Karnataka High Court
The State Of Karnataka vs Sri Vajrappa S/O Mariyappa Bhuyar on 10 August, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3681/2011
Between:
The State of Karnataka
By Managuli Police Station,
Reptd. by Addl. State Public Prosecutor,
High Court Circuit Bench at Gulbarga.
... Appellant
(By Sri Maqbool Ahmed, HCGP)
And:
Sri Vajrappa S/o Mariyappa Bhuyar,
Aged : 41 years, Occ: Driver,
R/o Mudagal.
... Respondent
(By Sri B. R. Patil, Advocate)
This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C. praying to grant leave to appeal against the
order dated:24.3.2011 passed by the J.M.F.C., Basavana
Bagewadi in C.C.No.498/2006, in so far as it relates to
acquitting the respondent for the offence punishable
under Sections 279, 337, 338 & 304 (A) of IPC; and etc.
This appeal having been heard, reserved for
judgment on 27-7-2017 and coming on for
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pronouncement of judgment this day, the Court delivered
the following:-
JUDGMENT
This appeal is preferred by the State assailing the Judgment of acquittal dated 24.03.2011 passed by JMFC Basavana Bagewadi in C.C. No.498/2006, for the offences punishable under Sections 279, 337, 338, 304-A of Indian Penal Code (hereinafte 'IPC' for short), whereunder accused has been acquitted.
2. The case of the prosecution in brief is that; On 15.11.2005 accused-respondent being the driver of K.S.R.T.C bus bearing Registration No.KA-36-F-446 drove the same rashly and negligently and when the bus was proceeding near Managuli in front of Managuli Police Station at about 3:45 a.m. dashed against the road side electrical pole, thereafter to a tree, due to which, several passengers sustained multiple injuries, whereas one person died, which ensued in registration of a case in 3 Crime No.107/2005. After investigation, Investigating Officer laid the charge-sheet against the accused.
3. After filing of charge-sheet, trial Court complied the procedure laid down under Section 207 of Cr.P.C., recorded plea of the accused, who denied the substances of accusation and claimed to be tried and the trial was fixed.
4. In order to prove its case, prosecution in all examined twenty three witnesses as P.Ws.1 to 23 and got marked thirty one documents as Exs.P-1 to 31. Apart from that, during the course of cross-examination, six documents were got marked as Exs.D-1 to D6. After closure of prosecution evidence, statement of accused was recorded as required under Sec. 313 of Cr.P.C. by putting incriminating materials against him, which he denied and submitted that he would not lead any defence evidence on his behalf.
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5. After hearing the arguments of both sides, impugned judgment of acquittal came to be passed. Assailing the same, present appeal is preferred by the Appellant-State.
6. Heard Sri. Maqbool Ahmed, learned High Government Pleader appearing for the Appellant-State and Sri. B.R. Patil, learned counsel for the respondent/accused.
7. The learned High Court Government Pleader vehemently argued and contended that, the trial Court erred in appreciating the evidence of eyewitnesses, who have categorically deposed that the accident in question has occurred because of rash and negligent act of the respondent-accused. Further, the trial Court without assigning any reasons and without holding proper discussion of the evidence on record has straight away came to a conclusion that the evidence is not satisfactory and convincing, resulting acquittal of accused. He further 5 contended that, the respondent-accused has taken a contention that the accident in question occurred because of the jam of the staring. But the Motor Vehicle Inspector has clearly stated that there is no mechanical defect, under circumstances, the trial Court ought to have convicted the accused by relying upon Ex.P-30. He further contended that without appreciating the evidence on record, the trial Court has come to a wrong conclusion and same is liable to be set aside by convicting the respondent-accused. On these grounds, he prayed to set aside the impugned Judgment by allowing the appeal.
8. Per contra Sri. B.R. Patil, learned counsel for respondent-accused would contend that, though witnesses have supported the case of the prosecution, they have not stated about the rash and negligent act of the accused. He further contended that, the accident in question has taken place at about 3:45 a.m. and at that time all the passengers in the bus were sleeping and nobody has witnessed how the accident has occurred. As 6 such, the trial Court has rightly acquitted the accused. He further contended that, the State has not made out any good grounds so as to interfere with the judgment of the trial Court and same deserves to be confirmed.
