Karnataka High Court
Manjaiah vs State Of Karnataka By N R Traffic Police on 15 October, 2008
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15"' DAY OF OCTOBER, 2OQB.._i*._V_
BEFORE I
THE HON'BLE MR. JUSTICE JAWAD~YRAHjIM'-T..::
CRL.R.P. NO. 1602'-gOF,.2,OD6'P.., 4' '
BETWEEN: A A
1 MANIAIAH
S/O DODDANANJAPPA C,
AGED ABOUT 38'Y_E'ARS.', ; _
DRIVER OF BUS NO; _K"A--0_6'-S88'J1v,_ .
R/AT AJUGANAHAEALL KORA POST,
TUMKUR TALl.JK AND DI.STRI.CT. ~ ~ I
I . PETITIONER
(BY MR; 'M__.S-~....R.AJE.N_[§R.A PRASA_D, SR. ADVOCATE FOR
M/S M.S.RA'I_EN:DRA P'RAS'AD ASSOCIATES, ADVS.)
AND: %
1 STATEC)FOKARI§1'ATA«1{A'EY N R TRAFFIC POLICE
» _ I RESPONDENT
,_f"«{SER:I RAJA SLRBRAMANYA BHAT, HCGP)
>i<*>§<
'KI"THIS--.O-VPETTITION IS FILED U/S.401 CR.P.C 'BY THE
AD\/'QCA_T'E,FOR THE PETITIONER PRAYING THAT THIS
fVHON'BL.EO2.COURT MAY BE PLEASED TO SET ASIDE THE.
JUDGMENT DTD. 29.6.06 PASSED BY PO., FTC~I., MYSORE
..jfI.NV'CRL.A.NO.152/D3 AND DTD.18.10.03 PASSED BY I
" _ A.DDL.=, CJM., MYSORE, IN C.C.NO.5138/96, ETC.,
THIS PETITION IS COMING ON FOR FINAL HEARING
THIS DAY THIS COURT MADE THE FOLLOWING:- _
AR
ta)
ORDER
Convicted accused is in revision against the..j_o2cirge:rnei1t in Cri. A. No. 152/2003 passed on 29--06--2006*o:n i*,ifre0?r'i"!Ae' the iearned Judge, Fast Track Ctiart¥i',« the appeal and confirming the jutigeinent oarssed"
learned I Addi. cm, Mysorerreridrrcc N--o_§_"r5i.=3é§}*0't3V" dated 18-10-2003 convicting.__theo~*""acco2sVe'd.._ for'v"th'eV offence punishabie under Section 3,3'a'ian.dt-s3o.4--rA IPC.
2. for consideration are:
The petiitiiovner:'wa's._ci'i.arged and tried for the offence punishabie,Linder"$ectio4n"'---.:7§, 338 and 304--A IPC on the aiiegagtiory that-2$'~--1'1--1996 whife driving a private bearing registration No. KA--06/8881, the Ea-ccuisegd'v~h:y_:'ras'Vi1.-and negligent act dashed against a maxi 0' cabi"'««..bea_ri'iig§'registration No. KA--11 -- 2177, whiie 0"4"~..V:n'egotiati'n-g the curve on Mysore - Bang Road near Mandya. _ Er':3'e*»tod'éthe impact so generated one person died and several p.er5sons traveliing in maxi cab and bus suffered injuries. ririr Z
3. The Complainant was one of the passenger of the maxi cab and on his report case came to be...regi':slteji;'e'd,.A In his report Siddappa stated that he was trave~!,_|:ingj_iin" _ it cab along with his family mernb"ers"'and~;_ma$i"i'ca.b"Vwas« proceeding on Mysore ~ Banga|ore4'Ro'ad towiardgsv At a curve at Siddalingapura"t.h.é-.privhatebius'; Eeterted to above, driven by the accused speed while overtaking another KSRTC bus coHideVd.i,witll. C.Q:l;h§AAfi'Q'bi.!*lilaXl cab.
