Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 842 (KAR)

MASTAN v. STATE OF KARNATAKA

2021-09-03

RAJENDRA BADAMIKAR

body2021
JUDGMENT : Rajendra Badamikar, J. 1. This criminal revision petition is filed under Sec. 397 r/w Sec. 401 of Cr.P.C. seeking to set aside the judgment of conviction dtd. 30/10/2012 passed by the District and Sessions Judge, Uttara Kannada, Karwar in Crl.A.No. 119/2010 confirming the judgment conviction and order of sentence dtd. 30/9/2010 passed by the JMFC, Ankola in C.C.No. 345/2007 and sought for acquittal of the accused/revision petitioner. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court. 3. The brief facts leading to the case are that, on 9/5/2007 at about 8.30 a.m. on NH-17 at Aversa in Ankola Taluk, accused has driven his lorry bearing No. KA28/A-4597 from Ankola towards Karwar in a rash and negligent manner so as to endanger to human life and public safety and dashed to the oncoming motorcycle bearing No. KA-30/E-7163 from the opposite side and thereby the rider of the motor cycle succumbed due to injuries on the spot. In this regard, a complaint came to be lodged and the Investigating Officer after investigation of the crime has submitted the charge sheet under Ss. 279 and 304-A of IPC. 4. After submission of the charge sheet, the learned Magistrate has taken cognizance and the accused has appeared in pursuance of summons issued to him and was enlarged on bail. The accused denied accusation made against him and the prosecution has examined in all eight witnesses as PWs. 1 to 8 and nine documents were marked as Exs.P1 to P9. After conclusion of evidence, the statement of accused under Sec. 313 of Cr.P.C. is recorded to enable him to explain incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial and he did not choose to lead any oral or documentary evidence in support of his defence. 5. After hearing the arguments and appreciating the evidence on record, the learned Magistrate has convicted the accused by imposing sentence of imprisonment of six months with fine of Rs.1,000.00 with default sentence of 30 days of Simple Imprisonment. Being aggrieved by this judgment of conviction, the accused has filed an appeal in Criminal Appeal No. 119/2010 before the District and Sessions Judge, Uttara Kannada, Karwar and the learned Sessions Judge by judgment dtd. Being aggrieved by this judgment of conviction, the accused has filed an appeal in Criminal Appeal No. 119/2010 before the District and Sessions Judge, Uttara Kannada, Karwar and the learned Sessions Judge by judgment dtd. 30/10/2012, dismissed the appeal by confirming the judgment of conviction and order of sentence. 6. Heard the learned counsel for revision petitioner and the learned High Court Government Pleader (for short, 'HCGP' appearing for the Respondent-State. Perused the records of the trial Court. 7. Learned counsel for the Revision Petitioner would contend that both the courts below have committed grave error in convicting the accused and have not properly appreciated the oral and documentary evidence. He would also contend that investigation is one sided and Ex.P2 disclose that there is no negligent act on the part of the accused. He would also contend that, in case the Court comes to conclusion that the accident is because of actionable negligence on the part of the revision petitioner, it may take a lenient view, as the petitioner is aged about 59 years as on today and he has underwent mental trauma for last 14 years and as such, he would seek for exonerating the revision petitioner from sentence of imprisonment by enhancing the fine amount. 8. Per contra, the learned HCGP has contended that the evidence on record clearly establish that the accident in question was because of actionable negligence on the part of the revision petitioner, as he moved his vehicle on wrong side of the road and dashed against oncoming motor bike resulting in the death of the rider of the vehicle. He would also contend that, there is material evidence against the accused and as such the sentence should be proportionate to the offence committed by the accused, and imposing fleebite sentence is deprecated by the Hon'ble Apex Court, and in this regard, he placed reliance on the decision reported in State of Karnataka vs. Krishna @ Raju, 1987 (1) SCC 538 and contend that the Trial Court has imposed a reasonable sentence and as such, he sought for dismissal of the revision petition. 