9. Of the witnesses, P.Ws.1, 6 to 19 are the injured eyewitnesses who were inmates of the said bus. They have deposed to the effect that they were traveling in the said bus, in which respondent-accused was the driver. Deceased-Sharanamma was also one of the passengers. When the bus came near curve road, Managuli Police Station, the bus went and hit to an electrical pole, thereafter to a roadside tree, thus the accident took place. P.W.1-complainant has also deposed that he was sleeping in the bus and when he got up, by that time, the bus had already dashed to the tree and he sustained the injuries.
10. P.Ws.6 to 19 have also deposed that the accused was driving the bus with great speed and because of his fault the accident took place. During the course of 7 cross-examination of P.Ws.7 and 15, it has been suggested that, the speed breakers were there at the place of incident, to some witnesses it has been suggested that the road near the place of accident is curve in nature, the same has also been admitted by some of the witnesses. It has been suggested that the road near the place of accident is straight road. During the course of cross- examination, some witnesses have admitted that they were sleeping. Some of the witnesses have also stated that they do not know how the accident has taken place.
11. P.W.3 is the mother of deceased-Sharanamma, she has not witnessed the said accident, in other words P.W.3 is a circumstantial witness. P.W.2 is an Inquest Mahazar Pancha as well as spot mahazar pancha to Exs.P-2 and 3, respectively. P.W.20 is the Investigating Officer who investigated the case and filed the charge- sheet against the accused. P.W.21 is the Assistant Executive Engineer, HESCOM, who assessed the damages caused to the electrical pole. P.W.22 is the Motor Vehicle 8 Inspector, who has deposed that acting upon a requisition had inspected the K.S.R.T.C bus bearing Registration No.KA-36/F-446 and on examination he came to a conclusion that the accident in question is not due to any mechanical defect and issued a Certificate, marked at Ex.P-30. During the course of cross-examination, P.W.22 admits that usually if staring is blocked, there could not be flow of oil and there will be jam of baring, as such the staring may lock and if the staring is locked, the bus would tilt towards either side. P.W.23 is the P.S.I., who has registered the case and issued FIR.
12. From the above evidence, let me consider whether prosecution has proved the guilt of the accused beyond all reasonable doubt.
13. On perusal of the records, it is not in dispute that the respondent-accused is the driver of the KSRTC bus bearing Registration No.KA-36-F-446 on the alleged date of accident, so also it is not in dispute that the said 9 bus met with an accident and in the said accident some persons sustained injuries and one lady by name Shivamma died. The only question which remains for consideration of this Court is that the evidence, which has been led by the prosecution is sufficient to hold that the accused was rash and negligent at the time of alleged accident or not. P.Ws.4 to 9 have categorically deposed in their evidence that the bus was proceeding in a speed, rash and negligent and due to the act of the driver of the bus, it went and hit to pole and tree. Accident in question is not in dispute. But, it is specific contention of the respondent-accused that the said accident occurred because of locking of the staring of the bus. On perusal of evidence of P.W.22 and document at Ex.P-30, though during the course of cross-examination, P.W.22 deposed that normally if staring of the bus is locked, there will be no supply of oil and as such there will be jam of baring and it will cause lock of staring. But, when P.W.22 examined the said bus, he has specifically stated that 10 there is no mechanical defect for the purpose of alleged accident. If really, there is lock of staring as contended by the respondent-accused, definitely some proof or evidence will be there when P.W.22 examined the bus. In the absence of any such material the said contention of respondent-accused is not acceptable.
14. During the course of cross-examination it has been elicited from the mouth of witnesses that there is a speed breaker near the place of accident. If the speed breaker are there, definitely the driver should have slow down the said bus, but no such evidence has been produced before the Court either by oral or documentary so as to accept the said fact. When a speed breaker is there and if the bus comes with great speed and without observing the speed breaker, if try to run over the speed breakers, definitely the driver of the bus is going to lose the control over the bus, as such, it may cause accident in the passion in which it has occurred. As could be seen from the sketch, Ex.P-12 and the evidence of P.W.15, 11 during the course of cross-examination he has admitted that before the Managuli Police Station there are many speed breakers. If that is the case, the accident might have taken place in the manner, as I discussed above. In this behalf also the respondent-accused has not made out any case to disbelieve the said fact.
