IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.485 OF 2011 BETWEEN M Sridhara Aged about 34 years S/o Mahadevappa D.No.60, ‘B’ Main 22nd Cross, K.P.Agrahara Bhuvaneswarinagar Bangalore.
(By Sri. P. Nataraju, Advocate) AND State of Karnataka By Devaraja Traffic Police Mysore, Represented by State Public Prosecutor High Court Building Bangalore-1.
(By Sri. Thejesh .P - HCGP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397(1) of the Code of Criminal Procedure, praying to, set aside the order dated 15.07.2010 passed by the I-Additional Sessions Judge, Mysore in Crl.A.117/09 and order dated 18.07.2009 passed by the J.M.F.C. – III, Mysore in C.C.No.2402/2007.
This Criminal Revision Petition Coming on for Hearing, this day, the court made the following:
ORDER Heard the learned counsel Sri. P. Nataraju for the petitioner and the learned HCGP Shri Thejesh for the State.
2. This Criminal Revision Petition is directed against the judgment passed by the Appellate Court in Crl.A.No.117/2009 dated 15.07.2010 dismissing the appeal and thus confirming the impugned judgment of conviction and sentence passed by the Trial Court in C.C.No.2402/2007 dated 18.07.2009. The Trial Court had convicted accused – petitioner herein for offence under Sections 279 of IPC and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.1,000/-; had convicted the accused – petitioner herein for offence under Section 337 IPC and sentenced him to pay a fine of Rs.500/-; had convicted the accused for offence under Section 304A IPC and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/-; and convicted him for offence under Section 134(a)(b) read with Section 187 of the IMV Act to pay a fine of Rs.100/- along with default clauses. Thus, the petitioner has been convicted for offences under Sections 279, 337 304A of IPC and under Section 134(a)(b) read with Section 187 of the IMV Act. The Appellate Court had dismissed the appeal filed by the accused and thus confirmed the order of conviction and sentence of the Trial Court, by its order dated 15.07.2010 in Crl.A.No.117/2009. It is against the said judgment that the petitioner has preferred this petition.
3. The factual matrix of the petition as per the case put forth by the prosecution is as follows:
On the basis of the complaint lodged by one C. Umesh on 12.07.2006, the Devaraja Traffic Police had registered a case against the accused – petitioner herein for offence under Sections 279, 337, 304A IPC and under Section 134(a)(b) read with Section 187 of the IMV Act. It was alleged in the complaint that on 12.07.2006 at about 12.15 p.m. when the complainant C. Umesh along with his wife as pillion were proceeding on his TVS Moped bearing Regn.No.KA-09-K-2274 towards Race Course and when they neared the entrance gate of Karanjikere, a lorry bearing Regn.No.KA-01-B-5756 had come from the opposite direction in a rash and negligent manner and dashed to the moped. Due to the impact, the complainant fell on the left side of the road and his wife who was riding pillion had fallen to the right side of the road as a result of which the lorry had run over her and she had died on the spot. The complainant as well had sustained bleeding injuries. After causing the accident, the driver of the lorry had stopped the lorry at a distance and walked away from the spot. But however the complainant had seen the driver as well as the registration number of the lorry that caused the accident. Hence, he lodged a complaint to the above effect requesting the police to initiate legal action against the driver of the offending lorry. The police then registered a case against the driver – accused and after conducting investigation, filed a charge sheet against him for offences under Sections 279, 337 and 304A IPC and under Section 134(a)(b) read with Section 187 of the IMV Act.
The Magistrate then took cognizance and after securing the presence of the accused, framed charges for alleged offences. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined twelve witnesses as PWs 1 to 12 and got marked five documents as Exhibits P1 to P9. Thereafter, the incriminating statement of the accused was recorded under Section 313 Cr.P.C. However he did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C., The learned Magistrate, after hearing the arguments of both sides, by its judgment dated 18.07.2009 convicted the accused for the alleged offences and sentenced him as aforesaid.