4. tile his statement and statement. found that material collected [and accordingly charge was laid. 'l"h'e.__gproseeutidd:_'t:e§§lasr}iined during trial in all 25 witnessesey. and»,_:'piaced reliance on 23 documents. .éC'onsi'derEi'=n'g the evidence the learned trial judge held that chai<geg'ag4a--i.nstffth'e accused was proved and convicted him it for va.rioLl_'S'pe§riAod of imprisonment with fine. Against which gaccus-ed preferred Crl. A. No. 152/2003 before the _leari*.e.d Sessions Judge. The learned Judge on re- ':"eVa.pp}reciation of the evidence found that the charge against M 'h'amV'p"e red ~ _ the accused established. The appeal was disnnissed. Against which this revision petition has been filed.
5. I have heard the learned Senior"".coujnselRMnu ' MS. Rajendra Prasad, appearin'g"A"'for'«the ~93 accused and learned Governmen_t".i3leade;r "Sr'i =.§iaz'a'--.. Subramanya Bhat, appearing o'njb~ehalf. of_tl'reflies}:-golnldent - State.
6. It was urge-ddihyflthte counsel for petitioner the prosecution itself, is spot after the road curve. 2_:TV'heV th.e"t{ehicEe is shown on the left side of the roads" it a the accident occurred near the gcurxé/e,At4h'e'1vis'ibil.ity of the on coming traffic was 'ix'fii: :HV'VliS regard reference was made to the ' '.evidence:"o:finvestigating Officer, PW23, Srl Ramakrishna.
"..l?WV2'3"«.Rarnakrishna, in his evidence has stated that he
-""(4.!'Ji'Sv|':te'd" the spot and vehicles were on the road. He is of the "egolpilnion that the accident could be because of the negligent 8»?
driving of the driver of the maxi cab and also the accused but erroneously heid the accused responsible. TheV.i'earned counsel referring to it submitted that there is c§__ea'r':eyi.d:e7:i_ce.A from the Investigating Officer itself that__d.rivers"A-{of vehicles could be held responsiblelgiforZcaujse--_of,,ac,c4i'd.evn_t§,_:It is improper to have absolvedthe driv'e_r"of the.r3aa>§i_ 'cab; alrudj', to prosecute driver of the privat'e~»..bus_.
8. He would lltlhfurtlilgft-.V:iv evidence of prosecution wi.tn_esses wanted to overtake near t_heW curve. Therefore, Derforce" accident could have occurredin' for which he cannot be held liable for culpabvleyfln-egli.g'en--ce. Lastly, he would submit that the spot ipar'i.c_hari-afma .o'f.--"'place of occurrence was not produced before t'he~.'«:court nor there was any evidence directly lyhestagblishti-ng negligence and overt acts of the accused. He ,._t's~u_})'r.':-its in the circumstances, the learned trial judge should
-have granted acquittal to the accused. Alternatively, he &,,Qz/
12. Amongst them PW1--Sidciappa, claims to be the occupant of the maxi cab, who has lodged a report vide EXP1. According to him, while he was travelling in themaxi cab as passenger, a private bus driven by the aceus«ed_' from opposite direction in a rash and negligent'-.man'nertandgVi' hit against maxi cab consequent {to wh'ich"«_seve.ra'l_pe'rsVo_n's suffered injuries. He hashialso 'me'n.tionegd.-".l.ve'hi'cie*. was--.. coming from opposite direction"ia:r1d while..ovrettal{}hgWKSRTC bus, accused lost controland_«h'i't:_aga.inst..the mvawxicab.
13. Simiiariy, =_--_ passenger of the pa.ssen.g1e'r9'qbus,.phas-___sp.oi<en to the effect that the accused was iattemp:ting"to:"over take the KSRTC bus and hit against the cab. "She has referred to the sufferance of hither husband and children. PW3--Swamygowda, Ai"an'o'thger~:V4i'rima.t'e.--iof the maxi cab refers to the overt acts of the"~«..acc.u'sed:""in causing the accident while overtaking the "bus. PW4~Saraswathamma, PW5--Gavi and PW6~ .._"\.{eiru-i*'«are also inmates of maxi cab, who have held the
-via-ccused responsible for cause of accident. Each of them My have stated there was road curve and accused tried to overtake the KSRTC bus and came to the right consequently hit against the maxi cab.
