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2020 DIGILAW 1648 (KAR)

G. M. Abdul Razak 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 Civil Judge (Jr. Dn.) and JMFC at Belthangady (for brevity, hereinafter referred to as 'the Trial Court') in C.C. No.24/2005 for the offences punishable under Sections 279, 337 and 304(A) of IPC and was convicted for the said offences by the Judgment of the Trial Court dated 05.05.2010 and was sentenced accordingly. 2. The summary of the case of the prosecution is that on 16.10.2004 at about 11.00 a.m., near Manjunagar of Naravi Villge at Karkala- Guruvayanakere public road, the accused being the driver of a motorvehicle tempo-trax bearing Registration No.KA-20/9749, having driven the said vehicle in a high speed and in a rash and negligent manner so as to endanger human life dashed to a motorcycle bearing Registration No.KA-19/E-7633 due which the rider of the motorcycle sustained injuries and the pillion rider Smt. Chandravathi sustained grievous injuries to which she succumbed on the same day at 4.30 p.m. in Wenlock Hospital at Mangalore. A complaint in this regard was filed by CW-1 in the respondent Police Station who registered a case in Crime No.83/2004. After investigation, charge-sheet was filed against the accused for the offences punishable under Sections 279, 337 and 304(A) of IPC. The charges were framed for the said offences against the accused. Since accused pleaded not guilty and claimed to be tried, the trial was held wherein the statement of the accused as required under Section 313 of Cr.P.C. was recorded. No defence evidence was adduced on his behalf. The prosecution, in order to prove the guilt of the accused, examined seven witnesses as PWs 1 to 7 on its behalf and got marked documents as Exs.P1 to P4. The Trial Court after hearing the arguments from both side, by the impugned Judgment of conviction and Order on sentence dated 05.05.2010 convicted the accused for the offences punishable under Sections 279, 337 and 304(A) of IPC and sentenced him accordingly. 3. Being aggrieved by the same, the petitioner challenged the said order in the Court of I Addl. Sessions Judge, D.K.Mangalore (for brevity, hereinafter referred to as 'the Session Judge's Court') which Court also by its Judgment dated 03.03.2011 while confirming the impugned Judgment passed by the Trial Court, dismissed the appeal. Hence, the petitioner has preferred this revision petition. 4. Being aggrieved by the same, the petitioner challenged the said order in the Court of I Addl. Sessions Judge, D.K.Mangalore (for brevity, hereinafter referred to as 'the Session Judge's Court') which Court also by its Judgment dated 03.03.2011 while confirming the impugned Judgment passed by the Trial Court, dismissed the appeal. Hence, the petitioner has preferred this revision petition. 4. 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. 5. The petitioner was initially represented by his counsel. However, considering the continuous absence of the learned counsel for the petitioner and also the age of this revision petition, this Court, by its detailed order dated 06.08.2020, appointed Dr.J.S. Halasetti who was the panel advocate of the Legal Services Committee of this Court to appear for the petitioner in this matter. He was furnished with all the necessary materials by the Court. 6. Heard the arguments of learned counsel for the revision petitioner and the learned High Court Government Pleader for the respondent who are physically present in the Court. 7. 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 any interference at the hands of this Court?" 8. Learned counsel for the revision petitioner in his arguments submitted that he would not dispute the finding of the Trial Court as well the Session Judge's Court about the occurrence of the accident, involvement of the alleged vehicles in the said accident and that the present petitioner was driving the alleged offending vehicle which was a tempo-trax bearing Registration No.KA-20/9749 at the time of accident and also of the fact that in the accident the rider of the motorcycle bearing registration No.KA- 19/E-7633 and its pillion rider Smt. Chandravathi sustained injuries and injured Chandravathi succumbed to the injuries on the same day at about 4.30 p.m. while under treatment. He submitted that however he would dispute that there was any rash and negligent riding on the part of the petitioner. He also submitted that there is delay of nearly four hours in lodging the complaint and that one of the Investigating Officers has not been examined by the prosecution. He submitted that however he would dispute that there was any rash and negligent riding on the part of the petitioner. He also submitted that there is delay of nearly four hours in lodging the complaint and that one of the Investigating Officers has not been examined by the prosecution. He further submitted that accident has occurred at the fault of the rider of the motorcycle who admittedly had no driving licence at the time of the accident. 9. Learned High Court Government Pleader in his arguments submitted that the evidence of prosecution witnesses has clearly established that the accident has occurred solely due to rash and negligent driving of the tempo-trax vehicle by the accused. In that background, whether the rider of the motorcycle had driving licence becomes immaterial. He further submitted that when the attendant of the injured was busy in getting proper medical treatment to the injured victims, it cannot be expected that police complaint was required to be lodged immediately after the accident. As such, the alleged delay of four to five hours is not at all a delay in the matter. He submitted that the impugned Judgments under appeal do not warrant any interference at the hands of this Court. 