Contributory negligence of the victim can absolve the accused of criminal liability in road accident cases if established that the victim's actions contributed to the accident.

ORAL ORDER

Heard learned counsel for petitioner and learned counsel for respondent.

2. The factual matrix of case of the prosecution before the Trial Court is that on 30.08.2017 at about 9.10 am, accused on his motorcycle bearing Reg.No.KA.19-EU-715 drove the vehicle in a rash and negligent manner. As a result, he dashed against the women, who was crossing the road from west to east on the National Highway and when she was reaching the edge of the road, accused dashed against deceased Smt. Varija and she fell down and succumbed to the injuries. The police have registered the crime in Crime No.204/2017 for the offence punishable under Sections 279 and 338 IPC and thereafter, on account of death of deceased, invoked the offence punishable under Sections 304A IPC . The police after investigation, secured the accused and accused did not plead guilty.

3. The prosecution examined the witnesses as P.Ws.1 to 6 and marked the documents as Exs.P1 to P13. The Trial Court having considered the material on record, particularly the evidence of P.Ws.1 and 2 and also P.W.3, who also claimed to be eye witness and partly supported the case of the prosecution and having considered the sketch which is marked as Ex.P4 and spot mahazar, comes to the conclusion that accident has occurred on account of negligence on the part of rider of the motorcycle and convicted and sentenced the petitioner for a period of six months for the offence punishable under Section 304-A IPC and imposed fine of Rs.5,000/- and imposed fine of Rs.1,000/- for the offence under Section 279 IPC and in default of payment of fine, to undergo simple imprisonment for a period of ten days.

4. Being aggrieved by the said order, an appeal is filed before the First Appellate Court in Crl.A.No.144/2021 and the First Appellate Court also having reassessed both oral and documentary evidence placed on record, comes to the conclusion that P.Ws.1 and 2 deposes that P.W.1 was standing bear Mukka Check post bus stand and P.W.2 was travelling on his own motorcycle in the same road and both of them deposed that accident has occurred due to negligence on the part of rider of the motorcycle. Having considered Exs.P3 and P4- mahazar and sketch respectively, confirmed the order of the Trial Court. Hence, the present revision petition is filed before this Court.

5. The main contention of learned counsel for the petitioner before this Court is that once the offence under Section 279 IPC is invoked and the same merges with the serious offence of 304A IPC , particularly invoking Section 279 IPC does not arise as the ingredients are one and the same. Learned counsel would contend that there are several inconsistencies in the statement of witnesses pertaining to alleged accident and vehemently contend that the Trial Court and the First Appellate Court have lost sight of the document of Ex.P4 which clearly depicts the place of accident i.e., in the middle of the road in the direction in which the rider of motorcycle was proceeding and the accident is not on the edge of the road as contended by the prosecution. Apart from that, counsel brought to notice of this Court that there are admissions in the cross-examination of P.Ws.1 and 2 that there was no zebra crossing and no provision was made to cross the road in the place of accident and suddenly, victim rushed to the road, in order to cross the road. Learned counsel also brought to notice of this Court that though there is a road divider in between both the roads, the same is a straightway and the accident has occurred on account of the negligence on the part of the deceased herself, since she rushed to the road without observing movement of the vehicles. Hence, it requires interference of this Court by exercising revisional jurisdiction.

6. Per contra, learned HCGP for the respondent-State would contend that the place of accident is depicted in the sketch at Ex.P4 which discloses that there are houses and a bus stand. When such being the case, rider of