Karnataka High Court
State Of Karnataka vs Sri Karthik on 11 January, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL NO.162 OF 2015
C/W
CRIMINAL APPEAL NO.681 OF 2015
IN CRL.A. NO.162/2015:
BETWEEN:
KARTHIK. K. SOMAIAH
S/O. LATE SOMAIAH
AGED ABOUT 35 YEARS
R/AT NO.688, 9TH A MAIN
INDIRANAGAR 1ST STAGE
BENGALURU - 560 038.
... APPELLANT
(BY SRI: M.T. NANAIAH, SENIOR COUNSEL FOR
SRI: M.R.C. MANOHAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
INDIRANAGAR TRAFFIC POLICE
INDIRANAGAR
BENGALURU - 560 008.
... RESPONDENT
(BY SRI: K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.01.2015
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PASSED BY THE PRESIDING OFFICER, FTC-XIII, BENGALURU CITY,
IN S.C.NO.963/2009 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 279, 304 OF IPC
AND UNDER SECTIONS 185 AND 134(A)(B) READ WITH 187 OF
INDIAN MOTOR VEHICLE ACT AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS
AND TO PAY FINE OF RS.1000/- AND IN DEFAULT OF PAYMENT OF
FINE AMOUNT HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR
ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION 279
OF IPC. FURTHER,THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND TO PAY FINE
OF RS.3000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS FOR
THE OFFENCE PUNSIHABLE UNDER SECTION 304 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
SIMPLE IMPRISONMENT FOR THREE MONTHS AND TO PAY FINE OF
RS.500/- AND IN DEFAULT OF PAYMENT OF FINE AMOUNT HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 134(A)(B) READ WITH
SECTION 187 OF INDIAN MOTOR VEHICLE ACT. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR SIX MONTHS AND TO PAY FINE OF RS.2000/-
AND IN DEFAULT OF PAYMENT OF FINE AMOUNT HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 185 OF INDIAN MOTOR
VEHICLE ACT. THE AFORESAID SENTENCES SHALL RUN
CONCURRENTLY AND THE APPELLANT/ACCUSED PRAYS THAT HE
BE ACQUITTED.
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IN CRL.A. NO.681/2015:
BETWEEN:
STATE OF KARNATAKA
BY INDIRANAGAR TRAFFIC POLICE STATION
BENGALURU - 560 038
... APPELLANT
(BY SRI: K. NAGESHWARAPPA, HCGP)
AND:
SRI KARTHIK
S/O. K. SOMAYYA
AGED ABOUT 36 YEARS
RESIDING AT NO.21/123, BDA
MIG PLOT
DOMMALURU
BENGALURU - 560 071
... RESPONDENT
(BY SRI: M.T. NANAIAH, SENIOR COUNSEL FOR
SMT: RACHITA NANAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
CR.P.C PRAYING TO ENHANCE THE SENTENCE IMPOSED BY THE
LEARNED 13TH FAST TRACK COURT, AT BENGALURU CITY IN
S.C.NO.963/2009 DATED 31.1.2015 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 304 OF IPC AND SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND TO PAY FINE
OF RS.3000/- AND IN DEFAULT TO PAY THE FINE, SHALL UNDERGO
SIMPLE IMPRISONMENT FOR THREE MONTHS. THE SPP/STATE
PRAYS THAT THE ABOVE ORDER OF CONVICTION MAY BE
ENHANCED BY IMPOSING SENTENCE.
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THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
COMMON JUDGMENT
The accused who is the appellant in Criminal Appeal
No.162 of 2015 is assailing the impugned judgment of
conviction and order of sentence dated 31.01.2015 passed in
SC No.963 of 2009 on the file of the Fast Track Court-XIII,
Bengaluru City (hereinafter referred to as 'the Trial Court'),
convicting him for the offence punishable under Sections 279,
304 of Indian Penal Code (for short 'the IPC') and under
Sections 185, 134(a) (b) read with Section 187 of Indian
Motor Vehicles Act (for short 'the MV Act') and sentencing him
to undergo simple imprisonment for six months and to pay a
fine of Rs.1,000/- and in default of payment of fine to
undergo simple imprisonment for a period of one month for
the offence punishable under Section 279 of IPC, he was
sentenced to undergo simple imprisonment for a period of
three years and to pay a fine of Rs.3,000/- and in default of
payment of fine to undergo simple imprisonment for three
months for the offence punishable under Section 304 of IPC,
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he was sentenced to undergo simple imprisonment for a
period of three months and to pay amount of a fine of
Rs.500/- and in default to undergo simple imprisonment for a
period of one month for the offence punishable under Section
134(a)(b) read with Section 187 of MV Act and he was
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 to undergo simple imprisonment for a period of three
months for the offence punishable under Section 185 of MV
Act.
2. The State being the appellant in Criminal Appeal
No.681 of 2015 is assailing the sufficiency of sentence passed
by the Trial Court on the ground that the sentence imposed
on the accused for the offence punishable under Section 304
of IPC is inadequate and seeks enhancement of sentence in
the interest of justice.
3. Brief facts of the case of prosecution is that, the
statement of the injured K Kodandarama Reddy was recorded
as per Ex.P29 while he was being treated in the hospital on
24.01.2009, wherein the injured has stated that on the said
date at about 6.00 a.m. he had gone for a walk. Similarly
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Dr.Panathur, Siddaiah and Kempegowda have also came for
morning walk and were proceeding on the footpath on 100
feet road, in Indiranagar. However, Siddaiah, Kempegowda
and Dr.Panathur were at a distance. In the meantime, a
cyclist was proceeding towards old madras road and suddenly
a car driven in high speed, rashly and negligently came and
dashed to the footpath and to the legs of the informant. After
hitting the informant as well as to the cyclist, the driver took a
turn and dashed to Siddaiah, Kempegowda and Dr.Panathur,
as a result of which, all of them have fallen down and got
injured. Several persons gathered at the spot. The informant
stated that even the cyclist sustained injuries. The informant
was shifted to Manipal Hospital in an Ambulance, where it was
diagnosed as he has sustained fracture of left leg. He stated
that Siddaiah, Kempegowda, Dr.Panathur and Radhakrishna,
the cyclist have died at the spot. He also learnt that the
offending car is Black Colour Honda Car bearing registration
No.KA 01 MD-0008 and the driver after the accident had fled
from the spot. Therefore, he requested the police to register
the criminal case and to investigate into the matter.
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4. Accordingly, Indiranagar Traffic Police registered
the case in Crime No.5 of 2009 for the offences punishable
under Sections 279, 304 of IPC and under Sections 134(A)(B)
of MV Act and took up investigation. After investigation,
charge sheet came to be filed against accused for the offences
punishable under Sections 279, 338, 304 of IPC and under
Sections 185, 134(a)(b) read with Section 187 of MV Act. It
is stated that during investigation, the informant K
Kodandarama Reddy also succumbed to the injuries on
13.03.2009 i.e., 48 days after the incident. Thus, it is the
contention of prosecution that the accused was the driver of
the offending car, had driven the same in a rash and negligent
manner, under the influence of alcohol and caused the death
of Dr.Panathur, Kempegowda, Siddaiah and Radhakrishna and
the cyclist at the spot and also caused grievous hurt to the
informant K Kodandarama Reddy and thereby committed the
offences as stated above.
5. The matter was committed by the committal court
and the Trial Court after securing the presence of accused
framed charges against him. The accused pleaded not guilty
for the charges leveled against him and claimed to be tried.
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6. The prosecution examined PWs.1 to 36, got
marked Exs.P1 to 41 and identified Mos.1 to 3 in support of
its contention. The accused has denied all the incriminating
materials available on record and got examined DWs.1 to 4
and got marked Ex.D1 in support of his contention. The Trial
Court after taking into consideration all these material on
record came to the conclusion that the prosecution is
successful in proving the guilt of the accused for the offences
punishable under Sections 279, 304 of IPC and under Sections
185 and 134(a)(b) read with Section 187 of MV Act and
sentenced him as stated above.
