Sri Bore Gowda vs State of Karnataka

N. Ananda, J.—There are concurrent findings of courts below that petitioner has committed offences punishable under sections 279 & 304A IPC. Therefore, he is before this court. I have heard Sri H.C. Shivaramu, learned counsel for petitioner and Sri Vijaykumar Majage, learned HCGP for State.

The trial court as also I-appellate court on appreciation of evidence have recorded following findings:--

On 10.09.2000 at about 8 p.m., near Corporation Shopping Complex, N.T. Pet, Holly Mohalla, Bangalore, petitioner being driver of matador van bearing No. KA-04-1954 drove vehicle in its reverse direction in a rash and negligent manner, as a result matador van ran over a female child by name baby Amulu, aged about 8 years and caused her death.

The learned counsel for petitioner would submit that there is no evidence regarding identification of petitioner (accused). In other words, prosecution has failed to prove that petitioner was the driver of vehicle involved in accident. The accident took place at about 8 p.m. The version of eye-witnesses that they had seen driver and they had identified petitioner (accused) before court below is highly improbable.

On reconsideration of the evidence, I find that prosecution has established that deceased was near cart stand at Jallymohalla and she was run over by vehicle when it was driven in reverse direction and child died at spot.

It is not in dispute and cannot be disputed that PW9 was the registered owner of tempo bearing No. KA-04-1954. PW9 has admitted that after accident, Investigating Officer had issued notice to him u/s 133 of the Motor Vehicles Act and PW9 had caused reply as per Ex.P.7. After going through the contents of Ex.P.7, I find that PW9 has stated that accused namely Boregwoda S/o Late Hutche Gowda @ Sri Manjaiah was the driver of vehicle and he had caused accident in question. The evidence of PW9 and contents of Ex. P.7 have not been controverted by petitioner. Therefore, petitioner cannot be heard to say that he was not the driver of the vehicle involved in accident. It is established from the evidence on record that petitioner had driven vehicle in its reverse direction, without looking for persons, who were behind vehicle. The deceased was a child aged about 8 years. Therefore, no contributory negligence can be attributed to deceased. The petitioner owed a duty of safety towards pedestrians and other users of road. In the normal course, while driving the vehicle in reverse direction, one would expect driver to keep a person behind the vehicle to receive signals from him for safely driving vehicle in its reverse direction.

In the case on hand, there is not even suggestion that some one was giving signals to petitioner to drive vehicle in its reverse direction. The petitioner was driving vehicle in its reverse direction, unmindful of the consequences. Therefore, there are no reasons to interfere with the impugned judgment of conviction.

The learned trial Judge having sentenced accused for an offence punishable u/s 304A IPC should not have passed a separate sentence for an offence punishable u/s 279 IPC as an offence u/s 304A IPC is an aggravated form of offence punishable u/s 279 IPC.

The learned counsel for petitioner submits that petitioner has been sentenced to undergo simple imprisonment for a period of twelve months for an offence punishable u/s 304A IPC. The learned counsel would further submit that there was culpable negligence on the part of petitioner.

The law is fairly well settled that merits of case cannot be considered while passing sentence.

The petitioner was aged about 25 years at the time of accident. The records do not reveal that petitioner had committed similar offence in past. The petitioner has responsibility to take care of his wife and children. In the circumstances, it would be just and reasonable if sentence of imprisonment for an offence punishable u/s 304A IPC is reduced from period of 12 months to period of 6 months. In the result, I pass the following:--

ORDER

The revision petition is accepted in part. The conviction of petitioner (accused) for offences punishable under sections 279 & 304A IPC is confirmed. The sentence passed on petitioner for an offence punishable u/s 279 IPC is set aside. The petitioner is sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs. 4,000/-, in default to undergo simple imprisonment for a period of three months for an offence punishable u/s 304A IPC.