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2021 DIGILAW 281 (KAR)

D. Malla Reddy v. State of Karnataka

2021-02-18

K.NATARAJAN

body2021
ORDER : K. NATARAJAN, J. 1. This revision petition is filed by the petitioner under Section 397 Cr.P.C. being aggrieved by the judgment of conviction and sentence passed by the First Senior Civil Judge and CJM, Ballari (hereinafter referred to as 'the trial Court', for brevity) in CC No. 64/2008 dated 22.07.2010 and upheld by the Fast Track Court-II, Ballari (hereinafter referred to as 'the first Appellate Court', for brevity) in Criminal Appeal No. 65/2010 dated 08.10.2010, for having found the petitioner guilty of the offences punishable under Sections 279 and 304(A) of the IPC and Section 187 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act', for brevity). 2. Heard the arguments of learned counsel for the petitioner and the learned HCGP for the respondent-State and perused the records. The rankings of the parties before the trial Court are retained for convenience. 3. The case of the prosecution in brief is that, the CPI Rural Police, Ballari filed the charge sheet against the accused alleging that, on 09.03.2008 at about 02.40 am, on a road leading to Bellary to Shruguppa, near Vakrani Camp, the accused being the driver of the lorry bearing registration No. AP 13/X 0882 drove the said vehicle in a rash and negligent manner with high speed endangering human life and caused the accident and dashed to one Lakshmi Devi, who sustained injuries and died on the spot and also drove the vehicle over 153 sheeps and its baby sheeps and three donkeys were also died on the spot. The same was not intimated to the police and he has also not provided any treatment to the deceased. Thereby he has committed offence under Sections 279 and 304-A of IPC and Section 187 of the MV Act. After taking cognizance against the accused, the charges were framed and read over to the accused. He denied the charges and claimed to be tried. Accordingly, the prosecution examined 14 witnesses and got marked 15 documents. After closing the evidence the statement of the accused under Section 313 Cr.P.C. is recorded. The case of the accused is one of total denial and he himself was examined as DW1 and got marked five documents. 4. He denied the charges and claimed to be tried. Accordingly, the prosecution examined 14 witnesses and got marked 15 documents. After closing the evidence the statement of the accused under Section 313 Cr.P.C. is recorded. The case of the accused is one of total denial and he himself was examined as DW1 and got marked five documents. 4. After hearing the arguments, the trial Court found the accused guilty of the offences alleged and convicted and sentenced him to undergo Simple Imprisonment for six months and to pay fine of Rs. 1,000/- for the offence punishable under Sections 279 of IPC and in default of payment of fine to undergo simple imprisonment for one month, further sentenced him to undergo rigorous imprisonment for eight months and to pay fine of Rs. 3,000/- for the offence under Section 304(A) of IPC and in default of payment of fine to undergo rigorous imprisonment for one month and further sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 500/- for the offence under Section 187 of MV Act. The same was challenged before the first Appellate Court in Crl.A. No. 65/2010, where the first Appellate Court allowed the appeal in part by upholding the findings of conviction, but however, set aside the sentence passed for the offence under Section 279 of the IPC and upholding the order of sentence in respect of offence under section 304(A) of IPC and offence under section 187 of IMV Act. Assailing the same, the petitioner/accused is before this Court. 5. Learned counsel for the petitioner contended that the trial Court and the first Appellate Court committed error in convicting the petitioner. Absolutely there is no evidence available on record. The witnesses PW1 and PW2 are though eyewitnesses, but the incident was occurred in the mid night at 2.40 am. They could not have seen the accused and there is no test identification parade conducted by the Investigating Officer. The eyewitnesses states they have seen the driver with the help of torch, but the said torch is not seized. The witnesses have seen the accused in the police station, when he was sitting alone. That identification cannot be acceptable. The number plate of the lorry was not there. The question of identifying the lorry without the number plate cannot be acceptable. The witnesses have seen the accused in the police station, when he was sitting alone. That identification cannot be acceptable. The number plate of the lorry was not there. The question of identifying the lorry without the number plate cannot be acceptable. The vehicle was seized on 10.03.2008, but not immediately on the date of incident. 153 sheeps were died and there is reflection in the cross-examination that the sheeps and donkeys were coming on the road in the night time. Therefore, prayed for setting aside the same. Alternatively, the learned counsel also contended that, by imposing fine amount instead of imprisonment, that would meet the ends of justice. Hence he prayed for allowing the petition. 