Full Judgment Text
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 7 DAY OF AUGUST, 2012
B E F O R E
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.471/2010
BETWEEN:
K.S. Venkatesh,
Son of K.Srinivas,
Aged about 43 years,
Residing at No.1335,
Krishna Temple Street,
V.L. Colony, Kadugodi,
Bangalore.
... PETITIONER
(By Sri T. Srinivasan, Adv.)
AND:
State of Karnataka,
By Hoskote Police Station.
... RESPONDENT
(By Sri Vijayakumar Majage, HCGP)
This Crl.R.P. is filed under S.397 r/w 401 Cr.P.C.
praying to set aside the judgment in Crl.A.No.39/2008
dated 21.1.2010 passed by the P.O.,
FTC-II, Bangalore Rural District, Bangalore and
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consequently set aside the judgment of the Civil Judge
(Jr.Dn.) & JMFC., Hoskote in C.C.No.425/1999 and acquit
the petitioner /accused.
This Crl.R.P. coming on for final hearing this day, the
Court made the following:
ORDER
The petitioner faced trial for offences punishable
under Ss.279, 337, 338 and 304-A of the Indian Penal
Code, 1860 (for short ”IPC”). The petitioner was found
guilty and was convicted by the learned Magistrate and
was imposed various sentences, which were directed to
run concurrently. The maximum sentence imposed was
one year imprisonment and fine of ` 2,000/- for the
offences under Ss.279 and 304-A IPC. In case of default
to pay the fine amount, sentence of simple imprisonment
for a period of 3 months was imposed.
2. Background facts of the case in a nutshell are as
follows:
On 24.6.1999, the accused-petitioner was the driver
of a Maxi Cab bearing registration No.KA-40-2233. He was
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carrying passengers in the said vehicle from Kadugodi to
Hoskote on National Highway-4. When the vehicle reached
near Shiva Garden, situated within the limits of Hoskote
Police Station, at about 10.30 a.m., while he was
overtaking another vehicle, took the vehicle to his extreme
right side and dashed against a lorry bearing registration
No. MYN-4874, which was coming in the opposite direction
and due to the impact, both the vehicles capsized. As a
result, the stone slabs which were being carried in the
lorry, fell on Thimmaiah and Shankar, the inmates of the
lorry and they sustained grievous injuries and succumbed
at the spot. The cleaner of the Maxi Cab, one Ambarisha,
also sustained grievous injuries and succumbed on the
same day, at about 3.45 p.m., at Bowring Hospital, while
undergoing treatment. The passengers and other inmates
of the vehicles i.e., CWs-2 to 19, sustained grievous
injuries and CWs- 20 to 30, sustained simple injuries. On
a complaint received, a case was registered against the
petitioner, in Crime No.203 of 1999, by the Hoskote police
and First Information Report was sent to the Court. The
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police prepared the site plan. The vehicles were got
examined from the Motor Vehicles Inspector. The
postmortem reports and MLCs of the injured were taken
into possession and after recording the statements of the
witnesses, charge sheet was filed for the offences
punishable under Ss.279, 337, 338 and 304-A IPC.
Summon was issued to the petitioner in C.C.No.425/1999.
Upon appearance, charge was framed and put to the
accused, to which he pleaded not guilty and claimed trial.
3. Prosecution, in order to prove the accusation,
examined the injured and the eye-witnesses, a doctor who
conducted the postmortem on the bodies of deceased
Thimmaiah and Shankar, one Ameer Jan, the spot
mahazar witness and B.B. Rajanna, the Investigation
Officer, who had conducted the investigation in part. With
consent, inquest mahazars of deceased Thimmaiah,
Shankar and Ambarish and the Postmortem report of
deceased Ambarish was marked. The prosecution, to bring
home the guilt of the accused, examined 22 witnesses and
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marked Exs.P.1 to P.16. Incriminating materials were put
to the accused by examining him under S.313 of Cr.P.C. It
is a case of denial. Later, accused deposed as DW-1.
After hearing the arguments, learned Magistrate
pronounced judgment and convicted the petitioner for the
said offences and awarded the sentence. Aggrieved, the
accused preferred a Criminal Appeal in the Sessions Court.
The case was made over to the Presiding Officer, Fast
Track Court. Learned Judge, upon perusal of the record of
the case and after hearing the learned Advocates on both
sides, pronounced judgment and dismissed the appeal.
Feeling aggrieved, the accused has filed this Criminal
Revision Petition.
