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2017 DIGILAW 1054 (KAR)

Hanumanth v. State of Karnataka

2017-07-17

B.A.PATIL

body2017
JUDGMENT : 1. The present revision petition has been filed by the petitioner-accused by assailing the judgment of conviction and sentence in criminal appeal No. 15/2010 dated 05.1.2012 passed by Prl. District and Sessions Judge, Raichur whereunder the judgment of conviction and sentence passed by JMFC Court Lingasagur in CC No. 302/2007 dated 21.10.2010 has been confirmed under sections 279, 304-A of IPC and also under Sec. 187 of M.V. Act. 2. The gist of the allegation as per the complaint are that, on 16.04.2007 at about 6.45 p.m. when the deceased was sitting infront of a hotel, appellant being the driver of the lorry bearing Reg. No. KA-36/5368 drove the same rashly and negligently and while taking the turn, the said truck turtle and it caused injury to the Muralidhar rao and subsequently he succumbed to the injuries. After investigation the charge sheet was came to be filed. Thereafter the trial was held and accused was held guilty. Being aggrieved by such order he preferred the appeal No. 15/2010, before the Principal District and Sessions Judge, Raichur, same was confirmed, as such the accused-petitioner is before this Court. 3. Heard the learned counsel for the accused/petitioner and the High Court Government Pleader. 4. The main grounds urged by the learned counsel for the petitioner are that, the trial Court has not properly appreciated the evidence of the witnesses. He would contend that, offence under Sec. 279 of IPC is a technical offence and it merges with Sec. 304-A of IPC. The trial Court ought not to have imposed a separate sentence under Sec. 279 of IPC. He would further contend that, there was no rash and negligent driving of the lorry by the petitioner, as such the trial Court ought not to have convicted the accused petitioner. He would further contend that, the only evidence, which is available before the Court is that of PW-4. The said evidence is also not trust-worthy and reliable and there is no corroboration in the evidence of the said witness. The witnesses have also not spoken with regard to the speed of the vehicle. On these grounds, he prayed to allow the petition. 5. Per contra the learned High Court Government pleader, would contend by supporting the judgment and order passed by both the Courts. The witnesses have also not spoken with regard to the speed of the vehicle. On these grounds, he prayed to allow the petition. 5. Per contra the learned High Court Government pleader, would contend by supporting the judgment and order passed by both the Courts. He would further contend that, eyewitnesses have categorically deposed about the rash and negligent act of the accused/ petitioner. The accident in question has happened due to the rash and negligent act of the accused. He further contend that, no illegality or perversity is found in the approach adopted by the trial Court as well as the 1st appellate Court. He further contends that the prosecution has proved the guilt of accused beyond all reasonable doubt and the defence of the accused does not probabilise in any manner. On these grounds he prayed for dismissal of the petition. 6. On perusal of the records, PW-1 is the complainant. He had been to market to bring vegetables and when he was returning to the house there he saw the accused causing the accident at about 6.45 p.m. During the course of cross-examination he has deposed that, he did not observe the said accident personally and also the possession of the vehicle. He has deposed that, he do not know the contents of the complaint and he has signed on white paper. Except that nothing is there in the evidence of PW-1. 7. PW-2 is a spot mahazar pancha to Ex.P.2. He has also deposed during the course of cross- examination that he has signed Ex.P.2 at the instance of police and he has not dictated the contents of panchnama. 8. PW-3 is the brother of the complainant to whom his elder sister informed over the phone about the accident of his father. During the course of cross- examination he has deposed that, he has not observed the accident personally. 9. PW-4 is an eyewitness to the alleged accident. He has deposed that, he know the complainant and accused. The lorry was proceeding Kotwal to Maski, the said vehicle was in high speed near the cross and took the sudden turn and it was turtle and one person died in the accident and another person sustained injury. He has further deposed that the accident has taken place due to the fault of the driver of the lorry. The lorry was proceeding Kotwal to Maski, the said vehicle was in high speed near the cross and took the sudden turn and it was turtle and one person died in the accident and another person sustained injury. He has further deposed that the accident has taken place due to the fault of the driver of the lorry. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. Though several questions have been asked to this witness. 10. PW-5 is also another eyewitness who was sitting near the tea stall. He has deposed that, a lorry came from Kotwal side with high speed towards Maski and it was turtle and caused the accident. During the course of cross-examination, it has been elicited that, he has not seen the accused after the accident. Except that nothing has been elicited so as to discard his evidence. 