Karnataka High Court
Mr. Mehaboob Mahammadasab Korti vs The State Of Karnataka on 7 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HI GH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 7 T H DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRL.RP.NO.100195 OF 2018
BETWEEN
MR. MEHABOOB MAHAMMADASAB KORTI
S/O MAHAMMADASAB KORTI
AGED ABOUT: 34 YEARS,
R/AT: KERUR, OCC: DRIVER,
TQ: BADAMI, DIST: BAGALKOTE,
PIN CODE: 587206.
... PETITIONER
(BY SRI.K.S.PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH BADAMI POLICE STATION,
TQ: BADAMI, DIST: BAGALKOTE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT: DHARWAD.
... RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND SENTENCE 16.08.2018 PASSED BY THE PRL. DIST. &
SESSIONS JUDGE, BAGALKOT IN CRL.A.NO.17/2016 WHICH
HAS BEEN PRODUCED AND MARKED AS ANNEXURE-B IN
PARTLY ALLOWING THE APPEAL BY MODIFYING THE
JUDGMENT AND CONVICTION DATED 07.04.2016 IN
C.C.NO.450/2009 ON THE FILE OF THE PRL. CIVIL JUDGE &
JMFC COURT, BADAMI, VIDE ANNEXURE-A AND DIRECT THE
PETITIONER BE ACQUITTED OF THE OFFENCES P/U/S 337 &
304 OF IPC.
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THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-accused No.2 has preferred this revision petition against the judgment of conviction and order of sentence dated 16.08.2018 in Crl.A.No.17/2016 passed by Prl. District and Sessions Judge, Bagalkot, who has partly allowed the appeal and modified the sentence awarded by Prl. Civil Judge and JMFC., Badami in CC No.450/2009.
2. Though this case is listed for Admission, with the consent of both parties, matter is taken up for final disposal.
3. It is seen from the record that before the trial Court the State-CPI, Badami had filed charge sheet against two accused for the offences punishable under Sections 279,337, 304(A) of IPC and Sec.3 r/w181, 146 r/w 196 & 187 of MV Act.
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4. After considering the evidence and material documents, the trial Court convicted the accused Nos.1 and 2 for the offence under Section 279 337 and 304(A) of IPC and sentenced the accused Nos.1 and 2 to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1,000/- each. In default of fine the accused shall undergo simple imprisonment for 15 days.
For the offence punishable under Section 337 of IPC accused Nos.1 and 2 were sentenced to undergo simple imprisonment for 3 months.
For the offence under Section 304A of IPC accused were sentenced to undergo simple imprisonment for 7 months and fine of Rs.2000/- each. In default of fine the accused Nos.1 and 2 shall undergo simple imprisonment for one month.
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The Trial Court acquitted the accused Nos.1 and 2 for the offence under Sections 3,146, 196 and Section 187 r/w 181 of MV Act.
5. The accused No.2-petitioner herein preferred Criminal Appeal challenging the said order of conviction and sentence passed by Prl. Civil Judge and JMFC Court, Badami and by Prl. District and Sessions Judge, Bagalkot. During the pendency of the appeal before the Appellate Court, accused No.1 died. After hearing the parties, the learned District and Sessions Judge, Bagalkot has partly allowed the appeal of the accused No.2-petitioner herein and modified the order of the Prl. Civil Judge and JMFC., Court, Badami as under:
1) Accused No.2 is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/-. In default of payment of fine amount, he shall undergo simple -5- imprisonment for a period of one month for the offence under Section 304A of IPC.
2) The sentence imposed for the offence under Section 337 of IPC as ordered by Prl. Civil Judge and JMFC., Badami was retained and not interfered.
6. The sentence of imprisonment and fine as ordered by the trial Court for the offence under Section 279 of IPC against accused No.2 was ordered to be set aside.
7. The accused No.2/petitioner herein has approached this Court aggrieved by the order passed by learned District and Sessions Judge, Bagalkot in Crl.A.No.17/2016 with regard to conviction and sentence imposed for the offence punishable under section 304A and Section 337 of IPC. In fact, it is to be noted here that the Appellate Court though convicted the accused No.2 for the offence punishable under Section 304A of IPC modified the award of sentence and -6- imprisonment for a period of 6 months and to pay a fine of Rs.2,000/- as against imprisonment for a period of 7 months and to pay fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of one month.
8. Heard Sri.K.S.Patil, learned counsel for the petitioner and Sri.Ramesh B.Chigari, learned Government Pleader for respondent-State.