7. Being aggrieved by the same, the accused has
preferred Criminal Appeal No.162 of 2015 seeking for his
acquittal and the State has also preferred the appeal in
Criminal Appeal No.681 of 2015 seeking enhancement of
sentence for the offence punishable under Section 304 of IPC.
8. We have heard the learned counsel for the
parties.
9. Sri.M T Nanaiah, learned senior counsel for the
appellant-accused contended that the prosecution has not
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proved the guilt of the accused beyond reasonable doubt.
There is inordinate delay in recording the statement of the
injured witness i.e., K Kodandarama Reddy. Even though the
incident said to have been occurred on the broad day light in
the heart of city, there is delay in registering the FIR. The
witnesses examined are planted, even though they are not
the eye witnesses. The evidence led by the prosecution is
artificial and it cannot be believed even for a moment. There
is inordinate delay in recording the statement of the so-called
eye witnesses. None of the witnesses have identified the
accused during investigation. The identification of the
accused before the Trial Court is most improbable. The rash
and negligent act on the part of accused is not proved by the
prosecution. Even as per the case made out by the
prosecution, the accident had occurred on the early morning
and there was heavy mist. Under such circumstances, the car
in question could not have been driven in a high speed. The
accused has taken a specific defence that the cyclist had
suddenly came across the road and in order to avoid him, the
car had hit the footpath, which was about 3/4 and 1 feet
height. Due to the impact, both the air bags have opened and
10
as a result of which, the accused lost control of the vehicle
and he has not caused the accident.
10. The learned senior counsel further contended that
there was no motive or intention on the part of accused to hit
any of the persons. Under such circumstances, the
prosecution should have placed cogent material to connect
the accused to the offences in question. Even if the entire
oral and documentary evidence placed before the Court are
taken into consideration, the prosecution has failed to prove
the guilt of accused beyond reasonable doubt. When the
prosecution failed to prove the guilt of accused beyond
reasonable doubt, no burden lies on the accused to take any
defence or to disprove the case of prosecution. Even if the
accused admits that he was driving the offending car at the
time of incident and even though it is proved that about 4
persons have died at the spot, that will not dispense with the
proof of rash and negligent driving of the car in question by
the accused. The prosecution has failed to prove the manner
in which the accident had occurred and what is the reason for
such accident. There are glaring inconsistencies in the
evidence led by the prosecution.
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11. Learned senior counsel submitted that the
prosecution has not proved that the accused was intoxicated
and it was a drunken drive, which has resulted in the
accident. None of the witnesses have spoken that the
accused was in drunken state, when the accident had
occurred. The evidence of PWs.1 and 23 are not helpful for
the prosecution to prove the same. It is most improbable to
contend that the blood and urine sample said to have been
collected contained alcohol as stated in Ex.P23. On the other
hand, the accused examined DWs.1 to 4 in support of his
defence and witnesses have specifically stated that there was
defect in the car itself. Due to the impact with the footpath,
the airbags have opened as a result of which, the driver lost
control over the vehicle and he was not in a position to see
anything in front of him and even he sustained injuries to his
hands. In view of these materials on record, the Trial Court
could not have formed an opinion that the accused who was
the driver of the offending car was rash and negligent in
driving the same, which has resulted in the death of four
persons at the spot and that the accused was in a drunken
state while causing the accident. Therefore, the impugned
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judgment of conviction and order of sentence passed by the
Trial Court is to be interfered with by setting aside the same.
12. Alternatively, learned senior counsel contended
that by no stretch of imagination, Section 304 of IPC is
applicable to the facts and circumstances of the case. Even
according to the prosecution, it was the accident caused due
to rash and negligent driving by the accused. Under such
circumstances, even if the case of the prosecution is to be
accepted, it is only Section 304A of IPC could be made
applicable and not Section 304 of IPC. Therefore, it is clear
that the Trial Court proceeded to convict the accused without
application of mind and hence, the impugned judgment of
conviction and order of sentence is liable to be set aside.
Accordingly, he prays for allowing the appeal preferred by the
appellant.
13. Learned senior counsel placed reliance on the
decision in the case of Naresh Giri Vs State of Madhya
Pradesh1, to contend that it is the bounden duty of the
prosecution to prove the rash and negligent driving of the
offending car by the accused and such negligence should be
1
(2008) 1 SCC 791
13
gross negligence and not merely based on error of judgment.
Relying on this decision, learned senior counsel submitted that
the simple lack of care is not sufficient to attract Sections 279
or 304A of IPC.
14. He also placed reliance on the decision of the
Hon'ble Apex Court in the case of State of Karnataka Vs
Satish2, to contend that the proof of driving the vehicle in
high speed does not either amounts to rashness and
negligence in itself. When the witnesses have spoken to
about high speed, which is a relative term, and when there
are no materials to form an opinion that the driver of the
offending car was either rash or negligent in his driving, the
accused was not liable for conviction.
15. He also placed reliance on the decision of the
Hon'ble Apex Court in the case of Syad Akbar Vs State of
Karnataka3, to contend that even if the principle of res-ipsa-
loquitor is to be made applicable, the primary requirement of
law that the cause of accident is to be unknown and if there is
no reasonable explanation as to the cause of such accident is
2
(1998) 8 SCC 493
3
(1980) 1 SCC 30
14
forthcoming from the accused, when the accident had
occurred not in the ordinary course of things and when such
an event which resulted in the accident was within the control
of the accused, then only the principle of res-ipsa-loquitor
could be made applicable and not otherwise. In the present
case, no such materials are placed before the Court to attract
this principle of law and thus the conviction of the accused is
bad in law.
16. He also placed reliance on the decision of the
learned Single Judge of this Court in the case of State Vs S
Manoharan4, to contend that it is the duty of the prosecution
to connect the accused to the offence in question. When the
accused is not identified in accordance with law as the driver
of the offending car, the Trial Court could not have proceeded
to convict the accused on presumptions and assumptions.
17. Learned senior counsel even though filed
compilation of citations with a memo, he has not referred to
any other decisions which are produced in the compilation.
Thus, the learned senior counsel would contend that the
appeal has to be allowed and the impugned judgment of
4
(2014) 3 KAR KANT 55
15
conviction and order of sentence is to be set aside. He further
submitted that if for any reason the Court is not inclined to
accept the contention for acquittal of the accused, the
conviction may be at the most under Section 304A of IPC and
not under Section 304 of IPC. He also sought for maximum
leniency in favour of the accused as he is the middle aged
man having family. Accordingly, he prays for suitable orders
in accordance with law.
18. Per contra, Sri.K. Nageshwarappa, learned High
Court Government pleader, while opposing the contention of
the learned senior counsel, would contend that Ex.P1 is the
spot mahazar and Ex.P17 is the spot sketch. PWs.1 and 2
have spoken to about the spot mahazar, whereas, PW18 has
spoken to about the spot sketch. These documents disclose
the scene of occurrence immediately after the accident. Four
dead bodies were scattered on the spot. The offending car
and the cycle in question were also scattered at the spot in a
damaged condition. The accused has not disputed the fact
that the car in question belongs to him, that he was driving
the car at the time of incident and the accident has resulted in
four spot deaths and one more death in the hospital after 48
16
days. The prosecution examined PWs.3 and 35 who have
categorically stated that the accused had consumed alcohol
and he was under the influence of such alcohol at the time of
accident. PWs.11 and 12 are the independent eye witnesses
who have fully supported the case of prosecution. PW21 is
the doctor serving in Bowring hospital, examined the accused
and collected his blood and urine samples and issued Ex.P21
the medical certificate. The sample collected was forwarded
for FSL examination and the report is as per Ex.P23, which
clearly goes to show that the blood and urine sample
contained alcohol above the permitted limit. The inquest
mahazar and the postmortem report disclose that the persons
died at the spot after sustaining severe injuries only due to
rash and negligent driving of the accused. The injured eye
witnesses and the informant K Kodandarama Reddy has given
his statement on the date of incident itself while he was being
treated in the hospital. PWs.11 and 12 - the eye witnesses
have identified the accused before the Court and deposed
about his rash and negligent driving. The accused has never
disputed his identity throughout the trial, but on the other
hand, he admitted that he was driving the car in question and
17
caused the accident. Under such circumstances, the Trial
Court was right in convicting the accused for the above said
offences.
