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2019 DIGILAW 616 (KAR)

SUNIL v. STATE BY C P I, BANAHATTI

2019-03-11

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. I have heard the arguments of the petitioner's counsel and respondent's counsel. 2. This memorandum of Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C challenging the judgment of conviction passed in C.C.No.76/2007 dated 3/2/2010 on the file of the Civil Judge (Jr.Dn). & J.M.F.C. Banahatti and also challenged the judgment passed in Crl.A.No.13/2010 dated 31/1/2011 on the file of the Court of Fast Track at Jamkhandi confirming the judgment and order of the Lower Court. 3. For the sake of convenience, the parties are referred to their ranks as per the Court below. 4. Brief facts of the case is that on 16/11/2006 at about 11.30p.m. at Rabhakavi town, the complainant Moula sab Pendari taking his aunt deceased Smt. Mehabooba bi W/o Dastagir Sab Pendari to a local hospital as she was suffering from illness and both were going on the left side of the road. When they were passing near Jamiya Masjid at Rabkhavi, this accused being the driver of Tata Indica car bearing registration No.KA-48-M402 came from Terdal side and proceeding towards Jamkhandi in a rash and negligent manner and dashed against the aunt of the complainant who was proceedings along with the complainant on his right side and due to the said impact, she has sustained grievous injuries and suffered fracture of right hand and left femur. Immediately, the injured was shifted to Banahatti Government Hospital and after providing first aid treatment, she was shifted to Bijapur Government hospital for higher treatment. The injured was treated as an inpatient in Bijapur Government hospital till 14/12/2006 and the injured was bed ridded and the complainant was arranging for amount for further treatment. In the meanwhile she passed away on 15/12/2006 due to the accidental injuries and hence, complaint was filed. Based on the complaint and subsequent complaint, invoking offences against the petitioner is under Section 304-A and 279 of IPC. 5. The accused was secured and plea was recorded and the accused disputed the plea and hence, the prosecution in order to prove the charges leveled against the accused examined PSWs1 to 11 and got marked documents Exs.P1 to P15(a) and also relied upon the M.Os.1 and 2. 6. 5. The accused was secured and plea was recorded and the accused disputed the plea and hence, the prosecution in order to prove the charges leveled against the accused examined PSWs1 to 11 and got marked documents Exs.P1 to P15(a) and also relied upon the M.Os.1 and 2. 6. The Courts below after considering both oral and documentary evidence convicted the accused for the offences punishable under Sections 297 and 304-A of IPC and sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 304-A of IPC and imposed fine of Rs.1,000/- for the offence punishable under Section 279 of IPC. 7. Being aggrieved by the judgment of conviction, accused has preferred Crl.A.No.13/2010 and the learned Judge of the Fast Track Court, Jamakhandi, after considering the material on record dismissed the appeal and confirmed the judgment of conviction and sentence. 8. Being aggrieved by the conviction and confirmation, the accused has filed this revision petition before the Court contending that both the Courts below have committed an error in not considering the material evidence on record and erroneously convicted the accused. The other contention raised in the revision petition is that the Courts below have failed to consider the post mortem report for the cause death. The death was due to "Thrombosis in Veins and embolism" (blood clot), since the deceased was suffering from certain disease as per the version of the complainant, on the fateful day he was taking her to hospital and the same has not been considered. 9. The Courts below also failed to take note of the fact that the alleged accident was occurred on 16/11/2006 and the deceased died on 15/12/2006 and the same is because of the chronic disease which she was suffering. The Courts below failed to consider the major contradictions and omissions in the evidence of PWs.4 and 5 who are the relatives of the deceased and interested witnesses. The other contention that PW-2 and PW-3 are the panch witnesses categorically says that panchanama has not been conducted in their presence, and they put signature on the panchanama at the police station and the said fact also not been considered by the Courts below. Hence, prayed this Court to set aside the judgment of conviction and confirmation. 10. The other contention that PW-2 and PW-3 are the panch witnesses categorically says that panchanama has not been conducted in their presence, and they put signature on the panchanama at the police station and the said fact also not been considered by the Courts below. Hence, prayed this Court to set aside the judgment of conviction and confirmation. 10. The accused counsel in his arguments also he reiterated the grounds urged in the petition and further contended that the very finding of both the lower Courts is contrary to the material evidence on record and the judgment of the Lower Courts are perverse and hence, this Court can exercise the revisional powers. 11. Further contends that the Lower Appellate Courts failed to take note of the deceased who is having disease prior to the accident and committed an error in spite of she was suffering from the disease and prayed this Court to set aside the judgment of conviction and confirmation and affirmation of sentence. 12. Per contra, the learned HCGP in his arguments he vehemently contends that the Courts below has considered the material on record particularly, PW-2 who is present along with the injured at the time accident and apart from that, PWs.4 and 5 who are sitting on the stone near the place of the accident and the evidence of PW-2, PW-4 and PW-5 who have witnessed the incident of accident and they are the eye witnesses and their evidence is not been discredited in the cross examination. Hence, the Courts below have not committed an error in appreciating the material on record. 