B.Nagabhushanam Vs. State of
Karnataka [2008]
INSC 899 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP
(Crl.) No.916 of 2008) B. Nagabhushanam ... Appellant Versus State of Karnataka
... Respondent
S.B. Sinha, J.
1. Leave granted.
2. Appellant was the driver of a
bus bearing registration No. AP-10-Z- 5260. He was driving the said bus on
Bangalore-Hindupur road. On 10.1.1999, at about 2:00 p.m. when the bus was
passing through a village commonly known as Kamalapura, it dashed against a
child by name Shantha, as a result whereof she died. Shantha was about 7 years
old at that time. A criminal prosecution under Sections 279 and 304A of the
Indian Penal Code was initiated against him. He was found guilty of the said 2
offences. He was sentenced to one year's simple imprisonment and to pay a fine
of Rs. 1,000/- for commission of the offence punishable under Section 304A and
simple imprisonment for one month and to pay a fine of Rs.500/- for the offence
punishable under Section 279 of the Indian Penal Code. The appeal preferred
thereagainst by him was dismissed. The High Court, however, by reason of the
impugned judgment modified the sentence directing:
"The order of sentence passed
against the revision petitioner for the offence punishable under Section 304- A
IPC is modified. He shall undergo simple imprisonment for six months and to pay
a fine of Rs.
5000/-. In default of payment of
fine amount, he shall undergo simple imprisonment for one month. Out of the
fine amount of Rs.5000/- if deposited by the revision petitioner-accused, a sum
of Rs.4000/- shall be paid to P.W. 6 Gowramma and remaining Rs.1000/- shall be
credited to the State exchequer."
3. A limited notice was issued by
this Court by an order dated 25.2.2008 only on the question of sentence.
4. Mr. Kulkarni, learned counsel
appearing on behalf of the appellant, submits that keeping in view the facts
and circumstances of the case, this Court may also go into the merit of the matter
and pass a judgment of acquittal in favour of the appellant. Learned counsel
contends that the very 3 fact that in the First Information Report, it was
alleged that the deceased was standing on the left side of the road and the
dead body was found on the right side thereof is indicative of the fact that
she all of a sudden ran along the road resulting in the said accident. It was
urged that apart from the mahazar, the evidence was brought on record to show
that the appellant was driving the said bus rashly and negligently and, in any
event, the question of rash and negligent driving on the part of the appellant
does not arise as the speed of the bus was about 20 kilometers per hour. The
doctrine of res ipsa loquitur, the learned counsel urges whereupon reliance has
been placed by the courts below, cannot have any application in a criminal
case.
5. Ms. Anitha Shenoy, learned
counsel appearing on behalf of the respondent, on the other hand, submitted
that for the purpose of finding out the guilt on the part of the appellant, the
entire circumstances must be construed as a whole which are:
-
The evidence
of the eye-witnesses;
-
No
mechanical failure in the vehicle was noticed;
-
No case of
error of judgment has been made out; and iv) Appellant has not offered any
explanation at all as to how the accident took place.
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6. Both the trial judge, the
appellate court as also the High Court considered the matter in details.
The learned trial judge
categorically held that the bus was being driven at a high speed. It further
took into consideration that no cross- examination was effected on the said
question, stating:
"7. In this case the PW 1 one
Sri. Chowdappa is the complainant. He has sworn to the facts that on the date
of incident about 8-10 months back earlier to the date of his evidence in this
case, the said witness deposed to the effect that on that day he was very near
at a distance of about 25 feet from the place of accident and by that time the
bus driven by the accused person from Bangalore to Hindupur direction dashed
against the child and as a result of which the child sustained grievous injury
to head and other parts of the body and as a result the child died at the spot.
In this connection he has also given a complaint as per Ex. P.1 and his
signature came to be marked as per Ex. P.1(a).
The PW 1 has also identified the
accused person who is responsible for the accident. He has also deposed about
the mahazar as per Ex. P 2 and identified his signature at Ex. P 2(a). The
cross examination conducted on behalf of accused person also supports the
prosecution case. During the course of cross examination against it has been
made clear about the distance, place of occurrence, direction. On careful study
of the cross examination discloses nothing has been elicited to disprove the
case of the prosecution. It has also been elicited in the cross examination
that the bus was driven in such a speed. Not even a single question was posed
to him with regard to contents 5 of Ex. P 2 and Ex. P 2(a), thereby the
contents of mahazar remained unchallenged. In addition to other witnesses and
evidence, the evidence of PW 1 itself is sufficient to prove the guilt of the
accused person, and this evidence is very helpful to the prosecution to prove
the guilt of the accused person.
9. Comparative study of evidence
of PW 3 to PW 6 and PW 8 to PW 11 clearly establishes the case of the
prosecution. All the witnesses have deposed about the rash and negligent
driving of the bus by the accused person resulting in death of Shanthamma, aged
about 7 years. All these witnesses have stated that they were standing
separately at different places nearby the place of accident and that they have
witnessed the accident as eye witnesses, and absolutely there is no controversy
of contradictory evidence between each witnesses i.e. from PW 3 to PW 6 and PW
8 to PW 11. The defence counsel has totally failed to establish that the driver
of the bus is not responsible for the death of Shanthamma, and there is no rash
and negligent driving on the part of the accused person. The contents of cross
examination of all these witnesses also in the cross examination of PW 3, after
the accident the bus was taken to the police station. As stated earlier PW 15
got released the bus from the police station."
There is no reason to take a
different view. It is not possible for us in a case of this nature to
reappreciate evidence.
