U.R. Ramachandra vs State of Karnataka

A.S. Pachhapure, J.—The petitioner has challenged his conviction and sentence for the offences punishable under Sections 279, 337, 304(A) IPC and Section 134(a) and (b) r/w 187 and Section 15(a) r/w 181 of the Motor Vehicles Act, on a trial held by the JMFC and confirmed in the appeal by the Sessions Judge.

The facts relevant for the purpose of this revision are as under:

The petitioner herein is the accused. On 12.7.1997 at about 9.15 p.m., the complainant-PW1 was riding his motorcycle bearing registration No. KA-09-R-492 and was proceeding towards Top-in-Town Hotel i.e., from eastern side towards the western side and at that time an autorickshaw bearing registration No. KA-12-1099 came from the opposite direction driven in rash and negligent manner and hit the motorcycle and thereby the rider i.e., PW1 sustained injuries, so also the inmates of the autorickshaw sustained injuries. The injured were shifted to the government hospital for the purpose of treatment. In the circumstances when PW1 was in the hospital, PW6-Head Constable after receiving the intimation-Ex. P4 from the hospital, went to the hospital and recorded the oral complaint of PW1 as per Ex. P1. After return, registered a case in Crime No. 128/97 on the basis of the complaint-Ex. P1 and submitted F.I.R.-Ex. P5 to the Magistrate. It is thereafter PW2 approached the police station and submitted the complaint-Ex. P6 informing health of injured during treatment. On the basis of the complaint given by PW2, the PSI-PW8 at about 2 a.m. on 13.7.1997 included the same in Crime No. 128/97 and sent the complaint-Ex. P6, F.I.R-Ex. P7 to the Magistrate. In the morning at about 7 a.m., he visited the place of accident and prepared a spot mahazar as per Ex. P2 and seized the motorcycle and the autorickshaw and produced the same for the examination by the Motor Vehicle Inspector. The inquest mahazar is at Ex. P8. Later the clothes on the body of the deceased was seized under seizure rnahazar-Ex. P3 and in the presence of the attesting witnesses, he recorded their statements. PW9-CPI collected the injury certificates of PWs 1, 3 and 4 as per Exs.P10 to 12 respectively, the post-mortem report-Ex. P13, motor vehicle accident report-Ex. P14 and after the completion of the investigation, filed the charge sheet for the above said offences.

During the trial, the prosecution examined PWs. 1. to 9 and in their evidence got marked the documents Exs.P1 to P14 The statement of the accused was recorded u/s 313 Cr.P.C. The accused has taken the defence of total denial. He has not led any evidence.

The Trial Court on appreciation of the material on record convicted the petitioner for the offences punishable under Sections 279, 337, 304(A) IPC and Sections 134(a) and (b) r/w 187 and Section 15(a) r/w 181 of the Motor Vehicles Act. It ordered imprisonment for 1 year for the offence punishable u/s 304(A) IPC and fine of Rs. 1,000/- and lesser fine for the other offences. Aggrieved by the conviction and the sentence, the accused approached the Sessions Court in Criminal Appeal No. 55/2000 and the said appeal came to be dismissed on merits. Aggrieved by the concurrent findings of conviction and sentence, the accused has approached this Court in revision.

I have heard the learned Counsel for the petitioner and also the learned High Court Government Pleader.

The point that arises for my consideration is:

Whether the judgment and order convicting the petitioner for the offences punishable under Sections 279, 337, 304(A) IPC and Section 134(a) and (b) r/w 187 and Section 15(a) r/w 181 of the Motor Vehicles Act, as ordered by the Magistrate and the sentence thereon confirmed in the appeal is illegal and perverse?

It is the contention of the learned Counsel for the petitioner that there was no negligence on the part of the petitioner and that the rider of the motorcycle gave an indication that he was taking the vehicle to the right side and in such circumstances the petitioner took the autorickshaw towards the left to avoid a hit and in such circumstances, the accident has happened. Therefore, he submits that the evidence led by the prosecution does not reveal any rash and negligent act on the part of the petitioner and therefore he is entitled to acquittal. Per contra, the learned High Court Government Pleader supports the judgment and orders of the Courts below.

