Lakshmana Moolya vs State

K.N. Phaneendra, J.—1. The petitioner is the accused before the JMFC, Sakleshpur, in CC No. 220/2005, for the offences punishable under Sections 279 and 304A of IPC, who was convicted for one year with fine of Rs. 1,000/- for the offence punishable under Section 279 of IPC with default clause of one month simple imprisonment and also convicted for two years rigorous imprisonment and fine of Rs. 5,000/- for the offence punishable under Section 304A of IPC with default clause of four months simple imprisonment.

Being aggrieved by the said judgment, the accused (Revision petitioner herein) preferred an appeal before the FTC and Additional Sessions Judge, Hassan, in Crl. Appeal No. 141/2007 dated 15.3.2010. The learned Sessions Judge after evaluating and re-appreciating the materials on record partly allowed the appeal and sentenced the accused for the offence punishable under Section 304A of IPC and reduced the punishment from two years to one year rigorous imprisonment. Against that order, the Revision Petitioner is before this Court.

For the sake of convenience, ranks of the parties as is before the trial Court are retained.

I have heard the arguments of Sri A. Ravishankar, learned counsel for the petitioner and Sri K.R. Keshavamurthy, SPP-II for respondent - State. I have also gone through the oral and documentary evidence and also the judgments of the trial Court and the Appellate Court.

After re-evaluation of the materials on record, the point that would arise for consideration of this court is-

"Whether the trial Court and the Appellate Court have committed any error in convicting the accused for the offence punishable under Section 304A of IPC and appellate court sentencing him to undergo rigorous imprisonment for one year.?"

The powers of the Revisional Court is very limited. It cannot in detail meticulously re-appreciate the oral and documentary evidence because the courts below i.e., the Trial court and the Appellate Court have done that exercise in order to draw an inference against the accused. This court has to see whether there are any legal lapses on the part of the trial Court and the First Appellate Court and whether any evidence led by the prosecution or the defence is not at all considered by the trial Court or any material which is not there on record has been taken into consideration by the courts below or the appreciation of evidence amounts to miscarriage of justice. Only in such circumstances, the revisional court is entitled to interfere with the judgments of the trial Court and the Appellate Court.

The learned counsel for the accused/petitioner strenuously contended that the trial Court though taken note of the evidence of D.Ws. 1 & 2, examined on behalf of the accused, the same weightage has not been given to the evidence of those witnesses as given to the prosecution witnesses. Therefore, the trial Court and the Appellate Court have committed serious error in appreciating the evidence of PWs. 1 and 2. It is also contended that the IMV report available before the trial Court has not been appreciated with reference to the evidence of the eyewitnesses with regard to the damage to the vehicles. The trial Court and the Appellate Court have committed serious error in not properly appreciating the oral and documentary evidence on record, otherwise they would have acquitted the accused.

Lastly it is contended that the awarding of sentence of one year with fine is also disproportionate punishment instead of imprisonment by imposing some heavy fine, the courts would have given the concession to the accused.

Per contra, learned SPP-II has submitted that on looking to the evidence of the witnesses and judgment of the trial Court and the First Appellate Court, the Courts have properly appreciated the evidence on record and even the evidence of D.Ws. 1 & 2 have taken into consideration and properly appreciated. Therefore, there is no room for any interference at the hands of this court.

I have carefully perused the materials on record, particularly the evidence led by the prosecution before the trial Court.

The brief factual matrix that emanate from the records are that:

"Deceased Gangaraju is the driver of a lorry bearing its Registration No. KA-05/A-7277. It is an admitted fact that the accused being the driver of lorry bearing No. KA-09/5957 proceeding from Sakleshpur along with a cleaner and another person. When the said lorry reached near the place called Gundya, the said lorry became stagnate, therefore, he made a request to the lorry driver bearing its Registration No. KA-06/A-8751 (PW-1) which was also moving in the said direction on that particular date and time. Accordingly, PW-1, the driver of lorry bearing No. KA-06/8751 has toed the lorry of the deceased Gangaraju linking it to his lorry, towards Sakleshpur. When they reached just one or two kilometers away from Sakleshpur, near a hotel, they stopped both the lorries. After taking lunch, they were making arrangements to proceed towards Bangalore. At that time, when this Gangaraju deceased was boarding lorry bearing No. KA-09/5967 at about 2.00 p.m., the accused drew his lorry from the direction of Sakleshpur towards Bangalore in a rash and negligent manner and dashed against Gangaraju who was boarding his lorry. Due to which, deceased sustained severe injuries and thereafter he was admitted to the hospital, where he succumbed to the injuries. On the allegations that the accident was due to the rash and negligent driving of the vehicle by the accused, an FIR came to be registered on the report of PW-1 Gopalakrishna which is marked at Ex. P-1. The police after due investigation, submitted a charge sheet for the above said alleged offences."

