Karnataka High Court
K A Nazeer Pasha vs State Of Karnataka on 15 November, 2023
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NC: 2023:KHC:40786
CRL.RP No. 1089 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 1089 OF 2017
BETWEEN:
K.A.NAZEER PASHA
S/O AMEER JAN,
AGED 50 YEARS,
R/AT NOOR NAGARA,
KOLAR TALUK,
KOLAR DISTRICT-563101
...PETITIONER
(BY SRI. LETHIF B., ADVOCATE)
AND:
STATE OF KARNATAKA
BY KOLAR TRAFFIC POLICE STATION,
KOLAR DISTRICT,
REPRESENTED BY SPP
Digitally HIGH COURT BUILDING,
signed by BENGALURU-560 001
SUMITHRA R
...RESPONDENT
Location: (BY SMT.N.ANITHA GIRISH, ADVOCATE)
HIGH COURT
OF
KARNATAKA THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
25.09.2017 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,
KOLAR IN CRL.A.NO.52/2014 AND ORDER DATED 08.08.2014
PASSED BY THE PRINCIPAL CIVIL JUDGE AND C.J.M., KOLAR IN
C.C.NO.342/2013 BY ALLOWING THIS CRL.RP. AND ACQUIT
THE PETITIONER.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:40786
CRL.RP No. 1089 of 2017
ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of I Additional Sessions Judge, Kolar in Criminal Appeal No.52/2014 dated 25.09.2017 confirming the judgment of Trial Court on the file of Principal Senior Civil Judge and CJM, Kolar in Criminal Case No.342/2013 dated 08.08.2014 preferred this revision petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of Trial Court records, including the judgment of both the courts below, the following points arise for consideration:
"Whether the impugned judgment of the First Appellate Court in confirming the judgment of the Trial Court for convicting accused for the offences -3- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 punishable under Sections 304A and 337 of IPC is perverse, capricious and legally not sustainable and call for any interference by this Court?"
5. On careful perusal of oral and documentary evidence placed on record, it would go to show that on 6.5.2013 at 07.25 A.M., accused being the driver of Milk Tanker bearing Registration No.KA-07/7575 drove the same on NH.4 road from Chennai to Bengaluru with high speed in a rash and negligent manner and in front of Pawan College, dashed against the Motorcycle bearing Registration No.KA-51/E-1456 from its backside. On account of such negligence, the rider of Motorcycle bearing Registration No.KA-51/E-1456, CW.3-Ranjithkumar (PW.8) suffered simple injuries and pillion rider, Gopinath, succumbed to the injuries sustained in the accident on the spot itself.
6. Prosecution to prove the culpable rashness and negligence of accused in driving the Milk Tanker bearing Registration No.KA-07/7575 leading to the accident in question resulting in death of pillion rider-Gopinath and -4- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 the injuries to the rider of the motorcycle, Ranjith Kumar (PW.8), has relied on the oral testimony of PW.1 Harish PW.2 Arunkumar who are the eye witnesses to the accident and PW.8 Ranjith Kumar, rider Motorcycle bearing Registration No.KA-51/E-1456. The prosecution to prove the place of accident relies on the oral testimony of PW.3- Sonnappa and PW.4-Venkatesh, who are the panch witnesses to the spot panchanama Ex.P.2 and the sketch map Ex.P.7 with that of evidence of Investigating Officer, PW.7-R.Jagadeesh. The said evidence is further sought to be corroborated by the evidence of PW.5-M.S.Prakash, owner of the tanker involved in the accident and PW.6- Yogesh who has inspected both the vehicles i.e. the Milk Tanker bearing Registration No.KA-07/7575 and Motorcycle bearing Registration No.KA-51/E-1456 and issued the report Ex.P.9. The Trial Court on appreciation of evidence placed on record convicted the accused for the offences punishable under Sections 304A and 337 of IPC and imposed sentence. The said judgment of conviction and the order of sentence passed by the Trial Court, -5- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 confirmed by the First Appellate Court, is challenged in the present petition.