19. Learned Additional State Public Prosecutor further
submitted that admittedly, there were four deaths at the spot
and other injured died in the hospital who had sustained
fracture to his left leg. The spot sketch and the spot mahazar
disclose the gruesome act of the accused. The conduct of the
accused in leaving the car, the injured and the deceased and
fleeing from the spot discloses that he has no respect to law
nor he is having any humanitarian consideration. Under such
circumstances, the Trial Court should have imposed maximum
sentence on the accused under Section 304 of IPC.
Therefore, he prays that the appeal filed by the accused is
liable to be dismissed, while allowing the appeal preferred by
the State.
20. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the point that arises for
our consideration are:
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(i) Whether the appellant has made
out any ground to interfere with the impugned
judgment of conviction and of sentence and
order of sentence passed by the Trial Court?
(ii) Whether the appeal filed by the
State deserves to be allowed?
21. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties
and perused the entire material, including original records,
carefully.
22. It is the specific contention of the prosecution that
the accused had driven his Black colour Honda Accord car
bearing reg No.KA 01 MD 0008 in a rash and negligent
manner on 24.01.2009 at 6.05 hours on 100 feet road in
Indiranagar near Dhoopanahalli bus stop, while he was under
the influence of alcohol and dashed the same against a cyclist
causing fatal injuries and again dashing to four other persons
who were walking by the side of the road/footpath, which
resulted in the death of three persons, including the cyclist
and caused fracture of left leg to the injured K Kodandarama
19
Reddy who was immediately shifted to the hospital, thereby
the accused has committed the above said offences.
23. This Court being the appellate Court, in order to
re-appreciate the entire material on record, it is relevant to
consider the evidence of prosecution witnesses and the
documents relied upon.
(i) PW11 - Anant Rao, deposed before the Trial Court
stating that on the date of incident, he had gone
for a morning walk in 100 feet road, Indiranagar
and the deceased Dr.Pananthur, Siddaiah,
Kempegowda. A K Reddy, Basavaraj, Srinivasa
Reddy have also came for a walk. On the fateful
day at 6.05 hours, the accused had driven his car
from Koramangala side and initially dashed K
Kodandarama Reddy. The car went on the foot
path and it dashed to Dr.Pananthur, Siddaiah,
Kempegowda and thereafter, it dashed to the
cyclist Radhakrishna, as a result of which, the said
Dr.Pananthur, Siddaiah, Kempegowda and
Radhakrishna have died at the spot. The car of
the accused and the cycle got damaged, the
informant K Kodandarama Reddy sustained
fracture of left leg. He identified Exs.P12 and 13
as the photographs of damaged cycle. Witness
stated that since the accident had occurred in
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front of his eyes, he could not give statement to
the police on the same day. During cross
examination by the learned counsel for the
accused, the witness stated that he knew the
deceased since 7 to 8 years, he used to go for a
walk with them since from 4 to 5 years. Witness
denied the suggestion that during that time in
Bengaluru, there was heavy mist at 6.00 a.m. and
there will not be sunrays. Witness denied the
suggestion that the footpath at the scene of
occurrence was about 1 feet height from the road.
Witness denied the suggestion that there was a
road divider in the middle of the road. This
witness is cross examined at length regarding the
place, the deceased and injured were at the time
of accident and as to what he had done after
seeing the accident. Witness stated that
immediately after seeing the devastating accident,
he went to the house of deceased Dr.Panathur
and informed the inmates about the accident. He
could not inform the police and went to his house.
On the next day, police came and enquired him.
Subsequently, he gave statement to the police.
Witness stated that he has not seen that the
airbags in the car have opened. He denied the
suggestion that Exs.P2 to P5 were not taken at
the spot. Witness also denied the suggestion that
deceased were proceeding on the road and
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suddenly the cyclist came in front of the car and
therefore, the driver of the car took the car to the
extreme left side, as a result of which, the bumper
of the car dashed to the footpath and the airbags
have opened. Witness also denied the suggestion
that since the airbags were opened, the driver lost
control over the vehicle and therefore, the car had
hit the deceased. The witness admitted that the
injured K Kodandarama Reddy was discharged
from the hospital and was in his house. He died
on 13.03.2009 while he was in his house. He
pleaded his ignorance that he died due to heart
attack. Witness denied the suggestion that he is
deposing falsely and that the accident had not
occurred due to the rash and negligent driving of
the accused and since there was heavy mist, there
was poor visibility.
(ii) PW12 - Balakrishna is the another eye witness to
the incident. He also corroborated the evidence of
PW11. Witness stated that he is the autorickshaw
driver and at the time of accident, he was at the
spot, waiting for passengers and had seen the
accident. The witness identified the accused as
the driver of offending car and stated that the
accident was due to his rash and negligent
driving. He identified Exs.P2 to P5 as the photos
of car in question and Exs.P12 and 13 as the
photos of damaged cycle. Witness also stated
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that spot mahazar was drawn by the police and
his statement was recorded by them. This
witness was also subjected to lengthy cross
examination, but nothing has been elicited from
him to disbelieve his version. It is interesting to
note that during cross examination of both the
eye witnesses i.e., PWs.11 and 12, learned
counsel for the accused suggested that the driver
of offending car tried to avoid the cyclist who
suddenly came across the road and as a result of
which, the car went on the extreme left side and
the bumper of the car hit the footpath as a result
of which, the airbags have opened. Since the
airbags were opened, the driver lost control and
the car dashed to the pedestrians. Both the
witnesses have denied these suggestions. It is
also interesting to note that PW11 has stated that
the accused was the driver of offending car and
after causing the accident, he gone away from the
scene of occurrence and at that time, he was
drunken and swinging.
(iii) PW3 - Sharath, is the friend of the accused. This
witness states that the accused used to visit
Indiranagar club as he was also visiting the club
frequently. He also stated that on the previous
night of the accident, he had seen the accused in
Indiranagar club along with Miss.Shehnaz and it
was about 7.30 p.m. Witness stated that he was
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in the club till 9.00 p.m. and the accused along
with Miss.Shehnaz was in a table with DSP whisky
and he consumed the same. On the next day
morning the accident had occurred. Even though
the witness was cross examined by the learned
counsel for the accused, there is no specific denial
about the evidence deposed by the witness
regarding the accused consuming alcohol on the
previous night.
(iv) PW4 - Raghavendra is also the friend of accused
and stated that on the previous night of accident,
the accused had visited the club in Indiranagar
and the witness stated that he was there till 12.30
to 1.00 in the midnight. He also stated that
several friends have gathered in the said club, as
one of his friend by name Shreyas was about to
fly to America on the next day. However, witness
has not supported the case of prosecution that the
accused had consumed alcohol on that day.
Therefore, witness was treated partially hostile
and the portion of his statement is marked as
Ex.P7.
(v) PW5 - Samith Kumar is also one of the friend of
the accused. This witness also stated that he
along with the accused used to visit Indiranagar
club. The accused used to take one or two peg
whisky. Witness also states that after knowing
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about the accident caused by the accused, he
went to the spot, but the accused was not there.