After securing the presence of the accused before the trial Court, charges were framed against the accused for the offence punishable u/ss. 279 and 304A of IPC and the accused pleaded not guilty. In all, prosecution examined 12 witnesses PWs. P-1 to P-12. On the side of the accused also D.Ws. 1 & 2 were examined. The accused was also examined u/s. 313 of Cr.P.C. Out of the above said witnesses, PWs. 1 to 3 are the eye-witnesses to the incident. PW-4 is the panch witness for panchanama Ex. P2 who turned hostile. Likewise PW-5 Lokesh. PW-6 Razak is the cleaner of the lorry being driven by the accused KA-09/5957. He also turned hostile. PW-7 Suleman is the owner of the lorry which was driven by the accused. PW-8 Gangadhar is the Motor Vehicle Inspector who examined all the three vehicles. PW-9 Rangaswamy is the person who received the death intimation of the deceased Gangaraju from the hospital. PW-10 Gopala, who carried the FIR to the jurisdictional court which is marked at Ex. P-11. PWs. 11 & 12 Sri Manjunath and Sri Shailendra are the Investigating Officers.

PWs. 1 to 3 have categorically stated that on the date of the incident i.e., on 27.12.2004 at about 2.00 p.m., the lorry bearing Registration No. KA-06/8751 and lorry bearing Registration No. NL-05/A-7277 were stationed at Sakleshpurnear near Patel Saw Mill. Actually, the lorry bearing Registration No. 8751 was being driven by PW-1 and lorry bearing Registration No. NL-05/A-7277 belong to the deceased Gangaraju was being toed by lorry belonging to PW-1. At that time, after finishing their lunch, while Gangaraju was boarding the lorry No. NL-05/A-7277, the accused drew the lorry bearing No. 5957 from the direction of Sakleshpur who came and dashed against the said person and due to which, deceased sustained severe injuries to his leg and other parts of the body and thereafter he died in the hospital. In fact, this PW-1 has identified the accused as the same person who was driving the Lorry No. 5957 in a rash and negligent manner.

The learned counsel for the accused argued that in the course of cross examination, PW-1 has admitted that the centre portion of the lorry of the accused dashed against Gangaraju and there was a breakage of side mirror of the vehicle of the deceased Gangaraju. But the evidence of PW-8 Gangadhar who examined all the three vehicles has said that there was no damage to any of the vehicles and that the witnesses have stated falsely before the court. But, in my opinion, only on the basis of such statement made by the witnesses, that the lorry of the deceased was damaged, that itself is not sufficient to through away the other evidence on record, particularly, with regard to the happening of the event and the deceased sustaining injury and died later. Otherwise than that, there is no other contradiction or omission which has been brought out so as to totally discard the evidence of these three witnesses. They have empathetically stated in their statement, even in the course of cross examination, reiterating that the accused is the person who dashed the deceased Gangaraju and caused the accident.

The learned counsel for the Revision Petitioner also drawn my attention to the evidence of PW-2. PW-2 in his cross examination has stated that he has not seen the accused in the lorry, but he came to know about the accused when brought to the police station along with the lorry. PW-3 also in fact stated so in the same fashion. It is suggested to PW-3 in the cross examination that when the deceased Gangaraju while boarding the lorry, slipped from the door portion, fell down and sustained those injuries. That clearly goes to show that the accused though denied the accident at that particular point of time, but he gives an alternative suggestion that the deceased died due to other reasons. I fail to understand, without any knowledge as to how the incident happened, how the accused would make such suggestion to the witness with regard to the death of the deceased in such a manner. Therefore, the presence of the accused and lorry being driven by him, are not much in dispute. There is no reason as to why these three witnesses have to be totally disbelieved. Merely because IMV report says that no damage to the vehicles, it cannot be said that the incident itself has not happened.

The learned counsel also argued that when PW-1 has stated in his cross examination, that the centre portion of the lorry has dashed against the deceased Gangaraju, there should have been some damage to the offending lorry. But which centre portion of the lorry has not been elicited. The side middle portion of the lorry, if it is rubbed the deceased only, there cannot be any damage to any of the vehicles. The sketch appended to Ex. P2 establishes that all the three vehicles were proceeding in the direction from Sakleshpur towards Bangalore. Therefore, there is no question that centre front portion of the lorry of the accused coming in contact with the lorry belonging to PW-1. When these two lorries as per Ex. P2 i.e., the lorry of the deceased and the lorry of P.W. 1 were parked on the left side, on the mud road and when the accused was coming from Sakleshpur in the same road, if centre portion of the lorry of the accused would have hit the lorry of the said Gangaraju, that should have hit the back portion of the lorry of the deceased. Therefore, such imagination by the defence counsel without there being any elucidation of the facts cannot be accepted.

