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2020 DIGILAW 374 (KAR)

Hasansab Abdulsab Tamboli v. State Of Karnataka

2020-02-07

K.S.MUDAGAL

body2020
JUDGMENT K.S. Mudagal, J. - 'Whether the impugned order of conviction and sentence dated 14.06.2010 in C.C. No. 961/2009 convicting the petitioner for the offences punishable under Section 279 and 338 of IPC and confirmed by the First Appellate Court suffers any illegality, impropriety or incorrectness?' is the question involved in this case. 2. On 15.10.2009 at about 5.45 p.m. when P.W. 1-Nursab Imamsab Naragund and P.W. 2-Bandenawaj Chandsaheb Jamakhandi were proceeding in motor cycle bearing Registration No. KA-29/Q/1946 near Kerudi Hospital, Bagalkot Town, auto-rickshaw bearing Registration No. KA-29/8593 driven by the petitioner hit the said motorcycle and caused the accident. 3. In the accident, P.W. 1 and P.W. 2 suffered injuries. P.W. 1 and P.W. 2 were shifted to Kerudi Hospital. On receipt of Medico Legal Intimation from the hospital, P.W. 4 PSI of Bagalkot Traffic police station visited the hospital and recorded the statement of P.W. 1 as per Ex. P1. 4. On the basis of such statement, P.W. 4 registered first information report as per Ex. P2 in Crime No. 85/2009 of Bagalkot Traffic police station. He himself conducted the investigation and filed the charge sheet for the offences punishable under Sections 279, 337 and 338 of IPC. 5. The trial Court secured the presence of the accused-petitioner and recorded his plea on substance of accusation for the offences punishable under Section 279 and 338 of IPC. The accused denied the charges and claimed trial. 6. In support of its case, the prosecution examined P.W. 1 to P.W. 6 and got marked Ex. P1 to Ex. P7. Accused was examined by the trial Court with reference to incriminating material. He did not lead any defence evidence. 7. The trial Court on hearing both parties, by the judgment and order dated 14.06.2010 convicted the petitioner for the offences punishable under Section 279 and 338 of IPC. For the offence under Section 279 of IPC, accused was sentenced to pay fine of Rs. 900/- and for the offence under Section 338 of IPC, sentenced to undergo simple imprisonment for ten days and to pay fine of Rs. 1,000/-, with provision to undergo default sentence. 8. The Trial Court held that the charges against the accused were proved by the evidence of P.W. 1 and P.W. 2 injured eyewitnesses, P.W. 3 eyewitness, Ex. P4-spot mahazar, Ex. P6 and Ex. P7 the wound certificates as well as Ex. 1,000/-, with provision to undergo default sentence. 8. The Trial Court held that the charges against the accused were proved by the evidence of P.W. 1 and P.W. 2 injured eyewitnesses, P.W. 3 eyewitness, Ex. P4-spot mahazar, Ex. P6 and Ex. P7 the wound certificates as well as Ex. P5 Motor Vehicle Inspectors report. 9. The said judgment and order was challenged before the Sessions Judge, Bagalkot in Criminal Appeal No. 53/2010. The learned Sessions Judge by impugned judgment and order dismissed the appeal concurring with the reasonings and findings of the trial Court. 10. Sri P.N. Hosamane, learned Counsel for the petitioner seeks to assail the impugned order of both the Courts on the following grounds: (i) P.W. 1 eyewitness-complainant states that he is not aware of the contentions of Ex. P1 complaint; (ii) P.W. 1 and P.W. 2 the alleged eyewitnesses state that they were not aware of the name of the accused and the number of the vehicle; & (iii) Since accused has also suffered injuries in the accident, sentence of imprisonment is disproportionate. 11. Per contra, Sri Vinayak S. Kulkarni, learned Additional Government Advocate seeks to support the impugned judgments of both the Courts on the following grounds: (i) P.W. 1 and P.W. 2 were injured eyewitnesses and they have no reasons to falsely implicate the accused; (ii) Accused did not dispute the occurrence of the accident and that at the relevant time he was driving the vehicle. Therefore, P.W. 1 and P.W. 2s inability to spell the name of the accused and number of the auto-rickshaw cannot be blown out of proportion; & (iii) Having regard to the nature of the injuries suffered by P.W. 1 and P.W. 2, sentence of imprisonment imposed by the trial Court does not call for interference. 