Karnataka High Court

Aslam Pasha vs The State Of Karnataka on 21 December, 2021

Bench: V Srishananda

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 21ST DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR.JUSTICE V.SRISHANANDA

               CRL.R.P.NO.102/2012

BETWEEN:

ASLAM PASHA
S/O ALTHAFA AHMED
AGED ABOUT 41 YEARS
PROP., SMILE SELL POINT
K.R.PURAM ROAD
SHIVAMOGGA CITY                       ... PETITIONER

           (BY SRI B.S. PRASAD, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY TRAFFIC SOUTH POLICE STATION
SHIVAMOGGA.                          ... RESPONDENT

            (BY SRI V.S. VINAYAKA, HCGP)

     THIS CRL.R.P. IS FILED UNDER SECTIONS 397 AND
401 OF CR.PC PRAYING TO SET ASIDE THE ORDER DATED
17.12.2011 PASSED BY THE SEESSIONS JUDGE FTC-I,
SHIVAMOGGA IN CRIMINAL APPEAL NO.109/2010 AND
ORDER DATED 18.09.2010 PASSED BY THE II ADDL. CIVIL
JUDGE AND JMFC, SHIVAMOGGA IN C.C.NO.969/2009.

     THIS CRL.R.P. COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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                          ORDER

Heard Sri B.S. Prasad, learned counsel for the

revision petitioner and Sri V.S. Vinayaka, learned High

Court Government Pleader for the respondent-State

and perused the records.

2. This revision petition is filed by the

petitioner-accused to set aside the order of conviction

and sentence dated 17.12.2011 passed by the

Sessions Judge, I Fast Track Court at Shivamogga in

Crl.A.No.109/2010 and the judgment and order dated

18.09.2010 passed by the II Additional Civil Judge and

JMFC at Shivamogga in C.C.No.969/2009, whereby

the accused was convicted for the offence punishable

under Section 279, 338 and 304(A) of IPC and

ordered to undergo rigorous imprisonment for a period

of 6 months and to pay fine of Rs.2,000/- for the

offence punishable under Section 304(A) of IPC with

default sentence and to pay fine of Rs.1,000/- for the

offence punishable under Section 338 of IPC with

default sentence and further to pay fine of Rs.750/-

for the offence punishable under Section 279 of IPC

with default sentence.

3. Brief facts of the case are as under:

A complaint came to be lodged contending that

on 06.06.2009, when the deceased Nazeer Ahamed

being a pedestrian was moving by walk in front of the

house of Prakash Kamath near Patel Provision Stores,

3rd Cross, Millaghatta at about 5.00 p.m., the accused

being the rider of the motor cycle bearing No.KA-14-

W-7165 came in a rash and negligent manner and

dashed against Nazeer Ahamed and he fell down and

sustained fatal injuries. Thereafter, he was shifted to

the Hospital and en-route, he succumbed to the

injuries.

4. The jurisdictional police namely, Traffic

Police, Shivamogga have registered a case against the

accused for the offence punishable under Sections

279, 338 and 304(A) of IPC. In the complaint, it is

also mentioned that, pillion rider has sustained blood

injuries. The presence of the accused was secured

and the accused pleaded not guilty. The police, after

thorough investigation laid the charge sheet against

the accused for the aforesaid offences.

5. In order to prove the case of the

prosecution, the prosecution examined in all six

witnesses as P.Ws.1 to 6 and relied upon documentary

evidence, which were exhibited and marked as Exs.P1

to P10. In the prosecution evidence, the complainant

and other witnesses have supported the case of the

prosecution in toto.

6. On conclusion of the prosecution evidence,

the statement of the accused was recorded as

contemplated under Section 313 of Cr.P.C., wherein

the accused has denied all the incriminatory

circumstances. However, the accused failed to place

his version about the incident on record by examining

himself or by filing any written submissions as is

contemplated under Section 313(5) of the Cr.P.C.

Thereafterwards, the learned Trial Magistrate heard

the parties in detail and after considering both oral

and documentary evidence placed on record, taking

note of the fact that the pillion rider also sustained

blood injuries in the accident and nothing had been

lost sight, committed the accused for the offence

punishable under sections 279, 338 and 304(A) of IPC

and passed the sentence as referred supra.

7. Being aggrieved by the same, the accused

has preferred the appeal in Crl.A.No.109/2010 on the

file of the Sessions Judge, I Fast Track Court,

Shivamogga. Learned Sessions Judge in the First

Appellate Court, after securing the records and

hearing the parties in detail, by judgment dated

17.12.2011 dismissed the appeal of the accused,

whereby the order of the learned Trial Magistrate

stood confirmed. Being aggrieved by the same, the

revision petitioner has preferred this revision petition.

