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2020 DIGILAW 1644 (KAR)

R. Devaraj v. State Of Karnataka

2020-09-02

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B.Prabhakara Sastry, J. - The present petitioner was tried in the Court of Addl. Civil Judge (Jr. Dn.) and JMFC at Sidlaghatta (for brevity, hereinafter referred to as 'the Trial Court') for the offences punishable under Sections 279 and 304(A) of IPC and was convicted for the said offences by the Judgment of the Trial Court dated 30.10.2010 and was sentenced accordingly. The petitioner challenged the said order in the Court of Adhoc Sessions Judge, FTC-II, Chintamani (for brevity, hereinafter referred to as the 'Session Judge's Court') in Criminal Appeal No. 47/2010, which Court also by its Judgment dated 31.03.2011 while confirming the impugned Judgment passed by the Trial Court, dismissed the appeal. Aggrieved by the same, the petitioner has preferred this revision petition. 2. The summary of the case of the prosecution was that on 27.08.2006 at about 7.00 p.m., at a circle near Mini Bus-stand of Sidlaghatta, the accused riding his Bajaj Chetak Scooter bearing Registration No. KA-04/K-1863 in a rash and negligent manner dashed to another TVS XL Moped bearing Registration No.KA-04/E-8741 causing an accident due to which the rider of the said moped by name K. Venkateshappa aged about 36 years fell down and sustained fractured injuries and died on 26.09.2006 and thus the accused has committed the offences punishable under Sections 279 and 304(A) of IPC. Since the accused pleaded not guilty, the trial was held wherein prosecution witnesses were got examined as PW-1 to PW-10. The complainant got himself examined as PW-3 and got marked documents from Exs.P1 to P10. The accused neither himself led any evidence nor examined any witness on his behalf, so also did not mark any documents. After hearing both side, the Trial Court by its impugned Judgment of conviction and Order on sentence dated 30.10.2010, convicted the accused for the offences punishable under Sections 279 and 304(A) of IPC and sentenced him accordingly. 3. The Sessions Court and the Trial Court records were called for and the same are placed before the Court. Perused the materials placed on record. 4. Heard arguments of the learned counsel for the revision petitioner who made submissions through Video Conferencing as also of the learned High Court Government Pleader for the respondent who is physically present in the Court. 5. Perused the materials placed on record. 4. Heard arguments of the learned counsel for the revision petitioner who made submissions through Video Conferencing as also of the learned High Court Government Pleader for the respondent who is physically present in the Court. 5. The point that arises for my consideration is, "whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?" 6. Learned counsel for the petitioner in his arguments through Video Conference submitted that he would not dispute the occurrence of the accident on 27.08.2006 at the place and time alleged in the charge. He also does not dispute that in the accident deceased K.Venkateshappa sustained injuries and later died on 26.09.2006. However he strongly disputes that the death of the said injured K. Venkateshappa was due to the injuries sustained by him in the accident. As such, the conviction of the petitioner by the Trial Court and its confirmation by the Session Judge's Court is incorrect and warrants interference. Submitting that there is no direct nexus between the injuries sustained by the injured K. Venkateshappa in the accident and his death, as such, the accused cannot be held guilty for the offence punishable under Section 304(A) of IPC, learned counsel relied upon a few Judgments in his support which would be referred to at the appropriate stage hereafter. Per contra, learned High Court Government Pleader in his arguments submitted that PW Nos. 1, 4 and 5 are eye witnesses to the incident who have supported the case of prosecution. The complainant both in his complaint as well in his evidence has explained the delay in lodging the complaint. He also submits that post-mortem report goes to show that death was due to the injuries sustained by the deceased in the accident, as such, the Judgment of conviction under challenge does not warrant any interference at the hands of this Court. 7. He also submits that post-mortem report goes to show that death was due to the injuries sustained by the deceased in the accident, as such, the Judgment of conviction under challenge does not warrant any interference at the hands of this Court. 7. Pw-1 H. Muniraju who claims himself to be an eye witness to the alleged incident has stated that while he was seeing the Bajaj Chetak Scooter being ridden by the accused, it dashed to the TVS Moped of which the deceased Venkateshappa was the rider and due to the said accident, said Venkateshappa sustained injuries and he joined by others shifted the injured to the hospital where the doctor after examining him, declared that Venkateshappa had sustained fractures to bones. Thereafter the injured was shifted to Mallenahalli to secure him the herbal medicine treatment. However, later at Baptist Hospital in Bengaluru he died. He has also stated that accident has occurred due to the rash and negligent riding of the Bajaj Chetak Scooter by the accused. He further stated that in his presence, the police have drawn scene of offence panchanama as per Ex.P1. Even in his cross examination he has adhered to his original version. 