Karnataka High Court
Ashraf vs The State Of Karnataka on 28 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:48991
CRL.RP No. 355 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 355 OF 2020
BETWEEN:
ASHRAF
S/O UMMER,
AGED ABOUT 40 YEARS,
R/AT SANTHEBETTAHOUSE,
KRUKADI, NALYADI (P),
PUTHUR TALUK,
D.K. DISTRICT-574 231.
...PETITIONER
(BY SRI. LETHIF B., ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally BY ITS HIRISAVE POLICE STATION,
signed by
MALATESH HASSAN DISTRICT,
KC REP. BY S.P.P.,
Location: HIGH COURT BUILDING,
HIGH BENGALURU-560 001.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF DISMISSAL
OF CRL.A.NO.53/2019 DATED 12.12.2019 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
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NC: 2024:KHC:48991
CRL.RP No. 355 of 2020
DISTRICT SITTING AT CHANNARAYAPATNA AND ORDER OF
CONVICTION AND SENTENCE DATED 16.01.2019 PASSED IN
C.C.NO.65/2014 BY THE III ADDITIONAL CIVIL JUDGE AND
JMFC COURT AT CHANNARAYAPATNA, BY ALLOWING THE
ABOVE REVISION PETITION AND ACQUIT THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri. Lathif, learned counsel for the revision petitioner and learned HCGP for the respondent.
2. The accused who had suffered conviction in C.C. No.65/2014 confirmed in Criminal Appeal No.53/2019 for the offence punishable under Section-279, read with Section-304A of IPC and ordered to pay a fine of Rs.1,000/- and two months imprisonment for the offence punishable under Section-279 of IPC and eight months simple imprisonment and Rs.5,000/- fine for the offence -3- NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 punishable under Section-304A of IPC, against the revision petitioner.
3. Facts in the nutshell for the disposal of the revision petitioner is as under:
A complaint came to be lodged with the Hirisave Police, Chennarayapatna Taluk, Hassan District, contending that on 05.08.2013 at about 11.00 p.m., in the limits of Hirisave Police Station a tata sumo vehicle bearing No.KA-03-B-2156 was returning to the native place after having visited Katilu and Dharmastala near Madihalli gate on NH-75, there was a puncture in the right hind wheel of the vehicle. Therefore, the vehicle was parked on the left side of NH-75 Road, BM Road. CW-13 and CW-7 were helping deceased Pradeep who was changing the punctured wheel. At that time, the accused / revision petitioner being the driver of the goods vehicle lorry bearing KA-21-A-1005 proceeding in the same direction from Mangalore side towards Bangalore, drove the said vehicle in a rash and negligent manner and -4- NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 dashed against parked tata sumo vehicle. In the said accident, Pradeep who was fitting the right hind wheel of the tata sumo suffered grievous injuries. He was being shifted to the hospital and enroute to the hospital he died.
4. Police after registering the case conducted a detailed investigation and filed a charge-sheet against the driver of offending vehicle. Presence of the accused was secured and plea was recorded. Accused pleaded not guilty and therefore trial was held.
5. In order to bring home the guilt of the accused, in all nine witnesses were examined as PW-1 to PW9 and 11 documentary evidence was paced on record which were exhibited and marked as Exhibit-P1 to P11 which are comprising of spot mahazar, recovery mahazar, photographs, spot sketch, Notice issued under Section-133 of the MV Act, IMV report, post mortem report and first information report.
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6. In the cross-examination of the eye-witnesses, they admitted that there were standing behind the vehicle. In the cross-examination itself, PW-1 has specifically stated that to caution the vehicles moving, about the parking of the tata sumo indicators were put on and stones were kept little behind the parked vehicle along with the branches of the trees to caution the drivers who were moving in the same direction about the parked vehicle. PW-1 had however admitted that in the photographs no such stones or tree branches are forthcoming. He also answered that the indicator lamps are visible in the photograph.
7. PW-2 and PW-3 being mahazar witnesses did not support the case of prosecution in its entirety and they were treated as hostile witnesses.
8. Eye witness and father of the deceased had supported the case of the prosecution, Investigating Officer evidence was taken into consideration and incriminating material were put to the accused while -6- NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 recording the accused statement under Section-313 of Cr.P.C. Accused for the reasons best known to him did not choose to place his version about the incident and has only denied all the incriminating circumstances.