9. It is the case of prosecution that Badami Police filed a charge sheet against the accused Nos.1 and 2 for the offences punishable under Sections 279, 337, 304-A of IPC and Section 3 read with Section 181, 146 read with Section 196 and 187 of the Motor Vehicles Act.
10. According to the prosecution on 14.05.2009 the complainant along with Virupakshappa S/o Durgappa Madar, Siddappa S/o Durgavva Madar, Uma W/o Jayappa Hosamani, Rangappa S/o Maliyavva Madar, Yamanappa S/o Laxmappa Madar, Govindappa S/o Durgavva Madar, -7- Hanamappa S/o Durgappa Madar with an intention to purchase material for marriage ceremony of their grand son Rangappa Maliyavva Madar, left the house and they are waiting near the bus stand at Yankanchi. At that time, a tum tum vehicle bearing Registration No. KA-24 / 3611 came from Badami side and all the said persons boarded the said vehicle to go to Kerur. The driver of said vehicle drove it in a high speed. At that time, the complainant advised the driver to drive the vehicle slowly and carefully following the rules and regulations and the same was not heeded to by him.
11. It is the case of the prosecution that when the said tum tum vehicle approached Sunnad- Bhatti of Kerur town, one lorry bearing Registration No. KA-27/7867, which was coming from opposite direction in a rash and negligent manner, endangering human life and safety dashed against the said tum tum vehicle, in -8- which the complainant and others were traveling and due to the negligent act of both the drivers the accident was caused and inmates of the tum tum vehicle sustained injuries and one Virupakshappa Duragappa Madar, who suffered injuries in the said accident while taking treatment succumbed. Pursuant to the accident a complaint was lodged against both the accused persons, ie, driver of tum tum vehicle bearing Registration No. KA-24/3611 and lorry bearing Registration No. KA-27/7867.
12. On the basis of the said complaint, Kerur Police have registered FIR in Cr. No.72/2009. After completion of investigation, the Investigating Officer filed charge sheet against the accused persons for the offences punishable under Sections 279, 337, 304-A IPC and Section 3 r/w 181, 146 r/w 196 and 187 of M.V. Act. Cognizance for the above offences was taken and a criminal case came to be registered against the accused persons.
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13. Thereafter plea of the accused persons was recorded, which was read over and explained to them. They pleaded not guilty and claims to be tried. Accordingly they were tried.
14. To substantiate the case, the prosecution got examined 12 witnesses as PW1 to 12 and got marked Ex.P1 to 17 and closed its side. Thereafter, the statement of accused was recorded as required under Section 313 Cr.P.C. The accused persons denied the incriminating evidence and they did not choose to lead evidence on their behalf.
15. After considering the oral and documentary evidence adduced by the prosecution trial Court found the accused persons guilty and convicted them for the offences 279,337, 304-A of IPC and acquitted them for the offences punishable under Section 3 r/w 181, 146 r/w 196 and 187 of M.V. Act. Trial Court passed the following sentence against the accused No.1 and 2: -10-
(1) For the offence punishable under Section 279 of IPC they were sentenced to under go simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- each. In default to pay a fine amount, they shall undergo SI for fifteen days.;
(2) For the offence punishable under Section 304-A of IPC they were sentenced to under go simple imprisonment for a period of seven months and to pay a fine of Rs.2,000/- each. In default to pay a fine amount, they shall undergo SI for one month.
16. Aggrieved by the said judgment and order of conviction and sentence the accused persons preferred an appeal in Crl. A. No.17/2016 on the file of the Principal District and Sessions Judge, Bagalkot. As stated earlier, during the pendency of the appeal before the learned Sessions Judge, -11- the accused No.1 died and case against him abated. The learned Sessions Judge partly allowed the appeal by modifying the sentence imposed by the trial Court only for the offence of Section 304-A IPC reducing the sentence from seven months to six months. Accused No.2 being aggrieved preferred this petition challenging the conviction and modification of the sentence.
