Karnataka High Court
Sri Saleem vs Devaraja Traffic Zone Mysore on 3 June, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.663 OF 2011
BETWEEN:
Sri. Saleem
S/o. Ameer Khan
Age 23 years
Ro. No.241, 1st Cross,
Shanthinagar,
Mysore.
..Petitioner
(By Smt.K.M. Archana, Amicus Curiae)
AND:
Devaraja Traffic Zone Mysore
Represented by State Public
Prosecutor, Dr. Ambedkar Veedhi,
High Court of Karnataka,
At Bangalore.
.. Respondent
(By Sri. Nageshwarappa, High Court Govt. Pleader)
****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973, praying
to call for the records, set aside the judgment and order dated
17-03-2011 passed by the 4th Additional District and Sessions
Judge at Mysore in Criminal Appeal No.84/2010 and also set aside
Crl.R.P.No.663/2011
2
the judgment and order dated 25.5.2010 passed by the Judicial
Magistrate First Class-III at Mysore in C.C.No.1090/2008 and
consequently acquit the petitioner/accused, in the interest of justice
and equity.
This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
01-06-2022, coming on for pronouncement of Orders this day, the
Court made the following:
ORDER
The present petitioner was accused No.1 in C.C.No.1090/2008, in the Court of the learned Judicial Magistrate First Class-III, Mysore, (hereinafter for brevity referred to as "the Trial Court"), who, by the judgment of conviction and order on sentence dated 25-05-2010 of the Trial Court, was convicted for the offences punishable under Sections 279, 304A of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and Section 3(1) read with Section 181 of the Motor Vehicles Act, (hereinafter for brevity referred to as "the M.V.Act") and was sentenced accordingly.
Crl.R.P.No.663/20113
Aggrieved by the same, the accused No.1 (petitioner herein) preferred an appeal in Criminal Appeal No.84/2010, in the Court of the learned IV Additional District and Sessions Judge, at Mysore (hereinafter for brevity referred to as the "the first appellate Court"), which after hearing both side, dismissed the appeal, confirming the impugned judgment of conviction and order on sentence passed by the Trial Court. It is challenging the judgments passed by both the Trial Court as well the first appellate Court, the accused No.1/revision petitioner has preferred the present revision petition.
2. The summary of the case of the prosecution is that, on the date 12-05-2008 at about 2:00 p.m. on T. Narasipura Road, near Chikkalli village within the limits of the complainant Police Station, while one Sri.Mahesh, aged about 25 years was proceeding on his Hero Honda Motor Cycle bearing Registration No.KA-09/EK-2220 from T. Narasipura towards Mysore, the accused, by driving his motor vehicle - Lorry Crl.R.P.No.663/2011 4 bearing Registration No.KA-12/5252 from the opposite direction, in high speed and in a rash and negligent manner came towards the right side of the road and dashed to the motor cycle of the said Mahesh, causing the road traffic accident, due to which, the said Mahesh sustained injuries and was shifted to J.S.S. Hospital for treatment wherein he succumbed to the injuries on the date 13-05-2008 at about 12:00 in the night. The accused No.2, being the owner of the Lorry, knowing fully well that the accused No.1 was not possessing a valid Driving Licence had allowed him to drive the said vehicle. Accordingly, a charge sheet came to be filed for the offences punishable under Sections 279, 304-A of IPC and Section 3(1) read with Section 181 of the M.V. Act against accused No.1 (petitioner herein) and for the offence punishable under Section 5(1) read with Section 180 of the M.V.Act against accused No.2.
3. The accused persons appeared in the Trial Court and contested the matter through their counsel. The accused Crl.R.P.No.663/2011 5 pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all six (6) witnesses from PW-1 to PW-6 and got marked documents from Exs.P-1 to P-10(a). However, neither any witness was examined nor any documents were got marked on behalf of the accused.
