Karnataka High Court
Aslam Pasha vs The State Of Karnataka on 21 December, 2021
Author: V.Srishananda
Bench: V.Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE V.SRISHANANDA
CRL.R.P.NO.102/2012
BETWEEN:
ASLAM PASHA
S/O ALTHAFA AHMED
AGED ABOUT 41 YEARS
PROP., SMILE SELL POINT
K.R.PURAM ROAD
SHIVAMOGGA CITY ... PETITIONER
(BY SRI B.S. PRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY TRAFFIC SOUTH POLICE STATION
SHIVAMOGGA. ... RESPONDENT
(BY SRI V.S. VINAYAKA, HCGP)
THIS CRL.R.P. IS FILED UNDER SECTIONS 397 AND
401 OF CR.PC PRAYING TO SET ASIDE THE ORDER DATED
17.12.2011 PASSED BY THE SEESSIONS JUDGE FTC-I,
SHIVAMOGGA IN CRIMINAL APPEAL NO.109/2010 AND
ORDER DATED 18.09.2010 PASSED BY THE II ADDL. CIVIL
JUDGE AND JMFC, SHIVAMOGGA IN C.C.NO.969/2009.
THIS CRL.R.P. COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
2
ORDER
Heard Sri B.S. Prasad, learned counsel for the revision petitioner and Sri V.S. Vinayaka, learned High Court Government Pleader for the respondent-State and perused the records.
2. This revision petition is filed by the petitioner-accused to set aside the order of conviction and sentence dated 17.12.2011 passed by the Sessions Judge, I Fast Track Court at Shivamogga in Crl.A.No.109/2010 and the judgment and order dated 18.09.2010 passed by the II Additional Civil Judge and JMFC at Shivamogga in C.C.No.969/2009, whereby the accused was convicted for the offence punishable under Section 279, 338 and 304(A) of IPC and ordered to undergo rigorous imprisonment for a period of 6 months and to pay fine of Rs.2,000/- for the offence punishable under Section 304(A) of IPC with default sentence and to pay fine of Rs.1,000/- for the offence punishable under Section 338 of IPC with 3 default sentence and further to pay fine of Rs.750/- for the offence punishable under Section 279 of IPC with default sentence.
3. Brief facts of the case are as under:
A complaint came to be lodged contending that on 06.06.2009, when the deceased Nazeer Ahamed being a pedestrian was moving by walk in front of the house of Prakash Kamath near Patel Provision Stores, 3rd Cross, Millaghatta at about 5.00 p.m., the accused being the rider of the motor cycle bearing No.KA-14- W-7165 came in a rash and negligent manner and dashed against Nazeer Ahamed and he fell down and sustained fatal injuries. Thereafter, he was shifted to the Hospital and en-route, he succumbed to the injuries.
4. The jurisdictional police namely, Traffic Police, Shivamogga have registered a case against the accused for the offence punishable under Sections 4 279, 338 and 304(A) of IPC. In the complaint, it is also mentioned that, pillion rider has sustained blood injuries. The presence of the accused was secured and the accused pleaded not guilty. The police, after thorough investigation laid the charge sheet against the accused for the aforesaid offences.
5. In order to prove the case of the prosecution, the prosecution examined in all six witnesses as P.Ws.1 to 6 and relied upon documentary evidence, which were exhibited and marked as Exs.P1 to P10. In the prosecution evidence, the complainant and other witnesses have supported the case of the prosecution in toto.
6. On conclusion of the prosecution evidence, the statement of the accused was recorded as contemplated under Section 313 of Cr.P.C., wherein the accused has denied all the incriminatory circumstances. However, the accused failed to place 5 his version about the incident on record by examining himself or by filing any written submissions as is contemplated under Section 313(5) of the Cr.P.C. Thereafterwards, the learned Trial Magistrate heard the parties in detail and after considering both oral and documentary evidence placed on record, taking note of the fact that the pillion rider also sustained blood injuries in the accident and nothing had been lost sight, committed the accused for the offence punishable under sections 279, 338 and 304(A) of IPC and passed the sentence as referred supra.
7. Being aggrieved by the same, the accused has preferred the appeal in Crl.A.No.109/2010 on the file of the Sessions Judge, I Fast Track Court, Shivamogga. Learned Sessions Judge in the First Appellate Court, after securing the records and hearing the parties in detail, by judgment dated 17.12.2011 dismissed the appeal of the accused, whereby the order of the learned Trial Magistrate 6 stood confirmed. Being aggrieved by the same, the revision petitioner has preferred this revision petition.
