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2022 DIGILAW 420 (KAR)

Shivaraj Kumar v. State of Karnataka

2022-03-28

H.P.SANDESH

body2022
JUDGMENT/ORDER 1. This criminal revision petition is filed to set aside the judgment and order of conviction and sentence dtd. 29/9/2011 passed by the Metropolitan Magistrate Traffic Court-II, Bengaluru in C.C.No.826/2010 and also to set aside the judgment and order of conviction dtd. 9/10/2012, passed by the Presiding Officer, Fast Track Court-IV, Bengaluru, in Criminal Appeal No.733/2011. 2. Heard the learned counsel for the petitioner and learned High Court Government Pleader appearing for the State 3. The factual matrix of the case of the prosecution before the Trial Court is that on 31/7/2010 around 9.55 a.m., this petitioner being the driver of the tipper lorry bearing No.KA- 416217 drove the vehicle in a rash and negligent manner through Mysore Road and dashed against the motorcycle. As a result, both the rider and the pillion rider of the motorcycle have fell down and the rider of the motorcycle had sustained simple injuries and the pillion rider, who also sustained injuries succumbed to the same, since the lorry ran over the head of the pillion rider. 4. Based on the complaint, the police have registered the case for the offences punishable under Ss. 279, 337 and 304-A of IPC, Sec. 134 (a) and (b) read with Sec. 187 of IMV Act and Sec. 146 read with Sec. 196 of IMV Act. 5. The prosecution, in order to prove the case, examined P.Ws.1 to 8 and marked the documents as Exs.P1 to P13. The petitioner has not led any evidence against the evidence of the prosecution. 6. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioner for all the offences invoked against him and substantive sentence of 6 months is awarded for the offence punishable under Sec. 304-A of IPC and imposed a fine of Rs.3, 000.00. In default of payment of fine, ordered to undergo simple imprisonment for three months. The Trial Court also imposed sentence as well as fine in respect of other offences. 7. Being aggrieved by the judgment and conviction, an appeal is filed before the Appellate Court in Crl.A.No.733/2011 and the Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment of conviction and sentence passed by the Trial Court. Being aggrieved by the judgment of conviction and sentence and confirmation by the Appellate Court, the present revision petition is filed. 8. Being aggrieved by the judgment of conviction and sentence and confirmation by the Appellate Court, the present revision petition is filed. 8. The main contention of the learned counsel for the petitioner before this Court is that, though P.W.3 claims that he is an eye witness to the accident, he categorically admitted in the cross-examination that he could not identify the petitioner and the only evidence that remains before this Court is P.W.1. The counsel would submit that P.W.1 also in his evidence not specifically deposed with regard to the identification of this petitioner and brought to the notice of this Court that in the cross-examination, he admitted that the spot of accident is a busy road in the morning hours and the said road has got 40 feet width and the same is a two way traffic road. 9. The counsel also brought to the notice of this Court, suggestions are made that this petitioner has not involved in any accident and the same was denied. The counsel also would submit that P.W.5 has also not spoken anything about involvement of this petitioner, except stating that the name Shivaraj Kumar mentioned in Ex.P8 is the accused before the Court. The counsel also would submit that the vehicle number mentioned in the complaint is different from the charge-sheet and these are the contradictions which are not considered by both the Trial Court as well as the Appellate Court. Hence, the judgment of conviction and sentence may be set aside. 10. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that the lorry owner, who has been examined before the Court as P.W.5 categorically stated that, in Ex.P8, the name of this petitioner is specifically mentioned and his signature is also marked, wherein he categorically deposed that the name Shivaraj Kumar mentioned in Ex.P8-reply is the accused before the Court. Hence, the very contention of the learned counsel for the petitioner that the witnesses have not identified the petitioner cannot be accepted and the owner of the lorry, who has been examined as P.W.5 has admitted that this petitioner was the driver of the vehicle which has involved in the accident in terms of Ex.P8. 