4. The respondent - State is being represented by the learned High Court Government Pleader.
5. The Trial Court and the first appellate Court's records were called for and the same are placed before this Court.
6. In view of the fact that the learned counsel for the petitioner herein (accused No.1) failed to appear before this Court on several dates of hearing and also considering the fact that this revision petition is more than a decade old, this Court by its order dated 25-05-2022, appointed learned counsel - Smt. Archana K.M., as the Amicus Curiae for the petitioner (accused No.1). Crl.R.P.No.663/2011 6
7. Learned Amicus Curiae for accused No.1/revision petitioner and learned High Court Government Pleader for the respondent - State are physically present in the Court.
8. Perused the materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and first appellate Court's records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
10. After hearing the learned Amicus Curiae for the petitioner and learned High Court Government Pleader for the respondent -State, the only point that arise for my consideration in this revision petition is:
Whether the concurrent finding recorded by the Trial Court as well the first appellate Court that, the accused No.1 (petitioner herein) committed the alleged offences punishable under Sections 279 and 304A of Crl.R.P.No.663/2011 7 the Indian Penal Code, 1860, and Section 3(1) read with Section 181 of the Motor Vehicles Act, warrants any interference at the hands of this Court?
11. Learned Amicus Curiae for accused No.1/revision petitioner submits that both the Trial Court as well as the first appellate Court have not appreciated the evidence in their proper perspective. They have failed to notice that the deceased was also riding the motor cycle, as such, the accident might have occurred solely due to the fault of the deceased himself.
In her support, she relied upon a judgment of the Hon'ble Apex Court in the case of Bhalachandra Waman Pathe Vs. The State of Maharashtra reported in MANU/SC/0410/1967.
12. Per contra, the learned High Court Government Pleader for the respondent-State submitted that it is after proper appreciation of the evidence placed before them, both Crl.R.P.No.663/2011 8 the Trial Court as well the first appellate Court since have held the accused guilty of the alleged offences, the same do not warrant any interference at the hands of this Court.
13. The petitioner herein (accused No.1) does not deny or dispute the occurrence of the road traffic accident on the date, time and place alleged in the charge sheet and also the involvement of the alleged vehicles. However, his only contention is that, the prosecution has failed to prove his alleged rash and negligent driving of the Lorry. It is his further contention that the evidence of PW-4 does not inspire confidence to believe him to be an eye witness to the incident since he says that it is after the accident he has seen it.
14. PW-1 (CW-1) - Shivaraju is the complainant in the case, who, admittedly, is not an eye witness to the incident. It is after coming to know about the accident, he has lodged the complaint as per Ex.P-1. However, he has stated that the deceased who was his maternal uncle was in possession of the Crl.R.P.No.663/2011 9 motor cycle bearing registration No.KA-09/EK-2220. He has also spoken about the spot of the accident. He was not cross- examined from the accused's side. Thus, the undisputed evidence of PW-1 would go to show that, his maternal uncle Sri. Mahesh died due to the injuries sustained by him in the road traffic accident as alleged in the charge sheet.
15. PW-2 (CW-4) - Raju and PW-4 (CW-5) -
Mahadevaswamy were examined by the prosecution showing them as eye witnesses to the road traffic accident. Both these witnesses, in their evidence, have stated that they have witnessed the occurrence of the road traffic accident.
PW-2 has stated that, at the time of the accident, he was moving on the same road where the accident took place, as a pillion rider in a motor cycle and that the deceased was going ahead of them on the road on a motor cycle on the extreme left side and it was at that time, the offending vehicle (Lorry) coming from the opposite side, being driven by its driver in a Crl.R.P.No.663/2011 10 rash and negligent manner, dashed to the motor cycle of the deceased, due to which, the deceased sustained injuries. The driver drove the Lorry for a small distance thereafter and stopped the Lorry and after being there for sometime, seeing the people gathering in the place, ran away from the place. Stating that at that time, he has seen the driver of the offending Lorry, the witness has identified the accused No.1 in the Court as the driver of the offending vehicle. He has further stated that after the accident, he, along with others have shifted the injured to J.S.S. Hospital and got him admitted there. The witness has also stated that on the same day in the evening, he proceeded to the spot along with the Police and shown the spot of the accident to the Police. Thereafter the Police drew a scene of offence panchanama as per Ex.P-2. Apart from identifying the said scene of offence panchanama (Ex.P-2), the witness has also stated that both the Lorry and the motor cycle were still there in the spot while the Police were drawing the said panchanama. Crl.R.P.No.663/2011 11
PW-4 has stated that at the time of accident, he was also going on the same road along with CW-4 (PW-2) on a motor cycle and has seen the occurrence of the accident. He has also described the occurrence of the accident on the same lines as has been narrated by PW-2 in his evidence. He too has stated that, while the deceased was going ahead of them on another motor cycle, the offending vehicle which is Lorry which was being driven by the accused No.1 came from opposite direction and dashed to the two wheeler of the deceased, due to which, the deceased sustained injuries and died in the Hospital on the next day.