11. PW-6 is the driver of the Jeep, who shifted the injured and dead person to the hospital. During the course of cross-examination, nothing has been elicited through the mouth of this witness. PW-7 is the owner of the lorry. He has deposed that accused was his driver and he received the message on 18-04-2007 in respect of the accident. 12. PW-8 is also an eyewitness to the said accident. He has not supported the case of the prosecution and he has been treated as hostile. 13. PW-9 is the Motor Vehicle Inspector. He has deposed that, the accident was not due to any mechanical defect and he has issued Ex.P.6. During the course of cross-examination he has admitted that, the vehicle was shifted from spot to the police station at the time of inspection and its possession was existed at the time of accident. 14. PW-10 is the ASI. He recorded the statement of the complainant and registered the case and issued the F.I.R. 15. PW-11 is the spot mahazar pancha to Ex.P.2. PW-12 is an eyewitness. He has not supported the case of the prosecution. 16. PW-13 is the Circle Police Inspector, who investigated the case and filed the charge sheet against the accused person. 17. On careful consideration of the evidence which has been led before the trial Court, PW-4 is the main eyewitness to the alleged incident. PW-12 is an eyewitness. He has not supported the case of the prosecution. 16. PW-13 is the Circle Police Inspector, who investigated the case and filed the charge sheet against the accused person. 17. On careful consideration of the evidence which has been led before the trial Court, PW-4 is the main eyewitness to the alleged incident. He has deposed that, the accused brought the vehicle from Kotwal side to Maski side with high speed near the cross while taking the cut turn suddenly it was turtle and caused the accident. He has further deposed that the accident has taken place due to the fault of the driver of the lorry. It is not in dispute that on the alleged date of accident, the petitioner-accused was the driver of the said lorry and it met with an accident on 16.04.2007 at about 6.45 p.m. This aspect has been substantiated by PW-7 the owner of the lorry. Though the prosecution has examined PWs. 5, 6, 8 and 12 that they have not supported the case of the prosecution and their evidence is not going to help the case of the prosecution in any manner to bring home the guilt of the accused beyond all reasonable doubt. But the evidence of PW-4 is consistently stated about the rash and negligent act of the accused and he has also identified the accused who was driving the said offending vehicle at the time of the accident. It is not in dispute that, the deceased died due to the accident caused by the driver of the offending vehicle. Even during the course of cross-examination it is not the case of the accused that he was not driving the said lorry at the time of alleged accident. By going through the evidence and records, it depicts that, the accident occurred due to the rash and negligent act of the accused. When the said vehicle turtle at the cross that, itself substantiate the fact that the accused brought the vehicle with great speed as stated by PW-4 suddenly he took a turn and as a result of the same it turtle and caused the accident. When the said vehicle turtle at the cross that, itself substantiate the fact that the accused brought the vehicle with great speed as stated by PW-4 suddenly he took a turn and as a result of the same it turtle and caused the accident. Even the prosecution has got examined the Motor vehicle Inspector PW-9, in his evidence he has deposed that the accident is not due to any mechanical defect, then under such circumstances that it goes without saying that the said accident has been caused by the accused/appellant because of his rash and negligent act. It is well established principle of law that, even on a evidence of single eyewitness, if it reposes the confidence of the Court and if it is consistent and there is no material to discard the evidence of such witness, then under such circumstances it can be relied upon for the purpose of conviction of the accused for the alleged offences. 18. Be that as it may, further, when accused/petitioner came to be examined u/s 313 of Cr.P.C. he has not explained his stand how the accident took place. It is the accused who will be having a greater opportunity to explain his stand about the manner in which the accident has taken place. When he has not made out any case, under such circumstances the evidence of eyewitness appears to be acceptable and trustworthy and it has to be taken into consideration. The overall evidence placed on record it reveals that there is a sufficient material to show that, the accident in question has occurred due to the rash and negligent act of the accused/petitioner and there is no any mechanical defect or other cause for the accident. The Trial Court and the 1st Appellate Court were justified in convicting the accused for the offences punishable under sections 279 and 304-A of IPC and section 187 of Motor Vehicles Act. In this behalf the findings of the both the Courts below deserves to be confirmed. 19. Second contention of the accused/petitioner is that, a separate sentence ought not to have been passed u/s 279 of IPC. By going through the records, it indicates that, the trial Court has convicted the accused/petitioner on both the counts. In this behalf the findings of the both the Courts below deserves to be confirmed. 