8. In the revision Petition, the following grounds are raised by the revision petitioner:
"1) That the impugned judgment and order passed by the Courts below are illegal, invalid and contrary to law and evidence on record.
2) That the judgment of the courts below is illegal, arbitrary, capricious and opposed to sound principles of law.
3) That the courts below have committed serious error in convicting the petitioner when the prosecution has failed to prove the guilt of the petitioner.
4) That the courts below have not
considered the facts and
circumstances of the case in proper perspective but have simply mislead themselves by stressing unnecessarily on the alleged rash and negligent Act on the part of the petitioner.
5) That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the manner in which the alleged incident took place.7
6) That the courts below have committed serious error in relying on the witnesses who are interested and whose evidence suffer from legal infirmities.
7) That the courts below ought to have accepted the defence of the petitioner and ought to have acquitted him.
8) That the courts below have committed serious error in convicting the petitioner when none of the witnesses have deposed with regard to the true version of the case in as much as they are interested witnesses.
9) That the courts below seriously erred in convicting the petitioner relying upon the evidence of PW1 to PW4 when their evidence suffers from serious legal infirmities and further they are not truthful witnesses.
10) That the courts below ought to have seen that no witnesses identified the petitioner. Under these circumstances the conviction of petitioner is liable to be set-aside.
11) That the courts below ought to have accepted the defence of the petitioner that the deceased negligently crossed the road without following the rule dashed to the petitioner's motor cycle and it is negligence of the deceased 8 and hence the accident was inevitable and not due to any rash and negligent act of the petitioner. Under these circumstances the petitioner is entitled to acquittal.
12) That the courts below failed to consider the fact that PW2, have supported the case of the prosecution, only to get compensation. Hence the prosecution has miserably failed to prove against the petitioner beyond reasonable doubt and further the defence of the petitioner is probabalise thus the impugned order are liable to the set-
aside.
13) That the courts below ought to have acquitted the petitioner on ground that Post mortem report shows that there are no any injury on the side of deceased as projected by the prosecution that petitioner hit the deceased on the side. Thus the prosecution is not examined the doctor to show that for what reason death has been occurred. Cause of death itself is not proved, hence conviction is not sustainable. Under these circumstances ingredients of Section 304-A IPC is not attracted to the case of the prosecution and courts below ought to have acquitted the petitioner.
14) That the courts below ought to have acquitted the petitioner giving benefit 9 of doubt considering the facts and circumstances of the case and the defence taken by the petitioner.
15) That the courts below failed to consider the fact that though the motor vehicle report disclose damages to the vehicle said to have involved in the alleged accident and they have not examined the RTO.
Thus prosecution has not come with true version of the alleged incident.
16) That the courts below committed serious error in relying the evidence of PW1 to PW6 which is not cogent, contradicts to each other and this clearly shows that at the inception the prosecution has concocted false case against the petitioner.
17) That the courts below have committed serious error in convicting petitioner when the prosecution has failed to prove the nature of accident by showing sketch and mahazar in a proper prospective as the same assures paramount important in view of peculiar nature of the case.
18) That the courts below ought to have acquitted the petitioner on the ground that there are several contradiction, omission, and improvement in the evidence of PW1 to PW6.
19) That the Courts below have erred in imposing the sentence on the 10 petitioner without hearing him with regard to the imposition of the same.
20) That the Courts below ought to have taken into consideration that the petitioner had exercised care and caution while driving in as much as he was not driving in a high speed or rashly and negligently. The fact which is clearly evident in the evidence.
21) That the Courts below have committed serious error in attributing rashness and negligence to the petitioner and further convicting him when the prosecution has miserably failed to prove the same.
22) That the learned Sessions Judge has committed serious error in not applying his mind to the case independently and has blindly approved the findings by the learned Magistrate.
23) That the petitioner is a student and in view of peculiar nature of the case as alleged, Courts below ought to have extended the benefit of Section 3 and 4 of Probation of offenders Act to the petitioner".
9. Reiterating the above grounds, Sri B.S. Prasad, learned counsel for the revision petitioner 11 vehemently contended that both the Courts have not properly appreciated the materials on record and wrongly convicted the accused and sought for allowing the revision petition.
10. Alternatively, Sri B.S. Prasad, learned counsel for the revision petitioner sought for grant of probation taking note of the fact that the accused was a student at the time of the incident and was a first time offender.
11. Per contra, Sri V.S. Vinayaka, learned High Court Government Pleader, supporting the impugned judgments contended that the material evidence on record clearly indicate that the deceased was a pedestrian and for no fault of his, he lost his life in the incident and also sustained blood injuries. He would further contend that these aspects of the matter has been rightly appreciated by the learned trial 12 Magistrate and the learned Sessions Judge of the First Appellate Court.
