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2022 DIGILAW 400 (KAR)

Addam v. State of Karnataka

2022-03-22

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 2. The factual matrix of the case of the prosecution is that on 16.11.2007 at about 1.00 p.m. near Karaganahally bus stop on Sabbanahally - Malali Road, this petitioner being the driver of the mini lorry drove the same in a rash and negligent manner and dashed against the children of C.W.5 by name Pallavi, Pavithra and also against C.W.8 Suresh and C.W.9 Manjula. As a result, they have sustained simple injuries and one child Pallavi succumbed to injuries. Based on the complaint lodged by P.W.1, case has been registered, matter has been investigated and filed the charge-sheet for the offence punishable under Sections 279, 337, 338 and 304A of IPC. The prosecution in order to prove the case examined P.W.1 to P.W.16 and got marked the documents at Exs.P.1 to 8(a). On the other hand, the petitioner did not lead any defence evidence. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner for all the offences and substantive sentence is for one year for the offence punishable under Section 304A and to pay fine of Rs. 1,000/-. For the offence under Sections 279 and 338 of IPC, the petitioner was sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs. 1,000/- and Rs. 500/- respectively. For the offence punishable under Section 337 of IPC, the petitioner was sentenced to undergo simple imprisonment for a period of two months and to pay a fine of Rs. 500/-. Being aggrieved by the judgment of conviction and sentence, an appeal was filed in Crl.A. No. 106/2011 and the Appellate Court on re-appreciation of the material on record, confirmed the judgment of the Trial Court. Being aggrieved by the judgment of the Trial Court as well as the confirmation order passed in the appeal by the Appellate Court, the present revision petition is filed. 3. The learned counsel for the petitioner would contend that P.W.8 has categorically admitted in the cross-examination that the accident road is a upgradient road. Being aggrieved by the judgment of the Trial Court as well as the confirmation order passed in the appeal by the Appellate Court, the present revision petition is filed. 3. The learned counsel for the petitioner would contend that P.W.8 has categorically admitted in the cross-examination that the accident road is a upgradient road. The learned counsel submits that the witnesses are all relatives and they are interested witnesses and the evidence of these witnesses has not been considered by the Trial Court as well as the Appellate Court in a right perspective. The interested witnesses evidence has been relied upon by the Trial Court and the Appellate Court. The learned counsel submits that the injured and also the victim were standing on the dambar road and they were not sitting in the bus stand and admittedly the bus was about to come at around 1.00 p.m. and accident occurred prior to that. These are the aspects which have not been considered by the Trial Court and the Appellate Court. 4. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that P.W.6 and P.W.11 are the injured witnesses and P.W.7 to P.W.9 are the eye-witnesses and P.W.12, who is an eye-witness also reiterated the manner of accident. The learned counsel submits that the place of accident, which is shown in the document Ex.P.3 spot mahazar is also not disputed and the same clearly depicts that the accident was occurred on the edge of the road and this petitioner took the vehicle to the extreme side of the road and caused the accident against the persons who were waiting near the bus stop to board the bus and hence both the Trial Court and the Appellate Court have not committed any error in convicting and confirming the order of conviction. 5. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and looking into both oral and documentary evidence placed on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in convicting the petitioner relying upon the prosecution witnesses and the very finding is contrary to the evidence available on record? (ii) Whether the Appellate Court committed an error in accepting the evidence of the prosecution witnesses and failed to re-appreciate the material available on record and committed an error in confirming the order of the Trial Court? (iii) Whether the petitioner has made out a ground to invoke the revisional jurisdiction in coming to the conclusion that the findings given by the Trial Court and the Appellate Court is not based on the evidence available of record and the same is contrary to the material on record? (iv) What order? POINT NOS. (I) TO (III): 6. Having heard the respective learned counsel and also on perusal of the material on record, the very charges levelled against this petitioner is that he drove the lorry in a rash and negligent manner and dashed against the persons, who were waiting near the bus stop to board the bus. It is the case of the prosecution that one Pallavi died on account of the injuries sustained by her and others have also sustained injuries. Having considered both oral and documentary evidence placed on record, P.W.6 is the injured witness Suresh and P.W.11 Manjula is also the injured witness. Apart