14. PW7--Nagaiaxamma, Sakamma and PW10~R.Manjunath, occu_pant's maxi cab and they have also ofxthe overtof the it accused in driving the passeng"o'r"'thus"-»,:¢;kless'Iy."h:Amongst them PW10--Manjunath, was driving the bus at the maxi cab.
PW 1 1 -- Naga i:aé>'§;miiA,"'- vastly': ea;-a m ma, PW 1 3 -- Ramadevi, PW1 4- !Via'r'i'swua 'fir 1«'?¥_'iVia deva p pa, PW2 1 -- Chennarh_all'il§arjunao"a:nd.4.4ifvi::2.'~hiagamani, are passengers of the bus. V"E.ac»hV:o._ne~--._sof--"llVthem have held the accused ~'"~._resp._o'r3'isih_iVe for th"e*ca--use of accident. PW25--VijayaI<umar, V.V,ovi:.ner._of_:th:e»ipr-ivate bus, has supported the prosecution casethat was the driver of the bus at the relevant 'point of. tlinae.
-13. Therefore, there is no doubt that the accused driven the bus involved in the accident. In fact, accused §.Vl1,, 9 has not disputed this aliegation. The question is whether the evidence on record prove cuipabiiity of the a'c,cVus:ed_ in driving the bus in rash and negligent manner?'~T_ije__V':t:gvo_ circumstances the learned counsel for petitironer.ca~nv«asse'd*V. it are that the KSRTC bus was proceed_ingZahead"'o4f"rtiieé't%;;!s driven by the accused and wriii-e overtaking heihgadvgpipto to the extreme right side and coming maxi cab could not ' accident occurred. It was,_an erirortopf. that matter accident is He submits that road" been disputed and it helps the 16d.' any of these contentions bec,a_;if::'sVe;. first"'o.fVp.a|i the accused was the driver of the
-b4:u':,_and had to negotiate. the curve and he has to side ofnthe road. In this regard provisions of of the M.V. Act has to be noticed. Provisions itiflr,:ofViSection 184 of the IVLV. Actis very clear. It postuiates, twphioever drives the vehicie at a speed or in a manner, which dangerous to public, having regard to aii the Max circumstances of the case should keep in mind the nature, condition of the place and amount of traffic, which actually is at the time or which might reasonably be in the place, shall be punishable for the first'-._offe_nce imprisonment for a term which ma'yme>'<'t'end--«.to-:months or with fine which may extend to one Vth_o1u.sand rupees', any second or subsequent offe'n,c'e.if con:mi'tted three years of the commissionsof ai"previou"S.._Simi|ar"offence with imprisonment for a term' two years, or with fine whicfhmpayxr e>{tend.:to rupees, or with both.
1'7, ° :_In' of Section 184 of the Motor Vehlicle Act, ma.nda.l:es the driver of every vehicle shall ~'"~,.,_dri\jeé.itEifieepingj"'in....mi'nd the nature, condition of the road 'a.nd----_and the extent of traffic as also all other surrolundin§'j_circumstances. The accused has not kept in mind these principles as required and necessary precautions A Cfto'lb'e,taken, consequent to which there was coiiision of the ' vehicle. This shows that driver of the vehicle has driven the vehicle dangerously, and it amounts to negligence. éfizz
18. Therefore, even under the provisions of Section 184 of the M.\/. Act irrespective of the consequence' dangerous driving, if a person were to drive -the vve'hic'iief_'in such manner he is liable to be punishedwith _irn"prisorim.ent. Section 304-A IPC comes into play.'"wheA_ni'theire Therefore, dangerous drivinlg.:'a.~3% sbelled.VVAou:t"'~..i;,'ri'cie'r the".
