Baijuman K.S. vs State

A.N. Venugopala Gowda

The petitioner faced trial for the alleged commission of offences punishable under Ss. 279 and 304A of IPC. He was convicted and sentenced for the offence under S. 279 of IPC, to pay fine of Rs. 800/-, in default, to undergo simple imprisonment for two months. He was convicted and sentenced for the offence under S. 304A of IPC, to undergo S.I. for a period of one year and pay fine of Rs. 2,000/- and in default to pay the fine, to undergo simple imprisonment for further period of four months. The said conviction and sentence was confirmed in appeal by the Sessions Court. Prosecution case which led to the trial is essentially as follows:

That, on 2.11.2003, at about 3.00 p.m., when Somashekara was proceeding in his cycle on the left side of Bheemanahalli to Gurupur road, near the land of Shivashankarappa of Bheemanahalli, the accused in the case, being the driver of Tata Sumo vehicle bearing registration No. KL-11-F-8449, drove the vehicle in a rash and negligent manner and dashed against the cycle of Somashekara and due to that, Somashekara fell down from the cycle and sustained grievous injuries. Afterwards, Somashekara was taken to Hunusur in the same vehicle by the witnesses, who were present there, but, he succumbed to the injuries before he reached the hospital. Afterwards, CW-1/Ramesh, reported the incident to the police and on the basis of the said report (Ex.P9), PW-6 registered a case and sent FIR to the Court and conducted part of the investigation. PW-7 took over and conducted further investigation and filed the charge sheet.

Accused appeared and pleaded not guilty. During trial, to prove the case, prosecution examined 9 witnesses and marked 13 documents. Accused was examined under S. 313 of Cr.P.C. and it is a case of total denial. No defence evidence was adduced. Learned Magistrate found the accused guilty of the charged offences. Judgment of conviction and order of sentence, noticed supra, was passed. An appeal filed by the accused in the Sessions Court, having been dismissed, this criminal revision petition has been filed to grant relief.

The Judgments passed by the Courts below contain a detailed narration of the prosecution case.

In support of the petition, Sri V. Padmanabha Kedilaya, learned advocate contended as follows:

i) There is no credible evidence on record to link the petitioner with the commission of the offences.

ii) Even, if it is presumed that the petitioner was the person driving the offending Tata Sumo vehicle at the relevant point of time, there is no evidence to prove that the vehicle was driven rashly and negligently resulting in the occurrence of the road traffic accident in question.

iii) There is delay of about five hours in reporting the matter to the police station, though the distance between the accident spot and the Police station is only 16 K.M.

iv) The non-examination of CW-1/complainant, the doctor who performed the post mortem of the deceased and the motor vehicle inspector, who inspected the offending vehicle and gave a report, is fatal to the prosecution case.

v) Spot sketch/Ex.P12, which has not been drawn by a PWD Engineer, does not depict the correct picture of the scene of alleged offence.

vi) Since PWs 2 and 3, who accompanied PW-1, have not entirely supported the prosecution case, it is unsafe to rest the conviction on the basis of the evidence of PW-1, without any corroboration.

vii) There is no sufficient compliance of the requirement under S. 313 of Cr.P.C.

viii) Prosecution has not proved its case beyond all reasonable doubts.

ix) Alternatively, the accused being of 21 years of age and not being a habitual offender, ought to have been released under the provisions of the Probation of Offenders Act, 1958.

Sri Vijayakumar Majage, learned HCGP, on the other hand contended that, PW-1, an eyewitness, has said that the offending vehicle was driven in high speed, rashly and also negligently by the accused and resulted in the occurrence of the road traffic accident and consequent death of Somashekara. He submitted that the analysis of evidence made by the Courts below does not suffer from any legal infirmity and there being credible evidence brought on record in proof of the prosecution case, the finding of guilt concurrently recorded and the sentence imposed is justified By taking me through the record of the case, learned HCGP supported the Judgments passed by the Courts below.