So far as the evidence led by the prosecution is concerned PWs. 1, 3 and 4 are the eyewitnesses. PW1 is the rider of the motorcycle and PWs3 and 4 are the inmates of the autorickshaw and their evidence reveal that on the date of the accident the autorickshaw was proceeding from Koppa towards Kushalnagar, whereas the motorcycle was proceeding from Kushalnagar towards Mysore side. As could be seen from Ex. P9-the sketch of the scene of occurrence and spot mahazar-Ex. P2, the road runs from north to south and as per the evidence of PWs. 1, 3 and 4, the rider was proceeding from north towards south, whereas the petitioner was driving the autorickshaw which was proceeding from south north. The spot of the accident is on the eastern edge of the tar road. It measures 20 ft. in width. As can be seen from the spot of the accident, towards the southern side the motorcycle is found at 15 ft. from the spot of accident, whereas the autorickshaw was found at 30 ft. from the spot of the accident towards the western side of the road. There is 5 ft. rough road on the eastern side.

In the context of the circumstances mentioned in the spot sketch-Ex. P9, if the evidence of PWs. 1, 3 and 4 is looked into, it is the consistency of the witnesses that PW1 was proceeding from left side of the road towards Mysore side i.e., from north towards south and at that time the petitioner who was coming from south towards north, to avoid a hump, took the vehicle to the extreme wrong side and hit the motorcycle. As far as this aspect of the matter is concerned if the cross-examination of the witnesses is looked into the accident occurred towards the eastern side of the road. So when the accident has occurred on the eastern side, the motor vehicle, which was proceeding from north to south has to be on the left side, according to me on the eastern side and the autorickshaw was proceeding from south towards north on the western side. But the evidence of PWs. 1, 3 and 4 and the circumstances mentioned in Ex. P9-sketch and Ex. P2-spot mahazar reveals that the autorickshaw went towards wrong side and it is made clear that during the evidence of PWs. 1, 3 and 4 that he went to the wrong side only to avoid the hump and in that attempt the autorickshaw hit the motorcycle and the accident occurred.

Though it is suggested in the cross-examination of all these three witnesses that there was an hump on the side of the road and to avoid the said hump, the petitioner took his vehicle towards the eastern side. Apart from that, as could be seen from the statement of the accused recorded u/s 313 of Cr.P.C. he does not say with regard to the defence in the cross-examination of PWs. 1, 3 and 4, but states that the motorcycle was proceeding towards the right side and therefore he took the vehicle towards the left to avoid any hit.

The Trial Court has taken into consideration the evidence of PWs. 1, 3 and 4, spot mahazar-Ex. P2, sketch-Ex. P9 and motor vehicles accident report-Ex. P14, has come to a conclusion that there was rash and negligent act on part of the autorickshaw driver. It is relevant to note that PWs. 1, 3 and 4 have sustained the injuries. The injury certificates have been produced at Exs.P10 to 12. An injured died during the treatment in the hospital. The post-mortem report is produced at Ex. P13. So looking to the facts that PWs. 1, 3 and 4 sustained minor injuries, their presence at the time of the accident and the version of the eyewitness, it is clear that there was rash and negligent act on the part of the petitioner. P.W. 3 states that the petitioner to avoid the hump came towards wrong side and hit the motorcycle. In that view of the matter, I do not find any wrong or error committed by the Courts below in concluding that there was rash and negligent driving on the part of the driver of the autorickshaw. In such circumstances, in my opinion the petitioner has not made out any grounds to warrant interference in the order of conviction.

So far as the sentence is concerned, the learned Counsel submits that the imprisonment for 1 year is on higher side. It is necessary to note that the rash and negligent driving and the consequent accident has become a social crime in the present days. Though there was no negligence on the part of the deceased, he has to lose his life and at the same time submission is made for reduction in the sentence though there is negligence on the part of the petitioner. But any how taking into consideration the facts and circumstances and as the petitioner was aged 24 years at the time of accident, in my opinion it would be just and proper if the sentence for the offence punishable u/s 304(A) IPC is reduced to imprisonment for six months, confirming the fine as ordered by the Trial Court in respect of the other offences. Hence I pass the following:

ORDER

The petition is allowed in part, affirming the conviction of the petitioner for the offences punishable under Sections 279, 337, 304(A) IPC and Section 134(a) and (h) r/w 137 and Section 15(a) r/w 181 of the Indian Motor Vehicles Act. The sentence is modified so far as the offence punishable u/s 304(A) IPC is concerned and the petitioner/accused is ordered to undergo imprisonment for six months and to pay the fine as ordered by the Trial Court. He is also liable to pay the fine as ordered by the Trial Court for other offences. The sentences to run concurrently.

The Trial Court is directed to secure the presence of the petitioner/accused to undergo the sentence.