His car was near the footpath. There were three
to four dead bodies lying at the scene of
occurrence. During cross examination by the
learned counsel for the accused, witness stated
that he has visited the spot at 6.45 a.m. and
several persons were gathered at the spot.
However, witness admitted the suggestion that at
6.00 a.m. there will not be sufficient light and the
vehicles were plying with head lights on till 7.00
a.m.
(vi) PW6 - Umesha is the waiter in Indiranagar club
who also states that the accused was the member
of the club and that on the previous night of the
accident, the accused had came to the club in the
night at 8.00 - 8.30 p.m. and he had served him
DSP black whiskey. The accused was also
accompanied by a lady. There were 8 to 10
friends of the accused who have also visited the
club. He identified Exs.P8 and P9 as the bill
relating to the accused and stated that Ex.P8
refers to the name of the accused and Ex.P9 is in
the name of one Sharath who is the friend of the
accused. Witness identified the accused before
the Court. However, the witness has not fully
supported the case of prosecution. Therefore, he
was partially treated hostile. Portion of his
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statement before the Police is marked as Ex.P10.
Even though the learned counsel for the accused
cross examined him at length, the evidence
deposed by the witness is not at all denied during
such cross examination.
(vii) PW7 - Shahnaz is one of the friend of the accused
who stated that she also used to visit Indiranagar
club. Witness stated that she used to meet the
accused atleast for 2 to 3 days in a week in the
club. On the previous day, she had met the
accused in club at about 8.30 p.m. and both of
them came out of the club at 11.00 p.m. The
accused had consumed whiskey on that day.
(viii) PW14 - Pavan is also the friend of the accused
who stated that on the date of incident at about
7.45 - 8.00 a.m., the accused had came to his
room and informed that he had caused the
accident. He was frightened. There was a
telecast in the TV regarding the accident. On
seeing the same, the accused started crying.
Witness stated that he informed the same to the
father of the accused, who came and took the
accused. Witness stated that he had visited
Shivajinagar and Indiranagar Police Station. This
witness is not cross examined by the learned
counsel for the accused.
26
(ix) PW21 - Dr.Radhakrishna is the Medical Officer in
Bowring Hospital, Bengaluru. Witness stated that
the accused was brought on 24.01.2009 at 7.10
p.m. with a request to collect the blood and urine
sample to find out as to whether it contain
alcohol. Accordingly, he drawn the blood and
urine samples of the accused, after registering the
MLC as per Ex.P21. Witness identified the
accused before the Court. Witness stated during
cross examination that the 1st page in Ex.P21
contains his handwriting and the remaining
portion is written by the other doctors. Witness
admitted that as per the remark given by
medicine-3 section, the accused was conscious
when he was examined and he had no ataxia.
Witness stated that as per Ex.P21, the accused
had sustained injury on left and right wrist.
Witness denied the suggestion that he had not
obtained any permission from the accused to
collect samples and that he has given false report.
(x) PW23 - Dr.Rekha is the Senior Chemical Analyst in
Bengaluru General Hospital. Witness stated that
she has received the blood and urine samples of
the accused sent by Investigating Officer for
analysis. She has forwarded the report as per
Ex.P23 along with her opinion after analyzing the
same. She found 185.0 mg per 100 ml alcohol in
the blood sample and 249.7 mg per 100 ml
27
alcohol in the urine sample. Witness stated that
the persons from whom the samples were drawn
was under the influence of alcohol above the
permitted limit. This witness was cross examined
by the learned counsel for the accused suggesting
that there are latest and sophisticated methods of
detecting alcohol in blood and urine, but the
witness stated that she adopted steam distillation
method to find out the percentage of alcohol. She
denied the suggestion that she is not competent
to conduct chemical examination and determine
the percentage of alcohol and the lab in which she
tested the sample was not sophisticated. She also
denied the suggestion that she has given a wrong
opinion and issued false report as per Ex.P23.
(xi) PW34 - Manjunath is the Police Sub Inspector in
Indiranagar Traffic Police Station. Witness stated
that on 23.01.2009, he was on night duty. On
24.01.2009 at 6.10 a.m., he received information
from police control room regarding the road traffic
accident on 100 feet in Indiranagar near
Dhoopanahalli bus stop. Immediately, he visited
the spot. A Black colour Honda Accord car
bearing reg No.KA 01 MD 0008 had caused the
accident. Four dead bodies were lying by the side
of the road. The car and the cycle found
damaged. He learnt from the eye witnesses that
the driver of the car who caused the accident had
28
gone away from the spot in an autorickshaw. He
was drunken and swinging. Sri.Srinivasamurthy,
Assistant Commissioner of Police came to the spot
and the dead bodies were shifted to Bowring
Hospital. One of the injured by name K
Kodandarama Reddy was also shifted to hospital.
During cross examination, witness pleaded his
ignorance regarding the person who informed him
that the driver of the offending car had gone away
in an autorickshaw.
(xii) PW35 - Purushothama is the Manager of
Indiranagar club and stated that as per request of
Investigating Officer, he has issued Exs.P31 to 34.
Ex.P32 relates to the accused and as per Ex.P33
the accused had visited the club on 23.01.2009
along with a lady guest. He had purchased two
pegs of DSP black whiskey, potato chips packet
and mineral water bottle at 12.28 on the
intervening night 23-24.01.2009. Similarly, at the
same time, one Sharath had purchased 7 pegs of
DSP black whiskey, cigarette packets, backardy
beer, water bottled, pea nuts etc., This witness
was also cross examined at length by the learned
counsel for the accused, but nothing has been
elicited to disbelieve his evidence. He specifically
denied that Exs.P31 to 34 were concocted and
produced before the Court.
29
(xiii) PW36 - Srinivasamurthy is the Investigating
Officer, being the Assistant Commissioner of
Police at East Traffic sub division. Witness stated
that he received information from the control
room at 6.20 to 6.30 a.m. on 24.01.2009
regarding the accident that had occurred on 100
feet Indiranagar road and immediately visited the
spot. PW31 - Eeranna Balagurgi was present at
the spot and he shifted the injured to the hospital.
He was instructed to record the statement of the
injured. Four dead bodies lying at the spot were
shifted to Bowring Hospital after conducting spot
mahazar as per Ex.P1. MOs.1 and 2 were seized
from the spot during panchaname. Exs.P2 to 5
are the photographs that were taken at the spot.
The negatives are at Exs.P35 to 37. Witness
stated that an advocate by name Chauhan had
came to Shivajinagar traffic Police Station on
24.01.2009 at 5.30 p.m. and produced the
accused. Accused was apprehended after
following the procedure. On examination with the
breathe analyzer, he was smelling alcohol and
tested 19 mg per 100 ml alcohol in the blood.
The report in that regard is as per Ex.P40.
Therefore, he gave a requisition to alter the penal
provisions from 304A to 304 of IPC. During cross-
examination by the learned counsel for the
accused, witness stated that he visited the spot at
30
7.00 a.m., and the public have gathered at the
spot. The police were also present. The damaged
car and bicycle were kept by the side of the road
for clearing the traffic. Witness denied the
suggestion that the permitted speed on 100 feet
road, Indiranagar, where the accident occurred
was 60 kilometers per hour. Witness stated that
both the air bags of the car were opened and he
also stated that the car had rubbed the side stone
from south to north for about 45 meters as
mentioned in Ex.P21. Witness stated that if any
hard substance touches the front bumper, the air
bags will open immediately and automatically.
