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2022 DIGILAW 341 (KAR)

C. Nagaraja v. State

2022-03-09

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This Criminal Revision Petition is filed to set aside the order dated 15.10.2011 passed by the Civil Judge and JMFC, Holenarasipura in C.C. No. 786/2008 and the order dated 03.11.2012 passed by the Additional Sessions and FTC-II, Hassan in Criminal Appeal No. 126/2011 and consequently acquit the petitioner. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State. 3. The factual matrix of the case of the prosecution is that on 25.08.2008 at 10.15 a.m. near K.P.T.C.L. Power Substation in Marashetty Hally-Agrahara gate road, the petitioner-accused being a driver of auto rickshaw bearing No. KA-18-8550 drove the auto rickshaw in a rash and negligent manner from Marashetty Hally towards Agrahara gate and dashed against one M.M. Thanuja, who was walking on the side of the road to the school. As a result, she succumbed to the injuries at the spot. Based on the complaint of C.W. 1, the police have registered the case, investigated the matter and filed the charge-sheet for the offences punishable under Sections 279 and 304A of IPC and accused was secured before the Trial Court and he did not plead guilty. 4. The prosecution, in order to prove the charges leveled against the petitioner, examined 15 witnesses as P.Ws. 1 to 15 and got marked 8 documents as Exs. P1 to P8. The petitioner-accused herein has not led any defence evidence. 5. The Trial Court, after considering both oral and documentary evidence placed on record, particularly the evidence of P.Ws. 1, 8, 9 and 11, who are the eye witnesses comes to the conclusion that the evidence of these eye witnesses are consistent and it corroborates the case of the prosecution and there is no discrepancy with regard to the fact that they have witnessed the accident which is discussed in paragraph No. 17. Hence, the Trial Court comes to the conclusion that the petitioner has committed the offences punishable under Sections 279 and 304-A of IPC. Hence, convicted and sentenced the petitioner-accused to undergo simple imprisonment for a period of six months and imposed a fine of Rs. 1,000/- for the offence under Section 279 of IPC and for the offence under Section 304A of IPC, ordered to undergo simple imprisonment for a period of one year and imposed a fine of Rs. 3,000/-. 6. Hence, convicted and sentenced the petitioner-accused to undergo simple imprisonment for a period of six months and imposed a fine of Rs. 1,000/- for the offence under Section 279 of IPC and for the offence under Section 304A of IPC, ordered to undergo simple imprisonment for a period of one year and imposed a fine of Rs. 3,000/-. 6. Being aggrieved by the judgment and order of conviction and sentence, an appeal is filed before the Appellate Court which is numbered as Crl.A. No. 126/2011 and the Appellate Court, after reconsidering both oral and documentary evidence placed on record, in paragraph No. 10 discussed the evidence of P.W. 1 and also considered the evidence of eye witnesses i.e., P.Ws. 1, 8, 9 and 11. Further, in paragraph No. 11, taken note of the fact that the vehicle involved in the accident i.e., auto rickshaw and on re-appreciation, arrived at a definite finding in paragraph Nos. 10 and 11 that the Trial Court has rightly considered the material available on record and confirmed the judgment and order of conviction and sentence. 7. Being aggrieved by the judgment and order of conviction and affirmation made by the Appellate Court, the petitioner has filed the present revision petition. 8. The learned counsel appearing for the petitioner mainly contend that the evidence of P.Ws. 1, 8, 9 and 11 are not consistent and there are discrepancies in the evidence but, the Trial Court as well as the Appellate Court have not considered the discrepancies. It is also contended that no witnesses have identified the petitioner nor the vehicle during the course of the trial. The counsel would also contend that specific defence was taken that road was not in a proper condition at the time of the accident. Hence, the vehicle could not move fast as contended by the prosecution. The counsel also would vehemently contend that the sentence imposed by the Trial Court is very harsh and severe and it is an accident which has taken place in the year 2008 and almost 11/2 decade is over and the same would have been taken into consideration. 9. Per contra, learned High Court Government Pleader for the State would submit that the prosecution mainly relied upon the evidence of P.Ws. 9. Per contra, learned High Court Government Pleader for the State would submit that the prosecution mainly relied upon the evidence of P.Ws. 1, 8, 9 and 11, who are the eye witnesses to the accident and all of them have consistently deposed before the Court that they have witnessed the accident and this petitioner himself caused the accident against the school going girl, who succumbed to the injuries at the spot. She would also submit that these witnesses have identified the petitioner and the very contention of the learned counsel for the petitioner that the witnesses have not identified the petitioner cannot be accepted. 10. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State and also on considering both oral and documentary evidence placed on record, the points that would arise for consideration of this Court are: (i) Whether both the Courts have committed an error in not properly appreciating the evidence available on record and also not taken note of the discrepancies as contended by the learned counsel for the petitioner and any perverse order is passed and whether it is a fit case to exercise the revisional jurisdiction to set aside the order passed by both the Courts? (ii) What order? Point No. (i) 11. Having heard the respective counsel and also on perusal of the material on record, it is the case of the prosecution that the present petitioner drove the auto rickshaw in a rash and negligent manner and caused accident against the school going girl, who was proceeding on the left side of the road and in order to prove the said charges, the prosecution mainly relied upon the evidence eye witnesses i.e., P.Ws. 1, 8, 9 and 11. The Trial Court also considering both oral and documentary evidence placed on record, particularly in paragraph No. 12 discussed the evidence of P.W. 1 and also taken note of the cross-examination of P.W. 1 in paragraph No. 13. Apart from that, the Trial Court also in paragraph No. 14, relied upon the evidence of P.W. 8, who is also an eye witness and similarly relied upon the evidence of P.Ws. 9 and 11 in paragraph Nos. 15 and 16. Apart from that, the Trial Court also in paragraph No. 14, relied upon the evidence of P.W. 8, who is also an eye witness and similarly relied upon the evidence of P.Ws. 9 and 11 in paragraph Nos. 15 and 16. Thereafter, considering the evidence of eye witnesses in paragraph No. 17 comes to the conclusion that these eye witnesses have clearly supported the case of the prosecution and nothing is elicited from them during the course of cross-examination to disbelieve their evidence. 12. The Appellate Court also, in paragraph Nos. 10 and 11 discussed the evidence of P.W. 1 and taken note of the fact that Ex. P2 is marked through P.W. 1 i.e., spot mahazar and also taken note of the evidence of other eye witnesses i.e., P.Ws. 8 and 9 and reasoning was given in paragraph No. 11. 13. Having considered the reasoning given by the Trial Court as well as the Appellate Court and also looking into the material available on record, particularly the evidence of P.Ws. 1, 8, 9 and 11, who are the eye witnesses, in the cross-examination of P.W. 1, he categorically says that immediately after the accident, the petitioner ran away from the spot. However, he categorically says that he has identified the petitioner and suggestion was made that the victim while proceeding on the road she turned back and abruptly she fell down on the road and the said suggestion was denied. 14. P.W. 8 also reiterated the evidence of P.W. 1 and he categorically identifies this petitioner that he was driving the vehicle. In the cross-examination, the defence itself elicited that the accident has occurred in the place where two roads join and not disputes the accident. It is also elicited that he made the statement before the Court how the accident has occurred. It is suggested that road was not in a proper condition and the same was denied. 15. P.W. 9 also identifies this petitioner that he drove the vehicle in a rash and negligent manner. In the cross-examination also, he categorically says that he himself and one Mahesh were there at the spot at the time of the accident. He also admits that, number of people move in the said road and suggestion was made that road was not in a proper condition and the said suggestion was also denied. In the cross-examination also, he categorically says that he himself and one Mahesh were there at the spot at the time of the accident. He also admits that, number of people move in the said road and suggestion was made that road was not in a proper condition and the said suggestion was also denied. But, he volunteers to state that the petitioner has not driven the vehicle in a slow manner. 16. The other witness is P.W. 11. In his evidence also, he says that accident has occurred in front of him and he noticed the fact that blood was oozing from the ear of the victim and she succumbed to the injuries at the spot. The police came and drew the mahazar. In the cross-examination, he reiterates that he witnessed the accident within the distance of 10 meters and he also categorically state that the petitioner ran away from the spot. However, he had seen the auto rickshaw but, not seen the name in the auto rickshaw. 