Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 784 (KAR)

S. H. Manjanna v. State of Karnataka

2019-04-01

H.P.SANDESH

body2019
JUDGMENT : H P SANDESH, J. 1. Heard the arguments of revision petitioner’s counsel and learned HCGP for respondent State. 2. The factual matrix of the case is that, the petitioner herein is the driver of the KSRTC and a charge sheet has been laid against him for the of fence punishable under sections 279, 337, 338 and 304A of IPC making an al legation that he drove the bus in a rash a negligent manner and dashed against the tanker, as a result the driver of the tanker died and subsequently another occupant of the tanker also died and the complainant has sustained injury. The prosecution in order to prove the case, examined the witnesses PWs.1 to 11 and relied upon Exs.P.1 to P.34. The portion of statement of PW.9 is also confronted and marked as Ex.D.1. The prosecution relied upon M.O.1 glass pieces. The Court below after considering both oral and documentary evidence, convicted the accused for the of fence punishable under sections 279, 337, 338 and 304A of IPC and sentenced to pay a total find of Rs.5,500/- and the maximum imprisonment is one year i .e., for section 304A of IPC. 3. Being aggrieved by the judgment of conviction, the revision petitioner herein has preferred an appeal in Crl.A.No.151/2008 and the lower appellate Court confirmed the judgment of conviction. However reduced the fine to Rs.4,500/- and also reduced the punishment of imprisonment to six months. Being aggrieved by the judgment of conviction and confirmation, the present revision petition is filed before this Court. 4. The main contention of the revision petitioner before this court is that, the Courts below failed to appreciate the evidence available on record in a proper perspective and only believing the sole testimony of PW.4, who is the interested witness i.e., cleaner of lorry, convicted the revision petitioner. The evidence of PW.4 cannot be believed to base the conviction. The prosecution failed to prove the fact of identity of the petitioner and only on hypothetical assumption convicted the petitioner. The other witnesses PWs.2, 3 and 5 to 7 are the eye witnesses to the incident and they have not supported the case of the prosecution and in spite of that the Courts below believed the sole testimony of interested witness. The other witnesses PWs.2, 3 and 5 to 7 are the eye witnesses to the incident and they have not supported the case of the prosecution and in spite of that the Courts below believed the sole testimony of interested witness. The other contention that both the Courts below have failed to notice the place of incident that is straight tar road and the incident alleged to have taken place in the middle of the road and hence the driver of the lorry has also contributed for the incident and merely because the driver of the lorry has died, his negligence cannot be ignored while attributing the negligence on the petitioner and hence prayed this Court to set aside the judgment of conviction and confirmation. 5. In support of his contention, the counsel for the revision petitioner alternatively relied upon the judgment of the Apex Court, between Aitha Chander Rao vs. State of Andhra Pradesh, (1981) Supp1 SCC 17 and contend that on the peculiar facts and circumstances the appellant found guilty under section 304-A of IPC should be released on probation on executing bond for good behavior. Having been released on probation, conviction not to affect his service career as per section 12. 6. Per contra, the HCGP in his arguments he contends that the Court below rightly appreciated the evidence available on record and there is nothing on record to come to the conclusion that the Courts below have committed an error in appreciating the evidence available on record and there is no any perversity in appreciating the evidence and this Court cannot sit and re-appreciate the evidence as second appellate Court. The other contention with regard to invoking of Probation of Offenders Act, in the case on hand two persons have lost their life and hence section 4 and 12 cannot be invoked against the revision petitioner and prayed this Court to dismiss the revision petition. 7. Having heard the arguments of the petitioner’s counsel and also the HCGP, this Court has to examine whether this Court can exercise the revisional jurisdiction and is there any perversity in appreciation of evidence. 8. 7. Having heard the arguments of the petitioner’s counsel and also the HCGP, this Court has to examine whether this Court can exercise the revisional jurisdiction and is there any perversity in appreciation of evidence. 8. Having taken note of the contentions raised by the petitioner’s counsel and also the HCGP, this Court also having limited scope only to examine whether any perversity in appreciation of the evidence, the main contention of the petitioner before this Court is that only on the sole testimony of PW.4 who is the interested witness, the Courts below committed an error in convicting the petitioner. The petitioner being a driver in KSRTC, it affects his service career and hence this Court has also to consider the fact of extending of the benefit of Probation of Offenders Act and also regarding perversity is concerned, take note of the fact that only on the sole testimony of PW.4, he has been convicted. 