11. Hence, the very contention of the learned counsel for the petitioner that the witnesses have not identified the petitioner cannot be accepted and the owner of the lorry, who has been examined as P.W.5 has admitted that this petitioner was the driver of the vehicle which has involved in the accident in terms of Ex.P8. 11. Learned High Court Government Pleader appearing for the respondent-State would also submit that, P.W.1 in his evidence categorically deposed before the Court that lorry came from the rear side and dashed against the motorcycle from the left side and thereby, both of them fell down and the pillion rider fell down on the left side and at that time, the lorry ran over the head of the pillion rider. It is also his evidence that the accident has occurred due to the negligence on part of the petitioner. The counsel would also submit that, except mentioning that the road is a busy road having 40 feet width, nothing is elicited in the cross-examination of P.W.1 to discredit the evidence of P.W.1. 12. She would further submit that, P.W.3 also categorically deposed before the Court that there was an accident at Ring Road of Kengeri Upanagar near Ganesha temple and at that time, the lorry came from the rear side and dashed against the motorcycle and thereafter, the rider and the pillion rider fell down on the road. His evidence is also clear that the lorry driver drove the vehicle in a rash and negligent manner. Regarding identification is concerned, he was treated as hostile and cross-examined by the Additional Public Prosecutor and suggestion was made that he had seen the driver of the tipper lorry and the said suggestion was denied. But, in the cross- examination by the defence counsel, it is elicited that he was at a distance of 20 feet from the accident and immediately after hearing the sound, he saw the accident and went to the spot but, he denied the suggestion that lorry did not cause the accident and it is also elicited that the deceased was not known to him. It is suggested that he never witnessed the accident and he denied the said suggestion. It is suggested that he never witnessed the accident and he denied the said suggestion. When these are the material on record before the Court, the Trial Court, taking note of the document at Ex.P1 and the sketch as well as the IMV report, rightly comes to the conclusion that the accident was on account of negligence on the part of the petitioner. Hence, it does not require any interference. 13. Having heard the respective counsel and also on perusal of the material on record i.e., both oral and documentary evidence, the points that would arise for consideration of this Court are: (1) Whether the Trial Court has committed an error in accepting the evidence of P.W.1 and also the evidence of P.W.3 and other documentary evidence and committed an error in convicting the petitioner for the offences invoked against him? (2) Whether the Appellate Court has committed an error in not properly re-appreciating the evidence on record and confirming the judgment of conviction and sentence and whether this Court can exercise the powers under Sec. 397 read with Sec. 401 of Cr.P.C.? (3) What order? Point Nos.(1) and (2) 14. Having heard the respective counsel and also on perusal of the material on record, it is the case of the prosecution that this petitioner drove the vehicle in a rash and negligent manner and dashed against the motorcycle which was proceeding on the left side of the road. As a result, P.W.1, who is the rider of the motorcycle has sustained injuries and the pillion rider succumbed to the injuries and there is no dispute with regard to the accident and the death of the pillion rider in the accident. However, the only dispute is that this petitioner was not the driver of the vehicle and he did not cause any accident as deposed by the prosecution witnesses. 15. The prosecution mainly relies upon the evidence of P.W.1. The P.W.1 is the complainant and also an injured witness. In order to prove the fact that P.W.1 had sustained injuries in the accident, the prosecution relied upon the document at Ex.P5-wound certificate and it discloses that P.W.1 has sustained simple injuries. Hence, it is clear that he had sustained injuries in the accident and whether the evidence of P.W.1 inspires the confidence of the Court to come to a conclusion that this petitioner has caused the accident. Hence, it is clear that he had sustained injuries in the accident and whether the evidence of P.W.1 inspires the confidence of the Court to come to a conclusion that this petitioner has caused the accident. On perusal of the evidence of P.W.1, he categorically deposed before the Court that lorry came behind and dashed against the motorcycle which was proceeding on the left side of the road and due to the said impact, both of them fell down and sustained injuries. 