IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1079 OF 2010 BETWEEN:
State of Karnataka, By Terakanambi Police Station. .. Appellant ( By Sri Divakar Maddur, HCGP ) AND:
T.K.Mahendra, Son of Krishnanaika @ Angadi Kittu, Age : 23 years, Terakanambi, Gundlupet Taluk. .. Respondent ( By Sri R.Srinivasa Gowda, Advocate ) This Criminal Appeal is filed under Section 378(1) (3) of Cr.P.C praying to grant leave to file an appeal against the judgment and order of acquittal dated 9.8.2010, passed by the Civil Judge & JMFC, Gundlupet, in C.C.No.109/2008, acquitting the respondent/accused for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Sections 134(a)(b) read with Section 184 of Indian Motor Vehicle Act and Section 3 Clause (1) read with Section 192, Section 156 read with Section 177 of Indian Motor Vehicle Act.
This Criminal Appeal coming on for Final Hearing this day, the Court delivered the following:
JUDGMENT The respondent-State has filed the present appeal challenging the judgment of acquittal passed by the learned Civil Judge & JMFC, Gundlupet, (hereinafter for brevity referred to as `trial Court’), in C.C.No.109/2008, dated 9.8.2010, acquitting the present respondent for the offences punishable under Sections 279, 337, 338, 304-A of Indian Penal Code (hereinafter for brevity referred to as `IPC’), and Section 134 (a) (b) read with Section 184 of Motor Vehicles Act, 1988, (hereinafter for brevity referred to as `M.V.Act’), and Section 3 Clause (1) read with Section 192, Section 156 read with Section 177 of M.V.Act.
2. The summary of the case of the prosecution is that on 14.10.2007, at about 3.30 p.m., at Hulganamuradi Venkataramanaswamy Hill, near the last curve, the accused being the driver of the Autorickshaw bearing registration No.CRM 5362, drove the said vehicle towards Terakanambi in a rash and negligent manner so as to endanger human life and personal safety of others, due to which, the said vehicle toppled and as a result of which, one Sri Ananthamurthy, a passenger in the said vehicle, sustained grievous injuries and succumbed to it at Apollo Hospital, Mysuru, and three more passengers traveling in the same autorickshaw (CW-9, CW-10 and CW-11) sustained simple and grievous injuries.
It is also the case of the prosecution that immediately after the incident, the accused who was the driver of the vehicle in question, neither got any medical assistance to the injured in the accident nor informed to the nearest police station about the accident. The vehicle was without any registration or permit at the time of the accident.
3. Based upon the charge sheet filed by the complainant-police, the trial Court framed charges against the accused for the offences punishable under Sections 279, 337, 338, 304-A of IPC, Section 134(a)(b) read with Section 184 of M.V.Act and Section 192A, 196 read with Section 187 of M.V.Act. Since the accused pleaded not guilty, the prosecution in order to prove the guilt against the accused, examined eight witnesses from PW-1 to PW-8 and through them, got marked the documents from Exs.P-1 to P-10(a). Neither any witnesses were examined nor any documents were got marked from the accused side. The trial Court by its impugned judgment dated 9.8.2010, acquitted the accused of the alleged offences. It is against the said judgment, the respondent-State has preferred this appeal.
4. In this appeal, even after service of notice upon him, since there was no representation from the respondent’s side, this Court by its order dated 2.11.2018, appointed learned counsel Sri R.Srinivasa Gowda, from the panel of Karnataka High Court Legal Services Committee, Bengaluru, as the counsel to defend the interest of the respondent/accused.
