MANVAL LUIS DESOUZA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The above Criminal Revision Petition is directed against the order passed by the J.M.F.C., Bhatkal, in C.C. No. 546/83 dated 30-9-1985 convicting the accused and sentencing him to pay a fine of Rs. 500/- and order dated 7-3-88 passed by the District and Sessions Judge, Karwar, U.K. District in Criminal Appeal No. 66/85, confirming the order of the Judicial Magistrate, First Class, Bhatkal.

(2.) The facts of the case in brief are: That the petitioner was an accused who was the driver of a bus bearing No. MEF. 9723 belonging to the M.S.R.T.C. has driven the same bus rashly and negligently in Bhatkal bus stand while taking the reverse of the bus with a result, a hamal by name Nagappa Kulla Naik was caught in between a pole and the back of the bus and died subsequently. Therefore the police of Bhatkal, charge sheeted before the J.M.F.C. Bhatkal for an offence under Section 304-A of the Indian Penal Code.

(3.) The learned Magistrate, who tried the case after appreciating the evidence of the witnesses examining ihe documents produced by both the parties and after hearing both the counsel, convicted the accused for an offence punishable under Section 304- A and sentenced him to pay a fine of Rs. 500/- and in default of payment of fine he shall undergo simple imprisonment for a period of one month. Being aggrieved by the said order of conviction and sentence, the accused filed Crl. appeal No. 66/1985 in the Court of Sessions Judge, Karwar (U.K.). The learned Sessions Judge after hearing both the parties dismissed the appeal and confirmed the order of conviction and sentence passed by the learned Magistrate. Being aggrieved by both the orders, the accused filed the above Criminal Revision Petition challenging this conviction and sentence passed against him. The learned Counsel Mr. Kulkarni, appearing for the petitioner, submitted that both the courts failed to consider that the accident had taken place not due to rash and negligent driving. Both the Courts have not properly considered this aspect of the matter. Particularly evidence of PW. 8, the child witness, who was hardly of 13 years may not have worldly experience, particularly regarding rash and negligent driving. PW. 4 has stated on oath that while taking the bus in reverse a driver cannot see what is behind the bus, generally conductor guides him by whistling. This witness has clearly stated <IMG>JUDGEMENT_302_KANTLJ3_1989Image1.jpg</IMG> <IMG>JUDGEMENT_302_KANTLJ3_1989Image2.jpg</IMG> and he has also said "while the driver was taking the bus in reverse direction & I was whistling." He has also categorically stated that "the bus was coming reverse direction very slowly, when I whistled to stop, he stopped it." The defence in the cross-examination tried to attribute negligence on the part of the conductor, who was guiding the driver. Mr. Kulkarni, learned counsel for the petitioner vehemently submitted that the accident has taken place, the mere accident is not a matter or a factor for convicting the accused, it must be due rash and negligence. The prosecution has to establish that the bus was being driven in a rash or negligent manner for which the learned Counsel submits this aspect has not been established by the prosecution. Therefore the accused is to be acquitted as his guilt is not proved by the prosecution. Therefore the learned counsel relies upon the decision of this Court in Raju P.M. v State of Karnataka (1977(1) Kar.LJ. 260), wherein this aspect is clearly considered and followed in appreciating the evidence in such a case.