4. Sri T. Srinivasan, learned Advocate contended
that, the complainant/CW-1 and CWs. 3, 5, 6 and 11 were
not examined and that, PWs. 2, 5, 9, 12, 13, 14, 15, 17,
18, 19, and 21 did not fully support the case of the
prosecution and were treated as hostile witnesses and
though the prosecution did not place credible evidence
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with regard to rash or negligent driving of the Maxi Cab by
the petitioner, without correctly appreciating the evidence,
petitioner has been illegally convicted. He contended that
the essential ingredients of Ss.279, 337, 338 and 304-A,
IPC has not been made out and hence the judgment of
conviction passed and the sentence imposed is illegal. He
submitted that, the legal doctrine res ipsa loquitur,
whereupon reliance has been placed by the Courts below,
has no application and that there is a misdirection adopted
in the matter. He submitted that the prosecution having
failed to prove its case beyond all reasonable doubts,
interference in the matter is called for. Alternatively, he
submitted that the petitioner may be extended with the
benefit of Probation of Offenders Act, 1958.
5. Sri Vijayakumar Majage, learned HCGP, on the
other hand contended that, the petitioner was the driver of
offending Maxi Cab and for the purpose of finding out the
guilt on the part of the petitioner, both the Courts below
have examined the entire record of the case, which
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includes the evidence of the injured and the eye witnesses
and that the offending vehicle having no mechanical
defect, the petitioner having not been able to make out
any error of judgment, in view of the material
circumstances, the findings recorded are justified. He
submitted that the petitioner having driven the Maxi Cab in
rash and negligent manner, having gone deep into the
right side lane, dashed to the lorry coming from the
opposite direction, which resulted in a head on collision
between the two vehicles. He referred to the spot mahazar
and the rough sketch and submitted that, in the
circumstances of the case, the Courts below are justified in
applying the legal doctrine res ipsa loquitur.
6. In view of the rival contentions and the record of
the case, which was perused by me, the point that arises
for determination is:
Whether the Courts below are justified in convicting
the petitioner for the offences punishable under
Ss.279, 304-A, 337 and 338 IPC and in sentencing
him?
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7. Petitioner, while deposing as DW-1, has admitted
that, on 24.5.1999, between 10.00 a.m., and 10.30 a.m.,
he was driving Maxi Cab KA-40-2233 from Kadugodi
towards Hoskote and at that point of time, lorry No. MYN
4874, loaded with stone slabs and with 4–5 inmates, came
from the opposite direction and dashed to his vehicle.
Thus, the fact that, the petitioner was the driver of Maxi
Cab KA-40-2233, at the time of occurrence of accident is
admitted. PWs.6 to 17, 19 and 20 have deposed that the
accident occurred due to the fault of the driver of the Maxi
Cab. PWs.12 to 16, who were the inmates of the Maxi
Cab, have deposed that the Maxi Cab was driven in high
speed by the petitioner and also the fact of dashing of the
same to the lorry. Ex.P12 is the Spot mahazar and Ex.P16
is the Sketch. The Maxi Cab driven by the petitioner, while
trying to over take another vehicle, has gone to the
extreme right side of National Highway-4 and dashed to
the lorry coming from the opposite direction. From Ex.P12,
it is clear that the road is about 22 feet wide, with 8 feet
mud road – footpath, on either side of the asphalted road.
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The accident has occurred within 4 feet of the right side
edge of the asphalted road. Ex.P16 shows that the Maxi
Cab having fallen on the 8 feet mud road – footpath, on
the right side of the road. Accused was driving the vehicle
towards Hoskote from Bangalore side and the vehicle, in
the ordinary course, ought to have been on the left side of
the road. The fact that, the vehicle driven by the
petitioner was found on the right side mud road – footpath
of the National Highway–4 shows that, while overtaking
another vehicle, the petitioner dashed head on to the lorry
coming in the opposite direction, i.e., from Kolar towards
Bangalore. The lorry has remained on its lane. Looking to
the circumstances existing on the spot, an inference can
be drawn about the rash and negligent driving of the Maxi
Cab by the petitioner. Hence, the Courts below are
justified in applying the legal doctrine res ipsa loquitur.
8. S.279 IPC makes rash driving or riding on a public
way so as to endanger human life or likely to cause hurt or
injury to any other person, an offence. Causing death by
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negligence is an offence under S.304-A IPC. Causing hurt
by an act endangering life or personal safety of others is
an offence under S.337 of IPC. Causing grievous hurt by
an act endangering life or personal safety of others is an
offence under S.338 IPC.
