Bangalore District Court
Aged About 59 Years vs Rep By Public Prosecutor on 30 November, 2021
0 Crl.A.No.107/2018
1 Crl.A.No.107/2018
KABC010022112018
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 30th day of November, 2021
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.107/2018
Accused/ Sri. Shankar N.S.
Appellant : Aged about 59 years,
S/o Srinivas,
R/at No.148, Temple Road,
Banashankari 3rd Stage,
Bengaluru.
(by Sri. S. Shankarachar, Advocate)
-V/S-
Complainant/ State by Siddapura police,
Respondent: Rep by Public Prosecutor,
City Civil Court,
Bengaluru.
2 Crl.A.No.107/2018
JUDGMENT
This appeal is filed by the Appellant u/s 374(3) of Cr.P.C. praying to set aside the judgment passed by the learned 2nd ACMM., Bangalore, dated 03.01.2018 in C.C.No.16056/2016 and praying to acquit him for the offences u/s 279 and 427 of IPC.
2. The appellant of this appeal was the accused before the Trial Court. The respondent of this appeal was the complainant before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The P.S.I. of complainant police station had filed the charge sheet before Learned II ACMM., against the accused/appellant by alleging the commission of offences punishable u/s 427 and 279 of IPC. It is alleged in the charge sheet that on 27.3.2016 at about 2.15 p.m., the accused being the driver of car bearing No.KA 01 MF 9186, 3 Crl.A.No.107/2018 drove the same with high speed and in a rash and negligent manner in 4th main road, Byrasandra, Jayanagar, 1 st block and dashed to the house of CW.2 Smt. Rathnamma and caused loss to her and caused damage to Honda Active Scooter bearing No.KA 05 JL 1180 belonging to her.
4. After filing the charge sheet, the learned Magistrate has took cognizance for the offences punishable u/s 279 and 427 of IPC against the accused and registered criminal case as CC No. 16056/2016 and issued summons to the accused.
5. The accused had appeared before the Trial Court and he was enlarged on bail. The Learned Magistrate recorded the plea of accused for the aforesaid offences. The accused pleased not guilty and claimed to be tried. Then the matter was posted for the evidence of prosecution.
6. The prosecution in order to bring home the guilt of accused has examined 6 witnesses as PW1 to PW.6. The prosecution has produced 4 documents and got them marked as Ex.P.1 to P.4 and closed its side. Then the matter was posted for arguments.
4 Crl.A.No.107/2018
7. The learned Magistrate after perusing the charge sheet, oral and documentary evidence adduced on behalf of the prosecution and other materials on record was pleased to pass judgment on 3.1.2018 by convicting the accused for the offence punishable u/s 279 and 427 of IPC. The Learned Magistrate has sentenced the accused to undergo imprisonment for the period of six months and for payment of fine of Rs.1,000/- for commission of offence punishable u/s 279 of IPC. The learned Magistrate has sentenced the accused to pay fine of Rs.500/- for commission of the offence punishable u/s 427 of IPC. The accused being aggrieved by the said judgment of conviction passed by the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
(a) The judgment of conviction passed by the trial court is illegal, contrary to law, evidence and probabilities of the case.5 Crl.A.No.107/2018
(b) The Trial Court has committed serious error in holding that the appellant has committed the alleged offence.
(c) The Trial Court has committed serious error in coming to conclusion that the prosecution has proved its case beyond reasonable doubt, even though the prosecution has failed to prove the alleged charges against the accused by adducing sufficient oral and documentary evidence.
(d) PW1 being the complainant has not supported the prosecution case. PW.2 has also not supported the prosecution case. Inspite of it, the trial court erroneously come to the conclusion that the appellant has committed the alleged offences.
(e) The respondent police have not throughly investigated the case. The trial court ought to have given benefit of doubt to the appellant.
(f) The appellant is the only bread earner in his family.
