Karnataka High Court
Shri. Prakash S/O Laxman Mutagekar vs The State Of Karnataka on 27 March, 2024
-1-
NC: 2024:KHC-D:5850
CRL.RP No. 100179 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100179 OF 2017 (397)
BETWEEN:
SHRI. PRAKASH S/O. LAXMAN MUTAGEKAR
AGE:37 YEARS, OCC:DRIVER
R/O: H.NO. 121/1, MARUTI ROAD,
GANDHI NAGAR, BELAGAVI
TALUKA AND DISTRICT-BELAGAVI
...PETITIONER
(BY SRI. DEEPAK S. KULKARNI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH CPI KHANAPUR CIRLCE
REPRESENTED BY ADDITIONAL SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCHM DHARWAD.
...RESPONDENT
Digitally signed (BY SRI. M.B. GUNDAWADE, ADDL.SPP.)
by SAMREEN
AYUB DESHNUR
Location: HIGH
COURT OF THIS CRIMINAL REVISION PETITION IS FILED UNDER
KARNATAKA SECTION 397 (1) READ WITH SECTION 401 OF CR.P.C., PRAYING TO
CALL FOR EXAMINE THE RECORDS THE JUDGMENT AND ORDER
DATED 19.11.2016 PASSED BY THE VIII ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL NO. 75 OF 2016,
CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE PRL.
CIVIL JUDGE AND JMFC COURT, KHANAPUR IN C.C.NO. 710 OF 2014,
DATED 22.04.2016, WHEREIN THE REVISION PETITIONER HAS BEEN
CONVICTED FOR AN OFFENCE PUNISHABLE UNDER SECTION 279,
337, 338, 304 (A) OF IPC AND SEC. 134 READ WITH 187 OF M.V.
ACT, BY ITS JUDGMENT AND ORDER DATED 22.04.2016 KINDLY BE
SET ASIDE BY ALLOWING THIS REVISION PETITION.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2024:KHC-D:5850
CRL.RP No. 100179 of 2017
ORDER
The revision petitioner/accused has assailed the judgment of his conviction and order of sentence passed in C.C. No.710/2014 dated 22.04.2016 by the Principal Civil Judge and JMFC, Khanapur (for short the 'Trial Court'), and confirmed in Criminal Appeal No.75/2016 dated 19.11.2016 by the VIII Additional District and Sessions Judge, Belagavi (for short the 'first Appellate Court'), by filing this revision petition.
2. Parties to this revision petition are referred to as per their rank before the Trial Court for the purpose of convenience.
3. That, one Salma W/o. Shakil Aga resident of the address so stated in the complaint filed a complaint on 16.06.2014 when she was taking treatment at Vijaya Hospital, Belagavi stating that, her husband had come to Belagavi from Saudi Arabia about 1½ months back prior to filing of the complaint. It is stated that, on 15.06.2014 her -3- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 husband Shakil wanted to go back to Saudi Arabia. Therefore to see-off him, herself, her children by name Alfiya, Faizan, Farhan and relative Afzal Mohammadali Shaikh together were travelling in her husband's friend's Maruti Omni Car bearing registration No.GA-07/E-6029 driven by her husband's friend Sajjad Shabuddin Traslar @ Tarajgar. Herself, her husband and her children were sitting on the back seat of the said Maruti Omni. In the front seat of Maruti Omni left side of the driver Afzal Shaikh was sitting and Sajjad Traslar @ Tarajgar was driving the vehicle. They started from Belagavi at about 4.30 p.m., and wanted to go Goa Airport via Jambot road. When their vehicle moving towards Goa at a distance of 3 k.m., away from Kankumbi, there was a road curve. At that time, one Scorpio vehicle from Goa side driven by its driver in high speed dashed against the Maruti Omni. Because of this accident, their Maruti Omni turtled down thrice and fell down on the right side of the road. The inmates of the said Maruti Omni started bombarding. The pedestrian road users came and rescued the inmates of -4- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 the Maruti Omni. This complainant sustained injuries on her left leg, knee, right toe and likewise her husband Shakil sustained inner injury to his chest, her daughter Alfiya sustained injury on her right elbow, back and also abrasions, her son Farhan sustained injuries on his right shoulder, cheek, her another son Faizan sustained injuries on his right cheek, knee, nose, lips and other parts of the body. All the injuries so sustained by the inmates were grievous in nature. Afzal who was sitting in front seat of Maruti Omni sustained injuries on his forehead, back and driver Sajjad Tarajgar had sustained grievous injuries on his right shoulder, back, legs and grievous injury on his head and blood was oozing. The Scorpio vehicle which had caused the accident was bearing registration No.KA-30/Z- 2003 and by causing the accident, the driver of the said Scorpio vehicle ran away from the said place. The said accident took place at 6.30 p.m., on that day. Somebody gathered there called ambulance and in the ambulance they were shifted to the hospital. The driver of Maruti Omni Sajjad was shifted to KLE Hospital, Belagavi for -5- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 further treatment. With these allegations she filed a complaint as per Ex.P.1 which was registered in Crime No.171/2014 of Khanapur Police Station and the criminal law was set in motion. The said complaint was submitted at about 7.00 p.m., on 16.06.2014 at Vijay Hospital, Belagavi.