10. Among seven witnesses examined by the prosecution, PW-1 Sukumar D. Shetty is the complainant who claims himself to be the eye witness to the alleged incident. He has stated that he was present near the place of accident talking to PW-3 Ravi Hegde who was a petty shop owner in the area, as such, he has seen the occurrence of the accident. It was he who made arrangements for shifting the injured to the hospital. This witness has categorically stated that the offending vehicle tempo-trax which was being driven by the accused and the motorcycle being ridden by its rider Vasu Achari were coming from opposite direction and it was solely at the rash and negligent driving of the driver of the tempo-trax vehicle the accident in question has occurred. He has stated that due to the said accident both Vasu Achari the rider of motorcycle and his mother Smt.Chandravathi sustained injuries. He has also stated that he has shown the spot of accident to the police who have drawn the scene of offence panchanama as per Ex.P2. 11. He has stated that due to the said accident both Vasu Achari the rider of motorcycle and his mother Smt.Chandravathi sustained injuries. He has also stated that he has shown the spot of accident to the police who have drawn the scene of offence panchanama as per Ex.P2. 11. Pw-2 Vasu Achari who undisputedly was the rider of the motorcycle at the time of accident has stated that it was due to the rash and negligent driving of the tempo-trax vehicle the accident in question has occurred. He has stated that the right side of the tempo-trax vehicle dashed to the right of his motorcycle, due to which, both himself and his mother who was a pillion rider in the motorcycle, fell down on the left side and the motorcycle fell on the right side. He has further stated that both himself and pillion rider sustained severe injuries due to which injuries the pillion rider succumbed on the same evening. Both PW-1 and PW-2 have identified the accused as the driver of the offending vehicle. 12. Pw-3 Ravi Hegde has stated that he is a shop owner near the place of accident. As such, he was an eye witness to the incident. He too has given the account of the accident alleging that the said road traffic accident has occurred solely due to rash and negligent driving of the tempo-trax by the accused. He too has identified the accused in the Court. 13. Pw-4 Ashok Pierera has stated that, at the relevant point of time he was a lorry driver and at the time of accident he was present near the spot and has seen the said accident and the said accident has occurred solely due to the rash and negligent driving of the tempo-trax by its driver. 14. The evidence of PWs 1 to 4 who claim themselves to be eye witnesses could not be shaken in their cross-examination. PW-1 is admittedly the owner cum driver of a four wheeler vehicle which fact has come out in his cross examination from the accused' side. Similarly, PW-4 is a lorry driver. As such, they are expected to know as to what is a safe driving and what is a rash and negligent driving. Being the eye witnesses they have described their witnessing the tempo-trax coming in a rash and negligent manner which has resulted in a road traffic accident. Similarly, PW-4 is a lorry driver. As such, they are expected to know as to what is a safe driving and what is a rash and negligent driving. Being the eye witnesses they have described their witnessing the tempo-trax coming in a rash and negligent manner which has resulted in a road traffic accident. Even the sketch of the accident prepared by the I.O. i.e., PW-7 as per Ex.P4 would also go to show that the accident has occurred on the left side of the road on which the motorcycle rider was going and the said spot comes to the extreme right of the tempotrax vehicle when compared to the direction in which it was moving. The length of the dragged marks shown on the road would go to show that it is nearly about 45 ft from the place of accident to the place where the tempo-trax has come to a halt and thus would go to show that the four wheeler vehicle i.e. tempo-trax being driven by the accused was in high speed and was being driven in a rash and negligent manner. Thus the evidence of material witnesses of the prosecution has rightly been appreciated by the Trial Court and the Session Judge's Court holding that the accused has driven the tempo-trax vehicle in a rash and negligent manner causing the road traffic accident. 15. It is not in dispute that in the said accident both PW-2 Vasu Achari and his mother deceased Chandravathi sustained multiple injuries. The wound certificates at Exs.P12 and P13 give a detailed list of the injuries sustained by both of them. The postmortem report at Ex.P14 coupled with evidence of PW-2 the injured would further go to show that deceased Chandravathi died due to the injuries sustained by her in the accident. 