IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.381/2017 BETWEEN:
Mr.Chinnathambi S/o Krishnappa Aged about 32 years Presently residing at No.5, Shankarappa Building Guddadhahalli, Hebbala, Bengaluru-560 034.
(By Sri H.N.Venkatesh, Advocate) AND:
State of Karnataka by R.T.Nagar Traffic Police Station R.T.Nagar, Bengaluru-560 092, Represented by State Public Prosecutor High Court Building Begnagluru-560 001.
(By Sri M.Divakar Maddur, HCGP.) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside the impugned judgment of conviction and sentence dated 08.08.2016 passed by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City in C.C.No.1636/2012 and the judgment dated 01.03.2017 passed by the LXVI Additional City Civil and Sessions Judge, Bengaluru City in Criminal Appeal No.1027/2016, in so far as confirming the judgment of conviction and sentence of the trial Court, and acquit the petitioner from the charges.
This Criminal Revision Petition coming on for final hearing this day, the Court made the following:
O R D E R This criminal revision petition has been filed by the petitioner/accused challenging the judgment passed by the LXVI Additional City Civil and Sessions Judge, Bangalore City in Crl.A. No.1027/2016 dated 01.03.2017 where under the judgment of conviction and order of sentence passed by the Court of Metropolitan Magistrate Traffic Court – VI, Bengaluru City in C.C. No.1636/2012 dated 08.08.2016 was confirmed. The accused was convicted for the offence punishable under Section 304(A) of IPC and also for the offence punishable under Section 279 of IPC.
2. I have heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent - State.
3. The gist of the complaint is that on 29.05.2012 at about 1.45 p.m., the mother of the complainant and herself when they were talking at that time, a water tanker bearing Reg. No.KA-05-9022 was driven rashly and negligently and accused took the said vehicle in a reverse manner without giving any horn. As a result of the same, it hit to Smt. Shabira. She sustained grievous injuries and subsequently, she succumbed to the injuries. On the basis of the complaint, a case has been registered against the accused in Crime No.84/2012. Thereafter, the investigation was conducted and a charge sheet has been filed. The learned Magistrate took cognizance and secured the presence of the accused and after furnishing the copies of the charge sheet material, the plea of the accused was recorded. Accused pleaded not guilty and he claimed to be tried as such, the trial was fixed.
4. In order to prove the case of the prosecution, it has got examined 5 witnesses and got marked 9 documents. Thereafter, the accused has been got examined under Section 313 of Cr.P.C., by putting the incriminating material as against him, he denied the same. Accused has not led any evidence and has not got marked any documents.
5. After hearing the parties, the trial Court convicted the accused. Being aggrieved by the same, accused preferred the appeal and the First Appellate Court also confirmed the order of the trial Court by dismissing the appeal. Being aggrieved by the same, the accused is before this Court.
6. The main grounds urged by the learned counsel for the petitioner/accused are that there is inconsistency in the evidence of PWs.1 to 3. The said evidence is not trust-worthy and reliable. Even the said evidence, which was available, the trial Court without looking into the factual matrix of the case has come to a wrong conclusion and has rightly convicted the accused. It is his further submission that the presence of PW.3 at the spot is doubtful. He himself has admitted in his cross-examination that the vehicle involved is not a water tanker, under such circumstance; the Court below ought to have given the benefit of doubt and acquit the accused. It is further submitted that the evidence produced clearly goes to show that the prosecution has not proved the rash and negligent act of the accused and not even a single witness has deposed that the alleged incident has taken place due to the rash and negligent act of the petitioner/accused. In the absence of such material, the trial Court ought not to have convicted the accused. Further it is submitted that the statement of the accused recorded under Section 313 of Cr.P.C., is not in accordance with law. No proper opportunity has been given to the accused to explain the incriminating material as against him. It is further submitted that the Court below committed a serious error in convicting the accused. Further it is submitted that the petitioner/accused is as of now aged about 32 years and he has got a bright future. The sentence imposed is on the higher side, the same may be relaxed in the event, if this Court comes to the conclusion that the accused is liable to be convicted. On these grounds, he prayed to allow the petition and to set aside the impugned order of conviction and order of sentence.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that PWs.1 to 3 have categorically deposed before the Court that the driver of the water tanker has not taken the care while taking the tanker in a reverse manner that itself, amounts to rash and negligent act of the driver of the tanker. It is further submitted that PW.1, in her evidence has clearly stated that he has not given any indication and put any horn before he took the vehicle in a reverse manner that also amounts to nothing but the negligent act on the part of the petitioner/accused. It is further submitted that there is consistency in the evidence of PWs.1 to 3, they are eye-witnesses to the alleged incident and their evidence cannot be discarded. Though there are some minor discrepancies and inconsistencies, they are not going to root of the case of the prosecution so as to acquit the accused. Further it is submitted that the Court below as well as the First Appellate Court have considered the entire evidences and thereafter, they have rightly convicted the accused. On these grounds, he prayed to dismiss the appeal.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records including the lower Court record.
