Mohammad Manar vs The State

A.V. Chandrashekara, J—Heard the learned counsel for the petitioner and the learned HCGP for the respondent.

Petitioner has faced a trial for the offences punishable under Sections 279 and 304-A of IPC in a case bearing C.C. No. 962/1997 before the Court of III Addl. Civil Judge (Jr. Dn) & JMFC at Kalaburagi. He is convicted to undergo simple imprisonment for a term of six months and to pay a fine of Rs. 1,000/- for the offence punishable under Section 279 of IPC and to undergo simple imprisonment for a period of one year and to pay fine of Rs. 3,000/- for the offence punishable under Section 304-A of IPC. The said judgment of the conviction and sentence passed on 25.03.2008 was confirmed by the learned Principal Sessions Judge at Kalaburagi in Criminal Appeal No. 30/2008 on 09.09.2009. It is these concurrent findings which are called in question before this Court by filing revision petition in terms of Section 397 of Cr.P.C.

The gist of the allegation made against the revision petitioner herein is as follows;

At about 11.00 a.m. on 28.10.1996, this petitioner was stated to be driving a lorry bearing No. KA-32/3483 in front of MSK Mill Road towards Central Bus Stand in a rash and negligent manner so as to endanger human life and dashed against the Scooter bearing No. MEP/1837 driven by the complainant Mohd. Nayeemuddin, as a result of the said impact the complainant and his wife who was the pillion rider Smt. Fatima Begum fell down and the lorry ran over her head and succumbed to the injuries. It is further alleged that the said lorry dashed against the Kawasaki motor bicycle bearing No. KA-36/H-264 which was coming from the opposite side and the rider of the said motor bicycle died on the spot. Complainant had also sustained injuries. Revision Petitioner had pleaded not guilty to the allegation leveled against him and he had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all 16 witnesses and got marked 11 exhibits. Ex. P1 is the statement of Mohd. Nayeemuddin. No materials have been got marked on behalf of the prosecution.

PW. 1/Complainant and PW. 4/Dinesh have supported the case of the prosecution. PW. 4 is stated to be an eyewitness to the incident in question. The learned Judge has relied upon the evidence of complainant/injured Sri Mohd. Nayeemuddin and PW. 4/Dinesh. The learned Sessions Judge has confirmed the judgment of the trial Court on the ground that there is consistency in the evidence of these two material witnesses and the defence taken up by the accused is not probabilized in any manner. It is argued that, though the accused had taken up a specific plea of not being the driver of the vehicle, the same is not probabilized in any manner and therefore his defence has only remained as defence without being substantiated in any manner.

Heard Sri Mahantesh Deasi, learned counsel representing the revision petitioner and Sri Maqbool Ahmed, learned HCGP representing the respondent-State.

Learned HCGP has argued that no illegality or perversity is found in the approach adopted by the trial Court as well as First Appellate Court and that the evidence of PW s. 1 and 4 is consistent and trustworthy. He has argued that the prosecution has proved guilt of the accused beyond all reasonable doubt and that the defence is not probabilised in any manner.

The important witnesses in the present case are PW-1/Complainant/injured who was riding the motor bicycle in question with his wife as pillion rider and PW. 4 who is an eyewitness to the incident in question. The incident in question took place at about 11.00 a.m. on the road existing in front of MSK Mill in the vicinity of Central Bus Stand at Kalaburagi on 28.10.1996. Ex. P1 is the first information lodged by the complainant at about 12.30 p.m. on the after noon of the same day and it is a detailed statement. The first information report prepared on the basis of the Ex. P1 is marked as Ex. P11 and it was received by the jurisdictional Judge on the same day at 5.15 p.m. The first information was lodged without any undue delay. The injured/complainant Mohd. Nayeemuddin is the best witness. Admittedly, he was riding the motor bicycle and his wife was the pillion rider. He has specifically deposed that, he was proceeding on the left side of the road towards Bus Stand and that the lorry in question was behind his Scooter and dashed against his Scooter, as a result of which, himself and wife has fell down.

What is argued before this Court by the learned counsel for the petitioner is that, a specific contention is taken up on behalf of the accused that this petitioner was not the driver of the vehicle in question and that he was identified by PW. 1 i.e. on 04.11.1996 in the police station and it is not identification in the eye of law. It is further argued that only test identification was conducted by the police in terms of Section 9 of Evidence Act and therefore identification of this revision petitioner in the Court hall is no identification in the eye of law.