He has age old parents who are depending upon the appellant herein. The trial Court without properly appreciating the facts and circumstances of the case has 6 Crl.A.No.107/2018 convicted the accused. Viewed from any angle, the impugned judgment of conviction is against to the law and facts and circumstances of the case and it is liable to be set aside.
On these among other grounds as stated in the appeal memorandum, the appellant has prayed to allow the appeal and prayed to acquit him for the alleged offences by setting aside the impugned order.
9. After filing of the appeal, it is registered as Crl.A.No.107/2018 and notice was issued to the respondent. After service of the notice, the learned P.P. has appeared on behalf of the respondent. Thereafter, the lower court record was called for. After receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellant and learned Public Prosecutor. Perused the lower court record, grounds urged in the appeal, memorandum and other materials on record, 7 Crl.A.No.107/2018
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial court is erred in convicting him for the offence punishable u/s.279 of I.P.C. ?
(2) Whether the appellant proves that the trial court is erred in convicting him for the offence punishable u/s 427 IPC?
(3) Whether the interference of this court is required with impugned judgment of the Trial Court ?
(4) Whether the appeal filed by the appellant is deserves to be allowed? (5) What order?
12. My findings on the above points are as under:
(1) Points No.1 & 2 .. In the negative
(2) Points No.3 & 4 .. Partly in the affirmative
(3) Point No.5 .. As per final order
for the following:
R EAS O N S
13. Point No.1 to 4:- These four points are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts. 8 Crl.A.No.107/2018
14. The P.S.I. of Siddapura police station had filed the charge sheet before the trial court against the accused by alleging the commission of offences punishable u/s 279 and 427 of IPC. It is alleged in the charge sheet that on 27.3.2016, at about 2.15 pm, the accused being the driver of the car bearing No.KA 01 MF 9186, drove the same with high speed and in a rash and negligent manner on 4 th main road, Byrasandra, Jayanagar 1st Block and dashed to the sheet roofed house and Scooter bearing No.KA 05 JL 1180 belonging to CW.2 Smt. Rathnamma and caused damage to the house and to the Scooter belonging to CW.2.
15. In order to prove the aforesaid allegations made against the accused, the prosecution has examined 6 witnesses as PW.1 to PW.6 before the Trial Court. Among them PW.1 is the informant. PW.2 is the person who has sustained loss on account of the alleged act of the accused PW.3 and PW.4 are the eye witnesses to the incident. PW.6 and PW.7 are the Investigating Officers. Now let us examine the evidence of the aforesaid witnesses. 9 Crl.A.No.107/2018
16. PW.1 in her examination-in-chief has not supported the prosecution case She has stated that she has not witnessed the alleged incident. She has stated in her examination-in-chief that she came to know that accused caused accident in the year 2016 while avoiding the dashing of his vehicle to one child who had suddenly came on the middle of the road. PW1 has stated that the police have taken her signature on Ex.P.1 complaint and Ex.P.2 mahazar and she do not know what is written in those two documents PW.1 has stated that she and accused have got settled the matter.
17. PW.2 in her examination in chief has also deposed about the incident as stated by PW.1 in her examination- in-chief. She has also stated that she was not present at the time of the accident. She has also stated in her examination in chief that she and accused have compromised the matter. Hence, PW.1 and PW.2 were treated as hostile and they were cross-examined by learned Public Prosecutor. But nothing has been elicited during the course of their cross-examination in order to prove that 10 Crl.A.No.107/2018 the accused drove his car with high speed and in a rash and negligent manner on the date, place and time as alleged in the charge sheet and dashed to the house and Scooter of PW.2 and caused loss to her.
18. PW.3 in his examination in chief has deposed that when he and his friend Yogendra were standing near A to Z Bazar of Byrasandra village, at about 2.00 p.m. in the year 2016 he saw the accused driving Benz car with high speed in a rash and negligent manner and saw accused dashing the Car to sheet roofed house of PW.2 and to the Honda Activa scooter belonging to CW.2. He has further deposed in his examination in chief that in the accident, the house and Hero Honda scooter were got damaged He has clearly stated in his examination in chief that accused was driving the car at that time.