8. In the revision Petition, the following

grounds are raised by the revision petitioner:

"1) That the impugned judgment and order passed by the Courts below are illegal, invalid and contrary to law and evidence on record.

2) That the judgment of the courts below is illegal, arbitrary, capricious and opposed to sound principles of law.

3) That the courts below have committed serious error in convicting the petitioner when the prosecution has failed to prove the guilt of the petitioner.

     4)    That the courts below have not
           considered       the      facts  and

circumstances of the case in proper perspective but have simply mislead themselves by stressing unnecessarily on the alleged rash and negligent Act on the part of the petitioner.

5) That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the manner in which the alleged incident took place.

6) That the courts below have committed serious error in relying on the witnesses who are interested and whose evidence suffer from legal infirmities.

7) That the courts below ought to have accepted the defence of the petitioner and ought to have acquitted him.

8) That the courts below have committed serious error in convicting the petitioner when none of the witnesses have deposed with regard to the true version of the case in as much as they are interested witnesses.

9) That the courts below seriously erred in convicting the petitioner relying upon the evidence of PW1 to PW4 when their evidence suffers from serious legal infirmities and further they are not truthful witnesses.

10) That the courts below ought to have seen that no witnesses identified the petitioner. Under these circumstances the conviction of petitioner is liable to be set-aside.

11) That the courts below ought to have accepted the defence of the petitioner that the deceased negligently crossed the road without following the rule dashed to the petitioner's motor cycle and it is negligence of the deceased

and hence the accident was inevitable and not due to any rash and negligent act of the petitioner. Under these circumstances the petitioner is entitled to acquittal.

12) That the courts below failed to consider the fact that PW2, have supported the case of the prosecution, only to get compensation. Hence the prosecution has miserably failed to prove against the petitioner beyond reasonable doubt and further the defence of the petitioner is probabalise thus the impugned order are liable to the set- aside.

13) That the courts below ought to have acquitted the petitioner on ground that Post mortem report shows that there are no any injury on the side of deceased as projected by the prosecution that petitioner hit the deceased on the side. Thus the prosecution is not examined the doctor to show that for what reason death has been occurred. Cause of death itself is not proved, hence conviction is not sustainable. Under these circumstances ingredients of Section 304-A IPC is not attracted to the case of the prosecution and courts below ought to have acquitted the petitioner.

14) That the courts below ought to have acquitted the petitioner giving benefit

of doubt considering the facts and circumstances of the case and the defence taken by the petitioner.

15) That the courts below failed to consider the fact that though the motor vehicle report disclose damages to the vehicle said to have involved in the alleged accident and they have not examined the RTO.

Thus prosecution has not come with true version of the alleged incident.

16) That the courts below committed serious error in relying the evidence of PW1 to PW6 which is not cogent, contradicts to each other and this clearly shows that at the inception the prosecution has concocted false case against the petitioner.

17) That the courts below have committed serious error in convicting petitioner when the prosecution has failed to prove the nature of accident by showing sketch and mahazar in a proper prospective as the same assures paramount important in view of peculiar nature of the case.

18) That the courts below ought to have acquitted the petitioner on the ground that there are several contradiction, omission, and improvement in the evidence of PW1 to PW6.

19) That the Courts below have erred in imposing the sentence on the

petitioner without hearing him with regard to the imposition of the same.

20) That the Courts below ought to have taken into consideration that the petitioner had exercised care and caution while driving in as much as he was not driving in a high speed or rashly and negligently. The fact which is clearly evident in the evidence.

21) That the Courts below have committed serious error in attributing rashness and negligence to the petitioner and further convicting him when the prosecution has miserably failed to prove the same.

22) That the learned Sessions Judge has committed serious error in not applying his mind to the case independently and has blindly approved the findings by the learned Magistrate.

23) That the petitioner is a student and in view of peculiar nature of the case as alleged, Courts below ought to have extended the benefit of Section 3 and 4 of Probation of offenders Act to the petitioner".

9. Reiterating the above grounds, Sri B.S.

Prasad, learned counsel for the revision petitioner

vehemently contended that both the Courts have not

properly appreciated the materials on record and

wrongly convicted the accused and sought for allowing

the revision petition.

10. Alternatively, Sri B.S. Prasad, learned

counsel for the revision petitioner sought for grant of

probation taking note of the fact that the accused was

a student at the time of the incident and was a first

time offender.

11. Per contra, Sri V.S. Vinayaka, learned High

Court Government Pleader, supporting the impugned

judgments contended that the material evidence on

record clearly indicate that the deceased was a

pedestrian and for no fault of his, he lost his life in the

incident and also sustained blood injuries. He would

further contend that these aspects of the matter has

been rightly appreciated by the learned trial

Magistrate and the learned Sessions Judge of the First

Appellate Court.

