Sri S. Salim Khan vs The State

A.N. Venugopala Gowda

Petitioner faced trial in C.C. No. 2788/2036 on the file of the Metropolitan Magistrate, Traffic Court II, Bangalore. The learned Magistrate by a judgment dated 27.1.2009 found the petitioner guilty of offences punishable under Ss. 279, 337 and 304A IPC and sentenced to undergo R.I. for a period of one year and pay fine of Rs. 1,000/- and in default, to undergo R.I. for six months for the offence under S. 279 IPC. The accused was sentenced to pay fine of Rs. 1,000/- and in default, to undergo simple imprisonment for three months for the offence under S. 337 IPC. The accused was sentenced to undergo R.I. for a period of one year and pay fine of Rs. 3,000/-, in default, to undergo R.I. for six months for the offence under S. 304A IPC. CrI. A. 150/2009 filed in the Sessions Court, Bangalore City, later, assigned to Fast Track Court-I, Bangalore City, did not bring substantial relief to the petitioner. The conviction of the petitioner for the offences under S. 279, 337 and 304A IPC was confirmed. The sentence to undergo of R.I. for the offence under S. 279 IPC was set aside. The sentence of fine imposed for the offence S. 337 IPC was modified to one of payment of fine of Rs. 500/-, in default, to undergo simple imprisonment for two months. Challenging the said judgments, the accused has filed this Criminal Revision Petition. It is the case of the prosecution that, on 10.10.2006 Nikii Kumar, the complainant/PW-7 and the victim, Arun Nayar, were proceeding in a motorcycle bearing No. DL-09-SM-6602 from Yelahanka Upanagar to Yelahanka and near Tempo Stand, the accused being the driver of Bus bearing No. KA-02-D-6066 came in high speed behind the motorcycle and dashed against it and that, Arun Nayar fell to the right side of the road and the front left wheel of the Bus ran over him, resulting in sustaining of fatal injuries and his death. Complainant also suffered minor injuries. It was alleged that the petitioner was driving the offending vehicle and committed the offences.

Nikil Kumar lodged a complaint Ex. P5. Case was registered, FIR (Ex. P7) was lodged and investigation was under taken. On completion thereof, charge sheet was filed against the petitioner. As the accused pleaded not guilty, trial was held. 10 witnesses were examined to establish the prosecution case. PW-1 is the Motor Vehicles Inspector. His report is Ex. P1. PWs. 2 and 5 are the eyewitnesses, who identified the accused as the driver of the offendina vehicle. PWs. 3 and 4 are the witnesses to the spot mahazar Ex. P2. PW-7 is the rider of motorcycle bearing No. DL-09-SM-6602. Ex. P4 is the Wound Certificate of PW-7. He lodged the complaint Ex. P5. PW-8 is the Medical Officer, who conducted the postmortem on the dead body of Arun Nayar and issued Postmortem report Ex. P6. PW-9 is the Investigating Officer. Ex. P8 is the sketch of the scene of occurrence. PW-10 is the owner of the bus, through whom Ex. P10 was marked. Appreciating the evidence brought on record, the trial Court found the accused guilty and sentenced him, as aforesaid. The Appeal filed, to the extent of conviction was dismissed. However, the sentence was modified, as aforesaid.

Sri G.A. Srikante Gowde, learned advocate, contended that, there being no credible evidence to show that the bus was being driven in rash and/or negligent manner by the petitioner, the conviction being illegal is liable to be set aside. He submitted that the findings recorded by the Courts below are perverse and illegal and hence, interference is warranted. Alternatively, he submitted that the sentence imposed is harsh.

Sri Vijayakumar Majage, learned HCGP, supported the Judgments passed by the Courts below and sought dismissal of the Petition.

Perused the record. Points for consideration are:

i) Whether the conviction of the petitioner for the offences under Ss. 279, 337 and 304A IPC is justified?

ii) Whether the sentence imposed is harsh? Re

point 1:

PW-10/Ramesh is the owner of bus No. KA-62-D6066. He received the notice Ex. P9, issued under S. 133 of the M.V. Act and gave the information as per Ex. P10. He has stated that the accused was one of the drivers, whom he had appointed. Though he has stated that he cannot remember, whether the accused was the driver of the bus on the date the accident occurred, from perusal of Ex. P10, it is clear that :Z is the accused who was the driver of the bus at the time of occurrence of the accident. Ex. P10 is not under challenge. Hence, it is clear that, on the date and at the time of accident, the petitioner was the driver of the offending 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 hurt by an act endangering life or personal safety of others is an offence under S. 337 of IPC. 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; (1) death of human being; (2) the accused causing the death; and (3) the death was caused by doing of a rash or negligent act, though it did not amount to culpable homicide of either description.

PW-7 was the rider and the victim - Arun Nayar was the pinion rider of the motorcycle. PW-7 has stated that, on 10.10.2006, at about 8.20 p.m., he along with Arun Nayar were moving on the two wheeler near Santhe Circle and a Bus came and dashed to the motorcycle and he sustained injury and Arun Nayar, who was sitting behind him, fell to the right side of the vehicle and the bus wheel ran over him. He has identified the accused as the driver of the bus and has stated that the accident occurred only on account of the negligence of the accused.