9. Accused also did not choose to lead any evidence of himself or cleaner of the lorry to place his version on record as regards the accident.
10. On conclusion of the recording of the evidence, the learned trial magistrate heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section - 279 and 304A of IPC and sentenced as referred to supra.
11. Being aggrieved by the same, the accused filed an appeal before the District Court in Crl.A. No.53/2019. Learned Judge in the First Appellate Court after reappreciation of the material evidence on record, took into consideration that the oral testimony of PW-7, PW-8 -7- NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 PW-9 coupled with the spot sketch and other attendant circumstances, upheld the order of conviction and sentence passed by the trial magistrate.
12. Being further aggrieved by the same, the accused is before this court.
13. Sri.B.Lathif, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, contended that PW-1 in his cross-examination has categorically admitted that in the photographs, the stones which were kept on the road, little behind the parked vehicle and tree branches being placed on the road to caution the vehicles moving in the same direction is not forthcoming on record, shows that there was a contributory negligence on the part of the deceased himself in not taking precaution; especially, when the vehicle was parked on the National Highway. -8-
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14. Learned counsel also contended that no vehicle can be parked on The National Highway as a rule and parking the vehicle on the road itself is negligence on the part of the deceased and therefore the driver of the tata sumo also should have been charge-sheeted for parking the tata sumo on the National Highway and sought for allowing the revision petition.
15. Alternatively, Sri.Lathif, learned counsel contended that taking note of the negligence attributable to the deceased and the driver of the tata sumo by enhancing the fine amount, imprisonment for the offence punishable u/s. 304A may be set-aside.
16. Per contra Sri. Vinay Mahadevaiah, learned HCGP supports the impugned orders.
17. He further contended that even though stones and tree braches are not forthcoming in the photographs as is admitted by the PW-1, the photographs itself shows that indicators were put on at the time of the incident and -9- NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 PW-1 has answered so in the cross-examination. Therefore it was the duty of the accused for having driven the lorry in a cautious manner and because of his sheer negligence, accident has occurred which has been thoroughly investigated by the Investigating Agency while filing the charge-sheet.
18. He further contended that the accused had the opportunity to challenge the charge-sheet, but he failed to do so and therefore before this Court, that too for the first time, he cannot canvas the contributory negligence on the part of the deceased and sought for dismissal of the revision petition.
19. Insofar as the alternate prayer is concerned, Sri.Vinay Mahadevaiah, contended that since an innocent person who was in the process of changing the punctured tire of the vehicle was done to death by the sheer negligent driving of the accused, no lenience or mercy can be shown to the accused and sought for dismissal of revision petition in toto.
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20. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that there is no dispute that accused was the driver of the lorry in question, so also the death of Pradeep who was in the process of changing the right hind side wheel of the tata sumo vehicle bearing No.KA-03-B-2156 is not in dispute. Likewise, the death of Pradeep in the accident is also not in dispute.
21. Post mortem report shows that the deceased died on account of the accidental injuries sustained by him. There is no delay in lodging the complaint, as the complaint is registered at 2.00 a.m., for the accident that occurred at 11.00 p.m. Soon after the accident, the attendants tried to shift the deceased to the hospital, but enroute he succumbed to the injuries. Therefore, the contents of the FIR and the description given by the eye- witnesses about the incident, corroborates each other.
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22. Further, in a matter of this nature, after the prosecution places its evidence, it is the bounded duty of the trial Magistrate to put the incriminating circumstances available in the case of the prosecution to the accused, so as to call for his explanation by recording the accused statement as is contemplated under Section-313 Cr.P.C. Such a procedure to be adopted by the trial magistrate is mandatory in nature. However, recording of the accused statement under Section -313 Cr.P.C., is not an empty formality. The same serves a dual purpose. Firstly, the incriminatory circumstances available in the case of the prosecution must be put to the accused which is the mandatory duty on the part of the trial magistrate. In the case on hand, such a procedure has been followed by the trial magistrate before proceeding to decide the case on merits. Secondly, the accused is required to place his version about the incident at the time of recording the accused statement. Such a chance was also given to the accused. Accused is entitled to place written submission on record as is contemplated under Section-313(4) of Cr.P.C.
