G.T. Ravindra vs State by Dharwad Rural Police

P.D. Waingankar, J.—1. This Revision Petition is filed under Section 397(1) r/w Section 401 of Cr.P.C. questioning the legality and correctness of the order dated 30.10.2012 in Crl.A. No. 134/2008 on the file of the Principal District and Sessions Judge, Dharwad, whereby the appeal came to be dismissed and the judgment of conviction and order of sentence of the petitioner dated 08.07.2008 in C.C. No. 1012/2006 on the file of the II Additional Civil Judge (Jr. Dn.) and JMFC-II, Dharwad, was confirmed.

Brief facts which gave rise to this revision are as under:--

"The petitioner was the accused before the II Additional Civil Judge (Jr. Dn.) and JMFC-II, Dharwad in C.C. No. 1012/2006. One Shivaprakash Sangayya Hiremath lodged a complaint before Dharwad Rural Police Station, wherein it is alleged that on 12.03.2006, at about 11.00 p.m. the accused being the driver of KSRTC bus bearing registration No. KA-17/F-550 drove the bus from Savadatti towards Dharwad in a rash and negligent manner and dashed against a Goods Tempo bearing registration No. KA-25/3707 coming from opposite direction. As a result of the terrific impact, tempo driver Ishwar Siddappa Hubballi died in the accident and the inmates of the bus sustained grievous injuries. On the basis of the complaint lodged by Shivaprakash, crime came to be registered before Dharwad Rural Police Station. The Investigating Officer upon investigation and after recording the statement of the injured witnesses, filed a charge-sheet against the driver of the KSRTC bus for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC.

The accused having denied the charges, the prosecution examined as many as 22 witnesses as PW.1 to PW.22, marked Exs.P1 to P24. Upon hearing the submissions made by the learned counsel for the accused and the Public Prosecutor and on appreciation of evidence, the learned Magistrate recorded a finding that the accident occurred on account of rash and negligent driving of the KSRTC bus by its driver/accused and thereby by judgment dated 08.07.2008, the accused was convicted for the offences punishable Sections 279, 337, 338 and 304(A) of IPC and has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2,000/- for the offence punishable under Section 304(A) of IPC apart from the sentence imposed under Sections 279, 337, 338 of IPC.

Aggrieved by the judgment of conviction and order of sentenced passed by the learned Magistrate, the accused preferred Crl.A. No. 134/2008 before the Principal District and Sessions Judge, Dharwad. The learned Sessions Judge upon hearing the submissions made by the counsel for the accused and the Public Prosecutor, dismissed the appeal by judgment dated 30.10.2012 confirming the judgment of conviction and order of sentence passed by the Magistrate. Questioning the legality and correctness of the order passed by the learned Magistrate and learned Sessions Judge, this Revision Petition is preferred."

I have heard the learned counsel for the accused/revision petitioner and the learned High Court Government Pleader for the State. Perused the records.

The learned counsel for the revision petitioner has submitted before me that the accident occurred in the center of the road and as such both the tempo driver and accused/bus driver are equally responsible for the accident and in that case holding the KSRTC bus driver alone responsible for the accident is not proper. He has also submitted that both the learned Magistrate and the learned Sessions Judge have totally ignored the material contradiction in the evidence of witnesses examined by the prosecution which goes to the root of the matter and which are sufficient so as to acquit the accused by giving benefit of doubt.

The learned High Court Government Pleader, on the other hand, has submitted that all the injured witnesses examined in this case have supported the case of the prosecution, they have categorically stated that the accident occurred on account of negligent driving of the KSRTC bus by the accused. It is also submitted that the bus driver totally lost control over the bus on account his rash and negligent driving and thereby dashed against the tempo which was proceeding on its correct side, that the learned Magistrate on proper appreciation of evidence and learned Sessions Judge on re-appreciation of evidence have rightly held that the accident was purely due to rash and negligent driving of the KSRTC bus by the accused and that there is no scope for this Court to interfere with the judgment of conviction and order of sentence and that the revision petition is liable to be dismissed.

