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2022 DIGILAW 442 (KAR)

Ambrose Dsouza v. State Of Karnataka

2022-04-01

H.P.SANDESH

body2022
JUDGMENT : 1. This criminal revision petition is filed to set aside the judgment dtd. 7/7/2005, passed by Civil Judge (Jr. Dn.) and JMFC, Belthangady, D.K. in C.C.No.131/2001 and judgment dtd. 31/10/2012 passed by the Additional Sessions Judge, Fast Track Court at Puttur, D.K., in Criminal Appeal No.246/2005. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 3. The factual matrix of the case of the prosecution before the Trial Court is that on 13/11/2000 at about 4.00 p.m., the accused being the driver of the bus, drove the same in a rash and negligent manner on Belthangady-Mangaluru Public Road and thereby, at Madanthyar of Malady Village, dashed against the auto rickshaw coming from opposite direction and caused grievous to the inmates of the auto rickshaw and one among them succumbed to the injuries. Based on the complaint, the police have registered the case, investigated the matter and filed the charge-sheet. 4. The prosecution, in order to prove the charges, examined the witnesses as P.Ws.1 to 7 and got marked the documents as Exs.P1 to P12. 5. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioner for the charges leveled against him and imposed substantive sentence of six months for the offence under Sec. 304-A of IPC and also imposed fine in respect of other offences. 6. Being aggrieved by the judgment of conviction and sentence, appeal is filed in Crl.A.No.246/2005 before the Appellate Court. The Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment and order of sentence of the Trial Court vide order dtd. 31/10/2012. Hence, the present revision petition is filed. 7. Learned counsel for the petitioner would submit that, both the Courts have failed to consider the material on record and there are no materials to hold that the petitioner was guilty of the alleged offence. The Trial Court failed to take note of the fact that the spot mahazar and cause of accident are not proved in accordance with law. The learned counsel would also submit that the accident has taken place almost 22 years back and no purpose would be served in sending the petitioner to jail. Hence, the substantive sentence may be converted as fine. 8. The learned counsel would also submit that the accident has taken place almost 22 years back and no purpose would be served in sending the petitioner to jail. Hence, the substantive sentence may be converted as fine. 8. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that, P.Ws.2 and 6 are the injured witness and their evidence has been believed by the Trial Court and the Appellate Court. Apart from that, the Trial Court has also taken note of the documentary evidence i.e., Ex.P7-IMV report, Ex.P10-Spot mahazar and Ex.P12-sketch. Hence, there are no grounds to interfere with the findings of the Trial Court. 9. Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are: (1) Whether the Trial Court has committed an error in convicting the petitioner for the offences under Ss. 279, 337, 338 and 304-A of IPC? (2) Whether the Appellate Court has committed an error in confirming the judgment of the Trial Court and whether this Court can exercise the revisional jurisdiction invoking Sec. 397 read with Sec. 401 of Cr.P.C.? (3) What order? Point Nos.(1) and (2) 10. Having heard the respective counsel and also on perusal of the material on record, P.Ws.2 and 6 are injured witnesses and the Trial Court, considered the evidence of P.Ws.2 and 6, who have also sustained injuries and wound certificates are also produced and marked as Exs.P5 and P6. In terms of Ex.P5, injury Nos.1, 5, 6 and 7 are grievous in nature and on perusal of Ex.P6, it is seen that the injuries are simple in nature. The penal provisions of Ss. 337 and 338 of IPC are also invoked. Apart from that, documentary evidence is also relied upon by the Trial Court. 11. On perusal of the judgment of the Trial Court, in para No.12, the Trial Court has observed that at the time of accident, the petitioner-accused was driving the bus in the opposite direction and on perusal of Ex.P12-sketch also, it is clear that the bus came on the wrong side and dashed against the auto rickshaw which was coming on the left side in the opposite direction. 12. 