from that, P.W.7 to P.W.9 are the eye-witnesses, who were there at the spot. The very contention of the learned counsel for the petitioner is that P.W.8 admits in the cross-examination that the accident place is upgradient road and in the cross-examination he admits that there were potholes in the said road. The learned counsel contend that when there were potholes in the road, the petitioner cannot drive the vehicle in a rash and negligent manner as deposed by the prosecution witnesses. The learned counsel also brought to the notice of this Court Ex.P.3 spot mahazar and on perusal of Ex.P.3, it is clear that the place of accident is a public road and the accident was occurred on the edge of the western portion of tar road and also in terms of Ex.P.3, blood stains are found at the spot of the accident and it also shows that there is a 3 feet mud road on the edge of the road and width of the tar road is 12 feet. 7. 7. The learned counsel for the petitioner tried to convince this Court that other vehicles were coming at the time of the accident and hence the petitioner went to the extreme left side of the road. But, no such material is available before the Court and the petitioner has not examined himself explaining what made him to go to the extreme side of the road, wherein nearby bus stand is also situated. The fact is that the injured persons and victim were standing to board the bus near the bus stand and Ex.P.5 IMV report discloses that due to the impact, damage was caused to the motor vehicle and the inspection report shows damage caused to wind shield and both door glasses were damaged. It is important to note that the witnesses have identified the petitioner. Merely because an admission is elicited that road is upgradient, the very contention of the learned counsel for the petitioner that no chances of accident cannot be accepted. Having considered the contents of Exs.P.3 and 5, the evidence of P.W.6 and P.W.11, who have sustained injures in the said accident and also the wound certificate of P.W.16 and P.W.11 marked as Exs.P.7 and 8 and also taking note of when there is a direct evidence against the petitioner and witnesses have identified the petitioner, the very contention of the learned counsel for the petitioner that both the Courts have committed an error and not considered both oral and documentary evidence placed on record in a right perspective cannot be accepted. The Trial Court and the Appellate Court have considered the evidence of the eye-witnesses as well as documentary evidence particularly Ex.P.3 spot mahazar as well as IMV report and hence I do not find any force in the contention of the learned counsel for the petitioner to reverse the finding of the Trial Court and the Appellate Court. 8. The Trial Court and the Appellate Court have considered the evidence of the eye-witnesses as well as documentary evidence particularly Ex.P.3 spot mahazar as well as IMV report and hence I do not find any force in the contention of the learned counsel for the petitioner to reverse the finding of the Trial Court and the Appellate Court. 8. Now coming to the aspect of conviction in respect of all the offences is concerned, the prosecution invoked the offence under Section 279 of IPC and when the ingredients of Section 279 of IPC merges with the offence under Section 304A of IPC, the Trial Court ought not to have convicted and sentenced the petitioner for the offence punishable under Section 279 of IPC and hence it requires interference of this Court to set aside the conviction and sentence for the offence under Section 279 of IPC. 9. Now coming to the substantive sentence of one year in respect of offence under Section 304A of IPC is concerned. Considering the fact that the accident was occurred in 2007 and almost 11/2 decade has been elapsed and in view of the judgment of the Apex Court in the case of State of Punjab v. Saurabh Bakshi reported in (2015) 5 SCC 182 , wherein in paragraph No. 24 it is pointed out that payment of compensation is a factor for reduction of sentence to 24 days is not correct and the same is misplaced sympathy and it is observed that it is in a way of mockery to justice and reduced the sentence from one year to six months. In the case on hand, taking note of the age of the petitioner as well as the incident was taken place more than 11/2 decade ago, it is appropriate to reduce the sentence from one year to six months and the same is minimum sentence. Hence, I answer point Nos. (i) and (ii) as negative and point No. (iii) as partly affirmative. POINT NO. (IV): 10. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed in part setting aside the judgment of conviction and sentence for the offence punishable under Section 279 of IPC. If any amount in deposit before the Trial Court in respect of the said offence is ordered to be refunded in favour of the petitioner, on proper identification. If any amount in deposit before the Trial Court in respect of the said offence is ordered to be refunded in favour of the petitioner, on proper identification. The substantive sentence imposed on the petitioner for the offence punishable under Section 304A of IPC is reduced to six months instead of one year. In respect of other offences is concerned, the sentence is confirmed.