19. PW.4 in his examination in chief has deposed that on 23.7.2016 in btween 2.00 to 3.30 p.m. when he and his friends i.e. PW.3 were standing near A to Z Bazar of Byrasandra village, he saw the accused driving the Benz car and saw accused dashing the same to the house of 11 Crl.A.No.107/2018 PW.2 and causing damage to the house and Honda Active scooter belonging to PW.2. He has clearly deposed that the accused was driving the car at the time of the accident
20. Nothing has been elicited during the course of cross-examination of PW.1 and PW.2 to disbelieve their evidence about the manner of occurrence of the accident. Further nothing has been elicited during the course of their cross-examination to prove that they have got any rivalry with the accused. During the course of cross-examination of PW.3 and 4 it is suggested that the accused in order to avoid the hitting of car to one child who had suddenly came on the middle of the road, the accused took his car by the side of the road and as such the accident was occurred. It is further suggested during the course of cross-examination that time, Air bag was opened at that time and as such the accused was not able to know on which side the car was going. But both the witnesses have denied the said suggestions. From the suggestions put to PW3 and PW.4 during the course of their cross-examination it is clear that the accused has not disputed the fact of occurrence of the 12 Crl.A.No.107/2018 accident. Further accused has not disputed the fact that he was driving the car at the time of occurrence of the alleged accident. At the time of recording of statement of accused u/s 313 Cr.PC., the accused has not stated about how the accident was occurred. He has not stated anything about the defence taken by him during the course of cross- examination of the eye witnesses regarding the manner of accident. Accused has also not led any defence evidence in order to prove his contention that the accident was occurred on account of a child suddenly came on the middle of the road.
21. Even if the defence of accused that a child was suddenly came on the middle of the road and as such, he in order to avoid dashing of the car to the child, suddenly took the car by the side of the road is accepted for a while, then also it can be presumed that the accident was occurred due to rash and negligent driving of the accused. It is the duty of the driver of any vehicle to drive the same with moderate speed and with care and caution so as to avoid any such type of accident. If the accused had seen 13 Crl.A.No.107/2018 the child suddenly coming on the middle of the road, he would have applied the break and he would have stopped the car. But there is no sufficient materials on record to show that the accused had applied the break and stopped the car If really the accused had applied the break and tried to stop the car, the car would not have dashed to the house of PW.2 and he should not have caused a damage to the house of PW.2. The manner in which the accident was occurred and the damages caused to house and scooter of PW.2 as stated in the charge sheet clearly goes to show that the accused was driving the car with high speed and in a rash and negligent manner. The evidence of eye witnesses i.e. PW.3 and PW.4 clearly proves the fact that the accused was driving the car with high speed and in a rash and negligent manner.
22. PW.1 and PW.2 have deposed in their examination in chief that they have compromise the case with accused. As such, it seems that they have intentionally not supported the prosecution case. Only on the ground that PW.1 and PW.2 have not supported the 14 Crl.A.No.107/2018 prosecution case, it cannot be come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. I do not find any grounds to disbelieve the evidence of PW.3 and PW.4. If the photographs of the place of the accident are perused, it can be come to the conclusion that the accident would have occurred solely due to rash and negligent driving of the car by the accused. Under these facts and circumstances of the case, I am of the opinion that the learned Magistrate has rightly come to the conclusion that the prosecution has proved beyond reasonable doubt that the accident was occurred solely due to rash and negligent driving of the car by the accused Further PW.1 and PW.2 have clearly deposed about the damage caused to the house of PW.2 and damage caused to the scooter belonging to PW.2 in the accident. Further eye witnesses have also deposed about the said fact The evidence of prosecution witnesses and mahazar conducted at the spot clearly goes to show that the accused has committed the offence punishable u/s 427 of IPC. As such, I am of the opinion 15 Crl.A.No.107/2018 that the learned Magistrate has rightly hold that the prosecution has proved that the accused has committed the offence punishable u/s 427 of IPC. The reasons assigned by the learned prosecution to arrive to the conclusion that the accused has committed the offences punishable u/s 279 an 427 of IPC are proper and judicious. As such I do not find any grounds to interfere with the finding of the trial court that the accused has committed the offences punishable u/s 427 and 279 of IPC. As such I do not find any grounds to interfere with the impugned judgment of the trial court regarding conviction of accused for the aforesaid offences are concerned.
