SHIVANNAversusSTATE BY HUNSUR TOWN POLICE

                     [2010] 10 S.C.R. 410


A                           SHIVANNA
                                v.
               STATE BY HUNSUR TOWN POLICE
                (Criminal Appeal No. 445 of 2003)
                        AUGUST 18, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        Penal Code, 1860:
c
       ss.304-A, 279, 337 and 338-A truck loaded with stones
  and being driven by accused overturned leading to death of
  one and injuries to seven others - Conviction by trial court -
  Affirmed by appellate court as a/so by High Court - HELD:
0 This is a case of no evidence, calling for interference at any
  stage - In the light of the statements given by the three
  primary witnesses there is no evidence which inculpates the
  accused - A cumulative reading of their evidence shows that
  the accused cannot be fastened with any a/legation of wrong
E doing - PW 5 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 ahe"!d but the brakes had been applied by the
  accused - PW 6, on the other hand, stated that the accused
  had been blowing the horn for some time and that there was
F a vehicle going ahead and the accused had no option but to
  apply the brakes failing which he would have dashed against
  the vehicle going ahead - PW 7, however, gave a statement
  which completely dislodged the prosecution story -
  Conviction set side and accused acquitted - It is clarified that
G as this 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 - Constitution of India,
  1950 - Article 136 - Three concurrent judgments of courts
  below set aside.
H                              410
 SHIVANNA v. STATE BY HUNSUR TOWN POLICE                    411


    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal               A
No. 445 of 2003.

    From the Judgment & Order dated 26.06.2002 of the High
Court of Karnataka at Bangalore in Crl. R.P. No. 469 of 2002.

    Ananthamurthy (for P.P. Singh) for the Appellant.               B

    Sanjay R. Hegde, Ramesh Kr. Mishra, K. Joshi for the
Respondent.

    The following Order of the Court was delivered                  c
                            ORDER

     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        D
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
                                                                    E
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.                                       F

     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           G
Hunsur town on the 15th September, 1992. As per 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.
                                                                    H
    412      SUPREME COURT REPORTS                (2010] 10 S.C.R.


A       The prosecution in support of its case relied on the
  evidence of ten witnesses and several documents were also
  exhibited towards the ev!.dence. 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
B 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
c 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
D shows that the appellant cannot be fastened with any allegation
  of wrong doing. PW.5 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
E 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
F 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.

G        Mr. Sanjay R. Hegde, the learned counsel for the State of
    Karnataka, has however referred to Ext. P .1 O (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
H
  SHIVANNA v. STATE BY HUNSUR TOWN POLICE                    413


attempting to overtake that vehicle, a duty to take extra care       A
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 of the eye witness evidence produced by the
prosecution itself no inferences can be drawn as in such a           B
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, ~owever, clarify that as the matter before us is a
                                                                     c
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     D
of the appellant and direct his acquittal. As the appellant is on
bail, his bail bonds are discharged.

R.P.                                            Appeal allowed.