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2018 Supreme(Kar) 244
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
H.B. PRABHAKARA SASTRY, J.
MOULASAB S/O. HASANSAB KARANACHI – Appellant
Vs.
THE STATE OF KARNATAKA – Respondent
CRIMINAL REVISION PETITION NO.2051 of 2011
Decided on : 11-06-2018
Advocate Appeared:
For the Appellant :SRI. NEELENDRA D. GUNDE, ADVOCATE
For the Respondent: SRI RAJA RAGHAVENDRA NAIK, Adv.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Sections 397 r/w 401 - Revision petition against order of conviction - Conviction under Sections 279, 304A IPC and Section 134 r/w Section 187 of Motor Vehicle Act, 1988 - Accused, driver of a lorry, driving Lorry rash and negligently hit a cyclist from behind and back wheel of lorry run over the boy and the boy succumbed to injuries - Held, To constitute a rash and negligent driving it is not necessary that the offending vehicle must have always exceeded its speed limit or over speeded. Failure to exercise the required care and caution expected to be taken by a driver in a circumstance, in which he was driving would constitute a negligent driving. An act of driving done without due care and caution though not coupled with high speed still results into a rash driving. Therefore, in the instant case merely because there was said to be a few speed breakers on the road and traffic signal near the spot of the accident, by itself cannot be deduced that there was no rash and negligent driving on the part of the driver of the offending vehicle. Order of conviction upheld.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Sections 279, 304-A - Causing death due to rash and or negligent driving - Accused, allegedly driving lorry in rash and negligent manner hit victim, cyclist, resulting in death - Eye-witnesses narrating incident in detail - Accused alleging that eye-witnesses damaged his lorry, thus indirectly admitting their presence at accident spot - To constitute rash and negligent driving, offending vehicle must not always be ridden exceeding its speed limit - Lack of requisite care and caution assumes importance instead - Mere presence of few speed-breakers on road, cannot lead to conclusion that offending vehicle driven carefully and not negligently - Post-mortem report of victim corroborating statements of eye-witnesses - Vehicle report indicating damage caused to vehicle as stated by eye-witnesses - Guilt of accused, established - Conviction, held, proper.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Sections 279, 304-A - Rash and negligent driving - Accused allegedly driving lorry in rash and negligent manner hit victim cyclist, resulting in death - Vehicle report indicating heavy damage caused to minor vehicle - Inquest report and post- mortem report showing heavy crush injuries sustained by deceased - Lorry being heavy vehicle, it dashed with bicycle from back side resulting in life threatening injuries to rider - Driver of lorry proved to be driving heavy vehicle negligently - Conviction, held, proper.
The present revision petitioner was the accused in the Court of the JMFC I at Hubballi (for brevity referred to as the ‘Trial Court’) in CC No.2113/2007 against whom the complainant-police had filed a charge sheet for the offence punishable under Sections 279, 304 A of IPC and under Section 134 r/w. Section 184 of Motor Vehicles Act.
2. The allegation leveled against the accused in the charge sheet of the complainant-police is that on 01.04.2007 at about 7:15 p.m. the accused being the driver of a lorry bearing registration No.KA-25/B-2985 drew the lorry at about 6:15 p.m. in front of Gateway Bar and Hotel near under bridge on Gadag road in Hubballi in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any other and in the result he hit a cyclist by name one Sri. Shivanna from his hind side, due to which accident said Shivanna sustained injuries and succumbed to it. It is also alleged that the driver of the offending lorry left the place without informing the occurrence of the accident to the nearest police station. Since the accused not pleaded guilty the trial was held wherein the prosecution examined 11 witnesses from PW-1 to PW-11 and got marked documents from Ex.P-1 to Ex.P-15 and closed its side. Neither any witness was examined nor any documents were marked as exhibits from the accused side. The Trail Court by its Judgment and order on sentence dated 02.02.2010 held the accused guilty for the offence punishable under Sections 279, 304 A and under Section 134 r/w. Section 187 of the M.V.Act. The accused was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/-and in default of payment of fine, to undergo simple imprisonment for two months for the offence punishable under Section 304 A of IPC. No separate sentence was ordered for the offence punishable under Section 279 of IPC.
3. Aggrieved by the said Judgment of conviction and order on sentence, the appellant preferred an appeal in Criminal Appeal No.12/2010 in the Court of the I Addl. District and Sessions Judge, Dharwad, sitting at Hubballi (for brevity referred to as Sessions Court) which also by its Judgment dated 31.12.2010 dismissed the appeal confirming the Judgment of conviction and order on sentence passed by the Trial Court. It is against the said Judgment of the Sessions Court in Criminal Appeal No.12/2010, the appellant has preferred this Criminal Revision Petition. Respondent is being represented by learned HCGP. Lower Court Records were called for and the same are placed before this Court.
4. Learned counsel for the petitioner in his argument while reiterating the contention taken up by the petitioner in his memorandum of petition submitted that there is no cogent material to prove the alleged guilt of the accused. The courts below ignored the fact that near the place where the alleged accident has taken place there were speed breakers and traffic signals, as such, it was impossible for the alleged offending vehicle to go in a high speed. He also submitted that, PW-2, PW-3 & PW-6 are residents of Ramnagar, as such their presence at the alleged place of accident was suspectable. Further stating that place of the offence is also not clear and there is a discrepancy and there are discrepancies in the evidence of the witnesses, the learned counsel prayed for allowing the appeal.
5. Learned HCGP representing the respondent in his argument submitted that material witnesses more particularly, PW-2, PW-3, PW-5 & PW-6 have supported the case of prosecution. PW-2 himself being the complainant cum eye-witness has given a detailed account of the incident. Since the evidence of the eyewitnesses have come in consonance they are reliable. He also submitted that, regarding the place of the offence, the explanation given by the witness go to show that the place shown in the panchanama and the place stated by the eye-witnesses are one and the same. He also submitted that, even if the