provisions of Section 184 'e5tab|ish'evd in this case by ocular testimony of bios'ec'u_tiVbif. wxitneshsies and as elicited in their cross--exan2.ination;V' ' *
19. iagesjiides,.'Vthej:"a~c_cused has tried to overtake the bus at road _cu'rve..,aVrid i'n:t'i*itat.piocess the bus was traversed to extreme" right.'Vn'ia'rgi'i'i.,}'"This aspect has been rightly consifjeregd the learned trial judge and during cross» ngothingwhas been elicited to negate the charge. 'fjtherefore, do not find any circumstances which ',_accrues to the benefit of the accused. The say of PW23 that it 'fi:iie'ire--..gcou|3' be negligence on the part of the driver of the ' niaxi cab also as noted in the statement given by him during daflevidence has to be tested with other attending aw circumstances. Such an opinion of the PW23 cannot nullify other incriminating evidence. Thus the findin'g.VVo:f"~.rthe learned trial judge recorded against supported by material evidence on record,..__'::l~..'ii/en reappraisal, the learned Appellate:=§ludge..fotind-no r'ea'sorr;Vto interfere with the finding .r*ec.ordedi.,_l5y VtheVl'V'V'l'ea.Vrnedi'§ trialt; judge. I also do not find reasonvto.ginterfere' the same.
21. Therefore, in which the accident has:..Q..§:l?tirreciEA_iVV' in which the accident the injuries by more than the"'fac;t that this is an effect of drivingvlrashly'VavndI"'~.gi:rspeed. it constitutes culpable negligenceliof~~the-__aAccLi's.ed coupled with rashness, which withi'i'rvt.h.e'ambit of Section 279 IPC. 1 do not find to interfere with the same.
'"'«22f'.'?fReigarding sentence the learned senior counsel pointed out that the Apex Court in a similar circumstances A i~:lf"hadl"'la_oeld that imposition of sentence of imprisonment is not i afmust in a fatal accident case, as even fine can in certain W circumstances meet the ends of justice. At para--1O of the decision of the Apex Court referred to supra, it is he!.do~thiu.s:
"The triai court thought that the ends of justice. A" i would be met if the appeilant was mad'e*vtofpay. a heavy fine. The High Court'"di'd« notégi.yefan'«,IV ' . reason for coming to the =cone:~Ius?ion..t-hat aif--..__ sentence of imprisonment is imperative' _in"this - " A case. The High Courtrifa-ppears-._to haxve"bje.e_n influenced by the fact tha'tV--_a humar.'»..ii_"f_e i'1ad'"
been iost. If that is so it had clearly' iggt sight of the fact thatvca..usingr"tiea;t*h isga necessary ingredient of an o_ffence t;nde--t_"Section 304--A IPC. Yet the Legis|at_ui'e'~-iri' i'ts__Wi-s'd.o'm_ has left it to the discretion of "the. courts tt3[.p'unish an offence _ .1-.:.nd---er that} section ' either with imprisoI"E._ment _or_ with Vfineyor 'bothf From that it is ciea.r_~.th"a't1'_the-..i;.eg~isiatu're did not consider that for an offence.ur1'der"'Section 304-A IPC, a tevrrnav0f'impri1so.nrnen.t is"a"m'ust. On the other hand,_ itt?'._di_dVvisuaiise. the possibility of an offence ' failijragi «under _ that provision being penalised by met;/e"fi_n"e."' It is highly regrettable that the .inciden_t vmiquestion resulted in the death ofrla young person -- but the High Court yfgshould not "haye allowed itseif to be prejudiced ' by5't hat ci rcu rnsta nces. "
besvtowed my serious concern to the dictum of A . thIs"'"'(:!ec:VsI.on"; firstly, it must be noticed that the Hon'b|e
--.Apex4_CoVu'rt was considering an appeai against the sentence iimpiosed by the High Court setting aside the sentence A "passed by the trial court. What the Apex Court noticed was do/' that the trial court after considering all circumstances of the case thought it fit to sentence the accused to pay4.oVr:l3::/i.f_ine and did not impose sentence of imprisonment, was challenged the High Court, interferersi"w-itih. regarding sentence imposed by the triialf?c'ourt..'a'nd'ir:.stea_d impose sentence of imprisonment icrfsix rn'o'n._'th.s_ or}. that; reasoning that since death bay"'djriyingVifrecklessiy accused deserves to In that context the Apex Court,...he_Id. as to what sentence to the discretion of the trial:. was not justified "in interfering_v»iizitii._--isuV_c3ii.' it was satisfied that the sentence'fl774D0sed..'bit;/A"th'é-..:_£gfial court was lenient and grossiy inadegquagte. ~SAin'ce Court held that the sentence ht/i~.g_.the court was lenient and grossly tVhje.:§Apex Court held that such an order of the Higi--ai.._Cou'rt.§n*~aCs unsustainabie. While setting aside the said u"""--..V:'order t.he:Apex Court has also observed that under Section s.."30'4.--AiIPC punished prescribed in imprisonment or fine and ..there is no compulsory sentences for imprisonment. N"
24. In the instant case, we have noticed clue to overt acts of the accused more than 24 suffered injuries of various degree.
