Nazirahmad Isak Patel - Petitioner @HASH State of Karnataka

Aravind Kumar, J. - Petitioner has called in question the judgment passed by the Principal Civil Judge and J.M. F. C. at Jamkhandi in C.C. No.13 of 2011 dated 26th July, 2013 by which judgment, petitioner has been convicted for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and judgment passed by First Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi in Criminal Appeal No.92 of 2013, dated 03rd June, 2016, where conviction and sentence imposed on petitioner came to be confirmed.

The case of prosecution is that on 15th November, 2010, complainant along with 5 to 6 other passengers was proceeding in a jeep bearing registration No. KA 49/M-1105 from Jamakhandi bus stand and when they were near Kadapatti cross, jeep was stopped by the side of road to enable some of the passengers to board and at that time, accused, being the driver of KSRTC bus bearing registration No. KA-07 /F-841 , was driving the said bus in a rash and negligent manner and in high speed and dashed to the jeep from hind side (back side). On account of said impact, the passengers of jeep had sustained simple and grievous injuries and they were taken to hospital in an ambulance. In the hospital, complaint came to be registered by Jamkhandi Town Police in Crime No. 153 of 2010 and after conducting detailed investigation, charge-sheet came to be filed against petitioner-accused. At the trial, accused pleaded not guilty. Prosecution examined in all 13 witnesses and through them, got marked Exs. P-1 to 18 and MO. 1. Thereafter, prosecution side was closed. Accused denied the case of prosecution as appearing against him. In his statement recorded under Section 313 of the Code of Criminal Procedure, accused did not lead evidence in his defence. After appreciating the evidence available on record, trial court found that prosecution had brought home guilt of accused beyond all reasonable doubt through the testimony of injured passengers who were travelling in the jeep on the fateful day. Apart from said evidence, trial court took note of the evidence placed in respect of the vehicle not having any mechanical defect and thus, on appreciation of entire evidence on record, trial court convicted the petitioner for the aforesaid offence and sentenced to pay fine of 1,000/-for the offence punishable under Section 279, IPC and sentenced to pay fines of 500/- and 1,000/- respectively for the offences punishable under Sections 337 and 338, IPC. In default of payment of fine amount, petitioner-accused was directed to undergo simple imprisonment for one month, fifteen days and one month for the respective fines imposed.

The appellate court in Criminal Appeal No.92 of 2013, on going through the evidence of prosecution and documents produced on its behalf, arrived at a conclusion that there was no error committed by the trial court and it was held that trial court had elaborately considered the evidence of witnesses adduced on behalf of prosecution and appellant-accused has failed to put his defence either at the time of recording 313 statement or by way of adducing defence evidence to disprove the case of prosecution. On these amongst other grounds as succinctly discussed by lower appellate court by its judgment dated 03rd June, 2016, dismissed the appeal and confirmed the judgment and order of conviction-sentence passed by the trial court in CC No. 13 of 2011. Being aggrieved by these two judgments, petitioner/accused is before this Court.

I have heard Sri. Prashant S. Kadadevar, learned counsel appearing for petitioner and Sri. Raja Raghavendra Naik, learned High Court Government Pleader appearing for respondent-State and perused the material on record.

It is the contention of learned counsel appearing for petitioner that trial court as well as lower appellate court have illegally and arbitrarily not considered the evidence on record and thereby arrived at an erroneous conclusion and convicted the petitioner-accused. He would submit that there are no incriminating overt acts attributable to petitioner so as to warrant conviction and both the Courts below have erroneously held that petitioner is guilty of the offences alleged against him. Elaborating his submission, he would contend that PW-1 being the complainant, PW-2 cleaner and PW-5 driver of jeep had supported the case of prosecution and they are interested witnesses and as such, their evidence ought not to have been accepted by the Courts below. He would submit that witnesses who had been examined on behalf of prosecution were sitting inside the vehicle and they could not have seen the vehicle coming from back side and as such, their evidence to the effect that bus which was coming from back side with high speed and dashed against the stationary jeep, ought not to have been accepted. He would also submit that evidence of PW-4, PW-6 and PW-13 who were eye-witnesses to the incident had deposed that they were unaware of the manner in which accident had occurred. As such, Courts below could not have attributed the accident in question to the negligence of petitioner. He would also submit that jeep in question was not stationary, but it was moving and it was also not parked on the left side of the road as claimed and as such, there was no negligence attributable to the petitioner. In that view of the matter, he seeks for setting aside the judgment of trial court sentencing the petitioner to pay fine and judgment of appellate court confirming the said sentence.

Per contra, learned High Court Government Pleader appearing for the State would support the judgments passed by trial court as confirmed by appellate court by taking this Court to relevant paragraphs of trial court�s judgment. He would submit that minor contradiction, if any, is to be ignored and the evidence in totality if taken into consideration, it would clearly prove the guilt of accused beyond all reasonable doubt and as such, he prays for dismissal of the revision petition.