12. Insofar as the alternate submission of the

learned counsel for the revision petitioner is

concerned, learned High Court Government Pleader

contended that loss of human life in a road traffic

accident has become a menace in the society and if

lenience is shown by this Court, it would send a wrong

message to the society and sought for dismissal of the

revision petition.

13. In view of the rival contentions of the

parties and having regard to the scope of the revision

petition, the following points would arise for

consideration:

(i) Whether the findings recorded by the learned Trial Magistrate and confirmed by the First Appellate Court that the accused is guilty of the offence punishable under

Section 279, 338 and 304-A of IPC suffers from legal infirmity, perversity and does calls for interference?

(ii) Whether the sentence ordered is excessive?

14. In the case on hand, the death of Nazeer

Ahmed having sustained grievous injuries on account

of the road traffic accident that occurred on

06.06.2009 at about 5.00 p.m. in front of the house of

Prakash Kamath situated near Patel Provision Stores,

3rd Cross, Millaghatta involving motor cycle bearing

No.KA-14-W-7165 stands established by placing

necessary oral and documentary evidence on record.

There is no dispute to the said fact, even though in

the grounds, it is urged that, it is the accused, who is

the rider of the motor cycle. The other material on

record, especially the statement given by the owner of

the motor cycle at the time of release of the vehicle

clearly establishes that the accused was the rider of

the motor cycle.

15. No doubt, learned counsel for the revision

petitioner contended that the prosecution witnesses,

who have supported the case of the prosecution are

interested witnesses, it is settled principle of law,

mere relative of the deceased is not a ground to

prosecute interestedness. In a matter of this nature,

things will speak by itself. Moreover, since the

accused being the rider of the motor cycle bearing

No.KA-14-W-7165 at the time of the incident having

been established by the prosecution, it is for him to

add his version about the incident and place the same

before the Court for proper adjudication of the matter.

16. In this regard, this Court place reliance on

the judgment of the Hon'ble Apex Court in the case of

RAVI KAPUR VS. STATE OF RAJASTHAN reported

in (2012) 9 SCC 284, wherein at Paragraph No.39, it

has been held as under:

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

17. Applying the legal principles enunciated in

the above decision to the case on hand, when the

prosecution is successful in establishing the incident

by placing cogent and convincing evidence on record

and in the absence of any version placed by the

accused about the incident, consequences in law has

been followed by the learned Trial Magistrate which

has been rightly re-appreciated by the learned

Sessions Judge in the First Appellate Court.

Therefore, hardly there is any scope for this Court to

interfere with the well-reasoned order passed by both

the Courts in the impugned orders and the ground

urged by the revision petitioner in this petition are not

sufficient to hold that the impugned judgments are

suffering from legal infirmity and perversity seeking

interference by this Court. Accordingly, Point No.(i) is

answered in the 'negative'.

18. Insofar as the sentence is concerned,

admittedly, the pillion rider also sustained injuries in

the incident and the pedestrian by name Nazeer

Ahamed has lost his life in the accident. What is the

appropriate sentence in a given case of this nature is

no longer res-integra.

19. In this regard, this Court place reliance on

the judgment of the Hon'ble Apex Court in the case of

STATE OF PUNJAB VS. SAURABH BAKSHI reported

in (2015) 5 SCC 182, wherein at Paragraph Nos.13

and 14, it has been held as under:

"13. In our considered view the decision in the said case has to be confined to the facts of that case. It cannot be said as a proposition of law that whenever an accused offers acceptable compensation for rehabilitation of a victim, regardless of the gravity of the crime under Section 304-A IPC, there can be reduction of sentence.

14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction : (Balwinder Singh case [State of Punjab v.

Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp. 186-87, para 12)

"12. ... '1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of

road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.

13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that

even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.' (Dalbir Singh case [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] , SCC pp. 84-85 & 87, paras 1 & 13)"

20. Applying the legal principles enunciated in

the above decision to the case on hand, this Court

cannot show any lenience to the revision petitioner.

However, ordering for rigorous imprisonment of 6

months cannot be countenanced in law and converting

the same to simple imprisonment would meet the

ends of justice. Accordingly, point No.(ii) is answered

and pass the following:

ORDER

(i) The Criminal Revision Petition is allowed in part.

(ii) While maintaining the part of conviction of the accused for the offence punishable under section 279, 338 and 304(A) of IPC, the sentence imposed by the learned Trial Magistrate, confirmed by the First Appellate Court is modified to the extent of converting rigorous imprisonment for a period 6 months to simple imprisonment for a period of 6 months for the offence punishable under Section 304(A) of IPC.