7. PW.1-Harish has deposed to the effect that on 6.5.2012 he was proceeding on his Motorcycle bearing Registration No.KA-05/HS-8619 with his friend Arunkumar as pillion rider. Another motorcycle, driven by Ranjith Kumar with pillion rider Gopinath, bearing Registration No.KA-51/E-1456 was proceeding ahead of their vehicle. When they reached near Pawan College at about 07.30 A.M., a Milk Tanker bearing Registration No.KA-07/7575 from Chennai side came from backside of the motorcycle ridden by PW.8-Ranjith Kumar and dashed to the motorcycle. Due to which the rider of motorcycle Ranjith Kumar and the pillion rider-Gopinath fell to the ground. The left side front wheel of the lorry ran over Gopinath and he succumbed to the injuries sustained in the accident. The driver of milk tanker ran away from the place and PW.1 Harish has filed the complaint Ex.P.1. -6-
NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 7(a) PW.2-Arun Kumar has deposed that he was the pillion rider on the Motorcycle bearing Registration No. KA- 05/HS-8619 ridden by PW.1-Harish. Another Motorcycle, bearing Registration No.KA-51/E-1456, ridden by PW.8- Ranjith Kumar with pillion rider Gopinath were proceeding ahead of their vehicle. When they reached in front of Pawan College at 07.25 A.M., a Milk Tanker bearing Registration No.KA-07/7575 came from Chennai side and dashed against the Motorcycle bearing Registration No.KA- 51/E-1456, ridden by PW.8-Ranjith Kumar from backside. Due to which both Ranjith Kumar and Gopinath fell down and the front side left wheel of the lorry ran over the pillion rider-Gopinath and he succumbed to the injuries sustained in the accident on the spot itself, whereas, PW.8-Ranjith Kumar suffered injuries.
7(b) PW.3-Sonnappa is the first Investigating Officer who after receiving the complaint Ex.P.1 registered the case Ex.P.6. Thereafter, has visited the spot and conducted spot panchanama in the presence of PW.4- -7- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 Venkatesh and prepared the spot panchanama (Ex.P.2) as shown by PW.1-Harish, eye witness to the accident.
7(c) PW.5-M.S.Prakash is the owner of the Milk Tanker bearing Registration No.KA-07/7575 and has deposed to the effect that accused was the driver of the lorry involved in the accident and he got released the vehicle from the police station on executing indemnity bond Ex.P.8.
7(d) PW.6-Yogesh is the Motor Vehicle Inspector who has investigated the Milk Tanker bearing Registration No.KA-07/7575 and the Motorcycle bearing Registration No.KA-51/E-1456 and issued the report Ex.P.9.
7(e) PW.7-R.Jagadeesh is the Investigating Officer who has conducted further investigation and after completion of the investigation, filed charge sheet.
8. The above referred evidence on record would go to show that accused after the accident fled away from the place. During the course of evidence of PW.1-Harish and -8- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 PW.2-Arunkumar, both of them have identified the accused before Court as the driver of Milk Tanker bearing Registration No.KA-07/7575 as on the date of accident. The evidence of PW.5-M.S.Prakash, owner of the Milk Tanker bearing Registration No.KA-07/7575 would go to show that accused was the driver of lorry. The learned counsel for the Revision Petitioner/accused invited to the portion of admission made by PW.5-M.S.Prakash during the course of his cross-examination that different lorries being driven by different drivers and he do not know personally that accused was the driver of Milk Tanker bearing Registration No.KA-07/7575 as on the date of accident. However, PW.1 Harish and PW.2 Arunkumar who are the eye witnesses have identified the accused before Court as the person who was driving the lorry in question as on the date of accident. Accused during the course of his 313 Cr.P.C. statement does not dispute that he was the driver of Milk Tanker bearing Registration No.KA-07/7575 as on the date of accident. Therefore, the prosecution out of the above referred material evidence on -9- NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 record has proved that accused was driver of Milk Tanker bearing Registration No.KA-07/7575.