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7. Reliance by the appellant on
the deposition of one of the prosecution witnesses that the bus was being
driven at a speed of 15-20 kilometers per hour, in our opinion, has rightly not
been accepted.
8. The dead body of the girl was
found 2 feet away from the bus. It was only 3 feet away from the pavement on
the right side of the road. The bus admittedly did not have any mechanical
failure. Appellant did not say that there was an error of judgment on his part.
The High Court while exercising
its limited revisional jurisdiction also discussed the case at some details.
There is a concurrent finding of
fact that the bus was being driven rashly and negligently. The post mortem
report was proved by PW 12 - Dr. M. N. Raju. She sustained several
external injuries. On dissection, the following injuries were found:
"a) Right temporal region
Depressed Wound present b) Normal clots present in the right temporal
region."
9. PW 1 is one Sri.Chowdappa. He
is a witness to the accident.
According to him, the child
sustained grievous injuries on head and other parts of the body. In answer to a
question put to him in cross-examination, 7 he stated that the bus was being
driven at a high speed. The mahazar, was marked as Exhibit P-2. The contents of
the mahazar was not challenged. It was found by the learned trial judge that
the evidence of PW.1 alone was sufficient to hold that the appellant was guilty
of the said offences. Other prosecution witnesses were standing at different
places. They had occasions to see the accident from different directions. The
spot mahazar disclosed that there was a break-mark for about 20-25 feet on the
road.
Reliance placed by Mr. Kulkarni on
Syad Akbar vs. State of Karnataka reported in [AIR 1979 SC 1848] is not
apposite. It proceeded on the basis that doctrine of res ipsa loquitur stricto
sensu would not apply to a criminal case as its applicability in an action for
injury by negligence is well known. In Syad Akbar (supra), this Court opined :
"Such simplified and
pragmatic application of the notion of res ipsa loquitur, as a part of the
general mode of inferring a fact in issue from another circumstantial fact is
subject to all the principles, the satisfaction of which is essential before an
accused can be convicted on the basis of circumstantial evidence alone. These
are: Firstly all the circumstances, including the objective circumstances
constituting the accident, from which the inference of guilt is to be drawn,
must be firmly established.
Secondly, those circumstances must
be of a determinative tendency pointing un-erringly towards the guilt of the
accused. Thirdly, the circumstances should make a chain so complete that they
cannot reasonably raise any other hypothesis save that of the accused's guilt.
That is to say, they should be incompatible with 8 his innocence, and
inferentially exclude all reasonable doubt about his guilt."
The maxim was not applied having
regard to the fact of a said case and on the finding that it was a case of
error of judgment and the accused gave a reasonable, convincing explanation of
his conduct. The maxim res ipsa loquitur was not found to be applicable.
However, we may notice that the
said principle was applied in a case under the Prevention of Corruption Act in
State of A.P. vs. C. Uma Maheswara Rao & anr. [(2004) 4 SCC 399] in the
following terms:
"We may note that a
three-Judge Bench in Raghubir Singh v. State of Haryana [(1974) 4 SCC 560] held
that the very fact that the accused was in possession of the marked currency
notes against an allegation that he demanded and received the amount is
"res ipsa loquitur"
10. Although a limited notice was
issued, we have considered the contentions raised by Mr. Kulkarni with all
seriousness that they deserved.
11. We are of the opinion that six
months' simple imprisonment and a direction to the appellant to pay a fine of
Rs.1,000/- for commission of the offence punishable under Section 304A and
simple imprisonment for one 9 month and to pay a fine of Rs.500/- for the
offence punishable under Section 279 of the Indian Penal Code cannot be said to
be shocking.
12. We may, in this connection,
notice that in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82], this Court
opined:
"13. Bearing in mind the
galloping trend in road accidents in India and the devastating consequences
visiting the victims and their families, criminal courts cannot treat the
nature of the offence under Section 304A IPC as attracting the benevolent
provisions of Section 4 of the PO Act. While considering the quantum of
sentence, to be imposed for the offence of causing death by rash or negligent
driving of automobiles, one of the prime considerations should be deterrence. A
professional driver pedals the accelerator of the automobile almost throughout
his working hours.
He must constantly inform himself
that he cannot afford to have a single moment of laxity or inattentiveness when
his leg is on the pedal of a vehicle in locomotion. He cannot and should not
take a chance thinking that a rash driving need not necessarily cause any
accident; or even if any accident occurs it need not necessarily result in the
death of any human being; or even if such death ensues he might not be
convicted of the offence;
and lastly that even if he is
convicted he would be dealt with leniently by the court. He must always keep in
his mind the fear psyche that if he is convicted of the offence for causing
death of a human being due to his callous driving of vehicle he cannot escape
from jail sentence. This is the role which the courts can play, particularly at
the level of trial courts, for lessening the high rate of 10 motor accidents
due to callous driving of automobiles."
13. In Rattan Singh v. State of Punjab [(1979) 4 SCC
719], this Court held:
"5. Nevertheless, sentencing
must have a policy of correction. This driver, if he has -to become a good
driver, must have a better training in traffic laws and moral responsibility,
with special reference to the potential injury to human life and limb.
Punishment in this area must, therefore, be accompanied by these components.
The State, we hope, will attach a course for better driving together with a
livelier sense of responsibility, when the punishment is for driving offences.
Maybe, the State may consider, in
cases of men with poor families, occasional parole and reformatory courses on
appropriate application, without the rigour of the old rules which are subject
to Government discretion."
14. We, therefore, do not find any
merit in this appeal which is dismissed accordingly.
.....................................J.
[S.B. Sinha]
.....................................J.
[Lokeshwar Singh Panta] New Delhi;
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