Lakshmana vs The State of Karnataka

N. Ananda, J.—The petitioner (hereinafter referred as ''accused'') was tried and convicted for an offence punishable u/s 304A IPC and also for an offence punishable u/s 187 of the Motor Vehicles Act, 1988 (for short, the M.V. Act''). The accused was before I-appellate court in Criminal Appeal No. 106/2008. The learned Judge of I-appellate court on re-appreciation of evidence has confirmed the judgment of trial court. Therefore, accused is before this court.

The law is fairly well established that this court while exercising revisional jurisdiction u/s 401 Cr.P.C., does not sit as a court of second appeal. This court can interfere with the impugned judgment if the courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.

It is established from evidence on record that on 15.12.2007 at about 8.30 p.m., accused being the driver of lorry bearing No. KA-17/5844 drove the lorry at a high speed in a rash and negligent manner near Jayadeva Circle, within the limits of Davanagere City and dashed against deceased Chandrashekar Rao, who was a pedestrian. Deceased Chandrashekar Rao suffered multiple injuries, including fractures. Therefore, he was treated in KIMS Hospital at Bangalore. On 17.01.2008, Chandrashekar Rao succumbed to injuries. The first information was lodged by PW1-D.L. Poojar.

PW1-D.L. Poojar has given eye witness account of accident. PW1 has deposed; at the time of accident, deceased and PW1 were walking near Jayadeva Circle; at that time, a lorry came from Lawyer''s road and took a sudden turn and dashed against deceased and wheel of lorry ran over lower limbs of deceased; deceased was given preliminary treatment in C.G. Hospital at Davanagere and later he was shifted to KIMS Hospital at Bangalore.

During cross-examination, PW1 has admitted that road near the place of accident is congested with traffic between 9 a.m. and 9 p.m. PW1 has denied suggestion that at the time of accident, deceased and PW1 were chatting and they were standing on road.

The evidence of PW1 does not suffer from discrepancies. The evidence of PW1 finds substantial corroboration from first information lodged by him.

The evidence of PW2-Manjunatha who had witnessed the accident is more, or less similar to the evidence of PW1.

PW3-A. Parashuramappa has given eye-witness account of the accident. PW3 has deposed that lorry was negotiated at a high speed and dashed against deceased.

From the evidence of PW2 & PW3, who are independent witnesses, we find their evidence is consistent and credible. PW2 & PW3 did not know accused. They did not have grudge or grievance against accused to falsely implicate him.

The contents of rough sketch (Ex. P.6) drawn by the Investigating Officer would reveal that accident took place when lorry driven by accused came at a high speed near Jayadeva Circle in the midst of Davanagere City. The accused should have driven lorry at a low speed, bearing in mind the safety of pedestrians. The accused being totally unmindful of safety of pedestrians had negotiated lorry at a high speed and dashed against deceased. Therefore, it can safely be held that accident took place due to rash and negligent driving of lorry by accused.

The prosecution was rest contended by production of post-mortem examination report of deceased. The records do not reveal that accused was called upon to admit the contents of post-mortem examination report before it was tendered in evidence.

In a decision reported in Boraiah alias Shekar Vs. State, , a Full Bench of this court has held:-

There must be enough indication in the record to show that the party against whom a document is sought to be put was called upon to admit or deny the genuineness of such document. If there is no such indication and if the document is simply marked without being objected to by the other side, then it cannot be read in evidence as it does not fulfill the requirements of Section 294 of Cr.P.C.

The Full Bench of this court answering the question under reference has held that post-mortem examination report filed by prosecution under sub-section (1) of Section 294 Cr.P.C., whose genuineness is not disputed by the accused may be read as substantive evidence under subsection (3) of Section 294 of Cr.P.C.

In the case on hand, accident took place on 15.12.2007. Chandrashekar Rao died on 17.01.2008. In the post-mortem examination report, cause of death is shown as septicemia consequent upon injuries suffered in the accident. The accused had not been called upon to admit genuineness of Ex. P.9 before it was tendered in evidence.

The prosecution has not examined the doctor, who had conducted post-mortem examination on dead body of deceased to prove that death was the result of injuries suffered in accident. In the circumstances, the contents of post-mortem examination report cannot be read as per se evidence, however from the evidence of eye-witnesses, it is established that deceased had suffered multiple injuries, including fractures. Therefore, I hold accused guilty of an offence punishable u/s 338 IPC. The accused had not stopped lorry after the accident. The accused did not shift the deceased to hospital after the accident. Therefore, learned trial Judge was justified in convicting accused for an offence punishable u/s 187 of the M.V. Act.

In view of the above discussion, I pass the following:-

ORDER

The revision petition is accepted in part. The impugned judgment is modified. The conviction of accused for an offence punishable u/s 304A IPC and sentence imposed thereon are set aside. The accused is held guilty of an offence punishable u/s 338 IPC. The accused is convicted and sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs. 1,000/-, in default to undergo simple imprisonment for 15 days for an offence punishable u/s 338 IPC. The conviction of accused for an offence punishable u/s 187 of M.V. Act and sentence imposed thereon are confirmed.