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Judgment
A.N. Venugopala Gowda
Petitioner was convicted under Ss. 279 and 304-A IPC and sentenced to undergo imprisonment. The same was confirmed in an appeal filed by the accused. Assailing the said Judgments, the accused has filed this Criminal Revision Petition. The Judgment of the Appellate Court and that of the Trial Court, contain a detail narrative of the prosecution case.
Sri B.C. Chetan, learned counsel, firstly, contended that the petitioner was not driving the vehicle involved in the accident. Secondly, there are contradictions in the statements of the prosecution witnesses and Ex.P11/spot sketch. Thirdly, there is no credible evidence with regard to rash and negligent driving of the offending motor vehicle by the petitioner. Fourthly, the prosecution has not proved the guilt of the petitioner beyond all reasonable doubts. Lastly, sentence imposed is harsh.
Sri Vijayakumar Majage, learned HCGP, on the other hand, by taking me through the record of the case, made submissions in support of the finding of guilt concurrently recorded by the Courts below and sought dismissal of the Criminal Revision Petition.
Perused the record Keeping in view the rival contentions, the points for determination are:
Whether the Courts below are justified in finding the petitioner guilty of the offences under Ss. 279 and 304-A IPC?
Whether the sentence imposed on the petitioner is harsh?
PW.1 is the complainant. Ex.P1 is the complaint. PW.2, Station House Officer registered the case in Crime No. 117/2003 and sent the FIR to the Court. PW.3, Inspector of Motor Vehicles inspected the vehicle and submitted report/Ex.P5. PW.4, Head Constable received intimation from the hospital as per Ex.P6, about death of the victim/Prince Poovadil and sent the intimation to the Court as per Ex.P7, to convert the case as one under Ss. 279 and 304-A IPC. PW. 5 is the owner of the motor vehicle. He was served with the police notice/Ex.P9 and submitted reply/Ex.P10., PW.6, PSI conducted the investigation. The spot sketch is Ex.P11. The offending motor vehicle was seized as per the seizure mahazar/Ex.P12. The accident victim having died, upon receipt of the information, inquest mahazar/Ex.P13 was drawn. PW.7/CPI, took ever the investigation from PW.6. He collected the post mortem report/Ex.P14 of the deceased and filed the charge sheet for the offences under Ss. 279 and 304-A of IPC.
PW.5 is the owner of the offending vehicle bearing Registration No. KA 19 MD 8003. Seizure of the vehicle as per Ex.P12 is not in dispute. PW.6 served notice as per Ex.P9 on PW.5. PW.5 submitted reply as per Ex.P10. The Vehicle was certainly involved in the accident, otherwise the same would not have been seized by the police and the notice as per Ex.P9 would not have been served on the owner/PW.5. In Ex.P10, PW.5, a literate, has stated that at the time of occurrence of the accident, the offending vehicle was being driven by the accused, whose licence particulars have also been stated therein. That apart, PW.1 filed the complaint/Ex.P1, which contains the registration number of the offending vehicle and the name of its driver, at the time of accident i.e., the accused, who was also identified before the Court. In the circumstances, the first contention urged by Sri B.C. Chetan that the petitioner/accused was not driving the vehicle involved in the accident at the time of occurrence of the accident, is devoid of merit and the contention stands negated.
PW.1 has deposed that, during the month of May, 2003, he was studying in the Final year course of Journalism and that he was knowing the victim who was his classmate and on the fateful day, himself and the Victim were walking towards Lady Goshan hostel and a Qualis vehicle came from hind side and dashed to Mr. Prince Poovadil and as a result, he was thrown off the road. He has said that the vehicle stopped at a distance of 18 ft. after brakes were applied and thereafter the driver of the offending vehicle shifted the injured to S.C.S. hospital, where he was admitted. Ex.P3 is the intimation to the police from the S.C.S. hospital with regard to admission of the injured who had sustained injuries in an alleged RTA for treatment. PW.1 has said that the accident occurred on account of the said vehicle having been driven in high speed and due to the fault of the driver. After admission of the injured in the hospital for treatment, he gave statement to the police as per Ex.P1 and thereafter the police prepared the spot mahazar/Ex.P2, which has signature of PW.1. Even though PW.1 has been cross examined at length, nothing material has been elicited to disbelieve his testimony. PW.1 has given a correct eye account of the accident. I find his statement is worthy of credence and there is no reason to disbelieve his testimony. There is consistency in the statement of PW.1 that the accused drove the vehicle in rash and negligent manner and caused the accident. His statement is fully supported by the documentary evidence/Ex.P1, the statement made to PW.2 immediately after the occurrence of the accident. There is no cross examination of PW.2, who has said that upon receiving the intimation as per Ex.P3, he went to the hospital and the injured was not in a position to make any statement and PW.1 made the statement as per Ex.P1, which was recorded by him, whereafter, a case was registered and FIR was sent to the Court. In the circumstances, I am unable to notice any material contradiction in the statement of PW.1 much less in his statement/Ex.P1. Minor variations which occur on account of considerable lapse of time from the date of occurrence till the date of deposition in the Court may have to be ignored. The statement made by PW.1 as per Ex.P1 to PW.2 and the one stated before the Court, when perused, there is no serious material contradiction. The evidence of PW.1 has rightly been accepted by the Courts below.