17. It is the contention of the learned counsel for petitioner that though the prosecution got examined PW1 to 12 and got marked Ex.P1 to P17, the prosecution failed to prove the case beyond reasonable doubt. Accordingly, judgment and sentence passed by the Court below is unsustainable in law and is liable to be set aside. The learned counsel for petitioner further contends that entire case of the prosecution was on the basis of eye witnesses mainly, PWs 1, 3, 4, 5 and 12, who are inmates of the Tum Tum vehicle. He contends that the -12- evidence of these witness is only with regard to rash and negligent manner of driving of the Tum Tum vehicle by accused No.1 and that there is absolutely no evidence with regard to the driver of the lorry, which was driven by petitioner - accused No.2. Therefore, according to the learned counsel for petitioner order of conviction and sentence against the petitioner is without any evidence. Accordingly, the said judgment and order of sentence is required to be set aside. The learned counsel further contends that only evidence that have been considered by the Court below so far as PW.3 to 5 are concerned, wherein it is stated that 'lorry coming from opposite direction was also coming in rashly' as such the judgment and order of conviction and sentence passed by the Court below are perverse and illegal.
18. The learned counsel for the petitioner further contends that the Court below has not considered the spot panchanama at Ex.P3, -13- wherein it is mentioned that the lorry was being driven on the left side of the road and in fact, the impact was done by the driver of the Tum Tum vehicle, who had driven the said vehicle beyond his side and gone to the other side of the road. Therefore, the trial Court without considering the spot mahazar at Ex.P3, which is the material evidence has erred in law and caused miscarriage of justice to the petitioner - accused No.2. Hence, the judgment requires to be set aside.
19. The learned counsel for the petitioner also contended that the Court below has erred in not considering the defence put forth and raised by the petitioner with regard to the width of the road, which is only 10 - 15 mtrs width and due to which there could not have been possibility of driver of the lorry to have driven the vehicle on high speed. This aspect of the matter has not been considered causing injustice to the petitioner. It is further contended by the -14- learned counsel for petitioner that the basic essential ingredient for commission of offence, has not been proved by the prosecution beyond reasonable doubt. He further contended that in view of the essential ingredient and basic requirement are not proved beyond reasonable doubt, the Court below ought to have acquitted the petitioner for afore stated offences. He further contends that sentence imposed by the Court below is severe and disproportionate and does not serve any justice and object of Legislation.
20. The learned counsel for the petitioner further contends that all the witnesses, admittedly, are inmates and passengers, who were traveling in the Tum Tum vehicle. Hence, they could only state about rash and negligent driving of the driver of the Tum Tum vehicle, but they were not in a position to speak about the rash and negligent driving of the driver of the lorry. He further contends that by mere -15- statement of the witnesses who are passengers and inmates of the Tum Tum vehicle, with regard to high speed driving of the lorry, could not attract the provision of Section 304-A of IPC. According to him there is no rash and negligent driving by the driver of the lorry. Learned counsel further contended that sketch produced at Ex.P3, does not specifically show that negligence or breach of lorry on the wrong side of the road to come to a conclusion that the lorry was responsible for cause of accident. He further contends that the accident could have occurred due to negligence of the driver of Tum Tum vehicle as he was carrying excess passengers in the vehicle. Accordingly, he contends that both the Courts below have failed to properly appreciate the material evidence and the documents produced and therefore, the impugned judgment and order of conviction and sentence passed against this petitioner - accused No.2 is not in accordance with law as -16- the same is perverse, illegal and calls for interference in the hands of this Court. Accordingly, he seeks to allow this petition and set aside the order passed by the Court below.
21. Learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA Vs SATHISH reported in (1998) 8 SCC 493, to contend that 'there being no evidence on record to establish 'negligence' or 'rashness' in driving the truck on the part of respondent, it cannot be said that view taken by the High Court in acquitting the respondent is a perverse view.' Learned counsel further relied on judgment of the Hon'ble Supreme Court in the case of STATE OF PUNJAB vs SAURABH BAKSHI reported in (2015) 5 SCC 182.
22. Per contra, Sri Ramesh Chigari, learned High Court Government Pleader contended that both the Courts below have applied their mind -17- by considering the material evidence and documents produced before the Court and have concurrently held that the accused are guilty of offences for which they have been convicted and sentenced them to punishment in accordance with law as prescribed under Code. Therefore, there is no requirement of interference or indulgence by this Court in the considered judgments of both the Courts below. He further contended that after the commission of offence, ie., the accident on 14.05.2009, the petitioner herein - accused No.2, ran way from the spot and did not provide any assistance to the injured persons. He further contended that the prosecution witnesses have supported the case and nothing adverse has been elicited by the petitioner to disprove the case of prosecution. It is the specific case of prosecution that on 14.05.2009, the complainant along with Virupakshappa Durgappa Madar and six others were traveling in Tum Tum vehicle to purchase -18- the marriage material for marriage of their grand son by name Rangappa Maliyavva Madar and due to the rash and negligent driving of the lorry, which came near Sunnad-Bhatti of Kerur town in a high speed, rash and negligent manner dashed against the Tum Tum vehicle and caused accident leading to the death of one Virupakshappa Durgappa Madar. Therefore, the driver of lorry is responsible for the cause of accident and rightfully both the Courts below have convicted and sentenced the petitioner for the said offences.
