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2016 DIGILAW 957 (KAR)

Mallappa Nagappa Kumbar v. State of Karnataka

2016-12-13

S.N.SATYANARAYANA

body2016
ORDER : S.N. Satyanarayana, J. The accused in C.C. No. 190/2011 on the file of Senior Civil Judge and JMFC., Ramdurg, has come up in this revision petition impugning the concurrent finding arrived at by both the Courts below in convicting him for the offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860 ('IPC' for short) and Section 134 read with Section 187 of the Motor Vehicles Act, 1988 ('the M.V. Act, for brevity). 2. The brief facts leading to this revision petition are as under: 2.1. The accused in C.C. No. 190/2011, who is revision petitioner herein, is a driver in Karnataka State Road Transport Corporation (KSRTC). It is the case of the prosecution that on 09.04.2011 at about 5:45 p.m., the accused, who was assigned the job of driving KSRTC bus bearing No.KA-25/F-2432, has driven the said bus on Ramdurg - Soppadla road near Obalapur village in a rash and negligent manner and caused the accident resulting in the death of a minor girl, by name, Laxmi, aged about five years. It is stated that the accused ran away from the place of the accident without informing the Police about the accident. Hence, on the basis of complaint lodged by the father of deceased Laxmi, case was registered by Ramdurg Police against the accused in Crime No.75/2011 for the offences punishable under Sections 279, 304A of IPC and Section 134 read with Section 187 of the M.V. Act. 2.2. The police conducted investigation and filed charge-sheet for the said offences, which came to be registered as C.C. No. 190/2011 on the file of learned Senior Civil Judge and JMFC., Ramdurg. In the proceedings before the said Court, On behalf of the prosecution, in all 14 witnesses were examined and 13 documents were got marked. On behalf of accused, no oral or documentary evidence was adduced. The sum and substance of the evidence of PWs.1 to 14, many of whom are relatives and family friend of the victim girl, would indicate that the accident has taken place due to rash and negligent driving of the accused resulting in the death of the minor girl. It is also brought on record that immediately after the accident, the accused without attending to the victim, ran away from the place, which necessitated inclusion of an offence punishable under Section 134 read with Section 187 of the M.V. Act. It is also brought on record that immediately after the accident, the accused without attending to the victim, ran away from the place, which necessitated inclusion of an offence punishable under Section 134 read with Section 187 of the M.V. Act. 2.3. The trial Court on appreciation of the oral and documentary evidence available on record, by judgment dated 17.09.2012 proceeded to convict the accused for the aforesaid offences and thereafter, sentenced him to pay a fine of Rs. 1,000/- for the offence punishable under Section 279 of IPC and to undergo simple imprisonment for a period of three months and pay fine of Rs. 1,000/- for the offence punishable under Section 304A of IPC. In addition, the accused was sentenced to pay a fine of Rs. 500/- for the offence punishable under Section 187 of the M.V. Act. In case of default, the accused was ordered to undergo simple imprisonment for a period of three months and it was held that the default sentence shall not run concurrently. The said judgment was subject-matter of appeal in Cri. A. No.212/2012 on the file of I Additional Sessions Judge, Belagavi. The appellate Court on re-appreciation of the material available on record, by judgment dated 29.02.2016, has confirmed the judgment of conviction passed by the trial Court while dismissing the appeal filed by the accused. Being aggrieved by the same, the accused has preferred this revision petition. 3. Heard the learned counsel for the petitioner as well as learned High Court Government Pleader for the respondent. Since lower Court records are secured, this matter is taken up for final disposal with the consent of the learned counsel appearing for the parties. Perused the material on record. On going through the impugned judgments rendered by both the Courts below, it is seen that the Courts below have not considered the fact that on the relevant day when the accident took place, there was a fair (jatre) and cart festival (rathotsava) held in Shivayogeshwara temple in Obalapura village and on account of the same, there was huge crowd in and around Grama Panchayat office as well as the said temple to witness the same. It is not in dispute that the width of the road on which the offending bus was plying at the relevant point of time near the place where cart festival was held, is 12 feet and people were thronging on both sides of the said road, in which a small path was left for the movement of the bus to pass through the crowd. That being the situation, the minor deceased Laxmi, aged five years, who was moving on the road by herself without adult supervision, has strayed into the path of the bus resulting in the accident. 4. Considering the situation in which, the accident has taken place, the huge gathering of people around the bus and the road on which bus was plying, where fair/cart festival was celebrated at the relevant point of time, it can be inferred that in spite of best effort, it would be difficult for the driver to gauge the movement of the people crossing the road ahead of the bus. Also, there is merit in the contention of the learned counsel for the petitioner that the deceased, who was an young child, while participating in the fair probably might not have noticed the bus and girl being of tender age i.e., five years, may not have been seen by the accused, who was driving the bus. 5. Though it is stated by the complainant and prosecution witnesses that the bus was moving at a high speed, the same cannot be believed in view of the fact that the entire road was jam-packed with devotees participating in the cart festival. In that view of the matter, this Court would hold that this crucial aspect of the matter has not been appreciated by both the Courts below. Therefore, the finding of the Courts below that there was carelessness on the part of the accused, driver of the bus, at the relevant point of time in causing the accident is not just and proper. However, considering the fact that the parents of Laxmi, minor girl, victim of the accident having lost their child at a tender age, their grief also cannot be ignored. 6. However, considering the fact that the parents of Laxmi, minor girl, victim of the accident having lost their child at a tender age, their grief also cannot be ignored. 6. In that view of the matter, this Court feel that no purpose would be served in sending the accused - revision petitioner to prison when it is found that there was no carelessness on his part to drive the bus in a haphazard manner at the relevant point of time as stated by the complainant and the witnesses. Having regard to the facts and circumstances of the case, this Court feel that it is only an unfortunate incident, which will have to be viewed in a different manner. Considering the number of days already spent by the accused in the prison, which is stated to be 12 days, it is held that the same is sufficient punishment for the offence punishable under Section 279 of the IPC so far as the sentence of imprisonment is concerned. However, with reference to the sentence of fine, Rs.2,500/- imposed by the trial Court is enhanced to Rs.50,000/- (Rupees fifty thousand). The revision petitioner is directed to deposit the said amount within three weeks from today. Out of the said amount, Rs.45,000/- (Rupees forty five thousand) is ordered to be released in favour of the mother of deceased Laxmi. 7. With such observations, this revision petition is allowed in part.