Shivanna vs State By Hunsur Town Police

CRIMINAL APPEAL NO. 445 OF 2003

SHIVANNA .. APPELLANT(S)

vs.

STATE BY HUNSUR TOWN POLICE .. RESPONDENT(S)

O R D E R

When we took up this matter at the initial stage we

were surprised as to how and why leave had been granted by

this Court despite three concurrent judgments of the Courts

below recording a conviction against the appellant for

offences punishable under Sections 304-A, 279, 337 and 338

of the Indian Penal Code.

The learned counsel for the appellant has however pointed out that this had happened as there was absolutely

no evidence against the appellant and the findings recorded

by the courts below particularly the Trial Court and the

First Appellate Court (the High Court having dismissed the

criminal revision in limini) were completely outside the

evidence and based on inferences which did not flow

therefrom.

The facts are as under:

The appellant was a truck driver and was plying his

vehicle fully loaded with stones on the State highway bye-

passing Hunsur town on the 15th September, 1992. As per

-2- the prosecution the vehicle allegedly overturned and four

persons sitting in the cabin and three on the stones in the

rear part of the truck were thrown out, leading to the

death of one sitting in the rear and injuries to seven

others. The appellant was accordingly brought to trial for

the aforesaid offences.

The prosecution in support of its case relied on the

evidence of ten witnesses and several documents were also

exhibited towards the evidence. The courts below placed

reliance on the statements of PWs. 5, 6 and 7, all injured,

who were travelling in the vehicle and had, therefore,

witnessed the accident. These PWs admitted that the

accident had happened as the driver of a truck going

directly ahead of the offending vehicle had suddenly

applied his brakes on which the appellant had to brake his

vehicle as well which caused it to overturn on account of its heavy load. PW.7 in fact went even a little further and

deposed that if the appellant had not applied the brakes

his truck too would also dashed against the truck going

ahead.

We have gone through the evidence of these three

witnesses very carefully with the help of the learned

counsel for the parties. We find that a cumulative

reading of their evidence shows that the appellant cannot

be fastened with any allegation of wrong doing. PW.5

-3-

stated that the offending vehicle was going at a fast speed

but in the cross examination he clarified that it was going at a normal speed and that he had not seen the lorry going

ahead but the brakes had been applied by the appellant.

PW.6 on the other hand stated that the appellant had been

blowing the horn for some time and that there was a

vehicle going ahead of the offending vehicle and the

appellant had no option but to apply the brakes failing

which he would have dashed against the vehicle going ahead.

PW.7, as already indicated above, however gave a statement

which completely dislodged the prosecution story. We are

therefore of the opinion that in the light of the

statements given by the three primary witnesses there is no

evidence which inculpates the appellant.

Mr. Sanjay R. Hegde, the learned counsel for the

State of Karnataka, has however referred to Ext. P.10 (the

site plan) to contend that as the accident had happened on

a State highway on the Mysore bye-pass and the fact that a vehicle was going ahead of the offending vehicle would have

been visible to the appellant and as the accident had

happened as he was attempting to overtake that vehicle, a

duty to take extra care lay on him but he had ignored this

basic principle. We are unable to accept this plea. The

site plan only indicates the place where the accident

happened and nothing more can be read into it. In the face

-4-

of the eye witness evidence produced by the prosecution

itself no inferences can be drawn as in such a situation the ocular evidence of those traveling in the vehicle has

to be given primary importance. We are of the opinion that

this is a case of no evidence, calling for interference at

any stage.

We, however, clarify that as the matter before us is

a criminal appeal, the findings recorded herein would not

have any effect on the civil proceedings, if any, pending

with respect to the accident.

We accordingly allow this appeal, set aside the

conviction of the appellant and direct his acquittal. As

the appellant is on bail, his bail bonds are discharged.

.................J. (HARJIT SINGH BEDI) ....................J. (CHANDRAMAULI KR.PRASAD) New Delhi, August 18, 2010.