4. Subsequently, the said driver Sajjad was succumbed to the accidental injuries and to that effect a requisition is made to the Court for inserting the provisions of Section 304A of the Indian Penal Code, 1860 (for short 'IPC').
5. The Investigating Officer after completion of the investigation and by following all the procedure of investigation, filed the charge sheet against the accused for the offences punishable under Sections 279, 337, 338, 304A of IPC and Section 134 read with Section 187 of the Motor Vehicles Act, 1988 (for short 'M.V. Act').
6. To prove the guilt of the accused, the prosecution in all examined thirteen witnesses from PWs.1 -6- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 to 13 and got marked Ex.P.1 to P.29 and closed prosecution evidence.
7. The learned Trial Magistrate on hearing the arguments and on assessment of the evidence, found the accused guilty of committing the aforesaid offences and sentenced him as under:
"The accused is sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.1000/- (Rupees one thousand only) for the offence punishable U/s. 279 of IPC.
The accused is sentenced to undergo S.I. for a period of two months and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence punishable U/s. 337 of IPC.
The accused is sentenced to undergo S.I. for a period of four months and to pay a fine of Rs.1000/- (Rupees one thousand only) for the offence punishable U/s. 338 of IPC.
The accused is sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.5000/- (Rupees five thousand -7- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 only) for the offence punishable U/s. 304A of IPC.
The accused is sentenced to undergo S.I. for a period of one month and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence punishable U/s. 134 r/w. Section 187 of I.M.V.Act.
Sentences shall run concurrently."
8. This judgment of conviction and order of sentence was challenged by the accused before the first Appellate Court by preferring Criminal Appeal No.75/2016. The first Appellate Court vide judgment dated 19.11.2016 dismissed the appeal after hearing the arguments and by re-appreciating the evidence thereby confirmed the judgment of conviction and order of sentence passed by the Trial Magistrate. This is how the petitioner is before this Court challenging both the judgments of the Courts below.
9. With all force it is submitted by Shri. Deepak S. Kulkarni, learned counsel for the petitioner/accused that, the judgments of both the Courts below are contrary to -8- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 law and facts of the case and hence not sustainable in the eyes of law. PW.1 complainant has not seen the accident. During the course of her evidence, she has admitted that, from Jamboti to Goa road it is in a zigzag manner and it is a Ghat section. She was sitting in the back seat of the Maruti Omni and there was no occasion for her to see the opposite vehicle. Even PWs.2, 4 and 5 are not the eyewitnesses though they are arrayed as eyewitnesses. The said accident has taken place because of rash and negligent driving by the driver of Maruti Omni. As the driver of the Maruti Omni died therefore, the present accused being the driver of Scorpio vehicle has been made as a scapegoat. These PWs,1, 2, 4 and 5 were not definite about the accident and they have not seen the accused as the driver of the said Scorpio Vehicle. The lower Courts have not taken into consideration the fact that, Maruti Omni car dashed to the road side tree thereafter, to the Scorpio vehicle. The driver of the Scorpio vehicle was driving the vehicle by taking all available precautions. But, -9- NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 even then the Trial Court and the first Appellate Court wrongly found the accused guilty.