8. Pw-2 M. Manjunath has stated that he too has seen the incident, however with a delay of three minutes. By the time he approached the spot, the accident had just then occurred. He has stated that he too was a pancha for the panchanama at Ex.P2 whereunder the Bajaj Chetak Scooter was seized. The witness has also stated that the accident has occurred due to the rash and negligent riding of the scooter by the accused. 9. Pw-3 Munegowda is the complainant who is brother-in-law of deceased Venkateshappa. Admittedly he is not an eye witness. However, he has stated that hearing about the accident he rushed to the Government Hospital at Sidlaghatta and saw the injured Venkateshappa and secured him the further treatment through herbal medicine and later on at Baptist Hospital at Bengaluru. He has stated that at Baptist Hospital, the injured died. In his examination in-chief itself he has stated that since the accused assured them of himself (accused) bearing the medical treatment expenses to the injured, there was delay in lodging the complaint. He also stated that accused did not keep up his promise, as such, he (PW-3) himself had to bear the medical expenses. 10. In his examination in-chief itself he has stated that since the accused assured them of himself (accused) bearing the medical treatment expenses to the injured, there was delay in lodging the complaint. He also stated that accused did not keep up his promise, as such, he (PW-3) himself had to bear the medical expenses. 10. Pw-4 Lakshmi Narayana has stated that he too was an eye witness to the accident and the accident in question has occurred due to the rash and negligent riding of the scooter by the accused. A similar evidence is given by PW-5 M. Srinivasa also. 11. In the cross examination of all these witnesses from PW-1 to PW-5, nothing could be elicited in favour of the accused. As such, the evidence of these witnesses joined by the evidence of PW-7 and PW-8 who are the Investigating Officers and the scene of offence panchanama at Ex.P7 and the rough sketch at Ex.P9 would clearly go to show that a road traffic accident as alleged by the prosecution has occurred on 27.08.2006 on a circle near Mini Busstand at Sidlaghatta involving two motorcycles amongst which the accused was riding the offending vehicle in a rash and negligent manner. Both the Trial Court as well the Session Judge's Court have rightly appreciated the said aspect and have thus held that there was rash and negligent riding of the scooter by the accused causing the said accident. As such, the said finding given by those courts would not call for any interference on the said observation. 12. The second aspect which the learned counsel for the petitioner submitted is about the alleged delay in lodging the complaint. His contention was that there was nearly a month's delay in lodging the complaint, as such, the complaint creates a doubt in the mind of the Court. No doubt there is one month's delay in lodging the complaint. However the complainant in the very complaint itself has stated that the accused who caused the accident since stated that himself and the injured since belong to the same community he would be settling the matter in a panchayat and also would bear the medical expenses of the injured; it is because of the said assurance no police complaint was lodged immediately. The said statement made in the complaint as well in the evidence of PW-3 has not been weakened in the cross examination of the witnesses. Thus the alleged delay caused in lodging the complaint has properly and convincingly been explained by the prosecution. 13. Evidence of PWs 1 to 5 go to show that in the accident deceased Venkateshappa sustained fractured injuries and also several abrasions on his body. He was shifted to hospital and was given the treatment both allopathic and herbal. However, he died on 26.09.2006 while under treatment in Baptist Hospital in Bengaluru. In the cross examination of these witnesses it was denied through suggestions that death of injured Venkateshappa was due to the injuries sustained by him in the accident. Thus from the accused' side it was not specifically denied that deceased Venkateshappa sustained injuries in the accident. However it was denied that there was any connection between injuries sustained by him in the accident and his death which took place about one month after the accident. 14. Evidence of PW-10 Dr. Srinivasa that he conducted autopsy on the body of the deceased Venkateshappa only goes to show that he has conducted post-mortem examination and given his report as per Ex.P10. In Ex.P10, which is a postmortem report he has noticed compound fracture of left tibia and fibula, old wound scar on right shoulder and petectial haemorrhage in the white matter of brain. He has opined that immediate cause for death was cardio-respiratory failure due to fat embolism due to compound fracture sustained. 15. It is in the above light of the evidence, learned counsel for the petitioner vehemently submitted that though the injured Venkateshappa sustained certain injuries in the accident including the compound fracture of tibia and fibula, his death which occurred one month later after the accident was not due to the injuries sustained by him in the accident. In his support, he relied upon the decisions of the Apex Court, Full Bench decision of the Kerala High Court and an unreported decision of this Court, as below. In Suleman Rehiman Mulani & Another vs. State of Maharashtra, (1968) AIR SC 829 , the Hon'ble Apex Court was pleased to observe that requirements of Section 304(A) of IPC are; (a) that the death of any person must have been caused by the accused by doing any rash or negligent act. In Suleman Rehiman Mulani & Another vs. State of Maharashtra, (1968) AIR SC 829 , the Hon'ble Apex Court was pleased to observe that requirements of Section 304(A) of IPC