Having heard the learned counsel appearing for parties and on perusal of the material on record, it would clearly disclose that prosecution in order bring home the guilt of accused had examined 13 witnesses. PW-1 is the complainant and one of the injured i.e., PW-2 is the witness to Spot Panchanama Ex. P-2. PWs-3 to 14 are the injured persons, PW-6 is the conductor of bus. PWs-8 and 9 are the doctors who had treated the injured.

Petitioner has not disputed the accident that had taken place at Kadapatti Cross on 15th November, 2010 at 07.45 a.m. PW-6, conductor of bus involved in the accident, had admitted that petitioner was the driver of bus. Injuries sustained by PW-3 , PW-4 and PW-13 and her two children is also not in serious dispute. To prove that accident had occurred on account of negligence on the part of driver of the bus, viz., petitioner, prosecution has placed reliance on Ex.P-2/Panchanama, Ex. P-4 /sketch and evidence of supporting witnesses namely panchas. No suggestion is made to these witnesses by petitioner denying the spot of accident as reflected in Ex.P-4 . As rightly observed by the Courts below, defence taken by petitioner/accused is that the cruiser jeep in which injured passengers were travelling was not stationary (in other words it was moving). However, no such suggestion has been made to the witnesses examined on behalf of prosecution to the said effect. That apart, in 313 statement recorded by jurisdictional trial court under Section 313 of the Code of Criminal Procedure, no such defence has been set up by the accused, except denying the incriminating evidence appearing against him. If really the accident had occurred on account of negligence of driver of cruiser jeep for having moved the vehicle in rash and negligent manner as sought to be contended by learned counsel for petitioner before this Court, the moot question that would arise for consideration is what prevented the petitioner from lodging a complaint alleging negligence on the part of driver of jeep. This moot question has remained unanswered, namely petitioner has failed to lodge any complaint and as observed herein above, it is required to be noticed at the cost of repetition that petitioner did not suggest to any of the witnesses that accident in question had occurred on account of such movement of the cruiser jeep. In that view of the matter, said contention cannot be accepted and it has been rightly rejected by the lower appellate court while appreciating the evidence available on record.

There is no dispute to the fact that at Kadapatti cross, there is a bus stop and the driver of bus i.e., petitioner is expected to take care to stop his vehicle at the bus stop by taking reasonable care. In the cross-examination of witnesses, it has been elicited that Kadapatti cross is a busy road and there are several shops surrounding the spot. But, admittedly, the accident had occurred at 7.45 a. m. and none of the witnesses have stated that there was heavy traffic at that point of time. Injured persons who were stated to be travelling in the jeep cannot be held to be interested witnesses. Merely because the doctors who treated the injured persons and who came to be examined as PWs-8 and 9 have admitted that injuries sustained by witnesses could be caused if they fall down from a running vehicle, by itself will not lead to any conclusion that injuries sustained by them was not on account of accident in question. Even otherwise, such suggestion having not been made to injured persons who entered witness box as PWs- 1, 4 and 13, question of examining same in revisional jurisdiction does not arise.

The entire evidence has been scrutinised in proper and judicious manner by the trial court and on re-appreciating the same, lower appellate court has also found that appellant-accused had failed to put up his defence and establish the same either at the time of statement being recorded under Section 313 of the Code of Criminal Procedure or by way of adducing defence evidence and had failed to disprove the case of prosecution. It has also been held that accused had failed to prove that he was driving his vehicle in a moderate speed and alleged accident was not on account of his negligence. It is also on record that the jeep was parked on the extreme left side of Kadapatti Cross as per Spot Panchanama-Ex.P.2 and Sketch - Ex. P.4 and damage had been caused to rear side of jeep. This fact clearly establishes that on account of the impact caused by the accident i.e., on account of bus having rammed the Jeep from the hind side, accident had occurred. Said bus was driven by petitioner is also evident from the photograph/Ex.P-3 and sketch of scene of offence/Ex. P-4.

In the light of afore stated discussion, this Court finds that there is no error committed by Courts below calling for exercise of revisional jurisdiction.

Hence, I proceed to pass the following:

ORDER

(i) Criminal Revision petition is hereby dismissed.

(ii) Judgment and sentence passed by the Principal Civil Judge and JMFC at Jamkhandi in C.C. No. 13 of 2011 dated 26th July, 2013, which came to be confirmed by the First Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi in Criminal Appeal No.92 of 2013, dated 03rd June, 2016 stands affirmed.

In view of revision petition having been dismissed, question of considering I.A. No. 1 of 2016 for suspension of sentence does not arise for consideration. Accordingly, it is hereby rejected.