Madhusoodan vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the petitioner and the learned State Public Prosecutor. The present petitioner is said to be accused for offences punishable under sections 279, 337, 338, 304A of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'', for brevity).

The facts of the case are that on 18.2.2007, at about 5.00 a.m., the petitioner herein was said to be driving his car bearing No. KA-19-N-4459 from Lalbagh to PVS Circle in Mangalore in a rash and negligent manner and had dashed against one Balakrishna, who was walking along with his wife Chandrakala Shetty. It is claimed that the accused had lost control over the vehicle and had gone into a road side trench. PWs.2 and 3, who were the inmates of the car sustained injuries. As a result of the accident, Balakrishna, who was the pedestrian had succumbed to the injuries in the hospital on the same day. The complainant, namely, the wife of the deceased had lodged a complaint before the Traffic West Police Station and a case was registered in Crime No. 42/2007. Thereafter, after completion of the investigation the Police had filed a charge-sheet against the driver of the car for the offences punishable as aforesaid and the accused having pleaded not guilty, the prosecution had examined PWs. 1 to 7 and had marked documentary evidence. The statements of the accused having been recorded under section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''Cr.P.C.'', for brevity) and after having heard both sides, the petitioner was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/- for the offence punishable under Section 279 IPC; further, to undergo simple imprisonment for three months and to pay a fine of Rs. 500/- for the offence punishable under Section 337 IPC; to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- for the offence punishable under Section 338 IPC and to undergo simple imprisonment for one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 304-A IPC, which sentences were to run concurrently. That having been challenged in appeal, the appellate court in turn had again confirmed the sentence imposed. It is that which is under challenge in the present petition.

It is sought to be contended that the prosecution has relied mainly on the evidence of PWs.1, 4, 5 and 9 and all of which suffer from serious legal infirmities and contradictions and those witnesses do not corroborate each other. Hence, it could not be said that the rash and negligent act alleged against the petitioner was proved beyond all reasonable doubt. Further, it is pointed out that PWs. 4 and 5 were employees of Vijaya Bank and the deceased was also an employee of Vijaya Bank and it is evident that they were seeking to tender evidence in support of their colleague, only to support the prosecution, out of sympathy for the deceased and his widow and their evidence could not have been relied upon. The learned Counsel also draws attention to the infirmities apparent from the spot mahazar and the sketch, which is contrary to the evidence of the investigating officer PW.9. It is also pointed out that the spot of the incident was such that there was hardly any room for vehicles to maneuver and the deceased had suddenly crossed the road without warning and it is at that point that the accident had occurred for it is claimed by the prosecution that the deceased was walking along with his wife and if that was so, the accident was of such a nature that both he and his wife ought to have been injured. Therefore, it was evident that the deceased had suddenly crossed the road and it was in such a circumstance that the accused who was taken unawares and not in a position to control the vehicle that the accident had occurred and hence it could not be said that the prosecution was in a position to hold that the petitioner was guilty of a rash and negligent act.

It is emphasized that the presence of the eye witnesses being doubtful is established by the fact that the deceased was not taken to hospital immediately and was lying at the spot for a long time before he was ultimately moved. This would give credence to the contention that PWs.4 and 5 were make believe witnesses who were not present on the scene and could not have been eye witnesses. For if they were acquaintances of the deceased they would not have allowed him to lie on the road when he was injured after the accident and that has been completely overlooked by the court below in holding that the prosecution had established its case beyond all reasonable doubt. It is in this vein that the learned Counsel would seek to emphasize the other aspects which would also indicate that there was an area of doubt, on several aspects which warranted that the benefit of doubt be given to the accused. Hence, the learned Counsel would submit that notwithstanding that there are concurrent findings, both the courts have committed an error in overlooking certain glaring aspects.

While the learned State Public Prosecutor would vehemently oppose the petition and would submit that the scope of re-appreciation of evidence is not warranted unless there are such glaring errors committed by the courts below, such as having taken into consideration material, which is not available on record or having ignored material on record in arriving at certain findings. In the absence of any such infirmity, the scope of interference in exercise of revisional power by this court is limited and hence, he would submit that there is no warrant for entertaining the petition and the same ought to be dismissed.

While the learned Counsel for the petitioner by way of reply would point out that the petitioner was 26 at the time when the case was registered and he is now 33 with a wife and a small child and he works for a multinational company and if he is imprisoned, by virtue of the judgment, his career is jeopardized as he can no longer continue in employment and this will also place his wife and child in a quandary as they are without any source of livelihood. And this will result in extreme hardship and misery and would plead that alternatively the sentence of imprisonment be varied to that of fine. Therefore, there is substance in the contention of the learned counsel for the petitioner that much time has elapsed from the date of the accident and the petitioner is also holding a responsible position and has a young child and a wife to take care of and if he is imprisoned, the object of such imprisonment to bring home to the accused the consequence of his act of negligence, even if it could be accepted, it is again not necessary that he should be incarcerated for the periods of punishment that has been imposed. On the other hand, it would be possible that the petitioner would feel the rigour of punishment without having to suffer imprisonment if there is imposition of fine.

Accordingly, the sentence imposed by the trial court and affirmed by the lower appellate court stands modified and is restricted to payment of fine. In addition to the fine imposed under the above sections by the Trial Court, the fine payable in all shall be Rs. 2,00,000/-, which shall be paid as compensation to the widow of the deceased. The amount of fine now imposed shall be deposited within a period of four weeks, which the widow of the deceased is permitted to withdraw. In default, the petitioner shall suffer simple imprisonment of three months. The petition is allowed in the above terms.

A copy of this order to be furnished to the State Public Prosecutor forthwith.