9. The three essential things, which are required to
be proved, for an offence under S.304-A IPC are; (1)
death of human being; (2) the accused causing the death;
and (3) the death was caused by doing of a rash or
negligent act, though it did not amount to culpable
homicide of either description.
10. Evidence on records clearly shows that the Maxi
Cab, which was full with passengers, was driven rashly and
negligently by the petitioner. The spot sketch and the spot
mahazar shows that the Maxi Cab having left its lane and
having entered the opposite side lane, while overtaking
another vehicle and having dashed to the lorry, which was
coming from the opposite direction and being within its
lane. Due to the impact, the Maxi Cab has fallen on the
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opposite side mud road - footpath situated after the
asphalted road. Maxi Cab, indisputedly, did not had any
mechanical failure. Petitioner, while deposing as DW-1 has
not stated, that there was an error of judgment on his
part.
11. As a result of the accident caused by the
petitioner, two inmates of the lorry, who were sitting on
the stone slabs, sustained fatal injuries and succumbed.
Even, the cleaner of the Maxi Cab, sustained fatal injuries
and succumbed. Few passengers of the Maxi Cab
sustained grievous injures and few others sustained simple
injuries. In view of the abundant material placed on
record by the prosecution, to prove its case against the
accused, the Courts below are justified in not accepting the
version of the accused/DW-1, that the accident occurred
on account the rash and negligent driving of the lorry by
its driver. Both the Courts below have considered the
matter in great detail. There is no reason to take a
different view in the matter. The concurrent finding of fact
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recorded by the Courts below, that the Maxi Cab was
driven rashly and negligently by the petitioner, which
resulted in 3 deaths and injuries to several persons is well
founded. The findings recorded by the Courts below are
neither perverse nor illegal. In view of the material placed
on record by the prosecution, the Courts below are
justified in convicting the petitioner for the offences
punishable under Ss.279, 304-A, 337 and 338 IPC.
12. With regard to the sentence imposed, the
Court must keep in view the nature of offence and other
attendant circumstances. In Dalbir Singh Vs. State of
Haryana, reported in (2000) 5 SCC 82, Apex Court was
concerned with a case, where the accused was held guilty
of the offence under S.304-A IPC. The Apex Court has
observed as follows:
“When automobiles have become death traps any
leniency shown to drivers who are found guilty of rash
driving would be at the risk of further escalation of road
accidents. All those who are manning the steering of
automobiles, particularly professional drivers, must be kept
under constant reminders of their duty to adopt utmost care
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and also of the consequences befalling them in cases of
dereliction. One of the most effective ways of keeping such
drivers under mental vigil is to maintain a deterrent element
in the sentencing sphere. Any latitude shown to them in
that sphere would tempt them to make driving frivolous and
a frolic.”
13. While dealing with S.4 of the Probation of
Offenders Act, 1958, it has been observed that, S.4 could
be resorted to when the Court considers the circumstances
of the case, particularly the nature of the offence, and the
Court forms its opinion that it is suitable and appropriate
for accomplishing a specified object that the offender can
be released on the probation of good conduct. For
application of S.4 of the P.O. Act, 1958 to a convict under
S.304-A IPC, it has observed as follows:
“Courts must bear in mind that when any plea is
made based on S.4 of the P.O. Act for application to a
convicted person under S.304-A IPC, that road accidents
have proliferated to an alarming extent and the toll is
galloping day by day in India, and that no solution is in
sight nor suggested by any quarter to bring them down.”
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14. Considering the increased number of road
accidents, Apex Court, has reminded that the Courts
cannot treat the nature of the offence under S.304-A IPC
as attracting S.4 of the P.O. Act, 1958, since a person
driving motor vehicle cannot and should not take a chance
thinking that even if he is convicted, he would be dealt
with leniently. Such observations have been made for
lessening the high rate of motor accidents due to careless
and callous driving of the vehicles by the drivers and
increasing rate of motor vehicle accidents.
15. The sentence imposed on the petitioner is not
irrational, since the rash and negligent act committed by
him has led to the death of 3 persons and grievous/simple
injuries to many passengers in the Maxi Cab and the
inmates of the lorry.
In the result, I do not find any merit in the petition
and the same is dismissed.
Sd/-
JUDGE
Ksj/-