However, he made it clear that opening of the air
bags would be possible only if the bumper touches
the hard surface with certain speed. Witness
stated that the spot mahazar as per Ex.P1 was
drawn as shown by the eye-witnesses, but denied
the suggestion that the same was prepared in the
police station. Witness stated that he had
collected the blood and urine samples form the
accused with the help of Medical Officer and sent
the same for chemical examination. He denied the
suggestion that the samples were never sent for
FSL examination. Witness stated that presence of
alcohol at 30 mg per 100 ml in the blood is
permissible. He denied the suggestion that the
accused had never consumed alcohol nor driven
31
the car in a high speed. He also denied the
suggestion that in order to avoid the speeding
cyclist who came across the road suddenly, the
accused took his car to the extreme left side of
the road, as a result of which, it dashed to the
side stone and the air bags were opened and this
is the cause for the accident.
24. The accused has examined DWs.1 to 4 in support
of his defence.
(i) DW.1 - Manish Pashwani is friend of the accused
and claims to be an eye-witness to the incident.
Witness states that at the time of accident, he
was at the spot proceeding in his car and noticed
that the car is belonging to the accused. The car
of the accused was proceeding ahead about 30
feet away and he was following the same. There
was heavy mist and the road was not visible. The
car of the accused tried to avoid a cyclist and hit
the footpath on the left side. Witness stated that
he also stopped the car and went to the spot. The
accused had caused the accident and informed
that he lost control over the car and as a result of
which, the accident had occurred. The persons
who were proceeding by the side of the road got
injured, the air bags were opened, several public
were gathered and assaulted the accused.
32
Therefore, accused ran away from the scene of
occurrence. The police came to the spot about half
an hour late and one of the injured was shifted to
the hospital. It is stated that the accident had not
occurred due to the fault of the accused. The
accused had also sustained injuries, but he was
not in a position to talk. Witness stated that he
had not felt that the accused had consumed
alcohol. During cross-examination by the learned
Prosecutor, witness stated that he know the
accused since 2007. Since both of them used to
visit Indiranagar club they were knowing each
other. Witness stated that he had been to play
golf and had returned to the house and as he had
forgotten the shoe. Witness admitted that when
there was heavy mist, one cannot play golf.
Witness stated that since he had also had the
head light on and so also the accused, he could
see the car of the accused from about 30 feet
away even though there was heavy mist. Witness
stated that about 3-4 persons have sustained
injuries in the accident but he had not informed
the police about the accident. Police enquired his
name, address etc. He denied the suggestion that
he is falsely deposing, even though he is not an
eye-witness to the incident and only for the
reason that the accused is his friend.
33
(ii) DW.2 - Dr.Kiran is working as faculty in Forensic
Medicine in Devraj Urs Medical College. He has
done MBBS, MD., in Forensic Medicine and he is
having the experience of about 20 years in
conducting post mortem examination. He also
conducted breathe analyzer to find out the drunk
and driving. Witness stated that he adopt gas
chromatography and max spectrometer to find out
the percentage of alcohol in the blood. Witness
stated that steam distillation method is also
available to find out the alcohol in the blood but
since it is an old method, it cannot state the
percentage of alcohol in the blood by adopting the
said method. Witness stated that if the blood of a
person contains alcohol at 185 mg per 100 ml he
will be in a drowsy condition. He will not be in a
position to walk or do any job. During cross-
examination, witness stated that by adopting
steam distillation method, one can find out the
alcohol in the blood and urine. He denied the
suggestion that he is deposing falsely even though
in the steam distillation method the percentage of
alcohol in blood and urine can be find out.
(iii) DW3 - Mallesh is a retired Assistant Director at
FSL Bengaluru. Witness stated that he had
conducted blood sample test of more than 150.
He generally conduct test by adopting steam
distillation and titration examination to find out
34
the percentage of alcohol in the blood and urine.
He also adopt steam distillate with gas
chromatography to find out the above result.
Witness stated that by adopting only steam
distillation method, the percentage of alcohol in
blood and urine cannot be find out. However, by
adopting the said method, the alcohol in blood
and urine could be separated. During cross-
examination, the witness denied the suggestion
that even by adopting steam distillation method,
percentage in blood and urine could be found out
and he is deposing falsely.
(iv) DW4 - Muthappa is an ITI professional. Witness
stated that he served for about 13 years as
Service In-charge Manager in Hyundai Company.
He knows the mechanism of the car. Witness
stated that the air bags will be placed in the
center of the steering and in the dash board. If
the car proceeds 30 kilometers speed and if
dashes against any other vehicle, the air bags will
be opened within a second. If the car dashed to
the footpath, then also the air bag will be opened.
The air bag will be like a balloon and it will cover
the head and face of the driver. Since it
separates the driver from the steering, he loses
control over the car. Witness also stated that
since there was a defect in air bag, Honda and
Neson cars were withdrawn from the market.
35
Witness stated that since ALBS i.e., anti lock
break system was provided to the car in question,
there is no chance of skidding and there will not
be tyre mark on the road in case of accident.
During cross-examination, witness admitted that
his qualification in ITI is below Diploma. Witness
stated that in case of impact, both the air bags
will be opened, but denied the suggestion that he
is deposing falsely in favour of the accused, even
though he does not know anything about the car
and accident in question.
25. Based on the aforesaid oral and documentary
evidence on record, the learned Sessions Judge has
proceeded to convict and sentence the accused for the
offences punishable under Sections 279, 304 of IPC and under
Sections 185, 134(a) (b) read with Section 187 of MV Act.
26. From the documents - Ex.P1 - spot panchanama,
Exs.P2 to 5 - photos of car, Exs.35 to 37 - negatives, Exs.P12
and 13 - photos of cycle, Exs.P8 and 9, 31 to 34 - credit bills
and Ex.P39 - reply to notice, it is clear that the accused
himself was driving the car in question on the date of incident
as admitted by him in Ex.P39 and spoken to by the eye-
witnesses - PWs.11 and 12, which is supported by other
36
witnesses who have spoken to about consuming of alcohol by
the accused on the previous night. The version of the
witnesses is also supported by the evidence of PWs.21 and 23
regarding drawing of blood and urine sample and the
presence of alcohol in the blood and urine of the accused
beyond permissible limit, as stated in Ex.P23. Apart from
candid admission of the accused that he was driving the
offending car in question in Ex.P39, which is never disputed
by the accused during cross-examination of PW.36 and the
tenor of cross-examination of various witnesses disclose that
the accused did not dispute the contention of prosecution that
he himself was the driver of offending vehicle at the time of
accident.
27. Under the provisions of Section 185 of MV Act, if a
person with his blood containing the alcohol exceeding 30 mg
per 100 ml is detected in test by a breath analyzer, is said to
be a drunken person, driving the vehicle which is punishable
with imprisonment which may extend to six months or with
fine or with both. As per Ex.P23, the blood and urine samples
of the accused were sent for chemical examination which
showed the result of percentage of alcohol in the blood at
37
185.0mg per 100ml and percentage of alcohol in his urine was
249.7mg per 100ml. The chemical examiner-PW23 has given
her opinion that the accused was under the influence of
alcohol.
28. It is pertinent to note that the accident in question
had occurred on 24.1.2009 at 6.05 hours. The accused had
escaped from the spot and surrendered before the police only
in the evening and his blood and urine samples were collected
by PW21 in Bowring Hospital on the said date at 7.10 p.m.
When the blood and urine contained alcohol as stated in
Ex.P23, which was much more than the percentage
mentioned in Section 185 of MV Act, we can imagine the
percentage of such alcohol in his blood and urine at the time
of accident. Therefore, we do not have any hesitation to hold
that the accused was under the influence of alcohol at the
time of accident.
29. The materials on record discloses that the
accident had occurred on 100 feet road in Indiranagar at 6.05
hours. Admittedly, there were no heavy vehicular traffic.