23. The learned Magistrate has sentence the accused to undergo imprisonment for the period of six months and payment of fine of Rs.1,000/- for commission of offence u/s 279 of IPC is concerned. The offence punishable u/s 279 of IPC is punishable with imprisonment up to six months or fine upto Rs.1,000/- or with both. The discretion is given to the Magistrate to impose the sentence 16 Crl.A.No.107/2018 of fine also. According to the accused, he is the only bread earning member of his family and he has to look after his age old mother and children. As per the judgment, the age of the accused is shown as 58 years. Now the accused might have aged more than 60 years. By considering the nature and gravity of the offences age of accused and other grounds urged by accused and by considering the discretionary power provided u/s 279 IPC, I am of the opinion that the accused may be sentenced only to pay fine amount only for commission of offence u/s 279 of IPC. I am of the opinion that the sentence of imprisonment imposed by the trial court for commission of offence u/s 279 f IPC may be set aside. As such, I am of the opinion that interference of this court is required with respect to sentence of imprisonment for the offence u/s 279 IPC is concerned. The trial court has imposed a fine of Rs.500/- for commission of offence u/s 427 IPC is concerned. As such I do not find any grounds to interfere with the sentence so far as commission of offence u/s 427 of IPC is concerned. Appellant has failed to prove Points No.1 and 17 Crl.A.No.107/2018
2. Accordingly, I answer Points No1 and 2 in N7egative. It is already discussed and held above that interference of this court is required only so for as imposition sentence of imprisonment for commission of offence u/s 279 of IPC is concerned and no interference is required so for as sentence for commission of offence u/s 427 of IPC is concerned. Accordingly, I answer point No.3 in Partly Affirmative.
24. The appellant has filed the present appeal praying to set aside the judgment of conviction passed by learned 2nd ACMM Court, Bengaluru dated 3.1.2018 in C.C.No 16056/2016 and prayed to acquit him for the offences punishable u/s 279 and 427 of IPC. It is already discussed and held above that the trial court has rightly convicted the accused for the commission of offence punishable u/s 279 and 427 of IPC It is also held that the interference of this court is required with respect to sentencing the accused to undergo imprisonment for the offence punishable u/s 279 of IPC is concerned. Hence, I am of the opinion that the impugned judgment of the trial court is 18 Crl.A.No.107/2018 required to be set aside and is required to be modified. The appeal filed by the appellant is liable to be partly allowed. Accordingly, I answer Point No.4 in Partly Affirmative.
25. Point No.5:- For the discussions made above, I proceed to pass the following:
ORD ER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby partly allowed.
The Judgment dated 03-01-2018 passed by learned 2nd ACMM Court, Bengaluru, in C.C.No.16056/2016 is hereby set aside and it is modified as under:
"Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 279 and 427 of I.P.C.
The accused is sentenced to pay fine of Rs.1,000/- for commission of offence punishable u/s 279 of IPC and in default of payment of fine amount, the accused shall undergo simple imprisonment for the period of one month.
The accused is sentenced to pay fine of Rs.500/- for commission of offences punishable u/s 427 of IPC and in default of payment of fine amount, the accused shall undergo simple imprisonment of the period of 7 days."19 Crl.A.No.107/2018
Send back the lower court records along with copy of this order.
(Dictated to the Judgment Writer, transcribed by her, transcript corrected and then pronounced by me in the open court on this the 30th day of November, 2021).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
20 Crl.A.No.107/2018