P. Chandran vs State of Karnataka

N. Ananda, J.—The petitioner (hereinafter referred to as ''accused'') was tried for offences punishable under sections 279, 337, 338 & 304A IPC. The learned trial Judge on appreciation of oral and documentary evidence held the accused guilty of aforestated offences. Therefore, he was before I-appellate court in Criminal Appeal No. 7/2008. The learned Judge of I-appellate court on re-appreciation of evidence has confirmed judgment of conviction made by trial court. Therefore, accused is before this court. I have heard Sri. C.N. Sangolli, learned counsel for petitioner and Sri. Satish R. Girji, learned HCGP for State.

It is established from evidence on record that accident took place on Bangalore-Mangalore Highway near Bharathavalli Village, within the jurisdiction of Alur Police Station. The road on which accident took place is a National Highway. The accused was driving a gas tanker (lorry bearing No. KA-01-AA-990) and the deceased namely Kajol Mukherji was driving Maruti Car bearing No. KA-04-N-3764. The other two deceased persons namely Mosina and Rithu Mukherji and injured witnesses namely Nithish Mukherji and Ibrahim were the inmates of car. They were proceeding from Dharmasthala towards Hassan. The vehicles involved in the accident were moving in opposite directions. The accused (driver of lorry bearing No. KA-01-AA-990) had driven lorry at a high speed to the offside of road, as Result, lorry dashed against Maruti car. Due to impact, car was badly damaged. The driver of Maruti car namely Kajol Mukherji and another inmate of car namely Mosina died at spot. Another inmate of car namely Rithu Mukherji died on the way to hospital. The other two inmates of car namely Nithish Mukherji and Ibrahim had suffered grievous injuries.

The learned counsel for accused would submit that driver of Maruti car was guilty of rash and negligent driving. The Maruti car had dashed against lorry driven by accused. Therefore, courts below should not have held accused guilty of aforestated offences.

The learned HCGP would justify the impugned judgment.

In a decision reported in Johar and Others Vs. Mangal Prasad and Another, , the Supreme Court has held:-

Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be substituted by another possible view.

Sub-section (3) of Section 401 reads as under:-

401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.

Technically, although Ms. Makhija may be correct that the High Court has not converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.

In D. Stephens Vs. Nosibolla, this Court opined:-

The revisional jurisdiction conferred on the High Court u/s 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal u/s 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.

The same principle was reiterated in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, stating:

........Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction. This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court''s appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal.....

In the instant case the High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses examined on behalf of the prosecution. It, in particular, went to the extent of criticizing the testimony of Autopsy Surgeon. It relied upon the evidence of the so called eye witnesses to hold that although appellants herein had inflicted injuries on the head of the deceased, Dr. Y.K. Malaiya, PW 9, deliberately suppressed the same. He was, for all intent and purport, found guilty of the offence u/s 193 and 196 of the Indian Penal Code. The Autopsy Surgeon was not cross-examined by the State. He was not declared hostile. The State did not even prefer any appeal against the judgment.

The trial court has relied on oral evidence of injured eye-witnesses, documentary evidence such as photographs of place of incident and position of vehicles after the accident to arrive at a conclusion that accused had driven lorry at a high speed towards offside of road. The accused could notice car which was coming from opposite direction. The position of vehicles after accident, in particular, position of lorry would demonstrate that accused had driven vehicle at a high speed towards offside of road and he did not have control on vehicle. The courts below on proper appreciation of evidence have held accused guilty of aforestated offences. The courts below have not committed glaring errors in appreciation of law or errors of law. The impugned judgment does not call for interference.

The trial court having sentenced accused for offences punishable under sections 337, 338 & 304A IPC should not have passed a separate sentence u/s 279 IPC.

It is needless to state that an offence punishable u/s 304A IPC is an aggravating form of an offence u/s 279 IPC. Therefore, accused cannot be separately sentenced for an offence punishable u/s 279 IPC. The trial court has not stated that substantive sentences of imprisonment shall run concurrently. Therefore, sentence passed by trial court and confirmed by I-appellate court needs modification. In the result, I pass the following:-

ORDER

The revision petition is accepted in part. The judgment of conviction of accused for an offence punishable u/s 279 IPC is set aside. The substantive sentence of imprisonment passed for offences punishable under sections 337, 338 & 304A IPC shall run concurrently, so also nature of imprisonment is modified from rigorous imprisonment to simple imprisonment. The rest of the impugned judgment is confirmed.