10. It is further submission of learned counsel for the petitioner that, none of the ingredient of rash and negligent driving of the scorpio vehicle is proved by the prosecution. In support of his submission, he relied upon the provision of Indian Penal Code especially with regard to the rash and negligent driving of the vehicle and relied upon two judgments of this Court in Criminal Revision Petition No.331/2014 decided on 10.02.2023 and Criminal Revision Petition No.1186/2015 decided on 24.08.2023.
11. Relying upon these judgments he submits that, rash and negligent driving is not proved, then the benefit of doubt has to be given to the accused. He prays for allow the revision petition and set aside the impugned judgments.
12. As against this submission, Shri. M. B. Gundawade, learned Additional State Public Prosecutor for the respondent/State with all force submits that, in this
- 10 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 case all the witnesses examined have supported the case of the prosecution with acceptable evidence. There was no proper explanation offered by the accused that, why the driver of the vehicle came on wrong side of the road though sufficient space available to move his vehicle on the left side of the road.
13. Learned Additional State Public Prosecutor would submit that, if the driver had taken the precaution he would have avoided the accident. According to his submission, the Trial Court and the first Appellate Court have rightly concluded that, because of rash and negligent driving of the vehicle by the accused, said accident has taken place.
14. According to the learned Additional State Public Prosecutor, no interference is required into the judgment of conviction and order of sentence passed by both the Courts below.
15. I have given my anxious consideration to the arguments of both the side. Perused the records.
- 11 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
16. In view of the rival submission of both the side, the following points arise for my consideration:
i) Whether the learned Trial Court and the first Appellate Court have wrongly concluded that, the accused has committed the aforesaid offences, without appreciation of the evidence placed on record by the prosecution?
ii) If so, whether the judgment of conviction and order of sentence suffers from material irregularity, capriciousness, perversity and required interference by this Court?
iii) What order?
Point Nos.1 and 2 are discussed together:
17. In the case of present nature, it is the duty of the prosecution to prove the accident, injuries on the inmates of the vehicle, death of the driver of the Maruti Omni, so also the said accident has taken place not because of any mechanical defects.
- 12 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
18. To prove the same, the prosecution relied upon the contents of the complaint at Ex.P.1 and evidence of PW.1 - Salma Shakil Aga. So also prosecution relies upon the scene of offence panchanama marked at Ex.P.13 and would certificates at Ex.P.4 to 9. The prosecution also relies upon the inquest panchanama marked at Ex.P.2, so also P.M. Report market at Ex.P.3.
19. It is further case of the prosecution that, the accident has taken place not because of any mechanical defects in the vehicle. To that effect, it relied upon IMV report marked at Ex.P.10. The cause of death is due to accidental injuries sustained by the deceased. To that effect, Ex.P.3 - P.M. Report produced by the prosecution.
20. On reading of all these documents, they do suggest that, there was an accident on 15.06.2014 at about 6.30 p.m., Kankumbi-Goa road 3 k.ms., away from Kankumbi - Goa main road. The defense has not denied the said accidental injuries on the inmates of the Maruti Omni. Immediately after the accident, the injured were
- 13 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 shifted to Vijaya Hospital, Belagavi. There they gave her complaint / statements before the police. If this evidence is put together, it can be stated that, prosecution is able to establish the accident, injuries to the inmate of the Maruti Omni and death of Sajjad the driver of Maruti Omni. So also, the said accident has taken place not because of any mechanical defects in both the vehicles.
