Karnataka High Court
Rafeek vs Railway Protection Force on 26 August, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.452/2015
Between:
Rafeek
S/o Abdulla Kutty,
Aged about 39 years,
R/at No.56 Kadunagam,
Koyilandy Taluk,
Calicut District,
Kerala - 673304. ...Petitioner
(By Sri Mento Isac, Advocate)
And:
Railway Protection Force,
Mysuru - 570001. ... Respondent
(By Sri K.Nageshwarappa, HCGP)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C., praying to set aside the finding and
sentence against the petitioner passed by the III Additional
Senior Civil Judge and CJM, Mysuru in C.C.No.5/2010 vide
its Judgment dated 08.01.2013 which was upheld in
Crl.A.No.55/2013 by the V Additional District and Sessions
Judge, Mysuru vide its Judgment and order dated
27.12.2014 and acquit the petitioner.
This Criminal Revision Petition coming on for
Admission this day, the Court made the following:
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ORDER
The present petition has been filed by the petitioner/accused challenging the judgment passed by the V Additional District and Sessions Judge, Mysuru in Criminal Appeal No.55/2013 dated 27.12.2014 whereunder the judgment of conviction and order of sentence passed by the III Additional Senior Civil Judge and Chief Judicial Magistrate, Mysuru in C.C.No.5/2010 dated 08.01.2013 was confirmed.
2. I have heard the learned counsel for the petitioner/accused and the learned High Court Government Pleader for respondent/State.
3. Though this case is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. The brief facts as per the prosecution are that on 02.08.2009, at Railway level crossing gate No.5 situated in between Mysuru and Belagola Railway Station, when the railway level crossing gate was closed -3- to allow the train No.267 from Shimoga to Mysuru Express, the petitioner/accused being the driver of Tempo Trax Cruiser bearing Reg.No.KL-13-P-401 drove the same in a rash and negligent manner and dashed to the railway crossing gate and caused damage to an extent of Rs.31,447/- and thereby, the accused has committed an offence.
5. On the basis of the complaint, the case has been registered and after the investigation, the charge sheet has been laid as against the petitioner/accused. Thereafter, the learned trial Judge took cognizance and secured the presence of the accused and after hearing the learned Assistant Public Prosecutor and learned counsel for the accused, charge was framed and the accused pleaded not guilty, and he claims to be tried, as such, the trial was fixed.
6. In order to prove the case of the prosecution, the prosecution got examined PWs.1 to 6 and got marked Exhibits P.1 to P.16. Thereafter, the statement -4- of accused was recorded under Section 313 of Cr.P.C. The accused neither lead any defence evidence nor got marked any documents.
7. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offence punishable under Sections 154 and 160(2) of Railways Act, 1989 (for short 'the Act'). Being aggrieved by the said judgment, the accused preferred the criminal appeal before the learned District Judge. The learned District Judge also confirmed the judgment of the trial Court. Aggrieved by the same, the accused is before this Court.
8. It is the submission of the learned counsel for the petitioner/accused that the trial Court as well as the First Appellate Court without properly appreciating the evidence on record has come to a wrong conclusion.
9. It is further submitted that Section 160(2) of the Act is not attracted to the present facts of the case on -5- hand. Even then the Court below has wrongly appreciated the evidence and has wrongly convicted the accused.
10. He further submitted that PW-5 is a gateman and has admitted in his cross-examination that the accused vehicle passed through the first gate and thereafter, he went near the second gate to cross the railway level crossing gate, that itself clearly goes to show that PW-5 was negligent at the time of closing the gate. PW.5 has not specifically observed that the vehicle driven by the accused had already been passed through the first gate and was supposed to cross the second gate, which was closed by the PW.5 without any signal. Therefore, there is no fault on part of the petitioner/accused.
11. He further submitted that the accused/petitioner is the first offender and he is having no criminal antecedents. Under such circumstances, he prays to release the petitioner on probation by -6- exercising the power under Probation of Offender Act. On these grounds he prays to allow the petition and to set aside the impugned order.
12. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the prosecution has got examined PWs.1 to 6. PW.5 is an eye witness to the alleged incident. He has categorically deposed that when he was closing the gate, the driver of Tata Sumo vehicle came in a rash and negligent manner and dashed to the railway gate and caused damages. Even PW.6-Motor Vehicle Inspector who has issued Report at Ex.P8 has deposed that there was some dents to the said vehicle.
13. He further submitted that the petitioner/accused has not made out any specific defence either in the cross-examination or in the statement recorded under Section 313 of Cr.P.C. -7-
14. He further submitted that the trial Court as well as the First Appellate Court, after considering the material placed on record, have rightly convicted the accused. There are no good grounds to interfere with the order of the trial Court. Hence, the judgment of the trial Court deserves to be confirmed. On these grounds, he prays to dismiss the petition.
15. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
16. On close reading of the records and the evidence made available by the learned counsel for the petitioner/accused, in order to prove the case of the prosecution, the prosecution got examined 6 witnesses. PW.1 is the complainant and in his evidence he has deposed that on 02.08.2009 at about 6.15 p.m. he received a message from the control room that at gate No.5 there is an accident. Along with CW.2 and other -8- staff members, he went to the spot and the accused was also present and PW.5 was also there on the spot. On enquiry, he came to know that he has closed the railway crossing gate to allow the Shimogga train to pass through the said railway crossing. At that time, the accused being the driver of the Tempo drove the vehicle rashly and hit the railway gate. He has also filed the complaint as per Ex.P3. During the course of his cross- examination, nothing has been elicited so as to discard the said evidence and he has filed the complaint on the basis of the statement given by PW.5.
17. PW.2 is the Police Constable. He also went along with the complainant and seized the vehicle as per Ex.P1 and has recorded the statement of the accused as per Ex.P-2 and the statement of CW.5. During the course of his cross-examination, nothing has been elicited to discard his evidence.
18. PW.3 is the another witness, who informed about the accident and nothing has been elicited to -9- discard his evidence. PW.4 has conducted the further investigation of the case.
19. PW.5 is the material witness, who was on duty as on the date of the alleged incident. In his evidence, he has deposed that on 02.08.2009, he was on duty from 7.00 a.m. to 7.00 p.m. At about 6.45 p.m. a Train No.267 moving from Shimoga to Mysuru passed through the said level crossing gate. When he was attempting to close the said gate, one Tata Sumo vehicle bearing Reg.No.KL-14-401 came with high speed and dashed to the railway gate and caused damages. Thereafter, he took the key of the said vehicle and informed the same to the RPF Police and they came to the spot and conducted mahazar and he has admitted his signature on Ex.P1(c) and he has also identified the photographs of the accused. During the course of his cross-examination, he has deposed that the said vehicle was moving towards KRS from Mysuru and the accident has taken place at the 2nd gate and at the time of
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closing the gate, there was no signal or sound of ringing bell. He further deposed that except the vehicle of the accused, other vehicles were stopped. He has denied the suggestion that after crossing the first gate, without giving any signal, he has closed the gate and as such, the alleged accident has taken place. The other suggestions have been denied. PW.6 is the Motor Vehicle Inspector who inspected the said vehicle had issued the report as per Ex.P8.
20. From the above evidence, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubts. For the purpose of gravity, I quote Section 154 and 160(2) of the Railways Act, 1989 which reads as under;
154. Endangering safety of persons traveling by railway by rash or negligent act or omission.-If any person in a rash and negligent manner does any act, or omits to do what he is legally bound to do, and the act or omission is likely to endanger the safety of any person traveling or being upon any railway, he shall be
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punishable with imprisonment for a term which may extend to one year or with fine or with both.
160. Opening or breaking a level crossing gate.-(2) If any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to five years.
