Karnataka High Court
K S Venkatesh S/O K Srinivas vs State Of Karnataka on 7 August, 2012
Equivalent citations: 2012 (4) AIR KAR R 399, (2012) 4 KCCR 3184
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.471/2010
BETWEEN:
K.S. Venkatesh,
Son of K.Srinivas,
Aged about 43 years,
Residing at No.1335,
Krishna Temple Street,
V.L. Colony, Kadugodi,
Bangalore.
... PETITIONER
(By Sri T. Srinivasan, Adv.)
AND:
State of Karnataka,
By Hoskote Police Station.
... RESPONDENT
(By Sri Vijayakumar Majage, HCGP)
This Crl.R.P. is filed under S.397 r/w 401 Cr.P.C.
praying to set aside the judgment in Crl.A.No.39/2008
dated 21.1.2010 passed by the P.O.,
FTC-II, Bangalore Rural District, Bangalore and
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consequently set aside the judgment of the Civil Judge
(Jr.Dn.) & JMFC., Hoskote in C.C.No.425/1999 and acquit
the petitioner /accused.
This Crl.R.P. coming on for final hearing this day, the
Court made the following:
ORDER
The petitioner faced trial for offences punishable under Ss.279, 337, 338 and 304-A of the Indian Penal Code, 1860 (for short "IPC"). The petitioner was found guilty and was convicted by the learned Magistrate and was imposed various sentences, which were directed to run concurrently. The maximum sentence imposed was one year imprisonment and fine of `2,000/- for the offences under Ss.279 and 304-A IPC. In case of default to pay the fine amount, sentence of simple imprisonment for a period of 3 months was imposed.
2. Background facts of the case in a nutshell are as follows:
On 24.6.1999, the accused-petitioner was the driver of a Maxi Cab bearing registration No.KA-40-2233. He was 3 carrying passengers in the said vehicle from Kadugodi to Hoskote on National Highway-4. When the vehicle reached near Shiva Garden, situated within the limits of Hoskote Police Station, at about 10.30 a.m., while he was overtaking another vehicle, took the vehicle to his extreme right side and dashed against a lorry bearing registration No. MYN-4874, which was coming in the opposite direction and due to the impact, both the vehicles capsized. As a result, the stone slabs which were being carried in the lorry, fell on Thimmaiah and Shankar, the inmates of the lorry and they sustained grievous injuries and succumbed at the spot. The cleaner of the Maxi Cab, one Ambarisha, also sustained grievous injuries and succumbed on the same day, at about 3.45 p.m., at Bowring Hospital, while undergoing treatment. The passengers and other inmates of the vehicles i.e., CWs-2 to 19, sustained grievous injuries and CWs- 20 to 30, sustained simple injuries. On a complaint received, a case was registered against the petitioner, in Crime No.203 of 1999, by the Hoskote police and First Information Report was sent to the Court. The 4 police prepared the site plan. The vehicles were got examined from the Motor Vehicles Inspector. The postmortem reports and MLCs of the injured were taken into possession and after recording the statements of the witnesses, charge sheet was filed for the offences punishable under Ss.279, 337, 338 and 304-A IPC. Summon was issued to the petitioner in C.C.No.425/1999. Upon appearance, charge was framed and put to the accused, to which he pleaded not guilty and claimed trial.
3. Prosecution, in order to prove the accusation, examined the injured and the eye-witnesses, a doctor who conducted the postmortem on the bodies of deceased Thimmaiah and Shankar, one Ameer Jan, the spot mahazar witness and B.B. Rajanna, the Investigation Officer, who had conducted the investigation in part. With consent, inquest mahazars of deceased Thimmaiah, Shankar and Ambarish and the Postmortem report of deceased Ambarish was marked. The prosecution, to bring home the guilt of the accused, examined 22 witnesses and 5 marked Exs.P.1 to P.16. Incriminating materials were put to the accused by examining him under S.313 of Cr.P.C. It is a case of denial. Later, accused deposed as DW-1. After hearing the arguments, learned Magistrate pronounced judgment and convicted the petitioner for the said offences and awarded the sentence. Aggrieved, the accused preferred a Criminal Appeal in the Sessions Court. The case was made over to the Presiding Officer, Fast Track Court. Learned Judge, upon perusal of the record of the case and after hearing the learned Advocates on both sides, pronounced judgment and dismissed the appeal. Feeling aggrieved, the accused has filed this Criminal Revision Petition.