5. Lower Court records were summoned and the same were placed before this Court.
6. Heard the arguments of learned counsel from both side and perused the materials placed before the Court, including memorandum of appeal and the impugned judgment.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. Among the eight witnesses examined by the prosecution, PW-1 (CW-1) Sri Srinivasamurthy, is the complainant. In his evidence, he has stated that on 14.10.2007, he, joined by his wife Smt.Susheela, daughter–Keerthana, his maternal uncle Ananthamurthy and his nephew Harish, in order to proceed to Terakanambi Sri Venkataramanaswamy Temple, came from Shivamogga to Mysuru, from there, proceeded to Gundlupete in KSRTC bus, from there, they went to Terakanambi in KSRTC bus and engaged an autorickshaw to proceed to temple and to come back on hire basis. Accordingly, they went to the temple in the said autorickshaw which was being driven by the accused and after offering prayer to the god in the temple, while they were returning in the said autorickshaw being driven by the very same accused, while negotiating in the last curve in climbing down the hill, due to rash and negligent driving of the autorickshaw and also due to the speed it was maintaining, the autorickshaw turned turtle on its right side, due to which, the inmates in the autorickshaw i.e., daughter Keerthana, wife – Smt.Susheela and Harish sustained injuries, his maternal uncle Ananthamurthy also sustained head injuries. However, he (the witness) did not sustain any injury, so also, the auto driver. It was 3.30 p.m. in the afternoon at the time of the accident. From there coming to Terakanambi, he shifted the injured to Apollo Hospital at Mysuru, for treatment in a Tata Sumo motor vehicle. Since he had to take care of the injured patients and to attend to them, he could not immediately lodge the complaint with the police. On 21.10.2007, the injured Sri Ananthamujrthy succumbed to the injuries. On the said day i.e., on 21.10.2007, he went to Terakanambi Police Station and lodged a complaint. He has identified the complaint at Ex.P-1.
He has also stated that on 23.10.2007, the police visited the spot as shown by him and drew a scene of offence panchanama as per Ex.P-2. The witness has categorically stated that the autorickshaw in which they were traveling was bearing registration No.CRM 5362 and the accident has been caused due to the fault of the autorickshaw driver.
He was subjected to a detailed cross-examination from the accused side.
9. PW-2 - Nagaraju, Archaka of Hulugana Murali Venkataramana Temple, has stated that the complainant Sri Srinivasamurthy, joined by seven other people, had visited the temple for darshan on the alleged date of incident. He heard that an autorickshaw met with an accident on the same day and the police also drew a panchanama few days after the accident, for which scene of offence panchanama, he has put his signature in the police station. Since according to the prosecution, he was a pancha witness for the said scene of offence panchanama, but the witness has stated that he has subscribed his signature in the police station. The witness was treated as hostile and was permitted to be cross-examined.
Even in his cross-examination, he adhered to his original version. He was not subjected to cross- examination from the accused side.
10. PW-3 (CW-9) Smt.Susheela, wife of PW-1 Srinivasamurthy, has led her evidence on the similar lines with that of her husband i.e., PW-1. She has also stated that on the alleged date, she joined by her husband, daughter - Keerthana, Harish and Sri Ananthamurthy, the maternal uncle of her husband, had been to Venkataramanaswamy Temple from Terakanambi in an autorickshaw that was being driven by the accused. When they were returning, while negotiating the last curve of the hill, the autorickshaw turned turtle, wherein she sustained injuries to her head and cheek, Sri Ananthamurthy sustained injuries to his head, Harish sustained fracture on his right hand and her daughter, Keerthana also sustained injuries. It was 3.30 p.m. on the said day when the accident took place. By identifying the accused in the Court, she also stated that the accused was driving the autorickshaw in a rash and negligent manner, due to which, the accident had occurred. She further stated that Sri Ananthamurthy succumbed to the injuries on 21.10.2007.
She also stated that despite such an incident and inmates sustaining injuries, the accused did not got them any medical facility nor took them to the hospital nor even informed the police about the incident.
She was also subjected to detailed cross- examination from the accused side.
11. PW-4 – Murthy though was projected by the prosecution as a witness to the scene of offence panchanama, which panchanama was marked at Ex.P-2 and also seizure panahcanama at Ex.P-3, has stated in his evidence that he has signed to both the panchanamas in the police station. Even after treating him as hostile, the prosecution could not get any further support from him in the matter.
12. PW-5 - H.R.Balakrishnaraju, the Police Sub-Inspector of the complainant-police station has stated about he receiving and registering the complaint given by Sri Srinivasamurthy on 21.10.2007 in their station Crime No.75/2007, against the accused as per Ex.P-1 and preparing FIR as per Ex.P-8 and handing over further investigation to PW-8.
