Karnataka High Court
Mukthumsab S/O. Babusab Sutagatti, vs The State Of Karnataka, on 23 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH / 23RD DAY OF SEPTEMBER, 2013
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.2027/2012
BETWEEN:
Mukthumsab S/o Babusab Sutagatti,
Age: 30 years, Occ: Driver,
R/o Rayapur Village,
Tq. Dharwad, Dist: Dharwad.
...PETITIONER
(By Smt.Sunitha P.Kalasoor, Advocate)
AND:
The State of Karnataka,
Represented by its State Public Prosecutor,
High Court of Karnataka, Dharwad.
...RESPONDENT
(By Shri.V.M.Banakar, Additional State Public Prosecutor)
---
This Criminal Revision Petition is filed under Section 397 read
with 401 of Criminal Procedure Code, 1973 seeking to set aside the
judgment and order passed by the Presiding Officer, I-Additional
Sessions Judge, Dharwad, sitting at Hubli, in Crl.A.No.10/2010 dated
21.12.2011 and order of conviction and sentence passed by the JMFC
I-Court, Hubli, in C.C.No.1429/2007 dated 03.02.2011.
2
This criminal revision petition coming on for final hearing this
day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Additional State Public Prosecutor.
2. The petitioner was the accused in the following background.
The petitioner was the driver of a bus belonging to M/s Bendre Transport Service, bearing No.KA-25/D-6. It transpires that, he was driving the vehicle on 07.02.2007, at about 11.00 a.m. from Dharwad to Hubli, and when the bus came near the Government School at Bharidevarakoppa, it transpires that since the vehicle was moving at high speed, one Kumari Lakshmi, aged about 8, had tried to cross the road towards her school and had been knocked down by the bus and succumbed to the injuries. It transpires that the petitioner fled from the spot fearing public rage at the accident, and thereafter, a case has been registered against the petitioner for offences punishable under Sections 279 and 304-A of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) read with Section 187 of Motor 3 Vehicle Act, 1988 (hereinafter referred to as the 'Act', for brevity). The petitioner having been charge sheeted and charges having been framed, he pleaded not guilty and claimed to be tried, the prosecution examined P.Ws.1 to 9, and marked Exs.P1 to P15. The Court below having heard the arguments, and on the basis of the evidence, framed the following points for consideration:
i) Whether the prosecution has proved beyond all reasonable doubt that on 07.02.2007 at about 11-00 a.m., infront of Government School at Bhairidevarakoppa on P.B. Road, the accused as the driver of the passenger bus bearing registration No.KA-
25/D-6 belonging to Bendre Transport drove the said vehicle from Dharwad to Hubli on the public road in a rash and negligent manner so as to endanger human life thereby committed an offence punishable under Section 279 of Indian Penal Code?
ii) Whether the prosecution has proved beyond all reasonable doubt that the accused on the aforesaid date, time and place as the driver of the offending vehicle drove the said vehicle in a rash and negligent manner and caused the death of pedestrian Kumari Laxmi aged about 8 years by such negligent Act of driving and 4 thereby committed an offence punishable under Section 304-A of Indian Penal Code?
iii) What order?
3. The Court below held the same in the affirmative and sentenced the petitioner for imprisonment for six months and to pay a fine of Rs.2,000/- for offence punishable under Section 279 and 304A IPC and the sentence to run concurrently. That having been questioned in an appeal, the Appellate Court has affirmed the said judgment. It is this, which is sought to be questioned in the present petition.
4. The learned counsel for the petitioner while taking this Court through the record would seek to vehemently urge the grounds urged in the present petition. While disputing that the vehicle was being driven in a rash and negligent manner and going by the vague spot panchanama, that is drawn up and the evidence of the witnesses, she would point out that, there is no indication of the vehicle having run over the child. On the other hand, it is seen that the accident has occurred on the edge of the road, thereby indicating that the child has 5 unwittingly run into the path of the bus and was possibly knocked down and has succumbed to the injuries. The manner in which the injuries caused has not been explained by any of the witnesses. Therefore, it is evident that there was no indication of the bus being driven in a rash and negligent manner. If the bus was driven in a rash and negligent manner, the vehicle would not have stopped immediately after knocking down the child and the body of the child having been found close to the bus, which indicated that the vehicle was not moving at speed for otherwise, it could not have been stopped immediately. Further, she would contend that, in view of doubt being created as to the circumstance that the vehicle was being driven in a rash and negligent manner, it cannot be said that the petitioner was responsible for the accident. There was certainly an accident involving the death of the child, but not on account of any rash and negligent driving of the petitioner. The child having come into the path of the bus and even though the vehicle has been stopped, child having sustained injuries and succumbed, is not on account of any fault of the petitioner, as already stated. However, the learned 6 counsel would also draw attention to the evidence of P.W.1, who had sought to improve his statement to make out a case of rash and negligent driving by claiming that the vehicle had moved twenty feet, after it had knocked the child down. On the other hand, his earlier statement was to the contrary and that the vehicle had stopped immediately after knocking down the child. It is in this vein that the learned counsel would seek to urge the several contentions, which centre around the findings of fact by the trial Court, which has been affirmed by the Appellate Court. Therefore, the limited aspect on which, this Court is called upon to address the correctness or otherwise of the concurrent findings of the Courts below, is that the prosecution had failed to establish that the bus was being driven in a rash and negligent manner.
5. Given the nature of injuries suffered by the child and the fact that she had died, would render the circumstance, whether the bus had run over the child or whether she was knocked down and thereafter, succumbed to the injuries in significant. If otherwise the accident is not disputed and the fact that the petitioner was the driver 7 is also not disputed. The fact that the bus was driven close to the edge of the road, would also indicate that the petitioner ought to have been extra careful, as there was all likelihood of pedestrians straying on to the road, and therefore, there is no explanation forthcoming, as to why the bus was being driven almost on the edge of the road.
6. Therefore, it is difficult to recount the manner in which the accident has actually occurred and since, there is no dispute as to the occurrence of the accident, the punishment imposed, cannot be said to be disproportionate to the offence. This is the other limb of the argument by the learned counsel for the petitioner, which may have to be accepted. Though the punishment prescribed for an offence punishable under Section 304-A of IPC, is two years' imprisonment or fine or both. The fact that the Courts below have thought it fit to restrict the same to six months, is apparently on account of the doubt that arises, as to the manner in which the accident may have occurred. The sketch of the accident spot is also not satisfactorily drawn. The person who has prepared the sketch, has carried out the exercise in a fashion, which is much wanting in detail, the sense of proportion and 8 it indicates a total lack of training. A school child would have done better.
7. Therefore, in the above circumstances, where the manner in which the accident has occurred cannot be recounted with any graphic detail, or certainty. The punishment would have to be modified. Therefore, while eschewing the punishment of imprisonment, it would serve a better purpose, if the lesson, that safe driving is a must and any mishap can result in a serious consequences, ought to be brought home to the petitioner, and it can be done with possibly a greater degree of force, if the petitioner feels the pinch of having to pay a substantial amount of fine. Therefore, the fine payable shall be substantially enhanced and the petitioner shall pay an additional fine of Rs.25,000/- for the offence punishable under Section 304-A of IPC. Consequently, the said additional fine, on such payment, shall be provided as compensation to the father of the deceased victim. In the event of default of payment of the additional fine, the punishment imposed by the Courts below, on such default shall hold good.
9
With that observation and modification, the petition is allowed in part.
SD/-
JUDGE MBS/-