16. I have already pointed out that, there is no dispute with regard to the accident is concerned. The P.W.1 in his evidence categorically deposed the manner in which the accident has taken place. It is also important to note that the owner of the vehicle has given reply in terms of Ex.P8, wherein he has specifically mentioned that when the accident took place, the petitioner was the driver of the said vehicle. The same has been questioned, when he was examined as P.W.5. He also categorically deposed before the Court that the document shown to him bears his signature i.e., Exs.P7 and P8. Ex.P7 is the copy of notice given to him and Ex.P8 is the reply given by him. He also categorically admits that, in Ex.P8, the name of Shivaraj Kumar is mentioned, who is the accused before the Court. The owner of the vehicle identifies that he gave the details in terms of Ex.P8 and in terms of Ex.P8, this petitioner was the driver of the vehicle at the time of the accident. 17. No doubt, in the evidence of P.W.3, he speaks with regard to the accident is concerned and how the accident has taken place, but did not identify the petitioner. Hence, cross- examination was made by the prosecution. In the cross- examination, he categorically says that he was at a distance of 20 feet from the accident spot and after hearing the sound, he saw the accident and went to the spot and suggestion was made that the lorry has not caused the accident and the same was denied and also denied the suggestion that he did not witness the accident. Hence, it is clear that he witnessed the accident but, not specifically mentioned the name of the petitioner. 18. Hence, it is clear that he witnessed the accident but, not specifically mentioned the name of the petitioner. 18. P.W.1 also in his evidence categorically deposed that the lorry driver drove the vehicle in a rash and negligent manner and in the cross-examination, he admits that he was proceeding on the left side of the road at a distance of 5-10 feet from the edge of the road. 19. When such evidence is available before the Court, the evidence of P.Ws.1, 3 and 5 corroborates with each other with regard to the accident is concerned. The sketch at Ex.P12 also discloses that both the vehicles were moving in the same direction and the tipper lorry came from behind and dashed against the motorcycle which was on the left side of the road. When such material is placed on record and the same is appreciated by both the Trial Court and the Appellate Court, the question of invoking revisional jurisdiction does not arise. The Trial Court also, while appreciating the material on record, taken note of the evidence, particularly the evidence of P.Ws.1, 3 and 5 and observed in para No.15 that though P.W.3 turned hostile in respect of the identification of the accused as driver, taken note of the evidence of P.Ws.1 and 5 with regard to the accident is concerned. The Trial Court also in para No.16, taken note of combined reading of evidence of P.Ws.1, 3, 5 and 8 and also taken note of IMV report as well as the sketch and in detail discussed the same from para Nos.14 to 17 and arrived at a finding. 20. The Appellate Court also, in the judgment, reassessing both oral and documentary evidence placed on record, taken note of Ex.P7-copy of notice and also the reply given by the owner of the vehicle and the same is discussed in para No.16. The Appellate Court also observed regarding the identity of the petitioner is concerned and also taken note of the evidence of other witnesses, particularly the evidence of P.Ws.1, 3 and 5 and considered Ex.P13-mahazar regarding place of accident is concerned and having considered the documentary evidence Exs.P7, P8 and also Ex.P13, discussed the same in para No.17. The Appellate Court also observed regarding the identity of the petitioner is concerned and also taken note of the evidence of other witnesses, particularly the evidence of P.Ws.1, 3 and 5 and considered Ex.P13-mahazar regarding place of accident is concerned and having considered the documentary evidence Exs.P7, P8 and also Ex.P13, discussed the same in para No.17. The Appellate Court has also discussed with regard to the discrepancy in the vehicle is concerned and also observed that either the accused or P.W.5 have taken any legal recourse against the complainant or police for falsely involving the accused and the vehicle in the accident and also mentioning of the vehicle number which has involved in the accident and the discrepancy with regard to mentioning the vehicle number is also discussed by the Appellate Court. 