16. The accident in question has occurred at 11 o' clock in the morning on 16.10.2004. Admittedly deceased Chandravathi succumbed to the injuries sustained by her in the accident, at 4.30 p.m. in the same afternoon. The complaint as per Ex.P1 was filed on the same day at 5.30 p.m. That being the case when both the mother and son were injured in the accident and other people were attending to the injured to secure medical treatment, it cannot be expected that the complaint was required to be lodged on the very next moment after the accident. Further it was not shown to the Court by the petitioner's side as to how the alleged delay, even if any, has caused any prejudice to his interest. It is not even shown that in the intervening time of about five hours, either there was any possibility of tailoring of complaint in the manner thus felt like or that a false complaint was lodged. In the circumstances, it cannot be accepted that there was any delay in lodging the complaint which has caused any prejudice to the interest of the accused or fatal to the case of prosecution. As such, the argument of learned counsel for the petitioner on the said point is not acceptable. 17. The second point of argument of learned counsel for the petitioner was that none of the passengers in the tempo-trax were examined by the I.O. and their statements have not been recorded which gives rise to doubt. The said contention is also not acceptable for the reason that there is nothing on record to show that there were any passengers traveling in the said tempo-trax vehicle at the time of the incident. No documents or no statements of any prosecution witnesses speak in that regard. As such, the Courts cannot presume of the presence of any other passenger in the said offending vehicle at the time of accident. As such, the said argument of the learned counsel for the petitioner is not acceptable. 18. The third point of the arguments of the learned counsel for the petitioner is that the rider of the motorcycle since had no driving licence as such the accident has occurred is also not acceptable for the reason that except making the said statement, the learned counsel for the petitioner has not drawn the attention of the Court to any material in that regard including the statement of any witnesses. Though it is an admitted fact that PW-2 did not possess a valid driving licence, there is nothing on record to show that the non possession of driving licence has resulted in the road traffic accident. On the other hand, as analysed above, the evidence of PW-1 Sukumar D. Shetty and the scene of offence panchanama and also the sketch of the place of accident would clearly go to establish that the accident has occurred due to rash and negligent driving of the Tempo-Trax vehicle by the accused/petitioner. 19. On the other hand, as analysed above, the evidence of PW-1 Sukumar D. Shetty and the scene of offence panchanama and also the sketch of the place of accident would clearly go to establish that the accident has occurred due to rash and negligent driving of the Tempo-Trax vehicle by the accused/petitioner. 19. The last point of argument of the learned counsel for the petitioner was that CW-18 Shivaprasad Alva K. another I.O. since has not been examined as a prosecution witness, the same is fatal to the case of prosecution. A perusal of the evidence of PW-7 Sri Vidhyadhara Baykeri who is the first I.O. in this matter would go to show that commencing from registration of complaint up to the stage of seizure of the vehicle Tempo-trax and mahazar at Ex.P7, the major portion of investigation has been conducted by him only. He has prepared the FIR as per Ex.P3 and sent it to the court and visited the scene of offence and prepared the sketch as per Ex.P4, conducted inquest as per Ex.P5 and recorded statements of several witnesses including CW-2, CW- 3, CW-4, CW-8, CW-9 and further statement of CW-1. Thus the major portion of investigation has been done by him. The same witness has stated that CW-18 has only received replies to the notices issued under Section 133 of the Motor Vehicles Act as per Exs. P8, P10 and he collected IMV report as per Ex.P11, wound certificates as per Exs.P12 and P13 and post-mortem report as per Ex.P14 and has filed charge-sheet. All these documents have been marked by the prosecution through PW-7 himself. Thus, the non examination of CW-18 has in no way weakened the case of prosecution. Thus the said point of argument of the learned counsel for the petitioner is also not acceptable. 20. Barring the above, the petitioner has not raised any other grounds worth considering in this revision petition. Since both the Trial Court as well as Session Judge's Court have, after appropriate appreciation of the evidence led before them and the materials placed before them, have rightly held the petitioner/accused guilty of the offence punishable under Sections 279, 337, 304A of IPC and also have sentenced him accordingly, which is proportionate to the proven guilt, I do not find any reason to interfere in the impugned Judgments and Order on sentence passed by those two Courts. Accordingly, I proceed to pass the following: ORDER The revision petition stands dismissed as devoid of merit. The Court while acknowledging the service rendered by Dr. J.S. Halasetti, learned panel advocate from the Legal Services Committee for the petitioner, recommends honorarium of a sum of not less than Rs 3,000/- to him payable by the High Court Legal Services Committee. Registry to transmit copies of this Order along with trial court and appellate court records to the concerned Courts, without delay.