23. I have heard the learned counsel appearing for petitioner and learned HCGP and perused the records.
24. The petitioner has approached this Court challenging the judgments of both the Courts below and to set aside the same as the prosecution has not made out a case for their conviction. It is to be noted here that power of -19- revision Court is narrow to consider the correctness, legality or propriety in findings, sentence or order passed by the Courts below. Under such circumstances, the question of re- appreciation of evidence does not arise.
25. Now coming to the facts and circumstance of the case. The prosecution has examined PW1, who is the complainant and the inmate and passenger of the Tum Tum vehicle. Though in his evidence he has not stated as to who is responsible for the accident in his examination in chief, PW1 clearly stated that both the drivers were responsible for rash and negligent driving. PW2 is witness to the spot panchama and inquest panchanama of the dead body. PW3 to 5 are the eye witness and inmates / passengers, who were traveling in the Tum Tum vehicle. They have stated in their evidence that the drivers of both the vehicle, ie., Tum Tum vehicle and lorry were together responsible for cause of the accident and the driver of the Tum Tum -20- vehicle was advised to drive slowly and carefully but he did not accede to their advise and is also responsible for the cause of accident. Along with PW1, 3, 4 and 5 the another witness PW12 is also another eye witness, who was also inmate and passenger in the Tum Tum vehicle, he has also supported the case of the prosecution with similar statement. He has also stated in his evidence that two persons were sitting in front along with driver of the Tum Tum vehicle. Therefore, these two persons had clear vision and sight of the on coming lorry in a rash and negligent manner. Therefore, evidence of PW12 cannot be brushed aside to consider the negligence of lorry.
26. PW6, who is the owner of lorry has admitted that the lorry was driven by petitioner herein. PW7, who is the Investigating Officer has filed charge sheet and conducted the spot panchanama and requested the Motor Vehicle Inspector - PW11 for the report to assess the -21- vehicle involvement in accident. He also recorded the statements of PW7 and 10 and further statements of PW15 and 6. PW8, who is the Doctor, issued the injury certificate to PW4 and one person Venkappa Pandappa Lamani. PW9, who is another Doctor has conducted PM examination as per Ex.P16, where the cause of death is stated to be due to the injuries to fatal organs, ie., brain. PW10, ASI registered a complaint and had conducted the Inquest Panchanama. PW11, who is the Motor Vehicle Inspector, who inspected the vehicle involved in the accident and has stated that the accident is not due to any mechanical defect. Ex.P9 is the Motor Vehicle accident Report, which shows in Col. No.8 that the accident is not due to any mechanical defect.
27. On analysis the creditworthiness of the witnesses who have deposed before the Court and on examination whether there is any perversity and illegality committed by the Courts -22- below, it is seen that there are no contradiction or infirmity in the finding arrived at by the Courts below. The fact that the accident took place on 14.05.2009 has not been disputed by petitioner and that he was driver of the lorry and the prosecution having proved its case beyond reasonable doubt on the basis of the material evidence and the documents. The Courts below have not committed any illegality or perversity in coming to the conclusion to convict accused persons.
28. Reliance has been placed by the learned counsel for petitioner on the decision of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA Vs SATISH reported in (1998) 8 SCC 493, wherein in the said facts and circumstance of the case, trial Court came to a conclusion that the truck was being driven in a high speed and where no finding was recorded that the driver of the truck was driving rashly and negligently, in that case, none of the witnesses, who were -23- examined would give an indication, even approximately, as to what is meant by high speed and they merely said that the lorry is coming in a high speed. I am in respectful agreement of the judgment of the Hon'ble Supreme Court cited by the learned counsel for petitioner, wherein it is held that the term of rashness and negligence could be drawn by invoking maxim 'res ipsa loquitur.' In the said case there was no material evidence to implicate the accused. Though I agree with the judgment of the Hon'ble Supreme Court, but the same may not be applicable to the present facts and circumstance of the case. Hence, not helpful to petitioner.
