Karnataka High Court
H S Lokesh vs State By K M Doddi Police on 11 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 47, 2021 (2) AKR 45
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.938 OF 2011
BETWEEN:
H.S. Lokesh
S/o. H.P. Siddappa,
Aged about 25 years,
R/o. No.53, 12th Cross,
1st Main Road, Magadi Road,
Anjana Nagara,
Bangalore City.
..Petitioner
(By Sri. G.M. Ananda, Advocate)
AND:
State by K.M. Doddi Police,
Mandya.
.. Respondent
(By Sri. H.R. Showri, High Court Govt. Pleader)
****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the judgment
dated 06-08-2011 in Crl.A.No.58/2009 passed by the Principal
Sessions Judge at Mandya; and set aside the judgment dated
20-04-2009 in C.C.No.303/2008, passed by the Additional J.M.F.C.
at Maddur, etc.
Crl.R.P.No.938/2011
2
This Criminal Revision Petition coming on for Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:
ORDER
The present petitioner was accused in C.C.No.303/2008 in the Court of the learned Additional J.M.F.C at Maddur, (hereinafter for brevity referred to as the "Trial Court"), who by its judgment dated 20-04-2009 was convicted for the offences punishable under Sections 279, 304(A) of the Indian Penal Code, 1860 (hereinafter for brevity referred to as the "IPC") and Section 134 read with 187 of Motor Vehicles Act, 1988 (hereinafter for brevity referred to as the "M.V. Act") and was sentenced accordingly.
Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.58/2009 in the Court of the learned Principal Sessions Judge at Mandya (hereinafter for brevity referred to as the "first appellate Court"), which after hearing both side allowed the appeal in part and though it upheld the impugned judgment of conviction passed by the Trial Court, but it reduced the sentence imposed by the Trial Court upon the accused. Not satisfied with the same, accused has preferred the present revision petition. Crl.R.P.No.938/2011 3
2. The respondent - State is being represented by the learned High Court Government Pleader.
3. The Trial Court and the first appellate Court's records were called for and the same are placed before this Court.
4. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and first appellate Court's records.
5. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
6. After hearing the learned counsels for the parties, the points that arise for my consideration in this revision petition are:
i] Whether the concurrent finding recorded by the Trial Court as well as the first appellate Court that the accused committed the alleged offence punishable under Sections 279, 304-A of the Indian Penal Code, 1860 and Section 134 read with 187 of Motor Vehicles Act, 1988, warrants any interference at the hands of this Court?
ii] Whether the sentence of imprisonment modified and reduced by the first appellate Court further requires to be reduced?
7. The case of the prosecution is that the present petitioner being the driver of a Truck bearing registration No.KA-41/1699 Crl.R.P.No.938/2011 4 drove the same in a rash and negligent manner while proceeding from Maddur towards Malavalli on 21-11-2007 and near Kolli bridge, he dashed against the rider of a bicycle by name Katagaiah from his behind, as a result of which accident, the said Katagaiah fell down and sustained severe injuries and succumbed to the same on the spot. It is further alleged that immediately after the said road traffic accident, the accused ran away from the place without attending to the injured and without even informing the Police and thus has committed the offence punishable under Sections 279, 304-A of the IPC and Sections 134 read with Section 187 of the M.V. Act.
8. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined eight witnesses from PW-1 to PW-8 and got marked documents from Exs.P-1 to P-7(a).
9. After hearing both side, the Trial Court by its impugned judgment of conviction and order on sentence dated 20-04-2009 convicted the accused for the alleged offences, which was further Crl.R.P.No.938/2011 5 confirmed by the first appellate Court, however, by reducing the sentence imposed upon the accused.
10. Learned counsel for the petitioner in his argument mainly canvassed three points. Firstly, that the road condition was not good and it was prone to accident. Secondly, he contended that the deceased who was a bicycle rider, on his own fell down and sustained injuries while negotiating in his effort to move from the road to the side line of the road/foot path where there was variation of the height. Thirdly, he also submitted that for non-examination of the medical Doctor who had conducted autopsy also, the impugned judgments deserve to be set aside. He further submitted that the vehicle coming to a halt after moving a distance of 20 feet from the spot of the accident would go to show that the vehicle was moving slowly, otherwise, it would have gone some more distance. Finally stating that the quantum of sentence confirmed by the first appellate Court is also on the higher side, prays for allowing the revision petition and acquitting the accused from the alleged offences.
