Karnataka High Court
Ishwar Sadeppa Nandennavar vs State Of Karnataka, Rep. By Its State ... on 30 January, 2004
Equivalent citations: I(2005)ACC193, ILR2004KAR1459, 2004(4)KARLJ23, 2004 CRI. L. J. 4912, 2004 AIR - KANT. H. C. R. 1209, (2005) 1 ACC 193, (2004) 2 ALLCRILR 822, (2004) 4 KANT LJ 23
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER S.R. Bannurmath, J.
1. Heard Sri Ashok R. Kalyanashetty - learned Counsel for the petitioner and Sri Ramakrishna - the learned HCGP.
2. This revision Petition is filed challenging the judgment of conviction dated 31.08.96 passed by the learned JMFC., Bailhongal in Criminal Case No. 274/94 affirmed by the learned Sessions Judge, Belgaum in Crl.A.No. 100/96 dated 10th July 2002.
3. The brief facts of the cases are as follow:
According to the prosecution, the complainant who was the driver of non-stop Bus from Belgaum to Bailhongal bearing Registration No. KA-25/F-153 left Belgaum at about 10.00 a.m. on 6.5.93 and was proceeding towards Bailhongal. According to the prosecution, at about 12.00 p.m. when the bus had crossed the Sampgaon Village was in the process of travelling and was at a distance of half a kilometer towards Bailhongal, a truck came from the opposite side in a wrong way. When the complainant was in the process of taking his Bus to the left side, the accused who was the driver of a Tempo bearing registration No. KA-24/M-69 came rash and negligently, with great speed overtaking the truck and dashed against the left side of the Bus. In the process, the passengers both in the Bus and the Tempo not only sustained grievous injuries but in all 13 passengers died and 17 left with grievous injuries. Immediately thereafter the driver of the Bus lodged his complaint before Bailhongal P.S. who came to register a case in Crime No. 108/93 for the offences punishable under Sections 279, 337, 338, 304(a) IPC.
4. In order to establish guilt of the accused, the prosecution has relied upon the evidence of as many as 42 witnesses and marked Ex.P.1 to P.53 and M.O's 1 to 46. On appreciation of the evidence the Trial Court found the accused guilty and sentenced him to undergo imprisonment for various terms for each of the offences as well as fine. Aggrieved by the same when the petitioner approached the learned Sessions Judge, Belgaum, he too dismissed the appeal upholding the judgment of conviction and hence the present revision petition.
5. The main contention of the learned Counsel for the petitioner is that the learned Sessions Judge has failed to give proper opportunity to the petitioner to putforth his case in the appeal. It is contended that though the petitioner was the appellant before the Court, without hearing the appellant or his counsel, the learned Sessions Judge has committed illegality in proceeding with the main appeal itself. Hence, the main prayer of the learned Counsel for the petitioner is that an opportunity be given to the petitioner to argue the appeal on merits before the learned Sessions Judge by remanding this case. In the alternate it is submitted that even the judgment of conviction on merits as found by the Courts below are illegal, improper and perverse. It is contended that both the Courts below have convicted the accused only on the moral conviction, being swayed away by the fact that large number of passengers have died in the accident. It is submitted that as the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts, mere death of large number of passengers ought not to have weighed in the mind of the Court to find the accused guilty. It is submitted that there is absolutely no evidence on record to show that the act of the accused driving the Tempo vehicle was in any way rash and was negligent He also contended that invoking of doctrine of Res ipsa loquitor by the Courts below is erroneous. On these among other grounds it is contended that as the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts, the judgment of conviction is liable to be interfered with. On the other hand, the learned HCGP argued in support of the findings of the Courts below.
6. I have perused the records summoned in detail. No doubt, it is true that the appeal filed by the petitioner came to be decided in the absence of appellant or his counsel but as noted in para 3 of the Order itself, though the appeal was filed in the year 1996 almost for 6 years the appellant and his counsel were going on taking time or adjournments for no apparent reasons. The case was fixed finally for argument in the year 1997 but again the same was dragged till 8.7.2002 and as such as the matter was pending almost for 6 years, the learned Sessions Judge had only two options namely dismissing the appeal for default or consider the case on its merit itself. On the basis of the clear negligence even in prosecuting the appeal itself by the petitioner and dragging the case for almost 6 years and as such in my view the petitioner does not deserve any sympathy for fresh hearing. Even otherwise, as the records of the Trial Court including the entire set of evidence has been summoned by this Court it is open for the petitioner to argue the case on merit here itself also. Since the jurisdiction of this Court under revisional jurisdiction as well as inherent jurisdiction are almost parallel, I have given full opportunity to the learned Counsel for the petitioner to argue the case on merits as if first appeal.