4. Sri T. Srinivasan, learned Advocate contended that, the complainant/CW-1 and CWs. 3, 5, 6 and 11 were not examined and that, PWs. 2, 5, 9, 12, 13, 14, 15, 17, 18, 19, and 21 did not fully support the case of the prosecution and were treated as hostile witnesses and though the prosecution did not place credible evidence 6 with regard to rash or negligent driving of the Maxi Cab by the petitioner, without correctly appreciating the evidence, petitioner has been illegally convicted. He contended that the essential ingredients of Ss.279, 337, 338 and 304-A, IPC has not been made out and hence the judgment of conviction passed and the sentence imposed is illegal. He submitted that, the legal doctrine res ipsa loquitur, whereupon reliance has been placed by the Courts below, has no application and that there is a misdirection adopted in the matter. He submitted that the prosecution having failed to prove its case beyond all reasonable doubts, interference in the matter is called for. Alternatively, he submitted that the petitioner may be extended with the benefit of Probation of Offenders Act, 1958.
5. Sri Vijayakumar Majage, learned HCGP, on the other hand contended that, the petitioner was the driver of offending Maxi Cab and for the purpose of finding out the guilt on the part of the petitioner, both the Courts below have examined the entire record of the case, which 7 includes the evidence of the injured and the eye witnesses and that the offending vehicle having no mechanical defect, the petitioner having not been able to make out any error of judgment, in view of the material circumstances, the findings recorded are justified. He submitted that the petitioner having driven the Maxi Cab in rash and negligent manner, having gone deep into the right side lane, dashed to the lorry coming from the opposite direction, which resulted in a head on collision between the two vehicles. He referred to the spot mahazar and the rough sketch and submitted that, in the circumstances of the case, the Courts below are justified in applying the legal doctrine res ipsa loquitur.
6. In view of the rival contentions and the record of the case, which was perused by me, the point that arises for determination is:
Whether the Courts below are justified in convicting the petitioner for the offences punishable under Ss.279, 304-A, 337 and 338 IPC and in sentencing him?8
7. Petitioner, while deposing as DW-1, has admitted that, on 24.5.1999, between 10.00 a.m., and 10.30 a.m., he was driving Maxi Cab KA-40-2233 from Kadugodi towards Hoskote and at that point of time, lorry No. MYN 4874, loaded with stone slabs and with 4-5 inmates, came from the opposite direction and dashed to his vehicle. Thus, the fact that, the petitioner was the driver of Maxi Cab KA-40-2233, at the time of occurrence of accident is admitted. PWs.6 to 17, 19 and 20 have deposed that the accident occurred due to the fault of the driver of the Maxi Cab. PWs.12 to 16, who were the inmates of the Maxi Cab, have deposed that the Maxi Cab was driven in high speed by the petitioner and also the fact of dashing of the same to the lorry. Ex.P12 is the Spot mahazar and Ex.P16 is the Sketch. The Maxi Cab driven by the petitioner, while trying to over take another vehicle, has gone to the extreme right side of National Highway-4 and dashed to the lorry coming from the opposite direction. From Ex.P12, it is clear that the road is about 22 feet wide, with 8 feet mud road - footpath, on either side of the asphalted road. 9 The accident has occurred within 4 feet of the right side edge of the asphalted road. Ex.P16 shows that the Maxi Cab having fallen on the 8 feet mud road - footpath, on the right side of the road. Accused was driving the vehicle towards Hoskote from Bangalore side and the vehicle, in the ordinary course, ought to have been on the left side of the road. The fact that, the vehicle driven by the petitioner was found on the right side mud road - footpath of the National Highway-4 shows that, while overtaking another vehicle, the petitioner dashed head on to the lorry coming in the opposite direction, i.e., from Kolar towards Bangalore. The lorry has remained on its lane. Looking to the circumstances existing on the spot, an inference can be drawn about the rash and negligent driving of the Maxi Cab by the petitioner. Hence, the Courts below are justified in applying the legal doctrine res ipsa loquitur.