Crl.R.P.No.938/20116
11. Learned High Court Government Pleader for the respondent - State in his argument submitted that occurrence of road traffic accident on the date, time and place alleged in the charge sheet are not in dispute, so also, the involvement of the Truck bearing registration No.KA-41/1699. He further submits that it is not in dispute that the present petitioner was driving the said Truck as at the time of the accident. He further submits that the deceased Katagaiah was going on a bicycle on the spot of the accident and sustained injuries and died on the spot, is also not in dispute. Learned High Court Government Pleader further submits that it is not denied that PW-2 and PW-3 were the eye witnesses to the alleged accident. As has come out from their evidence, they were coming from the opposite direction to the spot of the accident, as such, they have very clearly witnessed the occurrence of the accident. He further submits that the very same eye witnesses have categorically stated that the road condition was not bad and that they have specifically denied the suggestion made to them that the condition of the road, particularly on the spot of the alleged accident was bad, though have denied that the road condition was Crl.R.P.No.938/2011 7 not good. He further submits that the very admitted fact that the Truck after causing the accident has covered a further distance of about 20 feet itself would go to show that the vehicle was in high speed. Finally, stating that the first appellate Court, after analysing the entire facts and circumstances of the case, since has further reduced the quantum of sentence, the same does not warrant any more interference by this Court, since the same is reasonable and proportionate to the proven guilt against the accused.
12. Admittedly, PW-1 - Padmamma is not an eye witness to the accident, but she is the wife of the deceased Katagaiah and is the complainant in the said case. Thus, her role is putting the criminal law into motion against the accused. She has got the complaint lodged by her marked at Ex.P-1.
13. PW-2 - Gopala and PW-3 - Mariyaiah claim themselves to be the eye witnesses to the incident. Both of them have stated that at the time of accident, both of them were together coming on the same road towards their village but from the opposite direction to the spot of the accident. They have specifically stated that while Crl.R.P.No.938/2011 8 they were seeing, the accident has occurred and it was the present accused who was driving the ill-fated Truck in a rash and negligent manner and at a high speed. They have also stated that the Truck was being driven at a high speed and it dashed against the deceased Katagaiah who was riding the bicycle on the side of the road and made him to fall down and the driver after bringing the said Truck to a halt at a distance, ran away from the place. They have specifically stated that the accident has occurred due to rash and negligent driving of the Truck by the accused and due to which Katagaiah sustained injuries and succumbed to the injuries in the spot. They have also claimed that they have identified the accused in the Police Station on the next day.
14. PW-4, PW-5 and PW-6 claim themselves to be the panchas to the scene of offence panchanama marked at Ex.P-5. They have also given the description as to the place of accident and spoken that the accident has occurred on one side of the road and the Lorry which caused the accident had come to a halt at a distance of 20 feet from the place of accident. PW-6 has also given the details of the damages caused to the bicycle as he saw in the Crl.R.P.No.938/2011 9 spot. Thus, the scene of offence panchanama is further corroborated by these three witnesses.
15. PW-7 and PW-8 are the Investigating Officers who have spoken about receiving of the complaint, registering it as a crime in their Police Station, submission of FIR to the Court and conducting of investigation which ended in filing of charge sheet against the accused for the alleged offences.
16. The evidence of PW-2, PW-3, particularly about the occurrence of the road traffic accident and the involvement of the accused as a driver of the Truck bearing registration No.KA- 41/1699 since has not been specifically denied or disputed, goes to show that, it is proved beyond reasonable doubt that on 21-11-2007, a road traffic accident had occurred wherein the Truck bearing registration No.KA-41/1699 being driven by the accused had dashed to the deceased, due to which, the deceased sustained injuries. According to them, the deceased also died on the spot. Several suggestions were made to both these witnesses i.e. PW-2 and PW-3 suggesting to them that the condition of the road as on Crl.R.P.No.938/2011 10 that date was not good. Though PW-2 has stated that as on the date of accident, the condition of the road was not bad and it was good, but PW-3 in-toto denied the said suggestion that condition of the road was not good. Thus, both of them have uniformly stated that the condition of the road was good as on the date of the accident. No doubt PW-3 in his cross-examination has said regarding the localites of the nearby village holding a dharna on the said day in protest of the condition of the road, but by that itself it cannot be inferred that as on the date of the accident, the very spot, where the road traffic accident took place was not good.
