Karnataka High Court
State Of Karnataka vs Putta Swamy S/O.Lakshi Gouda on 2 December, 2020
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02 N D DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL NO.100135/2014
BETWEEN
State of Karnataka
Represented by the
Police Sub-Inspector,
Sirigeri Police Station
Through the Addl.State Public Prosecutor,
Advocate General Office,
High Court of Karnataka Dharwad Bench.
... Appellant
(By Shri Venkat Satyanarayana A., HCGP)
AND
Putta Swamy S/o Lakshi Gouda,
Age: 58 years, Lorry Driver,
R/o Kenchanahalli village,
Hassan taluk and district.
... Respondent
(By Shri R.H.Angadi, Advocate)
This Criminal Appeal is filed under Secti on 378(1)
and (3) of Cr.P.C. seeking to set aside the judgment and
order of acquittal passed in C.C.No.523/2012, dated
02.06.2014 by the Judicial Magistrate First Class,
Siruguppa and to convict the respondent/accused for the
offences punishable under Secti on 279 and 304A of I.P.C.
and under Section 183 of I.M.V. Act.
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This appeal being reserved for judgment on
04.11.2020, this day, the Court, delivered the following:
JUDGMENT
This appeal is preferred by the appellant challenging the judgment dated 02.06.2014 passed by the J.M.F.C. at Siruguppa in C.C.No.523/2012 thereby acquitting the accused for the offences punishable under Section 279, 304A of the Indian Penal Code ('IPC') read with Section 183 of the Motor Vehicles Act ('M.V.Act').
2. The brief facts leading to filing of this appeal are that a complaint came to be filed on 18.11.2011 at 1.00 p.m. by one Soppinamath Shambulingayya Swamy stating that he along with others visited Bengaluru on 16.11.2011 in a Tempo Trax bearing registration No.KA-36/9362. They started their return journey to Maski, on 17.11.2011. At about 1.30 a.m. they stopped their vehicle by the side of road, near a tea stall in Srinivas Camp. While they were having tea near tea stall, his uncle 3 Gurubasaiah Swamy was having tea standing behind the Tempo Trax. At that time, a Lorry bearing registration No.KA-12/A-121 coming from Siruguppa and heading towards Ballari, dashed against front side of the Trax. Due to the impact, the Trax moved back and hit Gurubasaiah Swamy inflicting severe injuries to his chest, right limbs and waist. Immediately injured was taken to Government Hospital, Siruguppa. The accused by his rash and negligent driving had committed the offences punishable under Section 279, 304A of I.P.C.
3. Based on the complaint, Crime No.95/2011 was registered at Siruguppa Police Station. After investigation charge sheet was filed for offences punishable under Section 279 and 337 of I.P.C. r/w Section 183 of the M.V. Act. Subsequently, the injured Gurubasaiah Swamy died during treatment at KIMS Hubballi. Consequently, the charge was revised to Section 304A of I.P.C. As accused pleading not guilty, matter was set for trial. The prosecution 4 examined fifteen witnesses as PWs.1 to 15 and marked Exs.P1 to P13. Thereafter the entire incriminating material was explained to the accused which he denied. His statement under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was recorded. The accused did not choose to lead defence evidence.
4. Based on available material, trial Court proceeded to framed following point for consideration:
1. Whether prosecution proves beyond reasonable doubt that accused committed offences punishable U/sec.279, 304A of IPC r/w Section 183 of M.V.Act?
2. What order?
5. After answering Point No.1 in the negative, the trial Court acquitted the accused. Challenging the acquittal, the State is in appeal.
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6. Sri Venkat Satyanarayana A., learned High Court Government Pleader (HCGP) submitted that the accident in question occurred on 18.11.2011, at about 1.30 a.m. on State Highway No.19, when Gurubasaiah Swamy one of the passengers of Tempo Trax bearing registration No.KA-36/9362 was having tea standing behind the Tempo Trax. It was parked on kachcha road, near Tea Stall in Srinivas Camp. At that time, Lorry driven by accused dashed against front side of the Trax. The Tempo Trax, moved back and dashed against Gurubasaiah Swamy, injuring him. He was taken to Government Hospital, Siruguppa in 108 ambulance and later to VIMS Hospital, Ballari for higher treatment. One of the passengers, present at the time of accident filed complaint.