9. The evidence of PW.6-Yogesh, Motor Vehicle Inspector would go to show that on 7.5.2013, he has inspected both the vehicles i.e. Milk Tanker bearing Registration No.KA-07/7575 and Motorcycle bearing Registration No.KA-51/E-1456 and given report Ex.P.9 that occurrence of accident was not due to any mechanical defects of both the vehicles. A mere suggestion to PW.6 that he has prepared Ex.P.9 report in the office itself cannot be said as sufficient evidence to discredit his evidence. Therefore, the prosecution has proved that accident in question has occurred not due to any mechanical defect of both the vehicles.
10. PW.1-Harish who is eye witness to the accident has shown the place of accident and according to his evidence, police prepared spot panchanama in his presence Ex.P.2 and identified his signature Ex.P.2(a). It is true that P.W.4-Venkatesh, co-pancha to the spot
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 panchanama, has not supported the case of the prosecution. However, PW.3-Sonnappa the first Investigating Officer has deposed to the effect that he has prepared the spot panchanama Ex.P.2 and also prepared the sketch map Ex.P.7. The place of accident in front of Pawan College, is not in serious dispute. Therefore, the contents of the spot panchanama Ex.P.2 and the sketch map Ex.P.7 will have to be looked into and appreciated with the evidence of eye witnesses, PW.1 Harish and PW.2 Arun Kumar, and that of rider of the motorcycle bearing Registration No.KA-51/E-1456, PW.8- Ranjith Kumar.
11. PW.8-Ranjith Kumar, rider of the Motorcycle bearing Registration No.KA-51/E-1456, has deposed to the effect that he was proceeding on his Motorcycle bearing Registration No.KA-51/E-1456 to go to Bengaluru and the pillion rider was one Gopinath. PW.1 Harish and PW.2 Arunkumar were coming in another motor cycle from their back which was ridden by PW.1 Harish. When they came
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 near Kolar by-pass road, one vehicle hit from the back side and he do not know the vehicle which dashed against the motorcycle. PW.8-Ranjith Kumar further deposed to the effect that he suffered injuries and pillion rider, Gopinath, succumbed to the injuries sustained in the accident on the spot itself. Further states that police informed him that the accused was driving the Milk Tanker bearing Registration No.KA-07/7575. Therefore, he was partly declared as hostile witness by the prosecution and nothing has been brought in the cross-examination to prove the culpable rashness or negligence of the driver of the Milk Tanker bearing Registration No.KA-07/7575. However, his evidence regarding the place of accident and the vehicle dashed against the motor cycle due to which he suffered injuries and the pillion rider Gopinath succumbed to the injuries on the spot has not been challenged by cross examining him.
12. PW.3-Sonnappa has prepared spot panchanama Ex.P.2 as shown by PW.1-Harish, eye witness to the
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 accident and he has also prepared the sketch map Ex.P.7 at the time of preparing spot panchanama. On perusal of spot features recorded in the spot panchanama Ex.P.2 and the sketch map Ex.P7, it would go to show that driver of the Milk Tanker bearing Registration No.KA-07/7575 while proceeding from Chennai to Bengaluru took left turn and enters the service road. Further in the process of entering the service road, dashed against the Motorcycle bearing Registration No.KA-51/E-1456 ridden by PW.8-Ranjith kumar from it's backside. The sketch map Ex.P.7 would go to show that while entering to the service road in front of Pawan college on the road leading from east to west, the driver of the Milk Tanker bearing Registration No.KA- 07/7575 dashed against the Motorcycle bearing Registration No.KA-51/E-1456 from its back side leading to the accident in question. The place of accident is shown to be on the service road and the rider of the Motorcycle bearing Registration No.KA-51/E-1456 was proceeding on the left side of the road. The evidence on record would demonstrate the fact that the driver of the lorry while
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 entering to the service road to the left side did not exercise required care and caution in noticing the motorcycle proceeding on the left side of the service road at the point of entering into the service road and dashed from its backside. It is on account of such culpable negligence of the driver of Milk Tanker bearing Registration No.KA-07/7575 accident has occurred leading to the death of pillion rider Gopinath and injury to the rider of the motor cycle-Ranjith kumar.
