manner and in an attempt to overtake another vehicle moving in front of mini lorry, dashed to the said car. As a result, both mini lorry and car were damaged and inmates of the car sustained injuries in the accident. The toddler-Hansini aged five months, also sustained bleeding head injuries. The injured were shifted to SS Hospital, Davanagere for treatment, but on the way to hospital, the toddler-Hansini succumbed to the injuries sustained. Thus, the accused has committed aforesaid offences. 4. In response to summons, accused appeared before the Court and was enlarged on bail. The substance of accusation was read over and having understood the same accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution has examined eight witnesses as PWs1 to 8 and twelve documents were marked as Exhibits P1 to 12. On closure of prosecution side evidence, statement under Section 313 of Code of Criminal Procedure - 4 - CRL.RP No.684 of 2018 was recorded and the accused has totally denied the evidence of prosecution witnesses, however, did not chose to lead any defence evidence on his behalf. Having heard on both sides, the trial Court convicted the accused for offence punishable under Sections 279, 304A, 337 and 338 Indian Penal Code and passed sentence. Being aggrieved by the judgment of conviction and the order on sentence, the accused preferred appeal before the I Additional District & Sessions Judge at Davanagere in Criminal Appeal No.76 of 2014. The said appeal came to be dismissed by judgment and order dated 23rd March 2018. Being aggrieved by the judgment and order passed by the trial Court which is confirmed by the appellate Court, the accused is before this Court in this revision petition. 5. Sri Suresha C, learned Counsel appearing for the Revision Petitioner, would submit that both the Courts have not properly appreciated the evidence on record in accordance with law and facts. PWs1 to 3 have not at all identified the accused and the evidence of PW4 is full of contradictions. As per the case of the prosecution, accident occurred at a curve and the alleged vehicle was moving up-gradient. Hence the question of driving the vehicle in rash and negligent manner does not arise. He submits that this aspect has not been considered by the - 5 - CRL.RP No.684 of 2018 Courts below. Absolutely, there is no evidence as to rash and negligent act on the part of the accused. On all these grounds, he sought to allow the revision petition. 6. As against this, Smt. Anitha Girish, learned High Court Government Pleader appearing for the State, would submit that the both the Courts below have appreciated the evidence on record in accordance with law and facts and absolutely there are no grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court which is confirmed by the appellate Court, and hence sought for dismissal of revision petition. 7. Having heard on both sides and on perusal of records, the following point would arise for my consideration: (i) Whether the judgment of conviction and order in sentence passed by the trial Court which is affirmed by the appellate Court is perverse, capricious and suffer from legal infirmities? 8. I have examined the materials placed before me. It is the case of the prosecution that on 03rd July 2012, CWs9 to 11 were proceeding from Hirekerur towards Davanagere in car - 6 - CRL.RP No.684 of 2018 bearing registration No.KA-27/M-4451 and when the car was proceeding near Haraganahalli Bridge on National Highway-4 bypass at 6:30 am, the accused drove the Mini Lorry bearing registration No.MH-11/AG-4446 from Davanagere towards Ranebennur in a rash and negligent manner and in an attempt to overtake another vehicle moving ahead of his vehicle, dashed to the car in which CWs9 to 11 were proceeding. As a result, the inmates of the car sustained injuries and the toddler-Hansini succumbed to the injuries. Thus, the accused committed the aforesaid offences. 9. The Investigating officer has cited 22 witnesses in the charge-sheet and out of them, prosecution has examined eight witnesses as PWs1 to 8 and marked twelve documents as Exhibits P1 to P12. 10. As per the charge-sheet, CW1-Shivshankar, who is examined as PW3 is the complainant, who has also sustained injuries in the accident. He has deposed in his evidence that he was the driver of the car bearing No.KA-27/M-4451 and he knows CWs9 & 10 and deceased Hansini who died in the accident. CWs9 to 11 and the deceased baby were proceeding from Ranebennur to Davanagere in the car driven by him. - 7 - CRL.RP No.684 of 2018 While the car was proceeding near Kumarapattanam, at 6:30 am, a Mini lorry, came in a high speed and rash and negligent manner and dashed against the car. As a result, he, CWs9 & 11 sustained injuries and the toddler-Hansini sustained fatal injuries, and succumbed to accidental injuries while on the way to hospital. Accident occurred due to fault on the part driver of Mini Lorry. He lodged complaint to the Police as per Exhibit P3. This witness was treated as partly hostile witness with the permission of the Court and was examined by the learned Public prosecutor. In the cross-examination, he has stated that, in the complaint he has stated the name of the accused as Roopesh and mentioned the registration number of mini lorry as MH-11/AG-4446. During the course of cross-examination of this witness by the accused, he has categorically stated that he does not know the contents of Exhibit P3-complaint. Further, he has admitted that he could not say on whose fault the accident occurred and he has not seen the accused and he cannot say the registration number of the mini lorry and he has put signature in the Police Station. 11. CW9-Dr.Shivayogi Hediyala, CW10-Dr. Poornima Masoor, CW11-Anasuyamma Masoor, CW12-Anil Kumar, CW13- Kalavati, CW14-Jagadeeshappa and CW15-Chandrakant are - 8 - CRL.RP No.684 of 2018 shown as witnesses to this incident. Out of them, prosecution has examined only CWs9 & 10 as PWs1 & 2 and CW12-Anil Kumar as PW4 and other witnesses are given up by the prosecution. 