7. The injured however died later during treatment at private hospital in Hubballi. His postmortem was conducted at KIMS, Hubballi. 6
8. The Tempo Trax was examined by the Motor Vehicle Inspector on 19.11.2011 at 2.30 p.m. The following damages were found:
1. Front right side bumper damaged;
2. Front right side engine bonnet damaged;
3. Radiator damaged;
4. Front right side headlight and indicator glass broken;
9. The Lorry was examined on 24.11.2011 at 2.50 p.m. The following damages were noted:
1. Front right bumper bend;
2. Front right headlight assembly damaged;
10. The Motor Vehicles Inspector gave report that brake system of both vehicles were in order and that the accident was not due to any mechanical defect.
11. A panchanama of the accident spot was drawn between 4.00 to 5.00 p.m. on 18.11.2011. The accident spot was identified on kachcha road on the 7 western side of Siruguppa-Ballari State Highway. The prosecution witnesses namely PW1, PW5, PW6, PW7, the eyewitnesses consistently stated that accused drove his Lorry in high speed in rash and negligent manner and dashed against Tempo Trax parked on kachcha road, resulting in death of Gurubasaiah Swamy.
12. In addition to eyewitnesses, prosecution also examined pancha witnesses for the spot mahazar, seizure mahazar and inquest mahazar and also the Doctor who conducted postmortem of deceased, the Motor Vehicles Inspector who examined the vehicles and the Investigating Officer who conducted investigation and filed charge sheet.
13. From the above, prosecution proved the offences against accused. But trial Court on a perverse appreciation acquitted the accused. The reasons assigned by trial Court were that witnesses merely stated that accused was driving Lorry in high 8 speed and not depose about and negligent driving.
Referring to admission of PW1 that there were speed breakers near the place of accident, the trial Court held that Lorry could not be driven at high speed and therefore that evidence of PW1 was not reliable. The trial Court also brushed aside evidence of PW5 on the ground that he did not state about rash and negligent driving by accused. Even evidence of PW7 is also treated likewise. Referring to the statement of PW9, the driver of the Tempo Trax that he had switched on the indicator lights at the time of parking his Tempo Trax, which was not corroborated by other witnesses, his evidence was discarded. The trial Court disbelieved evidence of PW12 on the ground that he did not state that he visited the accident spot for drawing the hand sketch and concluded that the hand sketch-Ex.P13 was doubtful. PW12 had only stated that he visited the accident spot at the time of drawing of panchanama-Ex.P2 but was silent when he deposed regarding the accident spot sketch. 9
14. But the main reason assigned by trial Court for acquittal was the fact that deceased was having tea, standing behind the Trax which would be in contravention of motor vehicle rules and indicative of his own negligence!
15. The learned HCGP further submitted that in addition to oral and documentary evidence even the absence of any explanation by accused at the time of recording his statement recorded under Section 313 of Cr.P.C. was yet another link in the chain of events of the prosecution case. On the above grounds prayed for setting aside the acquittal and for convicting the accused for the offences charged against him.
16. On the other hand, learned counsel for accused Sri R.H.Angadi submitted that prosecution miserably failed to establish any ingredients for offences alleged against accused. The material ingredient required to be proved by prosecution beyond all reasonable doubt for offences under 10 Section 279 and 304A is that of rash and negligence on the part of accused so as to endanger human life, which is totally missing in this case. It was submitted that the witnesses examined merely stated that accused was driving the Lorry in high speed, which stood diluted by their admission that there were speed breakers near accident spot. None of them stated about any specific act or omission on the part of accused that would support the charge of rash and negligent driving by accused. It was also submitted that deceased Gurubasaiah Swamy was standing behind Tempo Trax and would not be visible to accused. Therefore accused could not be charged or convicted for offence under Section 304A of IPC, especially when injuries suffered by Gurubasaiah Swamy was not due to direct contact with Lorry.