17. Having considered the evidence available before the Court, particularly the evidence of eye witnesses i.e., P.Ws. 1, 8, 9 and 11. Though these witnesses are cross-examined by the defence counsel, nothing worthy is elicited to disbelieve the prosecution witnesses and the learned counsel for the petitioner also contend that there were discrepancies in the evidence of the eye witnesses. However, I do not find any material contradictions in the evidence of the eye witnesses which goes to the very root of the case of the prosecution and the contradictions are also not pointed out by the witnesses specifically and these witnesses identified the petitioner before the Court that he was the driver of the auto rickshaw. The sketch which is marked as Ex. P7-rough sketch also clearly disclose that the accident has not occurred on the main road and the same has occurred by the side of the road. The IMV report which is marked as Ex. P5 also disclose damages to the vehicle i.e., front wind screen glass damaged with frames, top hood damaged with all the starting anglers, left side body shape damaged and flat left indicator was damaged and the vehicle was also seized at the spot. 18. The IMV report which is marked as Ex. P5 also disclose damages to the vehicle i.e., front wind screen glass damaged with frames, top hood damaged with all the starting anglers, left side body shape damaged and flat left indicator was damaged and the vehicle was also seized at the spot. 18. When such being the material available on record, the very contention of the learned counsel for the petitioner that the Trial Court has passed perverse order and the material contradictions in the evidence of eye witnesses goes to the root of the prosecution case cannot be accepted. I do not find any discrepancies in the evidence of the eye witnesses i.e., P.Ws. 1, 8, 9 and 11. 19. The other contention is that the petitioner is not identified by the eye witnesses also cannot be accepted, since those witnesses have categorically stated that they identified the petitioner. Hence, I do not find any merit in the revision petition to come to an other conclusion that there was a perversity in the order passed by the Trial Court as well as the Appellate Court. 20. However, taking note of the offences invoked against the petitioner for the offences punishable under Sections 279 and 304-A of IPC, the ingredients of the offence under Section 279 of IPC merges with the serious offence under Section 304-A of IPC. Hence, the Trial Court ought not to have sentenced the petitioner to undergo simple imprisonment for a period of six months, imposing a fine of Rs. 1,000/-. Hence, it requires interference of this Court. Regarding the conviction and sentence in respect of 304-A is concerned, it is an accident of the year 2008 and almost 11/2 decade has elapsed. 21. Taking into consideration the judgment of the Apex Court in the case of State of Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182 , in paragraph No. 13, the Apex Court has held that, it cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of sentence. The Apex Court also discussed different judgments in paragraph Nos. 14, 15, 16 and 17. The Apex Court also discussed different judgments in paragraph Nos. 14, 15, 16 and 17. Having discussed the principles laid down in the judgments referred supra and also considering the material on record in paragraph No. 23, the Court comes to the conclusion that the factum of rash and negligent driving has been established. Further observed that the Apex Court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It is also observed that it seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage. Having observed this in paragraph No. 24, the Apex Court held that needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. Having considered the material on record and considering the mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is observed that, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. 22. Hence, it is appropriate to reduce the sentence for the offence under Section 304-A of IPC from one year to six months. Regarding the fine of Rs. 3,000/- is concerned, the same stands unaltered. Point No. (ii) 23. In view of the discussions made above, I pass the following: ORDER (i) The Criminal Revision Petition is allowed in part. (ii) The impugned judgment and order of conviction and sentence for the offence under Section 279 of IPC is hereby set aside. (iii) The order of conviction and sentence for the offence under Section 304-A of IPC stands confirmed. However, the sentence is reduced from one year to six months without altering the fine amount. (iv) If the petitioner has deposited any fine amount in respect of the offence under Section 279 of IPC, the same shall be refunded to him on proper identification.