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Karnataka High Court · body

2012 DIGILAW 670 (KAR)

Abdul Sattar v. State of Karnataka by Alur Police

2012-08-14

A.N.VENUGOPALA GOWDA

body2012
Judgment 1. Petitioner faced trial for the offences under Ss.279, 337 and 304-A of the Indian Penal Code. Petitioner was convicted by the learned Judicial Magistrate, Alur in C.C.No.202/2006. Aggrieved, he filed Crl.A.No.21/2008 in the Sessions Court at Hassan. By a judgment dated 11.03.2010, the appeal was dismissed. Petitioner was imposed with sentences which were directed to run concurrently. The maximum sentence imposed was rigorous Imprisonment for 6 months. 2. Background facts of the case, in brief, are as follows: On 19.02.2006, at about 6 p.m., petitioner was driver of the lorry bearing registration No.AP-21/T-0604. The said truck was loaded with coffee seeds bags. When it reached Parvathamma Betta cross, he lost its control and the lorry fell down and overturned and due to the impact, the inmates of the lorry viz., Nagaraja, Kiran, Ashoka, Sunil and Ananda fell down. Ananda sustained grievous injuries and succumbed on the spot due to the fall of coffee seeds bags upon him. Other injured persons were taken to the hospital for treatment. Case was registered against petitioner. Police took the photographs of the spot, prepared the sketch, lorry was mechanically got examined, P.M. report and MLCs of the injured were taken into possession and after recording the statements of the witnesses, charge sheet was filed in the Court, for trial against petitioner. Summon was issued to petitioner and upon his appearance, charges were framed and put to him, to which he pleaded not guilty and claimed to be tried. 3. Prosecution in order to establish its case against the accused, examined PWs.1 to 12, through whom Exs.P1 to P22 were marked. PWs.1 to 3 and 5 are the eye witnesses. PWs.1 to 3 supported the prosecution case. PW.5 turned partially hostile. PW.4 is the complainant. PWs.6, 7 and 10 are the mahazar witnesses. PWs.7 and 10 did not support the prosecution case and were treated as hostile witnesses. PW.8 owner of the lorry did not support the prosecution case. PW.11 initiated the investigation. PW.12 is the Motor Vehicle Inspector who submitted the report Ex.P11. PW.9 is the Investigation Officer who filed the charge sheet. Ex.P1 -inquest report and Ex.P7 -P.M. report of Ananda, Exs.P8 to P10 are the wound certificates of the inmates of the lorry and Exs.P12 to P20 are the photographs of the overturned lorry. PW.11 initiated the investigation. PW.12 is the Motor Vehicle Inspector who submitted the report Ex.P11. PW.9 is the Investigation Officer who filed the charge sheet. Ex.P1 -inquest report and Ex.P7 -P.M. report of Ananda, Exs.P8 to P10 are the wound certificates of the inmates of the lorry and Exs.P12 to P20 are the photographs of the overturned lorry. Ex.P4 is the spot mahazar and Ex.P22 is the sketch of the scene of occurrence prepared by the Investigation Officer. Learned Magistrate came to the conclusion that there is rash and negligent driving and as a result, convicted petitioner for the offences under Ss.279, 337 and 304A IPC. In appeal, learned Appellate Judge recorded that, rash and negligent driving is clearly established and death of Ananda and Injuries to the other inmates of the lorry has been established beyond all reasonable doubts and consequently, the conviction of the petitioner was confirmed and appeal was dismissed. 4. Sri Venkatesh R. Bhagat, learned counsel, contended as follows: (a) Accident took place not because of the rash or negligent driving of the vehicle by the petitioner, but, it was on account of mechanical failure and is an inevitable accident. (b) Death of Ananda was on account of coffee seeds bags falling on him and due to the consequent suffocation and not on account of any injury sustained in the accident. (c) Injuries to PWs 1 to 3 was not on account of any rash or negligent act of the petitioner, but, on account of the coffee seeds bags falling upon them. (d) Evidence of PW.4 -complainant is hearsay and cannot be relied upon. (e) Evidence of PWs.1 to 3 being interested testimony to claim compensation is not trustworthy. (f) Mahazar witnesses -PWs.6 and 10 have not supported the prosecution case and Ex.P4 has not been proved. (g) The prosecution has not established beyond all reasonable doubts any rash or negligent act on the part of the petitioner. (h) The findings of the Courts below are perverse and illegal and hence, interference with the impugned Judgments is warranted. 5. (f) Mahazar witnesses -PWs.6 and 10 have not supported the prosecution case and Ex.P4 has not been proved. (g) The prosecution has not established beyond all reasonable doubts any rash or negligent act on the part of the petitioner. (h) The findings of the Courts below are perverse and illegal and hence, interference with the impugned Judgments is warranted. 5. Sri Vijayakumar Majage, learned High Court Government Pleader, on the other hand, submitted that rash and negligent driving of the vehicle by the petitioner has resulted in death of one person and 4 other inmates of the lorry being Injured and that the prosecution has established its case against the accused beyond all reasonable doubts and in the circumstances, the Courts below are justified in convicting the petitioner and imposing the sentence. 6. In view of the rival contentions and the record of the case, which was perused by me, the point for consideration is; Whether the learned Magistrate and the learned Sessions Judge are justified in finding the accused guilty of the offences under Ss.279, 337 and 304-A IPC and imposing the sentence? 