12. Insofar as the alternate submission of the learned counsel for the revision petitioner is concerned, learned High Court Government Pleader contended that loss of human life in a road traffic accident has become a menace in the society and if lenience is shown by this Court, it would send a wrong message to the society and sought for dismissal of the revision petition.
13. In view of the rival contentions of the parties and having regard to the scope of the revision petition, the following points would arise for consideration:
(i) Whether the findings recorded by the learned Trial Magistrate and confirmed by the First Appellate Court that the accused is guilty of the offence punishable under 13 Section 279, 338 and 304-A of IPC suffers from legal infirmity, perversity and does calls for interference?
(ii) Whether the sentence ordered is excessive?
14. In the case on hand, the death of Nazeer Ahmed having sustained grievous injuries on account of the road traffic accident that occurred on 06.06.2009 at about 5.00 p.m. in front of the house of Prakash Kamath situated near Patel Provision Stores, 3rd Cross, Millaghatta involving motor cycle bearing No.KA-14-W-7165 stands established by placing necessary oral and documentary evidence on record. There is no dispute to the said fact, even though in the grounds, it is urged that, it is the accused, who is the rider of the motor cycle. The other material on record, especially the statement given by the owner of the motor cycle at the time of release of the vehicle 14 clearly establishes that the accused was the rider of the motor cycle.
15. No doubt, learned counsel for the revision petitioner contended that the prosecution witnesses, who have supported the case of the prosecution are interested witnesses, it is settled principle of law, mere relative of the deceased is not a ground to prosecute interestedness. In a matter of this nature, things will speak by itself. Moreover, since the accused being the rider of the motor cycle bearing No.KA-14-W-7165 at the time of the incident having been established by the prosecution, it is for him to add his version about the incident and place the same before the Court for proper adjudication of the matter.
16. In this regard, this Court place reliance on the judgment of the Hon'ble Apex Court in the case of RAVI KAPUR VS. STATE OF RAJASTHAN reported 15 in (2012) 9 SCC 284, wherein at Paragraph No.39, it has been held as under:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
17. Applying the legal principles enunciated in the above decision to the case on hand, when the prosecution is successful in establishing the incident by placing cogent and convincing evidence on record and in the absence of any version placed by the accused about the incident, consequences in law has been followed by the learned Trial Magistrate which has been rightly re-appreciated by the learned 16 Sessions Judge in the First Appellate Court. Therefore, hardly there is any scope for this Court to interfere with the well-reasoned order passed by both the Courts in the impugned orders and the ground urged by the revision petitioner in this petition are not sufficient to hold that the impugned judgments are suffering from legal infirmity and perversity seeking interference by this Court. Accordingly, Point No.(i) is answered in the 'negative'.
18. Insofar as the sentence is concerned, admittedly, the pillion rider also sustained injuries in the incident and the pedestrian by name Nazeer Ahamed has lost his life in the accident. What is the appropriate sentence in a given case of this nature is no longer res-integra.
19. In this regard, this Court place reliance on the judgment of the Hon'ble Apex Court in the case of STATE OF PUNJAB VS. SAURABH BAKSHI reported 17 in (2015) 5 SCC 182, wherein at Paragraph Nos.13 and 14, it has been held as under:
"13. In our considered view the decision in the said case has to be confined to the facts of that case. It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of sentence.
14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction : (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12) "12. ... '1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of 18 road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that 19 even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.' (Dalbir Singh case [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] , SCC pp. 84-85 & 87, paras 1 & 13)"
20. Applying the legal principles enunciated in the above decision to the case on hand, this Court cannot show any lenience to the revision petitioner. However, ordering for rigorous imprisonment of 6 months cannot be countenanced in law and converting the same to simple imprisonment would meet the ends of justice. Accordingly, point No.(ii) is answered and pass the following:
ORDER
(i) The Criminal Revision Petition is allowed in part.20
(ii) While maintaining the part of conviction of the accused for the offence punishable under section 279, 338 and 304(A) of IPC, the sentence imposed by the learned Trial Magistrate, confirmed by the First Appellate Court is modified to the extent of converting rigorous imprisonment for a period 6 months to simple imprisonment for a period of 6 months for the offence punishable under Section 304(A) of IPC.
(iii) With this modification, rest of the sentences stand unaltered.
(iv) Revision petitioner is granted time till 15th January, 2022 to surrender before the learned Trial Magistrate for serving the sentence.
(v) Office is directed to return the Trial Court Records with copy of this order, forthwith.
Sd/-
JUDGE ST