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NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 But if the accused deliberately fails to utilize the opportunity that has been granted to him in simply denying the incriminating circumstances, the consequences in law should follow.
23. In the case on hand, in the absence of any explanation whatsoever offered by the accused, the trial magistrate was thus justified in following the consequence of not explaining the incident on the part of the accused. The view of this Court is supported by the judgment of honble apex court in the case of RAVI KAPUR V. STATE OF RAJASTHAN, reported in (2012) 9 SCC 284.
24. Learned judge in the First Appellate Court reappreciated the material evidence on record and has rightly maintained the order of conviction against the accused.
25. It is pertinent to note that none of the prosecution witnesses nurtured any enmity as against the
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NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 accused, so as to falsely implicate the accused in the case. A valuable innocent life has been lost on the sheer negligent driving of the lorry by the accused.
26. The road width being sufficiently wide, even assuming that the vehicle was parked without proper indication, the offending lorry had powerful for the accused to have spotted the parked vehicle and he should have left sufficient margin before overtaking the parked vehicle. If any such sufficient margin was left by the accused, the incident would not have occurred at all. On the contrary, the damage that is caused to the tata sumo vehicle on the right side, of the parked vehicle which is left side of the lorry as part of IMV report would indicate that the accused did not even notice the parked tata sumo vehicle and thereafter he ran away on the deceased.
27. These aspects of the matter would clearly establish sufficiently the rashness in the driving of the lorry by the accused.
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28. Therefore, this Court does not find any patent factual error or error of jurisdiction in the finding recorded by the trial magistrate confirmed by the first appellate court so as to interfere with the revisional powers of this Court. Therefore, the conviction order passed by the trial magistrate confirmed by the first appellate court needs no interference by this Court that too in the revisional jurisdiction.
29. Having said thus, it is noticed that PW-1 has admitted in his evidence that stones and tree branches are not visible in the photograph. However, the photographs clearly shows that the indicator lamps were put on. As such, some amount of contributory negligence is therefore, attributable to the driver of the tata sumo and the deceased who was in the process of changing the right hind wheel of the tata sumo.
30. Further, since there is only one death in the incident, a separate sentence of imposing two months
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NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 simple punishment for the offence punishable under Section - 279 of IPC cannot be countenanced in law as the offence under Section - 279 of IPC merges with Section - 304A of IPC, by applying the doctrine of merger.
31. For the offence punishable under Section-304A of IPC, the learned trial magistrate in his discretion has granted eight months simple imprisonment as against the maximum punishment of two years prescribed under this statute for the offence punishable under Section-304A of IPC.
32. Since this Court is of the considered opinion that both the courts have not taken into account some amount of contributory negligence attributable to the driver of the tata sumo vehicle and the deceased while changing the right hind wheel of the tata sumo, the punishment ordered by the trial magistrate confirmed by the first appellate court for a period of eight months for the offence punishable under Section-304A of IPC, needs to be reduced to four months in the attendant facts and
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NC: 2024:KHC:48991 CRL.RP No. 355 of 2020 circumstances of the case by enhancing the fine amount for the offence punishable under Section-304A of IPC by Rs.25,000/-. Accordingly, in view of the foregoing discussion the following:
ORDER
i) Revision petition allowed in part;
ii) While maintaining the order of the conviction of the accused / revision petitioner for the offence punishable under Sections-279 and 304A of IPC, the sentence ordered by the trial magistrate confirmed by the first appellate court is modified as under:
iii) Revision petitioner / accused shall pay a fine of Rs.1,000/- for the offence punishable under Section-279 of IPC with default sentence of fifteen days,
iv) For the offence punishable under Section-304A, the accused / revision petitioner shall undergo simple imprisonment for a period of four months and ordered to pay fine of Rs.30,000/- (5,000 + Rs.25,000/-), failing which the accused shall undergo simple imprisonment for a period of two months.
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v) Out of the fine amount payable to the court, Rs.30,000/- is ordered to be paid as compensation to the family of the deceased (inclusive of Rs.5,000/- ordered by the trial magistrate)
vi) Accused is granted time till 31.12.2024 to surrender before the trial court to serve the remaining part of the sentence.
Sd/-
(V SRISHANANDA) JUDGE JJ List No.: 1 Sl No.: 36