7. It is an undisputed fact that Ananda died in the lorry accident on 19.02.2006. Undeniably, when the petitioner was driving, the vehicle overturned, causing fatal injuries to Ananda. When the petitioner was examined under S.313 Cr. P.C, he has admitted that he was the driver of the lorry at the time of the occurrence of the accident. Occurrence of the accident, resulting in death of an inmate of the lorry-Ananda and injuries to PWs.1 to 3 and 5 is well established from the documents marked i.e., Exs.P1, P7, P8 to P10. 8. In a revision petition filed under S.397 Cr. P.C, it is unnecessary for this Court to reappraise the evidence on record, since, the Appellate Court is the final court of fact. However, In view of the submissions made by Sri Venkatesh R. Bhagat, I have examined the evidence on record. Evidence of PWs 1 to 3 which is reliable and cogent, establishes the fact that the accident was due to the negligence of the petitioner. 9. However, In view of the submissions made by Sri Venkatesh R. Bhagat, I have examined the evidence on record. Evidence of PWs 1 to 3 which is reliable and cogent, establishes the fact that the accident was due to the negligence of the petitioner. 9. PW.1 / Kiran has testified that, on 19.02.2006, he along with one Ashoka, Sunil, Prakash and Ananda were taking the coffee seeds in the lorry from Magge and that himself, Ananda, Ashoka and Sunil were sitting on the coffee seeds bags loaded in the lorry and that the driver was driving the lorry in high speed and near the Parvathamma Betta cross, lorry overturned and as a result, himself and other persons who were travelling in the lorry, sustained injuries and that, Ananda died on the spot, due to the fall of coffee bags on him. From his evidence it is clear that the width of the road wherein the accident occurred is about 12 ft. and the same is a single road. 10. PW-1 Kiran, PW-2 Ashok, PW-3 Sunil were the inmates of the lorry at the time the accident occurred. Their evidence shows that, on the date of accident, the accused drove the lorry which was fully loaded with coffee seeds bags, in a rash and negligent manner and though they requested him to drive the vehicle slowly, while passing through the curve of Parvathamma Betta, the lorry overturned and they sustained injuries and Ananda who was also an inmate of the lorry sustained grievous injuries and succumbed. 11. PW-5 Dharmaprakash has deposed that he travelled in the lorry along with Ananda, Ashok and Kiran and the vehicle being driven by the accused. PW-6 Arun Kumar is the owner of the coffee estate and he has deposed that, on 19.02.2006, lorry AP-21/T-0640 was loaded with coffee seeds and Dharmaprakash having accompanied the lorry along with deceased Ananda. He having arrived at the accident spot, has signed the mahazar -Ex.P4. He has seen dead body of Ananda at the spot. PW-7 Girish has identified his signature on the mahazar -Ex.P4. 12. Evidence of PWs.1 to 3 clearly show that the vehicle was being driven rashly or negligently and that, more than four persons were travelling in the lorry which was loaded with coffee seeds bags. He has seen dead body of Ananda at the spot. PW-7 Girish has identified his signature on the mahazar -Ex.P4. 12. Evidence of PWs.1 to 3 clearly show that the vehicle was being driven rashly or negligently and that, more than four persons were travelling in the lorry which was loaded with coffee seeds bags. Since it has been admitted that the petitioner was driving the vehicle at the relevant time and that it overturned near a cross, the burden has shifted to the petitioner, who was in control of the vehicle in question, to establish that the accident did not happen on account of any negligence on his part. It is not even the case of the petitioner that on account of any mechanical defect he lost control of the vehicle and the accident occurred. Petitioner has not shown that the accident happened due to causes other than negligence on his part. Evidence of PW-12 and Ex.P11 shows that there was no mechanical defect. 13. The vehicle in sound road -worthy condition, driven with ordinary care, does not normally overturn. Photographs Exs.P12 to P20 show that the lorry has overturned. In the circumstances, it would be for the driver / petitioner, who had special knowledge of the relevant facts, to explain why the vehicle overturned. The petitioner has not offered any explanation in the 313 statement. Defence evidence has not been adduced. The legal maxim ‘res ipsa loquitur’ is attracted, keeping in view the fact that the vehicle fully loaded with coffee bags has overturned. The petitioner has failed to rebut the presumption of negligence that arose from the manifest circumstances of the case. 14. Keeping in view the evidence of the injured/ eye witnesses, the way accident has taken place which can be seen from the photographs marked as Exs.P12 to P20, it has to be held that the Courts below were justified in finding the petitioner guilty of the offences under Ss.279, 337 and 304-A IPC. I find no reason to take a view different from the one taken by the Courts below. In view of the fact that the accident occurred on account of the rash and negligent driving of the petitioner -accused, by which, one person died and others sustained injuries, the sentence imposed on the petitioner is not excessive. I find no reason to take a view different from the one taken by the Courts below. In view of the fact that the accident occurred on account of the rash and negligent driving of the petitioner -accused, by which, one person died and others sustained injuries, the sentence imposed on the petitioner is not excessive. In view of the above, I find no merit in the revision petition and the same is dismissed. Bail bonds are cancelled and the petitioner is directed to surrender before the Trial Court to serve the sentence.