Both PW-2 and PW-4 even in their cross-examination from the accused's side adhered to their original version. Their evidence in the examination-in-chief could not be shaken in their cross-examination. Even though PW-4 in his cross- examination has stated that he came to know about the accident after hearing the noise of the dashing of the Lorry, Crl.R.P.No.663/2011 12 but by that itself it cannot be inferred that he has not seen the accident. Generally, nobody will be anticipating any accident and keeping a watch on the occurrence of the accident. It is only at the time when the accident would be occurring or immediately after the accident by hearing some unusual noise or some such disturbance, anybody would immediately give attention to the said direction of the noise and pursue the details of the incident. Therefore, the argument of the learned Amicus Curiae for the petitioner that the evidence of PW-4 does not inspire confidence to believe him as an eye witness, is not acceptable.
Thus, it is clear from the evidence of PW-2 and PW-4 that it was accused No.1 and he alone who has caused the accident.
16. PW-3 (CW-2) - Suresha has spoken about the Investigating Officer drawing the scene of offence panchanama as per Ex.P-2 in his presence. The evidence of Crl.R.P.No.663/2011 13 PW-3 corroborates the evidence of PW-2 that he had shown the spot to the Police where the scene of offence panchanama was drawn. Thus, the evidence of PW-2 and PW-3 corroborates the evidence of PW-5 the first Investigating Officer about PW-5 drawing the scene of offence panchanama as per Ex.P-2.
17. The evidence of PW-6, another Investigating Officer supported by the un-denied and un-disputed documentary evidence like the inquest panchanama at Ex.P-3, Post-Mortem Report at Ex.P-4, Wound Certificate at Ex.P-5 and motor vehicle Inspection Report at Ex.P-6 further corroborates that it is the offending vehicle, which is Lorry bearing registration No.KA-12/5252 which was being driven by the accused has caused the accident in question and that in the said accident, the deceased Mahesh sustained injuries as shown in the Wound Certificate at Ex.P-5 and succumbed to the injuries while under treatment on the next day in the Hospital. The Crl.R.P.No.663/2011 14 Doctor who conducted autopsy on the deceased Mahesh has opined that the accident was due to shock and haemorrhage as a result of multiple injuries sustained as a result of the road traffic accident. The IMV Report at Ex.P-6 mentions that the Motor Vehicles Inspector, after inspecting the vehicle involved in the accident has opined that the accident was not due to any mechanical defect of the vehicle.
18. Contending that the act of the accused No.1 in driving the offending vehicle (Lorry) would not constitute a rash and negligent driving, learned Amicus Curiae for the petitioner (accused No.1) relied upon a decision of the Hon'ble Apex Court in Bhalachandra Waman Pathe's case (supra), wherein at paragraph 11, the Hon'ble Apex Court was pleased to observe as follows:
"11. An offence under Section 304-A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Straight,J. in Idu Beg's case I.L.R.3 All 776 Crl.R.P.No.663/2011 15 the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghu- shanam's case 7 Mad.H.C.R. 119, a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The Crl.R.P.No.663/2011 16 imputability arises from the neglect of the civic duty of circumspection."