Taking advantage of the same, the accused had driven the car
38
in a rash and negligent manner and dashed to the deceased
and the injured. The manner in which the accident had
occurred, which has resulted in death of four innocent persons
who were proceeding on road for a walk and injury to another
person and further the details of topography at the scene of
occurrence mentioned in Ex.P1 - spot mahazar and Ex.P2 -
spot sketch discloses that the car in question had dashed to
the footpath and went further to some distance and again
came on the main road and again went on the footpath before
halting. PW36 - Srinivasamurthy, the Investigating Officer
has specifically stated that the car had proceeded 45 meters
from the spot where it first hit the footpath where the injured
K Kodandarama Reddy had fallen at the spot and four dead
bodies were lying. This shows the rashness with which the
car was driven by the accused.
30. The learned senior counsel contended that the
prosecution has not proved that the accused was driving the
car in question and further it has not proved that the car was
driven in a rash and negligent manner. He submitted that all
the material witnesses have spoken to about the car driven in
high speed, but nobody have stated that it was driven in a
39
rash and negligent manner. Such contention of the learned
senior counsel for the accused cannot be accepted in view of
the discussions held above. The accused himself has
categorically admitted that he was driver of the offending car
and the tenor of cross-examination also supports the
contention of prosecution. PWs.11 and 12 - the eye-witnesses
have categorically stated regarding the rash and negligent
driving of the car by the accused, which is also supported by
the topography at the scene of occurrence including the
scratch mark found at the spot, scattering of the dead bodies
and the injured. Moreover, there is no explanation to the
candid admission of the accused about he being the driver of
the offending car which caused the accused in EX.P39 - the
reply by the accused.
31. The accused has denied the incriminating
materials available on record and given his statement under
Section 313(5) of Cr.P.C., taking specific defence. The
accused has categorically admitted that he was driving the car
in question at the time of accident. It is his defence that he
was driving the car slowly and cautiously on the left side of
the road and a cyclist suddenly came across the road. There
40
was heavy mist and the accused tried to avoid collusion of the
car with the cyclist and took the car on the left side, as a
result of which, the car hit the road side curb stone and both
the air bags were opened. He could not see the road and lost
control over the vehicle. The accused has also stated that in
all Honda accord cars manufactured between 2001 to 2002,
there was manufacturing defect and few lakhs of cars across
the globe were replaced due to defective fitment of air bags.
Accused has also stated that immediately after the accident,
he came out of the car and made arrangements to shift the
injured. Several persons have gathered at the spot and
fearing that they may assault him he left the place to save
himself. Therefore, he could not even report the matter to
the police in time. He contacted his friends and family
members and as per their advise he went to the police
station. It is stated that he has not consumed liquor but the
police falsely implicated him in the case. It is stated that the
accident had occurred mainly due to his act to save the cyclist
and therefore he is innocent.
32. The defence taken by the accused in his
statement, if considered in the light of oral and documentary
41
evidence placed before the Court, clearly goes to show that
nothing but self serving defence to save his skin, which is not
supported by the materials that are placed before the court.
Even motor accident report produced as per Ex.P22 discloses
that there were as many as 26 damages caused to the car in
question which shows the force with which the car had hit the
footpath and the road side curb stone and even then
proceeded further for about 45 meters, where tyre marks
were found at the spot. These facts and circumstances itself
discloses the rash and negligent driving of the car by the
accused.
33. The prosecution examined PW23 - Dr.Rekha who
examined the blood and urine sample of the accused and
issued Ex.P23. It is pertinent to note that PW23 is a senior
specialist in K C General Hospital with B.Sc and MBBS
qualification. It is stated that she served for 29 years as a
Doctor. Witness specifically stated that she adopted steam
distillation method for analyzing the sample before issuing
Ex.P23. This witness was cross-examined at length by the
learned counsel for the accused regarding various other
method adopted for finding the percentage of alcohol in the
42
blood and urine. Witness admitted that there are other
advanced method. It is pertinent to note that the witness was
not cross-examined on the ground that the percentage of
alcohol could not be detected in the blood and urine by
adopting steam distillation method. It is elicited by the
witness that if the person in having 150 to 200mg of alcohol
per 100 ml, such person will not be in a position to walk,
speak properly. Nothing has been elicited from this witness to
disbelieve her version or to contend that she has not
conducted examination before issuing Ex.P23 or that she has
issued the document deliberately to help the prosecution.
There is nothing to disbelieve the version of PW23 who served
as Doctor for several years in the Government Institution. It
is only while examining DWs.2 and 3, for the first time a
stand is taken that the percentage of alcohol could not be
detected in blood and urine by steam distillation method.
Therefore, it is to be concluded that it is only an afterthought
by the accused to save his skin. The evidence of DWs.2 and 3
will not help the accused in any manner to falsify Ex.P23 and
the evidence of PW23.
43
34. The accused examined DW1 as an eye-witness.
The evidence of this witness is so artificial, who says that
there was heavy mist and the road was not visible. But
however, he identifies the car of the accused from about 30
feet distance. Admittedly he is a close friend of the accused.
He has not chosen to report the matter to the police
immediately after the incident. His statement was also not
recorded by the police which itself falsifies his contention that
he was an eye-witness and he was at the spot immediately
after the incident. The prosecution examined PW14 - Pavan,
the friend of the accused who stated that the accused had
came in an Auto Rickshaw to his room and informed about the
accident. Neither the accused nor PW14 state about DW1 who
met the accused immediately after the incident. Therefore no
importance could be attached to the evidence of DW1.
35. DW4 - Muthappa speaks about the defect in the
air bags of Hyundai cars. But it is not the contention of
accused that his car had such defect and due to the same, the
accident had occurred. On the other hand, it is specific
contention that the air bags were opened immediately after
44
the impact. Therefore, the evidence of DW4 is in no way
helpful to the accused.
36. The discussions held above disclose that even
though the prosecution is successful in proving the guilt of the
accused beyond reasonable doubt, the accused is not
successful in probabalizing his defence. Therefore, the
accused is liable for conviction for the offence punishable
under Sections 279, 304A of IPC.
37. We have considered the impugned judgment of
conviction and order of sentence passed by the Trial Court.
Even though, the Court has proceeded to convict the accused
for the offence punishable under Section 279 of IPC and under
Sections 185, 134 (a) (b) read with 187 of MV Act, it has
committed an error in convicting the accused for the offence
punishable under Section 304 of IPC as it is not the contention
of prosecution that the accused had committed culpable
homicide not amounting to murder with an intention of cause
death or bodily injury.
38. Learned senior counsel contended that the
prosecution is not successful in connecting the accused to the
45
offences in question. None of the witnesses have specifically
identified the accused as the driver of offending vehicle at the
time of accident. Under such circumstances, the Trial Court
could not have convicted the accused. Learned counsel
placed reliance on the decision of Manoharan (supra). In the
said case, the learned Single Judge of this Court has
considered the facts and circumstances of the case and
dismissed the appeal. The accused in the said case was
charged for the offences punishable under Sections 279, 337
and 304A of IPC and he was convicted for the same. When
the accused challenged the judgment of conviction and order
of sentence before the learned Sessions Judge, the appeal
came to the allowed by holding that the identity of the
accused has not been properly established by the prosecution.
This judgment of acquittal was challenged before this Court by
the State. The learned Single Judge dismissed the appeal on
the ground that even after re-appreciation of the materials on
record, one cannot definitely say that the prosecution has
proved the identity of the accused as the driver of offending
vehicle. But in the present case, the tenor of cross
examination of the prosecution witnesses, the document
46
Ex.P39 and the defence taken by the accused disclose that
the accused has categorically admitted that he was the driver
of offending car. Moreover, the accused has filed his written
statement under Section 313 (5) of Cr.P.C. categorically
stating that it was he who was driving the car in question at
the time of accident. Therefore, it would not lie in the mouth
of the accused to contend that the prosecution is not
successful in connecting the accused to the offence in
question. Moreover, PWs.11 and 12 who are the eye
witnesses have specifically identified the accused as the driver
of car in question at the time of accident. Therefore, the
decision relied on by the learned counsel is not helpful for the
accused.