Being aggrieved by the judgment of conviction and sentence of the Trial Court, the accused challenged the said judgment by way of Crl.A.No.117/2009. The Appellate Court on a re-appreciation of the evidence on record, dismissed the appeal and confirmed the conviction and sentence rendered by the Trial Court. It is this order which is under challenge in this petition urging various grounds.
4. The learned counsel for the petitioner contends that both the courts below have erred in convicting the accused by relying on the evidence of PW-1 Umesh, author of the complaint at Exhibit P1 and so also the husband of the deceased Kusuma. PW-1 has been cited as the eye-witness on the part of the prosecution, he being the rider of the TVS Moped with the deceased his wife Kusuma as the pillion rider. PW-3 Deepu and PW-
2 Manju also are stated to be eye-witnesses but however, it is the contention of the learned counsel for the petitioner that PW-3 Deepu has not supported the case of the prosecution but has partially withstood the version of his statements, which is contrary to the evidence of PW-1. PWs 4 and 5 are said to be the panch witnesses in respect of the scene of offence.
It is the further contention of the learned counsel that PWs 2 and 3 have not at all identified the lorry and they are not the eye-witnesses to the accident. Further, the Trial Court has ignored the fact that there are contradictions in the evidence of PW-2 and PW-5. It is the further contention of the learned counsel that though it is stated that the lorry was driven at a high speed by the accused, the material on record clearly shows that the scene of offence is a busy road and there is always a traffic police giving signal, due to which the said lorry could not have been driven at a high speed. Thus the learned counsel for the petitioner – accused contends that there are contradictions and inconsistencies in the evidence of the eye-witnesses which the courts below have ignored while holding conviction against the accused.
It is the further contention of the learned counsel that the evidence of PW-9 Motor vehicle Inspector reveals that there was no technical defect in the vehicles involved. Further, he had stated that the damage caused to the lorry as mentioned in Exhibit P5 was possible to have been caused due to the rash and negligent riding of the TVS moped by its rider – the complainant himself whereby he would have dashed against the lorry which was coming from the opposite direction and would have caused the accident. This evidence of PW-9 has been ignored by both the courts below while convicting the accused.
Lastly it is contended by the learned counsel that both the courts below have not taken into account several mitigating factors while imposing punishment against the accused, particularly, while directing separate punishments for the offence punishable under Sections 279, 337, 304A of IPC and under Section 134(a)(b) read with Section 187 of the IMV Act. It is his further contention that the courts below have proceeded by applying the principle of res ipsa loquitor while holding the accused guilty, which is illegal.
On all these grounds, the learned counsel for the petitioner prays that the order of conviction and sentence passed by the Trial Court in C.C.No.2402/2007 dated 18.07.2009 which was affirmed by Appellate Court in Crl.A.No.117/2009 by order dated 15.07.2010 be set aside and the petitioner be acquitted of the offence leveled against him.
5. Per contra, learned HCGP for the State contends that the Investigating Officer who has been examined as PW-10 has drawn the spot sketch which is marked as Exhibit P7. According to this spot sketch, the width of the road at the scene of offence was about 21 feet. There was a footpath measuring 8 feet on either side of the road. The offending lorry was said to be proceeding from Boulevard Circle towards Lalit Mahal. The TVS Moped was coming from Lalit Mahal side towards circle. The accident is said to have occurred at the spot which is just about 9 feet from the left side of the road while coming from Lalit Mahal. The spot sketch at Exhibit P-7 reveals that the lorry had come completely towards its right side. The accused being the driver of the lorry having not given any explanation as to why he had taken the lorry towards his right, the learned HCGP contends that both the courts below were justified in convicting the accused. Hence, the learned HCGP contends that the order passed by both the Trial Court and the Appellate Court being just and proper, needs no interference in this revision petition.