21. Merely because the aforesaid facts are proved by the prosecution, that does not mean that, the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. To prove that, the accident took place because of rash and negligent driving of the vehicle, what are the ingredients to be proved is well established by the judgments of the Hon'ble Apex Court. To bring a case of injuries, homicide under Section 337, 338 and 304A of IPC, the following conditions must be resist:
i) there must be injuries and death of a persons
- 14 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
ii) the accused must have caused the injuries and death
iii) that such act of the accused was rash and negligent driving.
22. The Hon'ble Apex Court in the case of State of Karnataka Vs. Satish1 reported in has held as under:
"4. Merely because the truck was being driven at a "high speed' does not bespeak of either "negligence" or "rashness"
by itself. None of the witnesses examined by the prosecution could given any indication, even approximately, as to what they meant by "high speed". High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "High speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of 1 (1998) 8 SCC 493
- 15 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
23. To ascertain about the rash and negligent driving of the Scorpio vehicle by the accused, we have to read both oral and documentary evidence adduced by the prosecution.
24. PW.1 - the complainant has reiterated the contents of the complaint in her evidence on oath.
- 16 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 According to her evidence, because of rash and negligent driving of the driver of Scorpio vehicle coming from Goa side in a rash and negligent manner and dashing the same to the Maruti Omni, the said accident has taken place.
25. It is elicited in the cross examination of PW.1 that, one Patil wrote the complaint and there was no difficulty for her to right the complaint. She admits that, from Jamboti to Goa the road is in a zigzag manner. Even there are ditches on the road. According to her, only after turtling down of the Maruti Omni, she came to know about the accident. According to her, her Maruti Omni vehicle was moving on the left side of the road and it was driven slowly at that time. She denied all the suggestion directed to her.
26. PW.2 - Afzal Mohammadali Shaikh speaks corroborative evidence with that of the evidence of PW.1 in material particular. According to his evidence, he was moving on the left side of the road and at that time one Scorpio vehicle came from opposite direction and dashed
- 17 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 against the another vehicle. According to him, the said accident has taken place because of mistake of the driver of Scorpio vehicle. He has been directed with severe cross examination, but according to his evidence when there was a curve, the driver took car on the kachcha road and thereafter wanted to take the vehicle on the road, at that time, the said accident has taken place. Except these suggestions, no other evidence is brought on record by the defense.
27. PW.3 - Mahammadsab Kashimsab Soudagar is pancha to Ex.P.13, wherein he identified the accused as the driver of the offending vehicle. According to his evidence, PW.2 put his signature to the panchanama in Khanapur Police Station. Evidence of this witness is quite contrary to the evidence of other witnesses. If such evidence is placed on record, it requires corroboration.
28. PW.4 - Faizan Shakil Aga is the son of PW.1. He to corroborate the evidence of PW.1 in material particular with regard to said accident. According to his
- 18 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 evidence, Scorpio vehicle came and dashed against their vehicle. He too states that, inmates of the Maruti Omni sustained injuries both simple and grievous. According to his evidence, PW.2 was sitting by the side of the driver's seat. He admits that, the said accident has taken place in a local area. He denied all other suggestion.
29. On reading the evidence of this PW.4, it do suggest that, he knew about the said accident and to that extent his evidence can be believed.
30. PW.5 - Alfiya Shakil Aga, is the daughter of PW.1. She speaks in similar terms with that of the evidence of other witnesses. Her evidence is to the effect that the said accident has taken place in a curve road and by the side of the road there are small trees. She denied all other suggestions directed to her.
31. PW.6 - Raju Basavant Mutagekar is the owner of Scorpio vehicle. He is not an eyewitness to the said accident. He states that, the said accident has taken place because of the mistake of Maruti Omni vehicle's driver. He
- 19 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 has been declared hostile witness. Evidently, he is not a eyewitness. He admits that, accused was the driver of the said vehicle when the said accident has taken place. That means, from the evidence of the owner of the vehicle, it is proved that, accused was the driver of said Scorpio vehicle when the said accident has taken place. To that extent, his evidence can be believed.
