Karnataka High Court
State Of Karnataka vs Kotresh S/O Kenchappa Madivalar on 4 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2639 OF 2008
BETWEEN:
State of Karnataka,
Through Munirabad Police
Station, Koppal. ...APPELLANT
(By Shri V.M. Banakar, Additional State Public Prosecutor)
AND:
Kotresh,
S/o. Kenchappa Madivalar,
Aged 28 years,
Occupation: Driver,
Resident of 4th Ward, Hosahur,
Mariyammanahalli. ...RESPONDENT
(By Shri Ganapathi M. Bhat, Advocate)
---
This appeal is filed under Section 378(1) and (3) of the
Code of Criminal Procedure, 1973 praying to grant leave to
appeal against the judgment and order of acquittal dated
12.6.2008 passed by the learned JMFC, Koppal, in
C.C.No.74/2007 for the offences punishable under Section 279,
304(A) of Indian Penal Code and etc.
2
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
Heard the learned Additional State Public Prosecutor and the learned counsel for the respondent.
2. The State is in appeal questioning the acquittal of the respondent in a case for offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). The facts of the case are that, on 6.10.2006 at about 4.00 p.m., within the limits of the Munirabad Police Station, Koppal Taluk, between Koppal Hospet NH-63 road near Galemma Temple, the accused who was the driver of a lorry bearing Registration No.KA-36 / 5482, is alleged to have driven the same in a rash and negligent manner, as a result of which a young boy who along with his father were tending a flock of sheep and who were attempting to cross the road, was run over and therefore, a case had been registered. The accused had pleaded not guilty and claimed to 3 be tried. The prosecution examined five witnesses PWs 1 to 5 and marked Exhibits P1 to P7. The accused did not lead any evidence in his defence. The court below framed the following points for consideration:
"1. Does prosecution beyond all reasonable doubts proves that on 06/10/2006 at 4.00 p.m. within the limits of Munirabad PS of Koppal Taluk, between Koppal - Hospet NH-63 Road near Galemma Temple, accused being the driver of Lorry Tipper bearing Reg.No.KA-36/5482 drove it in a rash and negligent manner so as to endanger human life and dashed to complainant's son i.e., pedestrian while crossing road, as a result, pedestrian sustained grievous injuries and died at the spot. Thereby, accused committed the offences punishable under Section 279, 304(A) IPC?
2. What order?
The Trial Court held the issue in the negative. The reasoning of the court as to the manner in which the accident had occurred, namely that there were about 100 sheep 4 which the father and son were tending and that the sheep had started crossing the road when the vehicle driven by the respondent was about 50 metres away and the sheep had almost crossed the road and the victim was behind them when he came under the front right side wheel of the lorry. After running over him, the lorry had gone off the road to the extreme left and had stopped about 120 feet away from the spot where the boy was run over. The vehicle was moving from West to East, whereas the boy along with the sheep were crossing the road from South to North. Therefore, the vehicle was moving on the laneSSSSSSSS which was where the sheep had crossed the road. It is therefore inexplicable that the vehicle seems to have followed the sheep or rather gone towards the sheep and the boy had come under the right side wheel. Therefore, it becomes difficult to presume that the vehicle had tried to avoid the boy and had run over him. It would have been different if the vehicle had moved towards the right to avoid running over the boy. But it has moved towards the flock of sheep and the 5 boy who was following the sheep. This aspect of the matter has been completely overlooked by the court below in proceeding to imagine the behaviour of the sheep and expounding on how a large group of sheep would behave even if one sheep went astray, leading to the entire flock scattering and also presuming that it would be difficult for the persons herding, to control their movement and also presuming that it was such a circumstance which made the boy run after the sheep and that they were possibly scattered as a result of which, he had come under the wheel of the lorry. The way in which the court below has sought to recount the manner in which the accident had occurred, is therefore not on the basis of any eye-witness account, but it is on the court's presumption. On the other hand, from the spot mahazar and the admitted circumstance that the vehicle had moved to the extreme left and that the boy had come under the right side wheel of the lorry and had been run over four feet from the edge of the road, would not explain that the lorry was trying to avoid the sheep or the boy. The fact that 6 it has moved 120 feet from the spot where the boy was run over, also indicates that the vehicle was moving at some speed and was not even able to stop immediately. These aspects are unexplained. It is no doubt true that apart from PW-1, the father of the boy and PW-2, an eye-witness, there are no other independent witnesses who have spoken to the manner in which the accident had occurred. This has prompted the court to hold that there were inconsistencies between the evidence of PW-1 who was a humble shepherd and PW-2, an eye-witness. The fact remains that the son of PW-1 was run over and the vehicle was not moving at a sedate speed, as presumed by the court below. It is even to be noticed that the Lower Court has opined that it did not matter whether the vehicle had stopped 20 feet from the spot where the accident had occurred or at 120 feet, as there were contradictory statements on this aspect by PW-1, inconsistent with the spot mahazar. However, the prosecution having asserted that it was 120 feet and not 20 feet, has been glossed over by the Trial Court. Therefore, the further 7 contention that there was contributory negligence on the part of the victim and his father in having attempted to cross the road with 100 sheep, knowing fully well that there was an oncoming lorry and that they ought not to have crossed at that point of time, is a contention which again cannot be accepted. On the other hand, it was always possible for the lorry to have slowed down noticing the large number of sheep that were crossing the road and it is therefore inexplicable that the lorry driver has proceeded to take the risk of going through, notwithstanding that there were sheep and a little boy crossing the road. Hence, it cannot be said that there was no element of negligence or want of care on the part of the respondent. But however, since in the circumstances such as this, there can only be guesswork as to the manner in which the accident had occurred, the offence being punishable both with imprisonment and with fine, this court would opt to impose punishment by way of fine, as it is found that without proper eye-witness account as to how the accident had occurred, it cannot be squarely brought home that 8 the respondent was entirely to blame. However, in the interest of justice, it is necessary to punish the respondent at least by imposing a fine and a substantial fine, as this could be granted as compensation to the father of the boy, as it would provide some solace.
Therefore, the judgment of the court below is set-aside and the respondent is convicted for the offences punishable under Sections 279 and 304-A. He is sentenced to pay a fine of Rs.1,000/- and in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 279 and under Section 304A, to pay a fine of Rs.24,000/- and in default of which to undergo simple imprisonment for six months. The amount paid as fine shall be granted as compensation to PW-1, under Section 257 of the Cr.P.C.
Sd/-
JUDGE KS