13. PW-8 – B.C.Chandrashekar, then Assistant Sub-Inspector of the complainant police station has stated about he conducting further investigation in the matter, wherein he is said to have drawn inquest panchanama on the dead body of the deceased in the presence of panchas as per Ex.P-4 and got the dead body of the deceased Ananthamurthy post mortem examination done through the doctor.
He has also stated that he has drawn scene of offence panchanama on 23.10.2007 as per Ex.P-2 and also prepared a rough sketch of the spot as per Ex.P-10. He has further stated that his staff deputed for apprehending the accused, have produced both, the accused and the autorickshaw causing the accident i.e., vehicle bearing registration No.CRM 5362, before him on 23.10.2007, which autorickshaw, he seized by drawing the seizure panchanama as per Ex.P-3 in the presence of panchas. He has also identified the accused in the Court.
14. PW-6 - Venkatesh, the Circle Police Inspector, has stated about he conducting further investigation in the matter after taking it over from PW-8- B.C.Chandrashekar. He has stated that during the course of investigation, he has recorded the statement of witnesses, collected wound certificates and post mortem examination report and also got the vehicle examined by the Motor Vehicle Inspector and collected his report as per Ex.P-9 and finally completing the investigation, has filed the charge sheet against the accused.
15. PW-7 – Lakshminarayana, the Motor Vehicle Inspector of the Regional Transport Officer, at Chamarajanagar, has stated about he conducting the inspection of the autorickshaw bearing registration No.CRM 5362, on 8.11.2007, at the request of the complainant police and gave his report as per Ex.P-9. He has stated that from his examination, he noticed that the brakes of the vehicle were in order and that there was no mechanical defect with the vehicle.
PWs.5, 6, 7 and 8 were cross-examined from the accused side, wherein the denial suggestions made to them were admitted as true by them.
16. The accident in question and PW-3 – Smt.Susheela, her daughter – Keerthana and their relative one Sri Harish, joined by deceased Ananthamurthy and Sri Srinivasamurthy, traveling in the autorickshaw on the ill-fated day on 14.10.2007, from Shivamogga to Terakanambi Venkataramanaswamy Temple and were returning at the time of accident from the temple in the very same autorickshaw, which was being driven by the accused, is not in dispute. PW-1 and PW-3 being inmates of the vehicle, among them, PW-3 herself is an injured, have given evidence to that effect. Added to the same, in the cross-examination of PW-1 done from the side of the accused, it was specifically suggested that at the time of accident, the accused was driving the vehicle in a slow speed and that since there were more number of passengers in the autorickshaw, it met with an accident. Though the said suggestion was not admitted as true by PW-1, but, by making the said suggestion, the accused had admitted the occurrence of the accident, so also, the fact that he was traveling in the autorickshaw at the time of the accident. The undenied evidence of PW-1 that the autorickshaw which was the subject matter of accident was bearing registration No.CRM 5362, has not been denied in the cross-examination of the said witness.
It is also not denied that the evidence of PW-1, as well PW-3, that due to the said accident, Sri Ananthamurthy sustained injuries and succumbed to it while under treatment on 21.10.2007 in the hospital and Keerthana and Harish also sustained injuries, apart from PW-3 Smt.Susheela. It also establishes that in the said accident, Sri Ananthamurthy sustained injuries and succumbed to it and apart from PW-3 – Smt.Susheela, her daughter – Keerthana and one Sri Harish, also sustained injuries. The evidence of PW-3 to that effect has also not been denied in the cross-examination specifically, done from the accused side.
17. On the other hand, the post mortem report, which is at Ex.P-5, further corroborates the evidence of PW-1 and PW-3, so also, the evidence of the Investigating Officers i.e., PW-8 and PW-6 who have stated that in the said accident, Sri Ananthamurthy sustained injuries and succumbed to it while under treatment. The evidence of PW-1 and PW-3 that in the accident, Sri Ananthamurthy sustained injuries to his head and later succumbed to the injuries in the hospital, apart from having remained not denied from the accused side, is further corroborated by the post mortem report at Ex.P-5, which also go to show that the deceased is shown as an injured in a motor vehicle accident case and that he had sustained head injuries. The doctor has opined that the death of the deceased was due to coma as a result of head injuries sustained by him.