15. When admittedly the driver of the bus was carrying passengers, he should have taken much care that, if anything is going to be happened, the passengers travelling in the bus may sustain injuries. When speed breakers are there, the driver has not tried to slow down the bus and even assuming that the staring is locked, he could have applied the best option i.e., to apply the break and he could have avoided the unfortunate impact of going and hitting electrical pole and thereafter to the tree. Some of the witnesses have deposed that they were sleeping at the time of accident. But, all were not sleeping when the passengers were travelling in a bus, under such circumstances, the entire evidence of the prosecution 12 cannot be discarded. Some of the witnesses have specifically stated that because of rash and negligent act of the accused, the alleged accident has taken place. When the injured witnesses have specifically stated and nothing has been elicited so as to discard the said evidence, under such circumstances, the trial Court ought to have relied upon the said evidence.
16. Be that as it may. When respondent/accused came to be examined under Section 313 of Cr.P.C., he has not explained his stand how the accident took place. It is the accused who will be having a greater opportunity to explain his stand about the manner in which the accident has taken place. When he has not made out any case, under such circumstances the evidence of eyewitness appears to be acceptable and trustworthy and it has to be taken into consideration. The overall evidence placed on record reveals that, there is sufficient material to show that, the accident in question has occurred due to the rash and negligent act of the respondent/accused and 13 there is no mechanical defect or other cause for the accident.
17. The trial Court without taking into consideration these aspects has gone with the discussion of evidence of Investigation Officer and topography of scene of occurrence. When the accused has been acquitted, the other material is not going to either take away the case of prosecution or made to disbelieve the said evidence. Even it is trite and well-established principles of law that, the defective investigation is not going to take away the case of prosecution. The trial Court has not properly appreciated the evidence of eyewitnesses. The trial Court has also observed that the road is not fit for fast driving as alleged by the prosecution. In a case of rash and negligent, it is not the fitness of the road, which has to be considered, but it is the rash and negligent act of the respondent-accused has to be taken into consideration. As per the evidence of 14 P.W.20, the road is not fit for fast driving, but the impact and damage caused to the bus clearly goes to show that the bus was driven by the respondent-accused with great speed, under the circumstances, the said act of the driver itself amounts to rash and negligent act. Further, as could be seen from evidence of P.W.22, he has clearly stated how much damage has been caused to the said bus. He further deposed that damages caused to supporting and holding rods of the bus itself speaks that how fast the impact of accident arising out of rash, negligent and high speed driving of the respondent-accused. This aspect of the evidence has been lost sight off by the trial Court, resulting in acquittal of accused. Having regard to the facts and circumstances of the case in totality, the prosecution has made out a case to interfere with the judgment of the trial Court. Further, I am conscious of the fact that, normally whenever an accused has been acquitted, the appellate Court will be very slow in interfering with such orders and it can interfere only when 15 there is glaring illegality and miscarriage of justice has occurred. This is one of such cases, wherein the miscarriage of justice and proper appreciation of evidence is not considered by the trial Court, which requires the interference at the hands of this Court. As such, the impugned Judgment dated 24.3.2011 passed by the trial Court requires to be set aside and respondent-accused is liable to be convicted for the offences punishable under Sections 279, 337, 338 and 304-A of IPC.