Perused the record. In view of the rival contentions, the points for determination are:

Whether the prosecution has proved that on account of rash and negligent driving of Tata Sumo vehicle bearing registration No. KL-11-F-8449, road traffic accident occurred and Somashekara sustained grievous injuries and died?

Whether the finding of guilt concurrently recorded by the Courts below against the petitioner for the charged offences is justified?

Whether the sentence ordered against the petitioner warrants any interference?

PW-9, HC-128, sent an intimation to H.D. Kote Police Station, about the occurrence of a road traffic accident and the death of the victim. PW-6 obtained the death memo (Ex.P8) from the Hunsur Police Station and the complaint of CW-1 Ramesh (Ex.P9) at the hospital, seized the Tata Sumo vehicle, which had been parked near the police station, registered a case at about 8.00 p.m., for the offences under Ss. 279 and 304A IPC and sent the FIR to the Court. On 03.11.2003, inquest panchanama/Ex.P5 was drawn at Hunsur Government Hospital. He came to the accident spot at 12.00 noon and drew up the spot mahazar/Ex.P1, the spot sketch/Ex.P12 and seized the cycle/MO-1.

Tata Sumo vehicle was seized under seizure mahazar/Ex.P11. Ex.P8/death memo shows that the vehicle was involved in the accident. Ex.P9 also shows the involvement of the vehicle. Based on Exs.P8 and P9, case was registered in Crime No. 179/2003 of H.D. Kote Police Station and FIR Ex.P10 was sent to the Court. An application was filed on 5.11.2003 to release the said vehicle. The vehicle was ordered to be released by the Magistrate and was given to the interim custody of its owner A.M. Abdul. Hameed. The seized vehicle is certainly involved in the accident.

Both the Courts below have noticed in detail evidence of PW-1. PW-1 has given eye account of the incident. Ex.P9 shows the presence of PW-1, on the spot at the time of occurrence of the accident. PW-4 has said that at the time of accident, PW-1 was near the accident spot. PW-1 has seen the accused driving the offending vehicle and causing of the accident. After the occurrence of the accident, the injured-Somashekara was shifted in the offending vehicle driven by the accused, for treatment to the hospital. PW-1 has said that the accused drove the vehicle in high speed and dashed to the cycle which Somashekara was riding, resulting in Somashekara being thrown off, the resultant fall and he becoming unconscious. He has said that Somashekara while being shifted for treatment to the hospital, died enroute. PW-1 has identified the accused in the Court. There is no serious or material contradiction in the evidence of PW-1 and Ex.P9. Minor variations have to be ignored, since, PW-1 is a villager and not a very educated person and he was examined in the Court after a lapse of more than an year from the date of occurrence of the accident. Evidence of PW-1 has to be read as a whole and it is not permissible to pickup any sentence in isolation from the entire evidence, ignoring the material aspects. Unless there is material contradiction, evidence of a witness cannot be disbelieved. Evidence of PW-1 does not show any material contradiction. Corroboration of evidence of a witness is required when his evidence is not wholly reliable. The statement of PW-1 being worthy of credence and there being no reason to disbelieve his testimony, the Courts below have rightly relied upon his evidence.

Rash and negligent driving has to be examined in the background of a given case and it is not always possible to determine the rash and negligent act with reference to the speed of a motor vehicle, since, a driver of a motor vehicle, driving the vehicle slowly can also cause an accident, if he is negligent. In the instant case, the offending vehicle, driven by the accused in high speed has dashed to a cycle which Somashekara was riding. The Tata Sumo vehicle has dashed to the cycle from behind, when the cyclist was riding on the left side of the road. Due to the impact, the cyclist - Somashekara was thrown away and he sustained grievous injuries and became unconscious. When injured was being shifted to the hospital, he has succumbed. The record of the case, well establishes the fact that the rash and negligent driving of the offending vehicle by the accused was the cause for occurrence of the road traffic accident, resulting in Somashekara sustaining grievous injuries, which led to his death.