21. On close reading of the Section 154 of the Act, if any person in a rash and negligent manner does any acts, or omits to do what he is legally bound to do, then, under such circumstances the provisions of Section 154 of the Act is attracted and Section 160(2) is attracted, if any person break the gate or chain or barrier set up on either side of a level crossing, which is closed to the road traffic, he shall be punishable with imprisonment for a term which may extend to five years. But as could be seen from the evidence of PW.5 in his examination in chief itself, he has deposed that at about 6.45 p.m. when he was closing the L.C. Gate, at that time, the driver of the Tata Sumo i.e., accused came with high
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speed and dashed to the railway gate and caused damages. For having caused the damage, the mahazar has been drawn as per Ex.P1.
22. Even as per Ex.P8, there was dent marks on the left side of the luggage carrier and photographs at Exs.P13 to 16, they also goes to show that alleged accident has taken place. Even during the course of cross-examination, it is suggested to PW.5 that while crossing the second railway crossing gate the accident has occurred, the said suggestion has been denied by this witness.
23. By going through the evidence of all these witnesses, it clearly goes to show that the accused being the driver of the Tata Sumo has driven the said vehicle rashly and negligently as per Section 154 of the said Act. Even it has come in the cross-examination of PW.5 that the driver of the offending vehicle had tried to move from the gate, at that time, the other vehicles were
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standing on either side and he tried to pass through the said gate. Under such circumstances, it can be held that the accused was rash and negligent at the time of the said alleged act. Even as could be seen from Section 160(2) of the Act, a duty cast upon the accused to observe the level crossing which has been close to the road and even as per Section 154 of the Act, it is the duty of the driver of the vehicle who pass through the railway gate, to take proper care, which ought to have been taken. Under such circumstances, it is amounting to nothing but negligence on the part of the accused.
24. It is also the common sense that whenever the accused is trying to move the vehicle through the railway level cross gate, under such circumstances he should ensure that no such act has to be done in this behalf. Even as could be seen from the evidence, it clearly goes to show that when the railway gate was about to close he has crossed the first gate and thereafter, he went and hit the second gate when it was
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about to close. Hence, he has not taken the said precaution, which ought to have been taken by him as a prudent man. It is also noticed that whenever the railway gate is intended to be closed, at that time there will be a ringing of the bell. Without observing all those things, he has speeded up his vehicle and went and hit to the second gate.
25. All these ingredients clearly goes to show that accused has committed the alleged offences. There are no good grounds made out to interfere with the impugned Judgment.
26. I have carefully and cautiously gone through the judgment of the trial Court as well as the First Appellate Court. By appreciating the facts and circumstances and the evidence on record, the Court below have rightly come to a right conclusion and have rightly convicted the accused/petitioner. There are no good grounds to interfere with the judgment of the trial
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Court. At this juncture, it is the alternative submission of the learned counsel for the petitioner/accused that the alleged offences are not punishable with death or imprisonment for life and the petitioner/accused is the first offender and no criminal antecedents have been leveled against him. Under such circumstances, he prays to release the petitioner/accused on the Probation of Offenders Act, 1958.
27. I have carefully and cautiously gone through the said provisions of the Probation of Offenders Act. As per Section 4 of the Probation of Offenders Act, when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being
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in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on him entering into a bond with or without sureties.
28. In that light, if the evidence is scrutinized a duty is also cast upon the gateman who is about to close the gate and the evidence produced in this behalf discloses the fact that the driver of the Tata Sumo has already crossed the first gate and the said fact clearly goes to show that there was some last opportunity for him to cross and as such, he has tried to cross. But, PW.5 without waiting for some time to cross by the second gate, he has closed it and as a result of the same the alleged accident has been taken place. Under the peculiar facts and circumstances, as narrated above, I feel that the petitioner can be released on probation on the following conditions:
1. Petitioner/accused shall execute a personal bond for a sum of Rs.1,00,000/-(Rupees One lakh only) with two sureties for the likesum to the satisfaction of the trial Court
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with undertaking that he will have a good conduct and he will not involve in any such offences, for a period of two years from the date of execution of the bond.
2. Petitioner/accused is directed to deposit the fine amount as ordered by the trial Court. With the above observations, the Criminal Revision Petition is disposed of.
I.A.No.1/2019 is disposed of in terms of the disposal of the main petition.
Sd/-
JUDGE ssb