Shivananda Itagi vs The State of Karnataka

A.N. Venugopala Gowda

The petitioner faced trial in CC. No. 168/2008 on the file of the JMFC, Hiriyur, for the offences punishable under Ss. 279, 337 and 304A of the Penal Code, 1860 (for short "IPC"). The petitioner was found guilty and was convicted for the offences under Ss. 279 and 304A IPC by the learned Magistrate and was imposed sentence of fine of Rs. 1,000/-, in default to undergo S.I. for a period of 1 month for the offence under S. 279 IPC and was sentenced to undergo imprisonment for a period of 2 years and pay fine of Rs. 10,000/- and in default of payment of fine to undergo S.I. for a period of 4 months for the offence punishable under S. 304A IPC. Background facts of the case in a nutshell are as follows:

On 16.12.2007, at about 4.30 a.m., near Green Land Hotel, on NH-4, near Hiriyur Town, the accused/petitioner being the driver of Lorry bearing registration No. KA-25-B-8779 came from Bangalore towards Hiriyur in rash and negligent manner, so as to endanger human life, dashed to a parked Bus bearing registration No. KA-25-F-2220 to the hind portion, when the Bus had been parked for changing a tyre and as a result, the tyre of the Bus ran over both the two drivers of the Bus and one of them succumbed on the spot and the other died on the way while he being carried to the hospital. A case was registered against the petitioner in Crime No. 638 of 2007 by the Hiriyur Police and First Information Report was sent to the Court. The Police prepared the site plan. The vehicles were got examined from the Motor Vehicles Inspector. The Postmortem reports and MLC of the injured were taken into possession and after recording the statements of the witnesses, charge sheet was filed against the petitioner in C.C. No. 168/2008, on the file of the JMFC, Hiriyur for the offences punishable under Ss. 279, 337 and 304A IPC. Summon was issued to the petitioner. Upon appearance, charge was framed and put to the accused, to which he pleaded not guilty and claimed trial.

Prosecution in order to prove the accusation, examined the complainant-cum-eyewitness (CW-1/PW-9), the spot mahazar witnesses (PWs -1 and 2), the inquest mahazar witnesses (PWs-1 to 3), the Inspector of Motor Vehicles (CW-10/PW-7), the owner and cleaner of the Lorry (CW-3/PW-10 and CW-2/PW-8), the Investigation Officer (CW-12/PW-11). Exs. P.1 to P.11 were marked. Incriminating materials were put to the accused by examining him under S. 313 Cr.P.C. It is a case of total denial. After hearing the arguments, learned Magistrate pronounced judgment and convicted the petitioner for the offences under Ss. 279 and 304A IPC and awarded the sentence, as above. Aggrieved, the accused preferred Crl. A. No. 91/2009 in the Sessions Court at Chitradurga. Learned Appellate Judge, upon perusal of the record of the case and after hearing the learned Advocates on both sides, pronounced the judgment on 19.12.2010 and dismissed the appeal. Feeling aggrieved, the accused has filed this Criminal Revision Petition.

Sri B. Pramod, learned Advocate, firstly, contended that, the judgment of conviction and order of sentence is illegal, since, the same has no evidentiary support. Secondly, the sentence imposed for the offence under S. 304A IPC is excessive and irrational.

Sri Vijayakumar Majage, learned HCGP, on the other hand contended that, indisputedly, the petitioner was the driver of offending Lorry and for the purpose of finding out the guilt on the part of the petitioner, both the Courts below have examined the entire record of the case, which includes the evidence of the Bus conductor-eyewitness and that the offending vehicle having no mechanical defect, the petitioner having not been able to make out any error of judgment and in view of the material circumstances appearing in the record of the case, the findings recorded are justified. He submitted that the petitioner having driven the Lorry in rash and negligent manner, dashed to the parked Bus, which resulted in grievous injuries to the two drivers of the Bus, who were changing the tyre of the Bus. Learned counsel referred to the spot mahazar and the sketch and submitted that, in the circumstances of the case, the Courts below were justified in finding the petitioner guilty and sentencing him to undergo imprisonment and pay the fine amount.

In view of the rival contentions and the record of the case, which was perused by me, the point that arises for determination is:

Whether the Courts below are justified in convicting the petitioner for the offences punishable under Ss. 279 and 304A IPC and in sentencing him?