6. Per contra, learned HCGP supported the judgment passed by both the Courts below and contended that the eyewitnesses were all walking along with the deceased. PWs. 1 to 3 are the eyewitnesses. PW2 is the complainant. The accused drove the vehicle in a rash and negligent manner and even after dashing to the deceased, continuously he ran over 153 sheeps and 3 donkeys which were died on the spot. The accused acted in a cruel manner. The lorry was seized by the police. The accused was the driver of the lorry is not in dispute, since the owner of the lorry PW12 has supported the prosecution case for handing over lorry to the accused. The cleaner of the lorry PW6 though turned hostile, but he has stated that the accused was the driver of the lorry. The doctors PW9 and PW11 have clearly stated in their evidence about the death of the sheeps and Lakshmi Devi. All the witnesses supported the prosecution case and thereby the prosecution successfully proved the guilt of the accused and the trial Court considering the entire evidence on record rightly convicted the accused and the first Appellate Court also upheld the same. Therefore, there is nothing to interfere with the judgment of the trial Court and there is no error or illegality committed by both the Courts below and hence prayed for dismissing the revision petition. 7. Therefore, there is nothing to interfere with the judgment of the trial Court and there is no error or illegality committed by both the Courts below and hence prayed for dismissing the revision petition. 7. Upon considering the arguments of the learned counsel for the petitioner and learned HCGP for the respondent - State and perusing the records, the point that arise for my consideration is: "Whether the trial Court is justified in convicting the accused and sentencing him for the offences under Section 304(A) and 279 of the IPC and Section 187 of the Motor Vehicles Act?." 8. In order to prove the case of the prosecution that the accused was the driver of the vehicle in question bearing No. AP-13/X-0882 and the factum of the accident dated 09.03.2008 at 2.40 am, the prosecution relied upon the evidence of PW1, who is the complainant as well as eyewitness and brother of the deceased. He has categorically stated that, he along with PW2, PW3 and the deceased were proceeding on the Shiruguppa Ballari road by taking their sheeps and donkeys and at that time, the accused drove the truck in a rash and negligent manner and dashed to the deceased as well as ran over the truck on the sheeps and donkeys thereby his sister Laxmidevi died on the spot, more than 153 sheep and three donkeys were died on the spot. The accused continuously ran over the vehicle without stopping. The evidence of PW1 corroborates with Ex. P1 - complaint. PW2 - Ramanjaneyulu, husband of the deceased, PW3 - Thimmanna were also taking the sheep along with the deceased and both of them have categorically supported the evidence of PW1. Ex. P2 - spot panchanama prepared by the police, clearly corroborates the evidence of PWs. 1 to 3. PW4 - panch witness has also supported the prosecution case. The evidence of PW7 - PSI, who registered the case and issued the FIR at 4.00 am i.e., within 1½ hours of the accident, PW9-veterinary doctor who examined the dead sheeps and donkeys given his report. PW11 - doctor who conducted postmortem examination on the dead body of deceased Lakshmi Devi and issued post mortem report as per Ex. P10, clearly corroborates with each other. The accused also not denied the accident and the death of the deceased Lakshmi Devi on the spot apart from the sheeps and donkeys. PW11 - doctor who conducted postmortem examination on the dead body of deceased Lakshmi Devi and issued post mortem report as per Ex. P10, clearly corroborates with each other. The accused also not denied the accident and the death of the deceased Lakshmi Devi on the spot apart from the sheeps and donkeys. The only contention of the accused is that, he was not the driver of the vehicle and there is no test identification parade conducted by the Investigating Officer. In this regard, PWs. 1 to 3 have identified the accused in the police station after his arrest and seizure of the vehicle. The evidence of the Investigating Officer and seizure mahazer conducted by the Investigating Officer has been supported by PW5 - an independent witness. In order prove the accused is the driver of the vehicle, the prosecution examined PW6 - Raj Kumar Reddy, cleaner of the lorry, who has clearly stated the accused was the driver of the lorry on the said day of incident and he along with accused were driving the lorry. However, he has turned hostile in respect of only causing the accident by the accused and PW12 - Sreenivasa Reddy, owner of the truck, has clearly stated that the accused was the driver of his lorry and he was driving the vehicle and later on the said day, the police informed that his lorry was met with an accident and seized by the police and he got it released. Though the learned counsel brought to the notice of this Court that the owner of the lorry stated that on 09.03.2008 itself he came to know from the police that the lorry was met with an accident, but that itself cannot be a ground to reject the entire evidence. He may give wrong date because of lapse of gap in giving the evidence and the accident. The fact that the accused was the driver of his lorry has been spoken by this witness and it was seized by the police for having caused the accident. Therefore, from the evidence of PWs. 6 and 12, the prosecution is able to show that the accused was the driver of the lorry in question at the time of accident. 