9. Per contra, the HCGP in his arguments he contends that in Exs.P.31 to 34 photos, which are marked, clearly show the place of accident and the lower appellate Court also while dismissing the appeal has categorically observed referring the photos Exs.P.31 to P.34 that there was sufficient space on the left side of the road of the driver of the bus, but he did not made any efforts to avoid the accident taking the vehicle on the extreme left side of the road and instead the driver of the KSRTC bus only came towards the right side and hence the accident took place. 10. Having taken note of the material available on record, no doubt PWs.2, 4, 5 to 7 are the eye witnesses i .e., passengers who were traveling in the bus and each of these witnesses have deposed about the collision between the bus and the lorry. On perusal of the evidence of PW.4, he categorically deposed that he was cleaner in the lorry and due to the rash and negligent driving of the bus, accident took place and the bus came in the opposite direction in a speed manner and caused the accident, as a result he was thrown out and sustained injuries. 11. On perusal of the evidence of PW.4, he categorically deposed that he was cleaner in the lorry and due to the rash and negligent driving of the bus, accident took place and the bus came in the opposite direction in a speed manner and caused the accident, as a result he was thrown out and sustained injuries. 11. In the cross-examination of PW.4, an attempt was made to suggest that the driver of the lorry was also driving the vehicle in a rash and negligent manner and the same was denied and further an attempt was made to suggest that bus was coming in a slow manner and the said suggestion was also denied. Further an attempt was made to suggest that bus was on the kachha road and the said suggestion was also denied. For having taken note of the evidence of other witnesses, this Court do not find any firm evidence by those witnesses and only evidence available before the Court is PW.4. This Court has already pointed out that in the cross-examination of PW.4 though an attempt is made to elicit the answer to disbelieve the version of his evidence, nothing is elicited from the mouth of PW.4. 12. On perusal of the photos which are marked as Exs.P.31 to 34, it is clear that the KSRTC bus is on the tar road and also on perusal of the photo Ex.P.32, the lorry is also on the left side of the tar road and front portion of the lorry went to left side of the road due to the impact and hence there is a force in the contention of the petitioner’s counsel that both the drivers have contributed for the accident. But the photo clearly discloses the maximum contribution on the part of the driver of the bus and it is also considered by the lower appellate Court that there was space on the left side of the bus and if he has taken the bus on the left side of the road, he ought to have avoided the accident and the lower appellate Court also considered this aspect while discussing the evidence available on record. Hence, this Court do not find any perversity in appreciating the evidence available on record and no any other grounds to interfere with the order of the trial Court to come to a conclusion that Courts below have committed an error except little contribution on the part of the driver of the lorry also. 13. Having taken note of the peculiar circumstances of the case and the principles laid down in the judgment of the Apex Court referred supra, the question of invoking section 4 and 12 of the Probation of Offenders Act, does not arise in the case on hand. Due to the impact two lives are lost. One is the driver and another person who was in the cabin of the lorry. However taking into note of the accident is of the year 2003, and almost 16 years time has been elapsed and instead of sending him to serve the sentence of imprisonment for a period of six months as imposed by the lower appellate Court and also taking note of the nature of job of the petitioner herein being a driver of KSRTC and also this Court in the earlier judgments instead of imposing sentence of simple imprisonment, taken note of loss of life of persons, the same can be compensated by enhancing the fine amount and the sentence of imprisonment can be waived off and ordered to pay fine amount as compensation to the L.Rs. , of deceased persons. 14. In the case on hand two persons have lost life and hence instead of ordering for sentencing him to undergo simple imprisonment which affects his service, it is appropriate to impose fine of Rs.1,00,000/- and out of that an amount of Rs.45,000/- each can be paid in favour of the L.Rs. , of the deceased persons. The remaining amount of Rs.10,000/- should go to the State. 15. In view of the discussions made above, this Court proceed to pass the following: ORDER The revision petition is disposed of confirming the judgment of conviction. Sentence imposed on the revision petitioner is modified as fine only. The revision petitioner is sentenced to pay a fine of Rs.1,00,000/-. The revision petitioner is directed to deposit the fine amount within six weeks from today. If he fails to deposit the fine amount within the stipulated period, he shall undergo simple imprisonment for a period of six months. Sentence imposed on the revision petitioner is modified as fine only. The revision petitioner is sentenced to pay a fine of Rs.1,00,000/-. The revision petitioner is directed to deposit the fine amount within six weeks from today. If he fails to deposit the fine amount within the stipulated period, he shall undergo simple imprisonment for a period of six months. Out of the fine amount deposited, an amount of Rs.4h5,000/- each, shall be paid in favour of the L.Rs., of the deceased persons. The remaining amount of Rs.10,000/- shall go to the State. The imposition of fine amount shall not affect the service of the petitioner.