9. Having heard the arguments advanced by the learned counsels appearing on both sides and on perusing the records, it is an undisputed fact that the accused was the driver of the offending lorry bearing Registration No. KA.28.A.4579. 9. Having heard the arguments advanced by the learned counsels appearing on both sides and on perusing the records, it is an undisputed fact that the accused was the driver of the offending lorry bearing Registration No. KA.28.A.4579. It is also an undisputed fact that on 9/5/2007 at about 8.30 a.m. the said lorry met with an accident on NH-17 on Karwar- Ankola Road, when it collided with motor bike bearing Registration No. KA.30.E.7163 and the rider of the motor bike succumbed because of injuries. The accidental death of the rider is also not under serious dispute: (1) PW.1 is the complainant and his evidence discloses that the accident is because of actionable negligence on the part of the driver of the lorry, as he moved on the wrong side. Very interestingly, during cross-examination of this witness, the identity of the driver of the lorry itself is disputed suggesting that the accused was not the driver of the lorry. (2) PW.2 -Ganesh Soma Naika is one of the mahazar witnesses. (3) PW.3-Santhosh Era Naika is another mahazar witness and he supported the case of prosecution regarding drawing of spot -mahazar. (4) PW.4-Sri. Nagesh Venkatramana Revankar is an eye-witness and he has specifically asserted that his house is situated adjoining to the Highway near accident spot and while he was standing near the gate, the driver drove his vehicle in a rash and negligent manner and dashed to the oncoming motor bike. This witness was cross-examined at length. But, his evidence is not impeached. (5) PW.5- Dr. Anupama is a doctor, who conducted Post- Mortem examination and PW.6 Mohammed Imamsala Bhagawan is the owner of the offending lorry, which is involved in the accident. He pleads ignorance as to who is the driver of the lorry. But, interestingly, he has issued Ex.P6 in writing to the Investigating Officer, wherein he has endorsed that the accused was the driver of the lorry. Now, in the evidence, he is disputing that fact and claiming that he was not knowing as to who is the driver, as he is owning number of Lorries. But, there is no record to show that, he is possessing number of Lorries, so that he could maintain a manager to take care of the transport business. No such evidence is also forth-coming. 10. But, there is no record to show that, he is possessing number of Lorries, so that he could maintain a manager to take care of the transport business. No such evidence is also forth-coming. 10. The evidence of PW.1 and PW.4 clearly establish that the accident is because of actionable negligence on the part of the driver of the lorry ie., accused/revision petitioner. Apart from that, Exs.P2 and P8 are material documents in the instant case. At the incident spot, the road is running in East-West direction. Ankola is situated towards East while Karwar is situated towards West. It is a National Highway No. 17. At the accident spot, the road is of the width of 24 feet. Admittedly, the lorry was moving from Ankola towards Karwar, while the motor bike was moving towards Karwar towards Ankola. The lorry while moving from Ankola towards Karwar ie., from East to West, it ought to have moved on the Southern side. But, the records disclose that, it moved on to the Northern side. Ex.P2 and Ex.P8 establish that the scene of offence is Northern edge of the road and when accused was moving from East to West, he should have driven his vehicle on the Southern side. But, it is evident that he has moved his vehicle on the Northern Side. Apart from that, the vehicle when over-turned on the Northern side of the road, which clearly establish the principles of res-Ipsa-Loquitur i.e., 'things itself will speak'. The accused is not prepared to give any explanation all along and it is simply asserted that there is no actionable negligence on the part of the accused. But, before the trial Court, the very identity of the accused came to be disputed and even the owner has not disclosed the identify of the driver. The cleaner has turned hostile. The eye-witnesses have fully supported the case of the prosecution. 