Sheik Wajid vs State

A.S. Pachhapure, J.—The revision petitioner has challenged his conviction and sentence for the offences punishable under Sections 279, 338 and 304-A IPC and under Section 134(a) and (b) r/w. 187 of the Indian Motor Vehicles Act [hereinafter referred to as "the I.M.V. Act" for short] on a trial held by the learned Magistrate, confirmed by the appellate Court in the appeal.

The facts reveal that on 13.10.2004 at about 1.30 p.m., the appellant herein was the driver of the tempo bearing reg. No. KA.07/274 and drove it in reverse direction in a rash and negligent manner, hit the autorickshaw bearing reg. No. KA-02/A-2271, a push cart and caused the death of Nagaraj, a pedestrian and thereby having committed the offence aforesaid.

A complaint of this incident filed by P.W. 2 under Ex. P1 was registered, spot mahazar-Ex. P2 was held and sketch as per Ex. P4 was drawn. Inquest on the body of deceased Nagaraj was held as per Ex. P5 in the presence of P.W. 1, his wife and P.W. 8-Raghavendra. The vehicles were examined by P.W. 4 and Ex. P8-M.V. report was secured. The body of the deceased was subjected to post-mortem examination by Dr. Kiran-P.W. 9 and Ex. P9-report was secured. Injury certificate of P.W. 1 at Ex. P10 was collected. Thereafter, a charge-sheet was laid against the petitioner for the aforesaid offences.

During the trial, the prosecution examined P.Ws. 1 to 10 and got marked the documents Exs. P1 to 10. Statement of the petitioner was recorded under Section 313 Cr.P.C. No defence evidence was led.

The trial Court after hearing the counsel for the parties and on appreciation of the evidence, convicted the petitioner for the aforesaid offences and for the offence under Section 304-A IPC awarded imprisonment for 6 months, whereas lesser sentences were awarded for the other offences. The appeal preferred by the petitioner in Crl. A. No. 834/2010 came to be dismissed vide Judgment and Order dated 07.03.2011. Aggrieved by the Judgments and Orders of the Courts below, the present revision petition is filed.

I have heard learned counsel for the petitioner and also learned High Court Government Pleader.

The point that arises for my consideration is;

"Whether the petitioner has made out any grounds to warrant interference in his conviction and sentence ordered under the impugned Judgments and Orders?" 5. Learned counsel for the petitioner submits that there is inconsistent version in the evidence of the witnesses as to the manner of the accident and as to how the accident occurred is not reflected in the evidence of the witnesses. He also contends that the petitioner was not driving the tempo at the time of the accident and the Courts below have committed an error in granting conviction and sentence.

On the other hand, learned High Court Government Pleader supports the impugned Judgment and Order and submits that there is consistency in the evidence of P.Ws. 2, 7 and 10 and the Courts below were justified in granting the conviction and sentence.

It is not in dispute that it is only P.Ws. 2, 7 and 10 are the eye-witnesses to the accident and speak to the manner in which this accident occurred. Ex. P1 is the complaint and as could be seen from the allegations in the complaint, P.W. 2 states that while taking the tempo in a reverse direction from north towards south, the tempo came and hit the autorickshaw bearing reg. No. KA-02/A-2271 and then in the reverse direction he drove the vehicle in a rash and negligent manner and hit a pushing cart, in the opposite side of which Nagaraj [deceased] was walking and he sustained injury and died at the place of the accident itself. This is how the manner of the accident is explained in the complaint-Ex. P1 by P.W. 2.

As could be seen from the evidence of P.W. 2, he states that the tempo hit the autorickshaw, which was coming from the opposite direction and then the tempo went to the reverse direction and hit the pushing cart and Nagaraj [deceased], who was on the foot-path. Though there is inconsistency with regard to the accident that the vehicle hit the autorickshaw, which was coming from the opposite direction, if the tempo was in the reverse direction as it was proceeding towards north, it cannot be in a reverse direction.

Now, as could be seen from the evidence of P.W. 7, he states that the tempo first hit the autorickshaw and then the push cart. He speaks of the death of Nagaraj at the place of the accident. He was sitting at the tea shop and observing the vehicles which were proceeding on the road and he states that the accident occurred while the vehicle was taken in reverse direction. P.W. 10 is another eye-witness, who does not speak anything with regard to the manner and in the cross-examination he states that the tempo went in reverse direction towards the north. So, whether the accident occurred while the tempo was taken reverse direction or otherwise is not clear from the evidence of these two witnesses. In the absence of which it is rather difficult to say confidently as to how the accident has occurred. When it is difficult to say the manner of the accident, it is difficult to assess rash and negligent act in driving the vehicle. This aspect of the matter is lost sight off by the Courts below while appreciating the evidence. Therefore, I do not think that the Courts below were justified in convicting the petitioner for the offences punishable under Sections 279, 338 and 304-A IPC.

P.Ws. 1 and 8 are the attesting witnesses to the inquest-Ex. P5. P.W. 4 is the Motor Vehicles Inspector, who examined the vehicles and issued the report-Ex. P8. The perusal of the M.V. report-Ex. P8 reveals that so far as the tempo is concerned, it is only rear lights, which were damaged. If really the vehicle had hit the autorickshaw, in which the injured was the passenger, there could have been some damage to the front portion of the vehicle. This circumstance is also against the version of the prosecution.

That apart, there is a dispute relating to the person, who was driving the tempo at the time of the accident. Though P.W. 6-owner of the vehicle was examined, nothing is elicited in his examination about who was driving the vehicle on the relevant date. Notice at Ex. P6 and the reply-at Ex. P7 were marked in his evidence. Though Ex. P7 recites an admission of P.W. 6 that his son i.e., the petitioner herein was the driver, in the cross-examination P.W. 6 states that he does not know the contents of Ex. P7. It is the duty of the Additional Public Prosecutor, who assisting the State to place on record in the chief-examination as to who was the driver of the vehicle on the relevant point of time. Except the contents of Ex. P7 there is no material on record as to who was the driver of the vehicle as on the date of the accident and as it is the case of the prosecution that the driver left the place immediately. There is no certainty whether it was the petitioner, who was responsible for the accident. In that view of the matter, the conviction and sentence of the petitioner for all the offences is improper and erroneous.

Consequently, the revision petition is allowed. The conviction and sentence ordered by the Courts below for the offence punishable under Sections 279, 338 and 304-A IPC and under Sections 134(a) and (b) r/w. 187 of I.M.V. Act. are set aside. The petitioner is acquitted of the said charges. Fine if any deposited shall be refunded to the petitioner.