8. S.279 IPC makes rash driving or riding on a public way so as to endanger human life or likely to cause hurt or injury to any other person, an offence. Causing death by 10 negligence is an offence under S.304-A IPC. Causing hurt by an act endangering life or personal safety of others is an offence under S.337 of IPC. Causing grievous hurt by an act endangering life or personal safety of others is an offence under S.338 IPC.
9. The three essential things, which are required to be proved, for an offence under S.304-A IPC are; (1) death of human being; (2) the accused causing the death; and (3) the death was caused by doing of a rash or negligent act, though it did not amount to culpable homicide of either description.
10. Evidence on records clearly shows that the Maxi Cab, which was full with passengers, was driven rashly and negligently by the petitioner. The spot sketch and the spot mahazar shows that the Maxi Cab having left its lane and having entered the opposite side lane, while overtaking another vehicle and having dashed to the lorry, which was coming from the opposite direction and being within its lane. Due to the impact, the Maxi Cab has fallen on the 11 opposite side mud road - footpath situated after the asphalted road. Maxi Cab, indisputedly, did not had any mechanical failure. Petitioner, while deposing as DW-1 has not stated, that there was an error of judgment on his part.
11. As a result of the accident caused by the petitioner, two inmates of the lorry, who were sitting on the stone slabs, sustained fatal injuries and succumbed. Even, the cleaner of the Maxi Cab, sustained fatal injuries and succumbed. Few passengers of the Maxi Cab sustained grievous injures and few others sustained simple injuries. In view of the abundant material placed on record by the prosecution, to prove its case against the accused, the Courts below are justified in not accepting the version of the accused/DW-1, that the accident occurred on account the rash and negligent driving of the lorry by its driver. Both the Courts below have considered the matter in great detail. There is no reason to take a different view in the matter. The concurrent finding of fact 12 recorded by the Courts below, that the Maxi Cab was driven rashly and negligently by the petitioner, which resulted in 3 deaths and injuries to several persons is well founded. The findings recorded by the Courts below are neither perverse nor illegal. In view of the material placed on record by the prosecution, the Courts below are justified in convicting the petitioner for the offences punishable under Ss.279, 304-A, 337 and 338 IPC.
12. With regard to the sentence imposed, the Court must keep in view the nature of offence and other attendant circumstances. In Dalbir Singh Vs. State of Haryana, reported in (2000) 5 SCC 82, Apex Court was concerned with a case, where the accused was held guilty of the offence under S.304-A IPC. The Apex Court has observed as follows:
"When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care 13 and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."
13. While dealing with S.4 of the Probation of Offenders Act, 1958, it has been observed that, S.4 could be resorted to when the Court considers the circumstances of the case, particularly the nature of the offence, and the Court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on the probation of good conduct. For application of S.4 of the P.O. Act, 1958 to a convict under S.304-A IPC, it has observed as follows:
"Courts must bear in mind that when any plea is made based on S.4 of the P.O. Act for application to a convicted person under S.304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down." 14
14. Considering the increased number of road accidents, Apex Court, has reminded that the Courts cannot treat the nature of the offence under S.304-A IPC as attracting S.4 of the P.O. Act, 1958, since a person driving motor vehicle cannot and should not take a chance thinking that even if he is convicted, he would be dealt with leniently. Such observations have been made for lessening the high rate of motor accidents due to careless and callous driving of the vehicles by the drivers and increasing rate of motor vehicle accidents.
15. The sentence imposed on the petitioner is not irrational, since the rash and negligent act committed by him has led to the death of 3 persons and grievous/simple injuries to many passengers in the Maxi Cab and the inmates of the lorry.
In the result, I do not find any merit in the petition and the same is dismissed.
Sd/-
JUDGE Ksj/-