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Karnataka High Court · body

2012 DIGILAW 851 (KAR)

S. B. Nagaraju v. State by Arakalgud police

2012-10-04

A.N.VENUGOPALA GOWDA

body2012
Judgment 1. The petitioner faced trial for the alleged commission of offences punishable under Ss.279, 304-A, 337 and 338 IPC. After trial, he was convicted and sentenced to undergo simple imprisonment for a period of one year for the offences under Ss.279 and 304-A IPC and was sentenced to pay fine of Rs.500/-for the offence under S.337 IPC, in default, to undergo simple imprisonment for a period of one month and was further sentenced to pay fine of Rs.1,000/-for the offence under S.338 IPC, in default, to undergo simple imprisonment for a period of two months. The aforesaid (the word ‘said’ be deleted vide order dated 5.11.2012) conviction and sentence was affirmed in appeal by the Sessions Court. 2. Prosecution case which led to the trial is essentially as follows: (a) That on 8.11.2003, at about 11.30 a.m., when (1) Bhagyajothi; (2) Pallavi and (3) Sudha were going by walk in the left side of foot path of the road near Kumbarakatte, the accused being the driver of lorry No.KA-13-B-4684, drove it in high speed and in rash and negligent manner so as to endanger to human life on Arakalugud-Mallipatna Road, near Kumbarakatte dashed to the said three girls and due to the accident and impact, Bhagyajyothi succumbed to the injury, on the spot, Sudha succumbed to the injury on the way to the hospital, Pallavi (PW-5) sustained grievous injury and Vishalakshmamma (PW-6) and Chandra (PW-7), who were travelling in the lorry cabin, sustained grievous/simple injury. PW-2 lodged the first Information in the Police Station on 8.11.2003 and the case was registered in Crime No.159/2003 and FIR (Ex.P11) was sent to the Court. The CPI/PW-10, took up the investigation and laid the charge sheet against the accused after completing the investigation. (b) During trial, 10 witnesses were examined to further the prosecution version. Ex.P1 to P21 were marked. Accused was examined under S.313 Cr.P.C. and it is a case of total denial. No defence evidence was adduced. On consideration of the evidence placed on record, the learned Magistrate found the accused guilty and convicted and sentenced him, as above. (c) The appeal filed before the Session Court having not brought any relief, the accused has filed this Criminal Revision Petition. 3. No defence evidence was adduced. On consideration of the evidence placed on record, the learned Magistrate found the accused guilty and convicted and sentenced him, as above. (c) The appeal filed before the Session Court having not brought any relief, the accused has filed this Criminal Revision Petition. 3. In support of this petition, Sri Girish B. Baladare, learned advocate, contended as follows: a) There is no evidence on record to connect the accused with the commission of the offence i.e., whether or not, he was driving the lorry. It was submitted that there is no credible evidence to show that the accused was driving the lorry involved in the (corrected vide order dated 5.11.2012) accident. b) The approach to the case and the appreciation of evidence by the Courts below is perverse and illegal. c) Alternatively, the sentence of imprisonment imposed for the offence under S.304-A IPC is harsh. 4. Sri Vijayakumar Majage, learned HCGP, on the other hand, contended that there are eyewitnesses to the incident, who have said that the vehicle was driven in high speed, rashly and also negligently by the accused. He submitted that the analysis of evidence made by the learned Magistrate and by the learned Appellate Court Judge is flawless. He submitted that there is abundant credible evidence on record which shows that the incident took place only on account of the rash and negligent acts on the part of the petitioner and it is due to (deleted and) such evidence the Courts below have (corrected vide order dated 5.11.2012) held the accused guilty. He further submitted that due to the (corrected vide order dated 5.11.2012) Motor vehicle accident caused by the accused, two minor girls who sustained grievous injuries died and three others, which includes a minor girl sustained injuries and in the circumstances, the just sentence imposed does not warrant any interference. 5. Perused the record. In view of the rival contentions, the point for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubts and whether the sentence of imprisonment of one year imposed for the offence under S.304-A IPC warrants any interference? 6. PW-8, ASI, received the First Information (Ex.P2) from PW-2/Doddaiah, registered the case and sent FIR (Ex.P11) to the Court. 7. PW-2 has said that, he knows Bhagyajyothi, Sudha and Pallavi, who sustained grievous injuries in the lorry accident on 8.11.2003. 6. PW-8, ASI, received the First Information (Ex.P2) from PW-2/Doddaiah, registered the case and sent FIR (Ex.P11) to the Court. 7. PW-2 has said that, he knows Bhagyajyothi, Sudha and Pallavi, who sustained grievous injuries in the lorry accident on 8.11.2003. He and one Annaiah (PW-4) were going by walk towards Balenakoppalu and the girls, Bhagyajyothi, Sudha and Pallavi were also going on the left side of the road and the accused drove the lorry in question from behind in high speed and dashed to the girls and due to the impact, two girls were thrown away by about 15 feet and one girl died on the spot and another girl while being taken to the hospital succumbed to the injuries and that, Pallavi (PW-5) who was thrown into the drain which was by the side of the road, sustained grievous injury. Lorry thereafter crossed the drain and dashed to one Coconut tree situated 15 feet away from the left side of the road and stopped. He has said that the road is 12 feet wide and on either side of the road, there is footpath of 4 feet width and according to him, if lorry driver had taken the vehicle towards right side since there was no obstruction, the accident in question would not have occurred. He lodged the complaint, as the accident occurred due to the rash and negligent driving of the lorry by its driver. 