12. It is also important to note that, Ex.P12-sketch clearly indicate the tyre marks of the bus and the same is up to the distance of 25 feet and it clearly disclose the manner in which the driver of the bus drove the vehicle. It is not in dispute that both the vehicles are moving in the opposite direction and Ex.P12-sketch is also not disputed during the cross-examination of prosecution witnesses. The Trial Court has also taken note of the evidence of the injured witnesses i.e., P.Ws.2 and 6 and apart from that the document evidence, Ex.P12-sketch depicts the place of accident. I have already pointed out that, Ex.P10- spot mahazar clearly disclose the place of accident and the movement of both the vehicles and IMV report which is marked as Ex.P7 clearly disclose the damage caused to both the vehicles and front portion of both the vehicles are damaged and the same corroborates that the accident is a head on collusion. 13. When these are the material available before the Court, the Trial Court and the Appellate Court, on re- appreciation of evidence on record, rightly comes to the conclusion that the accident was on account of negligence on the part of the petitioner and the Appellate Court also, in the judgment in para No.17 has taken note of the documentary evidence i.e., Exs.P12 and P10 and also the oral evidence of the prosecution witnesses. The Appellate Court also, in para No.15, taken note of the evidence of P.W.2, who is an injured witness and having considered the evidence of P.Ws.1 and 2 to 6 and also considering the documentary evidence i.e., Exs.P10 and P12, re-appreciated the material on record and confirmed the judgment of the Trial Court. 14. Having taken note of the material on record, particularly, the evidence of P.Ws.2 and 6, who are the injured witnesses and also the nature of injuries sustained i.e., both simple and grievous injuries and in the cross-examination of these two witnesses, nothing is elicited and coupled with Exs.P7, P10 and P12 i.e., IMV report, spot mahazar and sketch, I do not find any error committed by both the Courts. I have already pointed out that, there are tyre marks to the extent of 25 feet and the bus went on wrong side towards right and dashed against the auto rickshaw which was coming in the opposite direction in the left side of the road. Hence, I do not find any ground to interfere with the findings of the Trial Court and the Appellate Court to invoke revisional jurisdiction. This Court can invoke revisional jurisdiction, if both the Courts have committed error and if any perverse finding is given against the material on record and the same is not warranted in the case on hand. 15. With regard to the sentence is concerned, particularly the offence under Sec. 279 of IPC, when the serious offence of Sec. 304-A of IPC is invoked, the ingredients of Sec. 279 of IPC merges with Sec. 304-A of IPC. Hence, it requires interference of this Court to set aside the judgment and sentence for the offence under Sec. 279 of IPC. Hence, if any fine amount is deposited by the petitioner, the same is ordered to be refunded to the petitioner on proper identification. Regarding other sentence is concerned, particularly, substantive sentence in respect of Sec. 304-A of IPC, wherein sentence of six months and fine of Rs.3,000.00 is imposed, the same is a minimum sentence and in respect of other offences also, fine of Rs.500.00 is imposed for the offence under Sec. 337 of IPC and in respect of offence under Sec. 338 of IPC, fine of Rs.1,000.00 is imposed and the same is reasonable. 16. When such being the material on record, the judgment and order of conviction and sentence passed by the Trial Court as well as the Appellate Court does not require any interference both in respect of conviction as well as the sentence. 17. At this juncture, the counsel for the petitioner would submit that the petitioner may be enlarged invoking Probation of Offenders Act. It is important to note that the incident has taken place in the year 2000. 17. At this juncture, the counsel for the petitioner would submit that the petitioner may be enlarged invoking Probation of Offenders Act. It is important to note that the incident has taken place in the year 2000. Having taken note of the gravity of the offence and in the accident, a person has lost his life and two persons have sustained injuries i.e., P.Ws.2 and 6 and the injuries in respect of one of the injured is simple in nature and in respect of the other is grievous in nature and considering the factual aspects of the case, it is not a fit case to invoke Probation of Offenders Act. Point No.(3) 18. 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 in respect of the offence under Sec. 279 of IPC is hereby set aside and if any fine amount is deposited by the petitioner-accused for the said offence, the same is ordered to be refunded to the petitioner on proper identification. (iii) The conviction and sentence in respect of other offences stands confirmed.