18. At this juncture, the learned counsel for the respondent-accused submits that a separate sentence cannot be passed under Section 279 of Cr.P.C. Further he has contended that the offence punishable under Section 279 of IPC though it is independent, and when accused is also convicted under Section 304-A of IPC, the said offence virtually merges with the main offence i.e., under Section 304-A of IPC. On perusal of the records, there appears force in the submission made by learned counsel for the 16 respondent-accused and this proposition of law is supported by a decision passed by the Hon'ble Apex Court in the case of Gurubasavaraj @ Bennishettappa Vs. State of Karnataka, reported in (2012) 8 Supreme Court Cases Page 734. The Hon'ble Apex Court has observed as under;
"14. The next limb of submission of the learned counsel for the appellant is that when he has been acquitted under Section 279 IPC, he cannot be punished in respect of the other offences as the allegation of rash and negligent act cannot be treated to have been proven. The aforesaid submission, on a first blush, may look quite attractive, but on a deeper scrutiny of the judgment passed by the appellate Court, it melts into total insignificance. The learned Appellate Judge, after due appreciation of the evidence on record as expected of an appellate Court, has come to the conclusion that the accused was driving the vehicle in a rash and negligent manner. After ascribing some reason, he has thought it apposite that a separate sentence should not be imposed under Section 279 IPC, and accordingly, he has set aside the sentence awarded by the trial Court.17
15. It is apposite to state here that there is a distinction between conviction and sentence. A conviction is the proof of the offence committed by an accused. It is the proof of guilt of the offence. The punishment component is the sentence. In rama Narang v. Ramesh Narang reported in (1995) 2 SCC 513 a three- Judge Bench of this Court, after referring to Section 354 of the Code of Criminal Procedure, has stated that every judgment referred to in Section 353 of the Code, shall, inter alia, specify the offence of which the accused is convicted and the punishment to which he is sentenced. This Court, while dealing with the power of the High Court under Sentence 398(1) of the Code, has observed that ordinarily an order of conviction by itself is not capable of execution under the Code, but it is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. It has been further stated that in certain situations, the order of conviction can be executable, in the sense, that it may incur a disqualification. We have referred to the aforesaid authority only to highlight that there is a distinction between a conviction and a sentence.
16. In the instant case, as the judgment of the appellate Court would 18 show, the view has been expressed that a separate sentence under Section 279 IPC is not necessary and, accordingly, the said sentence has been set aside. The reading of the entire judgment makes it graphically clear that the conviction under Section 279 IPC has not been annulled. It is noticeable that the rash and negligent driving by the accused that resulted in the causation of injuries to the persons travelling in the trailer has been proved. There is no cavil that some have been seriously injured and one person who was grievously injured breathed his last. Thus, the submission of the learned counsel for the appellant that he has been acquitted of the offence under Section 279 of IPC does not deserve acceptance, and accordingly we unhesitatingly repel the same."
19. With the above observation, the Hon'ble Apex Court has not passed separate sentence against the accused under Section 279 of IPC.
20. During the course of argument, learned counsel for the respondent-accused contended that the respondent-accused is working as a Driver in the KSRTC, he is aged 48 years and he has got family to be nourished 19 by him and if he is convicted, it is going to cause inconvenience and hardship to the respondent-accused. It is true that if the accused is convicted it is going to untold inconvenience and hardship. But, in a case where the accident has taken place due to rash and negligent act of the respondent-accused, under such circumstances, the Court has to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. It is the verdict of the Hon'ble Apex Court that no fly bite sentence for the offence punishable under Section 304-A of IPC should be awarded and a minimum sentence of six months to be imposed. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. Krishna @ Raju reported in AIR 1987 SC 861. In that light, respondent-accused is convicted under Section 304-A of IPC and he is sentenced to undergo Simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-, 20 in default, he has to undergo simple imprisonment for a period of one month.
For the reasons stated above, I pass the following;
ORDER
Appeal is allowed and impugned
judgment and order of acquittal in CC
No.498/2006 passed by JMFC, Basavan
Bagewadi on 24.3.2011 is hereby set aside and the respondent-accused is hereby convicted for the offences punishable under Sections 337, 338 and 304-A of Indian Penal Code.
The respondent-accused is convicted for the offence punishable under Section 337 of IPC and he is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/-, in default, he has to 21 undergo simple imprisonment for a period of 15 days.
The respondent-accused is further convicted for the offence punishable under Section 338 of IPC and he is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/-, in default, he has to undergo simple imprisonment for a period of 15 days.
Further respondent-accused is convicted under Section 304-A of IPC and he is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-, in default, he has to undergo simple imprisonment for a period of one month.
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However, it is made clear that, the sentence for above said offences should run concurrently.
Respondent/accused is entitled for set off as per Section 428 of Cr.P.C. The trial Court is directed to issue conviction warrant to the jail authorities forthwith after securing the respondent-accused.
Registry is directed to send the copy of this order to trial Court forthwith and free copy of the order be furnished to the petitioner or to his counsel.
Sd/-
JUDGE BL