Accident has occurred at about 3.00 p.m. The injured while being shifted to a hospital has succumbed. Death report/Ex.P8 was received by PW-9 at about 3.30 p.m. He informed the said fact to the H.D. Kote Police station. PW-6 received Ex.P8 at 18.00 hours, went to the hospital, where he received the complaint/Ex.P9, thereafter seized the offending vehicle as per Ex.P11 and registered the case in Crime No. 179/2003 at 20:00 hours and sent FIR/Ex.P10 to the Court. The distance between the accident spot and the police station is 16 K.Ms. Keeping in view the events which have taken place, noticed supra, there is no delay in registration of the case and sending the FIR to the Court.

Evidence of PW-6 with regard to receipt of the complaint/Ex.P9, the inquest panchnama/Ex.P5, Spot sketch/Ex.P12 have not been seriously challenged. Evidence of PW-7 with regard to obtaining of IMV report/Ex.P3 and the postmortem report of deceased Somashekar/Ex.P4, has remained unchallenged. In the circumstances, the non-examination of CW-1/complainant, Medical Officer, who conducted the postmortem and the Motor Vehicles Inspector, who inspected the vehicle and gave the report that the offending vehicle had no mechanical defect is not fatal to the prosecution case.

Ex.P12 is the sketch prepared by the Investigating Officer, keeping in view the eye account of the incident by PW-i, the non drawing of spot sketch by a PWD Engineer has not caused any prejudice to the accused/petitioner. Ex.P12 has been correctly appreciated in detail by both the Courts below. The vehicle has hit the cyclist from his behind, when both were proceeding in the same direction. Considering the totality of the circumstances and the fact of the case that the cyclist was proceeding ahead and the Tata Sumo hit the Somashekara from his hind side, nothing more is necessary for the prosecution to establish the rash and negligent act on the part of the driver of the offending vehicle - accused.

The petitioner, when examined under S . 313 Cr.P.C., has merely denied the incriminating materials brought against him by the prosecution. Sri V.P. Kedilaya was unable to point out any complex sentence put to the petitioner, when he was examined under S. 313 Cr.P.C. The petitioner has been provided with the opportunity to explain his conduct or his version of the case. The facts which were within the personal knowledge of the petitioner as to how the accident occurred has not been disclosed.

In the factual scenario, the appreciation of the record of the case by the Courts below is neither perverse nor illegal. The prosecution has proved its case against the accused beyond all reasonable doubts. The conviction of the petitioner for the charged offences is justified. The finding of guilt recorded by the Courts below does not suffer from any jurisdictional error.

The contention that the petitioner being aged about 21 years at the time of the incident and therefore, the Courts below ought not have convicted the accused and he should have been extended the benefit: of provision under S. 360 Cr.P.C., or under P.O. Act 1958, is devoid of merit, in view of the ratio of decision of the Apex Court in the case of State of Punjab Vs. Balwinder Singh and Others, . However, the accident took place on 02.11.2003. The Trial Court convicted the accused on 06.11.2007. An appeal filed was dismissed on 02.01.2010. This revision petition was filed on 18.01.2010. The petitioner is on bail. Thus, there is an intervening time gap of about nine years, till now. The petitioner, after the occurrence of the accident has shifted the injured, in the offending vehicle, to the hospital. Thereafter, he has parked vehicle in the police station. At the time of accident he was about 21 years of age. He may be having family obligations to discharge. Keeping in view these factors, in my opinion, it would meet the ends of justice if the substantive sentence imposed for the offence under S. 304A IPC is reduced to 6 months.

In the result, the conviction of the petitioner for the offences under Ss. 279 and 304A of IPC is maintained. The sentence imposed for the offence under S. 304A IPC is modified. The accused-petitioner is sentenced for the offence under S. 304A of IPC to undergo simple imprisonment for 6 months and pay fine of Rs. 2,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 15 days. The bail bonds and surety are cancelled and the petitioner is directed to surrender before the Trial Court to serve out the sentence.