are; (a) that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, it must be proved that the rash and negligent act of the accused was the proximate cause of the death and (b) that there must be direct nexus between the death of the person and the rash or negligent act of the accused. In DR. V. Rughmini VS. State of Kerala And Others,MANUPATRA (MANU/KE/0192/1986) with respect to S.304(A), the Full Bench of High Court of Kerala was pleased to observe that an act which causes death need not necessarily be a rash act. It is enough that death is caused by the negligent act of the accused. Death should have been the direct result of the negligent act. A Co-ordinate Bench of this Court in Criminal Revision Petition No. 478/2004 (Mohan @ Rathod Vs. The State of Karnataka), with respect to Section 304(A) of IPC, was pleased to observe that the mere driving of the vehicle at the high speed itself is not sufficient to hold that the driver was rash and negligent in driving. Section 304(A) of IPC requires that the death occurred due to the rash or negligent act and death was the direct or proximate result of the act. 16. In the light of the above Judgments, when the case on hand is closely and thoroughly analised, it can be seen that even though PWs 1 to 5 have stated that it was due to the rash and negligent riding of the offending vehicle by the accused, the accident has occurred wherein the deceased Venkateshappa sustained compound fractures and other abrasions on his body, However none of these witnesses have specifically stated that it is only due to the injuries sustained by him, deceased Venkateshappa died, otherwise he would not have died on the said day. Even PW-10 Dr. Srinivasa who conducted autopsy and gave the report as per Ex.P10 also has nowhere specifically stated that the injuries sustained by the deceased in the accident was the direct cause for his death which took place nearly one month after the accident. Even PW-10 Dr. Srinivasa who conducted autopsy and gave the report as per Ex.P10 also has nowhere specifically stated that the injuries sustained by the deceased in the accident was the direct cause for his death which took place nearly one month after the accident. The evidence of all the prosecution witnesses would only go to show that the accident in question has occurred due to rash and negligent driving of the Bajaj Chetak scooter by the accused and in the said accident deceased Venkateshappa sustained grievous injuries. But the evidence led by the prosecution is not able to show that death of deceased Venkateshappa which occurred one month after the accident, was as a direct result of the injuries sustained by him in the accident. Even according to the prosecution witnesses the injured was not given a regular proper treatment in the hospital for the injuries sustained by him in the accident. He was got discharged from the hospital after the first aid treatment and was taken to his native place to get him the treatment through herbal medicines. It is only when the situation worsened, he was shifted to Baptist Hospital at Bengaluru where he died. Thus, it cannot be held that the death of deceased Venkateshappa was directly as a result of the injuries sustained by him in the accident. On the other hand, there were various other intervening factors and reasons for his death. This aspect, the Trial Court and the Session Judge's Court failed to notice. Consequently, both of them have held that accused was guilty of the offence punishable under Section 304(A) of IPC. However, the above analysis of the evidence led by the prosecution would go to show that the conviction of the accused for the offence punishable under Section 304(A) of IPC would not sustain. However, since it is proved that the accused has caused rash and negligent riding of the Bajaj Chetak scooter and caused grievous hurt to the deceased causing compound fracture and abrasions to him, has committed an offence punishable under Section 338 of IPC. Therefore the Judgments under appeal deserve a modification to that extent in reducing the conviction from Section 304(A) to Section 338 of IPC and also consequent modification in the Order on sentence. Accordingly, I proceed to pass the following: ORDER The revision petition is allowed in part. Therefore the Judgments under appeal deserve a modification to that extent in reducing the conviction from Section 304(A) to Section 338 of IPC and also consequent modification in the Order on sentence. Accordingly, I proceed to pass the following: ORDER The revision petition is allowed in part. The Judgment of conviction and Order on sentence pronounced by the Civil Judge & JMFC, Sidlaghatta in Criminal Case No.27/2007 dated 30.10.2010 convicting the petitioner herein / accused for the offence punishable under Section 304(A) of IPC is set aside. However, the accused is held guilty for the offence punishable under Section 338 of IPC. Consequently, the sentence ordered by the Trial Court for the offence punishable under Section 304(A) of IPC is also set aside. The petitioner / accused is sentenced to undergo simple imprisonment for four months and to pay a fine of Rs.500/- for the offence punishable under Section 338 of IPC. The Judgment of conviction and Order on sentence for the offence punishable under Section 279 of IPC remains unaltered. The Judgment of conviction and Order on sentence of the Trial Court as well as the Session Judge's Court impugned in this revision petition stand modified accordingly. The petitioner to surrender before the Trial Court within 30 days from today to serve the modified sentence. Registry to transmit copy of this Order along with Trial Court and Session Judge' Court records to the Courts below, forthwith.