PW-6 Rasaq, the cleaner of the lorry of the accused has categorically admitted that the accused is the driver of the said lorry bearing No. 5957. Though he has turned hostile, but the fact remains that the accused was the driver of the said lorry on that day, is admitted by him. PW-7 Suleman, the owner of the lorry driven by the accused, has also turned hostile to the prosecution. But his evidence cannot be completely brushed aside. He has deposed before the court that the police have issued notice to him as per Ex. P4 and he has given reply as per Ex. P5. Ex. P4 in which the police have asked that as on the date of the incident on 27.12.2004, who was the driver appointed to the said vehicle and who was actually driving the said vehicle on that day. As per Ex. P5, he has given the answer that accused was the person who was driving the vehicle on that particular day. This also clears the doubt that the accused was the person who was driving the vehicle on that particular day. Apart from that, the accused himself was examined as D.W. 2. In his examination in chief itself, he has categorically admitted that he was the driver of lorry bearing No. KA-09/5957 and he was driving the vehicle on that day, but it is stated that they left Mangalore in the said lorry at 1.00 p.m., and they came near Sakleshpur between 5 and 6 p.m., and Sakleshpur police have stopped the vehicle near the Sakleshpur Police Station. He denied in the examination in chief that he has dashed against Gangaraju and caused damage to him and he died due to the accident. D.W. 1 also stated that he was also there in the said lorry of the accused on that particular day and he re-iterated that CW4 (PW6) was the cleaner of the said lorry and they came near Sakleshpur between 5 and 6 p.m., but there is no accident on that particular day. So these facts unequivocally establish that the accused was the driver of the lorry on that day, he drew the vehicle from Mangalore to Bangalore and they passed through Sakleshpur but PWs. 1 to 3 have stated that the lorry came at 2.00 p.m., and dashed against Gangaraju and D.Ws. 1 & 2 say that they came near Sakleshpur between 5 and 6 p.m.,

The cleaner of the said lorry was examined as PW-6. As he turned hostile, the accused has not cross examined PW-6 to elicit that they came near Sakleshpur between 5 and 6 p.m., PW-6 Razak never stated the presence of D.W. 1 in the lorry on that particular day. The owner of the lorry PW7 Suleman has not stated that D.W. 1 was also sent along with accused in the said lorry. PW7 has specifically stated about the presence of PW6 and the accused in the said lorry on that day. D.W. 1 till he deposed before the court he did not inform anything about these aspects before the police about his presence in the said lorry on that day and that, a false complaint has been lodged against the accused. He abruptly surfaced before the court on 5.9.2007 to give evidence. Therefore, his evidence, has to be corroborated by other materials on record, otherwise his evidence cannot be relied upon.

Merely because some witnesses have stated indifferently before the court particularly with regard to the damage caused to the vehicle of the deceased i.e., damage to the side mirror on that ground only, it is not sufficient to treat the said witness as a false witness. The maxim falsus in uno - falsus in omnibus i.e., (to say if a witness says some falsehood before the court to some extent, his evidence cannot be totally discarded.) is not applicable.

The Indian Evidence Act prescribes certain standards of appreciation of evidence. Even the evidence of a hostile witness or a witness who has given some in different answers, his evidence also cannot be out rightly discarded. In such an eventuality, the court must be very careful in appreciating the evidence of those witnesses. If their evidence is corroborated by other materials on record, there is no bar to rely upon the truthful version of such witnesses. In this case, the evidence of the other witnesses including D.Ws. 1 & 2 have never stated any damage occurred to the vehicle of the accused or the deceased. Therefore, the said portion of the evidence of PW-1 has to be discarded as irrelevant.

The argument of the learned counsel is that the evidence of D.Ws. 1 & 2 have not been properly considered by the courts below. As could be seen from the evidence of PWs. 1 & 2, as noted above, they have admitted the fact that on 27.12.2004, their lorry passed through the said place where the accident happened, but the accused has not committed any accident as such, D.Ws. 1 & 2 need not say anything about the same, because the Indian Law raises a presumption in favour of the accused at the initial stages that he is an innocent unless his guilt is proved before the court. The court should start with such presumption that the accused has not committed any offence as such, casting the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt. That presumption need not be elicited from the defence witnesses. Therefore, the negative version stated by D.Ws. 1 & 2 need not be considered at all. On the other hand, the court has to see whether, the prosecution has proved its case beyond reasonable doubt or not. Therefore, I do not find any strong reasons to differ from the appreciation of evidence done by the Trial Court and the appellate court. When it is categorically established before the court with regard to the accident and the presence of the accused and the injuries sustained by the deceased and the death of the deceased due to the impact of the accident and particularly the rash and negligent act on the part of the accused, the judgment of the Trial Court and the appellate court deserves to be affirmed.

Last, but not the least, the Trial Court has sentenced the accused for the offence punishable u/s. 279 of IPC also but the appellate court has rightly corrected the said mistake done by the Trial Court as the contents of Sec. 279 of IPC is in built in section 304A of IPC. Applying the provisions of Section 71 of the IPC, the appellate court has rightly sentenced the accused for the offence punishable u/s. 304A of IPC only and in fact, considering the materials on record, it reduced the sentence from two years to one year rigorous imprisonment. Leniency has already been shown by the first appellate court. Hence, there is no reason to further reduce the said sentence to any extent.

Hence, the Revision Petition fails and accordingly dismissed.