8. PW-3/Chinthamma, has said that, at the time of the accident, she was working in her land and she saw the accident being caused due to the rash and negligent driving of the lorry by the accused. She has said that, after the accident, the lorry crossed the drain and dashed to one Coconut tree, which was 10-15 (corrected vide order dated 5.11.2012) ft. away from the road. 9. PW-4/Annaiah, has said that, he knows PW-2, the three girls, Bhagyajyothi, Sudha and Pallavi and also the accused, who drove the lorry involved in the accident. She has said that, after the accident, the lorry crossed the drain and dashed to one Coconut tree, which was 10-15 (corrected vide order dated 5.11.2012) ft. away from the road. 9. PW-4/Annaiah, has said that, he knows PW-2, the three girls, Bhagyajyothi, Sudha and Pallavi and also the accused, who drove the lorry involved in the accident. He has said that, on the date of the accident, himself and PW-2 and the three girls were going on Arakalgudu-Mallipatna road and near Kumbarkatte, the lorry driven rashly and negligently by the accused dashed to three girls, who were going on the mud road on the left side of the road and due to the impact, one girl succumbed on the spot due to the injury sustained and another girl, who sustained grievous injury succumbed in the hospital and another girl sustained grievous injury. He has said that, after the accident, the lorry crossed drain situated by the side of the road and dashed against a coconut tree, standing 15 feet away from the road. He has said that, there was no impediment or obstruction to the accused to take the lorry to the right side of the road and if he had taken the lorry to the right side, the accident in question would not have occurred. 10. PW-5/Pallavi, a minor girl, aged about 12 years has said that, Bhagyajothi, Sudha and herself, while were going by walk, lorry came from their behind and dashed against them and as a result, Bhagyajyothi succumbed on the spot due to the injury sustained and Sudha succumbed to the injury when taken to the hospital. She has said that, after the accident, the lorry crossed the drain and dashed to a coconut tree, which was standing to the left side of the road. She has said that the lorry was driven by the accused. She sustained injury and took treatment. The wound certificate is Ex.P5. 11. PW-6/Vishalakshamma, is material witness. She has said that the lorry belongs to Dadasaheb and the accused was its driver. She was attending the work of loading potato to the lorry. She has said that the lorry was driven by the accused. She sustained injury and took treatment. The wound certificate is Ex.P5. 11. PW-6/Vishalakshamma, is material witness. She has said that the lorry belongs to Dadasaheb and the accused was its driver. She was attending the work of loading potato to the lorry. She has said that, on the date of the accident, she was sitting inside the cabin of the lorry along with others and the lorry was driven in high speed, ignoring their request not to drive the lorry in high speed, the accused dashed the lorry to the girls who were going on the mud path on the left side of the road and thereafter, vehicle crossed the drain and dashed to a coconut tree and stopped. She sustained injury and took treatment. The wound certificate is Ex.P9. She has identified the accused, being the driver of the lorry at the time the accident in question took place. 12. PW-9/Abdul Wajid is the owner of the lorry in question. He did not support the prosecution case. However, he has admitted that the lorry having been seized by the police, he filed an application under S.457 Cr.P.C., in the Court on 13.11.2003, for passing an order of release of the said vehicle. Along with the application, he filed list of 5 documents by enclosing the copies. The first document produced was described as ‘photo copy of driving licence of S.B. Nagaraj-driver of the said vehicle’. The Xerox copy of the driving licence of the petitioner was enclosed to the said application, apart from 4 other documents pertaining to the vehicle. 13. PW-1/Sathish is the Inspector of Motor Vehicles. After inspecting the lorry, he gave the certificate/Ex.P1 and opined that the lorry had no mechanical defect. 14. PW-10/Yashod Kumar is the Investigating officer. He has said that, he visited the spot, prepared the rough sketch/Ex.P13, took the photographs Ex.P14 to P21, prepared the inquest mahazars (Ex.P3 and P4) and seized the lorry. He recorded the statements of the witnesses, collected the postmortem reports of the deceased girls, Bhagyajyothi and Sudha (Ex.P5 and P6) and the wound certificates of Pallavi and Vishalakshmamma and PW-7/Chandra (Ex.P7 to P9), completed the investigation and filed the charge sheet. 15. Undeniably, the lorry was seized and was later on, given to its owner i.e., PW-9. The lorry was certainly involved in the accident. 