32. PW.7 - Mahesh Vithal Kathari, PW.8-Raju Narayan Kangralkar and PW.9-Subhash Shrimant Mannurkar are the eyewitnesses as per the case of the prosecution who have witnessed the said accident. They are consistent in their respective evidence that, the said accident has taken place because of rash and negligent driving of the Maruti Omni vehicle by its driver. They have been declared as hostile witnesses by the prosecution, but nothing worth is elicited.
33. It is the consistent defense of the accused that, before the accident the said Maruti Omni vehicle dashed to a road side tree and thereafter, dashed to the opposite
- 20 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 vehicle i.e., Scorpio vehicle. PWs.1 and 2 being the eyewitnesses never depose in their evidence that, said Maruti Omni initially dashed against the road side tree and thereafter, dashed to the Scorpio vehicle. For the first time these three witnesses have stated so. The basis for the statements of these witnesses is not explained by the prosecution. Though they have been declared as hostile witnesses and cross examined at length, nothing is elicited from their mouth. When they cast burden on the Maruti Omni driver who is dead now, no evidentiary value can be attached to such evidence.
34. PW.10 - Praveen Jotilal Patel is not an eyewitness to the said accident. According to him, he has executed the indemnity bond as per Ex.P.11. As he is not an eyewitness to the said accident, therefore, his evidence can be accepted to the extent of he executing indemnity bond.
35. PW.11 - Tukaram Babu Neelgar was the Investigation Officer who has done investigation part and
- 21 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 PW.12 - H. Shekharappa was the charge sheeting officer after investigation.
36. So also PW.13 - Mallappa Bhimappa Holeppagol was the head constable who recorded the complaint allegation and has done part of investigation.
37. On scrupulous reading of the evidence of these witnesses, it do demonstrate that, they have done part of investigation and filed the charge sheet.
38. PW.13 has conducted spot panchanama in the presence of panchas and prepared the sketch. There is no denial of the contents of the same by the defense. That means, the role of these Investigating Officers is not denied by the defense.
39. So far as, sustaining of injuries in the said accident, prosecution relies upon the wound certificates of Salma Shakil Aga, Shakil Aga, Alfiya Aga, Faizan Aga, Farhan Aga and Afzal Shaikh which were marked at Ex.P.4
- 22 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 to 9. The contents of these documents are not denied by the defense.
40. It is also the case of the prosecution that, the said accident has taken place not because of any mechanical defects. To substantiate the same, Ex.P.10 is marked which is the I.M.V. Report. The Senior Inspector of motor vehicles on mechanical examination of both the vehicles opined that, there were no mechanical defects in both the vehicles. Thereby defense also admits the same. Thus, contents of Ex.P.10 are duly proved in accordance with law.
41. Ex.P.13 is the scene of offence panchanama and Ex.P.14 is the photograph of the place of accident, wherein, we find that the said accident has taken place within the jurisdiction of Kankumbi to Belagavi, Chorala road and the place of accident shown as near the kachcha road and towards the northern side at a distance of 60"
and from the western edge towards tar 6" and the road is having 19 feet width. It is the defense of the accused
- 23 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 that, initially the said Maruti Omni dashed to the road side tree thereafter, dashed to a Scorpio vehicle coming from opposite side i.e., from Goa. But the panchanama is silent to that effect. Not even a single suggestion is directed to Investigating Officer suggesting that, there was a initial dashing of the Maruti Omni to the road side tree and thereafter, to the Scorpio vehicle. The suggestion so directed to PW.1 by the defense is denied by the other witnesses. The photographs so produced by the prosecution shows where exactly the said accident has taken place.
42. Ex.P.29 sketch plays an important role to decide the rash and negligent driving of the Scorpio vehicle by the accused. It is not in dispute that, the said accident has taken place in a curve area. On reading the sketch, the said accident has taken place at a distance of 6 feet from the eastern side of the tar road which is having kachcha road also beyond the edge of eastern side tar road and towards western side 13 feet road was very much
- 24 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 available towards Belagavi. The said Scorpio vehicle was coming from Goa side and by crossing the curve it has to go towards Belagavi. Though the driver of the Scorpio vehicle had sufficient 13 feet width road on his left side towards Belagavi, but the said Scorpio went towards the right side which is wrong side of the road and dashed against the Maruti Omni coming from Belagavi towards Goa which was coming from left side of the road. No doubt there exits road side trees. There is no evidence placed on record by the defense that, the said Maruti Omni dashed against the road side tree and thereafter, to the opposite side Scorpio vehicle.