In the instant case, both PW-2 and PW-4, claiming themselves to be the eye witnesses, as analysed above, have categorically stated that the offending vehicle, i.e. the Lorry was being driven by its driver in a high speed, and it dashed against the rider of the Scooter, i.e. the deceased Mahesh, which rider was going on the left side of the road. According to the witness, the offending vehicle was coming from the opposite direction. Thus, the very act of the driver, firstly driving the vehicle in a high speed, secondly going to his extreme right and dashing to the motor cycle which was coming from the opposite direction on the left side would itself go to show that the driver of the offending vehicle was reckless or indifferent as to the consequences and had not taken reasonable and proper care and also was least bothered about the safety of the other users of the road. Further, the accident has not occurred due to any mechanical defect with Crl.R.P.No.663/2011 17 the offending vehicle. Thus, even according to the principle laid down by the Hon'ble Apex Court in Bhalachandra Waman Pathe's case (supra), the act of the accused No.1 (petitioner herein) as a driver in the instant case amounts to both a rash act and also a negligent act.
19. As analysed above, the evidence of PW-2 and PW-4, the eye witnesses to the incident would further go to show that the death of deceased Mahesh was due to the alleged rash and negligent driving of the vehicle by the present petitioner/accused No.1, resulting in the road traffic accident in question. The rough sketch prepared by the Investigating Officer which is at Ex.P-10 also would go to show that, the Lorry has come to its extreme right side and dashed to the motor cycle which was coming from the opposite direction on its extreme left side. Thus, the evidence of PW-2 and PW-4 is further corroborated by the scene of offence panchanama and Ex.P-10 the sketch of the accident, which Crl.R.P.No.663/2011 18 shows that the driver of the Lorry, having no valid reason to come to the extreme right side of the road in high speed, has come to his extreme right side and dashed to the motor cycle on which the deceased Mahesh was a rider. Thus, it is established beyond all reasonable doubts that, it was the accused and accused No.1 alone who has caused the road traffic accident as alleged in the charge sheet and caused the death of Mahesh in the said road traffic by his rash and negligent driving of the Lorry. The evidence of the Investigating Officer i.e. PW-6 would also go to show that the driver of the alleged offending vehicle did not possess a valid Driving Licence to drive the Lorry, at the time of accident. The said evidence of the Investigating Officer on the said aspect has remained un-denied.
20. It is considering all these aspects, since the Trial Court has held the accused No.1 guilty of the offences punishable under Sections 279 and 304A of IPC and Section Crl.R.P.No.663/2011 19 3(1) read with Section 181 of the M.V. Act, and the first appellate Court also after giving a re-visit to the evidence and the materials placed before it has confirmed the judgment of conviction and order on sentence passed by the Trial Court, I do not find any perversity, illegality or impropriety, warranting any interference at the hands of this Court.
21. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt against the accused. It must not be either exorbitant or for name sake.
22. In the instant case, the present petitioner (accused No.1) was sentenced to pay a fine of `1,000/- for the offence punishable under Section 279 of IPC. In default of payment of fine amount, he was sentenced to undergo simple imprisonment for 30 days. He was further sentenced to undergo simple imprisonment for one year and to pay a fine of `1,000/- for the offence punishable under Section 304A of IPC. Crl.R.P.No.663/2011 20 In default of payment of fine amount, accused No.1 was sentenced to under go simple imprisonment for 15 days. He was also sentenced to pay a fine of `500/- for the offence punishable under Section 3(1) read with Section 181 of the Motor Vehicles Act. In default of payment of fine amount, he was sentenced to undergo simple imprisonment for 15 days. Since in the light of the facts and circumstances of the case, the sentence ordered by the Trial Court and confirmed by the first appellate Court being proportionate to the gravity of the proven guilt against the accused No.1, I do not find any reason even to modify the order on sentence also.
Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition stands dismissed as devoid of any merit.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the petitioner - Smt. Archana K.M., Crl.R.P.No.663/2011 21 recommends honorarium of a sum of not less than `4,000/- to her, payable to her by the Registry.
Registry to transmit a copy of this order to both the Trial Court and also the first appellate Court along with their respective records without delay.
Sd/-
JUDGE BMV*