13. Having heard the arguments of the petitioner's counsel and also the learned HCGP, this Court has to examine whether this Court can exercise the revisional jurisdiction to set aside the judgment of conviction of the Lower Court and also the confirmation order of the First Appellate Court. 14. 13. Having heard the arguments of the petitioner's counsel and also the learned HCGP, this Court has to examine whether this Court can exercise the revisional jurisdiction to set aside the judgment of conviction of the Lower Court and also the confirmation order of the First Appellate Court. 14. Before appreciating the material on record and also the contentions of the petitioner's counsel and also the learned HCGP, this Court has to take note of the complaint averments and the complainant who has been examined as PW-2 in his evidence categorically says that on 16/11/2006 he was taking his aunt to Hospital since she was suffering from illness and when they were proceeding, the driver of the Car who came from hind side dashed his aunt who was by the side of the complainant and as a result, she sustained grievous injuries and immediately, injured was taken to hospital along with other two persons who were there near the place of the accident. The prosecution in order to prove the case relied upon the evidence of PWs.1 to 11 out of PWs.1 to 11, PW-1 is the panch witness, PW-2 who is the eye witness, PW-3 is also another panch witness, PWs.4 and 5 are the eye witnesses, PW-6 is the IMV Inspector, PW-7 is the Doctor who gave the first aid and wound certificate and also given the treatment at Rabhakavi Hospital. PW.8 is the Doctor who conducted post mortem. PWs.9 to 11 are the A.S.I., CPI who have registered the case and further investigated the matter and filed the charge sheet. 15. The main contention of the revision petitioner in the revision petition is that the Courts below are contrary to the materials on record and evidence erroneously convicted the accused. Before appreciating the material on record, I also would like to mention the scope of this Court while exercising the powers under Section 397 r/w 401 of Cr.P.C. It is settled law that in the revision petition, under Section 397 of Cr.P.C. r/w 401, the revisional Court cannot sit as second Appellate Court and also cannot reappreciate the evidence unless the judgment of the Lower Courts suffers from perversity. This principle is held in judgment of the Hon'ble Apex Court in the case of State of Maharashtra Vs. This principle is held in judgment of the Hon'ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659 and also the Apex Court recently in the judgment of State of Gujarath Vs. Afroz Mohammed Hasanfatta, 2019 SCCOnLine(SC) 132 also reiterated under Section 397 Cr.P.C. the High Court does not sit as an Appellate court and will not reappreciate the evidence unless the judgment of the Lower Court suffers from perversity. 16. For having taken note of the principles laid down in the judgment referred supra, it is clear that scope of the revisional Court is very limited and cannot sit as second Appellate Court while considering the revision petition. 17. In the nutshell, I would like to make a mention with regard to the evidence of the witnesses particularly, PW-2 who is the complainant and he was also proceeding along with the injured and he categorically says that the driver of the car drove the vehicle in a rash and negligent manner came behind and dashed against his aunt. As a result, she sustained injury and immediately, injured was taken to Banhatti hospital and thereafter, the doctor has advised him to take her to higher centre and the witnesses PWs-4 and 5 also reiterates the evidence of PW-1 and categorically says that when the injured was taken to hospital, the doctor advised to take her to higher Centre and issued a letter of reference and immediately, she was shifted to Bijapur Hospital and PW-4 categorically says that he was sitting on the stone along with PW-5 and they witnessed the incident and though it is suggested in the cross examination he is the relative of the injured and the same was denied. PW-5 is also reiterated in the same manner of PW-4 since both of them were sitting on the stone of the side of the road near the place of accident. He was also cross examined and he admits with regard to the relationship between him and PW-4 as son in-law and father-in-law but, denied the suggestion that they are the relatives of the injured and PW-2. He was also cross examined and he admits with regard to the relationship between him and PW-4 as son in-law and father-in-law but, denied the suggestion that they are the relatives of the injured and PW-2. I do not find any material contradiction in the evidence of PWs-2, 4 and 5 with regard to the place of accident is concerned except the answer elicited from the mouth of PW-2 that the complaint was written in his presence in terms of Ex.P5 from morning 8.30 p.m. till 1.00p.m. and also he admits that he gave the statement interms of Ex.P6 also. But suggestion was made that contents of Ex.P5 and 6 are not explained to him and the same was denied. He also admits that there are shops near the place of accident and Court has to take note of the time of the accident, it was at 11.30p.m. He also admits that when the vehicle comes from behind, they cannot say which vehicle came, but, he claims that the driver of the vehicle after the accident parked the vehicle at distance and he revealed his name. In the cross examination of PW-4, he admits that he cannot say description of the place of the incident and he voluntary admits that he is illiterate, but, only knows making the signature and does not know to read Kannada and he narrated how the accident was taken place at page 3 of his cross-examination stating that due to the impact, the injured was thrown away for 10 ft. from the place of the accident and took the injured to the hospital and in the cross examination of PW-4 also, categorically says that immediately after the accident, took the injured to the hospital in a auto rickshaw, but, he says he cannot tell the number of the auto rickshaw. PW-4 was also confirmed that the injured was shifted in auto and there is no any material contradiction in the evidence of PWs.-2, 4 and 5. 18. Having taken note of the evidence of available on record, I did not find any perversity in appreciating the evidence available on record either by the Court below or by the First Appellate Court. 