CW-3/PW-10 is the owner of the Lorry. He has stated that the petitioner was the driver of the Lorry at the time of the occurrence of the accident. CW-2/PW-8 is the cleaner of the Lorry. Though he has not fully supported the prosecution case, but has stated that, he was the cleaner of the Lorry and the accused was the driver at the time of occurrence of the accident. CW-1/PW-9, conductor of the Bus, an eye-witness who lodged the complaint Ex. P.9 has identified the petitioner/accused as the driver of the Lorry at the time of the accident. Thus, the prosecution has placed cogent material on record to prove that at the time of the accident, accused was the driver of the Lorry.

PW-9 lodged the complaint Ex. P.9. Case was registered and FIR Ex. P.10 was sent to the court. Spot mahazar Ex. P.1 was prepared. PWs-1 and 2, the witnesses to Ex. P.1 have supported the prosecution case. I.O. has prepared the Rough Sketch - Ex. P.11, the scene of occurrence.

Occurrence of the accident is not in dispute. Apart from the evidence of PW-9, PW-10 and PW-8 have admitted the occurrence of the accident. The Lorry driven by the petitioner has dashed to the parked Bus. Ex. P.11-rough sketch shows that the Bus had been parked to the left side and evidence of PW-1 shows that stones had been kept at the front, back and side portion of the Bus. The dashing of the Lorry to the hind portion of the bus is evident from the evidence of PW-7/Motor Vehicles Inspector. His report Ex. P.6, which shows that the front portion of the Lorry and the back portion of the Bus were found damaged.

The accused has suggested to the prosecution witnesses that an account of the left side front tyre burst of the lorry, the accident occurred. While he was examined under S. 313 Cr.P.C, he has not stated that the accident occurred an account of left side front tyre burst. PW-7 has denied the suggestion that the left side front tyre of the lorry had bursted. There is no mechanical defect of the lorry, which is evident from Ex. P.6 and the evidence of PW-7. The burden of proof with regard to the left side front tyre of the lorry having burst is on the accused. He has not placed any evidence in support of the said theory. Even, PW-10 has not deposed with regard to the accident having taken place on account of the left side front tyre of the lorry having bursted and as a consequence, the lorry having dashed to the parked bus.

S.279 IPC makes rash driving or riding on a public way so as to endanger human life or likely to cause hurt or injury to any other person, an offence. Causing death by negligence is an offence under S.304A IPC.

The three things, which are required to be proved, for an offence under S.304A IPC are; (i) death of human being; (ii) the accused causing the death; and (iii) the death was caused by doing of a rash or negligent act, though it did not amount to culpable homicide of either description.

Evidence of PW. 9 clearly shows that the Lorry was driven rashly and negligently by the petitioner. The spot sketch Ex. P.11 and the spot mahazar Ex. P.1 show that the Lorry has dashed to the parked Bus. Due to the impact, both the Lorry and the bus are damaged. The Bus had two drivers, who at the time of accident were changing the punctured tyre. Due to the impact, the tyre of the bus has ran over both the drivers. Both of them sustained grievous injuries. One out of them succumbed to the injuries at the spot and the other died on the way to the hospital.

In view of the abundant material placed on record by the prosecution, to prove its case against the accused, the Courts below are justified in finding the petitioner guilty of the offences under Ss. 279 and 304A IPC. The concurrent finding of fact recorded by the Courts below, that the Lorry was driven rashly and negligently by the petitioner, is well founded. The findings recorded by the courts below are neither perverse nor illegal. There is no reason to take a different view in the matter. Hence, the challenge made by the petitioner to the judgment of conviction is devoid of merit and has to fail. On the question of sentence, it is to be observed that there is no allegation against the petitioner, that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was rash and negligent act simpliciter and not a case of driving in an inebriated condition. Having regard to the facts of the case, I am of the opinion that the ends of justice would be met, if the sentence of imprisonment imposed for the offence under S.304A IPC is reduced to a period of one year and payment of fine amount of Rs. 10,000/- and in default, to undergo simple imprisonment for further period of 2 months.

In the result, the conviction of the petitioner under Ss. 279 and 304A IPC is maintained. However, the sentence imposed for the offence under S. 304A IPC is modified. The accused-petitioner is sentenced to undergo simple imprisonment for a period of one year and payment of fine amount of Rs. 10,000/- and in default to undergo simple imprisonment for further period of 2 months. Petition is allowed in part and ordered as above.