39. Learned senior counsel further submitted that the
prosecution should have proved the rash and negligent act on
the part of accused in strict sense of the terms. He placed
reliance on the decision in Naresh Giri (supra) to contend
that since the negligence is an essential ingredients of the
offence, the same is to be proved by the prosecution. Mere
negligence based on error of judgment is not sufficient to
convict the accused.
47
40. We have given our anxious consideration to the
decision relied on by the learned senior counsel. The facts
and circumstances of the said case is entirely different to the
present facts and circumstances. In the said case, the
accused who was charged for the offence punishable under
Section 302 of IPC, challenged the correctness of the charge
framed. The revision petition came to be filed and the
revision was dismissed by holding that there are materials
available for framing charge under Section 302 of IPC,
alternatively, Section 304 of IPC, therefore, the contention of
the accused that the case falls under Section 304A of IPC
cannot be accepted. The said order was challenged before
the Hon'ble Apex Court by the accused, wherein, the Hon'ble
Apex Court considered the facts of the case that the bus
driven by the accused was hit by a train at the railway
crossing, resulting in the death and injuries to the passengers
and held that Section 302 of IPC has no application as there
was no intention to kill the passengers and at the most it may
be under Section 304A of IPC. Accordingly, the charge stand
altered to Section 304A along with Sections 279 and 337 of
IPC.
48
41. In the present case, based on the complaint made
by the complainant-K Kodandarama Reddy dated 24.01.2009,
the police registered the case at 9.00 a.m. on the same day in
Crime No.5 of 2009 for the offences punishable under
Sections 279 and 304 of IPC and under Sections 134(a)(b) of
the MV Act against unknown person. Accordingly, the
jurisdictional police registered the FIR as per Ex.P30. The
jurisdictional Investigating Officer considering the entire
materials on record, proceeded to file the charge sheet
against the accused under the provisions of Sections 279,
338, 304 of IPC and under Sections 185, 134(a)(b) read with
Section 187 of MV Act.
42. The learned Sessions Judge framed charge on
19.09.2011 in respect of said provisions and proceeded to
convict the accused under the provisions of Sections 279, and
304 of IPC and under Sections 185, 134(a)(b) read with
Section 187 of MV Act. The provisions of Section 304 of IPC
prescribes the punishment for culpable homicide not
amounting to murder.
49
43. A plain reading of the said section makes it clear
that it is in two parts. The first part of the Section is generally
referred to as "Section 304, Part I", whereas the second part
as "Section 304, Part II". The first part applies where the
accused causes bodily injury to the victim with an intention to
cause death; or with intention to cause such bodily injury as
is likely to cause death. Part II, on the other hand, comes into
play when the death is caused by doing an act with the
knowledge that it is likely to cause death, but without any
intention to cause death or to cause such bodily injury as is
likely to cause death.
44. The Makers of the Code observed;
"The most important consideration upon a
trial for this offence is the intention or knowledge
with which the act which caused death, was done.
The intention to cause death or the knowledge
that death will probably be caused, is essential
and is that to which the law principally looks. And
it is of the utmost importance that those who may
be entrusted with judicial powers should clearly
understand that no conviction ought to take
place, unless such intention or knowledge can
from the evidence be concluded to have really
existed".
50
45. The Makers further stated;
"It may be asked how can the existence of
the requisite intention or knowledge be proved,
seeing that these are internal and invisible acts of
the mind? They can be ascertained only from
external and visible acts. Observation and
experience enable us to judge of the connection
between men's conduct and their intentions. We
know that a sane man does not usually commit
certain acts heedlessly or unintentionally and
generally we have no difficulty in inferring from
his conduct what was his real intention upon any
given occasion".
46. Before invoking Section 304 of IPC, the following
ingredients must be satisfied;
(i) the death of the person must have
been caused;
(ii) such death must have been caused
by the act of the accused by causing bodily injury;
(iii) there must be an intention on the
part of the accused
(a) to cause death; or
(b) to cause such bodily injury which is
likely to cause death; (Part I) or
51
(iv) there must be knowledge on the part
of the accused that the bodily injury is such that it
is likely to cause death (Part II).
47. The provisions of Section 304A of IPC was
inserted by the Indian Penal Code (Amendment) Act, 1870.
The provisions of the said Section deals with homicidal death
by rash or negligent act. It does not create a new offence. It
is directed against the offences outside the range of Sections
299 and 300, IPC and covers those cases where death has
been caused without 'intention' or 'knowledge'. The words
"not amounting to culpable homicide" in the provision are
significant and clearly convey that the section seeks to
embrace those cases where there is neither intention to cause
death, nor knowledge that the act done will in all probability
result into death. It applies to acts which are rash or negligent
and are directly the cause of death of another person.
48. There is thus distinction between Section 304 of
IPC and Section 304A of IPC. Section 304A of IPC carves out
cases where death is caused by doing a rash or negligent act
which does not amount to culpable homicide not amounting to
murder within the meaning of Section 299 or culpable
52
homicide amounting to murder under Section 300, IPC. In
other words, Section 304A excludes all the ingredients of
Section 299 as also of Section 300. Where intention or
knowledge is the motivating force of the act complained of,
Section 304A will have to make room for the graver and more
serious charge of culpable homicide not amounting to murder
or amounting to murder as the facts disclose. The section has
application to those cases where there is neither intention to
cause death nor knowledge that the act in all probability will
cause death. In view of the above, the conviction for offence
punishable under Section 304 as find by the learned Sessions
Judge is without any basis.
49. The learned senior counsel also placed reliance on
the decision of Syad Akbar (supra) to contend that the
principle of res ipsa loquitor is not applicable to the facts of
the present case. The Hon'ble Apex Court considered the
principal of res ipsa loquitur and the essentials facts that are
to be proved to attract this principle and held that firstly, all
the circumstances including the objective circumstances
constituting the accident, from which the inference of guilt is
to be drawn must be firmly established. Secondly, those
53
circumstances must be of a determinative tendency pointing
unerringly towards the guilt of the accused. Thirdly, the
circumstances should make a chain so complete that they
cannot reasonably raise any other hypothesis save that of the
accused's guilt, that is, to say, they should be incompatible
with his innocence and inferentially exclude all reasonable
doubt about his guilt. If these principles of law laid down by
the Hon'ble Apex Court to apply the principle of res ipsa
loquitur to the facts and circumstances of the present case,
the facts that are proved by the oral and documentary
evidence placed before the Court which are discussed at
length above, unmistakably points towards the guilt of the
accused and there is no other hypothesis than the one as
contended by the prosecution. By no stretch of imagination,
it could be said that the accused was not rash or negligent in
driving his car in question.
50. The prosecution also relies on the version of eye
witnesses i.e., PWs.11 and 12 to prove the gruesome act of
rashness and negligence by the accused, which has resulted
in four deaths at the spot and one person sustaining grievous
hurt. Even though the accused has taken a specific defence
54
that he was not rash and negligent in driving, there is
absolutely no explanation as to how the car could go off the
road, hit the curb stone and cause the death of one person at
point B and thereafter, proceed further and hit the other
deceased at point C and again proceeding further on and off
the footpath and dashing three other persons and causing
their deaths at points H, I and J in the spot sketch Ex.P1C.
The conjoint consideration of the spot mahazar and the spot
sketch relied on by the prosecution which are not seriously
disputed that the offending car proceeded for about 45 meters
even after dashing and causing the death of persons at point
B in the sketch, unmistakenly points the accusing finger
towards the accused.
