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2019 DIGILAW 1235 (KAR)

Basavaraj v. State Of Karnataka

2019-06-13

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. The present petition has been filed by the petitioner-accused challenging the judgment and order passed by the District and Sessions Judge, Bagalkot in Criminal Appeal No.63/2013 dated 29.05.2017 wherein the judgment of conviction and order of sentence passed by the Additional Civil Judge and JMFC, Bagalkot in C.C.No.307/2012 dated 08.05.2013 was confirmed. 2. I have heard the learned counsel for petitioner-accused and the learned HCGP for respondent-state. 3. The genesis of the complaint avers that on 24.10.2011 at about 11.30 a.m., when the complainant along with her son were proceeding on the left side of Shirur-Kamatagi road for collecting firewood, the petitioner-accused being the driver of KSRTC bus bearing registration No.KA-36/F-697, drove the said bus with a high speed, in a rash and negligent manner, so as to endanger human life and dashed to the son of the complainant, who was proceeding along with his mother by walk. Due to the said impact, the son of the complainant sustained grievous injuries and immediately he was taken to hospital. Thereafter a complaint came to be lodged. 4. On the basis of the complaint, the investigating officer investigated the matter and filed a charge sheet. The Trial Court secured the presence of accused by issuing summons. The plea of the accused was recorded. Thereafter, evidence of the prosecution witnesses came to be recorded. In order to prove its case, the prosecution got examined eight witnesses as P.W.1 to P.W.8 and got marked 8 documents as per Ex.P1-P8. The accused also got marked one document as per Ex.D1, through the evidence of P.W.3. After closure of the prosecution evidence, accused was examined by putting incriminating material. He denied the same but he has not led any defence evidence on his behalf. The Trial Court after hearing the arguments if came to a conclusion that the evidence placed before it is sufficient to convict the accused for the offence punishable under Sections 279 and 338 of the Indian Penal Code and imposed the sentence. Aggrieved by the same, accused preferred Criminal Appeal before the learned Principal District and Sessions Judge, Bagalkot and the First Appellate Court, by its order dated 29.05.2017, confirmed the judgment of conviction and order on sentence passed by the Trial Court. 5. Aggrieved by the same, accused preferred Criminal Appeal before the learned Principal District and Sessions Judge, Bagalkot and the First Appellate Court, by its order dated 29.05.2017, confirmed the judgment of conviction and order on sentence passed by the Trial Court. 5. It is submitted by the learned counsel for the accused-petitioner that though the records show P.W.4 has suffered injuries because of fall from a tree, the said evidence has not been properly appreciated by the Trial Court. It is further submitted that P.W.7/the doctor, who treated the injured, has deposed in his evidence that if a person falls from a tree, there are possibilities of sustaining injuries mentioned in Ex.P5. It corroborates the fact that P.W.4 has not sustained injuries in an accident. It is his further contention that there is inconsistency in the evidence of P.W.1- complainant and P.W.4-injured. P.W.1 has stated that when they were proceeding on the left side of the road the alleged accident took place but P.W.4 has deposed that when they were proceeding on the right side of the road, the right side of the bus touched him and caused accident. That particular inconsistency creates a doubt regarding the case of the prosecution. In that light, the prosecution's case ought not to have been believed and the accused ought to have been acquitted. It is further submitted that the evidence, which has been produced is not cogent and acceptable and it is liable to be rejected. He further submits, in alternate, that if at all this Court comes to a conclusion that the accused is guilty of the alleged offences, the alleged offences are not punishable with death or imprisonment for life and also not punishable with sentence of more than 7 years imprisonment. It is the first offence committed by the accused and no criminal antecedents are there. Under such circumstances, he requests to extend the benefit under the provisions of Probation of Offenders Act and release the accused on probation. On these grounds, he prayed to allow the petition by setting aside the impugned judgment of conviction and order of sentence. 6. Learned HCGP has vehemently argued and submitted that there is ample material to show that P.W.4 has suffered with grievous injuries in an road accident, which took place due to the rash and negligent driving of the accused. On these grounds, he prayed to allow the petition by setting aside the impugned judgment of conviction and order of sentence. 