12. This being revision petition under Section 397 r/w 401 of Cr.P.C., the scope of interference by this Court is very limited. In the light of concurrent findings of both the Courts, to arrive at a different conclusion, the petitioner has to demonstrate that the approach of both the Courts to the evidence was perverse or suffers the vice of incorrectness, impropriety or illegality. 13. P.W. 1 and P.W. 2 were injured eyewitnesses. P.W. 3 the other eyewitness was a passerby. He shifted the injured to the hospital. 13. P.W. 1 and P.W. 2 were injured eyewitnesses. P.W. 3 the other eyewitness was a passerby. He shifted the injured to the hospital. In the cross-examination of P.W. 1 to P.W. 3 occurrence of the accident between the motor cycle of P.W. 1 and P.W. 2 and auto rickshaw of the petitioner was not disputed. The petitioner did not even dispute that at the relevant time, he was the driver of the auto rickshaw. It was not his case that his name was manipulated in the first information report subsequently. 14. The accident occurred on 15.10.2009 at 5.45 p.m. Soon after that, on the same day at about 7.15 p.m. first information report Ex. P2 was registered. The endorsement of the learned Magistrate on Ex.P2 shows that the first information report was submitted to the learned Magistrate on the same day at 8.55 p.m. Therefore, there was no scope for any manipulation or interpolation. 15. The accused was not the person known to the victims. The wound certificates Ex. P6 and Ex. P7 relating to P.W. 1 and P.W. 2 were not disputed. The injuries suffered by P.W. 1 and P.W. 2 are also not disputed. Ex. P6 shows that P.W. 1 the complainant had suffered nasal fracture and two other injuries. Ex. P7 wound certificate shows that P.W. 2 had suffered fractures one on his hand and another on his right frontal region. They were immediately shifted to the hospital. 16. Under such circumstances, inability of PW-1 and PW-2 to spell the name of the accused and the number of the auto rickshaw cannot be given undue importance, more particularly, when the accused did not dispute the involvement of the vehicle in the accident and he being driver of the vehicle at the relevant time. 17. So far as rashness and negligence, the spot mahazar Ex. P4 coupled with the evidence of P.W. 1 to P.W. 3 showed that auto rickshaw was at its extreme right side and hit the motorcycle on its left side. Considering all such evidence, both the courts held that the accident occurred due to rash and negligent driving of the vehicle by the petitioner. This Court does not find any perversity in the judgment and order of conviction of the petitioner. 18. So far as sentence, the accident occurred on 15.10.2009. Already more than 10 years have elapsed since the time of accident. This Court does not find any perversity in the judgment and order of conviction of the petitioner. 18. So far as sentence, the accident occurred on 15.10.2009. Already more than 10 years have elapsed since the time of accident. It is brought to the notice of this Court that victim P.W. 1 and P.W. 2 filed claim petitions in M.V.C. Nos. 211/2010 and 212/2010 under Motor Vehicles Act, 1988 seeking compensation. Challenging the adequacy of the compensation awarded in those cases, they preferred M.F.A. No. 21095/2012 and M.F.A. No. 21096/2012 before this Court. The said appeals were allowed by this Court on 10.10.2019 enhancing the compensation. Therefore, the victims are sufficiently compensated. 19. The trial Court has sentenced the petitioner to pay fine of Rs. 900/- for the offence under Section 279 IPC. For the offence under Section 338 IPC, the courts have sentenced the petitioner to simple imprisonment of 10 days and fine of Rs. 1,000/-. As reported, the accused has no other criminal antecedents. 20. Having regard to the facts and circumstances, it is just and appropriate to modify the order of sentence of imprisonment enhancing the fine amount. The revision petition is partly allowed. The impugned judgment and order of conviction is confirmed. The impugned order of sentence passed by the trial Court and confirmed by the First Appellate Court is modified as follows: The accused is sentenced to pay fine of Rs. 5000/- each for the offences punishable under Sections 279 and 338 of IPC and in default to pay the fine amount, the accused shall undergo simple imprisonment for one month for each of the offences.