(Prayer: This Crl.RP is filed u/s.397 r/w 401 Cr.p.c praying to set aside the judgment and sentence dated 20.06.2016 passed by the C.J.M., Mysuru in c.c.no.229/2012 and also the judgment dated 17.05.2017 passed by the iv additional sessions judge, Mysuru in crl.a.no.131/2016 and allow this CRL.RP. with costs.)

Oral Order:

1. Accused is before this Court in this revision petition filed under Section 397 Read with Section 401 of Cr.P.C, with a prayer to set aside the judgment and order of conviction and sentence passed in C.C.No.229 of 2012 dated 20.06.2016 by the Court of III Addl. Senior Civil Judge & CJM, Mysuru and the judgment and order dated 17.05.2017 passed in Criminal Appeal No.131 of 2016 by the Court of IV Addl. District & Sessions Judge, Mysuru.

2. Heard the learned counsel appearing for the parties.

3. It is the case of the prosecution that on 03.10.2008 at about 07.15 a.m. within the limits of Nazarabad police station, Mysore, Mysore - Madikeri highway, the KSRTC bus bearing registration No.KA-09-F-3925, which was driven by the petitioner in a rash and negligent manner, dashed against the motorcycle bearing registration No.KA-09-E-7698 and caused the accident. One Sandesh, who was the rider of the motorcycle, had sustained grievous injury in the accident and succumbed to the injuries subsequently. Along with Sandesh PW-2 Nandaraju was riding pillion in the motorbike bearing registration No.KA-09-E-7698 and he also had sustained injuries and was admitted to the hospital. It is in this background, FIR was registered against the petitioner, based on the complaint of PW4, Santosh. After completing investigation, charge sheet was filed against the petitioner for offences punishable under Sections 279, 338 & 304(A) of IPC and he was tried for the said offences before the jurisdictional Court of Magistrate in C.C.No.229 of 2012. Since the petitioner had pleaded not guilty and claimed to be tried, the prosecution in order to prove its charges levelled against the petitioner has examined six charge sheet witnesses as PW1 to PW6 and has got marked eight documents as Ex.P1 to Ex.P8. On behalf of defence, petitioner had examined himself as DW1. However, no documents were produced on his behalf in support of his defece. The Trial Court after hearing the arguments addressed on both sides vide the impugned judgment and order passed in C.C.No.229 of 2012, convicted the petitioner for offences punishable under Sections 279, 338 and 304A of IPC. For the offence punishable under Section 279 of IPC, petitioner was sentenced to pay fine of ₹.1,000/- and in default to undergo simple imprisonment for a period of three months. For the offence punishable under Section 338 of IPC, petitioner was sentenced to pay fine of ₹.1,000/- and in default to undergo simple imprisonment for a period of three months and for the offence punishable under Section 304A of IPC petitioner was sentenced to undergo simple imprisonment for a period of six months and pay fine of ₹.500/- and in default to undergo simple imprisonment for a period of one month. The said judgment and order of conviction and sentence passed in C.C.No.229 of 2012 was confirmed by the Appellate Court in Criminal Appeal No.131 of 2016 by judgment and order dated 17.05.2017. It is under these circumstances, the petitioner is before this Court.

4. The prosecution in order to prove its charges levelled against the petitioner has in all examined six charge sheet witnesses as PW1 to PW6. PW1-Abhishek, who is the alleged eyewitness in the present case, has not supported the case of the prosecution and therefore, he was treated as a hostile witness and cross-examined by the Public Prosecutor. Even during his cross-examination, nothing material has been elicited from this witness, which is incriminating against the petitioner. PW2 Nandaraju is the injured eye witness in the present case and he was riding pillion in the motorbike bearing registration No.KA-09-E-7698. This witness has stated that Sandesh was riding the said motorbike and he was the pillion rider and they were travelling from Mysore towards Hunsur and when Sandesh was taking a turn to go towards Paduvarahalli, the offending bus, which came from Hunsur side, which was driven by the petitioner in a high speed, dashed against the motorcycle and caused the accident. This witness has also stated that immediately after the accident in question he had lost his consciousness and he gained his consciousness only in the hospital. This witness has not stated that the petitioner was driving the offending vehicle in a rash and negligent manner and as a result, the accident in question had taken place.

5. Ex.P8 is the rough sketch of the accident spot. Perusal of Ex.P8 would go to show that, the bus was moving from Hunsur to Mysore side and the accident in question had taken place on the left-hand side of the road. Paduvarahally is on the left-hand side of the National Highway from Hunsur to Mysore and the motorcycle was travelling from Mysore to Hunsur. It appears that the rider of the motorcycle had tried to take a turn towards Paduvarahally and as a result, accident in question had taken place on the left hand side of the road.

6. PW3-Amruth Kumar is the another eye witness to the accident in question. Even this witness has not supported the case of the prosecution and therefore he was partially treated as a hostile witness and cross examined by the prosecution. This witness has also not stated that the petitioner was driving the offending bus in a rash and negligence manner endangering human life and had caused accident.

7. PW-4 Santhosh is the first informant in the present case. His statement was marked as ExP6 and his signature was marked as Ex.P6(a). Even this witness was partially treated as a hostile witness and was cross-examined by the Public Prosecutor. PW4 also has not stated that the offending bus was driven by the petitioner in a rash and negligent manner, endangering human life.

8. PW5 was the PSI, who had registered the FIR in the present case and had initially conducted investigation. The copy of the FIR has been marked as Ex.P7 and the spot mahazar prepared by this witness is marked as Ex.P8.

9. PW6 is the Police Inspector, who has prepared the inquest mahazar at Ex.P1 and also collected the IMV report- Ex.P2 and the wound certificate of PW2 at Ex.P3. Ex.P4 is the post mortem report of deceased Sandesh.

10. Except PW2, none of the charge sheet witnesses have supported the case of the prosecution completely. Therefore, evidence of PW2 was not corroborated by the other eye witnesses in the present case. PW2 and all other eye witnesses in the present case have only stated that offending bus was driven in a high speed by the petitioner and they have not stated that petitioner was driving the offending bus in a rash and negligent manner so as to endanger human life.

11. The accident in question has taken place in Mysore - Madikeri Highway. Ex.P8 clearly shows that the bus was moving on the left-hand side of the highway from Hunsur to Mysore. The accident in question had taken place on the left- hand side when the rider of the motorbike tried to take a turn at Paduvarahally.

12. The Hon’ble Apex Court in the case of State of Karnataka Vs. Satish reported in (1998) 8 SCC 493 in paragraph no.4 of the said judgment has observed as follows;

                  4. Merely because the truck was being driven at a "high speed" does not be speak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”

13. In the light of the aforesaid decision, if the material evidence available on record is appreciated, it cannot be said that the accident in question had taken place as a result of the rash and negligent driving of the offending vehicle by the petitioner so as to endanger human life. Therefore, the prosecution had failed to prove its charges against the petitioner beyond reasonable doubt. The Courts below have failed to appreciate the aforesaid aspects of the matter and have erred in convicting the petitioner for the charge sheeted offences. Under the circumstances, the impugned judgment and order of conviction and sentence cannot be sustained.

14. Accordingly, the following :-

                  ORDER

                  i. Criminal revision petition is allowed.

                  ii. The impugned judgment and order of conviction and sentence passed by the Courts below are set aside and the petitioner is acquitted of the offences punishable under Sections 279, 338 and 304A of IPC. His bail bonds, if any stands cancelled and the fine amount deposited by him shall be refunded.