9. That apart, the number plate of the lorry has been found on the spot as per the spot panchanama and the evidence of PW4 and other witnesses. Therefore, from the evidence of PWs. 6 and 12, the prosecution is able to show that the accused was the driver of the lorry in question at the time of accident. 9. That apart, the number plate of the lorry has been found on the spot as per the spot panchanama and the evidence of PW4 and other witnesses. As per the RTO report and the evidence of PW10, the front number plate of the lorry was missing. The evidence of PW10 and Ex. P11 - IMV Report, shows the front side number plate is missing. There was damage in the mud guard and the centre portion of the bumper has been bent, which clearly corroborates with the evidence of PW10 and Ex. P11 shows the vehicle has caused the accident and ran over sheeps. Evidence of PW11 - doctor who conducted the post-mortem examination and is the post-mortem examination report as per Ex. P10 clearly depicts that the deceased sustained injuries and died. The evidence of the complainant and other eyewitnesses, panch witnesses and doctors corroborates with each other to prove the guilt of the accused. 10. Learned counsel for the petitioner has contended that there is no test identification parade conducted by the police and the complainant said to have seen the accused in the torch light and the torch was not seized. In my considered opinion, the evidence of PWs. 1 to 3 is trust-worthy and creditworthy to show that the accused drove the vehicle in a rash and negligent manner and ran over the deceased, sheeps and donkeys. As far as proving that the accused is the driver of the vehicle, PW6 - cleaner and PW12 - owner of the vehicle clearly stated that the accused was the driver of the vehicle. After the arrest the accused was shown to PWs. 1 to 3 in the police station and was identified by them. The number plate of the lorry was seized on the spot and the said number plate was missing from the vehicle during the motor vehicle inspection and as per the report. 11. These circumstances and evidence of PW3 clearly corroborates with each other to prove the guilt of the accused. Merely there is no test identification parade conducted by the Investigating Officer, it is not fatal to the facts and circumstances of the case. 11. These circumstances and evidence of PW3 clearly corroborates with each other to prove the guilt of the accused. Merely there is no test identification parade conducted by the Investigating Officer, it is not fatal to the facts and circumstances of the case. Even the eyewitnesses cannot be expected to see the driver in the late hours when the vehicle was driving. They cannot be expected to give names of the accused, who are unknown persons to the eyewitnesses. Such being the case, the contention of the learned counsel for the petitioner cannot be accepted. 12. Regarding identification of the accused in the police station, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Devinder Singh & Ors. Vs. State of Himachal Pradesh reported in MANU/SC/0728/2003 : 2003 (11) SCC 488 and contended that, without holding the test identification parade, identifying the accused first time after two years of incident, the evidence of the prosecution witnesses not acceptable. The judgment of the Hon'ble Apex Court is related to the rape case, where there is no supporting evidence and therefore, the Hon'ble Apex Court held that, if there is no identification parade conducted, the appellant cannot be identified by the witnesses in the court without seeing even in the police station and acquitted the accused persons. But in the instant case, all the witnesses categorically stated that they have seen the accused persons in the police station and identified them. Even otherwise, in a case like the accident committed by the drivers of the vehicle, the injured eyewitnesses not able to see the driver's face when the case is of hit and run. On the other hand, the vehicle involved in the accident has been proved by the prosecution by seizing the name plate of the vehicle on the spot. Killing a woman and killing more than 200 sheeps and 3 donkeys and proving driver of the vehicle has been by the prosecution by examining the cleaner as well as the owner of the vehicle, the identity of the accused has been established by the prosecution without any doubt. Such being the case, the judgment of the Hon'ble Apex Court is not applicable to the case of the accused. On the other hand, the prosecution established the guilt of the accused beyond all reasonable doubt. 13. Such being the case, the judgment of the Hon'ble Apex Court is not applicable to the case of the accused. On the other hand, the prosecution established the guilt of the accused beyond all reasonable doubt. 13. Hence I hold that the accused has committed the offence under Sections 279 and 304-A of the IPC and Section 187 of the Motor Vehicles Act. The impugned judgment of the trial Court and the first Appellate Court are based upon the reasons appreciating the evidence on record and do not call for interference by this Court. Accordingly I pass the following: ORDER The petition is dismissed.