PW.3, Inspector of Motor Vehicles having examined the offending vehicle has given a report/Ex.P5. The vehicle did not had any mechanic defect. The vehicle has suffered damage, which, indicates that it has dashed from behind, to the victim. The bonnet was found pressed inside. The radiator had been damaged. The front indicator lights were found damaged and front side bumper was also damaged. Thus, it is clear that the vehicle has hit the victim from behind. There is no cross examination of PWs. 3 and 4, through whom Exs. P4 to P8 were marked.
PW.6 has conducted the investigation. Nothing material has been elicited to find fault with the investigation conducted by him. Mr. Prince Poovadil, who sustained grievous injury in the RTA on 23.5.2003, has died in the hospital on 29.5.2003. The inquest mahazar and post-mortem report are at Exs.P13 and P14. Mr. Prince Poovadil has succumbed to the injuries sustained in the RTA, caused by the accused/petitioner, who has driven the offending vehicle in rash and negligent manner. Accused when examined under S.313 Cr.P.C., has only denied the incriminating material put to him and has not offered any explanation. The accused being the driver of the offending vehicle at the time when the accident in question occurred, has chosen to maintain silence. Since he had the knowledge as to how the accident occurred, it is expected that in the normal course of conduct, he ought to have disclosed the circumstances on account of which the accident occurred. The material facts which were within his personal knowledge and having a bearing on the case have not been stated by the petitioner, when examined under S.313 Cr.P.C.
In the case of Ravi Kapur vs. State of Rajastan 2012 AIR SCW 4659, Apex Court has observed that, a person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently and that even when one is driving a vehicle at slow speed, but, recklessly and negligently, it would amount to ''rash and negligent driving'' within the meaning of the language of S. 279 IPC. It has been further held as follows:
10....That is why the legislature in its wisdom has used the words ''manner so rash or negligent as to endanger human life''. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated u/s 279 IPC is attracted.
''Negligence'' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case even not doing what one was ought to do can constitute negligence.
The court has to adopt another parameter, i.e., ''reasonable care'' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
Both the Courts below have noticed the oral and documentary evidence brought on record by the prosecution in detail. There is correct appreciation of the material evidence. The findings recorded are neither perverse nor illegal. The prosecution has proved its case beyond all reasonable doubts. Hence, Judgment of conviction passed by the learned Magistrate and affirmed by the learned Appellate Judge does not warrant any interference.
Apex Court in the case of State of Karnataka Vs. Krishna alias Raju, , while dealing with the concept of adequate punishment in relation to an offence under S.304-A of the IPC, has held that, considerations of undue sympathy in such cases will not only lead to miscarriage of justice hut will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system.
In the case of State of Karnataka Vs. Sharanappa Basnagouda Aregoudar, , it has been ruled by the Apex Court that, if the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence.
Apex Court, in the case of State of Punjab Vs. Balwinder Singh and Others, , has held as follows:
It is settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have a better training in traffic laws and moral responsibility with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence u/s 304A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh Vs. State of Haryana, .
While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the court.
(Emphasis supplied by me)
Keeping in view the facts and circumstances of the case, there being no mitigating factors, the sentences imposed on the petitioner, which have been ordered to run concurrently, is neither irrational nor harsh, warranting any interference.
For the foregoing reasons, the petition being devoid of merit is dismissed. Bail bonds and surety are cancelled and the petitioner is directed to surrender before the Trial Court to serve out the sentence.