51. If the contention of accused that he was driving
the car cautiously and slowly within about 30 to 40 km per
hour, the car could not have been proceeded for about 45
meters before coming to a halt. Even if the contention of
accused that the airbags were opened and as a result of
which, he lost control over the vehicle is to be believed,
unless it was in high speed and driven in a rash and negligent
manner, it could not have been hit so many pedestrians
55
proceeding for about 45 meters before halting. There is
absolutely no explanation by the accused about these
clinching materials on record. Therefore, the decision relied
on by the learned senior counsel, wherein, the requirement
for application of the principle of res ipsa loquitur could be
made applicable in the present case even if the version of the
eye witnesses PWs.11 and 12 is to be ignored for a moment.
52. In view of the discussions held above, we are of
the opinion that the prosecution is successful in proving that
the accused was the driver of the offending car, driven the
same in rash and negligent manner and caused death of four
persons and caused injuries to one of the pedestrian. The
prosecution also proved that the accused was under the
influence of alcohol beyond the permitted limit which also
contributed the accident in question. Thereby, the prosecution
is successful in proving of the guilt of the accused beyond
reasonable doubt under Sections 279 and 304A of IPC and
under Sections 185 and 134(a) (b) read with Section 187 of
MV Act.
56
53. Admittedly, in the present case, the accident
occurred on 24.01.2009 and the accused was produced before
the Police Station by his advocate and he was apprehended
after following the procedure. He was in judicial custody for
sometime and the impugned judgment came to be passed on
31.01.2015 and the bail was granted by this Court on
10.02.2015. He was on bail for more than 7 years. As on the
date of accident, he was aged about 29 years. Now he is
aged 36 years and the learned senior counsel for the
appellant contends that the accused is the sole bread earner
in the family and if he is sent to jail after more than 13 years
from the date of accident, he will suffer irreparable injury.
54. The learned Sessions Judge convicted the accused
and sentenced him to undergo simple imprisonment for six
months and to pay a fine of Rs.1,000/- and in default of
payment of fine to undergo simple imprisonment for a period
of one month for the offence punishable under Section 279 of
IPC, he was sentenced to undergo simple imprisonment for a
period of three years and to pay a fine of Rs.3,000/- and in
default of payment of fine to undergo simple imprisonment for
three months for the offence punishable under Section 304 of
57
IPC, he was sentenced to undergo simple imprisonment for a
period of three months and to pay amount of a fine of
Rs.500/- and in default to undergo simple imprisonment for a
period of one month for the offence punishable under Section
134(a)(b) read with Section 187 of MV Act and he was
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 to undergo simple imprisonment for a period of three
months for the offence punishable under Section 185 of MV
Act. As already stated above, the complaint and the evidence
on record clearly depicts that the provisions of Section 304A
of IPC applies to the case on hand and not Section 304 of IPC.
55. Sri. M.T.Nanaiah, learned senior counsel for the
accused after arguing the matter at length on 05.01.2022 and
for sometime on 10.01.2022, voluntarily submits that the
accused will deposit Rs.2,00,000/- each (Rupees Two Lakhs
only) to the legal representatives of the deceased persons and
Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) to the
legal representative of the injured person, who later died on
13.03.2019. The said submission is placed on record.
58
56. In the present case, the appellant-accused has
been found guilty for the offences punishable under Sections
279 and 304A of IPC and under Sections 185 and 134(a)(b)
read with Section 187 of MV Act, for his rash and negligent
driving in a public street and for causing death of four persons
at spot and one more death of the injured who died after 48
days, thereby, taking away their precious life. However, it is
not the case of prosecution that the accused had intentionally
caused the death of deceased persons. Thereby, considering
the provisions of Section 304A of IPC, which clearly depicts
that whoever causes the death of any person by doing any
rash and negligent act amounting to culpable homicide, shall
be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with
both.
57. Taking into consideration the peculiar facts and
circumstances of the present case, since the legal
representatives of the deceased have not filed any appeal,
except the State Government for enhancement of sentence
under Section 304 of IPC and as the learned senior counsel
for the appellant submitted that the accused would deposit a
59
sum of Rs.2,00,000/- each (Rupees Two Lakhs only) to the
legal representatives of deceased persons and Rs.1,50,000/-
(Rupees One Lakh Fifty Thousand only) to the legal
representatives of the injured person, who later died on
13.03.2019 as compensation and taking into consideration
that the appellant was throughout on bail except initially in
judicial custody during the year 2009, we are of the view that
it would not be fair to send the appellant to jail after lapse of
more than 13 years from the date of occurrence of accident.
The ends of justice will be met, if the appellant is sentenced
to undergo simple imprisonment for the period already
undergone and to pay a fine of Rs.1,000/- (Rupees One
Thousand Only) and in default to undergo simple
imprisonment for the period of three months for the offence
punishable under Section 279 of IPC, to pay a fine of
Rs.1,000/- (Rupees One Thousand Only) and in default to
undergo simple imprisonment for a period of one month for
the offence punishable under Section 134(a)(b) read with
Section 187 of MV Act and to pay a fine of Rs.2,000/- (Rupees
Two Thousand Only)and in default to undergo simple
imprisonment for a period of six months for the offence
60
punishable under Section 185 of MV Act and also to pay
compensation amount to the legal representatives of the
deceased persons as stated above.
58. For the reasons stated above, the first point
raised in the present appeals is answered in the Affirmative
holding that the appellant has made out a case to interfere
with the impugned judgment of conviction to modify the
conviction under Section 304 of IPC into Section 304A IPC and
the second point is answered in Negative holding that the
State has not made out any case for enhancement of the
sentence.
59. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal No.162 of 2015 filed by the accused is allowed in part.
(ii) Criminal Appeal No.681 of 2015 filed by the State is dismissed.
(iii) The impugned judgment of conviction dated 31.01.2015 passed in SC No.963 of 2009 on the file of the Fast Track Court-XIII, Bengaluru City for the offence 61 punishable under Section 279 of IPC and under Sections 185 and 134(a)(b) read with Section 187 of MV Act, is hereby confirmed. However, the order of sentence is modified as under:
The accused is sentenced to undergo simple imprisonment for the period which he has already undergone and to pay a fine of Rs.1,000/- (Rupees One Thousand Only) and in default, to undergo simple imprisonment for the period of three months for the offence punishable under Section 279 of IPC; to pay a fine of Rs.500/- (Rupees Five Hundred Only) and in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 134(a)(b) read with Section 187 of MV Act; and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only) and in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 185 of MV Act.
(iv) The impugned judgment of conviction and order of sentence passed by the Trial Court for the offence punishable under Section 304 of IPC, is modified. The appellant-accused is convicted for the offence punishable under Section 304A of IPC and sentenced to undergo simple imprisonment for the 62 period for which he has already undergone and to pay a fine of Rs.9,50,000/- (Rupees Nine Lakh Fifty Thousand Only), and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one year.
(v) The accused is directed to deposit the fine amount before the Trial Court within two weeks from the date of receipt of copy of this order.
(vi) From out of the fine amount, an amount of Rs.2,00,000/- each (Rupees Two Lakhs Only) shall be paid to the legal representatives of the deceased Dr.Pananthur, Siddaiah, Radhakrishna, and Kempegowda and a sum of Rs.1,50,000/- shall be paid to the legal representative of the deceased K Kodandarama Reddy as compensation. The remaining fine amount of Rs.3,500/- (Rupees Three Thousand Five Hundred Only) shall be vest in the State Government for defraying charges.
(vii) The Trial Court is directed to communicate the deposit of the compensation amount to the legal representatives of the deceased i.e., PWs.9, 10, 16, 19 and 63 33 to enable them to withdraw the same as contemplated under Section 357(3) of Cr.P.C.
(viii) Bail bond of the accused and that of his sureties stand cancelled.
(ix) In view of the peculiar facts and circumstances of the present case, this judgment of sentence shall not be treated as a precedent in future for the offence under Section 304A IPC.
(x) Registry is directed to send back the Trial Court records with a copy of the judgment.
Sd/-
JUDGE Sd/-
JUDGE *bgn/- & SMJ