Sri Syed Afzal vs State

A.N. Venugopala Gowda

The petitioner faced trial in C.C.No.4738/2009 on the file of V MMTC, Bangalore, for the offences punishable under Ss. 279 and 304A of the Indian Penal Code, 1860 (for short "IPC"). The petitioner was found guilty and was convicted by the learned Magistrate and was imposed the sentence to undergo R.I. for one month and pay fine of Rs. 1,000/-, with default clause of 15 days simple imprisonment for the offence punishable under S. 279 IPC and R.I. for one year and pay fine of Rs. 500/-, with default clause of 3 months simple imprisonment for the offence under S. 304A IPC. Background facts of the case in a nutshell are as follows:

CW-1/PW-1 Smt Sarala lodged a complaint Ex.P.1, alleging that she resides with her mother Panjumani at Pulikeshinagar Slum. That on 7.12.2007, as she had holiday, she was at her house and she along with her mother Panjumani, went to a public toilet situated by the side of her house and while returning back at Nethaji Road on the left edge of the road, around about 11.45 a.m., a goods auto bearing registration No. KA-03-C-9170 came in high speed and dashed against her mother Panjumani and as a result, she fell down and having sustained grievous injuries became unconscious and she was immediately shifted to Bowring Hospital for treatment and the doctors declared her brought dead.

A case was registered against the petitioner by the Frazer Town Traffic Police and First Information Report was sent to the Court. During investigation, the police prepared the site plan (Ex.P.4) and the vehicle was got examined from the Motor Vehicles Inspector. The Postmortem report (Ex.P.8) was taken into possession. After recording the statements of the witnesses, charge sheet was filed against the petitioner in C.C.No.1568/2008 on the file of the III MMTC, Bangalore for the offences punishable under Ss. 279 and 304A IPC. The case was made over to the V MMTC, Bangalore City, wherein it was registered as C.C.No.4738/2009. Summon was issued to the petitioner. Upon appearance, charges were 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 and eyewitness, the spot mahazar witnesses, the inquest mahazar witnesses and the Investigation Officer. Exs.P.1 to P.9 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.683/2011 in the Sessions Court at Bangalore City. The Appeal was assigned to the Fast Track Court-XII, Bangalore City. Learned Appellate Judge, upon perusal of the record of the case and after hearing the learned advocates, has pronounced the judgment on 24.1.2012 and has dismissed the appeal. Feeling aggrieved, the accused has filed this Criminal Revision Petition.

Sri Naushad Pasha, learned advocate, firstly, contended that, the judgment of conviction and order of sentence passed is illegal, since, the same has no evidentiary support. He submitted that the Courts below by not noticing the interested testimony of PWs-1 to 3, have erroneously found the petitioner guilty. It was submitted that the findings are perverse. According to the learned counsel, without the rash or negligent act being established, the petitioner has been illegally held guilty. Alternatively, he submitted that the sentence imposed is excessive and irrational.

Sri Vijayakumar Majage, learned HCGP, on the other hand submitted that, indisputedly, the petitioner was the driver of offending auto rickshaw 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 eyewitness and the offending vehicle having no mechanical defect and 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 auto rickshaw in rash and negligent manner dashed to Smt. Panjumani, who sustained grievous injuries and succumbed. 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 holding 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, the point that arises for determination is:

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

PW-1 is the complainant and eye witness. PWs- 2 and 3 are the eye-witnesses. PW-5 is Pancha to the spot panchanama. PWs- 4 and 6 are the police officials. PWs-1 and 3 have stated that on 7.12.2007, at about 11.45 A.M., Panjumani was passing on Nethaji Road and the luggage Auto came from behind and dashed to her and as a result, she sustained grievous injuries and succumbed. They have identified the petitioner as the driver of the said vehicle and he having caused the accident as a result of rash and negligent driving.

From the record, it is clear that the place where the accident has taken place is a busy road and there was no footpath, since, sheds had been put up on the foot path. From the evidence of PW-1 it is clear that, when she along with the deceased were passing at the edge of Nethaji Road, the goods auto driven by the petitioner came from behind and dashed to Smt Panjumani. According to her testimony, the road is straight and the accident could have been avoided, if the vehicle was driven with care and caution.

The Panch witnesses have supported the prosecution case. Exhibited documents are not under challenge. Panjumani has died on account of the grievous injuries sustained in the accident.

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; (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.

Evidence of PWs -1 to 3 clearly shows that the auto rickshaw was driven rashly and negligently by the petitioner. The spot sketch Ex.P.4 show that the auto dashed to Smt Panjumani.

In view of the materials placed on record by the prosecution, to prove its case against the accused, the Courts below are justified in holding the petitioner guilty of the offences under Ss. 279 and 304A IPC. The Courts below have considered the matter in detail. The concurrent finding of fact recorded by the Courts below, that the auto rickshaw 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. On the question of sentence, it is to be observed that there was 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, which is, undoubtedly despicable aggravated offence warranting harsher punishment. Petitioner is young and has family obligations.

Having regard to all these facts, 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 3 months and payment of fine amount of Rs. 5,000/- and in default, to undergo simple imprisonment for further period of one month.

In the result, the conviction of the petitioner under Ss. 279 and 304A IPC is maintained. The sentence imposed for the offence under S. 279 IPC is not justified, since, the petitioner has been sentenced for the offence under S. 304A IPC. Hence, the sentence imposed for the offence under S. 279 IPC is set aside. 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 3 months and payment of fine amount of Rs. 5,000/- and in default, to undergo simple imprisonment for further period of one month. Petition is allowed in part and ordered as above.