19. Second contention of the accused/petitioner is that, a separate sentence ought not to have been passed u/s 279 of IPC. By going through the records, it indicates that, the trial Court has convicted the accused/petitioner on both the counts. So far as the imprisonment of sentence for the offence punishable u/s 279 of IPC is concerned, the approach adopted by the trial Court as well as the 1st Appellate Court is incorrect. The offence punishable u/s 279 of IPC though it is independent when accused is charge-sheeted u/s 304-A of IPC, then in that event an offence u/s 279 of IPC virtually merges with the main offence punishable u/s 304-A of IPC. In that light it is not advisable to sentence the accused on both these counts. The said proposition of law has been laid down in the case of Gurubasavaraj @ Bennishettappa vs. State of Karnataka, (2012) 8 SCC 734 , as under: "E. Penal Code, 1860-Ss. 53, 279 and 304-A - Sentences and conviction-Distinction between - Separate sentence under S. 279 not found necessary-Held, this did not imply that there was no conviction under S. 279-Criminal Procedure Code, 1973-Ss.353, 354 and 389- Conviction and sentence - Relationship-Offences established under numerous provisions of law - Separate sentence not imposed under a particular section-Held, this did not imply that there was no conviction thereunder." 20. Keeping in view the above aspect the sentence of imprisonment for the offence punishable u/s 279 of IPC is liable to be set aside. 21. Though the learned counsel for the petitioner would contend that, the witnesses have not specifically stated the speed of the vehicle but while considering the rash and negligent act, the speed is not a criteria, it is the act of the accused which has to be taken into consideration. When the witnesses have categorically stated that, the alleged accident has taken place because of the rash and negligent act of the accused, then under such circumstances the contention of the learned counsel for the petitioner does not hold any water and the same is liable to be rejected. 22. The learned counsel for the accused/petitioner would submit that, accused is the sole earning member and he has got a family to be nourished by him. The accident in question has taken place during 2008. 22. The learned counsel for the accused/petitioner would submit that, accused is the sole earning member and he has got a family to be nourished by him. The accident in question has taken place during 2008. If he is convicted and detained in jail, it is going to cause untold inconvenience and hardship, as such he requested to take a lenient view. 23. As per the principle enunciated by the Hon'ble Apex Court in a case of State of Karnataka vs. Krishnappa @ Madhugiri, AIR 1987 SC 867, no fly bite sentence for the offence punishable u/s 304-A of IPC should be awarded and a minimum sentence of six months to be imposed. The ratio in the above decision enumerates about minimum sentence, but it is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime as held in the decision reported in case of Akram Khan vs. State of West Bengal, 2012 (1) CRIMES 5 (SC), as under; "In Mulla and Another vs. State of Uttar Pradesh, (2010) 3 SCC 508, after considering various earlier decisions, this Court held as under:- 67. It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime." 24. Keeping in view the above proposition of law, on perusal of the entire records though during the course of arguments it was contended to take a lenient view, but to take such consideration no mitigating circumstances have been brought on record so as to take a lenient view. It is well established principles of law that, whenever the sentence which has been imposed by the trial Court, the appellate Court must be slow and has to interfere only in exceptional cases, and there must be good reasons to do so. It is well established principles of law that, whenever the sentence which has been imposed by the trial Court, the appellate Court must be slow and has to interfere only in exceptional cases, and there must be good reasons to do so. Merely, because the case was pending since long and he has got a family to be nourished by him is not a ground to reduce the sentence, that too when the accused/petitioner has involved in a serious offence of causing the death of the deceased and injury on another person. The trial Court after taking a lenient view has only imposed a sentence of six months which is the minimum sentence to be imposed as per the direction of the Apex Court under Sec. 304-A of IPC and the sentence imposed on other sections is less than that. When the said sentences are running concurrently, no prejudice is going to be caused to the accused-petitioner. Keeping in view the above said facts and circumstances I pass the following: ORDER: 1. Accordingly the Criminal Revision Petition is allowed in part. 2. The judgment and sentence passed by the trial Court and confirmed by the 1st appellate Court is modified. The sentence of imprisonment passed against the accused/petitioner for the offence punishable u/s 279 of IPC is set aside and the judgment of sentence passed by the trial Court u/sec. 304-A of IPC and u/s 187 of M.V. Act is confirmed. 3. However, it is made clear that the sentences for above said offences should run concurrently. 4. Petitioner is entitled for set off as per section 428 of Cr.P.C. The Trial Court is directed to issue modified conviction warrant to the jail authorities forthwith. 5. Registry is directed to send the copy of this order to trial Court forthwith and free copy of the order be furnished to the petitioner or to his counsel.