D. Somashekhar vs State

Anand Byrareddy, J.—The learned Counsel for the petitioner has retired from the case. Hence, the papers are perused. Heard the learned Government Pleader.

The petitioner is before this court having been convicted for offences under Sections 304A and 279 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity).

The facts alleged are that the complainant one K.T. Raghavendra, a Police Constable, who was said to be working in Sagar Town Police Station, in his complaint had stated that on 31.5.2004, he had gone to Shimoga, to effect service of summons in a criminal case and while returning to Sagar, he had boarded a bus bearing registration No.KA-15-3636 at Shimoga bus-stand and the bus had departed from the bus stand at 9.50 p.m. It is alleged that the bus was driven in a rash and negligent manner along the National Highway 206 and at about 11.15 p.m., while the bus had neared Mangalore Nursery at Balasagodu village, had dashed against a two wheeler, a TVS Moped, which was coming from the opposite direction, as a result of which, the rider one Mohan @ Mounesh had sustained injuries. The complainant had immediately tried to provide first aid to the injured by carrying him to the Government Hospital, but he was declared dead. Thereafter, a complaint was lodged with the Sagar Rural Police, on the basis of which, a case was registered and on compliance with Section 207 of the CrPC, the substance of the accusation having been read over and explained to the accused, he had pleaded not guilty and claimed to be tried. In order to establish the guilt of the accused, the prosecution had examined PWs.1 to 10 and had got marked Exhibits P.1 to P.10. Thereafter, the statements of the accused were recorded under Section 313 of the CrPC, and after having heard both sides, the court below had framed the following points for its consideration:

"1. Whether the prosecution proves beyond all reasonable doubt that on 31..2004 at about 11.15p.m near Mangalore nursery at Balasagodu on NH 206 the accused drove the Vijayalaskhmi bus in a rash and negligent manner, endangering human life and thereby the accused has committed an offence punishable under section 279, IPC?

Whether the prosecution proves beyond all reasonable doubt that on the above said date and at the said place and time the accused drove the said bus in the manner stated above and dashed against the T.V.S. Moped which one Mohan @ Mounesh was riding resulting in the death of the said person and thereby the accused has committed an offence punishable under section 304(A) of IPC?"

The court below held points 1 and 2 in the affirmative and convicted the accused for an offence punishable under Section 279 IPC and sentenced him to simple imprisonment for a period of three months and to six months for the offence punishable under Section 304A and was also sentenced to pay a fine of Rs. 5,000/- for the offence punishable under section 304A, IPC. The sentence of imprisonment was ordered to run concurrently. And out of the fine amount, Rs. 4,000/- was ordered to be paid as compensation to the widow of the deceased.

That having been challenged in appeal, the appellate court had affirmed the conviction and punishment under section 304A, IPC, but however, the offence punishable under section 279, IPC was set aside

The portion of the order whereby the conviction for the offence punishable under Section 304A IPC is concerned, is the subject matter of challenge in the present petition.

The primary grounds are that there are certain circumstances to indicate that it could not be categorically stated that the bus was being driven in a rash and negligent manner, which resulted in the accident. The appellate court has specifically observed that there was a dead dog lying at the spot of the accident. It is further brought out that the bus had initially ran over a dog and that possibly, in order to avoid running over the dog, the bus must have swerved, as a result of which, the accident had occurred and it could not be said that there was a deliberate negligence on the part of the petitioner.

It is also pointed out that one Raghavendra, a Police Constable was said to be an eye witness, who has claimed that the vehicle was being driven on the middle of the road. However, it is also stated that the deceased two wheeler rider was also coming on the middle of the road. PW.1, who was an occupant of the bus has stated that the bus was not driven in a negligent fashion. These circumstances are overlooked by the trial court and the appellate court though having taken note of the above circumstances, and having thought it fit to set aside the punishment insofar as the offence under Section 279, IPC, having held that no offence punishable under section 279, IPC was made out, thereby holding that there was no evidence of the vehicle being driven in a rash and negligent manner, it cannot thereafter be said that the petitioner could be held guilty for an offence under Section 304A, IPC, when there was no rash and negligent driving which could be attributed to the appellant. This is a contradiction in terms. Therefore, it has been canvassed by the Counsel for the petitioner that the judgment could not be sustained.

The learned State Public Prosecutor, on the other hand, seeks to contend that there can be no denial of the fact that there was an accident and as a result of the accident, a two wheeler rider had died and since the accident had occurred on a national highway, it was evident that unless the vehicle was off the centre of the road, it would not be possible to hit a two wheeler that was being driven on the extreme left side of the road in the opposite direction. Therefore, the learned Government Pleader would submit that the judgment be sustained.

However, as seen from the judgment of the appellate court, the circumstance which has passed muster by the trial court, has been taken note of in the course of its judgment, namely, that there was a dead dog lying on the road, which would apparently indicate that the vehicle had tried to avoid hitting the dog and possibly had swerved to the right, thereby taking the two-wheeler rider by surprise, who had no choice, but to dash into the bus and as a result of which, the accident had occurred and therefore, an offence punishable under Section 279 IPC was not made out. In which event, it cannot also be said that the death has been caused by negligent and rash driving.

Consequently, if the case cannot be sustained for an offence punishable under Section 279 IPC, an offence punishable under Section 304A, IPC would get diluted. However, keeping in view that there has been a death that has occasioned, though not entirely for the fault of the petitioner, interest of justice would require that the widow of the deceased atleast receive some solace by way of compensation. For the trial court has awarded a nominal amount as compensation, it would be in the interest of justice if the petitioner has been imposed a large amount of fine. The conviction under Section 304A, IPC, affirmed by the appellate court, is modified to hold that he shall be liable to pay fine of Rs. 25,000/- including the fine imposed by the trial court and affirmed by the appellate court in a sum of Rs. 5,000/-, thereby entitling to an additional sum of Rs. 20,000/-. The punishment of imprisonment is eschewed. The petitioner shall deposit the fine amount within a period of eight weeks, in default of which, he shall suffer simple imprisonment for three months.

A copy of this order shall be sent to the last known address of the petitioner.