PW-2/Uttappa has deposed that, on 10.10.2006, himself and one Naveen went to yelahanka and at about 8.20 pm., and when they were standing in front of Taj Hotel located on Hebbal Road to cross the road, motorcycle DL-09-SM-6602 was proceeding from Hebbal towards Yelahanka on the left side of the road and that the bus No. KA-02-D-6066 proceeded behind the motorcycle in speed and touched the motorcycle and due to the impact, pillion rider fell down towards left side and the rider fell down towards right side and the front left wheel ran over the head of the pillion rider and that the bus proceeded a little further and then stopped in the left side of the road and that the pillion rider died on the spot and the rider sustained minor injury. Having seen the driver of the bus in the spot, he has identified the accused as the driver of the bus at the time of accident.

PW-5/Naveen Chandra has deposed that, on 10.10.2005, when he was standing near Taj Hotel and a two wheeler proceed from Yelahnaka Police Station towards Devanahalli and bus came in speed and negligent manner, took towards left suddenly and dashed to the two wheeler and the rider of the motorcycle fell down towards left and the pillion rider fell down towards right and the front left wheel ran over the head of the pillion rider, who died on the spot and rider sustained minor injury and the driver of the bus stopped the vehicle. Having seen the driver of the bus in the spot, he has identified the accused as the driver of the bus at the time of accident.

PWs. 3 and 4, witnesses to the spot mahazar Ex. P2, have supported the case of the prosecution. Sketch prepared by the PW-9, marked as Ex. P8 is not under challenge.

PW-8 is the medical officer, who has conducted the postmortem on the dead body of Arun Nayar. Ex. P6 is the Postmortem Report. PW-8 has opined that the death is due to shock and hemorrhage as a result of multiple injuries sustained in a road traffic accident.

The facts in the case speak eloquently about what should have been happened. The criterion for deciding whether the driving which led to the accident was rash and negligent, is not only the speed, but width of the road, the density of the traffic and the attempt as in this case to overtake other vehicles resulting in dashing to the motorcycle which was passing by the side and being responsible for the accident. The eye witness version and the spot sketch clearly establish that, the petitioner who was driving the offending bus, on account of rash act, dashed to the motor cycle which resulted in both the riders falling on the road and Mr. Arun Nayar being run over and the complainant sustaining minor injury. The one and the only conclusion possible on the facts of this case is that, the accused was responsible for the accident and that is clearly a rash and negligent act in the condition of the road and the condition of the traffic. Petitioner has not offered any explanation when examined under S. 313 Cr.P.C. Petitioner had the knowledge as to how the accident occurred and hence, when examined under S. 313 Cr.P.C., ought to have offered the explanation. Mere denial of the incriminating evidence, when put under S. 313 Cr.P.C., shows that the petitioner who had special knowledge about the accident has withheld the material information.

The accident has occurred on a main road. Both the vehicles were proceeding in the same direction. The bus driven by the accused dashed to the motorcycle. Unless the bus was driven rashly or negligently, the vehicle could not have dashed to the motorcycle, which was proceeding in the same direction. PW-1 Inspector of Motor Vehicles has examined both the vehicles and his report is Ex. P1. He has found that the accident is not due to any mechanical defect of the vehicles. He has found damages to the motorcycle. Ex. P8 - spot sketch is not under challenge. Looking to the circumstances existing on the spot and the evidence of PWs.7, 2 and 5, an inference could be drawn about rash and negligent driving of the bus by the petitioner. Taking into consideration, the evidence referred to above, I am of the opinion that there is sufficient evidence which clearly establishes the rash and negligent acts on the part of the petitioner, which resulted in PW-7 sustaining minor injury and Arun Nayar having sustained fatal injures succumbed at the spot. In view of the said evidence, there is no illegality in the finding of guilt recorded by the learned Magistrate and confirmed by the Appellate Court. Hence, 1 do not find any justification to interfere with the finding of conviction recorded by the Courts below.

Re point 2:

On account of the accident caused by the petitioner, Arun Nayar sustained fatal injuries and died and PW-7 sustained minor injury. Taking into consideration the extent of negligence, the circumstances in which the accident occurred and the pendency of litigation from 2006, in my opinion, it would be just an proper to reduce the sentence of imprisonment for the offence under S. 304A IPC to six months.

In the result, the conviction of the petitioner for the offences under Ss. 279, 337 and 304A IPC is confirmed. The sentence awarded for the offences under Ss. 279 and 337 IPC by the Appellate Court is confirmed. The sentence of imprisonment imposed for the offence under S. 304A IPC is modified. The accused is sentenced and ordered to undergo R.I. for six months for the offence under S. 304A IPC and pay the fine. All the sentences to run concurrently. The impugned Judgments stand modified to the extent indicated herein above. The hail bonds are cancelled.