Having heard both the learned counsel for the petitioner/accused and the respondent/State and on perusal of the material on record, the point that would arise for my consideration is:

"Whether the learned Magistrate and the learned Sessions Judge are right in recording a finding that the accident occurred on account of rash and negligent driving of the KSRTC bus by its driver/the accused?"

As I have already stated that the prosecution in order to prove the charges levelled against the accused examined as many as 22 witnesses and relied upon 24 documents. Out of the 22 witnesses examined by the prosecution, PW.1 Shivaprakash Sangayya Hiremath is the complainant who lodged a complaint immediately after the accident. He is none other than the cleaner of the Goods Tempo bearing registration No. KA-25/3707. His evidence would go to show that on the date of the accident i.e., on 12.03.2006 one Ishwar Siddappa Hubballi as a driver and PW.1-Shivaprakash as a cleaner were proceeding in the tempo to Gokak from Hubballi via Amminbhavi. At about 11.00 a.m. KSRTC bus came from Savadatti side i.e., from opposite direction in a rash and negligent manner and dashed against the tempo and as a result of the accident he sustained injuries and the tempo driver died on the spot and that while he was in the hospital he lodged a complaint in connection with the accident. Though a suggestion was made to PW-1 that it is because of negligence of the driver of the tempo the accident occurred, the suggestion has been denied by PW.1. He has stated that the bus dashed against the right side of the tempo.

PW.2-Kallappa and PW.3-Manjunath are the panchas to inquest panchanama over the dead body of the deceased Ex-P2 and panchas to spot panchanama Ex-P3. But both of them have turned hostile to the prosecution case.

PW.4-Krishnappa is the conductor of the bus, which met with an accident, who also sustained injuries. But he has not supported the case of the prosecution. He has deposed that at the time of the accident he was sleeping.

PW.5-Manjunath Parameshwar, PW.6-Shrishail, PW.7-Muttappa, PW.8-Fatima, PW.9-Vitthal, PW.11-Pillolli Shivanna, PW.12-Huliyappa, PW.13-Chandrakant were all passengers travelling in the bus involved in the accident. All of them have categorically deposed that the accused was driving the bus and it is because of his rash and negligent driving of the bus, the accident occurred. Though all these witnesses were cross-examined by the defence counsel, nothing has come out of their cross-examination so as to doubt their presence in the bus or so as to doubt their testimony. Moreover, all of them were injured eye witnesses and therefore their presence in the bus cannot be disputed at the time of the accident. Ex. P11 is the medico legal certificate of PW.5-Manjunath Parameshwar. Ex. P14 is the medico legal certificate of PW.6-Shrishail. Ex. P15 is the wound certificate of PW.8-Fatima. Ex. P17 is the wound certificate of PW.9-Vitthal. Ex. P19 is the wound certificate of PW.11-Pillolli Shivanna Durgappa. Ex. P22 is the wound certificate of PW.12-Huliyappa.

Thus, all the inmates of the bus who were injured have attributed total negligence on the part of the driver of the KSRTC bus. So also the complainant, the cleaner of the tempo attributed total negligence on the part of the driver of the KSRTC bus. Even if we go through the contents of spot panchanama Ex. P3, it is evident that the negligence is that of driver of the KSRTC bus/accused. Since almost all the witnesses examined have deposed categorically that the accident occurred on account of rash and negligent driving of the KSRTC bus, the learned Magistrate on proper appreciation of the evidence has rightly convicted the accused for the offences with which he was charged. The learned Sessions Judge on re-appreciation of the entire evidence also held that the accident occurred purely due to rash and negligent driving of the KSRTC bus by its driver/accused. Their finding is based on the evidence on record. Upon going through the entire material placed on record and upon perusal of the judgment of conviction and order of sentence passed by the Magistrate and confirmed by Sessions Judge, I do not find any illegality or irregularity committed by the Magistrate and the Sessions Judge in convicting the accused for the offences punishable under Section 279, 337, 338 and 304(A) of IPC. The sentence imposed by the Magistrate and the Sessions Judge also seems to be reasonable having regard to the gravity of the charges levelled against the accused. As such, the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge does not call for my interference. The revision petition is liable to be dismissed as bereft of merits.