6. On a careful consideration of the contentions advanced by the learned counsel for the petitioner - accused and the learned HCGP and having regard to the material on record, it is seen that the courts below have erred in convicting the petitioner for the alleged offences in the absence of legally acceptable and clinching evidence. It is seen that the prosecution has not at all placed cogent, corroborative and consistent evidence in order to prove the guilt of the accused beyond all reasonable doubt. Further, there are contradictions and inconsistencies in the evidence of the eye-witnesses which the courts below have ignored while holding conviction against the accused.
It is seen that PWs 2 and 3 have not at all identified the lorry and they are not the eye-witnesses to the accident. Further, the Trial Court has ignored the fact that there are contradictions in the evidence of PW- 2 and PW-5. In view of the fact that the road where the accident occurred was a busy road and a Traffic Police Inspector being present at the signal, the contention of the learned counsel that the lorry could not have been driven at a high speed and in a rash and negligent manner, requires to be accepted. Further, the possibility of the accident having occurred due to the negligence and rash riding of the complainant himself also cannot be ruled out. The lorry driver having swerved the lorry to the right side of the road also may have been due to he having tried to avoid the accident by taking the lorry to the right side of the road. Hence, there was possibility for the accident to have occurred due to an error of judgment and not due to negligence or want of driving skill on the part of the accused. But however, the fact that the wife of the complainant Kusuma having died as a result of the same causing irreparable loss to the complainant, also cannot be lost sight of by this court.
7. At a cursory glance of the evidence of the witnesses, it is seen that they do not corroborate each other and further there are inconsistencies and contradictions in the case put forth by the prosecution. When there are inconsistencies and contradictions, the benefit of doubt shall accrue in favour of the accused. Hence, I am of the opinion that the prosecution has failed to establish the guilt of petitioner – Accused for the offences alleged beyond all reasonable doubt.
In view of the totality of circumstances of the case as well as considering the mitigating circumstances and since the offences alleged against the accused have not been proved by the prosecution beyond all reasonable doubt by placing cogent, corroborative and consistent evidence, I am of the opinion that the courts below ought to have imposed fine for the alleged offences instead of imposing sentence of simple imprisonment. However, I am of the opinion that the sentence of imprisonment of one month imposed under Section 279 IPC could be set-aside but however retaining the fine amount of Rs.1,000/-. Further, the sentence of imprisonment under Section 304A IPC could be set aside and in addition to the fine amount of Rs.2,000/- imposed by the Trial Court for the said offence, if additionally an amount of Rs.28,000/- is imposed, it would meet the ends of justice and would also provide some sort of solace to the complainant. Further the fine of Rs.100/- imposed for the offence punishable under Section 134(a)(b) read with Section 187 of the IMV Act could be intact.
Accordingly, I proceed to pass the following:
ORDER This revision petition is allowed in part. Consequently, the judgment of conviction and sentence rendered by the Trial Court in C.C.No.2402/2007 dated 18.07.2009 which was further affirmed by the Appellate Court in Crl.A.No.117/2009 dated 15.07.2010 is modified as under:
The sentence for the offence punishable under Section 304A IPC is modified to the extent of setting aside the period of six months simple imprisonment. But since the condition imposed to pay Rs.2,000/- as fine is found to be inadequate, the same is enhanced by another sum of Rs.28,000/- in addition to Rs.2,000/- already imposed by the Trial Court and affirmed by the Appellate Court. Further, the order regarding the sentence to undergo simple imprisonment for a period of one month for the offence punishable under Section 279 IPC is hereby set aside. However, the sentence to pay fine amount in a sum of Rs.1,000/- for the offence under Section 279 IPC and the sentence to pay fine amount in a sum of Rs.500/- for offence under Section 337 IPC and the sentence to pay fine amount of Rs.100/- for the offence punishable under Section 134(a)(b) read with Section 187 of the IMV Act shall remain intact. The impugned order of the Trial Court which was further affirmed by the Appellate Court is thus modified accordingly.
The petitioner – accused is hereby directed to pay a fine of Rs.30,000/- for the offence under Section 304A IPC, which shall be termed as compensation under Section 357 Cr.P.C. payable to PW-1 Umesh, the complainant, on proper identification.
Sd/- JUDGE KS