18. The evidence of PW-1 and PW-3 that (in the accident, apart from PW-3, their daughter Keerthana and one Sri Harish, also sustained injuries) apart from having not been denied in their cross-examination from the accused side, is also corroborated by the wound certificates at Exs.P-6 and P-7, which undenied documents clearly go to show that both Sri Harish and Keerthana, were treated at BGS Apollo Hospital at Mysuru, with a history of road traffic accident on 14.10.2007, near Terakanambi by toppling of an autorickshaw. The doctor has diagnosed that both of them have sustained injuries. According to the medical certificate, injured Harish had sustained grievous injuries, including a fracture of the lower end of right radius and the injuries sustained by Keerthana were simple in nature. Thus, the evidence of PW-1 and PW-3, corroborated by these medical certificates clearly go to show that in the said accident, Sri Ananthamurthy sustained injuries and succumbed to it on 21.10.2007 and Sri Harish and Ms.Keerthana sustained grievous and simple injuries respectively.
19. As already observed, the undenied evidence of PWs.1 and 3, clearly go to establish that the said accident in question, involving the said autorickshaw bearing registration No.CRM 5362, has been caused due to rash and negligent driving by none else than the accused, whom, PW-1 and PW-3 have identified as the driver of the autorickshaw. It is also noteworthy that the name and identity of the said driver had been at the earliest point of time revealed by the complainant in the complaint itself. Thus, it is proved beyond reasonable doubt that the accident in question has occurred on 14.10.2007 due to the rash and negligent driving of the autorickshaw by the accused, wherein PW-3 – Smt.Susheela, Ms.Keerthana and Sri Harish sustained injuries and another inmate Sri Ananthamurthy, apart from sustaining injuries in the accident, subsequently i.e., on 21.10.2007, succumbed to it.
20. Learned counsel for the respondent in his argument submitted that there is an inordinate delay in lodging the complaint, as such, it invites doubt in the case of the prosecution.
No doubt, there is a delay of seven days in registering the crime in the case on hand. However, it has to be noticed that the complainant in his complaint itself has clearly stated that he being the closest relative of the injured person, who were more than one in number, had to attend to their medical treatment in the hospital, as such, he was attending to the injured in the hospital, which has caused delay in lodging the complaint. The same reason has also been given by PW-3, another injured. She has also stated that her husband i.e., PW-1 since was involved in getting them treatment in the hospital, he lodged the complaint after the death of Sri Ananthamurthy.
The said explanation given by the witnesses explaining the delay, has not been denied or disputed in the cross-examination of those witnesses. As such, merely because there is a delay, which delay has been properly explained by the complainant, as well by PW-3, the said delay cannot be taken as a fatal to the case of the prosecution. Thus, it is proved beyond reasonable doubt that the accused has committed the offences punishable under Sections 279, 337, 338, 304-A of IPC.
21. The evidence of PWs.1 and 3, who were the inmates in the accident, which has remained undisputed, also go to show that immediately after the accident, the accused did not bother to get any medical treatment nor informed about the accident to the nearest police station. No doubt, PW-3 in her evidence has stated that the accused was present in the spot after the accident, but, the same does not give any inference that he procured or he got any medical assistance to the injured or that he informed to the nearest police station about the accident. Thus, the mere presence of the accused while injured were being shifted to hospital by some other people cannot by itself be considered that the accused got them any medical assistance. As such, it is also proved beyond reasonable doubt that the accused has committed an offence punishable under Section 134 (a)(b) read with Section 184 of M.V.Act.
22. Apart from the offences punishable under Sections 279, 337, 338, 304-A of IPC and under Section 134 (a) (b) read with Section 184 of M.V.Act, the accused was also charged by the trial Court for Section 192A, 196 read with Section 187 of M.V.Act.