29. The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Supreme Court in the case of RAVI KAPUR vs STATE OF RAJASTHAN reported in (2012) 9 SCC 284, wherein the Hon'ble Supreme Court held that the doctrine of res ipsa loquitur was -24- explained and in that case the Court further held that the preliminary conditions for applicability of Section 279 IPC are that it is the manner in which the vehicle is driven and it being driven either rashly or negligently and such rash or negligent driving should be such as to endanger human life. It is important to note here that rash and negligent driving has to be examined in the light of not merely stray sentence and statement made by the witnesses. On the other hand, the rash and negligent driving has to be examined in the light of the facts and circumstance of the given case and it may be seen and examined in isolation when there are attending circumstances, material evidence and witnesses statements to determine the rash and negligent driving of the driver of offending vehicle. It is further important to note that it is not always possible to determine the reference of the speed of vehicle to come to a conclusion that there was rash and negligent driving. -25-
30. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person by similar consideration would not do. As stated earlier 'negligence' is not an absolute term but it is relative one, it is rather a comparative term. There is no precise mathematical formula to describe negligence. As negligence would always depend upon surrounding circumstance in the facts of each and that particular case. Therefore, it cannot be taken as a general rule. What is applicable to one person or factual situation may not be applicable to the other situation may be a negligent act. It is necessary to consider in the present facts and circumstance of the case the concept of culpable rashness with regard to alleged accident. Culpable rashness is an act in consonance and mischievous illegal consequence -26- may follow but with a hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening.
31. In the present case on hand admittedly, the lorry was loaded with stones and it is a heavy vehicle, which has been proved by the petitioner, ought to have taken care, precautions when driving such vehicle on the road, where the life of himself as well as others are involved and that is where the reasonable case and obligation are imposed on the person driving on road. The doctrine of 'reasonable care' imposes the obligation or duty upon a person, in this case the driver of the lorry, would have taken care on the road and it is the duty attain the higher degree when there are pedestrian and there are on coming vehicles and it is also the duty of reasonable care is to be taken by the driver and their driving does not endanger the life of other users of the road, -27- which may be either pedestrian or vehicle user and more when so the driver is driving the heavy vehicle and his responsibility becomes more, even according to the Motor Vehicle Rules.
32. The learned Government Pleader relied on the judgment of Hon'ble Supreme Court in the case of RAVI KAPUR vs STATE OF RAJASTHAN reported in (2012) 9 SCC 284, which is clearly applicable to the facts of the case and it will not be necessary to deal with each and every statement made by the witness examined by the prosecution in this case. This Court will have to keep in mind the enormous number of road accident that are happening in day to day basis, which has devastating consequence to the victims and the travelers. Though the provisions of Section 304-A of the IPC would act more as a Penal Code it should act as a deterrent to the driver to come in such a negligent act in future. In the present case on -28- hand, the Courts below have kept in mind this concept of determination and have accordingly considered the mitigating circumstances while awarding the sentence and the Appellate Court has reduced the sentence by one month for the offence punishable under Section 304-A of IPC.
33. It is also necessary for this Court to send a message to said violators of law and remind them constantly that they may be established drivers but while using the road either for themselves or for others who are using the road, they cannot even have a single moment of inadvertences when they are driving the vehicle on the road. As held by the Hon'ble Supreme Court in the case of STATE OF PUNJAB vs SAURABH BAKSHI reported in (2015) 5 SCC 182, a driver must always keep in mind the fear psyche that if he his convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts -29- can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.
34. On careful perusal of the material placed before this Court and after having heard the learned counsel for petitioner and the learned Government Pleader and keeping in mind the principles laid down by the aforementioned decisions, I do not find any justifiable reason to interfere with the judgment and order of conviction and sentence passed by the Appellate Court confirming and modifying the judgment and order of conviction and sentence passed by the trial Court. Further, I do not find any illegality or perversity in the order passed by learned Appellate Judge.
35. Accordingly, I pass the following order:
ORDER Revision petition is dismissed. The judgment of conviction and order of sentence -30- dated 16.08.2018 in Crl.A.No.17/2016 passed by Prl. District and Sessions Judge, Bagalkot, partly allowing the appeal and modifying the sentence for the offence punishable under Sections 337 and 304 of IPC in CC No.450/2009 passed by Prl. Civil Judge and JMFC., Badami, is hereby upheld.
Sd/-
JUDGE HMB/VK