9. PW.1 is the daughter of the deceased and she was also present at the place of alleged incident. In her evidence, she has deposed that on 29.05.2012 at about 1.45 p.m., she was standing by talking near the house of her mother. At that time, a tanker bearing Reg. No.KA-05-9022, without giving any signal took in a reverse and dashed to her mother. Due to the force, mother fell down and the left side wheel of the tanker ran over her mother and she was breathing. Immediately, she was taken to Bowring hospital and in Bowring hospital, they informed that she is brought dead and filed a complaint as per Ex.P1. Police came to the spot and drawn the spot-mahazar as per Ex.P2. During the course of cross-examination, it is suggested that she was not present at the place of accident and at that time, she was there in the house. The said suggestion has been denied. Unfortunately, it has been suggested that at the time of alleged accident, the deceased has come to fetch the water by holding the pot. It is further suggested that she came to her mother’s house at about 12.00 or 12.30 p.m. and the water tanker left side wheel has ran over the stomach of the mother.
10. PW.2 has also reiterated the evidence of PW.1. During the course of cross-examination, it has been elicited that though the people are fetching the water, without blowing the horn of the tanker, the said tanker was taken in reverse and dashed to the standing women. As a result of the same, she sustained injuries. Though it is suggested that the deceased came running to fetch the water, at that time, she fell down and sustained injuries, the said suggestion has been denied.
11. PW.3 is also another eye-witness. She has also reiterated the evidence of PWs.1 and 2. The suggestions, which have been made, have been denied. Though it is brought on records that it was not a water tanker and the deceased has come to fetch the water by holding the pot but in order to substantiate his evidence, no other material has been produced.
12. PW.4 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused.
13. PW.5 is the PSI, who received the complaint as per Ex.P1 and registered the case in Crime No.84/2012 and thereafter, issued the FIR as per Ex.P9.
14. Though during the course of argument, the learned counsel for the petitioner/accused contended that there is no consistency in the evidence and there are so many variations and contradictions in the evidence of the prosecution witness, I have carefully and cautiously gone through the evidence of PWs.1 to 3.
15. Though there are minor contradictions in the evidence of these three witnesses, but consistently they have brought on record that the tanker bearing Reg. No.KA-05-9022 was taken in a reverse manner without blowing any horn or without there being any indication, as a result of the same, the alleged accident has taken place. Even during the course of cross-examination, nothing has been suggested or brought on record to show that the said vehicle has not been met with any accident.
16. When the petitioner/accused has not taken sufficient care in attempting the tanker to take in reverse, then under such circumstance, it can be held that the accused was rash and negligent at the time of taking the vehicle in a reverse manner. It is the contention of the learned counsel for the petitioner/accused that no witnesses have specifically stated that the alleged accident has taken place due to rash and negligent act of the accused, but the circumstances, which have been narrated clearly goes to show that the accused has not blowed any horn that nothing has been brought on record to show that he has taken all care which an ordinary prudent man should have taken in a ordinary course. If such evidence is brought on record, under such circumstance, it could have been appreciated. In the absence of any such material, only suggestions made in the case is that the deceased herself came to fetch the water by holding the pot and she fell down and sustained the injuries. Apart from that, nothing has been brought on record.
17. The material placed on record goes to show that the accused ought to have gone to the rare portion of the said vehicle to satisfy himself that nobody is there behind the vehicle before he is taking the said vehicle in a reverse manner. In that light, the accused has committed the accident, which amounts to nothing but rash and negligence and the said act is punishable under Sections 279 and 304(A) of IPC.
18. Looking from any angle the contentions raised by the learned counsel for the petitioner is not acceptable. The trial Court as well as the First Appellate Court have considered all the materials and have rightly come to a right conclusion and convicted the accused for the offences punishable under Sections 279 and 304(A) of IPC.
19. Another contention, which has been taken up by the learned counsel for the petitioner/accused is that the conviction and sentence imposed by the Court below is on higher side and it requires interference at the hands of this Court.
20. I have carefully and cautiously gone through the judgment of the trial Court. The judgment of the trial Court indicates that the accused has been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for further period of one month for the offences punishable under Section 304(A) of IPC and it is also sentenced to pay a fine of Rs.1,000/- in default, to undergo simple imprisonment for one month for the offence punishable under Section 279 of IPC.
21. By going through the factual matrix and other things, the said tanker has come to supply the water and even it goes to show that after the tanker was empty, the driver of the said tanker tried to take it reverse. At that time, the alleged incident has taken place. No doubt, he has not taken the pre-cautions by blowing the horn or by sending somebody or by coming himself on the back side of the vehicle to make the persons to move away from that place. In that light, he has not taken that much care. However, the circumstance under which the said incident has taken place has to be kept into view while imposing the sentence. In that light, a minimum sentence of six months as contemplated under Section 304(A) of IPC as held by the Hon’ble Apex Court is imposed, then that is going to meet the ends of justice.
22. In that light, the judgment of the trial Court has been modified and the accused has been convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for a period of one month, then it is going to meet the ends of justice. Insofar as the sentence imposed under Section 279 of IPC is confirmed.
23. In that light of the discussions held by me above, the petition is partly allowed and the judgment of the trial Court in C.C. No.1636/2012 insofar as the conviction is concerned, it is confirmed. The sentence is modified as indicated above.
Registry is directed to send back the lower Court record forthwith.
Sd/- JUDGE VBS