43. Ex.P.9 - sketch stated supra depicts that, how the said accident has taken place. Though, it is suggested to the Investigating Officer that, the said sketch has been prepared according to the whims and fancies of the Investigating Officer, but this suggestion is denied.
44. It is true that, mere driving of the vehicle in high speed is not the criteria to term it as rash and
- 25 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 negligent driving. The roads are meant to drive the vehicles in high speed. In a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rest on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. In this case there is no such statutory exceptions by the accused. The way in which the said accident has taken place as per the material on record, the presumption can be drawn against the accused of he driving the said Scorpio vehicle in a rash and negligent manner and because of that, the said accident has taken place. When accused very much knew, that a road is situated in a zigzag manner that too in a forest area covered with trees on either side of the road, he must have taken all available precautions. Because of the impact of the accident, the said Maruti Omni turtle thrice resulting in injuries to the inmates of the Maruti Omni and because of that injuries so sustained to the driver of the
- 26 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017 Maruti Omni, died. The scene of offence panchanama as well as sketch prove the rash and negligent driving of the Scorpio vehicle by the accused. This rashness on the part of the accused being a wanton act with a knowledge that it is so, and which has caused the injuries to the inmates of the Maruti Omni and death of one person, then it can be stated that, the criminality lies in such a case wherein, the accused ran the risk of doing such an act with recklessness or in difference as to the consequences. It was a gross and culpable negligence on the part of the accused and he failed to exercise the reasonable and proper care and precaution to guard against the injury. It is a pure failure of exercise of care which the circumstances demanded at the time. So therefore, because of non exercising of the proper care and caution by the accused, the said accident has taken place. So therefore, I do not find any factual or legal error committed by the Trial Court and affirmed by the first Appellate Court in finding the accused guilty of committing the aforesaid offences.
- 27 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
45. So far as sentence is concerned the learned Trial Court has rightly exercised its discretion and sentenced the accused to undergo SI for six months and pay fine as noted above for the offence under Section 304A IPC. So far as sentencing the accused for the offence under Section 279 of IPC is concerned, when accused is convicted for the offence under Section 304A of IPC the question of sentencing the accused for the offence under Section 279 of IPC do not arise at all as minor offence merges with the main offence. So imposing of sentence for the offence under Section 279 of IPC is to be set aside. So far as other sentence so passed against accused is concerned, they have to be maintained. Hence, points for consideration are answered in the negative. Accordingly, the revision petition filed by the petitioner/accused is to be allowed in part.
- 28 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
46. Resultantly, I pass the following:
ORDER
(i) Criminal Revision Petition filed by the petitioner-accused is hereby allowed in part.
(ii) So far as imposition of sentence for the offence under Section 279 of IPC is concerned, is hereby set aside.
(iii) So far as imposition of sentence for the offences under Sections 337, 338 and 304A of IPC and Section 134 read with Section 187 of M.V. Act is concerned, they are maintained by confirming the same.
(iv) The accused shall surrender before the Trial Court within one month from today to undergo the sentence.
(v) The fine amount if paid in respect of offence under Section 279 of IPC, the same is to be refunded to the accused digitally.
(vi) The operative portion of this order is directed to be communicated through Additional Registrar (Judicial) to the concerned Trial Court by mail, forthwith.
- 29 -
NC: 2024:KHC-D:5850 CRL.RP No. 100179 of 2017
(vii) Send back the Trial Court records as well as the first Appellate Court records along with copy of this order for compliance.
Sd/-
JUDGE SMM LIST NO.: 1 SL NO.: 2