11. Under these circumstances, looking to the facts and circumstances of the case in hand, it is evident that the accident in question is because of actionable negligence on the part of the driver of the lorry i.e., the revision petitioner/accused. Hence, both the Courts below are justified in convicting the accused and hence, the question of interfering with the judgment of conviction does not arise at all. 12. Hence, both the Courts below are justified in convicting the accused and hence, the question of interfering with the judgment of conviction does not arise at all. 12. Learned counsel for revision petitioner has placed reliance on an unreported decision of this Court in Crl. R.P. No. 100025/2014 dated 27.6.2014 [Ulas vs. State of Karnataka], wherein for the offence punishable under Sec. 304-A of IPC, the sentence was reduced to four months from six months. But, the facts of the said case are entirely different, as in the said case, immediately after accident, the accused surrendered himself before the police by reporting accident, which discloses his fairness and also in the said case, the evidence was 50:50 and there were no specific direct evidence to pin-point the rash and negligent act on the part of the driver of the lorry i.e. the revision petitioner/accused, and hence, considering these aspects and other grounds, the sentence was reduced. But, in the instant case, the accused has gone to the extent of denying the fact of his involvement in the accident and also he colluded with the owner of the lorry. Therefore, the said principles cannot be made applicable to the facts and circumstances of the case in hand. 13. The learned counsel has also placed reliance on an unreported decision of this Court in Criminal Revision Petition No. 974/2011 dtd. 4/2/2021 [Nazeem Lathif Vs. State by N.R. Traffic Zone, Mysore], wherein the sentence of imprisonment is reduced from six months to four months for the offence under Sec. 304-A of IPC. He has further placed reliance on an unreported decision of Hon'ble Apex Court in Criminal Appeal No. 698/2010 dtd. 20/2/2019 [Thangasamy Vs. The State of Tamil Nadu], wherein the Hon'ble Apex Court has actually confirmed the sentence imposed by trial Court and the High Court has waived of the custodial sentence, and the Hon'ble Apex Court has reduced the sentence imposed by the trial Court by restricting it to four months. But, that was because of the power vested in Hon'ble Apex Court. 14. In this context, the learned HCGP has placed reliance on a decision reported in (1987) 1 SCC 538 in Raju's case (cited supra), wherein the Hon'ble Apex Court has dealt with the matter regarding sentencing policy in respect of offences punishable under Ss. But, that was because of the power vested in Hon'ble Apex Court. 14. In this context, the learned HCGP has placed reliance on a decision reported in (1987) 1 SCC 538 in Raju's case (cited supra), wherein the Hon'ble Apex Court has dealt with the matter regarding sentencing policy in respect of offences punishable under Ss. 340-A, 279 and 337 of IPC and the Hon'ble Apex Court has come down heavily in respect of imposing flee-bite sentences and has specifically observed that the sentence should be proportionate to the offence and imposed sentence by enhancing the same to six months and that decision is from the Karnataka only. In the instant case, at the first instance, the accused/revision petitioner is not fair enough to admit that he was the driver of the offending vehicle, and he all along went on disputing his identity without disclosing who was the driver. Even the owner, who has given in writing as per Ex.P6 that the accused was driver, but during the course of evidence, he pleaded ignorance as to who was the driver and retracted of issuing letter as per Ex.P6. This fact established that the accused is not fair. When the accused has not approached the court with fairness, question of showing leniency to such an accused does not arise at all. If in such matters leniency is shown, it will give a wrong message to the society. Under such circumstances, the conviction imposed by both the Courts below does not call for any interference. 15. Apart from the above, in the instant case, the trial Court has imposed sentence of six months with fine and has failed to impose individual sentence for the offences under Ss. 279 and 304-A of IPC and the same is confirmed by the Appellate Court. However, the said part is not challenged by the State. 16. Looking to the facts and circumstances of the case, this is not a fit case wherein the accused can be shown any leniency by reducing sentence. Hence, revision petition is devoid of any merits and it needs to be rejected. Accordingly, I proceed to pass the following: ORDER: The revision petition is rejected.