21. Having considered the judgment of the Trial Court as well as the judgment of the Appellate Court, the prosecution mainly relied upon the evidence of P.W.1, who is an injured witness, who had sustained injuries in the accident and also in order to prove the fact that he had sustained injuries, wound certificate is also marked. Apart from that, Ex.P12-sketch is taken note of to evidence the fact the vehicles were moving in the same direction and the evidence of P.W.1 is also that, when he was proceeding along with the deceased on the left side of the road, the driver of the lorry dashed against the motorcycle and due to the impact, both of them fell down and the pillion rider succumbed to the injuries since, lorry ran over his head. 22. When such materials are available on record and also the same is accepted by the Trial Court and the Appellate Court also on re-appreciation in Crl.A.No.733/2011 in para No.21 discussed in detail the evidence of P.W.1, who categorically deposed that at a distance of 5 feet from the left side edge of the road, he was driving the motorcycle and also taken note of the documents at Ex.P2-spot mahazar as well as Ex.P12-sketch. The Appellate Court also, in para No.12, on re-appreciation of evidence, comes to the conclusion that on account of negligence on the part of the petitioner, the accident has occurred. 23. The Appellate Court also, in para No.12, on re-appreciation of evidence, comes to the conclusion that on account of negligence on the part of the petitioner, the accident has occurred. 23. When such definite finding is given by the Trial Court as well as the Appellate Court on re-appreciation, I do not find any error committed by both the Courts in re-appreciation of evidence on record. Hence, it is not a fit case to exercise the discretion invoking the provisions under Sec. 397 read with Sec. 401 of Cr.P.C. to interfere with the findings of both the Courts. This Court can exercise the revisional jurisdiction, if the material on record is not considered by both the Courts and when there is a perverse order and both the Courts not looked into the cogent material on record. In such circumstances, the Court can invoke revisional jurisdiction and the same is not warranted in the case on hand. Hence, I answer point Nos.(1) and (2) as 'negative'. 24. Now, coming to the aspect of the offences which have been invoked against the petitioner, including the offence under Sec. 279 of IPC, the Trial Court ought not to have invoked the offence under Sec. 279 of IPC, when the ingredients of Sec. 279 of IPC merges with the serious offence of Sec. 304-A of IPC. Hence, it requires interference of this Court and to set aside the order passed by the Trial Court for the offence under Sec. 279 of IPC and the Appellate Court also not considered the said fact. 25. In respect of the sentence is concerned with regard to Sec. 304-A of IPC, learned counsel for the petitioner would submit that the petitioner was aged about 23 years at the time of the accident and now, almost, 12 years have elapsed and it is an accident and no purpose would be served in sending him to jail. Hence, monetary compensation can be given to the family of the victim. Hence, monetary compensation can be given to the family of the victim. The said submission cannot be accepted, 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 of the said judgment, the Apex Court comes to the conclusion that 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. Hence, the Apex Court set aside the awarding of payment of compensation is a factor for reduction of sentence. Further observed that, it is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In the said case, the Apex Court, reduced the sentence from one year to six months for the offence under Sec. 304-A of IPC. 26. When such being the facts and circumstances, it is not a fit case even to reduce the sentence and the sentence of six months is minimum sentence for the offence under Sec. 304-A of IPC. Hence, the contention of the learned counsel for the petitioner that the petitioner was aged about 23 years at the time of the accident and now, almost, 12 years have elapsed and it is an accident and no purpose would be served in sending him to jail cannot be accepted. Point No.(3) 27. In view of the discussions made above, I pass the following: ORDER (i) The Criminal revision petition is allowed in part. (ii) The judgment of conviction and sentence for the offence under Sec. 279 of IPC is hereby set aside. If any fine is deposited before the Trial Court for the said offence, the same shall be refunded to the petitioner on proper identification. (iii) Regarding the sentence and fine in respect of the other offences, the same stands unaltered.