17. Even all the three scene of offence panchanama witnesses i.e. PW-4 PW-5 and PW-6 have also not admitted a suggestion that the condition of the road was not good as on the date of accident. Except making the said suggestion to these material witnesses, no further evidence either oral or documentary could be placed by the accused's side to substantiate his defence that the condition of the road was bad, as such, the accident has occurred. Therefore, added to the scene of offence panchanama at Ex.P-5 also, no where it mentions that the condition of the road at Crl.R.P.No.938/2011 11 that particular spot of accident was bad. Had really the road condition was bad, particularly on the spot of the accident, definitely there should be some finding or observation in the scene of offence panchanama at Ex.P-5. Therefore, the first contention of the learned counsel for the petitioner that the road condition was not good, as such, the accident has occurred, is not acceptable.
The argument of the learned counsel for the petitioner that the alleged bad condition of the road was the main cause of the accident, is not acceptable for the reason that merely an alleged bad condition of the road would not give any licence for the vehicle drivers to commit any road traffic accident. In such a situation, a driver of a motor vehicle is expected to be more cautious and careful in his driving of the vehicle. As such also, the contention of the petitioner that the accident has occurred due to the alleged bad condition of the road, is not acceptable.
18. It is also the contention of the learned counsel for the petitioner/accused that the deceased Katagaiah was negotiating at that time for moving from the road to the side of the footpath and in Crl.R.P.No.938/2011 12 the said process, due to variation in the height of the road, he fell down and sustained injuries. On this point also, though not exactly on those lines, leading to the said inference, some suggestions were made to PW-2 and PW-3 in their cross-examination from the accused's side. However, both the witnesses have categorically denied the said suggestions. They have not admitted that the deceased Katagaiah was negotiating with his bicycle to move from the road towards the side of the road or the foot path. On the other hand they adhered to their version that while Katagaiah was moving slowly and safely on his bicycle, it was the speeding Truck being driven by the accused which dashed to him from his backside making him to fall and sustain injuries. Except PW-2 and PW-3, who claim to be the eye witnesses, the other witnesses are not competent to say regarding the manner of occurrence of accident because none of them are eye witnesses. As such, from the evidence of PW-4, PW-5 and PW-6, who are the panchas to the scene of offence panchanama, it cannot be inferred that deceased Katagaiah sustained injuries on his own fault.
Crl.R.P.No.938/201113
Further, according to PW-2, the width of the said road was about 35 feet. The rough sketch prepared by the Investigating Officer, i.e. PW-8, which is at Ex.P-7 also goes to show that the deceased Katagaiah did not fall on the alleged foot path or side mud road but he has fallen on the road only and the Truck/Lorry which is said to have caused the accident had come to a halt on the road portion only after further travelling a distance of 20 feet. As such also in the absence of any material to show that the deceased Katagaiah was negotiating with his bicycle to come down to the side of the road/foot path from the main road, the said contention taken up by the learned counsel for the petitioner as a reason for the accident, is not acceptable.
19. The third point of argument of the learned counsel for the petitioner was that, the fact that the Lorry after the accident, came to a halt at 20 ft. distance itself would go to show that the said Lorry was slow in its pace. The said argument of the learned counsel is also not accepted for the reason that any slow moving vehicle or a vehicle with proper control that too a heavy vehicle like the Truck involved in the present case would come to a halt on Crl.R.P.No.938/2011 14 the spot provided the driver applies brake at an appropriate time and the vehicle was not being driven in a rash and negligent manner. The very fact that after the accident, the Truck in question has further covered a distance of 20 ft. before coming to a halt itself would go to show that it was at a high speed and the driver also being rash and negligent, could not control the Truck well in time to avoid the accident. Rather, he allowed it to further cover a distance of 20 ft., as such, the said point of argument of the learned counsel for the petitioner also, is not acceptable.