17. I have heard learned counsel, perused the impugned judgment and record.
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18. From the above, it is undisputed that at about 1.30 a.m. on 18.11.2011, there was an accident between Lorry driven by accused and Tempo Trax. It is not in dispute that Gurubasaiah Swamy was drinking tea standing behind the Tempo Trax at the time of accident and that the Tempo Trax moved back after collision and dashed against Gurubasaiah Swamy. The death of Gurubasaiah Swamy later during treatment is due to injuries suffered in the accident. It is also not in dispute that the Tempo Trax was parked on kachcha road, by the side of State Highway No.19 and the Lorry came from opposite side and dashed against Tempo Trax. The dispute however is whether the accident occurred due to rash and negligent driving of Lorry by accused.
19. In the complaint marked as Ex.P1, it is stated that Tempo Trax was parked by the side of road, for the passengers to have tea in nearby tea stall. PW1 in his evidence has stated that vehicle was parked by the side of road and his uncle Gurubasaiah 12 Swamy was having tea standing behind the Trax, while others were having it in the tea stall. The Tempo Trax was parked on its left side and it was going from Ballary towards Siruguppa. The Lorry came from Siruguppa and was going towards Ballary and dashed against front right side of the trax. The point of impact can be gauged from Motor Vehicle Inspector's report Ex.P9. Thus it is established that the accident occurred when the Lorry driven by accused went to extreme right side and dashed against Tempo Trax parked on kachcha road by the side of the road. Location of accident spot is established both by accident spot mahazar Ex.P2 and rough sketch Ex.P13. The evidence of eyewitnesses namely PW1, PW5 and PW9 is consistent to this extent. The only elicitation from said witnesses is regarding presence of speed breakers near accident spot and nala beside Tempo Trax, based on which it is sought to be argued that Lorry was not driven in high speed and in rash and negligent manner so as to 13 endanger human life. But the accident spot is on kachcha road. The high speed of the Lorry can be gauged by the severity of injuries caused to deceased Gurubasaiah Swamy, who was hit, not directly by the Lorry, but by the Tempo Trax after the Lorry dashed against it! The fact that the Lorry went to its extreme right side and dashed against the Tempo Trax undoubtedly establishes driving of Lorry in rash and negligent manner so as to endanger human life. It calls for invocation of the doctrine of "res ipsa locitur". The Hon'ble Supreme Court in the case of Ravi Kapur V/s State of Rajasthan reported in 2012 (9) SCC 284 has held that the doctrine can be applied even to criminal cases. Though learned counsel for accused strenuously contended that none of the eyewitnesses saw the accident, but it is undeniable that they were present at the accident spot and have stated about the location of accident spot, the Lorry causing the accident, and the accused driving the Lorry at the time of accident. Their 14 evidence even if considered circumstantial would nevertheless lead to the same conclusion, especially in view of failure on part of accused failing to offer explanation in his statement recorded under Section 313 of Cr.P.C. or by leading defence evidence, which circumstances support invocation of Section 106 of Evidence Act for drawing adverse inference against the accused. I am supported by the decision of the Hon'ble Supreme Court in the case of Sahadevan @ Sagadevan V/s State represented by Inspector of Police, Chennai, 2003(1) SCC 534; Prithipal Singh V/s State of Punjab, 2012(1) SCC 10 and Neelkumar V/s State of Haryana, reported in 2012(5) SCC 766.
20. As stated above, the accident spot mahazar and seizure panchanama is Ex.P2. It is spoken to by PW1 and PW12 and the ASI-PW13, incorrectly written as PW12. Though PW12 admits that he signed Ex.P2 in Police Station, evidence of PW1 and PW13-ASI sufficiently proves Ex.P2.
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21. Insofar as Ex.P13 rough sketch prepared by PW13-ASI is concerned, it is seen that during cross- examination, there is not even a suggestion that he did not visit the accident spot at the time of drawing Ex.P13. In fact the said witness has clearly stated during examination-in-chief that at the time of drawing panchanama as per Ex.P2, he has drawn Ex.P13 rough sketch as per the accident spot shown by the complainant. Hence Ex.P13 remains a valid piece of evidence and its contents clearly implicate the accused for the offences.