13. Learned counsel for the Revision Petitioner has vehemently argued that PW.1-Harish is in fact not an eye witness and came to the spot only after the driver of the lorry fled away from the place and the said fact has been admitted by PW.1 in his cross-examination. The evidence of PW.2-Arun kumar would go to show that the vehicle ridden by PW.8-Ranjith Kumar was proceeding ahead of their vehicle. It has been elicited in the cross-examination of PW.2-Arun Kumar that there was a distance of 200 mtrs in between the two vehicles i.e., one ridden by PW.1 and
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 another ridden by PW.8-Ranjith kumar. Therefore, by the above said admission of PW.1 in his cross-examination, it cannot be said that PW.1 Harish and PW.2 Arunkumar have not seen the accident and PW.1 came to the spot only after the accused fled away from the place. PW.1- Harish and PW.2-Arunkumar have identified the accused before Court as the person who was driving the lorry as on the date of accident and there is no reason to disbelieve their evidence.
14. Learned counsel for the Revision Petitioner/accused in support of his contention that, it is the duty of the prosecution to prove the culpable rashness or negligence in driving the Milk Tanker bearing Registration No.KA-07/7575 by the accused and the mere fact of accident leading to the death of pillion rider of the Motorcycle bearing Registration No.KA-51/E-1456 and the injury to PW.8- Ranjith Kumar cannot by itself be said as sufficient evidence to prove the negligence leading to the accident in question, relied on the judgment of the Hon'ble
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 Apex Court in State of Karnataka vs. Satish reported in (1998) 8 Supreme Court Cases 493 wherein it has been observed and held that :
"Sections 337, 338 and 304A of IPC - Negligent or rash driving or onus of proof, negligent or rash driving of truck, held, has to be established by the prosecution and cannot be automatically presumed on the basis of res ipsa loquitur- Mere driving of the truck at a "high spend", held, did not lead to the inference that negligent or rash driving had caused the accident resulting in death of, and injuries to, a number of persons- Hence, in absence of evidence to establish "negligence" or "rashness" in driving, order of acquittal passed by High Court, held, called for no interference"
The Hon'ble Apex Court has held that on the basis of Res ipsa loquitur, the culpable rashness or negligence cannot automatically be presumed.
15. The learned counsel for the Revision petitioner/accused also relied on another judgment of the
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 Hon'ble Apex Court in Shakila Khader (Mrs) and Others vs. Nausheer Cama and Others reported in (1975) 4 Supreme Court Cases 122. In the said case before the Hon'ble Apex Court, the finding of the High Court in disturbing the concurrent findings of both the courts below in exercise of revisional power came to be set aside and restored the judgment of the First Appellate Court in convicting the accused. On the facts of the said case, the Hon'ble Apex court confirmed the findings of both the courts below that the prosecution has proved the culpable rashness or negligence leading to the accident in question. The said decision cannot be of much assistance to the case of accused.
16. In the present case, looking to the oral evidence of PW.1-Harish and PW.2-Arunkumar, who are the eye witnesses to the incident, and the spot features recorded in the spot panchanama Ex.P.2 with sketch map Ex.P.7 are perused, then, it is evident that accused being the driver of Milk Tanker bearing Registration No.KA-
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 07/7575 while proceeding from Chennai towards Bengaluru, entered the service road from the left side and in the process of entry, failed to take note of the moving Motorcycle bearing Registration No.KA-51/E-1456 ridden by PW.8-Ranjith Kumar, dashed from its backside leading to the accident in question. On account of such negligence in driving the vehicle rider of motorcycle PW-8 Ranjithkumar suffered injuries as found in the wound certificate Ex.P.3 and the pillion rider Gopinath succumbed to the injuries sustained in the accident on the spot itself. The above referred material witnesses though have been subjected to cross-examination by the defence counsel, nothing worth material has been brought on record during the course of cross-examination to discredit their evidence. The Milk Tanker bearing Registration No.KA- 07/7575 driven by the accused dashed from the backside of the motorcycle in the process of entering the service road from the main N.H.4 from Chennai to Bengaluru. In fact, it is the duty of the driver of Milk Tanker bearing Registration No.KA-07/7575 while entering the service
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 road from the National Highway to take note of the moving vehicle on service road and to keep sufficient distance between the two vehicles so as to avoid coming into contact with the moving vehicle on the service road. Further, the accused has failed to exercise due diligence in driving the Milk Tanker bearing Registration No.KA- 07/7575 while entering the service road. It is on account of such negligence, accident in question has occurred.