7. On perusal of the evidence led by the prosecution especially that of the complainant driver examined as P.W. 5 the facts as narrated in the complaint as even substantiated through the evidence of other injured passengers of the Bus. It is prima-facie apparent that while the complainant P.W. 5 was driving the Bus, the Tempo vehicle came from the opposite direction by overtaking another truck and dashed against the Bus resulting in death of 11 passengers and serious injuries to 17 others. The evidence of P.W. 5 has been amply corroborated by the passengers in the Bus who have sustained injuries and the investigating officer has further shown from his investigating report and deposition before the Court as to the accused petitioner being negligent and rashing driving. As against this prima-facie material, absolutely no explanation has been offered by the accused while he had the last opportunity of explaining when questioned under Section 313 Cr.P.C. As held by the Apex Court in the case of RATTAN SINGH v. STATE OF H.P. " Examination of the accused under Section 313 Cr.P.C., answers given by the accused to the questions put to him during such examination have a practical utility for the Criminal Courts. Apart from affording an opportunity to the accused to explain the incriminating circumstances, the answers would also help the Court in appreciating the entire evidence adduced in the Court."
8. In the case of STATE OF T.N. v. RAJENDRAN and in the case of DANIDAR v. STATE OF KARNATAKA the Apex Court has emphasized the necessity of some explanation from the accused even in the case where entire case of the prosecution resolves around circumstantial evidence if the other circumstances are proved prima-facie by the prosecution. Going a step ahead, in my view in the cases of offences like one on hand especially offences of driving of a vehicle rashly and negligently the accused driver is required to explain as to how according to him the alleged accident took place. It is common knowledge that the true eyewitness account in the accident cases is very rare. The collision or killing of a person by the driving vehicle takes place in a flash of movement and it is only the victim and the driver of the vehicle who alone will be knowing what exactly happened. The so called eyewitness impressions given by the other people would be their immediate recollection as to what happened according to them when the impact took place. In this regard, if one looks into the provision of Section 106 of the evidence Act, person like driver of a offending vehicle has been called out for having special knowledge of the occurrence and in my view if he does not explain the same when he has been given a last opportunity while questioned under Section 313 Cr.P.C., after the prosecution has discharged its burden prima-facie the Courts are entitled to draw adverse inference against such accused.
9. As noted earlier, in the present case, except few futile suggestions by P.W. 5 and other eyewitnesses, absolutely I find no ground or explanation posed on the side of the accused as to how exactly the incident took place. On the other hand, in the absence of such explanation and on the basis of the material produced by the prosecution, I am of the view that the Courts below have rightly invoked the doctrine of Res Ipsa Loquitor which is found applicable by the Apex Court as long back in the case of SYAD AKBAR v. STATE OF KARNATAKA.
10. On perusal of the entire evidence before the Court as well as the impugned judgments, I do not find any illegality on the part of the Courts below in appreciating the entire evidence and hence see no merits in the Revision Petition and as such the same is liable to be dismissed.
11. At this stage, the learned Counsel for the petitioner contended that in so far as punishment of R.I. for 2 years for the offence -punishable under Section 304A IPC is concerned is too severe and be reduced.
12. It is no doubt true that the Court below has sentenced the appellant to maximum punishment. Taking into consideration the fact as observed by the Apex Court in the case of RATTAN SINGH v. STATE OF PUNJAB thats "More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country. Indian Transport is acquiring a menacing reputation which makes travel a tryst with death', I am of the view that such rash and negligent drivers require severe punishment especially when in the present case the petitioner is responsible for death of more than dozen people and grievous injuries to others. Here again, as I do not see any merit in the contention, the prayer of the petitioner to interfere with the punishment is also rejected.
13. In the result and for the reasons stated above, the revision petition is dismissed as devoid of merits.