12. CW9-Dr.Shivayogi Hediyala examined as PW1, and CW10-Dr. Poornima Masoor examined as PW2, have deposed in their evidence that on 03rd July 2012 at 6:30 am, they were proceeding from Hiriyur to Davanagere in the car driven by Shivashankar and when the car was proceeding near Haraganahalli Bridge near Harihara, a Mini lorry, came in a high speed overtaking another vehicle and dashed against the car. As a result, the inmates of the car sustained injuries and baby Hansini sustained severe head injury. While they were shifting the baby to the hospital, it succumbed to the injuries. They cannot say the registration number of the lorry and the name of the driver, and they have not seen the driver. These witnesses were treated as hostile witnesses with the permission of the Court and were cross-examined. In the cross- examination also, the prosecution has failed to elicit any favourable answer from them. During the course of cross- examination by accused, they have unequivocally admitted that - 9 - CRL.RP No.684 of 2018 they have not seen the accused. Both of them have deposed that they are seeing accused for the first time before the Court. 13. CW12- Anil Kumar examined as PW4, has deposed in his evidence that he knows CWs9 and 10, and also he knows Hansini, the child of CWs9 and 10 who died in the road traffic accident. He has deposed that CWs9 to 11 and driver Shivashankar were proceeding from Hirekerur towards Davanagere in Maruti Swift car on 03rd July 2012 and he was proceeding in another car from Haveri towards Davanagere at short and sightable distance from the said Swift car. At about 6:30 am, near Hagaranahalli Bridge, a mini lorry came from Davanagere side, tried to overtake another lorry and dashed against the car in which CWs9 & 10 were proceeding. As a result, CW9 sustained head injuries and CW10 sustained injuries to her legs and hands and CW11 also sustained head injuries and baby Hansini sustained head injuries and died on the spot. He has seen the accident personally. He called the ambulance and shifted the injured to SS Hospital, Davanagere. He has seen the driver of the mini lorry at the time of accident and also in the Police Station. He has also deposed that he has put his signature on Exhibit P4-panchanama and deposed that - 10 - CRL.RP No.684 of 2018 police came to the spot, conducted spot mahazar and thereafter obtained his signature on Exhibit P4. 14. PW5-Chandrappa and PW6-Ravi Kumar, said to be the mahazar witnesses to Exhibit P4-Panchama, have not supported the case of prosecution. 15. PW7-Nagesh Aithal and PW8-Ram Kumar, the Investigating officers have deposed as to their respective investigation. 16. A careful scrutiny of the entire material placed before me makes it crystal clear that on the basis of complaint filed by PW3-Shivashankar, concerned Police have registered case in Crime No.88 of 2012 for the offence punishable under Sections 279, 337, 338 and 304A of Indian Penal Code against the driver of Mini Lorry for aforesaid offences and submitted FIR to the Court. Thereafter, police visited the spot and conducted spot panchanama, inquest panchanama, recorded statement of witnesses, obtained motor vehicle report, post- mortem report, and submitted charge-sheet against the accused. The material witness PW3-Shivashankar who has lodged the complaint to the police has not supported the case of the prosecution. PWs1 and 2 said to be the eye-witnesses, - 11 - CRL.RP No.684 of 2018 have also not fully supported the case of the prosecution. Even they have not deposed as to the rash and negligent act on the part of the driver of Mini lorry. PW4-Anil Kumar is shown as eye-witness to the incident. But the complainant has not mentioned his name in the complaint. Even PWs1 and 2, who are inmates of the car, have also not deposed that Anil Kumar has witnessed this accident. However, police have recorded his statement under Section 161 of Code of Criminal Procedure but the same is not submitted to the Court at the earliest point time and it was produced to the Court only at the time of filing charge-sheet. The investigating officer-PW7 has not whispered anything as to on what basis and on whose information, the name of Anil Kumar was inserted as an eyewitness. Therefore, it is not safe to consider the testimony of PW4 as to the rash and negligent act on the part of the accused. Though, the trial Court has also observed that PWs1 to 3 have not seen the driver and they are unable to identify the driver, however, only on the basis of the evidence of PW4, has come to the conclusion that PW4 has identified the accused. For the aforesaid reasons, the presence of PW4 at the scene of accident, itself is doubtful. Therefore, only on the basis of sole testimony of PW4, it is not safe to come to the conclusion that - 12 - CRL.RP No.684 of 2018 the accident occurred due to rash and negligent act on the part of the driver of the Mini Lorry in view of the decision of Hon'ble Supreme Court, in the case of NANJUNDAPPA AND ANOTHER v. THE STATE OF KARNATAKA reported in 2022 LIVELAW (5) 489 wherein the Hon'ble Supreme Court has observed as to burden of proof in offence under Section 304-A of the Indian Penal Code and held that the doctrine of Res Ipsa Loquitur Stricto Sensu would not apply to criminal cases. 17. In the case in hand, prosecution has not produced cogent, convincing, corroborative evidence to prove the rash and negligent act on the part of the driver of the mini lorry. Accordingly, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts. Both the Courts have not properly appreciated the evidence in accordance with law and facts and in its proper perspective. 18. On reconsideration, re-evaluation, and re- examination of the entire evidence on record, I do not find sufficient material to convict the accused for offence punishable under Sections 279, 337, 338 and 304A of Indian Penal Code. Accordingly, I answer the point for consideration in the affirmative. - 13 - CRL.RP No.684 of 2018 19. In the result, I proceed to pass the following: O R D E R i) Revision petition is allowed; ii) Judgment of conviction and Order on sentence dated 27thJune 2014 passed in CC No.935 of 2012 by the Principal Civil Judge & JMFC, Harihara, which is confirmed by Judgment and Order dated 23rd March 2018 passed in Criminal Appeal No.76 of 2014 by the I Additional District Judge, Davanagere, are set aside; iii) Accused is acquitted of the offences punishable under Sections 279, 337, 338 and 304A of Indian Penal Code; iv) Fine amount deposited by the accused shall be refunded to him; v) Registry to send the trial Court records along with the copy of this Order to the concerned Court. Sd/- (G BASAVARAJA) JUDGE lnn