18. Having taken note of the evidence of available on record, I did not find any perversity in appreciating the evidence available on record either by the Court below or by the First Appellate Court. The other contention of the accused counsel in the revision petition that both the Courts below have failed to consider the P.M. report for the cause of death and the death was due to "Thrombosis in Veins and embolism" (blood clot), since the deceased was suffering from certain disease as per the version of the complainant. It has to be noted that no doubt on perusal of the complaint which is marked as Ex.P5, complainant has specifically stated that he was taking his aunt to the hospital, she was having illness and in the cross examination of PW-2, nothing is elicited that she was suffering from illness. In the cross examination of PW- 7, Doctor who gave evidence with regard to the treatment given to the injured and categorically deposed that she has suffered fracture of right hand elbow and also fracture of left femur and though it is disputed that the death is not on account of accidental injuries and suggested in the cross examination that if any persons slips and fell down, there are chances of sustaining these types of injures and the said suggestion is categorically denied. Nothing is cross examined with regard to earlier ailment of the deceased and only in the cross examination of PW-8 who conducted PM report, a suggestion was made that she was suffering from calcium deficiency and the said suggestion is answered that may be she is having calcium deficiency. He further admits in Ex.P10 clotting of blood was found in the lungs and further admits that if blood pressure is more and if it varies, it may also cause blood clotting. A suggestion was made that he has falsely deposing that she died on account of accidental injures and the said suggestion was denied. 19. For having taken note of cross examination of PWs.-7 and 8, I have already pointed out that nothing is suggested to PW-7 that she was suffering from ill health prior to the accident. A suggestion was made that he has falsely deposing that she died on account of accidental injures and the said suggestion was denied. 19. For having taken note of cross examination of PWs.-7 and 8, I have already pointed out that nothing is suggested to PW-7 that she was suffering from ill health prior to the accident. In the cross examination of PW-8 also only answer elicited that she may be having calcium deficiency and nothing is elicited that the death is due to the earlier disease, which the victim was suffering and the revision petitioner did not dispute the fact that the injured has suffered the fracture of femur and fracture of right hand elbow and also did not dispute the fact that injured was in hospital from 16/11/2006 to 14/12/2006. Having taken note of answer elicited from the mouth of PWs.-7 and 8, I do not find any material to show that she is suffering from disease and as a result, she passed away due to the said disease and I do not find any error committed by the Courts below in convicting the accused for the offences punishable under Sections 279 and 304-A of IPC. I also do not find any perversity in appreciating the evidence and there is no material contradiction in the evidence of PWs-2, 4 and 5 and they are the star witnesses about the accident and other witnesses PWs.9 to 11 who have received the complaint and conducted the spot panchanama. 20. The main contention of the petitioner's counsel that PWs.1 to 3 have not supported the case of the prosecution in entirety and no doubt PWs.-1 and 3 in their cross-examination have stated that they have signed the Mahazar in the police station and signed the prepared panchanama and that itself will not take away the case of the prosecution and that is only a minor contradiction, but, PWs.1 to 3 in their chief evidence categorically stated that Mahazar was drawn in their presence. When such being the evidence available before the Court, this Court cannot comes to other conclusion and I do not find any reason to comes to other conclusion also and prosecution has proved the very accident and also the negligence and reckless on the part of the driver of the Tata Indica car. 21. When such being the evidence available before the Court, this Court cannot comes to other conclusion and I do not find any reason to comes to other conclusion also and prosecution has proved the very accident and also the negligence and reckless on the part of the driver of the Tata Indica car. 21. Regarding sentence is concerned, the Court below imposed the simple imprisonment for a period of six months for the offence punishable under Section 304-A of IPC and imposed fine of Rs.1,000/- for the offence punishable under Section 279 of IPC. 22. At this juncture, counsel appearing for the petitioner in his arguments he made the submission that almost 13 years has been lapsed and the offence alleged against the petitioner is under Section 279 and 304-A of IPC and no purpose would be served in sending the revision petitioner to undergo for sentence and hence, this Court can modify the sentence into one of fine so that compensation can be awarded to the victim's family and the same would serve the ends of justice. 23. Having considering the submission and considering the matter is more than a decade and no purpose would be served as submitted if the accused is sent for imprisonment and the same can be compensated converting the imprisonment into fine. Hence, fine of Rs.75,000/- would meet the ends of justice and compensation may be paid to the victim's family. 24. In view of the discussions made above, I pass the following: ORDER The petition is allowed in part. The sentence of the accused is modified as to pay fine of Rs.75,000/-. Out of which, Rs.65,000/- shall be paid to the LRs. of the deceased Mehabooba bi W/o Dastagir Sab Pendari as compensation and balance of Rs.10,000/- should go to the State. In the event of aforesaid amount being not deposited by the petitioner within six weeks, the petitioner shall undergo default sentence of six months and the sentence of fine imposed by the trial Court in respect of other offence remains unaltered.