20. Learned counsel for the petitioner also submitted that in view of the non-examination of the medical Doctor who conducted autopsy, the cause for the death cannot be accepted as the one due to road traffic accident and the benefit of the same must be extended to the accused. The said argument also is not acceptable for the reason that, PW-2 and PW-3 who claim themselves to be the eye witnesses to the alleged accident have categorically and specifically stated that, they were the eye witnesses to the accident where they saw the deceased Katagaiah sustaining injuries when he fell down at the dashing of the Lorry to his bicycle and Crl.R.P.No.938/2011 15 they also saw deceased Katagaiah sustaining injuries to his head, hands and legs and succumbing to it on the spot. The inquest panchanama at Ex.P-2 also goes to show that, the panchas to the said panchanama have opined the same, stating that the death of deceased was due to the road traffic accident. The details of the injuries recorded by the Doctor in the post-mortem report at Ex.P-3 which includes several abrasions on different parts of the body including the back of the deceased and crush injures with abrasion over right hand joint with multiple fracture and depressed fracture over the parietal region and temporal region of the right side of the head among other fatal injuries, would go to show that in the accident, deceased Katagaiah sustained fatal injuries. The Doctor also has opined that the cause of death was due to haemorrhage, shock, as a result of injuries to head, brain, spleen, liver, kidneys and other organs due to road traffic accident. Thus, the Doctor has specifically and categorically stated that the death of deceased Katagaiah was due to multiple injuries to the various vital organs including brain, spleen and liver and the road traffic accident is the cause for the death. No doubt the said Doctor was not examined as Crl.R.P.No.938/2011 16 a witness, but admitting the post mortem report after marking it as an exhibit at Ex.P-3 through other prosecution witnesses was not disputed or objected to by the accused's side. Even the contents of the post-mortem report has also not been disputed or denied from the accused's side in the trial Court. In such a situation, when the Post Mortem report at the time of marking it through other prosecution witnesses and admitting it in the evidence was not objected to, the mere non-examination of the medical Doctor would not take away the evidentiary value of Ex.P-3 and also the ocular evidence of PW-2 and PW-3. Therefore, the said argument of the learned counsel for the petitioner on the point that the examination of the medical Doctor was necessary in the instance case, is not acceptable.
21. Both the Trial Court and the first appellate Court since have appreciated all these evidence of the prosecution witnesses both oral and documentary in proper perspective and have rightly held that the prosecution has proved the alleged guilt against the accused, I do not find any perversity, illegality or irregularity in the Crl.R.P.No.938/2011 17 said finding of both the trial Court as well as the first appellate Court.
22. Learned counsel for the petitioner also canvassed an argument that considering the facts and circumstances of the case and more particularly, the family which the accused is possessing, a lenient view be taken in so far as the awarding of sentence and he also prays for extension of benefit under the Probation of Offenders Act, 1958 to the accused.
The Trial Court had sentenced the accused to pay a fine of `1,000/- for the offence punishable under Section 279 of IPC and in default of payment of fine, to undergo simple imprisonment for fifteen days. It had also sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of `5,000/- for the offence punishable under Section 304-A of IPC and in default of payment of fine, it ordered him to undergo further rigorous imprisonment for a period of three months. The accused was also ordered to pay a fine of `500/- for the offence punishable under Section 134 read with 187 of the M.V. Act, and in default, to Crl.R.P.No.938/2011 18 undergo simple imprisonment for seven days. All the sentence of imprisonment were ordered to run one after the other.
However, the first appellate Court though confirmed the judgment of conviction passed by the Trial Court, but modified the sentence wherein it sentenced the accused to undergo rigorous imprisonment for a period of six months and also to pay a fine of `5,000/- for the offence punishable under Section 304-A of IPC and in default, to undergo one month of further rigorous imprisonment. Thus, it has reduced the sentence of imprisonment considerably.
23. It is the sentencing policy that the sentence of imprisonment ordered must be proportionate to the proven guilt against the accused. It must be neither exorbitant nor a minimum sentence only for name sake. In the instant case, the proven offence against the accused involves an offence punishable under Section 304-A of IPC which has taken the life of the deceased Katagaiah who had not even reached his middle age and is said to have been running in his 42nd year.
Crl.R.P.No.938/201119
24. Though the Trial Court has sentenced him to undergo rigorous imprisonment for a period of one year for the proven offence punishable under Section 304-A of the IPC, but the first appellate Court has considered the circumstances pleaded by the accused that the accused was married only on 03-06-2010 and has got a small female child and it also considered the fact that he had an ailing father who then was reported to have sustained a fracture of T-12 Vertebra in a road traffic accident which is said to have taken place on 18-10-1997. Therefore, the first appellate Court as on the date of modifying the sentence had taken into consideration about the road traffic accident said to have taken place fourteen years prior to its judgment and has given relaxation which resulted in reduction of sentence of imprisonment. At that point of time, the accused might have been a newly married person, but admittedly, now more than ten years have elapsed after his marriage. As such, none of the grounds canvassed by the accused for further reduction of the sentence would remain now and what honour it was deserving has already been granted to it by the first appellate Court. Therefore, I am of the view that the Crl.R.P.No.938/2011 20 modified order, reducing the sentence passed by the first appellate Court being proportionate to the proven guilt of the accused, no further leniency including the extension of the benefit under the Probation of Offenders Act, if at all the same is extendable, is also not warranted.
Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition stands dismissed as devoid of merits.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records forthwith.
Sd/-
JUDGE BMV*