17. The Courts below have rightly appreciated the oral and documentary evidence placed on record and were justified in holding that on account of rash and negligent driving of the Milk Tanker bearing Registration No.KA- 07/7575 by its driver, the accident in question has occurred due to which the rider of the motor cycle PW.8- Ranjithkumar suffered simple injuries as recorded in Ex.P.3 and the pillion rider of the motorcycle Gopinath succumbed to the injuries on the spot itself. The said finding recorded by both the courts below are based on
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 the material evidence placed on record and the same does not call for any interference of this Court.
18. Now, coming to the question of sentence. The Trial Court has convicted the accused for the offences under Section 304A, 337 IPC holding that the offence under Section 279 encompasses the ingredients of Section 304A of IPC. The Trial Court has sentenced the accused to undergo S.I. for a period of one year and to pay a fine of Rs.3,000/-; in default of sentence of fine, the Trial Court further directed the accused to undergo imprisonment for 30 days for the offence under Section 304A IPC. Accused was further sentenced to undergo S.I. for a period of 3 months and sentenced to pay a fine of Rs.300/-; in default of payment of fine, to undergo S.I of 10 days for the offence punishable under section 337 of IPC; substantial sentence of imprisonment was ordered to run concurrently.
19. The learned counsel for Revision Petitioner, who is present before the Court while dictating, submits that the
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 accused has suffered gangrene and undergone surgery and produced photographs with necessary medical documents to substantiate the said contention. Learned counsel for the Revision Petitioner/accused further submits that only fine may be imposed instead of sending him to jail term.
20. Looking to the facts and circumstances of the case and also the documents, the sentence of imprisonment ordered by the Trial Court for the offence under Section 304A of IPC for a period of 1 year and for the offence under Section 337 of IPC for a period of 3 months, requires modification. In view of the facts and circumstances of the case and the evidence on record, so also the fact that the Revision Petitioner/accused has undergone surgery for his gangrene, period of sentence for 1 year for the offence under Section 304A of IPC and for the offence under Section 337 of IPC for a period of 3 months as ordered by the Trial Court is reduced for a period of 3 months and 1 month respectively for the
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 offence punishable under Section 304A and 337 of IPC. The fine as imposed by the Trial Court is ordered to be maintained with default sentence will meet the ends of justice. Consequently, proceed to pass the following :
ORDER Revision Petition filed by Revision Petitioner/accused is hereby partly allowed;
The judgment of the First Appellate Court on the file of the I Additional Sessions Judge, Kolar in Criminal Appeal No.52/2014 dated 25.09.2017 confirming the judgment of Trial Court on the file of Principal Senior Civil Judge and CJM, Kolar in Criminal Case No.342/2013 dated 08.08.2014 is ordered to be modified as under :
Accused is sentenced to undergo S.I. for a period of 3 months for the offence under Section 304A of IPC.
Further, the accused is sentenced to undergo S.I. for 1 month for the offence punishable under Section 337 of IPC.
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NC: 2023:KHC:40786 CRL.RP No. 1089 of 2017 The order of sentence of fine amount with default sentence passed by the Trial Court under Sections 304A and 337 IPC is maintained.
The sentence of imprisonment are ordered to run concurrently.
In view of exercising power under Section 428 of Cr.P.C., period of imprisonment during trial, if any, is given set-off.
SD/-
JUDGE rs List No.: 1 Sl No.: 3