15. Undeniably, the lorry was seized and was later on, given to its owner i.e., PW-9. The lorry was certainly involved in the accident. The rough sketch Ex.P13 shows the width of the road to be 12 feet and the accident having occurred almost at a straight point. The photographs Ex.P4 to P21 and the evidence of PWs-2, 3, 4, 5 and 6 shows that the lorry after dashing to the three girls, went ahead of the drain on the left side of the road and dashed to a coconut tree. The lorry having been stopped far away from the road after the accident can be seen from the photographs which are not under challenge. PW-9, along with application filed by him in the Court seeking release of lorry, produced copy of the driving licence of the accused, indicating therein, the accused as the driver of the vehicle in question. 16. There is consistency in the statements of PWs.2 to 6, who are eyewitnesses to the accident. PW-5, child witness has given evidence about the occurrence of the accident, she and other two girls sustaining injuries, death of two girls, obtaining of treatment in the hospital etc. There is no noticeable improvements/embellishments. Presence of PW-5 at the accident spot and injury sustained by her has not been questioned. PW-6, infact, was travelling by sitting inside the cabin of the lorry at the time of occurrence of the accident and has said that the vehicle was driven in high speed and accident was caused by the accused. She has also identified the accused in the Court. I have no reason to disbelieve the statements of PWs.2 to 6, which is supported by the documentary evidence, to which there is no challenge. There is no material contradiction in the statements of the prosecution witnesses. Minor variations are bound to occur in the statements of the witnesses, who are villagers and they having been examined in the Court after about 2 years from the date of occurrence of incident. The statements of PWs.2 and 6 are credible and trustworthy. The evidence of PW-6, occupant of the lorry in question at the time of occurrence of the accident clinchingly makes out that, it was the accused who was driving the lorry when the accident in question took place. PWs.2 to 6 had no reason to falsely implicate the accused in the case. 17. The evidence of PW-6, occupant of the lorry in question at the time of occurrence of the accident clinchingly makes out that, it was the accused who was driving the lorry when the accident in question took place. PWs.2 to 6 had no reason to falsely implicate the accused in the case. 17. PW-9 having obtained the interim custody/release of the vehicle from the court, the vehicle having been involved in the accident, while deposing before the Court, for the reasons best known to him, has not stated as to whom he had given the lorry in question for being driven on 8.11.2003. He has preferred to only deny the prosecution case. However, he has admitted that in the application submitted by him to the Court, the name of Nagaraju was shown as the driver of the vehicle. In the circumstances, the denial of PW-9 with regard to the petitioner being the driver of the vehicle being not truthful, calls for rejection. In the application filed for seeking release of the vehicle, name of the accused having been shown as driver of the vehicle in question and evidence of PW-6, occupant of the vehicle in question at the time of occurrence of accident being credible, it has to be held that there is direct evidence to show that the petitioner was driving the lorry and caused the accident in question. 18. The lorry has been driven rashly and negligently. After dashing to three girls, the lorry has crossed the drain on the left side of the road, entered the field and dashed to a standing coconut tree. Unless, the vehicle was driven in high speed, rashly and negligently, the accident in question would not have occurred and the vehicle would not have left the road, crossed the drain, entered the field and dashed to a standing tree in the field and stopped there. The accident speaks for itself. 19. In the factual scenario, in my considered view, the appreciation of the record of the case by the Courts below is neither perverse nor illegal. The prosecution by placing on record credible evidence with regard to the commission of offences punishable under Ss.279, 304-A, 337 and 338 IPC has proved its case against the accused beyond all reasonable doubts. The conviction of the accused for the charged offences is justified. 20. The prosecution by placing on record credible evidence with regard to the commission of offences punishable under Ss.279, 304-A, 337 and 338 IPC has proved its case against the accused beyond all reasonable doubts. The conviction of the accused for the charged offences is justified. 20. With regard to the alternate contention, keeping in view the ratio of law in the decisions in the cases of (1) State of Karnataka Vs. Krishna @ Raju, (1987) 1 SCC 538 , (2) Sevaka Perumal Vs. State of Tamil Nadu, (1991) 3 SCC 471 , (3) Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , (4) State of Karnataka Vs. Sharanappa Basanagouda Aregoudar, (2002) 3 SCC 738 and (5) State of Punjab Vs. Balwinder Singh, (2012) 2 SCC 182 , there being no mitigating factors, the substantive sentence imposed by the learned trial Judge has rightly been affirmed by the learned Appellate Judge. In the factual scenario, I do not find that the accused deserving any leniency in the matter of sentence. For the foregoing reasons, the Revision Petition being devoid of merit is dismissed. Bail bond and surety bond are cancelled and the petitioner is directed to surrender before the Trial Court to serve the sentence.