25. The Apex Court in thei.__cas-e,o'f4Ti¢l1EA.'i2'AJ21ifSi7fH*i?x£il STATE ROAD TRANSPORT7 c_oRpoRAtIoi\Q' 13A.I.£ui:
NARAIN SHANKER AND ANoTiiER,: reported in AIR 1980 SC 695, at Par.a}'*2_ " The _natu---re izoff the-.4V'ac_oi.den"t' and the surroundinggciercuinstances=ar'e "sH°ch that the doctrine loqu-i_tu*r,__w'as,rig.htly invoked by the CQuiit.;f_ Indeed} the terrible ""3-ccidents attr'i'bu.ta"r;>le t*o=--re'ckiess d'rivi'ng and escalating year after ..ye«ar'4._rfia,§<e. four highways great hazards.' _ 'Ojne't»_sh.o;jl_d have thought that nati'onaliisati~on'-~of"roald transport would have produced -a vbetteyr sense of social responsibility ;on _ the 'part' of" the management and the fldriyers. In "r"act.,.....one of the major purposes of _ sociialisation of transport is to inject a sense of
-..safety",>. ---accountability and operational 3 re»s.po.nsi.bi.l.i-ty which may be absent in the case \ _,.of priyfate undertakings, whose motivation is "-«4._prov'ii't,making regardless of risk to life; but common experience on Indian -highways to g discioses callousness and blunted 'l"4-consciousness on the part of public corporations which acquire a monopoly under the Motor Vehicles Act in plying buses. It is a thousand pities that our State Road Transport Vehicles should become mobile menaces, and MM I6 we should impress upon them the need to have greater reverence for human |ife~"'--._ representing, as they do, the value set of tphe"-._ State itself." 7 V ' L
26. In the circumstances, I do a fit, case where the sentence of }»imp,r,i4so,n"rnent-._couidwgbe dispensed with. However, taking intoi.c'onsideVra-tioyfn Aai!':'ot'her'*~t. attending circumstances referred._V\fto_ byixt-he:i*ear.'ned senior counsei and while con§i:rrning_'_'fthe accused for the offence 338 and 304- A IPC, the oi_'dei'jv.,sentie'hciii.§ t'hée""ia'cc.I,..i.sed to pay fine of Rs.1,000/- a":»pe'riod of one month with defauit,v'fVseVntenfce default to pay fine of Rs.1,O0fVVC')--,nf for th'e'.vA:.fjoiffen;c'e«:'punishable under Section 279 IPC, is _confi4Erned;..hi-ioweiier, the order of sentence of RI for p"er'i'od'-i~.ofii-- six months for the offence punishable under dségtidni:;3.3i8i'fiIPcj,.with fine of Rs.1,000/~ and in default to paym'VentV.of_ to undergo RI for a period of one month, is asi'd.e__,'?~instead the accused is sentenced to under go SI V"if_or,'a.:"peri0d of two months and fine is confirmed. Further, sentence passed against the accused for the offence dd/*