6. Learned HCGP has vehemently argued and submitted that there is ample material to show that P.W.4 has suffered with grievous injuries in an road accident, which took place due to the rash and negligent driving of the accused. Though there are some minor contradictions, the occurrence of the accident has not been denied by the prosecution witnesses. The doctor/P.W.7 has only opined the probabilities of sustaining injuries stating that the said injuries may be caused if a person falls from a tree that does not mean, he sustained injuries due to fall from tree. On the basis of the said opinion given by the doctor, it cannot be held that P.W.4 has suffered injuries by falling down from a tree. 7. P.W.1 and P.W.4 are the crucial witnesses, who were present at the time of the alleged accident and even they have categorically deposed in their evidence that it is the accused-petitioner, who was driving the bus at the time of the alleged incident with a high speed in a rash and negligent manner. The Trial Court after considering the said material has rightly came to a conclusion and there are no good grounds to interfere with the orders of both the courts below. On these grounds, prayed to dismiss the petition. 8. I have carefully and cautiously gone through the submissions of the learned counsel for the parties and perused the records. On close reading of the evidence of P.W.1, who is the mother of the injured- P.W.4, has categorically stated in her evidence that when they were proceeding on a road by walk, the driver of the bus came with a great speed, in a rash and negligent manner and dashed to her son. Due to which, he sustained grievous injuries and has been treated in hospital. In this regard, she filed a complaint. P.W.1 has deposed that when they were proceeding on a road, a bus came from backside and dashed him, due to which he sustained injuries to his right leg and right hand. P.W.4 has identified the accused before the Trial Court stating that the accused is the person who was driving the bus and caused the accident. P.W.1 has deposed that when they were proceeding on a road, a bus came from backside and dashed him, due to which he sustained injuries to his right leg and right hand. P.W.4 has identified the accused before the Trial Court stating that the accused is the person who was driving the bus and caused the accident. During the course of cross-examination, nothing has been elicited so as to discard the evidence of P.W.4. Though it is contended by the learned counsel for the petitioner-accused that such injuries can be caused if a person falls from a tree, but either in the cross-examination of P.W.1 or in the cross-examination of P.W.4, no such suggestion has been made out. Even it is not the case of petitioner accused that no accident has taken place on the date of the alleged incident. Even it is not the case of the accused that the injured sustained injuries by falling down from a tree. Under such circumstances, I am of the considered opinion that the contention of the accused is not having any force and the same is not acceptable. Even other material, which is available on record clearly shows that the accident took place as contended by the complainant-P.W.1 and in the said accident P.W.4 suffered grievous injuries. When the accused was examined by the Trial Court under Section 313 of Cr.P.C., he has not denied the occurrence of accident. In that light, all the contentions taken by the learned counsel for petitioner-accused are not acceptable. 9. I have carefully and cautiously gone through the evidence. The material available on record clearly shows that the alleged accident took place due to the rash and negligent act of the accused. Both the Courts below, after considering the material on record, have come to a right conclusion and rightly convicted the accused. 10. The alternative contention of the learned counsel for the accused is that, if this Court comes to the conclusion that the accused is guilty of the alleged offences, the benefit under the provisions of the Probation of Offenders Act may kindly be extended and he may be released on probation, as he is the first offender. 11. I have carefully and cautiously gone through Section 3, 4 and 6 of the Probation of Offenders Act. The offences committed by the accused are not punishable with death or imprisonment for life. 11. I have carefully and cautiously gone through Section 3, 4 and 6 of the Probation of Offenders Act. The offences committed by the accused are not punishable with death or imprisonment for life. Even the offences punishable under Section 279 and 338 of IPC are not punishable with a sentence of more than 7 years imprisonment and even there are no criminal antecedents against accused. Learned HCGP has also submitted that no such information has been received as against the accused and he is the first offender. 12. As the accused is working in KSRTC and no serious injuries have been caused to the injured-P.W.4, I feel it just and proper to extend the benefit under provisions of Probation of Offenders Act and accordingly, the accused is released on probation on his execution of personal bond for a sum of Rs.50,000/- with two sureties for like sum to the satisfaction of the trial court with a condition that in future, he will not indulge in such criminal activities, he will obey the order of this court. 13. Accused is kept under probation for a period of one year. The probation officer is directed to keep watch on accused-petitioner. Copy of this order may be sent to the jurisdictional probation officer to observe. 14. The above observation of extending the benefit of Probation of offenders Act will not be considered as a stigma in his service and it will not affect his service. With that clarification, the present petition is disposed off.