Accordingly, the revision petition is dismissed.

PDWJ:-- 18.02.2016 CRL.R.P.NO.2280/2012 ORDER ON �BEING SPOKEN TO�

Learned counsel for the petitioner has filed a memo for ''Being Spoken To'' to allow the revision petition and acquit the petitioner from all the charges levelled against him in the interest of justice and equity.

The petitioner was convicted for the offences punishable under Sections 279, 337, 338 and 304-A of IPC in C.C. No. 1012/2006 by judgment dated 08.07.2008 on the file of the II Additional Civil Judge (Junior Division) and JMFC-II, Dharwad. He was sentenced to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment for a period of thirty days for the offence punishable under Section 279 of IPC, pay a fine of Rs. 500/-, in default to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 337 of IPC, to undergo simple imprisonment for a period of thirty days and pay fine of Rs. 1,000/-, in default to undergo simple imprisonment for a period of thirty days for the offence punishable under Section 338 of IPC and to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for a period forty days for the offence punishable under Section 304-A of IPC. It was also ordered that all the substantive sentences shall run concurrently. The petitioner preferred Crl.A. No. 134/2008 against the judgment of conviction and order of sentence before the Prl. District and Sessions Judge, Dharwad. On merits, the appeal came to be dismissed while confirming the judgment of conviction and sentence. Against the dismissal of the Crl.A. No. 134/2008, the petitioner preferred revision petition before this Court. Upon merits, the revision petition came to be dismissed confirming the judgment of conviction and order of sentence passed by the Magistrate and affirmed by the Sessions Judge.

Now that the petitioner has filed a memo contending that he is hardly aged about 45 years, he has got family of dependents consisting of wife and children, if he is sentenced to undergo imprisonment, he would loose his employment as a Driver in KSRTC and therefore he prays that the sentence of imprisonment be waived and in lieu of the same, the sentence of fine may be enhanced and be paid to the legal heirs of the deceased as compensation. He also prays to pass an order that the conviction and sentence shall not come in the way of his employment.

I have heard the learned counsel for the petitioner and the learned Government Pleader for the State.

During the course of submission, learned counsel for the petitioner/accused taken me through various decisions of this Court, wherein the sentence of imprisonment has been waived and in lieu of that the fine amount has been increased and ordered to be paid to the dependents of the victim of the accident. The learned counsel also placed reliance on the decisions wherein this Court has ordered that the judgment of conviction shall not come in the way of employment.

Upon going through the decisions and having heard the submission made by the learned counsel for the petitioner that the petitioner is hardly aged about 45 years, having family of dependents consisting of his wife, children and that he is going to loose his employment in the event he is sentenced to undergo imprisonment and that he is the only earning member in the family, it would be in the interest of justice to waive the sentence of imprisonment and order to pay fine of Rs. 1,00,000/- (Rupees One Lakh only) to meet the ends of justice.

Accordingly, the revision petition is partly allowed. The conviction of the petitioner for the offences punishable under Sections 279, 337, 338, 304-A of IPC is confirmed. The sentence of imprisonment for the aforesaid offences is waived. The petitioner is sentenced to pay a fine of Rs. 1,00,000/- (Rupees One Lakh only), in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 304-A of IPC.

The petitioner is directed to deposit the fine amount before the II Addl. Civil Judge (Jr. Dv.) and JMFC-II, Dharwad, within a period of thirty days from the date of this order.

In the event the fine amount is deposited, a sum of Rs. 90,000/- (Rupees Ninety Thousand only) shall be paid to wife of the deceased-Ishwar Siddappa Hubballi as compensation under Section 357(3) of Cr.P.C.

The conviction and sentence of the petitioner shall not come in the way of his employment.