22. Mere argument that prosecution has not examined any independent witnesses such as the tea stall owner, or failure to notice any broken glass or parts of the vehicles in Ex.P2 panchanama or failure to collect them as M.Os. may at the most hint at omissions in investigation. But the same are not material omissions and do not overturn substantial evidence available to support the prosecution case. 16
23. The ingredients necessary to constitute the offences under Section 279 namely driving any vehicle, on public road, in rash and negligent manner so as to endanger human life or likely to cause injury are all established beyond reasonable doubt.
24. Likewise it is established that the rash and negligent act of driving Lorry by accused, on the wrong side and dashing against the parked Tempo Trax leading to death of Gurubasaiah Swamy stands established as per evidence of PW1, PW2, PW4, PW5, PW9, PW11 and PW13 (ASI). Hence, the offence under Section 304A stands established. The reasons assigned by the trial Court in this regard are not only contrary to evidence on record but also perverse.
25. Insofar as Section 183 of the M.V. Act, sub- section (1) stipulates driving of a motor vehicle in contravention of speed limits refer to in Section 112 of the Act. Section 112 states that no person shall drive motor vehicle in any public place at a speed exceeding 17 the maximum speed or below the minimum speed fixed for the vehicle under this Act. But nowhere in the charge sheet or the evidence, the prosecution has mentioned about the speed limit fixed for the Lorry driven by accused. Further, sub-section (3) of Section 183 stipulates that no person shall be convicted of an offence punishable under sub-section (1) solely on the evidence of one witness to the effect that in the opinion of the witness, such person was driving at a speed which was unlawful, unless that opinion is shown to be based on an estimate obtained by the use of some mechanical device. Since the case of the prosecution is lacking in this regard, the judgment of the trial Court acquitting accused for offence under Section 183 of M.V. Act does not call for any interference. Consequently, the impugned judgment insofar as acquitting the accused for offence under Section 183 of the M.V. Act stands affirmed. But this does not in any manner overturned conclusions arrived at insofar as offences under other provisions.
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26. Hence, I proceed to pass the following:
ORDER Accused is held guilty of the offences punishable under Section 279 and 304A of the Indian Penal Code, 1860.
However acquittal of accused for
offence punishable under Section 183 of
Indian Motor Vehicles Act, 1989 is affirmed.
ORDER ON SENTENCE Learned ASPP submitted that the prosecution has duly established rash and negligent driving of Lorry by accused, causing the accident leading to death of Gurubasaiah Swamy. The accident occurred when lorry driven by accused has cut cross the road and dashed against the Tempo Trax parked on kachcha road on the other side of road. The fact that accused was driving a heavy goods vehicle and failed to take due care and caution at the time of driving calls for imposition of a severe and deterrent sentence. 19
Learned counsel relied upon judgment of the Supreme Court reported in State of Karnataka V/s. Sharanabasappa reported in AIR 2002 SC 1529 in support of a proposition that a minimum sentence of 6 months is to be imposed.
On the other hand, learned counsel for the respondent-accused submitted that accused was aged about 56 years as on date of accident i.e. on 16.11.2011. He is about 66 years of age as on today. He is also suffering from old age ailments and is required to take care of his old age parents and hence sought for imposition of minimum sentence of fine.
Learned counsel further submitted that the good conduct of the accused as he did not run away from the accident spot, is required to be considered as a factor for imposition of a lesser sentence.
Having heard the learned counsel, I feel it would be just and proper to impose a fine of Rs.1,000/- for 20 the offence under Section 279 and in default, simple imprisonment for a period of 15 days.
The accused is sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.2000/- for the offence under Section 304A and in default of payment of fine, he shall undergo further simple imprisonment for 15 days.
Both the punishments shall run concurrently. The trial Court shall secure the presence of the accused for the purpose of serving the sentence.
SD/-
JUDGE CLK