In fact, identification test parade is not substantive evidence. In fact the identification of the accused by the concerned in the Court is substantive evidence. The complainant did not know the name of the petitioner and therefore he had mentioned the name of this petitioner as the driver of the lorry in question.

As rightly pointed by the First Appellate Court, the accused did not explain his stand when he was examined under Section 313 of Cr.P.C. The accused will have a greater opportunity to explain his stand in a criminal case more especially an accused in an accident case under Section 313 of Cr.P.C.

On the other hand, PW. 10/Syed Imayatali the owner of the offending lorry bearing No. KA-32/3483 has specifically deposed that this petitioner was working under him as lorry driver since five to six years and that he had taken the lorry with a load and at that point of time he i.e. PW. 10 was in Mumbai. He has specifically deposed that accused had telephoned to him stating that the lorry in question had met with an accident and after 2-3 days he came back to Kalaburagi and tried to trace the accused. He has further deposed in examination in chief that the lorry was being handed over to the petitioner in question. He is cross-examined at length. Nothing useful has been elicited from his mouth to support the defence taken up on behalf of the accused.

PW. 4/Dinesh is stated to be an eyewitness to the incident in question. He is a resident of Bhadravati and contractor by profession. He has deposed that on 28.10.1996 at about 11.00 a.m. he was proceeding along with deceased Narayan in a Kawasaki motor bicycle towards Bus Stand and the lorry in question dashed against Scooter and later on dashed against the vehicle driven by the deceased. He has also identified the accused in the Court. Though he has been examined at length by the learned counsel for accused, he has withstood the rigor of the cross-examination. The fact that PW. 4 was a pillion rider in the vehicle driven by deceased Narayan, which met in accident, is not in dispute. The evidence of these material witnesses have been taken into consideration by the trial Court as well as First Appellate Court.

This Court has dealt at length about the identification of accused in Court being substantive evidence in the case of Bhimarya @ Bhimanna Vs. The State of Karnataka disposed of on 21.08.2015. The identification would be held by the police only to know whether they are in the right direction. Taking into consideration the overall evidence placed on record, the trial Court is justified in convicting the accused for the offence punishable under Sections 279 and 304-A of IPC. The First Appellate Court, being the final Court of facts has re-assessed the entire evidence by confirming the sentence. Hence, no good grounds or reasons exist to interfere the well considered judgment.

So far as imprisonment of sentence for the offence punishable under Section 279 of IPC is concerned, the approach adopted by the trial Court as well as First Appellate Court is incorrect. The offence punishable under Section 279 of IPC is minor in nature in so far as it relates to the offence punishable under Section 304-A of IPC. In fact the offence punishable under Section 279 of IPC virtually merges with the main offence punishable under Section 304-A of IPC. Though conviction under both the counts is sustainable in law, it is not advisable to sentence the accused on both these counts.

Sri Mahantesh Desai, learned counsel for the petitioner submits that the accused is aged about 48 years and his wife died three months ago. He has further argued that marriages of his three daughters have been solemnized and he has to look after an unmarried daughter aged about 16 years and two minor sons. It is also submitted that, he has the lone earning member in the family and his detention has caused untold inconvenience hardship to the members of the family. Hence, he has requested this Court to take a lenient view and mitigate the hardship that is caused to the accused and his family members.

As per the principle enunciated by the Hon''ble Apex Court in the case of State of Karnataka Vs. Krishnappa @ Madhugiri reported in AIR 1987 SC 867, no flea bite sentence for the offence punishable under Section 304-A of IPC should be awarded and a minimum sentence of six months should be imposed.

Taking into consideration the mitigating/extenuating circumstances, it would be appropriate to sentence him sentence to undergo six months of imprisonment instead of one year as imposed by the trial Court and confirmed by the First Appellate Court. Sentence of imprisonment passed against this petitioner for the offence punishable under Section 279 of IPC will have to be set aside. Accordingly, revision petition will have to be allowed in part.

Accordingly, revision petition is allowed in part and judgment of sentence passed by the trial Court and confirmed by the First Appellate Court is modified reducing sentence of imprisonment from one year to six (6) months only. In so far as sentence of fine of Rs. 3,000/- imposed on this petitioner for offence punishable under Section 304-A of IPC is confirmed.

Sentence of imprisonment passed against this petitioner for the offence punishable under Section 279 of IPC is set aside. Petitioner is entitled for set off as per Section 428 of Cr.P.C.

The trial Court i.e. JMFC Court is directed to issue modified conviction warrant to the jail authorities immediately.

Registry to send a copy of this order to the trial Court forthwith. A copy of this order be furnished to the petitioner free of cost through the jail authorities or his counsel.