23. A careful examination of the evidence of all the prosecution witnesses go to show that none of them, including the Motor Vehicle Inspector and the Investigating Officers anywhere stated in their evidence that the autorickshaw in question was being run by its owner or the driver without permit and that the vehicle had no valid insurance at the time of the accident. As such, in the absence of any material, including the oral evidence by any of the prosecution witnesses to that effect, it cannot be held that the prosecution has proved the guilt of the accused under Section 192A, 196 read with Section 187 of M.V.Act.
24. The trial Court even though has come to a conclusion that accident in question has occurred on the date, time and place as agitated by the prosecution and that the accused was riding the vehicle, but it had given the reason for the acquittal of the accused that there were more number of passengers in the autorickshaw than the original capacity, which shows the negligence on the part of the complainant and his relatives.
25. It is to be reiterated that, the evidence of PW-3, who is said to be an injured in the accident, clearly go to show that while scaling down the hill, in a curve, the accused had not controlled the speed of the vehicle. The only defence of the accused, as suggested to PW-3 in the cross-
examination, is that the accident has occurred due to the fault of the inmates putting more pressure on the right side, however, the said suggestion was not admitted as true by the witness. The trial Court enlarged the said evidence itself as a doubtful fact and substantiating it with its own logic and reasoning, has opined that the traveling of the alleged excess passengers in the autorickshaw is the cause of the accident and the same cannot be treated as negligence on the part of the driver. It cannot be ignored that the accused being the master of the vehicle had allowed them to travel in his autorickshaw.
26. Thus, the said reasoning given by the trial Court in exonerating the accused of the alleged guilt is not convincing and is an erroneous finding. As such, the judgment of acquittal passed by the trial Court with respect to acquitting the accused for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act, deserves to be set aside and the accused/respondent is required to be convicted for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act. However, the acquittal of the accused under Section 192A, Section 196 read with Section 187 of M.V.Act, does not require any interference at the hands of this Court.
(It is to be noticed that the charge framed against the accused apart from Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act, and Section 192A, 196 read with Section 187 of M.V.Act, however, the trial Court, apart from acquitting the accused for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act, has pronounced the judgment of acquittal for Section 3 Clause (1) read with Section 192, Section 156 read with Section 177 of M.V.Act).
Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed-in-part.. The judgment of acquittal dated 9.8.2010, passed by the learned Civil Judge & JMFC, Gundlupet, in C.C.No.109/2008, acquitting the respondent/accused for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act, is set aside and the respondent/accused by name – T.K.Mahendra, son of Krishnanaika @ Angadi Kitty, residing at Terakanambi, Gundlupet Taluk, is convicted for the offences punishable under Sections 279, 337, 338, 304-A of IPC and Section 134(a)(b) read with Section 184 of M.V.Act.
Heard the learned counsel from both side on sentence part.
While the learned HCGP for the appellant/ complainant submits for awarding maximum sentence for the offence for which the respondent/accused is convicted, the learned counsel for the respondent/accused submitting that accused is a family holder and a respectable person in society, prays for taking a lenient view.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.
Considering the facts and circumstances of the case, the accused is sentenced to undergo three months simple imprisonment for the offence punishable under Section 279 of IPC, to undergo three months simple imprisonment for the offence punishable under Section 337 of IPC, to undergo one year simple imprisonment for the offence punishable under Section 338 of IPC, to undergo one year simple imprisonment and to pay fine of `5,000/- for the offence punishable under Section 304-A of IPC, in case of default of payment of fine, to undergo simple imprisonment for a period of three months, to undergo simple imprisonment for a period of one month for the offence punishable under Section 134 (a) (b) of M.V.Act, and to undergo three months simple imprisonment for the offence punishable under Section 184 of M.V.Act. All sentences to run concurrently.
The period of judicial custody which the accused had undergone, if any, during the pendency of the matter, be given set off under Section 428 of Cr.P.C.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction, if necessary and proceed in accordance with law.
An entire copy of this judgment also be delivered to the respondent/accused, immediately free of cost.
Considering the assistance rendered by the learned counsel for the respondent from the panel of High Court Legal Services Committee, Bengaluru, the Court is of the opinion that the High Court Legal Services Committee to consider the honorarium payable to the learned counsel for the respondent at a sum not less than a sum of `5,000/-.
Sd/- JUDGE bk/